Faux
LexInter | August 9, 2017 | 0 Comments

Faux

” in the state of these reasons, from which it follows that Michel P, knowingly, in the interest of both the SCB and the Regional League, participated in the preparation of the document deceptively certifying the official agreement of the security commission on the conditions of the holding of the match, in order to obtain, from the Federation, the issuance of additional tickets, the court of appeal characterized in all their constituent elements, at the charge of the accused, the offenses establishment and use of an inaccurate certificate, within the meaning of articles 161, paragraph 4, old, and 441-7, new, of the Penal Code, the application of which is not subject to the existence of a prejudice ;   Cass. crim. June 24, 1997  

Court of Cassation
Criminal Chamber

Public hearing of June 24, 1997 Public action extinguished, rejection and partial cassation


Appeal number: 96-82424
Published in the bulletin
President: Mr. Le Gunehec
Rapporteur: Mr. Blin.
Advocate General: M. Amiel.
Lawyers: SCP Ancel and Couturier-Heller, SCP Boré and Xavier, SCP Célice, Blancpain and Soltner, SCP Guiguet, Bachellier and de la Varde, SCP Lyon-Caen, Fabiani and Thiriez, SCP Vier and Barthélemy, SCP Waquet, Farge and Hazan, M. Choucroy, M. Hennuyer, M. Odent, M. Roger, M. Spinosi.

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE


Federal Consumers Union What to choose? (UFC) inadmissible in its constitution of civil party and pronounced on civil reparations.
THE COURTYARD,

Joining the appeals because of the relatedness;

Considering the decisions of the criminal chamber of the Court of Cassation of May 20, 1992 and June 11, 1992 on the designation of jurisdiction;

Having regard to the amplifying, additional and complementary briefs and the defense briefs;

On public action concerning MC:

Whereas it results from an extract from the acts of the civil status of the city of Montreuil that MC died on September 20, 1996;

That it follows that, by application of article 6 of the Code of penal procedure, it is necessary to declare the public action extinguished with regard to this plaintiff;

That however, the Court of Cassation remaining competent to rule, as far as it is concerned, on civil interests, it is appropriate to give notice to his heirs, Nicole Balay, widow C, Xavier C and Valéry C, of ​​their resumption of the instance ;

On the facts and the procedure:

Whereas it results from the contested judgment that informed on 23 April 1992 that the meeting to oppose, in the semi-final of the French Football Cup, Sporting-Club de Bastia (SCB) to Olympique de Marseille would be disputed on May 5, 1992 at the Furiani stadium, the leaders of the SCB decided to entrust the Sud Tribune company, whose director was Jean-Marie Boimond, with the construction of a provisional stand of approximately 9,000 seats, after destruction of the 800-seat north stand, which was to increase the stadium’s capacity from 6,800 to nearly 18,000 spectators, given the recent installation of a west stand;

That demolition work was carried out on the night of April 24 to 25, 1992 and that the construction of the new grandstand, which has not been the subject of any request for authorization from the mayor of Furiani, has started on April 28, 1992, to end on the day of the match, after several interventions by Bernard Rossi, director of the local agency of the Socotec technical control company, and several meetings of the departmental security commission whose chairman was Raymond L., chief of staff of the prefect of Haute-Corse;

However, on May 5, 1992, a few minutes before the start of the meeting, the upper part of this stand, separating itself over its entire length from the lower part, collapsed, throwing 3,500 people into the void. , of whom 15 were killed and nearly 2,000 were injured; that expertises ordered established that this collapse was inevitable due to errors of design and assembly as well as constraints that the work had to support;

Whereas were referred to the criminal court for homicides and involuntary injuries, in particular, Jean-Marie Boimond, Bernard R. and Raymond L., as well as Etienne Galeazzi and Ange Paolacci, respectively secretary general and administrative director of the Regional League de football de Corse, MC, Director General of the French Football Federation, Luc P, President of the Central Commission for the Coupe de France, and in addition, for forgery and use of forgery concerning a document entitled “Minutes of the meeting of the security committee “, Michel P, vice-president of the SCB, and three leaders of the regional League, Etienne Galeazzi, Ange Paolacci and Yves Bartolini, its vice-president;

That the court released Raymond L., retained the guilt of the other defendants and ruled on civil interests;

That, on the appeals of the convicted defendants except Jean-Marie Boimond, that of the public prosecutor in their regard and that of Raymond L., as well as those of various civil parties and interveners, the contested judgment, after having reclassified the offenses of forgery and use of forgery in establishing a false attestation and use, confirmed the judgment on the convictions and the inadmissibility of the UFC civil party constitution, but, invalidating it by Regarding Raymond L., declared the latter guilty of manslaughter and unintentional injury, and pronounced on civil interests;

In this state:

I. On Pierre Giorgi’s appeal:

Whereas no means are produced;

II. On the appeals of Michel P, Bernard Rossi, Luc P, Raymond L. and of Socotec as well as on that of MC as regards, in his regard, civil interests;

