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

PARA2 : Courts of jurisdiction

The jurisdictions of the common right are exclusively qualified as regards corruption (A), however jurisdictions of exception can recognize infringements of corruption in cases envisaged by the law (B).

Has to them jurisdictions of the common right

In France as in Tunisia, the competence of the jurisdictions of the common right is fixed according to the gravity of the continued facts and their qualifications of crimes, offenses or of infringments.

In Tunisia, article 27 CPPT lay out : « The criminal court is only qualified to know crimes » . Article 122 CPPT, of dimensioned sound, precise that are described as crimes, the infringements which the laws punish of death, or of imprisonment during more than five years .

The same article adds that offenses are qualified ; The infringements which the laws punish of the one duration imprisonment higher than fifteen days and not exceeding five years and a fine of sixty dinars (40 euros). As for the courts of jurisdiction E matter of offenses, article 124 CPPT adds that the court of first authority and more precisely the correctional room in the first resort know all offenses except for those which are competence of the cantonal judge to knowing ; punished offenses of a sorrow of imprisonment not exceeding a year.

Knowing that for the infringement of corruption, in Tunisia, the legislator envisaged sentences of emprisonment of which the duration varies according to cases', which involves the competence of the various courts.

In France, one finds the same distinction between crimes, offenses and infringments. This resemblance N `is not the fact of the chance but it is explained by the tendency of the Tunisian legislator to take as a starting point the the legislation and the French penal policy.

This resemblance is not absolute, indeed, article131-1 CPF relating to the crimes envisages one ten years minimal duration of criminal reclusion for this type of infringements, contrary to the Tunisian right which envisages one five years minimal duration.

Of another with dimensions, article 131-3 CPF and following relating to the offenses envisages one duration maximum ten years of imprisonment for this type of infringements, contrary to the Tunisian right which envisages one duration maximum five years.

It should be known that since the promulgation of the law of March 16, 1943, the criminal character was removed with the infringement of corruption in French criminal law, in other words, there was a correctionnalisation of this one. One speaks consequently about the offense of corruption, which causes exclusive competence of the correctional court. But this law and the new code left an aggravating circumstance leaving a criminal character to the corruption ; It is the case of article 434-9 CPF relating to the magistrates or comparable guilty of passive corruption for the benefit or with the detriment of a person being the subject of criminal continuations, the principal sorrow is fifteen years the criminal reclusion, which involves the competence of the court of bases.

We would study on this level the competence of the various courts.

1 them courts of competent jurisdiction to judge the infringement of qualified corruption of crime 

has the criminal court 

In Tunisia, it is the criminal court, located in each Court of Bankruptcy, which is qualified to judge the crimes ; punished infringements of a sentence of emprisonment not being able to be lower than five years. Thus, the criminal court is qualified for the cases of articles 83 CPT relating to the public servant or comparable who, either personally, or by intermediary, for itself or others, approved offers or promises or receives gifts or present to achieve an act of his function, even just, but not subject with wages, then, article 84 CPT relating to the public servant or assimilated who caused these offers, promises or the handing-over of gifts or present. In these cases the sorrow of imprisonment is ten years in the first case and twenty years in the second.

Of another with dimensions, the criminal court is qualified also for the passive corruption of the magistrates envisaged in articles 88 and 89 CPT which lay down a sorrow of ten years imprisonment (89 CPT) and twenty years (88 CPT).

Lastly, the criminal Court is qualified in the event of active corruption of the public civils servant accompanied by constraint or attempt at constraint by ways in fact or threats punished ten years of imprisonment, in accordance with article 91 CPT.

Let us announce that, after the reform of May 23, 1998, the criminal court became qualified for the majority of the infringements as regards corruption. This widened competence is explained by the aggravation of the sorrows following the aforementioned reform.

B Court of bases 

In France, the law of March 16, 1943 had for principal effect the correctionnalisation of the corruption. However, this law as well as the new Penal code left the criminal character to this one on the assumption envisaged in article 434-9 CPF.

This article, in its third subparagraph lays out that when a magistrate is guilty of passive corruption for the benefit or the detriment of a person being the subject of criminal continuations, the incurred principal sorrows are fifteen years the criminal reclusion. It is noticed that the infringement of corruption, in this case, is described as concerning crime jurisdiction of the court of sat in accordance with the article 231CPPF.

By making the comparison between the two legislations, one on the other hand notices that the court of sitted is qualified only in one case of corruption, the criminal court is qualified in the majority of the cases. This is explained by the tendency of the Tunisian legislator to worsen the repression of the corruption since the infringements are qualified crimes in Tunisia if they are punished of a sentence of emprisonment higher than five years.

2 it correctional Room and the correctional court (offenses) 

to it correctional Chambre has 

In Tunisia, the correctional room is qualified as regards offenses (article124CPPT). Thus, is spring of the aforesaid the room, the active corruption envisaged in article 91 CPT subparagraph 1st which lays out : « Is punished five years of imprisonment and five thousand dinars fine, any person who will have corrupted or tried to corrupt by gifts or promises of gifts, present or advantages of some nature that it is one of the people aimed to article 82 of this code (public servant or assimilated)... « this same article adds that the same sorrows are applicable to any person having been used as intermediary between the corrupter and the corrupted. Thus, it is the correctional room which is qualified in this case.

Another offense which appeared with the reform of May 23, 1998 and which is competence of the correctional room, it act of the offense to grant others an unjustified advantage by a contrary act with the legislative and lawful provisions having the aim of guaranteeing the freedom of participation and the equal opportunity in the last markets envisaged by article 87 (a) CPT.

The sorrow planned for this offense is five years of imprisonment whereas in France it is punished two years in accordance with article 432-14 CPF. With our direction, the sorrows envisaged in the two legislations are not compatible with the gravity of the facts complained of.

Lastly, the correctional room is also qualified for the offense envisaged in article 85 CPT which lays out :  « If the public servant or comparable accepted gifts or present in reward of what it did or of what it did not make, it is punished imprisonment during five years and of a fine of five thousand dinars ».

This offense is made up once the civil servant accepted gifts or present after the achievement or not of the act of the function, which distinguishes it from the case envisaged in article 83 CPT relating to the acceptance of the gifts before the achievement of the act.

Article 85 CPT lays down a five years sorrow of imprisonment following the law of May 23, 1998 instead of one year of imprisonment before the promulgation of the aforesaid the law, which affirms the repressive policy pursued to Tunisia as regards corruption.

B it correctional Court 

In France, it is the correctional court which is qualified as regards offenses and the latter is qualified for all the offenses of corruption since the correctionnalisation of this infringement by the law of March 16, 1943, except for article 434-9 CPF, previously studied, which envisages fifteen years the criminal reclusion what implies the competence of the court of bases.

It is noticed that in France the correctional court has an exclusive competence as regards corruption contrary to the correctional room in Tunisia which is only one competent limited to well defined cases.

3 it cantonal Court in Tunisia (offenses envisaged by the law) 

We specified that the cantonal court in Tunisia knows in last spring of the infringments and in the first resort knows punished offenses of a sorrow of imprisonment not exceeding a year or of a sorrow of fine not exceeding thousand dinars (700 euros) per application of article 123 CPPT.

Consequently, this court is seized in the event of attempt at corruption which did not have any effect in accordance with article 92 CPT new which lays down a sorrow of one year imprisonment and a fine of thousand dinars.

In practice, the courts do not apply the sorrows envisaged in a strict way in the event of attempt. This position of Tunisian jurisprudence is regrettable because, with our direction, the attempt at corruption represents the same dangers as the corruption itself.

If one proceeds to a comparison with the old drafting of article 92 CPT, one notes that the cantonal court was qualified in two cases ;of with dimensions, for the attempt at ways in fact or threats and another with dimensions for the attempt at corruption which did not have any effect. With the reform previously quoted the legislator the attempt at ways in fact or threats of the competence of the cantonal court removed.

It is noticed that in France, the police court, which has almost the same role that the cantonal court, is not qualified as regards corruption but this incompetence is explained by impossibility, for this one, to pronounce sentences of emprisonments : essential sorrows for the infringement of corruption.

In conclusion, the jurisdictions of common right have a very important role and an exclusive competence as regards corruption.

4- Exemptions from the terms of reference 

In France, the normally qualified jurisdictions can see dispossessions following the creation of specialized jurisdictions (A) and the existence of rules allowing an exemption from the jurisdiction ratione loci (b).

to it creation of specialized jurisdictions has

In front of the rise of the delinquency of businesses known as « in white collar », a law n°75-701 of August 6, 1975 added to book VI of the CPPF a title XIII heading: «Of the continuation, the instruction and the judgment of the infringements in economic and financial matters». This law instituted jurisdictions specialized for the infringements in economic and financial matters. From now on, in each spring of Court of Appeal, one or more Courts of Bankruptcy comprising of the specialized magistrates who are qualified for the instruction and the judgment of these infringements and those being related to them.

These infringements are envisaged by article 704 CPPF and one notices that the list of this article aims only the offenses.

Article 704 CPPF was modified by the law of December 1 1994 which added the corruption and the trading of favors, in their two forms active and passivates, in the long list of the infringements which can be submitted with the Courts of Bankruptcy specialized for the continuation, the instruction and the judgment of the infringements made in economic and financial matters.

The law of December 1, 1994^179(*) carried, moreover, two other important modifications. Of dimensioned, it founded in article 705 CPPF the technical process of one « concurrent territorial competence » between the correctional jurisdiction of common right and the specialized jurisdiction. This expression has two directions. It wants initially to say that the specialized magistrates have an additional competence, being added to that which they already have pursuant to the rules pursuant to the rules of the common right. It wants to say, then, that these magistrates are only one optional competent : it is necessary, indeed, that these businesses are of a great complexity so that they are allotted to these magistrates^180(*).

