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LAW No. 94440 of 16 AUGUST 1994, fixing the composition, the organisation, the attributions and the working of the Supreme Court as modified and supplemented by Law no. 97 - 243 of 25 April 1997.
Art. 88. new (Law no. 97-243 of 25/4/97) - The Audit Office is composed of :
- a Vice President of the Supreme Court, who is the President of the Audit Office, appointed from among the Judges of this office and substituted in the event of absence or some unexpected cause of non-attendance, by the senior most Judge,
- some Judges,
- some Referendary Judges and Auditors,
- some secretaries of the Office.
The Prosecution attached to the Office is composed of :
- the Attorney General,
- a Principal Advocate General and some Advocate Generals.
The principal Advocate General is substituted in the event of an absence or unexpected cause of non-attendance by the senior most Advocate General.
Art. 89 - The President of the Audit Office is in charge of the general conduct of the work and its organisation.
The audits are entrusted to the Judges or to the Referendary Judges and to the auditors. They are conducted through an examination of the accounts and of the supporting documents. They consist in accordance with the need, of any request for information, investigations or expertise conducted on the spot under conditions provided for in article 93 of the present law.
The secretaries of the Office assist the President. They ensure, under his authority, the working of the record office and of the archives as well as the other administrative services of the Office, notably :
a) they prepare the agenda of the meetings;
b) they ensure the maintenance of the registers and files;
c) they certify the despatches of the judgements and ensure their notification;
d) they deliver and certify extracts and copies of the proceedings concerning the working of the Office;
e) they keep for five years the documents that have been verified and for thirty years at least the verified accounts and the documents carrying observations as well as the originals of the reports and decisions.
Art. 90. - The Audit Office is in charge of the verification of public finances. It exercises for this purpose a dual competence, a jurisdictional as well as of audit strictly speaking.
a) Jurisdictional Attributions
It verifies that the public income and expenses are in accordance with the established rules. It judges the accounts of the State accountants. It endorses or condemns the actual management and the faulty managements.
b) Audit attributions
It ensures a budgetary and management audit; to do this :
- it possesses a power of audit of the management of all public bodies and ensures notably the proper use of the loans, funds and securities managed by the State services and by other legal entities coming under public law;
- it ensures the audit of the implementation of the Finance laws;
- it is in charge of the verification of the accounts and management of the State public enterprises of an industrial and commercial nature, of State companies, of joint venture companies or of limited companies in which the State possesses the majority of the authorized capital;
- it can also conduct the verification :
a) of the accounts and management of the other public establishments or bodies, whatever be their legal status, which carry on an industrial or commercial activity;
b) companies, groups or agencies, whatever be their legal status, in which the State, local authorities, public individuals or establishments, bodies already subject to the audit of the Audit Office hold, separately or together, more than half the capital or the votes in the deliberative assemblies;
c) legal entities in which the State or some agencies already under the audit of the Audit Office, hold directly, separately or together, a share in the capital enabling the exercise of a major power of decision or of management.
- it audits the provident fund institutions, including the private law bodies which ensure, wholly or partly, the management of a legally compulsory provident fund system;
- it can conduct an audit of any organisation which avails of a financial aid from the State or from any other public legal entity, as well as over any association availing of the financial aid of public enterprises and their subsidiaries.
The Audit Office possesses full right over all the powers enumerated under the present law.
Art. 91. new (Law no. 97-243 of 24/5/97) - The Audit Office meets either as a judgement rendering group or as a Council Chamber. There is a written procedure. However, the Representative of the State Prosecution may make any oral observations that he considers appropriate.
The sittings are not open to the public. Those whose cases are being judged by the Office are not admitted to the discussions, either in person, or through a representative, on the hearings of the reports, the proposals or the decisions of the Office.
a) Judgement rendering group
The group that renders judgements is made up of the President of the Office and two Judges.
It can however, avail of the assistance, on the initiative of the President of the Office, of referendary judges and of auditors who are there in the capacity of advisers.
When the rapporteur judge is not a part of the judgement rendering group, he enjoys the capacity of an adviser.
The quorum for the above mentioned body can be obtained by calling on a referendary judge; in that case, he has voting rights.
The Council Chamber is made up of the President of the Chamber and of some Judges.
It formulates an opinion on matters of procedure or of jurisprudence that may be referred to it by the judgement rendering body.
It gives a ruling on matters presented to the Chamber on appeal.
It is informed of the draft general reports, of the reports on laws of rulings, of declaration of conformity, of the overall reports of public enterprises and the texts of judgements;
The rapporteur judge is assisted by referendary judges or by auditors who participate in the sittings in a consultative capacity.
In addition, the Council Chamber deliberates on all matters or questions that are submitted to it by its President.
Art. 92. - The preliminary investigation of each account or matter is entrusted by the President of the Chamber to a rapporteur in accordance with the provisions of article 89 above.
The observations arising out of the verifications are put down in the report. The follow-up to be done on each observation becomes the subject of a proposal with justifications.