On the single means of cassation proposed by the professional civil society Waquet, Farge and Hazan for Michel P, taken from the violation of articles 161, paragraph 4, of the repealed Penal Code, 441-7 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 Michel P guilty of the offenses of establishing a false certificate and of use, and condemned him on this account;

a fact formulated by people who took responsibility for it and who wanted to give it probative value with regard to the French Football Federation; that Michel P could not be unaware that his “draft” was intended for the assertion that the commission of safety had given a favorable opinion;

“then, on the one hand, that only a document drawn up in favor of a third party beneficiary can be qualified as a” certificate “within the meaning of article 161, paragraph 4, of the Penal Code in force at the time of the facts; ” nevertheless retaining the qualification of false attestation with regard to the minutes of April 29, 1992, drawn up by officials of the Corsican league in their own interest, and not issued in favor of a third party beneficiary, the court of appeal has violated the aforementioned texts;

“then, on the other hand, that the offense of establishing a false attestation supposes that the author participated in the establishment of the attestation, that is to say in its actual drafting; that expressly noting that only Messrs. Galeazzi, Paolacci and Bartolini had participated, at the end of the meeting of April 29, 1992, in drawing up the disputed minutes, and that this document was signed by Michel Galeazzi, the court of appeal did not characterize, against Michel P, the offense of establishing a false certificate;

Paolacci and Bartolini; that being determined by the reason that Michel P “could not ignore” that his draft was intended for the affirmation that the safety commission had given a favorable opinion, without characterizing a conscious participation, in knowledge of the inaccuracy of the fact attested, of Michel P in the incriminated writing, the court of appeal deprived its decision of legal basis;

“then, fourthly, that only a writing relating materially inaccurate facts can be qualified as false attestation; that the minutes of April 29, 1992, taking up on this point the document of Michel P, include a formula according to which the commission security, considering that the conditions for a good progress of the meeting, gave his assent for the holding of the match; that by nevertheless retaining the qualification of false certificate concerning this formula the court of appeal did not legally justify its declaration of guilt with regard to Michel P;

“then, on the fifth part, that only a writing likely to prejudice others can be qualified as false attestation within the meaning of article 161, paragraph 4, of the Penal Code in force at the time of the facts; that by omitting to characterize this constituent element of the offense, the court of appeal deprived its decision of reasons;

“then, finally, that by retaining, against Michel P, the offense of using a false certificate, without specifying in what way the interested party would have made use of the disputed report to the material elaboration of which he did not participate, which he never had in hand, and which, according to the Court of Appeal’s own statements, was communicated to the French Football Federation by Messrs. Galeazzi, Paolacci and Bartolini, the court of appeal deprived its decision of any legal basis “;

Whereas it appears from the judgment under appeal that Michel P acknowledged being the author of an undated manuscript entitled “Minutes of the meeting of the security commission concerning the organization of the Bastia-OM meeting of 5 May 1992 “and ending with the formula” in witness whereof the safety committee considers that the conditions for the smooth running of the match have been fulfilled and gives its assent for the holding of the match “; that it is established that Etienne Galeazzi, Ange Paolacci and Yves Bartolini then drew up a document dated April 29, 1992, at the head of the Corsican League, which takes up the writing written by Michel P, both in his title only in its concluding formula, by completing it and which contains the affirmation of

Whereas Michel P could not maintain having ignored the use which would be made of his “draft” since, according to the findings of the judges, that, from April 28, 1992, that is to say the day before the drafting of the document which takes again the terms of it , the leaders of the Sporting-Club de Bastia, of which he was the vice-president, had ordered from the French Football Federation, through the League, the additional tickets corresponding to the new capacity of the platform;

Whereas in the state of these reasons, from which it follows that Michel P, knowingly, in the interest of both the SCB and the Regional League, participated in the preparation of the document deceptively certifying the official agreement of the safety commission on the conditions of the holding of the match, in order to obtain, from the Federation, the issuance of additional tickets, the court of appeal characterized in all their constituent elements, at the charge of the accused, the offenses of establishment and use of an inaccurate certificate, within the meaning of articles 161, paragraph 4, old, and 441-7, new, of the Penal Code, the application of which is not subject to the existence of prejudice;

From which it follows that the means cannot be admitted;

On the single means of cassation, proposed by Me Roger for Bernard R. and the company Socotec, and taken from the violation of articles 319 and 320 of the old Penal Code, articles L. 111-23, R. 111-38 and R . 111-39 of the Construction and Housing Code, articles 1134, 1137, 1147, 1382 and 1383 of the Civil Code, the constitutional principle of the legality of offenses and penalties, articles 6, § 3-a , and 7 of the European Convention for the Protection of Human Rights, Articles 593 and 595 of the Code of Criminal Procedure, together lack and contradiction of reasons and lack of legal basis:

“in that the judgment under appeal retained Bernard R. in the links of the prevention of homicide and unintentional injuries;

“I. For these reasons, on the one hand, that Rossi, director of the Socotec agency in Bastia, went to the Furiani stadium on April 27, 1992 following a telephone message left by Sporting- Bastia club to its secretary;