Of another with dimensions, the aforementioned law modified the rules of sasine of these jurisdictions. Previously, the law of August 6, 1975 charged the president of the court of criminal appeal of the capacity to allot the businesses to the jurisdiction specialized, on request of or the examining magistrate public prosecutor. With the reform of 1994, that it is about a procedure followed on information or in preliminary investigation, the public prosecutor can seize the specialized jurisdiction. It is the Attorney General close the Court of Appeal where the specialized jurisdiction has its seat, which makes the decision. If it is about a procedure of information, the examining magistrate seizes his qualified colleague.

It is necessary to announce, of another with dimensions, the contribution of the law of June 30 2000 which widened the list of the infringements coming under the responsibility of the specialized jurisdictions envisaged by article 704 CPPF. Indeed, the law adds the cases of active and passive corruption of the only Community civils servant (articles 435-1 and 435-2 CPF)^181(*). Moreover these two infringements, since the aforementioned law, appear in the list of the infringements giving to the French courts a universal jurisdiction in accordance with article 689-8 CPPF^182(*).

According to certain authors, these specialized jurisdictions did not really show their effectiveness on the practical level, fault of having in their center sufficient truly specialized magistrates^183(*). For this reason, the law of March 9, 2004^184(*) appreciably improved the treatment of the economic and financial infringements by extending the scope of the jurisdictions specialized as well as the statute of the specialized assistants^185(*).

This law modified article 704 CPPF which lays out, from now on : « the territorial scope of a Court of Bankruptcy can be also extended to the spring of several courses of call for the investigation, the continuation, the instruction and if they are offenses, the judgment of these infringements, in the businesses which are or would appear of a very great complexity, because in particular of the great number of authors, accomplices or victims where geographical spring on which they extend ».

Thus, the specialized jurisdictions have, following the reform of March 9, 2004, an interregional competence since it is extended to the spring of several courses of call.

In Tunisia such a specialization is not envisaged by the Code of penal procedure, which is, to our direction, regrettable considering the complexity and the clandestinity of the facts of corruption.

B it exemption from the jurisdiction ratione loci

Two exemptions from the terms of territorial reference can be mentioned on this level,

First to the local councillors the second relates concerns the foreign civils servant who do not belong to the framework of the European Community.

Being the local councillors, a law of July 18, 1974 modified article 681 CPPF, it was about an exemption from the terms of territorial reference allowing that the local councillors are automatically continued or considered in front of a jurisdiction being located apart from their district. The purpose of this rule was principal to guarantee the impartiality of the jurisdiction by avoiding the risk of pressures on the local jurisdictions.

This law envisaged a procedure complexes likely to delay the investigations. Moreover the bad drafting of the text led to cancellations of procedure which shocked the public opinion. Thus the legislator decided to remove this text, by the law of January 4, 1993, in order to preserve the respect of the equal treatment of the justiciable ones. From now on, the elected officials automatically raise of the jurisdictions territorialement qualified, except if they ask an expatriation of the file by the procedure of reference in the interest of a good administration of the justice envisaged by article 665 CPPF. Expatriation can be ordered only on request of the Attorney General meadows the Supreme court of appeal or of the Attorney General meadows the Court of Appeal in which is the seized jurisdiction^186(*). In this case the reference is ordered by the Court of criminal appeal.

In order to avoid such a request of dispossession near the Supreme court of appeal, the law of March 9, 2004 added a new subparagraph to article 43 CPPF which lays out : « When the public prosecutor is seized by facts blaming, as author or victim, a person agent of the public authority or responsible for a mission of public utility which is usually, from her functions or her mission, in relation to the magistrates or civils servant of the jurisdiction, the Attorney General can... transmit the procedure to the public prosecutor of the Court of Bankruptcy nearest within the competence of the Court of Appeal. This jurisdiction is then territorialement qualified to know the business... ».

One notices thus, who this new procedure is faster than the preceding one since it makes it possible an impartial jurisdiction to know businesses blaming the people quoted previously without requiring a request in dispossession near the Supreme court of appeal^187(*).

As for the public agents and the foreign magistrates not raising of the framework of the European Union^188(*). The law of June 30, 2000 envisaged in a new article 706-1 CPPF that for the continuation, the instruction and the judgment of facts of corruption activates concerning these people, the public prosecutor, the examining magistrate and the correctional court of Paris exerts a concurrent competence with that which results from the normal rules of the jurisdiction ratione loci.

One notices that there was a concentration^189(*), between the hands of the Court of Bankruptcy of bets, of the businesses of international corruption to the imitation of what was envisaged by article 706-17 CPPF for the facts of terrorism.

In Tunisia, one finds an exemption from the jurisdiction ratione loci neither in favor of the local councillors nor in favor of certain civils servant. They automatically concern the jurisdictions territorialement qualified, and this is explained by the concern of respecting the principle of equality.

B them jurisdictions of exception

Two jurisdictions will be the object of the comparison on this level, they are the courts of jurisdiction to know infringements made by politicians (1) and military jurisdictions (2).

1 them politicians

Certain political personalities are justiciable to jurisdiction of exception. It is about High the Court of Justice for the president of the Republic and the Court of Justice of the Republic for the Ministers in France (A) and of the High court for the members of the government in Tunisia (b).

has to them qualified jurisdictions of exception in France 

Being initially the president of the Republic, article 68 of the Constitution stipulates : « The president of the Republic is responsible for the acts achieved in the performance of his duties only in the event of high treason. He can be put in charge only by the two assemblies ruling by a vote identical to the open vote and absolute of the members the component. He is judged by High the Court of Justice ».

The doctrines discussed on the interpretation of this article because of its wording which is neither clear nor precise. Some, considered that the two sentences formed an indivisible whole ; advanced that the President of the Republic was justiciable to High the Court of Justice only in the event of high treason, and was justiciable to the jurisdictions of common right for all the acts detachable or former to the exercise of the functions. Others considered that the two sentences were dissociable, supported that the second sentence devoted a privilege of jurisdiction to the profit of the Head of the State.

Pursuant to the second interpretation, all the infringements, including the facts of corruption, made by the Head of the State would be competence of High the Court of Justice.

The calling into question of the current President of the Republic, Jacques Chirac gave importance to these interpretations. Indeed, the question was solved in two times. The first time by the constitutional Council in a decision of 22 January 1999portant^190(*) on conformity with the Constitution of the convention of Rome of July 18, 1998 bearing statute of the international penal Court. In this decision the council recognizes with the president a privilege of jurisdiction by considering that « furthermore, throughout its function its penal responsibility can be blamed only before High the Court of Justice ».

This interpretation of the constitutional council was modified by L `assembled plenary^191(*) of the Supreme court of appeal when it had to come to a conclusion about the possibility of hearing the president of the Republic like witness. It decides that this last can neither be continued, nor judged throughout all its mandate and it adds that the regulation of the public action is suspended throughout all mandate. It profits, consequently, of a temporary inviolability and either of a privilege of jurisdiction.

One notices as well as the facts of corruption cannot be repressed throughout mandate by High the Court of Justice and which they are competence of the jurisdictions of common right when this mandate arrives in the long term.

As for the Ministers, since the constitutional law of July 27, 1993, the members of the government are judged by the Court of Justice of the Republic and either by High the Court of Justice. The procedure followed in front of this jurisdiction is relatively heavy and complex.

Indeed, the person who claims herself injured must imperatively carry felt sorry for attached to the commission of the requests. This commission has the capacity to classify without continuation or to transmit the file to the Attorney General meadows the Supreme court of appeal, in other words, it has a capacity of filtering. A commission of instruction is seized to inform in rem and personam since the instruction in this case does not concern that the Minister blamed and not these accomplices or its joint authors. It should finally be announced that no constitution of civil part is allowed in front of this jurisdiction^192(*).

Following this constitutional reform article 68-1 of the constitution provides that the court is qualified for the acts achieved by Ministers in the exercise of the functions and qualified crimes or offenses at the time when they were made.

Before the stop of the Supreme court of appeal of 26 June 1995^193(*) relating to the Carignon business, jurisprudence did not make the distinction between the acts achieved in the exercise of the function and the acts achieved at the time of the exercise of the functions. What had as consequences which the suspected ministers were justiciable to this jurisdiction of exception.

At the time of the Carignon stop, the Supreme court of appeal specified that « the acts made by a minister in the performance of his duties are those which have a direct relationship with the control of the businesses of the concerning State these attributions, other than the behavior concerning the private life or the local elective mandates ».

From now on the Supreme court of appeal, in businesses blaming of the Ministers for facts of corruption^194(*), considers that the acts achieved in the exercise of the functions do not include/understand the acts achieved at the time of the exercise of the functions but they cover only those having a direct report/ratio with control with the businesses with the State.

Consequently, the facts of corruption do not raise any more competence of the Court of Justice of the Republic unless they do not have a direct relationship with the control of the businesses of the State.

Being finally the members of Parliament, they concern the jurisdictions of common right and not of a jurisdiction of exception. However, the proceedings could be instituted, before, only with the authorization of the assembly whose the member of Parliament belonged during the sessions or with the authorization to the office to this assembly except session. This mode of inviolability was modified by the constitutional law of August 4, 1995^195(*). From now on, only to authorization of the office of the assembly privative or restrictive measurements of freedom out the case are subjected of obvious offense or final judgment.

