Concussion
LexInter | June 22, 2015 | 0 Comments

Concussion

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

DISMISSAL of the appeals lodged by 1o X …, against the judgment of the indictment chamber of the Grenoble Court of Appeal, dated February 4, 1997, which, in the information followed against him, counts of complicity and concealment of misuse of corporate assets and breach of trust, passive corruption and concussion, partially granted its requests for annulment of procedural documents; 2 ° X …, Y …, against the judgment of the Grenoble Court of Appeal, correctional chamber, dated April 7, 1999, which condemned the first, for complicity and concealment of abuse of property social security and breach of trust, fraudulent participation in a prohibited agreement, embezzlement and passive corruption, 2 years imprisonment including 1 year suspended sentence, 1,500,000 francs fine and 5 years ban on the right to vote and of
THE COURTYARD,

Joining the appeals because of the relatedness;

I. On the appeal of Y …:

Whereas no means are produced in support of this appeal;

II. On the appeals of X …;

Having regard to the brief produced;

A. On the appeal against the judgment of the indictments chamber of 4 February 1997:

On the first ground of appeal, alleging violation of articles 173, 206, 80, 81, 114 of the Code of Criminal Procedure, 293 of the same code, excess of power, lack of legal basis, violation of the rights of the defense:

“in that the judgment of the indictment chamber of February 4, 1997 rejected the request of X … tending to the nullity of acts of the procedure, and, after having seized ex officio of the nullities invoked by the Attorney General, said there were no nullities;

“then, on the one hand, that among the acts argued of nullity by the public prosecutor and which the indictment chamber declares to have seized ex officio on the basis of article 206 of the Code of Criminal Procedure, there were series of acts carried out by the examining magistrate between January 17, 1995 and January 31, 1995, comprising letters rogatory ordering telephone tapping, searches and interviews of persons already indicted in proceedings before him, but concerning new facts relating to X …, on which the public prosecutor’s office was initiating a preliminary investigation, and which were not the subject of a supplementary indictment until February 8, 1995; only the chamber of accusation which, although expressly seized ofoffice of nullities invoked by the public prosecutor, did not rule on the validity of these acts executed outside the referral, specified by the public prosecutor’s office, nor on the validity of the subsequent procedure, thus ignored the extent of its own powers, and sanctioned the excess of power committed by the examining magistrate;

“then, on the other hand, that letters rogatory, telephone tapping and searches are coercive acts, prohibited to the examining magistrate who is not seized of the facts that these acts are intended to demonstrate, even in case emergency; that the investigating judge therefore exceeded his powers, unimportant that some of these coercive acts did not target X …, which, moreover, was the subject of wiretapping in dispute;

would have pleaded in his favor; that if a letter rogatory and its acts of execution are not necessarily placed in the file during this execution, the loyalty which must govern any instruction necessarily requires that the examining magistrate attach to the file, as soon as possible, all the documents related thereto, and in particular its own letters rogatory and their implementing acts; that any unjustified delay is then necessarily analyzed either as the concealment of a part of the file to which the defense nevertheless has the right to access during the investigation, or as the development of a parallel file, perfectly prohibited in the investigating magistrate; that thus, the room of

Whereas, on the one hand, that the applicant is without quality to contest the regularity of letters rogatory delivered by the examining magistrate ordering hearings and searches which relate to other persons indicted;

Whereas, on the other hand, it follows from the contested judgment and from the procedural documents that, in the context of an information directed against Z …, deputy mayor of Grenoble, in particular the head of corruption, company executives questioned X …, notary, mayor of Huez-en-Oisans, vice-president of the general council, in charge of equipment, president of the tender commission, likely to have participated in the criminal acts; that the investigating judges seized ordered various measures and in particular, by letter rogatory of January 31, 1995, the wiretaps of the line of X …, which were carried out from February 1 to 28, 1995, in part before the issue , on February 8, 1995, of a supplementary indictment against the latter;

Whereas, to say that these wiretaps are regular, the indictment chamber notes that they were ordered and carried out under the conditions required by articles 100 et seq. Of the Code of Criminal Procedure;

That it notes that, although the reports noting these wiretaps were not attached to the proceedings until September 1995, no irregularity resulted, since the law does not require that during the execution of a rogatory commission, a copy of this document is in the file, that the date of arrival of the minutes at the office of the investigating judges is not known and that the rights of the defense of X … have not been harmed, the latter having been able to challenge the regularity of acts and no questioning having made mention of the results, moreover negative, of this measure;

