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Tunisia: Many Face Prison Over Debts

Human RightsTunisia: Many Face Prison Over Debts

202311MENA_Tunisia_Debt_Imprisonment

Feature Script:

SOUNDBITE: Jalia Hedhil [Mejid’s wife]

Mejid is a person I can’t describe, he’s got a great personality and a very big heart. Mejid was arrested in 2015 for writing bounced checks. The hardships of [prison] deeply impacted him, and he is no longer the strong person he once was.

SOUNDBITE: Siwar Hedhil [Mejid’s daughter]

We were always together, my childhood memories are filled with moments spent with him.  Then of course when he went to prison, things were no longer the same. We write poems and stories to each other. I realized that I could express my pain in an artistic way. This helped me break out of the isolation and depression I was feeling.

SOUNDBITE: Jalia Hedhil [Mejid’s wife]

Siwar was her Daddy’s girl and still is. They were inseparable.

VO:

Mejid Hedhil is a former contractor who had a construction business. In 2010 he was hired by a Tunisian Ministry to renovate a building in the Kasbah quarter of Tunis, where several government ministries are located.

SOUNDBITE: Jalia Hedhil [Mejid’s wife]

Our life was very good and we suddenly hit rock bottom.

VO:

Things began to change for Mejid’s business at the beginning of 2011. Mejid had to cease operations on site due to the protests in the Kasbah quarter of Tunis.

SOUNDBITE: Jalia Hedhil [Mejid’s wife]

Suppliers quickly learned that Mejid was facing financial difficulties, prompting them to cash their checks simultaneously. The situation caused Mejid to struggle significantly.

VO:

Acquiring goods from a supplier in exchange for a check to be cashed later is a widespread practice in

the Tunisian commercial sector. It means business owners like Mejid can carry out commercial transactions at a given time, even if they are unable to pay for the goods or services right away.

VO:

Under this practice, a supplier provides a merchant with an informal loan secured by a check that they commit to cash at a later stage rather than immediately. This is a widely used business model,

popular in particular with small enterprises.

SOUNDBITE: Siwar Hedhil [Mejid’s daughter]

Checks play a crucial role in driving the economy forward.

SOUNDBITE: Jalia Hedhil [Mejid’s wife]

We were waiting for a partial payment of 400,000 dinars (119,000 euros)…

SOUNDBITE: Jalia Hedhil [Mejid’s wife]

…[with that money] we could have covered checks and paid suppliers.

SOUNDBITE: Jalia Hedhil [Mejid’s wife]

If he had been paid, Mejid would have been able to settle his debt.

SOUNDBITE: Jalia Hedhil [Mejid’s wife]

When Mejid was arrested, our situation was unstable and I couldn’t afford a lawyer. This financial strain significantly impacted Mejid’s defense.

SOUNDBITE: Siwar Hedhil [Mejid’s daughter]

Now, he has been in jail for nearly 10 years. The checks law is unfair.

VO:

According to the government, 496 people are currently in detention due to failed checks, nearly all of whom were entrepreneurs.  How can you take steps to repay if you’re in jail?

VO:

Tough economic times have only aggravated the problem. Today, Tunisia is still in the midst

of a severe economic crisis, with significant inflation, a lack of liquidity and heavy foreign debt. This impacts smaller businesses more than most.

SOUNDBITE: Jalia Hedhil [Mejid’s wife]

Society judges you badly based on appearances, without understanding the full truth of a situation.

SOUNDBITE: Jalia Hedhil [Mejid’s wife]

I hope the president will address bounced check issues and help families reunite. Words can’t fully describe the catastrophic situation.

VO:

Imprisonment solely for owing debt is a violation of international human rights law. Not only it deprives indebted people of their freedom, it impacts their physical and mental health, but also harms their families who face stigma, and whose living conditions deteriorate

as a result of the imprisonment.

SOUNDBITE: Siwar Hedhil [Mejid’s daughter]

When my dad went to prison, money became a real problem. We struggled to afford our basic needs

and sometimes went days without food.

SOUNDBITE: Siwar Hedhil [Mejid’s daughter]

[The government] promised that he’ll be pardoned and freed, pledged reform, said he’ll get paid.

VO:

The authorities need to assess each case individually, and release those imprisoned who are unable to pay their debts, allow their rehabilitation, and support them in a planfor settling their debts.

SOUNDBITE: Siwar Hedhil [Mejid’s daughter]

I hope the law will be revised, and better solutions will be implemented, because imprisonment isn’t a solution.

SOUNDBITE: Siwar Hedhil [Mejid’s daughter]

I hope my dad leaves prison and the truth comes to light. So that we can spend time with him, and share some precious moments together.

At least several hundred people are in prison in Tunisia solely for writing checks they were later unable to pay. Many others facing charges are in hiding or exile.The practice amounts to debt imprisonment, which destroys families and businesses, and violates international law.Tunisia should replace this system with alternatives to prison for repaying debt; debtors should be released and allowed to establish a repayment plan.

(Tunis) – At least several hundred people are in prison in Tunisia solely for writing checks they were later unable to pay, Human Rights Watch said in a report published today. The practice amounts to imprisonment for debt, which violates international human rights law, and which destroys families and businesses.

