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Details of Presidential Decree Outlining Conditions for Reimbursing Embezzled Funds

Saturday 7 September 2013

By Dibussi Tande

Special Criminal Court, Yaounde-Cameroon

On September 4, President Biya signed decree N°2013/288 fixing the modalities for the restitution of misappropriated public property, this, in compliance with Section 18 (3) of Law No.2012/011 of 06 July 2012 to amend and supplement certain provisions of law No.2011/28 of 14 December 2011 to set up a Special Criminal Court which stipulates that: “Modalities for the restitution of the corpus delicti shall be fixed by rules and regulations.”

As a reminder, according to Section 18 (new) of Law No.2012/011 of 06 July 2012,

(1) Where the corpus delicti is restituted, the, Procureur General of the Court may, subject to a written authorization by the Minister in charge of Justice, enter a nolle prosequi against prosecution prior to committal before the trial Court.

(2) However, where such restitution is effected after committal to the trial court, a nolle prosequi may be entered against the proceedings prior to any judgment on the merits and the Court seised shall inflict the forfeitures under Section 30 of the Penal Code and mention made in the criminal record.

Here are the key points of decree N°2013/288 of September 4, 2013:

Who can Make Restitution?

Restitution may be by the accused or his legal representative (Article 2).

When can Restitution be made?

If restitution is made before the case is brought before the Special Criminal Court, the Procureur General of the Criminal Court may enter a nolle prosequi against prosecution. If restitution occurs when the case is already before the Court, a nolle prosequi may be entered against the proceedings prior to any judgment on the merits, however, this option carries with it all the forfeitures set out in section 30 of the Penal Code [dismissal and exclusion from any Public Service employment or office; barred from being a juror, assessor, sworn expert, serving in the armed forces, etc.) and shall be mentioned in the offender’s criminal record. (Article 3.)

What are the Acceptable Methods of Restitution?

Restitution may be either in cash or in kind. (articles 4 & 5).

Cash Restitutions

Where there is cash restitution, the accused either reimburses the totality of the funds embezzled, or makes a monetary restitution equal to the exact value of the embezzled movable or immovable property.

Restitution is made to the Treasury which issues a receipt of payment to the accused. The receipt is then handed over to the competent authority who may be (article 6):

The police during criminal investigations
The Examining magistrate during the preliminary inquiry
The Legal Department of the Special Criminal Court
The President of the Special Criminal Court or during court sessions.

In either case, a copy of the official statement and the treasury receipt
must be forwarded to the Procureur General of the Special Criminal Court within 72 hours, who will in turn transmit these to the Minister of Justice with his opinion, also within 72 hours. (Article 7-10).

Restitutions in Kind

Restitutions in kind occur when the accused restitutes the corpus delicti with movable or immovable property equal to the amount embezzled.

Restitutions in kind are done exclusively before the Procureur General of the Special Criminal Court who must, within 72 hours, send an official statement to the Minister of Justice explicitly mentioning the request to end proceedings along with proof that the said movable or immovable property exists.

The Minister of Justice then contacts the competent ministry to assess the value of the property.

The restitution in kind is certified by the competent Ministry in the presence of the accused and a Magistrate. All supporting documents are then sent to the Procureur General who in turn forwards them to the Minister of Justice within 72 hours along with his opinion. (Article 11).

What about Cases Involving Less than 50 million FCFA?

According to Section 2 (NEW) of Law No.2012/011 of 06 July 2012 to amend and supplement certain provisions of law No.2011/28 of 14 December 2011 to set up a Special Criminal Court,

The [Special Criminal] Court shall be competent to hear and determine matters of misappropriation of public property and related offences where the value of the loss is at least fifty million (50,000,000) francs CFA as provided for by the Penal Code and International Conventions ratified by Cameroon.

Nonetheless, article 12 of the presidential decree stipulates that its provisions also apply where the judicial police, examining magistrates, Presidents of Courts of First Instance and High Courts, or the Procureurs General of Courts of Appeal, are seized in matters where the value of loss is below fifty million (50,000,000) francs CFA. This is in line with Sections 9, 10 and 11 of the law of 06 July 2012.

Is Freedom Automatic After Restitution?

According to section 18 of July 2012 law and Article 3 of the September 2013 decree, the Procureur General of the Special Criminal Court MAY, subject to an authorization by the Minister in charge of Justice, drop the case against the defendant. In other words, freedom is not automatic after restitution; this is at the discretion of the Minister of Justice.

For details and my analysis of the 2012 law on which this decree is based, see: Justice for Sale or Legal Realpolitik? The Special Criminal Court Sets Legal Precedent in the Yves-Michel Fotso Embezzlement Case.

See online: Details of Presidential Decree Outlining Conditions for Reimbursing Embezzled Funds