2024-04-23 08:42:34
What is the residence ban?
It is a prohibition made to the penal agent to appear in certain places determined by the jurisdiction and the list of which is notified to him (for example, place of commission of the offense, place of residence of the victim, place where he could meet his accomplices, etc.).
Lstay ban includes, furthermore, monitoring and assistance measures. The list of prohibited places as well as the surveillance and assistance measures may be modified by the sentence enforcement judge, under the conditions set by the code of criminal procedure.
The ban on residence cannot exceed a period of 10 years in the event of a conviction for a crime and a period of 5 years in the event of a conviction for a misdemeanor (article 57 of the Penal Code).
The courts may, by reasoned decision, reduce the duration and territorial scope of this sentence or even grant total exemption. In the event of an omission and before the exercise or in the absence of an effective remedy, they may rule ex officio at the request of the public prosecutor, at any time until the request for expiration of the main sentence. The residence ban takes effect from the date on which the decision ordering it becomes final.
Any violation of this prohibition is punishable by imprisonment of 3 months to 3 years (article 58 of the Penal Code).
The stay ban can be remitted or reduced by pardon. The prescription of the sentence does not relieve the convicted person of the residence ban to which he is subject (article 59 of the Penal Code).
• The ban on the territory:
It is articles 60 to 62 of the Penal Code which deal with the question: The territorial ban is that imposed on the foreign convict from entering and remaining in the territory of the Republic after the execution of his sentence or his expulsion.
When provided for by law, the sentence of exclusion from Guinean territory may be imposed permanently or for a period of 10 years at most against any foreigner guilty of a crime or misdemeanor.
When the exclusion from the territory accompanies a custodial sentence without suspension, its application is suspended for the duration of the sentence.
The penalty of exclusion from Guinean territory cannot be imposed against a foreigner who proves having resided regularly in the territory for more than 20 years, a foreigner married to a Guinean citizen for at least 2 years as well as a foreigner who is a father or mother of a minor child residing in Guinea.
With regard to the provisions of article 63 of the Penal Code: When incurred as an additional penalty for a crime or misdemeanor, the ban on holding a public office or carrying out a professional or social activity is either definitive or temporary; in the latter case, it cannot exceed a duration of 5 years.
The prohibition of exercising a commercial or industrial profession, of directing, administering, managing or controlling in any capacity, directly or indirectly, for one’s own account or on behalf of others, a commercial or industrial enterprise or a commercial company is either permanent or temporary; in the latter case, it cannot exceed a duration of 10 years.
This prohibition does not apply to the exercise of an elective mandate or union responsibilities.
It is also not applicable in matters of press offenses.
The ban on carrying out a professional or social activity may relate either to the professional or social activity in the exercise of which or on the occasion of which the offense was committed, or to any other defined professional or social activity. by the law which punishes the offense.
The additional penalty of confiscation is incurred in the cases provided for by law or regulation. It is also incurred automatically for crimes and for offenses punishable by a prison sentence of more than 1 year, with the exception of press offenses.
Confiscation covers all movable or immovable property, whatever its nature, divided or undivided, which was used to commit the offense or which was intended to commit it and of which the convicted person is the owner or, subject to the rights of the owner in good faith, of which he has free disposal.
It also covers all property which is the direct or indirect object or product of the offense, with the exception of property liable to be returned to the victim.
If the proceeds of the offense have been mixed with funds of lawful origin for the acquisition of one or more property, the confiscation may only relate to these property up to the estimated value of this product.
Confiscation may, in addition, relate to any movable or immovable property determined by the law punishing the offense.
If it is a crime or misdemeanor punishable by at least 5 years of imprisonment and having provided direct or indirect profit, the confiscation also concerns movable or immovable property, whatever it may be. the nature, divided or undivided, belonging to the convicted person when the latter, given the opportunity to explain the property whose confiscation is envisaged, has not been able to justify its origin.
When the law punishing the crime or misdemeanor so provides, confiscation may also relate to all or part of the property belonging to the convicted person, whatever its nature, movable or immovable, divided or undivided (article 64 of the Penal Code) .
Confiscation is mandatory for objects classified as dangerous or harmful by law or regulation, or whose possession is unlawful, whether or not these goods are the property of the convicted person.
When the confiscated thing has not been seized or cannot be represented, confiscation is ordered in exchange for value. For the recovery of the sum representing the value of the confiscated item, the provisions relating to judicial coercion are applicable.
The confiscated thing is, unless there is a specific provision providing for its destruction or attribution, vested in the State, but it remains encumbered, up to its value, with real rights lawfully constituted for the benefit of third parties.
When the thing confiscated is a vehicle which has not been seized or impounded for the purpose of the procedure, the convicted person must, upon the injunction given to him by the public prosecutor, return this vehicle to the service or to the the body responsible for its destruction or alienation (article 65 of the Penal Code).
The penalty for displaying the decision handed down or disseminating it is the responsibility of the convicted person. The display or distribution costs recovered against the latter cannot, however, exceed the maximum fine incurred.
The court may order the display or dissemination of all or part of the decision, or of a press release informing the public of the reasons and its operative part.
The decision is disseminated in the Official Journal of the Republic or several other press publications or one or more electronic public communication services. The publications or electronic public communication services responsible for this dissemination are designated by the court. They cannot oppose this distribution (article 66 of the Penal Code).
Mamadou Alioune DRAMA – Old Magistrat