“that, on the spot, he met Boimond of the Sud Tribune company, L., director of the cabinet of the prefect of Haute Corse, as well as Filippi, president of the Sporting-Club of Bastia and Negroni, president of the Corsican Football League ( judgment p. 62, § 5); […]

“that if it is true that R. issued on April 28, 1992 only a favorable opinion on the north platform” as to the compatibility of the base soil with the loads brought by the work “, its mission n was not, however, clearly defined by a written contract; […]

“that it is established that R. went on site four times and that he climbed onto the platform on May 2 at around 10 a.m. and that at the end of this visit and after an interview with Boimond, diagonals have been added to the back of the platform (judgment p. 62, § 7 to 9); […]

“that the research carried out at the national level on the relations between Sud Tribune and Socotec made it possible to reveal that out of twenty-eight missions, only one had concerned only the examination of the ground, the twenty-seven other missions having concerned the structure ;

“that as stated by Mr. Morvan, director of the Socotec agency in Nice, solicited about ten times a year by Sud Tribune, the missions generally concerned the solidity of the structure, the engineer not proceeding checks only once the work has been completed and in principle within twenty-four hours preceding the passage of the safety commission;

“whereas all of these elements tend to show that Ra has performed a comprehensive mission (judgment p. 6, § 3);

“1o then, on the one hand, that by confining itself to saying that all of these elements” tend to demonstrate that Ra has performed a comprehensive mission “(of technical control), the Court has determined itself by reasons purely hypothetical in violation of article 593 of the Code of Criminal Procedure;

“2o that the Court could not, without contradicting itself, state on the one hand that R. had accomplished a global mission of technical control and on the other hand retain the defendants P, Galeazi, Paolacci and Bartolini on the count of false attestation and use false certificate for having “affirmed that Socotec had given a favorable opinion on the realization of the platform whereas the only opinion emitted by R. only related to the compatibility of the soil” (judgment p. 67, 1st paragraph);

“3o that the Court could not, without contradicting itself again, state on the one hand that R. had accomplished a global mission of technical control and on the other hand retain the defendant L. in the links of the prevention of homicides and unintentional injuries for not having ensured in particular “verifications allegedly carried out by Socotec” (judgment p. 74, § 4) and not having questioned R. on “the nature and scope of his mission, the knowledge that ‘he had had the limited opinion of the latter showing the absence of technical control “(judgment p. 74, § 7);

“II. And for these reasons, on the other hand,” that it follows from the reasons set out above that the platform came under the regulations on establishments open to the public and that as such it was subject to mandatory technical control provided for by Articles R. 111-38 and R. 111-39 of the Construction and Housing Code “(judgment p. 62, § 3); […]

“that assuming that R. had received and carried out only one mission on the ground, this would be contrary to the provisions of article R. 111-39 of the Construction and Housing Code which makes compulsory technical control on the solidity of the works as well as on the safety conditions of the people “(judgment p. 63, § 4);

“that Ra allowed the greatest ambiguity to hover over the meaning and scope of his mission when, in particular, through his contacts with the Nice agency, he could not ignore Socotec’s usual practices in this area;

“that he was in a position to assess the risks resulting from the total lack of preparation of the dossier by Boimond and from the abnormally short duration of the assembly which was one of the main causes of the collapse of the stand;

“that, if the technical control does not imply a duty of advice contrary to what the first judges affirmed, its objective consists in preventing the risks;

“that as such it was up to R. to provide all information on his personal competence, limited to the ground and above all to recall that technical control was mandatory for the stability and solidity of the platform; [… ]

“that negligence, recklessness, non-observance of regulations are thus characterized and that it is therefore necessary to confirm the judgment referred on the conviction (judgment p. 63, § 8 to 10).

“1o then, on the other hand, that the stand, temporary and removable, raised on the northern part of the Armand-Cesari stadium in Furiani did not constitute either a construction or an establishment receiving the public subject to the compulsory technical control provided for by articles R. 111-38 and R. 111-39 of the Construction and Housing Code which the Court violated by false application;

“2o that under the terms of Article L. 111-23 of the Construction and Housing Code, the technical control agreement entrusting the technical controller with a risk prevention mission can only be concluded with the sole project owner; that by refraining from specifying whether the mission had indeed been entrusted by the contracting authority himself, the Court could not characterize the existence of a technical control mission at the meaning of the law and the obligations that accompany such a mission; that it has thus deprived its decision of a legal basis with regard to the aforementioned text;

“3o that by refraining from stating in what way R. had breached the obligation of prudence imposed on a wise professional within the framework of the sole verification mission which had been entrusted to him, the court of appeal did not give a legal basis for its decision with regard to articles 319 and 320 of the Penal Code and 1134, 1137, 1147, 1382 and 1383 of the Civil Code;

“4o that finally, by imposing on the accused a general obligation of” risk prevention “outside any legal, regulatory or contractual basis, the Court gave the criminalization an indeterminate content in violation of the constitutional principle of legality of offenses and penalties also sanctioned by Articles 6, § 3-a, and 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms “;