The President of the Chamber conveys the report and the annexed documents to a counter-rapporteur judge. The latter gives his opinion on each of the proposals that have been formulated.
The rapporteur presents his report to the Chamber. The counter-rapporteur judge gives his opinion on each of the proposals formulated.
The Chamber gives, on each proposal, a decision which is noted by the President in the margin of the report. If it is found necessary to proceed to vote on the matter, the President collects successively the votes of the rapporteur judge, then of each of the judges and he himself gives his opinion last of all. In the event of a division, he has the casting vote.
Art. 93. - The obligation of maintaining professional secrecy cannot be raised as an objection against the judges of the Audit Office at the time of the investigations conducted during the exercise of their functions.
The judges have every power of investigation during the preliminary probes and hearings concerning the accounts or the matters that have been assigned to them. The investigation includes, as the need requires, any request for information, enquiry or expertise on the spot.
The Directors or heads of departments, the accountants and the supervisory authorities are bound to communicate on request from the judges of the Audit Office all the documents and to supply all information concerning the management of the departments and bodies subjected to the audit of the Office.
The judges can go to the offices of the accountants, the Directors, heads and administrators of the departments or bodies subjected to the judgement or to the audit of the Office. These latter have to order that all measures be taken to put at their disposal so that they may take note of them all the written matter kept and all the documents, particularly the documents formulating and justifying the recovery of receipts, the commitments made, the liquidation and the payment of expenses. The judges can get a copy delivered to them of the documents necessary for their audit.
They also have access to all the buildings, premises and properties including those that belong to the State or to other legal entities who are subject to the judgement or to the audit of the Office and can proceed to make an audit of the supplies, material, works and constructions as well as all accountancy of materials.
The Audit Office can take recourse to enquiries of a technical nature and take the assistance of experts appointed by the President of the Audit Office. The experts are subjected to the obligation of maintaining professional secrecy. They are remunerated on the basis of part time work whose rate is fixed by decree.
The Audit Office has the power to hear every Director or representative of the departments and of the bodies subjected to its audit, all managers of public funds, of heads of public enterprises, any member of an audit institution or a body on the invitation of the President of the Audit Office.
It can ask to receive a communication of all the reports of the investigations and hearings, of justification or of audit, on the request of the President of the Office, addressed to the Ministry that the author of the said report comes under.
When the communications and hearings relate to subjects of a secret nature concerning national defence, foreign affairs, the internal or external security of the State, or to confidential elements concerning the industrial, commercial or financial management of public enterprises, the Audit Office takes all measures to strictly guarantee that its investigations and observations are secret.
Private establishments and enterprises are bound, on request of the judge of the Audit Office, to supply all information and documents relating to the supplies, departments and works conducted either by the enterprise for the benefit of a department or a body subject to the judgement or the audit of the Office, or by the said departments or bodies for the benefit of the enterprise. Any violation of the provisions provided in the present paragraph are punishable by a fine of 50,000 francs per month of delay.
Every on the spot investigation must be preceded by an order formulated by the President of the Office.
Art. 94. - In the exercise of its jurisdictional attributions, the Office passes judgements on the accounts of public accountants, declares and clears the factual managements, pronounces sentences of fines under conditions fixed by law, gives rulings on the recourses provided for in the present chapter and punishes management failures.
Those persons are public accountants who are the accountants of the State, of territorial local authorities, of public establishments of an administrative nature and of enterprises or bodies whose status is such that their accountant is a State accountant.
Art. 95. - Accounts asserted to be authentic and true, on pain of legal action, dated and signed by the accountants and carrying the seal of audit, of their hierarchical superior, are presented to the Audit Office in the forms and within the time limits prescribed by the rules.
These accounts must be in a state fit for being examined and accompanied by supporting documents in the methodical order of the operations. Once the accounts have been presented, no change can be made in them.
A report on the management of the materials retracing the operations of the preceding year is addressed annually to the Office. This report deals notably with the utilisation of the stocks, with their renewal, with the losses noted and the commitments incurred.
In the case of computerized processing, the stocks can be portrayed firstly by mechanographic methods, supplemented by statements in an annex.
Art. 96. - In the event of the death of the accountant, the obligation of presenting the accounts falls on his heirs.
In the absence of the accountant, the account can be signed and presented only by his heirs, by an authorized representative empowered by a power of attorney or, when the circumstances require, by an office clerk nominated by the competent minister at the place and instead of the accountant or his heirs.
The order appointing the office clerk fixes the time limit given to the latter for presenting the account.
The account is always rendered on behalf of the holder of the post.
Art. 97. - Unless the competent minister decides otherwise, taking note of individual cases, the accountants replaced during the course of the year are exempted from rendering a separate account of their management.
A single account is drawn up of the management operations.
The account is prepared and put in a state fit to be examined by the accountant holding the post on the 31st of December.