Whereas in the state of these reasons alone, and since the telephone tapping was justified by the search for evidence of the offenses before the examining magistrate, the indictment chamber did not disregard any of the texts invoked ;

From where it follows that the plea, partly inadmissible and unfounded for the remainder, must be rejected;

B. On the appeal of X … against the judgment of the Court of Appeal of April 7, 1999;

Whereas it results from the contested judgment that anomalies marked the award of the bituminous mixes contracts of the department of Isère in particular for the year 1994; that these contracts were awarded by the General Council according to the “contract to order” procedure, annual and renewable on restricted call for tenders, involving a prior selection of candidates admitted to submit a tender by the tender committee who examined the proposals of the selected candidates and freely chose the one they considered most interesting; that several entrepreneurs met on January 10, 1994, that is, the day before the submission of tenders, to finalize an agreement on prices in order to share out, by maintaining the positions acquired,

Whereas the heads of companies concerned have been invited to pay sums or provide benefits to X … such as the payment of pleasure trips, hunting costs in Poland and Czechoslovakia, promotional invoices the Alpe-d’Huez resort, or payments to the Alpe-d’Huez tourist office (OTAH), under penalty of not obtaining contracts; that the agreed consideration for these advantages was the assurance given by X …, because of his functions at the General Council and the tender commission, to promote through his personal action the renewal of the agreement between entrepreneurs in the departmental asphalt mixes market and the perpetuation of its effects; that X … benefited, from 1990 to 1995, from

Whereas, moreover, that X …, in his capacity as mayor of Huez-en-Oisans, in the absence of any deliberation by the municipal council, demanded from real estate developers a sum of 400 francs per housing built , as a tax, the proceeds of which were paid into an OTAH account; that this tax brought back from 1985 to 1994 the sum of 505 600 francs;

Finally, at the request of X …, the president of association A … reimbursed him for the costs of private stays in Parisian hotels for a total amount of 281,181 francs for the period 1983 -1994; that in addition, the leaders of the association received undue “premiums” of 2 981 817 francs paid by checks drawn on an account of the association available to X …, which annually fixed the amount of these premiums, although he has not been given any mandate in this regard;

Whereas X … was pursued and condemned for complicity and concealment of abuse of social goods and breach of trust, fraudulent participation in a prohibited agreement, concussion and passive corruption;

In this state;

On the second ground of appeal, alleging violation of Articles 6.1 of the European Convention on Human Rights, 2.1, of Additional Protocol No.7 to the European Convention on Human Rights, violation of Article 520 of the Code of Criminal Procedure by false application, excess of power and violation of the rights of the defense:

“in that the judgment attacked after having set aside the judgment referred to the case and judged it on the merits, by entering the process of conviction in particular against X …;

“on the grounds that, notwithstanding the annulment of the judgment due to the presence, in the composition of the court, of two magistrates whose participation in the judgment of the case objectively justifies the fears of a lack of impartiality, the court regularly seized by order of reference remained competent to hear the case; that the court of appeal has the obligation to raise the dispute;

“whereas evocation is impossible when the annulment of the first instance decision is caused by an irregularity in the composition of the court which issued it, due to a lack of objective impartiality of this court; that in effect , making evocation compulsory in such a case amounts to doubly penalizing the defense which, not having been able to benefit from an impartial tribunal within the meaning of Article 6 of the aforementioned Convention, finds itself on the occasion of this private violation of the double degree of jurisdiction enshrined in Article 2-1 of additional protocol n ° 7 to the same Convention; that in such a case, the nullity vitiating the first instance decision must be assimilated to a nullity affecting jurisdiction, prohibiting the appellate court to evoke “;

Whereas by evoking and ruling on the merits after having set aside the judgment undertaken due to the irregular composition of the correctional court, the court of appeal made the exact application of article 520 of the Code of Criminal Procedure, of which the provisions are not restrictive, and has not disregarded the treaty provisions invoked, the ratification of which was subject to reservations by France;

From which it follows that the means could not be admitted;

On the third ground of cassation, taken from the violation of articles 7 and 17 of the ordinance of December 1, 1986, of article 121-1 of the Penal Code, of article 593 of the Code of penal procedure, of the principle ” non bis in idem “, violation of the rights of the defense:

“in that the judgment under appeal declared X … guilty of participation in anti-competitive practices;