In the 41-page report, “‘No Way Out’: Debt Imprisonment in Tunisia,” Human Rights Watch documents the consequences of Tunisia’s archaic legislation on checks with insufficient funds. The law, in addition to sending insolvent people to prison, or to live in hiding or exile, fuels a cycle of indebtedness and reduces entire households to lives of hardship. In the context of Tunisia’s current economic crisis, the authorities should urgently replace the legal provisions that allow for debt imprisonment with legislation that distinguishes between willful refusal and genuine inability to pay.

“Imprisonment for unpaid debt is an anachronism and is both cruel and counterproductive to ensuring that creditors recover their due,” said Salsabil Chellali, Tunisia director at Human Rights Watch. “When debtors remain free, they have the possibility of earning income to gradually repay their debts, while supporting their own households.”

On May 22, the Prime Minister’s Office announced in a statement that the Council of Ministers had approved a bill to amend legal provisions on unpaid checks, which suggests reduced prison sentences and financial penalties, and provides for alternatives to prison, among other measures, the statement says. The bill has been submitted to the Assembly of People’s Representatives for debate.

Human Rights Watch documented the cases of 12 people prosecuted for unpaid checks, including people imprisoned and others living in hiding or in exile.

Although originally conceived as a means of payment, checks in Tunisia are in practice widely used as a means of obtaining credit, especially in the commercial sector where they enable entrepreneurs to secure commercial goods or services in exchange for a check they provide that is to be cashed later, at an agreed-upon date.

Given the difficulties faced by micro, small, and medium-sized businesses in accessing bank financing due to the lack of collateral or the bank’s financing conditions, many in the commercial sector rely on this practice, known as the “guarantee check.”

When people who have issued “guarantee” checks are unable to later pay them, they risk imprisonment, as an unpaid check is considered a criminal offense punishable by up to five years in prison under Tunisia’s Commercial Code. While according to the government, 496 people were imprisoned for unpaid checks as of May 2024, a business association that focuses on this issue, the National Association of Small and Medium-Sized Enterprises,estimated that this number is closer to 7,200 people, and that the authorities are seeking thousands more for unpaid checks. Such prison sentences are cumulative.

Those imprisoned often face stigma, and the lack of income while they are in prison or trying to escape prosecution can affect the enjoyment of their human rights, including access to basic services such as health care, housing, or education. Debt-induced economic woes may be compounded by the shortcomings of Tunisia’s public services and social security system.

In one case documented, Mejid Hedhli, a building contractor, was sentenced in 2016 to 122 years and nine months in prison over about 50 checks. Hedhli was renovating a public building in 2010, but its construction suffered delays and material damage after events during the 2011 revolution. His family also says that the public institution that contracted him did not fully pay him.

“If Mejid hadn’t been in prison, he could have worked and paid off all his checks,” said his wife, Jalila Hedhi. “His life has been squandered, and yet the checks remain unpaid.”

Interviews conducted by Human Rights Watch show that when a first check is rejected by the bank, the debtor often faces spiraling costs due to fines and fees and to other creditors seeking prompt payment. Crushing debt and the risk of imprisonment often leads people to cease all economic activity and go into hiding or flee abroad.

The current legislation unjustly fails to distinguish between a debtor unable to pay for compelling economic reasons and a person who used the check with fraudulent intent, Human Rights Watch said.

The debt can also burden the debtor’s extended family members, who often step in to help repay part of the debt by selling their own assets or taking bank loans. It also has negative consequences on the health of the indebted people and their family members.

Indebted people rarely have access to effective legal representation for unpaid checks, either due to lack of means or out of resignation when faced with the inability to settle the debt. Yet, the presence of a lawyer is particularly important when it comes to requesting a deferral of the hearing and giving the debtor more time to raise the required sum. If the debtor can pay their debt before the court pronounces a verdict, the prosecution is halted.

Because issuing these checks is considered a formal offense, the judge is not required to consider the intention of the check issuer, to examine the circumstances that led to the indebtedness, or to find alternatives to imprisonment.

Imprisonment for unpaid checks rarely leads to the creditor’s repayment, especially when the debtor is poor. In cases in which repayment is made, it is generally due to pressure on the debtor’s family members, who might pool funds to help.

President Kais Saied supports an amendment to the law and, in 2023, instructed Justice Minister Leïla Jaffel to introduce a bill to decriminalize these checks. Economic players such as Tunisia’s largest employer organization, the Tunisian Confederation of Industry, Trade, and Handicrafts, recommended alternatives to imprisonment in July 2023. In February, lawmakers submitted a bill to grant amnesty to people prosecuted for these checks, but it has not yet been debated.

Tunisia should rapidly replace legal provisions allowing for debt imprisonment with legislation that considers the reality of using checks as a credit tool, provide alternatives to imprisonment, and provide sustainable means for creditors to recover what they have lent. People unjustly imprisoned under this law should be released and permitted to establish a debt repayment plan, as should those in hiding or exile.

Tunisia, which lacks a personal bankruptcy law that would provide relief for debtors facing economic hardship, including entrepreneurs in the informal sector, should also adopt legislation on personal insolvency.

“The Parliament should amend the law to effectively get indebted people who had no intention to default out of prison and out of a downward economic spiral,” Chellali said. “This is also an opportunity to put in place better protections against insolvency, and to adopt measures that benefit the economy in the longer run.”

Story from www.hrw.org

Disclaimer: The views expressed in this article are independent views solely of the author(s) expressed in their private capacity.

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