The account brings out distinctly the operations conducted by each one of the accountants who have succeeded each other in the post during the year and who remain responsible for their personal management.
Each accountant certifies the account while ensuring that his signature is preceded by a mention that he takes express responsibility for the receipts and expenses of the management.
This certification does not exempt those accountants who are giving up their service or those who are entering into service from producing in the Audit Office the documents provided for by the rules in the event of their transfer.
Art. 98. - After investigation of the accounts, the rapporteur presents to the Office a report supported by documents for justification carrying the observations made. The report is examined in accordance with the procedure fixed by article 92 above.
Art. 99. - The Office assesses if the justifications of the operations noted in the accounts are in conformity with the regular rules.
When it notes any irregularities involving the responsibility of the accountant, it enjoins on the latter that he bring proof of their rectification or produce supplementary justifications.
The charges raised against the accountant are brought to his knowledge by a provisional decision. This decision may call for the communication of documents, leading to his reinstatement.
Art. 100. - In its order, the Office also fixes the balance at the end of the financial administration and makes it obligatory on the accountant to take responsibility for putting it into the accounts for the administration for the following year. It fixes, when the account includes such operations, the amount of receipts and expenses effected during the supplementary period of the last financial year being considered and notes the conformity of the results presented by the account of the accountant and the accounts of the person authorized to pass accounts.
Art. 101. - The accountant avails of a time period of two months from the date of its notification, to reply to the injunctions pronounced by the provisional decision.
Art. 102. - In the event of the transfer of the accountant, the accountant holding the office is bound to follow up the injunctions relating to the management by his predecessor. He communicates to the latter a copy of the decision and of the replies meant to clear these up and sends these replies to the Office after obtaining the consent of the accountant who has left his service.
Art. 103. - When the clearing up of the financial administration presents some specific difficulties the competent minister can appoint an office clerk entrusted with following up the injunctions in place of and instead of the accountant or his heirs.
Art. 104. - If the accountant has been able to counter the injunctions formulated in the provisional decisions or produced all the justifications considered to be valid, the Office lifts the sentences it had pronounced.
However, on account of the obligation that he is under to establish in the account for the subsequent financial management, the balance fixed in conformity with article 100 above, the accountant will be finally released from his responsibility only when the exact recovery of this balance will have been noted.
Art. 105. - If the replies produced by the accountant are not considered satisfactory, the Office confirms, through a final decision, the charges that it had pronounced.
The jurisdiction may however, before pronouncing a final sentence, make several provisional decisions concerning one single account.
Art. 106. - The Office establishes through its final decisions if the accountants are quits, have an advance or a debit balance.
In the first cases, it pronounces their final release and if the accountants have terminated their service, authorises the reimbursement of their security deposits and orders the withdrawal of the oppositions and the striking off of the writings ordering their goods to be seized on account of their management.
In the third event, it sentences them to settle their debit along with the legitimate interest amounts, into the Treasury or the funds of the local authorities or of the public establishment involved as the case might be.
Art. 107. - new (Law no. 97-243 of 25/4/97) - An account of this will be rendered to the concerned minister and referred to the State Prosecution in the Supreme Court which will take legal action against the persons involved.
Art. 108. - Any person who, without holding the position of a public accountant or without acting under the control and on behalf of the accounts of a public accountant, interferes in the recovery of receipts allocated to or meant for a public body entitled to the post of an accountant or dependent on such a post, must render accounts to the financial judge of the utilisation of the funds and securities that he has held or handled in an irregular manner.
This is so also for any person who receives or handles directly or indirectly funds or securities irregularly drawn out from the holdings of a public body and for any person who, without holding the position of a public accountant, proceeds to carry out operations relating to funds or securities not belonging to the public bodies, but which the accountants are exclusively entrusted with effecting by virtue of the rules in force.
Irregular managements entail, for the authors declared as de facto accountants by the Audit Office, the same obligations and responsibilities as the patent managements for public accountants.
In the event of legal proceedings against the person in question in the civil action penal courts and when the action is not prescribed, the Audit Office meeting as a Council Chamber deliberates on the point of deciding if it will be seized of the matter after the penal judgement.
Art. 109. - The ministers, the legal representatives of the local authorities and public establishments, are bound to refer to the Audit Office all the de facto managements that they find in their departments. The same obligation is incumbent on the supervisory authorities of the said establishments and local authorities and on the minister entrusted with their financial supervision for all the factual managements that come to their knowledge.
The Office gives rulings on the act of starting legal proceedings; it must, if it sets aside the declaration of de facto management, give a decision of dismissal.
If the investigation brings out acts likely to constitute misappropriation of funds, the rapporteur judge must order the impounding of the belongings of the de facto manager.
The impoundment is administered and liquidated in accordance with the provisions of the Penal Code.
Art. 110. - The de facto managements are automatically seized by the Audit Office of the verified or audited statements of the accounts that have been submitted to it.