“on the grounds that he was aware of the existence of an agreement between the companies concerned for the award in 1994 of the bituminous mixes contract in the department of Isère, an agreement renewed year after year; has refrained from taking acts in its power to protect the public community from the effects of this agreement; that it has added an eleventh sector, attributed to companies of the CGE group; that the attribution to X …, by the companies interested, of various advantages granted in execution of a pact of corruption constituted the price of its participation;

“then, on the one hand, that no material fact constituting an active participation of X … in the creation and maintenance of the cartel is characterized by the judgment contested against it, this participation does not which may result from the simple “knowledge” that he would have had of an old agreement, nor from the fact that he would have refrained from denouncing it; that the mere fact of having in the exercise of his functions created an eleventh sector market to be awarded is not sufficient, on its own, to characterize a positive act of creation of a cartel, the sectorization of the market being recognized by the trial judges as a necessity inherent in the supply of the hot and heavy bitumens in question; that thus, no positive fact of participation is characterized against X …;

“then, on the other hand, that the same facts cannot be prosecuted under two distinct qualifications; that the court of appeal violated the principle” non bis in idem “by holding that the wrongful abstention of X …, through the allocation of various advantages would have been the result of corruption “;

On the fourth ground of appeal, alleging violation of new articles 433-1, 177, 178 old of the Penal Code, 593 of the Code of Criminal Procedure, lack of reasons, lack of legal basis:

“in that the judgment under appeal declared X … guilty of passive corruption;

“then, on the one hand, that in none of its grounds does the Court of Appeal characterize the existence of a prior agreement determining the acts of the office required of X …, and the correlative payments made by the heads of public works companies; that the existence of a pact between the heads of companies themselves on an agreement could not replace the requirement to establish a pact between the corruptor and the corrupted, implying reciprocity actions of both;

“then, on the other hand, that the court of appeal could not without contradiction consider that the corruption would have consisted for X … in refraining from denouncing the renewal, in 1994, of the agreement created between them by the heads of public works companies, with regard to the bituminous mixes market in the department, and note from the latter payments and benefits ranging from 1989 to 1994; that moreover, by refraining from saying and to investigate whether the alleged corruptive pact would have existed before these payments, the court of appeal did not give a legal basis for its decision;

“then moreover that the act alleged against X … would have consisted in refraining from denouncing an agreement between various public works companies for the renewal in 1994 of a road works contract; that the Court of Appeal has already qualified these acts as participation in the elaboration of the illegal cartel and violated the principle “non bis in idem”;

“even though the mere fact, supposing it to be proven, of announcing that a percentage would be levied on each company, a percentage depending on the contract obtained and applied indifferently regardless of the winning company, does not constitute a corruption offense since it is exclusive of a link between the required payment and the award of the contract (s), that is to say the act of the function, even if these contracts have been distributed by the companies between them; that thus the offense of corruption is not characterized;

“then moreover that by refraining from investigating whether the decisions on the award of contracts had been taken collectively, as argued by X …, by the committee for opening the tenders, in the light of elements which, if they were to reveal an agreement, were necessarily known to all the members of this commission (in particular on the allegedly unique structure of each person’s bids) and if, consequently, it really fell within the functions of X … of to carry out these attributions or if it had sought to influence the decisions within the commission, the court of appeal which expressly recognizes (p. 38) that X … did not have the power to oust a company market, has not given a legal basis for its decision;

“while finally it follows from the contested judgment itself (p. 28) that the sponsorship agreements between the companies and the Alpe-d’Huez tourist office were not illegal, in particular with regard to tax law; that such agreements which allow the activities of a public authority to be subsidized in a legal and transparent manner do not legally call for a direct compensation for the benefit of companies, which remain free to operate in an advertising manner more or less displayed the circumstance of their financial participation in the activities of the office; that the mere fact that the benefits of these contracts were little exploited or considered unprofitable by the companies was not susceptible to characterize on the part of X … thedemand for undue services and therefore the offense of passive corruption against him “;

The means being united;

On the third plea, taken in its second part and on the fourth plea, taken in its third part:

Whereas, the applicant has no interest in reproaching the Court of Appeal for having declared him guilty of the same facts under several criminal qualifications, comprising moreover different constitutive elements, since, in accordance with articles 5 old and 132- 3 new Criminal Code, only one sentence was pronounced;

On the third plea, taken in its other branches;