Whereas the findings of the judgment under appeal put the Court of Cassation in a position to ensure that the Court of Appeal correctly held that the new north stand of the Furiani stadium, built in the circumstances and under the conditions that the judges specify, constituted the major element of an establishment open to the public, within the meaning of Articles R. 123-2 and R. 123-18 to R. 123-20 of the Construction and Housing Code, and that its construction was subject to compulsory technical control, relating to the solidity of the structure and the safety of persons, imposed by articles L. 111-23, R. 111-38 and R. 111-39 of this Code ;

That it is, moreover, established that Bernard Rossi, director of the local agency of Socotec, following a message from the SCB, went on April 27, 1992 to the Furiani stadium where he met Jean-Marie Boimond, director of the Sud-Tribune company, Raymond L., chief of staff of the prefect of Haute-Corse, as well as the president of the SCB and that of the Corsican Football League;

That it is not disputed either that, if no written contract has defined the scope of his mission, Bernard Rossi, after having delivered on April 28 a favorable opinion on the compatibility of the foundation floor with the loads brought by the work, intervened on various occasions on the site until May 2, 1992, his last intervention having been followed, after an interview with Jean-Marie Boimond, by the installation of diagonals on the back of the platform;

Whereas the judges, after having further noted that, for their almost all, the missions of Socotec, in its usual relations with Sud-Tribune at the national level, also related to the structure and the solidity of the works, deduce from the ‘all of these elements that Bernard Ra carried out, in this case, a “global mission”, as provided for in Article R. 111-39 of the Construction and Housing Code, and that he was in measure to evaluate “the risks resulting from the total lack of preparation of the file by Boimond”, as well as “the abnormally short duration of the assembly which constituted one of the essential causes of the collapse of the stand”;

Whereas in the state of these only reasons, free of any hypothetical character, and from which it follows that Bernard Ra disregarded the obligations imposed on him by the charge of the obligatory technical control which had been entrusted to him by the leaders of the SCB and which he had accepted to assume without reservations, the Court of Appeal made the exact application both of the texts invoked by the applicant and of Articles 221-6, 221-19 and 112-1 of the Penal Code, as well as of its article 121-3, paragraph 3, in its wording resulting from the law of May 13, 1996;

That the means must, therefore, be rejected;

On the first ground of appeal proposed by the professional civil society Lyon-Caen, Fabiani and Thiriez for consorts MC and Luc P, and taken from the violation of articles 319 and 320 of the old Criminal Code, 591 and 593 of the Code of Criminal Procedure ; lack of response to conclusions, lack of reasons and lack of legal basis:

“in that the judgment under appeal declared MC and Luc P guilty of recklessly homicides and injuries;

Socotec’s opinion on the north stand related only to the compatibility of the soil and not to the solidity of the stand; that, if in their defense the interested parties argued that they had asked the League to distribute the document dated April 29, to the various participants in the meeting of the Security Commission, the fact remains that the French Football Federation had demanded that the opinion on the control by Socotec appear in the minutes; that they knew that on April 29, the security commission had not been able to issue a final favorable opinion since, by letter of April 30 signed by MC, they informed the SCB that Mr. Santoni, representing the central commission of grounds and equipment, visit the stadium facilities and monitor the execution of the works at the same time as the control of the safety commission fixed for May 4 at 10 am; that in his report of May 4, Mr. Santoni specified that the work was still in the course of completion and that a new visit of the safety commission would be carried out the following day; that it should be noted that the match was to be played on land approved in category A and that obviously the demolition of the Claude Papi stand and then the construction of a 10,000-seat stand resulted in a substantial modification of the stadium and that as such it had to be subject to a new homologation; that Luc P and MC committed negligence and imprudence insofar as they did not react effectively and use their own powers to the reception of a report manifestly irregular in form and content; that they left the issuance and sale of tickets in the most complete imperfection, knowing that the security commission would visit the stadium on May 4 and suspecting that the prices of tickets were doubled;

“while, on the one hand, the director general of the French Football Federation as the president of the central commission of the Coupe de France having constantly argued that he had not been informed of any dysfunction in the organization of the meeting of 5 May 1992 and more particularly in the setting up of additional installations intended to increase the reception capacity of the Furiani stadium, the Court which, without noting the slightest element contradicting this assertion and while also noting that MC and Luc P had kept themselves constantly informed of the progress of operations with the head of the service at the French Football Federation responsible for the administrative management of the matches, complains that they did not use their own powers andhaving left the issuance and sale of tickets completely inoperative, did not, in the state of this lack of response, characterize the deficiency of which they would have shown and such as to constitute the fault within the meaning of articles 319 and 320 of the old Criminal Code, their role in terms of safety consisting only of ensuring that the equipment meets the standards defined by the safety commission, which in this case was indeed seized and carried out its mission without incident. would have been informed MC and Luc P;their role in terms of safety consisting only of ensuring that the equipment meets the standards defined by the safety commission, which in this case was indeed seized and carried out its mission without incident of which MC and Luc would have been informed P;their role in terms of safety consisting only of ensuring that the equipment meets the standards defined by the safety commission, which in this case was indeed seized and carried out its mission without incident of which MC and Luc would have been informed P;