Art. 111. - The Office first of all declares the de facto management through a provisional decision requiring from the de facto accountant that he produce his account and giving him a time period of three months, starting from the time of notification, to give a reply to the decision.
If the concerned person produces his account without any reservations, the Office confirms by a final decision the declaration of de facto management and gives a ruling on the account.
If he contests the provisional decision, the Office examines the means invoked and when it maintains, on a definite basis, the declaration of de facto management, renews the injunction to give an answer within the same period as above.
In addition, the Office mentions in its provisional decision that in the absence of any reply it will give a final legal ruling after the expiry of the time granted for a response.
Art. 112. - If, after the final declaration, the de facto accountant does not produce his account, the Office can sentence him to pay the fine mentioned in article 116 of the present law, the starting point of the delay being counted from the date of expiry of the period granted for a response. Moreover, in case of need, the Office can ask for the appointment of an office clerk to produce the account in place of and instead of the defaulting de facto accountant at his expense.
Art. 113. - If several persons have participated, at the same time, in a de facto management, they are jointly and collectively declared as de facto accountants and they produce a single account. Depending on the operations in which each of them has taken part, the collectiveness can relate to the whole or a part of the de facto management operations.
Art. 114. - The account of the de facto management, duly certified and signed, supported by justifications, must indicate the receipts and expenses and bring out the balance. This account must be a single one and must cover all the operations of the de facto management whatever be their duration.
Art. 115. - The de facto management account must be produced at the Office along with supporting documents. It is judged in the manner of patent accountancies.
Nevertheless, the accounts judge may, while acting in good faith and ensuring that there is no deceit on the part of the de facto accountant, make good out of considerations of equity for the insufficiency of the justifications produced.
Art. 116. - Any accountant who does not present his accounts within the period prescribed by the rules can be sentenced by the Audit Office to a fine whose amount is fixed at a maximum of 20,000 francs per month of delay.
Art. 117. - Any accountant who does not reply to the injunctions pronounced on his accounts within the time period prescribed by article 101 of the present law can be sentenced by the Audit Office, to a fine of a maximum of 5,000 francs per injunction and per month of delay, if he does not furnish an admissible excuse concerning the delay.
Art. 118. - The heirs of the accountant, the office clerk replacing the defaulting accountant or replacing the heirs in presenting an account or in responding to the injunctions, the accountant in service entrusted with presenting the account of the operations undertaken by the accountants who are no longer in service or replying to injunctions relating to the management of his predecessors, are liable to the above prescribed fines, on account of delays that are personally attributable to them.
Art. 119. - In case the de facto management is not subject to the legal provisions provided in article 305 of the Penal Code, the factual accountant can, moreover, be sentenced by the Audit Office to pay an amount calculated in terms of his personal responsibility or in accordance with the importance and the duration of the holding back or the handling of the funds and securities without however being able to exceed the total of the sums unduly held back or handled.
Art. 120. - When it applies articles 116 to 118 above, the Office gives a ruling first of all on a provisional basis and gives the accountant a period of two months to vindicate his stand. After examining the latter, it gives a final ruling. It mentions in a provisional decision that in the absence of a reply it will have the right to give a final ruling after the expiry of the above period.
As regards the fine mentioned in article 119 above, the Office in its provisional declaration decision on the factual management, will defer giving a ruling on the application of the penalty. It reserves to itself the right of evaluating the merits of the justifications and explanations that the de facto accountant will have presented on the subject of the penalty that he incurs. It gives a ruling on this point, on a final basis, at the end of the clearing of the de facto management.
Art. 121. - new (Law no. 97-243 of 25/4/97) ) The fines pronounced by virtue of the present chapter are allocated to the concerned local authority or establishment. The fines allocated to the State are paid into the receipts of the general budget. However, the fines inflicted on the accountants in service availing of an appended budget are paid as receipts into this budget.
All the fines are dealt with in a manner similar to the debits of the accountants of the local authorities or establishments as regards the modes of recovery, of legal proceedings and of remittances.
All the decisions of the Audit Office are taken after the written conclusions made by the State Prosecution in the Supreme Court.
Art. 122. - new (Law no. 97-243 of 25/4/97) - The final decisions of the Audit Office are legally binding. The competent minister as regards the State, and the person authorized to pass the budget of the territorial local authorities or of the concerned public establishment are entrusted with ensuring that the said decisions are implemented.
However, the accountants and other responsible persons of the Audit Office, the ministers as concerns their departments, can, during the two months following their notification, appeal to the Supreme Court, concerning any legal flaw, incompetence or violation of the law against the final decisions of the Audit Office : the appel must be introduced within a period of two months after the notification of the decisions.
The judgement group under the chairmanship of the President of the Supreme Court consists of two members of each of the three Chambers, judicial, administrative and Accounts, who pass a ruling on the authorities against whom proceedings are directed in application of the present article.
The State Prosecution is represented by the Attorney General of the Supreme Court.