B it High court in Tunisia 

There is only one jurisdiction of exception relating to the politicians in Tunisia. It is about the High court envisaged by article 68 of the Tunisian Constitution which lays out that this one is qualified to judge the members of the government in the event of high treason. The competence of the High court was determined by the law of April 1 1970^196(*) which includes in its article the first same terms of the Constitution but it adds in its article 2 a definition of the high treason. It is indeed about « ... acts achieved in the exercise of the functions and qualified crimes or offenses at the time when they were made and which undermine the reputation of the State ».

With our direction this article, in its French version, was badly translated since it lets believe that the acts achieved in the exercise of the functions are those having a direct relationship with the control of the businesses of the State whereas the Arab text envisages the competence of the High court when the person, having the quality of Minister, makes qualified acts of crimes or offenses.

Thus, the High court has an exclusive competence to judge the members of the government contrary to the Court of Justice of the Republic in France which is only one concurrent competent with that of the repressive courts.

Consequently, this jurisdiction of Tunisian exception is qualified to judge the facts of corruption, which they have a direct relationship with the control of the businesses of the State or not, since they are made by Ministers.

As for the president of the Republic, article 41 of the Constitution^197(*) lays out that : « The President of the Republic profits from a jurisdictional immunity during the performance of his duties. He also profits from this jurisdictional immunity after the end of the performance of his duties with regard to the acts which he achieved at the time of the performance of his duties ». Thus, no continuation is possible against the Head of the State.

As for the members of Parliament, they concern the jurisdictions of common right and not of a jurisdiction of exception. However, they profit from a mode of inviolability since the continuations can be committed only with the authorization of the assembly whose the member of Parliament belongs during the sessions or with the authorization to the office to this assembly except session. One notices on this level that it is the same mode of inviolability which existed in France before the constitutional reform of August 4, 1995.

2-Le military Tribunal

Being the French legislation. A distinction, relating to the qualified military jurisdictions, is made between the time of peace and the time of war.

In times of peace, the military infringements and the breaches of law made by the soldiers acting in the service are in theory judged by the jurisdictions of common right in accordance with article 697-1 CP as modified by the law of July 21, 1982. However, there are still military jurisdictions in times of peace, for example the courts with the armies which operate abroad and which know infringements of any nature, including the corruption, made by the soldiers or the people with their continuation, as well as infringements against the French Army forces or against their establishments^198(*).

In the event of state of siege or urgently declared, the infringements of any nature, including the corruption, made by the soldiers and the infringements against the armed forces are competence of the territorial courts of the armed forces which are established on the territory main road^199(*).

In times of war, competence is that of the territorial courts of the armed forces which know infringements made by the soldiers as well as crimes or offenses against the fundamental interests of the nation and of the infringements which are related for them^200(*).

In Tunisia, it is the military tribunal which is qualified to know certain infringements made by soldiers. The organization and the competence of this jurisdiction are envisaged by the decree of January 10, 1957^201(*).

No article of this decree expressly lays down the facts of corruption as being an infringement coming under the responsibility of the military Tribunal. However article 5 of the aforesaid decree lays out that this court is qualified to know infringements made against the interests of the army.

One can imagine that a soldier solicits or approved offers in order to achieve acts which are against the interests of the army. Nothing is opposed, in this case, so that the military tribunal is qualified to know facts of corruption made by a soldier.

SECTION 2 : PROBLEMS RELATING TO THE IMPLEMENTATION OF THE CONTINUATION 

The clandestinity of the facts of corruption, as one already evoked, has for principal effect ; The difficulty in proving these facts, consequently, the infringement remains unpunished (para1). To this difficulty of the proof comes to be added the regulation which can be in its turn an obstacle with repression (para2).

PARA 1 : The clandestinity of the facts of corruption and the difficulty of proof 

The apprehension of the facts of corruption requires a specialization since the infringement is dissimulated in apparently regular countable data, as for the authors are hidden by companies screens. It is necessary whereas the investigators are specialized and trained for the search for all that is licit. This specialization if it exists in the French legislation (A), it is missing in Tunisian right (B).

To it specialization in the research of the evidence in France has

Specialization in the discovery of the facts of corruption is not limited to the jurisdictions of judgment, indeed, it exists in all the phases of the procedure, i.e., investigation, continuation, instruction and judgment.

The specialization of the bodies of the investigation does not relate to only the facts of corruption but all the infringements in economic and financial matters enumerated by article 704 CPPF. In addition, specialization relates to the services of police force and gendarmerie:

The central direction of the Criminal Investigation Department, whose agents can carry out investigations into the whole of the territory, comprises two specialized divisions. The division known as of the infringements to the right of the businesses, in charge of the repression of the infringements to the company laws, of tax evasion and the corruption. Second is; the central office for the repression of the great financial delinquency which treats the infringements related to commercial economic, and financier related to organized criminality.

As for the specialized jurisdictions, the law of August 6, 1975^202(*) modified by the law of February 1, 1994 previously quoted, instituted in each spring of Court of Appeal, one or more Courts of Bankruptcy comprising of the magistrates specialized and qualified for the instruction and the judgment of these infringements and those being related to them. The sasine of these jurisdictions can intervene dice the first elements of the investigation; It thus appears a specialized parquet floor. Thus, the specialized jurisdictions can see their competence widened to include all the phases of the procedure.

These specialized jurisdictions saw their effectiveness reinforced because of creation of the specialized assistants^203(*), whose statute was improved by the law of March 9, 2004 known as law Perben 2, it acts people having acquired, during their professional course, of matter competences economic and financial, as example of the agents of the taxes, customs etc These specialized assistants follow an obligatory formation preliminary to their entry in function. They can henceforth assist the examining magistrates or the legal senior police officers acting on letter of request in all the acts of information, as well as the magistrates of the public Ministry in the exercise of the public action.

In conclusion, the specialized jurisdictions have an additional competence, since it comes to be added to the competence of the jurisdiction of origin which remains seized and it is optional since the jurisdiction will be seized only if the business appears of a great complexity to the originally qualified magistrate.

B-L' absence of specialization in the research of the evidence in Tunisia

In Tunisia, if one analyzes the articles relating to the corruption, one notices that the legislator did not specify a well defined means of proof to apply in the event of facts of corruption. Thus they are the general rules envisaged in articles 150 CPPT and following which are applicable.

The proof of the facts of corruption is one of the major problems that a judge can meet, this is explained by the clandestinity of these facts and the prudence of the authors of such an infringement. The difficulty in proving the corruption results in regrettable to make obstacle with repression especially if the request relates to an object which has only one moral interest.

Thus, the facility of proof of the facts of corruption depends on nature on the interests received by the author on the infringement and nature on the corruption, in other words, passive or active.

If the advantage envisaged in the pact of corruption is a promise or a recommendation, it would be difficult to prove this infringement. The judges, of their dimensioned, to exceed such a difficulty refers to the presumptions of fact collected by the examining magistrates, as an example, the expenditure of a public servant which does not correspond to its resources, however they are held to justify their decisions. It should be specified that the motivation of the decision is obligatory and this obligation is due to a constant jurisprudence.

Of another dimensioned, the task of the judge, in the research of the truth, is facilitated by the role of the examining magistrate, knowing that in Tunisia the instruction is obligatory as regards crimes and optional as regards offenses, from where the instruction is obligatory in the case of passive corruption envisaged by articles 83 and 84 CPT and in the case of active corruption envisaged by article 94 CPT, but it remains optional in the other cases since they are qualified offenses.

In his turn, the examining magistrate sees his role facilitated by the information carried out by the administration to which the public servant belongs, indeed, the administration opens administrative information against this last in order to accumulate the evidence relating to the corruption.

With the end of this administrative information, the senior in rank of the administration decides, either the classification without continuation, or the pronunciation of an administrative sorrow.

Administrative information makes it possible to the examining magistrate to be enlightened on the facts, however, in the event of pronunciation of a disciplinary sorrow by the senior in rank of the administration, this decision does not bind the examining magistrate as for the action pursuant which it will take to legal information that it opened.

During the legal instruction the examining magistrate proceeds to all the acts necessary for the manifestation of the truth such as the hearing of the witnesses, the searchings, of the expertises, however, the instruction remains optional whenever the infringement of corruption is described as offense in accordance with article 47 CPPT which lays out : « the preparatory instruction is obligatory as regards crime ; except special provisions, it is optional offense infringment. » and nothing in the code requires an obligatory education if the corruption constitutes an offense. It is noticed that article 47 CPPT shows the same terms of article 79 CPPF concerning the cases in which the preparatory instruction is obligatory.

It is regrettable, with our direction, that the instruction is not obligatory in all the cases of corruption considering the gravity of this infringement which undermines the transparency of the public office. In addition, it would be preferable that the Tunisian legislator takes as a starting point his French counterpart and creates jurisdictions of investigation, instruction and judgment specialized.

PARA 2 : Regulation of the public action

The flow of time involves the regulation of the public action so that the author escapes repression and cannot be continued. The mechanism of regulation exists in France and in Tunisia and justifies itself by the idea that at the end of a certain time, better is worth to forget the infringement than to revive the memory. Moreover, the flow of time involves the loss of the evidence and multiplies the risk of miscarriage of justice.

In spite of the justifications of the regulation, an increasing hostility towards this one emanates from the judges as well as legislators and who bases themselves on the refusal of impunity of the author of the infringement. This hostility is more important when they are infringements of businesses which are characterized by the clandestinity which returns their discovery within three unacceptable year^204(*).

Thus the regulation seems an obstacle with the continuation, however French jurisprudence, contrary to Tunisian jurisprudence, tried to find a means to surmount this obstacle by delaying the starting point of the term of limitation (B).

To note, that if the term of limitation is fixed at three years since the correctionnalisation of the corruption following the law of 1943 in France, this time is variable in Tunisia according to whether the infringement is described of crime or offense (A).