“that, on the other hand, the Court, which, in this context, thus affirmed, without explaining further, that the fact for the director general of the French Football Federation and the president of the central commission of the Coupe de France for having given their approval for the delivery to the SCB of 10,000 additional tickets in exchange for the commitment of the Regional League not to put these tickets on sale until the safety commission had given its agreement constituted a major imprudence, a, in the state of this lack of reasons, deprived its decision of any legal basis;

“that finally, the Court, which thus criticizes MC and Luc P of an absence of reaction to the reception of a report qualified as” manifestly irregular in its form and in its contents “, without there again s ” explain the factual elements showing this irregularity and while also noting that the Director General of the French Football Federation and the President of the Central Commission of the Coupe de France, upon receipt of this document, requested that it is sent to all the members indicated as having participated in this meeting, which was done without attracting the slightest reaction from these people as argued by MC and Luc P in their conclusions, did not, here again , justified by the lack of attention or vigilance retained in theagainst MC and Luc P to consider that their criminal responsibility was engaged “;

On the second plea of ​​cassation proposed for colleagues MC and Luc P, and alleging violation of articles 319 and 320 of the old Criminal Code, 591 and 593 of the Code of Criminal Procedure, lack of reasons and lack of legal basis:

“in that the judgment under appeal declared MC and Luc P guilty of unintentional homicides and injuries;

“on the grounds that they committed negligence and recklessness insofar as they did not react effectively and use their own powers to the receipt of a report manifestly irregular in its form and content; they left the issuance and sale of tickets in the most complete imperfection knowing that the security commission would visit the stadium on May 4 and suspecting that ticket prices were doubled;

“whereas the criminal liability of the count of homicide or unintentional injuries can only be accepted on the condition that the existence of a causal link between the fault observed and the occurrence of the damage is established with certainty, which is in no way characterized in the state of the statements of the Court, from which it appears that the accident was due to defects in the design and construction of the stand, defects which did not prevent its opening to the public rightly the favorable opinion issued by the safety committee; that, therefore, the faults held against MC and Luc P, namely a lack of reaction to the receipt of a report containing an inaccurate allegation and the fact ofhaving authorized the sale of tickets prior to the visit of the stadium by the safety committee, cannot present a direct link with the accident, which would necessarily have occurred, apart from the actions today alleged against MC and Luc P ” ;

And on the additional means proposed for consorts MC and Luc P, taken from the violation of articles 112-1 of the Penal Code, 121-3 of the same Code in its wording resulting from the law of May 13, 1996 relating to criminal liability for acts of recklessness or negligence; violation of the principle of retroactivity in mitius; lack of legal basis:

“in that the criminal and civil liability of MC and Luc P is retained without it being possible to be investigated if, in fact, they had carried out the normal diligences taking into account the nature of their mission and their functions, of their competences as well as of the power and the means at their disposal and this, as required from now on article 121-3 of the Penal Code in its drafting resulting from the law of May 13, 1996 subsequent to the contested judgment and relating to criminal liability for acts of recklessness or negligence and which, by thus restricting the constituent element of these offenses, constitutes a softer criminal law applicable to pending proceedings, so that in any event the declaration of guilt is no longer legally justified “;

The means being united;

Whereas, in order to declare MC and Luc P guilty of unintentional homicides and injuries, the second degree court firstly notes that the organization and administration of the Coupe de France fell to the French Football Federation and to the Commission of the Coupe de France, of which these two defendants were respectively general manager and chairman; that, especially, if the installations did not meet the regulatory standards of safety, the commission had the faculty, either to move the place of the meetings, or to shift their dates; that, for “risky matches”, the Federation had planned, at least four days before the match, an inspection of the stadium and the facilities with the departments concerned in order to verify that the equipment complies with the standards defined by the safety committee; in this case this inspection took place only the day before;

That the judges then retain that by authorizing the early issuance of additional tickets, in exchange for a commitment from the League not to sell them before the agreement of the security commission, in view of the document, “manifestly irregular in its form and content “, established on April 29 by the leaders of the League, MC and Luc P, who were aware that Socotec had issued only an opinion limited to the resistance of the soil and that the construction of the platform was then only at the beginnings, committed “a major imprudence”;

That they observe, finally, that the substantial modification of the stadium required a new homologation in category A, imposed for this type of meeting, and that, if these defendants had effectively exercised the powers which they held of their attributions, they would have required regulatory checks and notices before the stadium opens;

Whereas, in the light of these reasons, which establish that the applicants did not perform the normal diligence incumbent on them, taking into account the nature of their missions or their functions, their competence as well as the powers and means available to them, the Court of Appeal, which characterized without insufficiency the existence of a causal link between these breaches and the bodily injuries suffered, justified its decision without incurring the alleged grievances;

From which it follows that the means cannot be accepted;

