In the midst of a lawsuit, the State of Burkina Faso and the Essakane mine have opted for an out-of-court settlement in the fine coal affair. The out-of-court settlement of the case is a procedure that is recognised in Law 028/2017/AN on the organisation of the marketing of gold and precious materials. This law provides for the right to compromise as “The prerogative recognised to the mining administration to propose to the perpetrators of the offences provided for in this law, the amicable settlement by abandoning criminal proceedings or by waiving the enforcement of a court decision in return for the payment of a sum of money, the amount of which it itself fixes”. If this out-of-court settlement is reached, Essakane will no longer be prosecuted. However, under the law, the settlement presupposes that Essakane first acknowledges that it is “the perpetrator of an offence under this law”. The public prosecutor has not opposed this procedure provided for by law. This out-of-court settlement will entail the payment of money by the mine to the State and the return to Essakane of its entire cargo. However, if the amicable settlement fails, Essakane will be referred to the Faso prosecutor and the trial will continue.
Will the State’s interests be protected in this transaction?
As a reminder, the trial on this case, which dates back to 2018, actually began in early October 2023. The Essakane mine, which exported fine coal in order to extract gold from it, is accused of fraud, forgery and other offences.
Extracts from the law concerning the transaction;
Article 58: For the settlement of any trial involving gold or any other precious substance referred to the National Gold Fraud Brigade, the administration may grant the offender the benefit of a transaction.
The transaction may take place before or after the final judgement. In the latter case, the custodial sentence remains in force.
The right to settle is exercised by the Minister in charge of mines.
However, by delegation from the Minister in charge of mines, the Director General of the National Gold Anti-Fraud Brigade may settle with the offender when the offence involves sums or objects the value of which is determined by regulation.
Article 59: Completion of the settlement puts an end to prosecution by the administration. For holders of mining permits, and beneficiaries of artisanal mining authorisations or licences, the gold, other precious substances and equipment that have been seized are returned to them against discharge.
For other offenders, the intermediation of licence holders is required.
Failing this, the corpus delicti and the material and technical resources used to commit the offence will be forfeited to the State.
Article 60: If the settlement fails, the offender is referred to the competent Public Prosecutor for prosecution.
The file containing the official report, a sample of the gold seized, a copy of the National Geological Survey’s control sheet, other equipment and the means of transport used to commit the offence are also forwarded to the Public Prosecutor.
The first hearing in the trial takes place within a maximum of 15 days from the date of transmission of the file to the Public Prosecutor. If necessary, National Gold Anti-Fraud Brigade may, in collaboration with AJT, be assisted by lawyers and use the services of any other legal auxiliary.
If the accused is convicted, the objects seized and mentioned in the report attached to the proceedings are confiscated and returned to BNAF for sale.
Pierre Balma
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