Art. 123. - The Office, notwithstanding the final judgement decision on an account can, for reasons of error, omission, forgery or redundancy discovered after the ruling, proceed to get it revised either on the request of the accountant, accompanied by supporting documents found after the ruling, or at the request of the competent minister or of the legal representatives of the concerned local authorities and establishments, or automatically.
The request for revision is sent to the President of the Office. It must include an exposition of the facts and the grounds invoked by the petitioner, be accompanied by a copy of the decision being appealed against, the justifications serving as a basis for the request as well as the documents establishing the notification of this request to the other concerned parties.
Art. 124. - Depending on whether it feels, after the preliminary hearing, that the documents produced make it possible or not to start a revision petition, the Office, giving a final ruling, admits or rejects the request for revision.
When it admits the request, the Office takes by the same ruling, a preparatory decision of placing the accounts in a state of revision and gives to the accountant a period of two months to produce the supplementary justifications required eventually for the revision when this is asked for by him, or vindicate his grounds when the revision is started against him.
After examination of the replies or after the expiry of the above mentioned period, the Office gives a ruling on the content.
When it decides on the final revision, it annuls the attacked decision, orders if necessary some guarantees to be taken and proceeds to make a judgement of the contested operations in the form of an ordinary legal proceeding.
Art. 125. - When the Office acting automatically feels, after the preliminary investigation and hearing, that the facts of which proof is supplied enable the opening of a revision petition, it gives a preparatory ruling of putting the accounts in a state of revision and proceeds in accordance with the rules provided by the preceding article.
Art. 126. - The exercising of a recourse to revision is not subject to any time lapse.
The revision appeal has no suspensive effect.
Art. 127.- new (Law no. 97 - 243 of 25/4/97) - The decisions of the Office are notified by the Attorney General of the Supreme Court.
Art. 128. - The accountants transmit directly to the Audit Office their replies to the provisional decisions.
They notify them directly in a copy to the authorities mentioned in article 127 above.
Art. 129. - Every accountant no longer in service is bound, till the final clearance, to notify directly his new address and any subsequent change of domicile to the secretary of the Audit Office.
He must also notify the same directly :
a) to his successor if he is a senior accountant of the Treasury;
b) to the competent senior accountant in all other cases.
The same obligations are incumbent on the heirs of the accountant.
Art. 130. - If, following a refusal of the accountant or of his heirs, or for any other reason, the notification cannot reach the addressee, the secretary of the Audit Office sends the decision to the Town Council or to the district authorities at the last known domicile of the declared person.
The Mayor or the District Collector notifies the decision through an administrative official.
In the event that the notification is made to the person, the administrative official takes a receipt from the addressee and makes a notification report. This report and the receipt are sent to the Audit Office.
Art. 131. If the administrative official does not find the addressee he keeps the decision in the Town Hall or in the office of the District Collector and draws up a report of these facts which he attached to the decision.
An official notice is then put up, during one month, at the place where it is deposited. This notice informs the addressee that a decision of the Audit Office concerning him kept at the Town Hall or at the District Collector's office will be delivered to him against a receipt and that if this is not done before the expiry of a period of one month, the notification of the said decision will be considered as having been made to him in person with all the legal consequences that this entails.
The receipt and the reports provided for by the present article and if necessary the certificate of the authorities asserting the display during a month must be communicated without delay to the Secretary of the Office.
Art. 132. - The notification of the decisions of the Office to the persons declared as de facto accountants is addressed by the Secretary of the Office to the last known domicile.
The secretary of the Office may ask, for this purpose, for all necessary information from the Mayor or the District Collector at the place of de facto management, and if necessary, from the authorities under whom the factual accountant worked.
If, following a refusal of the de facto accountant, or for any other reason; the notification cannot reach the addressee, this notification is made at the last known domicile in accordance with the procedure provided for in articles 130 and 131.
If the de facto accountant is a functioning Mayor, the Supervisory authority ensures at the request of the President of the Office, that the notification of the decision is conveyed to him.
Art. 133. - When the decisions are made on the accounts of the de facto accountants, of the territorial local authorities and public establishments, they are also notified to the supervisory authorities and to the legal representatives of the said de facto accountants, local authorities and establishments.
All the notifications and communications provided for in the present chapter are sent by registered post with acknowledgement due.
Art. 134. - The orders are submitted, under the conditions of the present chapter, to the jurisdiction of the Office which has every power to punish the management failures committed against the State, territorial local authorities, public establishments or bodies subject to the audit of the Office.
In this capacity the following are answerable to the Audit Office :
- every official of the State or the government, every member of a ministerial office, every official of a territorial local authority;
- every representative, administrator or official of the bodies which are subjected to the audit of the Audit Office;
- all those who exercise in fact, the functions of the persons designated above.