On the single means of cassation proposed by Me Choucroy for Raymond L., taken from the violation of articles 319 and 320 of the old Penal Code, 121-3, 221-6, 222-19 of the new Penal Code, L. 111 -23, R. 111-29, R. 111-38, R. 111-39, R. 123-24 et seq. Of the Construction and Housing Code, article L. 131-1 of the Code of the municipalities, of article 11 bis A of law n ° 83-634 of July 13, 1983 resulting from the law of May 13, 1996, of article 4 of decree n ° 95-260 of March 8, 1995, of the ” article 593 of the Code of Criminal Procedure, lack of and contradiction of reasons, lack of response to conclusions, lack of legal basis:

“in that the impugned invalidity judgment declared Raymond L. guilty of manslaughter and unintentional injury;

“on the grounds:

“A) within the framework of the administrative police:

“that the construction of a 9,000-seat platform in the greatest haste in defiance of elementary rules should have been noted by the administrative inquiry commission to pose a real question to the prefectural authority and to the services of the State in general, then moreover that the attention of the prefects had been drawn by the Minister of the Interior following several telexes on the prevention of accidents of bleachers and stands;

“that a technical expertise with central services or a simple consultation would have revealed the lack of preparation of the project and the extreme precariousness of the structure;

“that the Departmental Equipment Directorate, which has engineers and technicians and which had offered its services, was able, by a simple calculation allowing an almost instantaneous result, to show that there was no regulatory safety and that the enormity of the undersizing of the grandstand was such that the probability of ruin was of the order of 100%;

“that the careful examination of the situation proved to be all the more necessary as the mayor of Furiani, who was responsible for authorizations for the development and opening of the establishment, appeared to be overwhelmed by events, ignoring the procedures applicable and put, according to its own expression, “before a fait accompli”;

“that if one has to wonder about the power of substitution that the prefectural authority could exercise, it remains that under general security Raymond L. committed negligence which contributed to the realization of the disaster;

“B) within the framework of the safety committees:

“that to deny any power to the safety committee would lead to nullifying the objectives pursued by the Construction and Housing Code which in its article R. 123-35 specifies that the departmental advisory committee for civil protection is the study, control and information body of the representative of the State in the department and the mayor and that it assists the latter in the application of police and surveillance measures in order to ensure protection against fire and panic;

“that, in the case of an establishment open to the public, the installer and the operator were required to ensure a technical inspection by an approved body or person (art. R. 123-43 CCH);

“that said control should be carried out not only on fire safety but also on the solidity of the structure (article R. 111-39 CCH), the safety commission having to ensure that the verifications provided for in article R 123-48 CCH had indeed been carried out (article R. 123-43 CCH);

“that in his capacity as chairman of the security commission and of the ERP-IGH departmental security sub-commission, it was up to Raymond L. to verify the regularity of operations and to ensure the proper functioning of the commission;

“that the departmental commission held several meetings relating to the Furiani stadium without the departmental director of equipment having been summoned;

“that Raymond L. was represented without delegation at the meetings of April 30, May 4 and 5, 1992;

“that the commission should have verified the existence of a planning authorization and the existence of a report attesting to the stability of the platform and the existence of a decree from the mayor authorizing the opening;

“that an irregular report was drawn up on April 29, 1992 under the terms of which it was attested that the safety commission considered that the conditions for a good progress of the meeting were fulfilled after the favorable opinion of Socotec on the realization of the north stand ;

“that this irregular document both in its form and in its content did not arouse the suspicions of Raymond L.;

“that, during the meeting of April 30 which gave rise to a report signed by Raymond L., an unfavorable opinion was issued following a visit carried out before the Bastia-Marseille match, an opinion which became a” provisional favorable opinion “for the commission without specifying the requirements to be carried out;

“that during two meetings of May 4 and 5 the preventionists noted the non-fulfillment of the prescriptions;

“that the minutes of May 5, unsigned by its president, did not contain any definitive opinion and that no inspection of the platform was carried out;

“that Raymond L. did not ensure the verifications allegedly carried out by Socotec whereas the only opinion of this organization related only to the compatibility of the ground of base with the loads;

“that with regard to articles R. 123-43 and R. 123-48 of the Construction and Housing Code, the commission had to ensure that the verifications had indeed been carried out;

“that article R. 123-42 allowed the commission to appoint any qualified person;

“that it was at the very least up to Raymond L. to question Bernard R. on the nature and scope of his mission, the knowledge he had of the latter’s limited opinion highlighting the lack of technical control;

“whereas, on the one hand, in the light of the Court’s finding that it was up to the mayor of Furiani, to whom it was incumbent to issue the authorizations for the development and opening of the disputed forum, the non- from which this elected official benefited and from the questioning of the judgment on the power of substitution of the prefectural authority to which the Court was careful not to answer, the trial judges deprived their decision of reasons with regard to the article 121-3 of the new Penal Code by attributing to Raymond L. negligence he allegedly committed within the framework of his administrative police powers;

“whereas, on the other hand, the Court left unanswered the head of the submissions of the exhibitor in which the latter explained, on the one hand, that he had no personal knowledge of the telexes sent in 1988, 1990 and 1991 to the prefects, these telexes having been sent before he was in post, and, on the other hand, that these could only concern establishments receiving the public in the 4th and 5th categories and not the contested platform classified in 1st category;

