Article 411 of the Commercial Code: A Controversial Provision
Punishment for Issuing Checks without Provision
Article 411 of the Commercial Code states: "Shall be punished with imprisonment for a term of five years and a fine equal to 40% of the check amount or the remaining provision, provided it is not less than 20% of the check amount or the remaining provision." This article has long been a subject of controversy among economic and financial actors. For years, some have called for its amendment, while others have defended its importance in protecting financial and commercial transactions, particularly for merchants and their creditors.
Alarming Statistics
In 2022, the State published alarming figures: over 7,000 people are detained for issuing checks without provision, and more than 450,000 people are wanted. These individuals are mostly small and medium-sized business owners who are already vulnerable and in need of support and encouragement from the State. The COVID-19 crisis has only exacerbated their situation, causing them to lose not only their businesses but also their freedom, families, hope, and lives. This situation raises questions about the relevance of Article 411 of the Commercial Code and its ability to provide an economic recovery solution.
New Alternatives on the Table
Today, new alternatives are being discussed in the Tunisian Parliament and at the "Carthage Table." A bill has been proposed to modify the provisions of Article 411: 2 years of imprisonment instead of 5, and a fine of 20% of the check amount instead of 40%, with the added possibility of community service as an alternative to imprisonment, at the judge's discretion, for those who have not reoffended. This option is the State's tool to reduce the number of condemned individuals and prisoners, rather than abolishing imprisonment altogether, as is the case with Law 52 on drug use.
The Question Remains
The question remains: why does imprisonment still exist, and to what extent do these alternative modifications of Article 411 meet the expectations of economic actors and the reality of credit and commercial operations? What philosophy or strategy does the State employ to justify imprisonment for individuals who are part of the Tunisian economy and have been victims of ecosystem changes and national and international crises?