Art. 135. - Will be liable to a minimum fine not below 20,000 francs and whose maximum can go up to the amount of his gross annual salary on the date when the irregularity or infraction was committed, any person indicated in article 134 above :
- who will have embarked on an expense without adhering to the rules applicable in the matter of financial audit relating to the undertaking of expenses;
- who, to dissimulate an excess of expenditure with relation to the credit, will have ascribed or got ascribed irregularly an expense;
- who will have entered into expenses without having the power or without having received the delegation of signature to that effect;
- who, apart from the preceding cases, will have committed an infringement of the rules concerning the manner of executing the receipts and the expenses of the State or of the local authorities, establishments or bodies subject to the audit of the Office or to the management of the goods belonging to them or who, entrusted with the supervision of the said local authorities, of the said establishments or bodies will have given his approval for the decisions being censured;
- who will have deliberately omitted to adhere to the statements that he is expected to supply to the fiscal authorities or will have deliberately supplied inaccurate or incomplete statements.
Art. 136. - Any person, referred to in article 135 above who, in the exercise of his functions or attributions would have, out of ignorance of his obligations, procured to another person an unjustified pecuniary advantage or an advantage in kind, leading to a harm to the Treasury, the local authority or the interested body, or will have attempted to obtain such an advantage will be liable to a fine whose amount cannot be inferior to 100,000 francs and whose maximum could be the double of the amount of the gross annual remuneration or salary that he was entitled to on the date of the infraction.
Art. 137. - When the persons referred to in the preceding articles do not receive a remuneration which is in the nature of a salary, the maximum of the fine may reach the amount of the annual gross salary allocated, at the time the acts were committed, to officials entitled to the highest grade in the category.
Art. 138. - The fines imposed in accordance with the provisions of the present chapter, can be added on to each other only within the limit of the maximum applicable by virtue of articles 136 and 137 above.
When the acts constitute, at the same time, a de facto management, they remain subject to the above provisions concerning the said managements.
Art. 139. - Those who perform the acts referred to in articles 135 and 136 above are not liable to any punishment if they can plead that a prior written order was given following a specific report concerning each matter by their superior in the hierarchy or by the person legally empowered to give such an order in which case the responsibility will fall on these, or by the competent minister personally.
Art. 140. new (Law no. 97-243 of 24/5/97) - The Office gives a ruling, either on its own, or at the request of the State Prosecution seized of it by the competent Minister, on the actions noted against the persons implicated.
The President of the Office may, in every case, order a prior administrative investigation when this has not yet taken place.
Art. 141.- In every case, the President of the Office appoints a judge to be entrusted with the investigation. This investigation can be opened against an unnamed person.
This judge avails of the powers provided under article 93 of the present law. He proceeds to make an investigation in accordance with the rules provided in the Penal Procedure Code for the investigating judge, on the expiry of the release of the arrest warrants. The duration of the committal orders which he may, if necessary, pass against the person incriminated is restricted to forty-eight hours. He cannot pass a committal order more than once against the same person.
Art. 142. - Right from the moment of opening an investigation, the person involved, informed by registered letter with acknowledgement due, can seek the help of a representative of his choice.
Art. 143. - When the investigation is over, the President sends a copy of the report and of the documents of the file to the ministers under whom the incriminated official works or worked and to the Minister of Finance who must give their opinion.
Within a period of one month from the date of receipt by the minister of the above documents, the file, whether supplemented or not by the opinions of the said ministers, is communicated to a judge appointed as the rapporteur by the President and given the responsibility of presenting it to the Office.
The Office, sitting as a judgement group under the conditions defined in article 91 of the present law, decides whether there are grounds or not for maintaining the matter. The decision for closing the matter is notified to the ministers under whom the concerned person works or worked.
Art. 144. - If the Office decides to maintain the matter, a copy of its decision accompanied by a copy of the complete file of the matter is sent, under registered letter acknowledgement due, to the incriminated official.
This latter avails of one month, from the date of receipt of the copy of the file, to produce before the Office a memorandum written either by himself or by the representative of his choice.
The decision mentions the accusations maintained, on a provisional basis, against the incriminated official. It mentions moreover that, if he fails to reply within the time period granted to him, the concerned person is considered as having accepted the conclusions that have been notified to him and that, therefore the Office will give its final ruling, by right, after the expiry of this time period.
Art. 145. - After examining the said memorandum or after the expiry of the above referred to time period in the event of a silence on the part of the concerned person, the Office, sitting as earlier, gives a final ruling.
The final decision is notified to the concerned person, to the ministers under whom he works or worked, and if necessary, to the authorities who have seized the Office of the matter.
It is communicated to the President of the Republic and to the Speaker of the National Assembly.
Art. 146. - When several persons are involved in the same matter, their case may be investigated and judged simultaneously and form the subject of a single decision.
Art. 147. new (Law no. 97-243 of 25/4/97) - the proceedings before the Office are not an obstacle to the carrying out of penal action.
If the investigation brings out facts liable to constitute offences or crimes, the President informs the Attorney general of the Supreme Court who decides on what further action is to be taken.
Art. 148. - The final decisions of the Office are legally binding only on the expiry of the time period for lodging an appeal as provided for in article 122 of the present law.
