L'infraction de corruption: étude comparative entre le droit français et le droit tunisien

CHAPTER FIRST : COMPARISON OF THE PROCEDURE 

The comparison of the procedure implies the study of the engagement of the continuation

(Section 1) and the difficulties of setting opens this one of it (section 2).

SECTION FIRST : The ENGAGEMENT OF the CONTINUATION 

The study of the engagement of the procedure requires the determination of the qualified parts (para 1) to engage this one as regards corruption and the determination of the courts of jurisdiction (para 2).

PARA 1 : Qualified parts to institute the proceedings 

Normally, it rests with the public Ministry to start the public action (A), however, other parts have this capacity (B).

To it public Ministère has

Article 40 Al 1 of the CPPF lays out : « The public prosecutor receives the complaints and the denunciations and appreciates following their giving it ». Thus, the parquet floor appreciates the advisability of continuing or not the denounced facts. However several abusive denunciations to see in practice untrue appear with the approach of elections, in particular for local elections. It thus rests with the parquet floor to take into account this practice and to act as function.

As regards corruption, as for all infringements, the parquet floor is dominated by the principle of the appropriateness of the continuations which enables him to choose between the release of the continuations or the classification without continuation. But considering the clandestinity of the facts of the corruption and the difficulty of proving them^171(*), it is important that the parquet floor continues since a denunciation proves to be founded. One notices as well as the parquet floor, which receives the complaints and the denunciations, is the principal part having the capacity to engage a continuation for facts of corruption.

In Tunisian right, the Tunisian legislator took as a starting point the the French legislator with regard to the functions of the public ministry. Indeed, article 20 CPPT lays out « the public ministry puts moving and exerts the public action ». Moreover article 30 of the CPPT lays out : «The public prosecutor appreciates it action to be taken for the complaints and denunciations which it receives or which are transmitted to him ». 

Thus, it is the public ministry which engages the continuation and it is, in its turn, governed by the principle of the appropriateness of the continuations and the facts of corruption are brought to its attention by the means of the denunciations and the complaints.

It is noticed, that in French right as in Tunisian right, it is the parquet floor, which receives the complaints and the denunciations and which it rests with to him to engage or not a continuation. But there are other parts which can institute the proceedings ?

B them other parts which can engage the continuation

It was seen that the facts of corruption are made available of the public ministry by the means of the complaints and the denunciations. Indeed, the complaint is only one particular form of denunciation ; It is the denunciation made by the victim.

The concept of victim as regards corruption raises two types of difficulties, the first tends to be questioned if there is really a victim of the corruption ? The second tends, once the existence of a shown victim, to determine which are the people allowed to act ?

1-Y does it have a victim of the corruption? 

According to the article 2CPPF, the victim is the person who personally suffered from a damage directly caused by an infringement and it with the possibility of constituting civil part for repair. As regards corruption the damage is not inevitably detected by the victim considering the clandestinity of this infringement and its effects, in more in the majority of the cases the damage is not undergone by a well defined person but by an abstract group people. As example, a representative of a local authority can conclude a pact from corruption with a company at the time of a public market ; the cost of the corruption will be supported by the taxpayers. Those suffer an unquestionable but undetectable injury^172(*).

In Tunisia, the article 2CPPT concerning the public action lays out « it (the public action) can also be put moving by the injured part ». It is noticed that the victim of the infringement of corruption can engage civil left continuation while being constituted, but the practice proved the ignorance of the part injured in the majority of the cases, the existence of the damage undergone for the same above mentioned reasons.

Moreover, the doctrines raised the following question ; Can one regard the corrupter or the corrupted as victim of the corruption having the capacity to engage the public action while constituting himself left civil ?

In France, the Court of criminal appeal admits the civil proceeding of the person who took part in the offense provided that it did not cause the offense and that it is not accessory. However, it dismisses the action of the person who, from bad time gave from the money to the principal author of the offense in order to obtain a favorable decision^173(*). In conclusion the court of criminal appeal dismisses the action of the unworthy victim.

In Tunisian right this possibility is envisaged in an implicit way. Indeed, the corrupter or the intermediary can denounce the act of corruption, before any continuation, in order to escape repression in accordance with article 93 CPT. And according to the Supreme court of appeal, they can constitute civil part if they are in good faith^174(*).

This possibility is open only to the corrupter and with the intermediary, in other words, the possibility of denunciation is not opened with the author of the passive corruption.

Thus, it is noticed that the corrupter can see himself acquiring the statute of victim in the event of denunciation and engaging a continuation in accordance with the article2CPPT.

The existence of a victim of the corruption thus shown, another question is posed ; Which are the allowed people to institute the proceedings ?