“that in addition it follows from Articles R. 123-35 et seq. of the Construction and Housing Code that the departmental safety advisory committees are only competent in matters of fire risk and panic since these texts appear in chapter III, title II of Book I of the said Code entitled “Protection against the risks of fire and panic in buildings open to the public”; that therefore, by claiming that these committees are competent to verify the solidity of construction of establishments open to the public which, by virtue of Articles R. 111-38 et seq. of the said Code, must be subject to mandatory technical control, incumbent on the contracting authority or his agent and relating to the solidity of the construction,the Court violated the aforementioned texts which it claimed to apply to find the applicant guilty of manslaughter and unintentional injury;

“and that finally, after having sovereignly affirmed that the person responsible for carrying out the technical control imposed on the contracting authority by the Construction and Housing Code had led the various people present on the site to believe, among which featured the exhibitor, that its mission concerned both the solidity of the platform and the stability of the ground on which it was built and that after his visit diagonals had been added, the Court, which, for this reason, has declared this co-convicted guilty of homicides and injuries by recklessness, contradicted his own findings by reproaching Raymond L. for having known that the control carried out by this co-convicted did not relate to the solidity in order to enter in the process of conviction against him “;

Whereas the second-degree court, after having exactly defined, in the reasons given in the means, the nature and extent of the checks to be carried out by the safety committees provided for by the Construction and Housing Code, in particular in The occasion of the construction, as in the present case, of an establishment intended to receive the public within the meaning of articles R. 123-19 and R. 123-20 of this Code, notes various shortcomings noted for Raymond L., president of the departmental consultative commission for civil protection, in his capacity as chief of staff of the prefect of Haute-Corse, and to whom the latter had given the mission “to devote most of his time to the OM- meeting. Bastia which was of major importance “;

That, in particular, according to the judgment, Raymond L. attended only one of the committee meetings relating to the Furiani stadium, that of April 29, which did not give rise to any official report, and he was represented, without delegation, to the three others, including that of May 4, the day before the meeting, and that of May 5, held shortly before the arrival of the public, while no inspection of the platform was was carried out and that workers were still working on it;

That the judges also observe that the commission refrained from verifying, as it should, the existence of a planning authorization, of a report attesting to the stability of the platform and of a decree of the mayor authorizing the opening of the establishment; that in reality, specifies the judgment, the safety commission did not expressly formulate any final opinion, whereas the verifications which had to be carried out and over which it had control in application of articles R. 123-43 and R. 123 -48 of the Construction and Housing Code, should have led to an unfavorable opinion;

Whereas, in this state, Raymond L. could not invoke, as he does, neither his ignorance of the applicable legal or regulatory provisions, and which fell within his remit, nor the absence of substitution of the prefect, of which he was delegated, the defaulting mayor of Furiani, this substitution being provided for, as of right, by article R. 123-28 of the aforementioned Code;

That, therefore, Raymond L. not having performed the normal diligence incumbent upon him, given his skills, the power and the means at his disposal, as well as the difficulties specific to the mission entrusted to him by law, the Court of Appeal, by retaining it in the links of prevention, justified its decision with regard, in particular, to article 11 bis A of the law of July 13, 1983, modified by that of May 13, 1996 and bearing rights and obligations of officials;

That thus the means, which is not founded in any of its branches, cannot be retained;

III. On the appeals of the Grimaldi consorts and the UFC, civil parties:

On the first ground of appeal, proposed by Me Spinosi for the Grimaldi consorts and alleging violation of articles R. 625-2 of the new Penal Code, 427, 475-1, 485, 509, 512, 515, 591 and 593 of the Code of Criminal Procedure, lack of reasons, lack of legal basis:

“in that the judgment under appeal limited the conviction of Jean-Marie Boimond, under article 475-1 of the Code of Criminal Procedure, in favor of Karine Grimaldi and Jean-Marc Grimaldi, to the sum of 5 000 francs, all instances combined;

“on the grounds that in appeal the civil parties who maintain their constitutions of civil parties, also claim the payment of the indemnities of article 475-1 of the Code of Criminal Procedure, under the appeal body;

“that because of appeal it is necessary to confirm the judgment referred on the principle of admissibility of the requests;

“that as regards the amount of the compensation allocated by the application of article 475-1 of the Code of Criminal Procedure, it is appropriate to arbitrate the individual amount at 5,000 francs, all instances combined (judgment , page 133);

“whereas the reform of the first instance decision to the detriment of the appellant civil party cannot take place in the absence of an appeal by the accused;

“that in this case it follows from the own mentions of the judgment under appeal that if the plaintiffs, civil parties, appealed against the judgment, and requested the condemnation of the defendants to the payment of a sum of 20,000 francs in respect of irrecoverable costs incurred on appeal, Jean-Marie Boimond, accused, did not appeal against the said judgment having notably ordered him to pay Karine Grimaldi a sum of 10,000 francs on the basis of article 475-1 of the French Code of penal procedure ;

“that thus, by limiting, on the basis of this text, the condemnation of Jean-Marie Boimond towards the applicants exhibiting to the sum of 5,000 francs,” all instances combined “, the court of appeal violated articles 509 and 515 of the Code of Criminal Procedure “;