Has to them terms of limitation 

According to, article 8 CPPF « As regards offense, the regulation of the public action is three years completed » and article 7 CPPF adds that the starting point of this one is the day of the commission of the infringement.

Thus, the offense of corruption is prescribed by three years completed as from the day of its commission.

In Tunisia, the infringement of corruption is qualified in certain cases of crime and in other cases of offense, this has for principal effect to vary the term of limitation of the public action according to the qualification of the aforesaid the infringement. Article 5 CPPT lays out « Except special provisions of the law, the public action which results from a crime is prescribed by ten years completed, that which results from an offense by three years completed. and this as from the day when the infringement was made... ».

Thus, is described as offense of corruption, whose term of limitation is three years completed ; active corruption envisaged in article 91 CPT subparagraph 1st which lays out : « Is punished five years of imprisonment and five thousand dinars fine, any person who will have corrupted or tried to corrupt by gifts or promises of gifts, or present or advantages of some nature that it is one of the people aimed to article 82 of this code (public servant). ». Then, the offense to grant others an unjustified advantage by a contrary act with the legislative and lawful provisions having the aim of guaranteeing the freedom of participation and the equal opportunity in the markets passed, envisaged by article 87 (a) CPT, and finally, the offense envisaged in article 85 CPT relating to the civil servant who accepts gifts or present after the achievement or not of the act of the function.

In addition, the term of limitation is increased to ten years completed if the infringement of corruption is described as crime, as example ; the cases of articles 83 CPT relating to the public servant or comparable who, either personally, or by intermediary, for itself or others, approved offers or promises or receive gifts or present to make an act of its function, even just, but not subject with wages, then, article 84 CPT relating to the public servant or assimilated who caused these offers or promises or the handing-over of gifts or present.

Then, the corruption passivates magistrates envisaged in articles 88 and 89 CP and finally, the case of active corruption of the public civils servant accompanied by constraint or attempt at constraint by ways in fact or threats, in accordance with article 91 CPT.

It was already seen that the offense of corruption in France as in Tunisia is prescribed by three years, this time proved in practice as obstacle with the repression from where solutions were found by French jurisprudence.

B it delayed-action of the starting point of the term of limitation by jurisprudence 

The Supreme court of appeal French, in spite of the absence of texts, anxious as much as possible to delay the starting point of the term of limitation, worked out and developed a jurisprudence not making run the term of limitation of certain instantaneous infringements of the day of their consumption. Two forms of instantaneous infringements are concerned with this jurisprudence those which are carried out in the form of successive handing-over of funds or reiterated acts, and those which are occult or are accompanied operations by dissimulation which make them difficult to discover^205(*).

Being initially the infringements being accompanied operations by dissimulation, the typical example is that of the abuse social goods. Indeed at a rate of the occult nature of this offense, a term of limitation three years as from the day of its consumption would not have allowed, in the majority of the cases, to exert continuations against its author who would have thus profited from an unacceptable impunity. This is why the Supreme court of appeal endeavoured to delay the starting point of the regulation. This jurisprudence knew an evolution which proceeded in three phases.

Initially the Supreme court of appeal delayed the starting point of the triennial regulation at the day when the offense appeared and could be noted, i.e. at the day of the discovery^206(*).

In the second time the Supreme court of appeal specified that the starting point of the triennial regulation must be fixed at the day when the offense appeared and could be noted under conditions allowing the exercise of the public action, in other words, by the only people entitled to put this action moving: victims and the public ministry^207(*).

Finally the court of criminal appeal was based on the provisions of the Commercial law to decide that the term of limitation of the public action of the chief of abuse social goods does not start to run, except dissimulation, that as from the presentation of the annual statements by which the litigious expenditure is put unduly at the load of the company^208(*).

Being then the instantaneous infringements which are carried out in the form of successive handing-over of funds or reiterated acts, one can quote the swindle, the trading of favors, the offense of illegal catch of interest and the offense of corruption^209(*). Concerning this last offense, it is admitted, since the reform of 1943, which it is fully consumed, as soon as the civil servant requested gifts, present or promises or as soon as the corrupter formulated illicit proposals.

However it is this delayed starting point of the term of limitation which posed a problem. The difficulty appears a punishable pact especially in the case of going up with more than three years, but whose spread out execution currently continues: doesn't the activity present of the corrupter and corrupted escape the public action, with the pretext which the initial agreement is now out of attack of the criminal law^210(*)?

To prevent the possible achievement of the regulation, the Supreme court of appeal decided that if the offense of corruption is an instantaneous infringement, consumed as of the conclusion of the pact of corruption between the corrupter and the corrupted, it renews with each act of execution of the aforesaid pact. This solution was taken again by several stop which uses the same formula, namely : «Of the successive offenses renewed themselves as a long time as existed the fraudulent concert»^211(*).

According to professor Vitu This solution contradicts by no means the assertion, always exact, that the corruption of people in charge of a public office is an instantaneous infringement. It adds that the legislator « équivalemment attach the qualification of corruption consumed to the request of a remuneration, the acceptance of offers or promises, and to the reception of gifts or present: these various moments, which can be separate in time by more or less long intervals, characterize all identically the achievement of the corruption; with each manifestation of the guilty will, the offense appears again completely^212(*) ».

With our direction, two remarks must be made on this level. First relates to the Tunisian legislator who does not delay the starting point of the instantaneous infringements. This solution complies certainly with the rule of the strict interpretation of the law but it has as a disadvantage of preventing the repression of the facts of corruption.

Second is intended to the two legislators, it is time, indeed, that the terms of limitation are lengthened in order to prevent that they are an obstacle with repression. We propose that this time is increased at five years as regards offense and fifteen years as regards crime.

CHAPTER II : THE COMPARISON OF THE SORROWS 

The majority of the substantive laws classify the sorrows in principal sorrows and complementary sorrows, it is the case of the Tunisian right and the right French. To these two sorrows come to be added other sorrows, as example ; the additional sorrows, which do not appear any more in the new French penal code, then alternative sorrows and sometimes and in certain legislations of the disciplinary sorrows. Thus, the comparison will relate to the principal sorrows (section 1) and the other sorrows (section 2) to knowing ; complementary, additional and disciplinary.

SECTION I : PRINCIPAL SORROWS 

Today like yesterday, in France, the principal sorrows are primarily the loss of liberty and the fine. With these two principal sorrows is added, in Tunisia, the death penalty, which were abolished in French right, and the work of general interest. As regards corruption, in France as in Tunisia, the principal sorrows applied are ; the sentences of emprisonment (para 1) and amends it (para2).

PARA I : Sentences of emprisonment

If, in France, the infringement of corruption is described as offense since its correctionnalisation in 1943, this qualification, all the time, is not retained in Tunisia since the infringement can be described of crime or offense according to sorrows' envisaged and who can be criminal or criminal. Thus, the correctional sorrows (A) and the criminal reclusions will be studied (B).

Has to them correctional sorrows

In Tunisia, the correctional room is qualified as regards offenses (article124CPPT). Thus, is spring of the aforesaid the room all the infringements of corruption which are punished of a sentence of emprisonment not exceeding five years of imprisonment. As example ; active corruption envisaged in article 91 CPT subparagraph 1st which lays out : « is punished five years of imprisonment ....., any person who will have corrupted or tried to corrupt by gifts or promises of gifts, or present or advantages of some nature that it is one of the people aimed to article 82 of this code (public servant). » and this article adds that the same sorrows are applicable to any person having been used as intermediary between the corrupter and the corrupted.

Five years a correctional sorrow of imprisonment is planned for the offense to grant others an unjustified advantage by a contrary act with the legislative and lawful provisions having the aim of guaranteeing the freedom of participation and the equal opportunity in the last markets envisaged by article 87 (a) CPT.

With our direction, the sorrow planned for this offense is not compatible with the gravity of the facts complained of.

Lastly, the offense envisaged in article 85 CPT which lays out : « . If the public servant or comparable accepted gifts, promises, present or advantages of some nature that it is in reward of acts that it achieved... is punished five five years years of imprisonment... ».

This offense is made up once the civil servant accepted gifts or present after the achievement or not of the act of the function, which distinguishes it from the case envisaged in article 83 CPT relating to the acceptance of the gifts before the achievement of the act.

Article 85 CPT lays down a five years sorrow of imprisonment since the law of May 23, 1998 instead of one year before the promulgation of the aforesaid the law, which affirms the repressive policy pursued to Tunisia as regards corruption.

In France, since the correctionnalisation of the corruption by the law of March 16, 1943, the legislator envisages in all the cases of corruption a sorrow of ten years imprisonment, except for article 434-9 CPF which envisages fifteen years the criminal reclusion.

B them criminal reclusions

The law of March 16, 1943 had removed with the corruption of civils servant the character of crime which it had. However this law had left the criminal character to two assumptions of corruption. It acts in the first case of the corruption having for object a criminal fact comprising a sorrow stronger than the imprisonment, for example the corruption tending to the commission of a forgery in public writings. The second case is that of the passive corruption made by judges or sworn at the time of justice returned out of criminal matter. In fact the assumptions were envisaged in articles 180,182 ACP STATES. But in practice, this text did not receive an application.

Article 434-9 CPC let remain, only one of these causes of aggravation of the sorrows. Indeed, when a magistrate is guilty of passive corruption for the benefit or the detriment of a person being the subject of criminal continuations ; the incurred principal sorrow is fifteen years the criminal reclusion. Two differences separate this aggravating circumstance from that which it succeeded: on the one hand sworn is not mentioned any more; in addition, not only the judges are aimed sitting to the court of bases, but also all those which, with one moment or with another, are mixed with the continuation or the instruction with a criminal business: members of the parquet floor, examining magistrate, judges freedoms and detention, members of the court of criminal appeal^213(*).

