As the number of bounced cheques in Tunisian courts continues to rise, calls have been made to review and amend the legal texts governing these offences in order to get the economic machine moving again.
Despite the lack of up-to-date data and precise figures on the number of offences, data published by the Central Bank of Tunisia for 2022 confirms that the number of cheques rejected for insufficient or missing funds amounted to 392,000 cheques out of a total of 25.3 million cheques issued in 2021.
The 2011 amnesty… an exception
Due to the delay and failure of the Ministry of Justice to submit to the Prime Minister the draft amendment to Article 411 of the Commercial Code regarding the issuance of bank cheques, a bill was submitted to the Bureau of the Assembly of People’s Representatives last week to grant an amnesty for the offence of issuing bad cheques.
To find out more about the content and details of the initiative, African Manager spoke to head of the ARP’s General Legislation Committee, Yasser Kourari, who explained that the submitted text includes three articles covering cases registered until December 31, 2023.
According to the proposed law, the amnesty will apply to any person who has issued an uncovered cheque or refused to pay it in accordance with Article 374 of the Commercial Code and in respect of whom a certificate of non-payment has been issued before January 1, 2024.
The amnesty will also apply to any person who has been the subject of a judicial investigation by a court at any level or who has been convicted of one of the two offences referred to in Articles 2 and 3 before January 1, 2024.
Kourari pointed out that the proposed law, “while stressing the need to guarantee the rights of the debtor, also presents a mechanism or method that guarantees the rights of the creditor”.
He recalled that Tunisia has approved amnesty in the past, while guaranteeing the rights of creditors without any restrictions, with the exception of the 2011 amnesty. The latter did not set the condition of payment of what was owed on the grounds that the majority of those involved in bounced cheque cases had fled to Libya. And with the revolution that broke out there, the Tunisian government took the decision to grant an amnesty in order to ensure the physical safety of those involved in the crime of issuing bounced cheques.
Kourari continued: “Today, things have changed and the context is completely different, so it is no longer possible to grant an amnesty without guaranteeing the payment of the principal of the debt. Any measure that does not guarantee the rights of all parties is likely to threaten social and economic peace”.
He also stressed the need to find a radical solution to the bounced cheques crisis, which is getting worse.
Freedom for the victims first?
In this context, he referred to the procedure approved by President Kais Saied in 2022, regarding an amnesty for the offence of issuing bad cheques, pointing out that this amnesty, which expired on December 31, 2023, provided for the payment of the debts of those entitled to it and was based on the binomial “freedom for those convicted and protection of the rights of creditors”.
The President of the Parliamentary Committee on General Legislation believes that the new initiative “gives priority to amnesty and the freedom of those concerned, while converting debts into civil ones, without providing adequate legal mechanisms or guarantees for this purpose”.
He called on the Ministry of Justice to speed up the submission of the draft amendment to Article 411 of the Commercial Code to the Prime Ministry for approval and submission to Parliament. He questioned the reason for the delay, especially as the Minister of Justice had previously announced that the draft amendment was 99 per cent ready.
He said that in the coming period, Parliament would press for an acceleration of the process by which that draft will be presented to MPs before being referred to the General Legislation Committee.
He continued: “We want to find solutions based on a new concept and vision for Article 411 and we do not want to protect one group of victims and create new ones”.
In response to a question about the number of people involved in bounced cheque cases, he said that the prison service was talking about 460 people, both convicted and detained.
However, associations and various civil society organisations put the figure at between 6,000 and 7,000 people imprisoned for non-payment of cheques.
