• The President of the Transition speaks of more than 9 billion FCFA not recovered
• More than 26 billion FCFA in fines pronounced.
• By the ECOFI pole of the TGI OUAGA since 2018
Lhe criminal trial is aimed at the repression of persons who have committed offenses against the criminal law, simply called the delinquents. Its culmination is marked by the intervention of a judicial decision. On the other hand, justice is only truly done when the decision is fully executed. In criminal matters, the penalties imposed are those involving deprivation of liberty, fines and additional penalties. Fines, when they are final, that is to say cannot be appealed, must be recovered for the benefit of the State budget. The recovery of fines imposed by the courts is an issue in terms of the execution of sentences and the credibility of the criminal response, but it is also a financial issue, since the proceeds of criminal fines constitute revenue for the benefit of the state budget. In Burkina Faso, the recovery of legal fines remains the poor relation of the repressive justice system. This task falls under the attributions of which functions? What are the reasons that hinder the collection of these fines. How much could the amount of the legal fines be?
The actors of the execution of sentences
Under the terms of the law on the Code of Criminal Procedure, the public prosecutor and the parties pursue the execution of the decision, each as far as he is concerned. In addition, it specifies that proceedings for the recovery of fines are made in the name of the Prosecutor of Faso by the Public Treasury.
The parties involved in collection are of two types: on the one hand, those who carry out the orders of the Prosecutor depending on the case (judicial police officers, judicial officers) and the Public Treasury, on the other hand.
However, the establishment of a collection document is the necessary condition for the execution of fines, the recovery of damages and interest awarded to the benefit of the State, costs and expenses subsequent to the decision. This title of perception is called extract for the Treasury. The establishment of this document is the responsibility of the Registrars who check, beforehand, whether the sentences are final or not. It should be noted that the role of the Chief Registrar has increased further with Order No. 2009-0106/MEF/SG/DGTCA/DELF of March 24, 2009 establishing revenue authorities at Courts and tribunals . From now on, the Chief Registrar is no longer content with just issuing collection vouchers, he is also a player directly involved in collection. With this decree, the collection of pecuniary judgments is done by the Chief Registrar directly as revenue manager, against a receipt that he issues to the person concerned.
As soon as the decisions relating to a pecuniary condemnation for the benefit of the Public Treasury have become final, the Registry draws up an extract from the judgment in triplicate in order to compel the condemned party to discharge them in the hands of the Court Registrar (Chief Registrar ) or the Receiver of the Treasury.
Essentially involved in the process of recovering legal fines, the public prosecutor, represented by the Public Prosecutor at the High Courts, or the General Prosecutors at the Courts of Justice, the Registrars and the Public Treasury.
Reasons for non-recovery
For Me Mathieu Simporé, Chief Registrar, Secretary General of the Union of Registrars (SGB), the interpellation of the President of the Transition is justified, but nothing can be done illegally, and everything must be done legally. .
Procedurally, it notes that the provisions of article 622-1 of the Code of Criminal Procedure, which require that for fines or costs or any other payment to the benefit of the public treasury, the duration of judicial constraint is fixed by the conviction decision, are not always respected. He pointed out that article 700 of the old Code of Criminal Procedure allowed the Registrar to fix the minimum duration provided for by this law and that since the new Criminal Code does not offer this possibility to the Registrar, the latter cannot invent of delay. Yet, on this basis, he notes, the Registrar draws up the extract for the prison in order to compel convicts who do not want to comply voluntarily.
Then, as difficulties encountered in the recovery of fines, Me Simporé mentions the fact that the law does not give full power to the Chief Registrar to directly seize the property of the convicted person, since according to him, the convicted are most often insolvent.
In addition, our interlocutor advances as objective reasons which explain this situation, the inadequacy of the premises and computer equipment, the non-operationalization of the computerized management of the data of the enforcement documents, the absence of the means of communication in the Court Offices, the recurrence of unsuccessful searches for judicial police officers, the lack of resources allocated to them to carry out searches. In addition, the Chief Registrar points out the problem linked to the addressing of convicts and suggests that the numbers of persons to be notified in case of need be associated with the contacts of the latter who do not fail to change contacts after their release. .