This severity is explained by the gravity of the facts complained of to the magistrates, and the consequences disastrous, which such a pact between the parts can involve, on the freedom of the individuals and the maintenance of law and order.

It is necessary to underline the notable simplification of the current system, which does not make any more vary, contrary to the former right^214(*), repression according to whether the achievement or the abstention relates to an act facilitated by the function or an act of the function.

In Tunisia, there was not a correctionnalisation of the infringement of corruption, on the contrary, the Tunisian legislator worsened the duration of the sentences of emprisonment with the reform of May 23, 1998. It should be announced initially, that in Tunisia, the distinction between criminal reclusions and imprisonment do not exist since all the sentences of emprisonment, out of criminal or criminal matter are called ; sorrows of imprisonment.

Knowing that in Tunisian right the punished infringements of a sorrow of imprisonment higher than five years are qualified crimes, it is noticed that the criminal character of the aforesaid the infringement is more frequent in the Tunisian legislation compared to the French right which limits this character to the only case of passive corruption of the magistrates. It is advisable, therefore, to study the cases where the corruption is punished of a criminal sorrow of imprisonment.

It should be noted that even if the crimes are punished, in Tunisia, of a sorrow of imprisonment which cannot be lower than five years, the Tunisian legislator envisaged two stages which are far from the minimum envisaged (5 years).

The higher stage, is twenty years of imprisonment, relates to the public servant or comparable who caused the corruption envisaged by article 84 CPT and the passive corruption of magistrate envisaged by article 88 CPT which lays out : « is punished twenty years of imprisonment, the judge, who at the time of an infringement likely to involve for its author the imprisonment with life or the death penalty, either in favor, or with the damage of the accused » .

It is noticed that in the two legislations there is an aggravation of the sentences of emprisonment when the author of the infringement to the quality of magistrate. Moreover, in Tunisia, contrary to the French legislation, one always speaks about « the accused » instead of « put in examination » in spite of the attack engraves with the presumption of innocence.

The second stage, is ten years of imprisonment, relates to the passive corruption of public servant or comparable envisaged by article 83 CPT whereas the sorrow planned for this crime, before the reform of May 1998, was five years of imprisonment. Is punished ten years of imprisonment the active corruption of public servant or assimilated accompanied by constraint by ways in fact or threats exerted on them personally or one of the members of their family in accordance with the last paragraph of article 91 CPT.

It is noticed that, for this second stage, even if the infringement is described as crime in Tunisia, the duration of the sentences of emprisonment is the same one as in French substantive law which qualifies the infringement of offense. Thus, there is a divergence, between the two rights, as for the qualification of the infringement and a convergence as for the duration of the sentences of emprisonment.

PARA II : The fine 

The legislators use the fine as a sorrow which comes to be added to the sentence of emprisonment as principal sorrow. They decide, either to force the judge to pronounce them one and the other, or to give him the choice between the two. However, there are two techniques relating to the application of the fine ; the first is the technique of the fines proportional (A) and the second is that of the fixed fines (B). thus, the comparison relating to the fine will relate to the technique used by the legislators as regards corruption.

A- fines proportional

In France, in the old system, for the corruption of civil servant, the fine could be double value of the approved promises or things received or required. This technique of the fine proportional was given up by the new penal code which envisages fixed fines.

In Tunisia, the legislator, by the reform of May 23, 1998, increased the rate of the fines, in more it insisted on the obligation which they are applied by the judges at the time of the pronunciation of the sentence of emprisonment.

Thus, the fine minimum is thousand dinars (700euros), instead of thousand francs within the old provisions. And of twenty thousand dinars, for the maximum rate.

To note, that in Tunisia, in spite of the reform, the legislator uses the technique of the fines proportional and the technique of the fixed fines, contrary with the French legislator who limited himself to the last only.

The technique of the fines proportional is used twice within the framework of the corruption, initially one finds it for the passive corruption of public servant or assimilated (article 83 CPT) and if the passive corruption is due to the provocation of the public servant or comparable (84 CPT).

This level poses the problem of the nature of the approved or requested things, if they have a nonmaterial value as example ; a sexual relation, it would be impossible to apply the technique of the fines proportional. One can think of article 82 CPT which lays out : « Without it being able to be lower than ten miles dinars (seven miles euros) ». Thus, in this case it is the minimum envisaged by the law which will be applicable.

Concerning the application of the fines, the judge is held to apply them since the law of May 23, 1998, whereas it had the choice as for their application before what proves the repressive policy pursued by the Tunisian legislator as regards corruption.

B them fixed fines 

The new penal code 1994 replaced the technique of the fines proportional by fixed fines^215(*). From now on, there are four new stages ; The higher stage is of (225000 euros) which corresponds to fifteen years the criminal reclusion for the passive corruption of the magistrates envisaged in article 434-9 CPF. Then the stage comes (150 000 euros) and it systematically accompanies the ten years sorrow of imprisonment. Then, the stage of (75.000 euros) is twinned with the five years sorrow of imprisonment and finally, the lower stage of (30 000 euros) which goes hand in hand with the two years sorrow of imprisonment.

For certain authors, the technique of the fixed fines adopted by the legislator is regrettable and they ask the application of the old technique of the fines proportional^216(*).

In Tunisia, the legislator calls upon the two techniques, it uses on the one hand the fines proportional and on the other hand the fixed fines. There exists, as it is the case in France, four stages. The first stage is of ten miles dinars which corresponds to the active corruption of public servant in order to achieve an act related to its function but not subject with counterpart accompanied by constraint by ways in fact or threats.

The second stage is of five miles dinars which corresponds to the active corruption of public servant or comparable envisaged by article 85 CPT, as well as the active corruption of public servant in order to achieve an act related to its function, even just, but not subject with counterpart, or to facilitate the achievement of an act related to its function, or to abstain from achieving an act which it is of his duty to make. The fine is applied, in this case, for the attempt and it is marked against the intermediary.

The third stage is of two miles dinars and it is planned for the attempt at ways in fact or threats which did not have any effect. The last stage is thousand dinars fine and it corresponds to the attempt at corruption which did not have any effect.

One notices that in Tunisian right, contrary to the French right, the attempt is punishable, moreover any sorrow of fine is not planned for the corruption active or passive magistrates, the latter risk only the imprisonment like pains principal, which is regrettable, with our direction, considering the gravity of the facts which are reproached to them.

SECTION II : OTHER SORROWS 

Under the empire of the code of 1810, one spoke about the principal, complementary and additional sorrows. The additional sorrows are added automatically to the principal sorrow and they do not have to be expressly marked by the judge. After the promulgation of the new penal code it is advisable to speak about the principal, alternative and complementary sorrows^217(*).

In theory, the additional or automatic sorrows disappeared with the new penal code and this by application from article 132-17 which lays out : « no sorrow can be applied if the jurisdiction expressly did not pronounce it ».

In Tunisia, the distinction is made between principal sorrows and complementary sorrows. To note, that the Tunisian legislator if it uses the term « complementary » in the Arab text, it translates it in the French text of « additional sorrows ». This fault of translation must, with our direction, be modified considering the difference which exists between the complementary sorrows and the additional sorrows in compared right, as example, the French right.

The complementary sorrows, in Tunisia, are envisaged in article 5 CPT and some of them are included in the provisions relating to the corruption in articles 83 CPT and following. It is about the confiscation and prohibition to exert the public office.

In France, complementary sorrows come to be added to the principal sorrows. These sorrows are indicated by article 432-17 CPF.

It should be noted that in spite of the disappearance of the additional sorrows those remain as regards corruption in two cases. Thus, will be studied ; complementary sorrows (para 1) and additional sorrows (para2).

PARA I : Complementary sorrows 

Article 432-17 CPF lays down the applicable complementary sorrows as regards corruption, one starts with the prohibition of the civil laws, civic and of family, then there is prohibition to exert a public office or to practice the profession or social, then the confiscation and finally the posting or the diffusion of the marked decision. This last sorrow is envisaged in Tunisian right like pains complementary, indeed, article 5 CPT speaks about `'the publication, by extracts, certain judgments ''.

In Tunisia, the complementary sorrows are envisaged in article 5 CPT and two of them are included within the framework of the corruption ; confiscation and prohibition to exert a public office.

Thus, the comparison will relate to prohibition to exert a public office (A) and the confiscation (B).

A-L' prohibition to exert a public office

Prohibition to exert a public office or to practice the profession or social in the exercise or at the time of the exercise of which the infringement was made, envisaged by article 432-17 CPF can be final or for one five years duration. It exists for the corruption passive and active national civils servant but limited to five years, it is planned for the passive and active corruption European civils servant and for the corruption of public agents foreign but limited to five years and finally for the active or passive corruption for purposes to obtain fake certificates. On the other hand, this prohibition disappears in the case from the active or passive corruption from magistrate (art 434-44 CPF) and for the corruption from paid (art L 152-6 C Work).

According to certain authors ; '' it is really foolish to leave to officer a whom corrupted judge,... it can appear regrettable to be able to prohibit to them the exercise of an occupation^218(*) ''.

In Tunisia, prohibition to practice professions is envisaged in article 83 CPT, relating to the passive corruption of civil servant, who adds prohibition to manage the public services and to represent them. This prohibition applies only to the people having the quality of public servant or assimilated, from where the corrupter and the intermediary escape repression, which is, with our direction, regrettable since the author of the corruption activates or the intermediary can have the quality of public servant but they are not seen applying this complementary sorrow.