Whereas, after having described the mechanism of the agreement concluded by contractors in order to share, by maintaining acquired positions and excluding competitors, the departmental markets for bituminous mixes for the year 1994, the judges stated, in basing itself on the declarations of the heads of company, that X … exerted a personal role and determining in the conception, the organization and the implementation of the agreement;

That in this state, the court of appeal characterized the offense of participation in anticompetitive practices of which it declared the defendant guilty;

On the fourth plea, taken in its other branches:

Whereas, to declare X … guilty of passive corruption, the Court of Appeal held that the latter, because of his functions in the General Council and the Tender Commission, was endowed with significant powers in the various stages in the devolution of the department’s public works contracts, both because of its participation in the choice of companies to be awarded the contracts as well as in their preparation and execution; that the judges also note that X …, since 1988, required of certain road works companies, candidates for the attribution of a market, the direct or indirect payment of sums of money or the assumption of responsibility of various personal expenses or expenses intended for the promotion of the Alpe-d’Huez resort, the amount of the contribution having been fixed, according to some entrepreneurs, by a percentage of the market; that they retain that the counterpart agreed and actually obtained consisted in the personal action of X … in the renewal of the agreement between the heads of company on the attribution of the markets and the perpetuation of their effects; they add that the gifts made to X … had a purely private destination or were used with a view to ensuring his re-election or promoting the fulfillment of his personal ambitions; that they conclude that the various advantages granted, evaluated definitively at 5,356,077 francs, proceeded from a pact of corruption; in the renewal of the agreement between business leaders on the awarding of contracts and the perpetuation of their effects; they add that the gifts made to X … had a purely private destination or were used with a view to ensuring his re-election or promoting the fulfillment of his personal ambitions; that they conclude that the various advantages granted, evaluated definitively at 5,356,077 francs, proceeded from a pact of corruption; in the renewal of the agreement between business leaders on the awarding of contracts and the perpetuation of their effects; they add that the gifts made to X … had a purely private destination or were used with a view to ensuring his re-election or promoting the fulfillment of his personal ambitions; that they conclude that the various advantages granted, evaluated definitively at 5,356,077 francs, proceeded from a pact of corruption;

Whereas, to rule out the defense invoked by X … based on the collegial nature of the decisions of the tender committee, the second-degree court emphasizes that the applications of companies to restricted tenders were predetermined and combined for a long time and that the files presented to the members of the commission were established in such a way that the choice was self-evident;

Whereas in this state, the court of appeal characterized in all its constituent elements the offense of which it declared the defendant guilty;

That, consequently, the means must be rejected;

On the fifth ground of cassation, taken from the violation of new articles 21-7, 59 and 60 old of the Penal Code, 425.4 ° and 437.3 ° of the law of July 24, 1966, 593 of the Code of Criminal Procedure, lack of reasons:

“in that the judgment under appeal declared X … guilty of complicity in the abuse of corporate assets committed by MB … (company C … for 1.2 million francs), and by Joseph D …, Jean-Claude D … and E … (572 956 francs company D …);

“on the grounds that X … gave instructions to commit these offenses and made available to business leaders accounts intended to receive their payments;

“then, on the one hand, that it results from the judgment attacked itself that the sum of 1.2 million francs disbursed by the company C … would have aimed to corrupt” an elected official “; that X … would therefore only have received it within the framework of the corruption offense which is at the same time alleged against him; that the offense, which is thus accused, of complicity by instruction given is already prosecuted under the qualification of corruption that the Court of Appeal thus violated the principle “non bis in idem”;

“then, on the other hand, that the judgment of first instance was annulled at the request of X …; that by limiting itself to retaining the complicity of the latter in abuses of corporate assets which would have been characterized in the ‘company D … on the sole ground that it results from a “final decision”, namely the judgment annulled with regard to X …, the court of appeal, which did not otherwise characterize the principal offense which would have been accomplice X …, did not give legal basis to its decision “;

On the sixth plea of ​​cassation, taken from the violation of new articles 321-1, old 460 of the Penal Code, 437.3 ° of the law of July 24, 1966, of article 593 of the Code of penal procedure, lack of reasons, lack legal basis:

“in that the judgment under appeal declared X … guilty of concealment of misuse of corporate assets, for having received sums paid in cash (100,000 francs), from the funds of companies D …, F .. ., G …, H …, SDE, and for having benefited from hunts abroad paid on the funds of the company EJL;