In addition, the leader of the SGB thinks that the absence of financial motivation, even if it is not a sufficient reason which justifies the weak recovery, would not encourage the actors to redouble their efforts to bail out the coffers of the State.
He says that emoluments were served to the Chief Clerks, all of which was abolished by Decree No. 85-305 of June 03, 1985 abolishing the emoluments and tariffed rights allocated to the Chief Clerks. And this decree was intended to be retroactive, as a result, the Chief Clerks were obliged to reimburse all that they have received since January. Naturally, this situation did not make everyone happy. His observation is that since that time, the culture of the establishment of enforcement documents is no longer taught so that the Clerks who have less than 20 years in the field do not know concretely what it is about.
Maître Simporé is delighted that the authorities have tackled the problem head-on. As proof, he makes the case of a diagnostic workshop in 2022, which looked into the question.
To overcome these shortcomings, it proposes the creation and operationalization of sentence enforcement offices in all jurisdictions, the provision of human and financial resources to the jurisdictions’ management and the adoption of texts relating to criminal justice costs. He insisted on the need to train the actors and to sensitize the convicts to pay their fines.
The financial level of the fines
The non-recovery of legal fines constitutes a shortfall for the benefit of the State budget. The President of the Transition, Ibrahim Traoré, in his interview with the press, mentioned more than 9 billion FCFA in uncollected fines. Clerks have been called upon to get to work, he continued.
Only firm and final fines are payable. A fine is said to be final when the person against whom it is imposed no longer has a means of appeal against the decision. Whether it is firm or conditional is fixed by the judge, when pronouncing the judgment or ruling.
According to the statements provided by the various Registries, the total amount of fines to be recovered over the period 2018-2021 was 9,142,910,555 FCFA, according to Me Mathieu Simporé. He goes on to say that over the same period, the sum of 152,243,550 FCFA was recovered, representing a recovery rate of 1.66%. He says he deplores this situation of loss of resources and assures the availability of his union to support the authorities.
In order to allow an assessment of what this amount could be, L’Economiste du Faso has zoomed in on a judicial center specializing in the repression of economic and financial offenses (ECO-FI). This is the ECOFI center attached to the Ouaga I High Court. It is the court that pronounces the highest fines, all of which is explained by the nature of the offenses it deals with. In only 75 decisions rendered since its effective operation in 2018, the total amount of firm fines imposed amounts to 26,191,128,737 FCFA. In the fuel smuggling case, which hit the headlines in its time, the total amount of fines amounted to more than 14 billion FCFA. It should be noted that suspended fines were not taken into account.
Also, 2.925.711.019 FCFA represents the amount of damages for the benefit of the State, and for which the offenders of the law have received condemnation. In addition, several confiscations of property, particularly immovable property, have been ordered for the benefit of the Public Treasury. However, it should be noted that the decisions made by the ECOFI cluster are subject to appeal, so the fines indicated are not systematically payable.
Rahim OUEDRAOGO (Collaborator)
framed
Voluntary execution
Lhe procedure for the voluntary enforcement of fines and costs for the benefit of the Public Treasury is governed by the provisions of the Code of Criminal Procedure (article 622-6 et seq.). Article 622-6 provides that: “Any condemnation to a fine or to costs or to any other payment for the benefit of the Public Treasury, pronounced by a criminal court, may be executed voluntarily by the convicted person under the conditions provided for in Articles 622 -7 to 622-9 below, without prejudice to the right of the Public Treasury to pursue enforcement against the property of the convicted person. Thus, the sentenced to a firm fine has a period of 3 months, from the day the decision became final, to execute freely. For the sentenced to a term of imprisonment in addition to the fine, this period runs from the day of his release.