It is noticed that if this sorrow been only lacking for the active and passive corruption of magistrate and the corruption of paid in France, it is missing, first of all, in all the cases of corruption in Tunisia except the passive corruption of public servant. This lapse of memory was avoided by the Tunisian legislator.

Indeed, article 115 CPT lays out that « in all the cases envisaged in this chapter, the court will be able to make application of the additional sorrows, or one of them, enacted by article 5 CPT ». Knowing that the chapter mentioned above relates to the infringements made by the civils servant public or assimilated in the exercise or at the time of the exercise of the function, to which belonged corruption. As for article 5 CPT it enumerate the complementary sorrows among which one finds prohibition to exert a public office.

It is noticed that this article applies for all the cases of corruption and prohibition to exert a public office is not limited any more to the only case of passive corruption of civil servant envisaged by article 83 CPT.

In conclusion, prohibition to exert a public office if it is limited to well defined offenses of corruption in France, it can be applied by the Tunisian jurisdictions for all the cases of corruption.

B it confiscation 

According to article 94 CPT «» in all the cases of corruption, the things given or received are confiscated with the profit of the State ''.

This article speaks about the `'things given or received «», i.e. a benefit having a material value. This interpretation is not allowed by all the doctrines, certain authors think that the confiscation must carry on all the things given or received whatever their nature^219(*).

It is noticed that the confiscation is an obligatory sorrow which must be marked with each time the culpability of the authors is established and that it must be made with the profit of the State.

In the event of loss or of transfer of the received things it is the value of those which will be confiscated in accordance with article 29 CPT^220(*), but one sees badly how the value of a moral benefit such as a sexual relation will be given ?

In France, article 432-17 CPF lays down ; Confiscation, with the profit of the Treasury, the sums or the objects irregularly received by the author of the infringement, except for the suitable objects for restitution.

The confiscation posed a certain number of problems to which jurisprudence, under the empire of the old Penal code, brought solutions which keep their value for the application of the current texts.

Initially, the confiscation can be marked only if the culpability of the corrupter or that of the corrupted is retained, however because of the independence of the infringements of passive corruption and to active corruption, it is enough to the culpability of only one to justify measurement. Thus if the corrupter escaped the continuations or were discharged, the confiscation should however be pronounced and the corrupter would be without right to claim the delivered things^221(*).

Then, the confiscation can relate only to the delivered things or their value ; it cannot thus be ordered if the things were only promised^222(*).

Lastly, it is the thing itself which one must confiscate, but if this thing is not found in kind any more one the equivalent in value confiscates some^223(*).

Two remarks must be made on this level, first relates to all the complementary sorrows, on the other hand the second it is exclusively reserved for the confiscation.

All the above mentioned complementary sorrows are optional sorrows left consequently with the whole discretion of the jurisdiction since article 432-17 CPF lays out that « In all envisaged by this chapter, can be marked, with title complementary the following sorrows... ».

With our direction, it is regrettable, at least for the confiscation, which they are optional for the judge. It would be preferable that the French legislator forces the repressive judges to order the confiscation in all the cases of corruption such as it is the case in the Tunisian legislation.

It is noticed, in the second place, that the sorrow complementary to confiscation is envisaged in all the cases of corruption except for the corruption of employee, but in any form of corruption it is useful to remove with corrupted or the corrupter the benefit of his illicit market.

It would be preferable, therefore, to generalize this sorrow complementary to all the infringements of corruption such as it is the case in the Tunisian Penal code.

PARA II : Additional sorrows ; they still remain?

It was already seen that the additional sorrows are repealed by the new penal code. However, two additional sorrows remain in spite of their judgment in 1994(a).Ces applicable sorrows in an automatic way do not exist in the Tunisian legislation, but they are replaced by disciplinary sorrows which are pronounced by the administration to which the public servant (B) belongs

Has to them additional sorrows 

The constitutional Council Decision of March 15, 1999^224(*) considered contrary with the principle of need the sorrows automatic, known as also additional sorrows. However, there are two sorrows which are not touched by this famous decision.

The first of these sorrows is prohibition to follow a commercial or industrial occupation attached to a criminal sorrow for example the criminal corruption of the magistrates envisaged in article 434-9 subparagraph 3 CPF. Attached, in addition, with a judgment of at least three months firm of imprisonment for many correctional offenses what includes the offenses of corruption except for those of Community or foreign public agents. This prohibition is one five years minimal duration.

The second additional sorrow results from the L.7 article of the electoral code due to the law of January 20, 1995^225(*). This text deprives of the right to be registered on the electoral roll during a five years deadline from the date on which the judgment became final. But this sorrow is not applicable in the event of active or passive corruption of magistrate. One finds a sorrow complementary in right Tunisian, applicable as regards corruption, envisaged by article 5 CPT which approach this additional sorrow; it is about prohibition to exert the voting rights.

It is noticed that several complementary or additional sorrows are not applicable when it is about the corruption of magistrates, which represents, to our direction, a gap of the French substantive law.

B them disciplinary sorrows

According to article 51 of the law relating to the public office of 1983 the disciplinary sorrows are pronounced by the leader of the administration to which the public servant belongs. There are two types of sorrows ; initially the disciplinary sorrows of first degree, it is about the warning and blames. Then, the disciplinary sorrows of second degree, it is about retrogradation, the obligatory change, the temporary reference for one duration maximum three months with suspension of the payment of the wages and the final reference.

It should be noted that since a reform of 1997^226(*) the leader of the administration can delegate the power to impose disciplinary actions with certain substitutes.

Moreover, the administration must abstain from pronouncing a disciplinary sorrow if at the same time a public action is committed in front of the jurisdictions of common right and this until a final judgment is pronounced by those. In the event of decision of judgment pronounced by the judge of the common right, this one is imposed on the administration which must hold of it account at the time of the pronunciation of a disciplinary sorrow. Of another with dimensions, in the event of decision of payment pronounced by the jurisdictions of the common right, the administration is not obliged to hold some in account at the time of the pronunciation of a disciplinary sorrow. This solution is the fruit of the jurisprudence of the administrative court which is unanimous on this point^227(*).

PARA III : Inapplication of the sorrow : a characteristic in Tunisia 

Article 93 CPT lays out : «Is exonerated the corrupter or the intermediary which, before any continuation, voluntarily reveals the fact of corruption and, at the same time, brings back the proof of it ». The legislator kept the contents of this article without modifying it even after the reform of May 23, 1998 and one notices that it relates to only the corrupter and the intermediary.

This article constitutes an exception to the repressive policy adopted by the Tunisian legislator, indeed, considering the difficulty in discovering the facts of corruption and to repress them, the legislator exonerated the corrupter or the intermediary of the sorrows if they allow the discovery and the proof of these facts.

The legislator limited the inapplication of the sorrows in the case of denunciation from where it is necessary to study his conditions (A) and its effects (B).

Has to them conditions of the denunciation

By the denunciation, the legislator wants to say, the information of the proper authorities of the commission of the infringement and his authors. It should be noted that the simple narration of the facts does not have any value since article 93 CPT require explicitly that the denouncer  « in the proof pays ». Thus, this last is held to inform the authorities of all the details, relating to the infringement, which make it possible to prove it and specify the role of each author^228(*).

Let us announce that the denunciation is limited to the passive corruption, even if the French text lays out « the fact of corruption » without specifying if it is about the passive corruption or activates, since the Arab text, of dimensioned sound, evokes the corruption explicitly passivates, and by application of the provisions of the code of civil procedure and commercial it is the Arab text which with the primacy on the French text which has only one indicative value. Thus, the author of an attempt at active corruption, which did not have an effect, is not free from sorrow if it denounces the facts because the goal of this provision is the discovery of the public servant corrupted in order to protect the public office.

Of another with dimensions, it is necessary that the denunciation is made before the discovery of the infringement by the proper authorities and the arrest of the authors and the opening of information against them in accordance with the French version of article 93 CPTqui lay out « before any continuation ». To note, that the Arab version requires, of dimensioned sound, that the denunciation is made before any judgment. One notices as well as the French version is in conformity with the concept of denunciation which, by logic, must be made before the phase of judgment and the discovery of the infringement. From where the need for modifying the Arab version of this article and for returning it conforms to the French version.

In right compared, certain legislations envisaged the denunciation like means of exemption of sorrows, as example the Egyptian right. Thus article 108 of the Egyptian Penal code lays out : « Is exonerated the corrupter or the intermediary which, before any judgment, voluntarily reveals the fact of corruption or acknowledges it ». It is noticed that this article lays down the denunciation and the consent which can be made constantly and even after the continuation. With our direction, this provision allows the impunity of the corrupter or the intermediary since they can escape repression, if the facts of corruption are discovered by the proper authorities, by acknowledging them^229(*).

B them effects of the denunciation 

According to article 93 CPT : «The corrupter or the intermediary is exonerated ». Thus the exemption of the sorrow concerns only the corrupter and the intermediary, on the other hand it does not relate to the corrupted. The inapplication of the sorrow must be obligatorily to pronounce of office by the judge in his decision, and the corrupter or the intermediary can evoke it with any phase of the procedure.

Of the another with dimensions corrupter or the intermediary is exonerated provided that the corrupted civil servant accepted the gifts or promises which are offered to him. Thus, in the event of refusal of acceptance of the gifts, the denunciation does not have any effect. Moreover, only the denouncer, the corrupter or the intermediary, will profit from the inapplication of the sorrow and it will not be granted to both. With our direction, it appears inadmissible that the corrupter is exonerated, if it is him which denounces the facts of corruption, and the intermediary, which has a role less important than the first, is punished.