They may form the subject of an appeal for revision if some new facts occur or if some documents are discovered of a nature such as to establish that the person concerned is cleared of any responsibility.
Art. 149. - The infractions defined in articles 135 and 136 above can no longer be the subject of proceedings before the Office after the expiry of a period of six years has elapsed from the day that they were committed.
Art. 150. - If during the examination of the accounts, the Office notes some irregularities committed by the administrators, or notes some lacunae in the control or deficiencies in the administrative and accountancy organisation, the President of the Office, through the President of the Supreme Court, informs the concerned ministers or the supervisory authorities and asks them to bring to the knowledge of the Office the measures taken to put an end to the incorrect procedures being criticized.
Certified copies of the interim rulings to this effect are communicated to the Minister of Finance.
Art. 151. - The ministers are expected to respond within three months to the interim rulings of the Office. The latter sends a copy of the replies received to the Minister of Finance.
The President of the Supreme Court brings to the knowledge of the President of the Republic the infractions to these provisions and points out to him if necessary the matters concerning which the interim rulings have not received a satisfactory follow-up.
Art. 152. - Administrative irregularities of minor importance may form the subject of notes by the President of the Office, addressed to the Directors or heads of departments or to the concerned authorities.
If no reply is received or if the reply is not a satisfactory one, the question raised may be brought to the knowledge of the concerned minister, through a provisional order.
Art. 153. - In the event that it notes some mistakes or negligence which have compromised the financial interests of the State, the body or the local authority being audited, the Office may, in every case, ask for disciplinary action to be taken against those who have committed these mistakes or acts of negligence. The competent authority must, within a period of six months, bring to the knowledge of the President of the Office the decision that has been taken.
Art. 154. - The general declaration of conformity between the individual accounts of the accountants and the general accounts of the State, as well as the annexes relating to the general budget of investment expenses and to the accounts outside of the budget as foreseen by the provisions concerning the finance laws are drawn up by the Audit Office on the basis of the documents established to this effect by the competent financial services.
The declaration of conformity and its annexes accompanied by a report established by the Audit Office on the implementation of the finance laws are submitted to the secretariat of the National Assembly at the same time as the draft ruling.
Art. 155. - The enterprises and establishments referred to in article 90, are audited by the Audit Office under the conditions fixed by the present section.
Art. 156. - The list of the enterprises, establishments and companies referred to in article 90, drawn up following a decision of the Ministry of Finance, is notified to the Audit Office by the Ministry of Finance. This list has an enunciative quality.
Art. 157. - The accounts and balance sheets accompanied by the statements detailing the profits and losses accounts as well as the operational account and all accountancy documents which are required to be maintained as per the rules specific to the enterprise in question, are communicated to the Audit Office after having been drawn up by the Board of Directors or the body that serves as such.
The Office also receives the reports of the auditors, the government representatives and the accountants in charge of the technical, administrative or financial audit as well as the report of activities drawn up by the Board of Directors or the body that functions as such when this report is required to be produced by the rules specific to the legal entity being audited.
Art. 158. - Barring legislative or statutory provisions to the contrary the communication of these documents must take place within four months following the end of the financial year. The concerned ministers fix, if required, any further date limit which could in exceptional cases be required by certain enterprises for the presentation of their accounts.
Art. 159. - The aforementioned establishments and companies are expected to keep the supporting documents of their operations at the disposal of the Office for the audits which always take place on the spot.
Art. 160. - The Audit Office proceeds to an examination of the statements of accounts and documents in accordance with the procedure defined in the articles hereafter and draws all conclusions on the financial results and the quality of the management.
Art. 161. - The report drawn up by the judge entrusted with the investigation is communicated, by the President of the Office, to the director of the enterprise who replies to the observations within the period of one month through a written memorandum, supported if necessary by justifications.
The Office then draws up a final report in which it expresses its opinion on the authenticity and sincerity of the accounts and statements, proposes if necessary, the rectifications that it feels need to be made and notes its opinion on the quality of the commercial and financial management of the enterprise.
It points out eventually the modifications that it considers as being required to be made in the structure or the organisation of these enterprises.
The Office, after having drawn up the report referred to in the earlier paragraph and having fixed its conclusions, brings this document to the knowledge of the Minister of Finance and the ministry under which the technical activity of the enterprise being audited falls.
Art. 162. - To draw up the report, the Office makes rulings while sitting in its status as the judgement group provided for in article 91 of the present law.
It may however call on the services on a consultative basis, of :
- a representative of the ministry under whose jurisdiction the technical activity of the enterprise whose accounts are being audited falls;
- the government representative and eventually the official entrusted with the financial audit of this enterprise;
- a representative of the Minister for Planning.
The above mentioned representatives are summoned by the President of the Office to attend the meeting.
Art. 163. - The observations of the Office are communicated to the concerned authorities in accordance with the provisions of articles 151 to 153 above.