2 them people allowed to act 

In Tunisia, in addition to the possibility of starting the continuations by the corrupter or the intermediary, certain special laws such as the law n°83-112 promulgated the 12 décembre1983^175(*) provide that « if the made fault constitutes an offense or a crime and especially in the case of passive corruption, it is necessary to inform the public ministry immediately ». It is noticed that this text takes again the same terms of article 40 CPPF subparagraph 2 which lay out : « Any authority made up, any public officer or civil servant who, in the performance of his duties, acquires the knowledge of a crime or an offense is held to deliver opinion without delay to the public prosecutor and to transmit of them to this magistrate all the information, official reports and acts which are relative there ».

This text aims at the administration in general which is seen in the obligation to inform the public ministry in order to put moving the public action and this in the event of damage undergone following a passive corruption. This is explained by the need for transparency of the public office which touches with the law and order and the general interest.

This special law expressly poses the same obligation with the agents of the customs, in other words the general administration of the customs is seen in the obligation to start the public action, while being constituted left civil, in the event of damage undergone following the passive corruption.

Other special laws envisage the possibility for certain ministries of starting the public action while being constituted left civil, such as the ministry for the interior represented by the Minister of Interior Department, indeed, this last can engage a continuation in the event of corruption within the framework of its ministry. This prerogative is also planned for the Minister for justice.

In France, if jurisprudence admits the existence of a civil proceeding it restricts the concept of victim of the corruption by making reduced application of the article 2CPPF.Il would be preferable to quote some victims of the facts of corruption :

Initially, concerning the local authorities ; The infringements of corruption made by a territorial civil servant or an elected official of the local authority are likely to cause an injury with this one from where they are allowed to constitute civil part.

Then, concerning the administration which employs the author of the facts, depending directly on the State. The court of criminal appeal decides that it can constitute civil part against one of its corrupted civils servant but only in the event of moral wrong resulting from the attack to its reputation^176(*).

Then, concerning the private employer ; Nothing makes obstacle, when an employee is corrupted, so that its employer constitutes civil part since it suffers an unquestionable and personal injury. But the question which installation is if this action is possible when the employee is corrupting ?

The employee can cause a material loss with the company since it can be declared civilly responsible for the facts made by its employee. Moreover, the facts of the corrupting employee involve the penal responsibility for the leader and can involve the penal responsibility for the legal entity. We thus think that the employer can suffer a personal and direct injury whose it will be able to ask repair in front of the repressive jurisdictions while being constituted left civil^177(*).

Lastly, with regard to the speaker with the offense ; The court of criminal appeal of the supreme court of appeal admits the civil proceeding of the person who took part in the offense when it is established that she did not cause the offense and that she is not accessory^178(*).

It is noticed that French jurisprudence and the Tunisian legislator allow the intermediary and the speaker with the facts of corruption of constituting civil part while imposing conditions which return the recourse to this possibility very limited to the level of the practice since the constitution of civil part, in this case, imposes the good faith of the intermediary or the speaker.

* ¹⁷¹ Monié stéphanie  ; Corruption and penal procedure, memory DEA Sc Crim UT1 under the direction of Mr. marc Second 2001/2002 p 16.

* ¹⁷² The infringement of corruption was regarded as being an infringement of general interest dice the beginning of the XX eme century. This theory was criticized by the doctrines (J. pradel procedure penal Cujas 2002/2003 n° 291 and S) as well as the court of criminal appeal in a stop of the 1déc 1992 considered that  «  if the offense of corruption passivates instituted by article 177 of the penal code were mainly in the sight of the general interest, it also tends to the protection of the private individuals who can... suffer an injury direct and personal they are founded to obtain repair in front of the penal jurisdictions  ». See in particular, Case. crim., Dec. 1, 1992: Dr. PEN. 1993, Com. n° 126, obs. Mr. Véron).

* ¹⁷³ Case Crim 1st DEC 1992COSTA, Dr. PEN 1992comm.126, obs M minnow. (1st species) and cases crim 7 fév 2001 Bull crim n°38 (2nd species).

* ¹⁷⁴ Case crim n°4322 of the 7 jan 1983 bulldozer Tunisian Court of case p56.

* ¹⁷⁵ law n°112 promulgated 12 décembre1983 .JORT 13 DEC 1983 relating to the Staff Regulations of public civils servant.

* ¹⁷⁶ Crim case 18 DEC 1996, J.C.P 1997 IV 926.

* ¹⁷⁷ We share the same progressive idea by Monié S  ; corruption and penal procedure, memory DEA Sc Crim UT1.

* ¹⁷⁸ Case. crim., Dec. 1 1992 COp Cit.