Lastly, it was seen that the corrupted is not exonerated, and that the exemption of the sorrow relates to only the corrupter and the intermediary. For this reason certain Tunisian lawyers proposed to the legislator to once exonerate the corrupted of the sorrow it broke the pact and returned the gifts that it accepted of his full grée before achieving what was required of him and especially before any continuation.

Let us announce finally that the French legislator does not envisage this process as regards corruption, which is with our regrettable direction. We think that it could, and even due, to follow it upon the law of March 9 2004 which instituted a great number of exemptions and reduction of sorrow relating to certain infringements in the event of denunciation. The text of principle is article 132-78 CPT which envisages an indulgence on two levels. On the one hand, in the event of attempt of a crime or an offense, the participant is free from sorrow if while having informed the administrative or legal authority, it made it possible to avoid the realization of the infringement and, if necessary, to identify the authors and accomplices. Of another share, the case of consumed infringement, the duration of the sentence of emprisonment incurred by the participant is reduced to half if, having informed the proper authorities, it made it possible to put an end to the infringement, to prevent that the infringement does not produce a damage or to identify the other authors or accomplices.

This technique relates to several infringements.^230(*) However, the offense of corruption does not form part of it what is extremely regrettable since such a technique would make it possible to reach dissimulated or clandestine facts of corruption.

CONCLUSION

In conclusion ; it is noticed that the two legislations make corruption a complex of two distinct infringements : the passive corruption and activates, the first ascribable one to the whom corrupted person, the second with the corrupter. However, if these two infringements are punished same sorrows in French criminal law, it is different in Tunisian criminal law which punished the passive corruption more severely since it is considered more serious than the active corruption. Moreover, there was a correctionnalisation of the infringement of corruption in France since the law of 1943, whereas in Tunisia, following the reform of 1998, the majority of the infringements of corruption from now on are qualified crimes.

Of another with dimensions, if the corruption passivates consumes, in the two legislations, by the simple request or the approval of the gifts, the solutions are not identical with regard to the active corruption. Indeed, the latter famous is consumed in France by the simple proposal for offers or by the fact of yielding to the requests of the corrupted, whereas in Tunisia so that the infringement is consumed one needs the execution of the illicit market between the corrupter and the corrupted failing this one can speak only about attempt at active corruption.

One can also notice that the French legislator precedes his Tunisian counterpart by the fact of accusing the corruption of paid and the foreign civils servant, by the creation of qualified jurisdictions specialized in economic and financial matters and by the use of processes intended to prevent possible divertings and the conclusion of suspect operations such as the central service of prevention of the corruption, charged with centralizing the information necessary to the detection and the prevention of the facts of corruption.

French jurisprudence precedes, it also, that of the Tunisian repressive courts, it is enough to point out its position with regard to the starting point of the term of limitation, as regards corruption, which was delayed at the day of the execution of the illicit pact.

It would be thus preferable that the Tunisian legislator intervenes to put at foot equality the passive corruption and the active corruption and to widen these incriminations in order to include new categories of people such as the employees. As for the criminal law of form a jurisdiction specialized in economic and financial matters would be the welcome.

In France, it regrettable that the legislator of March 9, 2004 did not insert the offense of corruption in the list of the infringements of organized criminality, is envisaged by article 706-73 CPPF. These infringements obey strongly derogatory procedural rules with the common right allowing a better repression. It would be thus preferable that it is added to this list at the time of the next reform.

BIBLIOGRAPHY IN FRENCH LANGUAGE

I- GENERAL WORKS, DRAFTS AND HANDBOOKS

CORRUPTION OF the POLICE FORCE, «books of interior safety», ED. IHESI 2001.

E. BOY, «annotated Penal code»: Sirey, 2nd ED. by Mr. ROUSSELET, Mr. SHOE and Mr. ANCEL, art 177 S.

F. GOYET, «special criminal Law»: Sirey, 8th ED. 1972, by Mr. ROUSSELET, P. ARPAILLANGE and J. SHOE, n° 139 S.

F. HÉLIE, J. BROUCHOT, «Practical criminal of the courses and courts», criminal Law T. II: ED. techniques, 5th ED. 1948, n° 217 S.

G.GAETNER, «easy money»; Dictionary of the corruption in France Stock 1992.

J. CARTIER-BRESSON, and others, Practical and control corruption: ED. Montchrestien 1997.

J. and A.M. LARGUIER, «special criminal Law»; Dalloz, 10th ED. 1998, p. 270 S.

J.PRADEL «penal procedure» ED Cujas 2002/2003 n°124.

J.PRADEL, «general criminal Law», ED Cujas, 10th edition 2002/2003.

JEAN-LOUIS economic ROCCA, «corruption, Alternatives», éd.SYROS 1993.

Mr. MINNOW, «special criminal Law»; Masson, 6th ED. 1998, p. 280 S.

Mr. MINNOW, «criminal Law of the businesses, Armand Colin», collection Compact, 4th edition 2001.

MARC LEMAIRE - STEPHAN LEWDEN - DOMENICA STRAW, «health service of the armies»; The hidden face, éd.L' HARMATTAN 2002.

P. TELL and P. MAISTRE OF the CHAMBON, «Penal Procedure», Armand Colin, 3rd edition 2001.

P-A. LORENZI, «Corruption and imposture», Balland 1995.

PASCAL KROP, «the Republic of the money», ED. Flammarion2003.

R. GARRAUD, «theoretical and practical Treaty of the criminal law French T. IV»: Sirey, 3rd ED., n° 1518 S.

R. VOUIN, M.-L. RASSAT, «special criminal Law»; Dalloz, 6th ED., 1988, n° 483 S.

RENE CHAPUS, «general Administrative law» Tome2/6th edition, ED. MONTCHRESTIEN 1992.

R. BLACKBIRD and A. VITU, Treaty of criminal right, special criminal Law, by A. Vitu: Cujas, 1982, n° 115.

W. JEANDIDIER, «criminal Law of the businesses»;Dalloz, 3rd ED. 1998, n° 30 S.

YVES MENY, «corruption of the republic», ED. FAYARD1992.

II SPECIAL WORKS AND THESES

E.ALT and I.LUC, «the fight against the corruption», Which do know I?, P.U.F. 1997.

F.FAROUZ CHOPIN, «the fight counters the corruption», thesis Aix Marseilles III 1998.

GANTSOU OSSEBI (Sophonie Lemec), «Corruption and trading of favors», thesis La Rochelle 1999.

MONIE STEPHANIE; corruption and penal procedure, memory DEA Sc Crim UT1 under the direction of Mr. marc segonds 2001/2002

NATHALIE LAVAL, «the penal judge and the local councillor», ED. L.G.D.J 2002.

SOPHIE CANADAS-BLANC, «the penal responsibility for the local councillors», ED. JOHANET, thèseUT1 1998.

III REPORTS/RATIOS AND STUDIES

CONFERENCE OF the NEW OBSERVER Sorbonne-Paris, «international corruption», éd.MAISONNEUVE & LAROSE 1999.

CENTRAL SERVICE OF PREVENTION OF the CORRUPTION, «Annual report 1997», ED. Editions of the Official Journals.

INTERNATIONAL TRANSPARENCY, «world report/ratio on the corruption 2003», special topic: the access to information, ED. KARTHALA.

IV CHRONICLES AND ARTICLES

DELMAS-SAINT-HILAIRE; «Criminal Cassation of May 14, 1986 criminal Bulletin n° 163» rev. Sc crim 1987 p 687.

DUCOULOUX-FAVARD, «fraudulent invoices and corruption»: D. 1996, chron. p. 352 S.

DUCOULOUX-FAVARD, and others, «Undertaken corruption»: Small posters 1996, n° 35.

E.DOMMEL (Maintenance), «Corruption: The report», rev. france fin.pub.2000 n°69 p.7.

J.PRADEL, towards a «aggiornamento» of the answers of the penal procedure to criminality, Contributions of the law N°2004-204 of March 9, 2004 known as law perben II. JCP, ED N°20 gene of May 12, 2004 p 881et sui vant.

J-F RENUCCI, «Infringements of businesses and regulation of the public action», DZ.1997, chron. P.23.

J. - P. ZANOTO, corruption, a combat without end: Rev. pénit. 2002, p. 43

L.GONDRE, «Of the High court in the Court of Justice of the Republic», penitentiary Review and of criminal law April 2000.

Mr. DELMAS-MARTY, S. MANACORDA, «corruption, a challenge for the State of right and the democratic company»: Rev. Sc crim. 1997, p. 696 S.

Mr. DELMAS-MARTY and P. TRUCHE, «the State of right the corruption proof» in «the Droit State» mixtures in the honor of GBRAIBANT, Dalloz 1996.

P. ROBERT, «French justice and businesses of corruption», Deviance and Company 1996 n°3 p.239.

INTERNATIONAL REVIEW OF POLICY COMPAREE, «corruption», ED. De Boeck & Larcier S.A. 1997.

W. JEANDIDIER, «Of the offense of corruption and the defects which affect it». JCP G 2002, I, 166

V- FASICULES OF PENAL JURISCLASSEURS

A. VITU Fasc. single: Attacks with the public administration of the European Communities, Member States of the European union, other States foreign and public international organizations.

A. VITU Fasc. 10: Passive corruption and trading of favors made by people exerting a public office.

A. VITU Fasc. single: Corruption of the legal authorities.

A. VITU Fasc. single: Active corruption and trading of favors made by private individuals.

A. VITU Fasc. 20: Corruption of the employees.

ALAIN BLANCHOT J-Cl Penal Procedure art 704 to 706 CPPF; jurisdictions specialized in economic and financial matters.