Art. 164. - The audit of provident fund organisations referred to in article 90 above relates to the overall activities conducted by these organisations considered in their different aspects as well as to the results obtained.
Art. 165. - These organisations present to the Office a copy of their accounts drawn up in accordance with the accountancy rules specific to each one of them, accompanied by the budgets or statements of forecasts as well as all documents notably of cash reports, bank reports, portfolio reports.
Barring legislative or statutory provisions to the contrary, this presentation takes place within four months following the end of the financial year.
The authorities under whose jurisdiction they fall fix, if required, supplementary periods which, in exceptional cases, may be necessary for some organisations for the production of their accounts.
Art. 166. - These documents are accompanied by reports drawn up by the auditors, the Audit Commission or the officials entrusted with the conduct of the technical, administrative or financial audit as well as the annual report of activities approved by the Board of Directors, whenever these reports are required under the rules specific to each organisation.
Art. 167. - The supporting documents of receipts and expenses are preserved in the head office of the organisation and kept at the disposal of the Office for the audits which are always conducted on the spot.
Art. 168. - The report drawn up by the rapporteur is communicated by the President of the Court to the Director of the audited organisation, which replies to the observations in a period of one month through a written memorandum approved by the President of the Board of Directors and supported by the necessary justifications.
To draw up the report, the Office gives a ruling in its status as a judgement group. Its observations are communicated to the supervisory authorities.
Art. 169. - The organisations referred to in article 90 above, whose management is not subjected to the rules of public accountancy may, whatever be their legal status and the form of the aid (subsidies, parafiscal taxes, etc. ) which are allocated to them by the State, a local authority, a public establishment or any other government agency, are subject to audit by the Audit Office.
The aid forms the subject of a utilisation account kept at the disposal of the Office.
If this aid exceeds 50% of the total resources of the beneficiary organisation, the audit is conducted on the overall management. In the contrary event, the audit is restricted to the utilisation account.
These provisions are applicable to the organisations receiving the aid of other bodies which are themselves subjected to the audit of the Audit Office.
Art. 170. - The audit of organisations availing of a financial aid is conducted on the spot, on sight of the papers and accounting documents which the representatives of the aforementioned organisations are expected to present to the investigating judge.
The procedure defined in article 168 of the present law is applicable in the matter.
The observations of the Office are addressed to the concerned minister and to the supervisory authorities through interim rulings or a note from the President.
Art. 171. - An annual report is sent to the President of the Republic on the progress of the procedures being dealt with by the judicial and administrative Chambers and the time periods of their implementation.
A statement of the matters which have not been heard, with an indication for each of these of the date of hearing and of the Chamber seized of the matter is joined to the report.
The President of the Supreme Court can call the attention of the President of the Republic to the findings arrived at by the Court at the time of examination of the appeals and inform him of the improvements that appear to him to be of a nature as to constitute a remedy for the difficulties noted.
The Audit Office draws up annually a report on the implementation of the finance laws accompanying the general declaration of conformity; This report is submitted to the secretariat of the National Assembly at the same time as the draft rulings.
Every year, the Audit Office examines the observations made on the occasion of the various verifications conducted during the preceding year, and formulates, with those that it maintains, a report which is submitted to the President of the Republic and to the Speaker of the National Assembly by the President of the Supreme Court.
The Audit Office also addresses to the President of the Republic and to the President of the National Assembly, through the President of the Supreme Court, every two years, an overall report on the activity, the management and the results obtained by the enterprise's audited by it.
The Audit Office brings out in this report, its observations and spells out the lessons that can be drawn from it.
These various reports are published in the Official Gazette, barring a notification to the contrary by the President of the Republic.
Art. 172. new (Law no. 97-243 of 25/4/97) - The Supreme Court enjoys financial autonomy.
The budget of the Supreme Court is the subject of proposals prepared by its financial administration and inscribed in the draft finance law under the heading of the Supreme Court.
The President of the Supreme Court exercises the functions of a person authorized to pass accounts under the conditions laid down by the rules of accountancy.
The Treasurer of the Supreme Court exercises the functions of an accountant under conditions laid down by the rules of Accountancy.
Art. 173. - The officials in service in the Audit Office, during the promulgation of the present law, who hold a law degree or a degree in economics and who exercise functions that are normally allotted to auditors may, at their request be appointed by decree as trainee auditors in the meaning of article 10 above.
The time spent in exercising the functions allotted to auditors prior to the present law, is to be deducted from the duration of the course provided for in article 10.
Art. 174. - The mention of the Secretary general of the Supreme Court is repealed in article 6 of the law no. 61-155 of 18 May 1961, relating to organisation of the judiciary.
The Secretary general and the assistant Secretary general of the Supreme Court conserve their rank in the protocol to which their classification in the judicial hierarchy entitles them.
Art. 175. - The law 78-663 of 5 August 1978 determining the composition, the organisation and the functioning of the Supreme Court, is repealed.