“on the grounds that X … knew these funds taken so occult since paid in cash on the cash of companies concerned;

“whereas concealment presupposes knowledge of the fraudulent origin of the goods handed over; that the mere observation that funds are handed over in cash is not sufficient, contrary to what the contested judgment asserts, to characterize neither the fact that these sums would have been withdrawn in a way “occult” on the social funds, nor that the recipient of the funds would have known the unlawful character of the levy “;

The means being united;

Whereas the statements of the judgment under appeal put the Court of Cassation in a position to ensure that the Court of Appeal has, without insufficiency or contradiction, characterized in all their constituent elements, both material and intentional, the complicity and the concealment of misuse of corporate assets for which it declared the defendant guilty;

Whereas the applicant has no interest in reproaching the Court of Appeal for having declared him guilty of the same facts under several penal qualifications since, in accordance with articles 5 old and 132-3 new of the Penal Code, only one sentence has been imposed. been pronounced;

That, therefore the complaint is unfounded;

And given that the penalty being justified by this conviction of the counts of complicity and concealment of abuse of corporate assets, there is no need to examine the complaint set out in the second part of the fifth plea, concerning other facts held by the accused under the same criminal qualifications;

On the seventh ground of appeal, based on the violation of articles 174 old, 432-10 new of the Penal Code, 593 of the Code of Criminal Procedure, lack of reasons, lack of legal basis:

“in that the judgment under appeal declared X … guilty of concussion;

“for the reasons that he requested, on the occasion of the granting of building permits in the municipality of which he is the mayor, the payment of a subsidy of 400 francs per housing built, which is not provided for by any text, and affirms to order these receipts that the taxable persons were not free to refuse;

“then, on the one hand, that the concussion is not the fact of ordering a payment, but of receiving or ordering the accountant to collect a sum; that the simple fact of asking a third party for the payment of a sum to a tourist office is not constitutive of the concussion, the offense repressing only the activity of the receivers and the accountants, and not the scheduling; that thus the excess of power committed by the mayor, to to suppose it characterized, was not constitutive of concussion;

“then, on the other hand, that fault for the defendant to have received himself the disputed funds, allocated by the admission of the trial judges to the tourist office of Alpe-d’Huez, the offense is not characterized;

“then, finally, that since the subsidy was allegedly illegal, any beneficiary of a building permit could refuse it and possibly contest it before the competent administrative court; that thus the taxable persons were in no way” obliged “to pay the subsidy in question, that the offense is not further characterized “;

Whereas, to declare X … guilty of concussion, the court of appeal noted that the latter, acting in his capacity as mayor of the town of Huez-en-Oisans, imposed on each promoter or individual the payment of ‘a sum of 400 francs per accommodation built in Alpe-d’Huez, which was paid into a hidden account of the Alpe-d’Huez Tourist Office; that they specify that the collection of these taxes, which were not provided for by any text or by a deliberation of the municipal council, gave rise to specific accounts established manually by the services of the town hall which kept a register which served as role;

That the judges state that X …, which, jurist by profession, did not ignore the illegality of this practice, knowingly ordered and recovered undue receipts for the benefit of a municipal public establishment;

Whereas in this state, the Court of Appeal made the exact application of the old articles 174 and 432-10 of the Penal Code;

That, consequently, the means cannot be accepted;

On the eighth plea of ​​cassation, the judgment under appeal is criticized for having declared X … guilty of concealment of breach of trust and of complicity in breach of trust to the prejudice of association A … :

“on the grounds that the association, the object of which was” to strengthen the friendly links existing between the members of the municipal staff and mutual aid of the officers of the municipal function “, and whose funds were constituted mainly by a municipal subsidy, has, d ‘one hand, reimbursed expense reports of X …, on the other hand, remunerated elected officials and management staff of the association or the municipality;

the judgment, on the contrary, reveals that it has been complied with; that thus, for lack of misappropriation of the allocation of the sums in question, the main offense of breach of trust was not characterized and neither the facts of complicity and concealment reproached to the accused “;

Whereas the statements of the judgment under appeal put the Court of Cassation in a position to ensure that the Court of Appeal has, without insufficiency or contradiction, characterized in all its elements, both material and intentional, the offenses of which it has declared the accused guilty;

From where it follows that the means, which is limited to questioning the sovereign appreciation, by the judges of the merits, of the facts and circumstances of the cause, as well as evidence contradictorily debated, can not be admitted;

And whereas the stops are regular in form;

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