BERNARD CHALLE; J-Cl Art 7 to 9/Fasc. single: PUBLIC ACTION - Regulation.

F.LE GUNEHEC. JCP ED gén, n° 14 of March 31, 2004 in particular to p598.Voir article 125 of the law of March 9, 2004.

FREDERIC DESPORTES; J-Cl PEN: Discrimination by people exerting a public office

BIBLIOGRAPHY IN ARAB LANGUAGE

I- GENERAL WORKS, DRAFTS AND HANDBOOKS

AHMED FETHI SOUROUR, «Right of the sorrows», special part; attacks with the general interest.

HAFEDH BEN SALAH: «the unit of service» Tunisian House of edition.

JONDI ABDELMLMALEK; penal encyclopedia Volume IV.

Right MAHMOUD NEJIB HOSNI «of the sorrows» left special; infringements against the public interest

SALEM SHEIK, «administrative criminal Law», National School of Administration, ED. ENA research center and administrative studies 1996.

The CORAN, translated by Sadok Mazigh.

II SPECIAL WORKS, MEMORIES AND THESES

ARFA HICHEM «corruption active and passivates» memory of end of study to the E.N.M 1995/1996.

BACEM LAHMER, corruption and answers of the criminal policy, memory of end of study, faculty of legal sciences Tunis2.

KALDI HEJER; memory of end of study to the ENM 1998-1999; «new legislative provisions as regards corruption».

MOHAMED ELHESSINE ECHEBBI «the exemption of sorrow out of penal matter» memory of end of study DEA criminal sciences, and political science Faculty of Law of Tunis 1997/1998.

III REPORTS/RATIOS AND STUDIES

HAFEDH BEN SALAH; Court of administrative law 2nd year right 1995/1996. Faculty of Law Tunis I.

NEJI BACCOUCHE, «the protection of L `public authority in penal code Tunisian E.N.A», 1986.

NEJI BACCOUCHE, Repression penal and disciplinary in the Public office E.N.A, Tunis 1990.

TAKARI BECHIR;«Administrative Institutions and administrative law». Court of 2me Droit.1995 year/1996 Faculty of Law of Sfax.

IV CHRONICLES AND ARTICLES

KMAKEM RIDHA, «infringements of corruption as modified by the new law of 1998», Re-examined jurisprudence and of legislation June 1998.

* ¹⁷⁹ Alain Blanchot J-Cl Penal Procedure art 704 to 706 CPPF  ; jurisdictions specialized in economic and financial matters.

* ¹⁸⁰ J. penal Pradel procedure Cujas 2002/2003 n°124.

* ¹⁸¹ Vitu A  ; J-Cl PEN 435-1CPF and following n°37.

* ¹⁸² the infringements which repress articles 435-1 to 435-4 CPF are frequently marked by one or more elements of extraneity. However, the ordinary rules of the international criminal law, where the principles of territoriality and personality prevail, would be often insufficient to reach them and repress them. It was thus necessary to avoid the difficulty by calling upon the principle of universal competence. See Vitu A  ; J-Cl PEN 435-1CPF and S.

* ¹⁸³J Pradel ibid

* ¹⁸⁴ article 21 of law 2004-204 of bearing 9 March 2004 adaptation of justice to the evolutions of criminality (OJ March 10, 2004 p4567).

* ¹⁸⁵ See article 706 CPPF as modified by the law of March 9, 2004.

* ¹⁸⁶ See for more precision. J Manual Pradel of penal procedure ED 2002/2003 n°121

* ¹⁸⁷ F. Gunehec. JCP ED gén, n° 14 of March 31, 2004 in particular to p598.Voir article 125 of the law of March 9, 2004.

* ¹⁸⁸ They are the people aimed by articles 435-3 and 435-4 CPF.

* ¹⁸⁹ Vitu A  ; J-Cl PEN 435-1CPF and following n°39.

* ¹⁹⁰ The Constit Council, 22 jan 1999 Dalloz 1999 p 285.

* ¹⁹¹ Case plé Oct. 10, 2001 dalloz 2002 p 237.

* ¹⁹² General rule relating to all the jurisdictions of exception.

* ¹⁹³ Crim case June 26, 1995, bulldozer crim n° 235, J.C.P 1995-IV-2380.

* ¹⁹⁴ The business Black 6 fév 1997, bulldozer n° 48 dalloz 1997 p 334 notes J F Renucci. /Affaire Elf 16 fév 2000 dalloz 2001 p 660 notes V Buck.

* ¹⁹⁵ Constitutional law n° 95-680 of August 4, 1995.

* ¹⁹⁶ The law n°10-1970 of April 1 1970relative at the High court.

* ¹⁹⁷ This article was modified by the constitutional law n°51-2002, of June 1, 2002.

* ¹⁹⁸ See article 59 and following Code of military justice.

* ¹⁹⁹ See article 700 CPPF and article 68 C.J.M.

* ²⁰⁰ See article 701 CP and article 68 CJM.

* ²⁰¹ JORT of January 11, 1957 p 50 and S.

* ²⁰² This law was amended on several occasions in particular by the law of June 30, 2000 and the law of March 9, 2004.

* ²⁰³ The specialized assistants are create by the law n°98-546 of July 2 1998. following the reform of March 9 2004 of new attributions theirs are entrusted Voir article 21 of the law.

* ²⁰⁴ J-F Renucci  ; infringements of businesses and regulation of the public action. Dalloz 1997 Chron p 23.

* ²⁰⁵ Bernard Challe; J-Cl Art 7 to 9/Fasc. single: PUBLIC ACTION- Regulation n°29.

* ²⁰⁶ a stop of December 7, 1967, Bull. crim., n° 321; D. 1968, jurispr. p. 617.

* ²⁰⁷ a stop of August 10, 1981 (Bull. crim., n° 244; Rev. plowshare 1983, p. 368, Bouloc note).

* ²⁰⁸ stop of May 5, 1997, Bull. crim., n° 159; Rev. plowshare 1997, p. 127, Bouloc note. - J. Larguier and P. Conte, criminal Law of the businesses: 10th ED., A. Colin, 2001, n° 379 S.

* ²⁰⁹ For more precision concerning these infringement, to see Bernard Challe; J-Cl Art 7 to 9/Fasc. single: PUBLIC ACTION- Regulation n°30et S.

* ²¹⁰ Vitu, J-Cl PEN art 432-11 of the penal code n°151.

* ²¹¹ Case. crim., 6 févr. 1969: Bull. crim., n° 67; Rev. Sc crim. 1969, p. 871, obs. A. Vitu. - Nov. 9, 1995: Bull. crim., n° 346.- Oct. 27, 1997: Bull. crim., n° 352; Dr. PEN 1998, Com. 16, note Mr. Véron; Small posters 1997, n° 134, p. 23, Ducouloux-Favard note. City by B Shawls.

* ²¹² Vitu, J. - Cl. Penal Code, Art 432-11, Fasc. 10, n°, 154 and Art. 433-1 and 433-2, n° 48 and 49).

* ²¹³ Vitu A, J-Cl PEN art 434-9 CPF n°18

* ²¹⁴ The sorrows carried were less strong when the corruption tended to the achievement of an act facilitated by the function. Vitu, J. - Cl. Penal Code, Art 432-11 n°118.

* ²¹⁵ In the old system, for the corruption of civil servant, the fine could be double value of the approved promises or things received or required. See art 177 Al 1st ACP STATE.

* ²¹⁶ W. Jeandidier, Of the offense of corruption and the defects which affect it JCP G 2002, I, 166.

* ²¹⁷ Pradel J, handbook of general criminal law ED 2002/2003. n°571 and following.

* ²¹⁸ W. Jeandidier, Of the offense of corruption and the defects which affect it JCP G 2002, I, 166

* ²¹⁹ Ahmed Fathi Srour  ; right handbook of the sorrows, COp cit p 146.

* ²²⁰ Article 29 CPT lays out  :  «  if the objects whose it orders the confiscation were not seized and are not given, the judgment determines of it the value for the application of the civil imprisonment  »

* ²²¹ Case. crim., August 10, 1854: Bull. crim., n° 254; DP 1854, 5, p. 200. quotes by Vitu J-Cl PEN art432-11n°144.

* ²²² This idea is supported by R. GARRAUD, theoretical and practical Traité of the criminal law French T. IV: Sirey, 3rd ED., n° 1518 S.

* ²²³ for more precise details. See A Vitu COp cit n°146.

* ²²⁴ Idiots const Decision of March 15, 1999  ; OJ Nov. 21, 1999, Dalloz 2000 somm p 116, obs Roujou de Boubée.

* ²²⁵ Quoted by W. Jeandidier, Of the offense of corruption and the defects which affect it JCP G 2002, I, 166.

* ²²⁶ Law n° 83-1997 of December 20, 1997. JORT of December 22, 1997 p 15.

* ²²⁷ Stop of the administrative court n°621 of Oct. 27, 1981  ; bulldozer of the trib adm of 1981 p 283.

Stop of the administrative court n°202 of the 27 décembre1978  ; bulldozer adm of 1978 p 237.

* ²²⁸ Mohammed Elhessine Echebbi «  the exemption of sorrow out of penal matter  » memory of end of study DEA criminal sciences, and political science Faculty of Law of Tunis 1997/1998 p 93.

* ²²⁹ This idea is not shared by Jondi Abdel malek which thinks that most important, on this level, is the corrupted repression of the civil servant and not that of the corrupter or the intermediary.

* ²³⁰ Pradel J, towards one «  aggiornamento  » of the answers of the penal procedure to criminality, Contributions of the law N°2004-204 of March 9, 2004 known as law perben II. JCP, ED N°20 gene of May 12, 2004 p 881et sui vant.