On the second ground of appeal proposed for the Grimaldi consorts, alleging the violation of articles R. 625-2 of the new Penal Code, 427, 475-1, 485, 509, 512, 575, 591 and 593 of the Code of Criminal Procedure , lack of reasons, lack of legal basis:

“in that the judgment under appeal limited the conviction of P, Rossi, Paolacci, Galeazzi, Bartolini, P and C, under article 475-1 of the Code of Criminal Procedure, in favor of Karine Grimaldi and Jean -Marc Grimaldi, to the sum of 5,000 francs, all authorities combined;

“on the grounds that in appeal the civil parties, who maintain their constitutions of civil parties, also claim the payment of compensation under article 475-1 of the Code of Criminal Procedure, under the appeal body;

“that because of appeal it is necessary to confirm the judgment referred on the principle of admissibility of the requests;

“that as regards the amount of the compensation allocated by the application of article 475-1 of the Code of Criminal Procedure, it is appropriate to arbitrate the individual amount at 5,000 francs, all instances combined (judgment , page 133);

“1 ° whereas the repressive judge, ruling on the civil action, cannot without committing an excess of power to disregard the terms of the dispute, fixed by the respective claims of the parties;

“that in this case it is evicted from the conclusions of the exhibitors that they requested, on appeal, the confirmation of the judgment on the condemnation of the defendants to pay them a sum of 10,000 francs for the irretrievable costs of the first instance, while it results from no mention of the judgment under appeal that the defendants appellants requested, on this point, the reformation of the judgment;

“that, consequently, by deciding to limit the condemnation of the defendants, for irrecoverable costs, to the sum of 5,000 francs, all instances combined, the court of appeal exceeded its powers and violated article 593 of the Code criminal procedure;

“2 ° whereas, if the trial judges sovereignly assess the amount of the sums allocated to the civil party for irrecoverable costs, they must justify their decision taking into account, in addition to the amount of the costs incurred, equity or the economic situation of the condemned party;

“that thus, by determining by the sole circumstance that it is appropriate to arbitrate the individual amount of the irrecoverable costs to the sum of 5,000 francs, all instances combined, the court of appeal deprived its decision of any legal basis with regard to Articles 475-1 and 593 of the Code of Criminal Procedure “;

The means being united;

Whereas in appeal the Grimaldi consorts requested confirmation of the judgment in that it notably allocated to Karine Grimaldi the sum of 10,000 francs, under article 475-1 of the Code of Criminal Procedure, and claimed, in addition, additional compensation for their costs incurred in appeal; that they reproach the judgment under appeal not to have allocated them from these heads, as to other civil parties, that the sum of 5,000 francs “all instances combined”;

Whereas in so pronouncing the Court of Appeal did not incur the alleged grievances;

That the defendants Luc P, MC and Bernard R. being appellants of all the provisions of the judgment, article 515, paragraph 2, of the Code of Criminal Procedure did not preclude an aggravation of the fate of the civil parties by the judges of the second degree;

That it is the same with regard to Jean-Marie Boimond, because of the appeal of his insurer which produced effect with regard to him by application of article 509, paragraph 2, of the same Code;

That, in addition, Michel P and Yves Bartolini were put out of cause, as for the civil reparations allocated to the victims of the crimes of homicides and involuntary injuries, and that this decision is not contested by the applicants;

That, consequently, the application of article 475-1 falling under the sovereign power of the judges, the means cannot be accepted;

But on the single means of cassation, proposed by the professional civil society Vier and Barthélémy for the Federal Union of consumers Que Choisir? and taken from the violation of articles L. 421-1 and L. 221-1 of the Consumer Code, articles 319 and 320 of the old Penal Code, article 221-6 of the new Penal Code, articles 2, 591 and 593 of the Code of Criminal Procedure, lack of reasons and lack of legal basis:

“in that the judgment under appeal declared inadmissible the constitution of civil party of the federal Union of consumers Que Choisir?

“on the grounds that if the Federal Union of Consumers justifies both its capacity to act as an approved association and the existence of a criminal offense underlying its request, however it is inadmissible in its interest to act insofar as the offenses have not been committed for economic reasons in relation to consumer law; that the collective interest of citizens in their general security is not distinguished from the direct or indirect damages caused by suffered individually the victims of the disaster; that the collective interest of the association should not be distinguished either from the social damage resulting from the scale of the accident whose compensation is ensured by the exercise of public action ; thatthe decision taken and the request based on article 475-1 of the Code of Criminal Procedure should therefore be upheld;

Article 221-6 of the new Penal Code include among their constituent elements a breach of a safety obligation which is liable to undermine not only the general interest but also the collective interest of consumers; that by affirming that the collective interest of the association was not distinguishable from the social damage arising from the extent of the accident, the repair of which is ensured by the exercise of public action, the court of appeal has ignored the principles recalled above;

“then, on the other hand, that by limiting oneself to considering that the collective interest of citizens in their general security is indistinguishable from the direct or indirect damage that the victims of the disaster may have suffered individually without even examining, as it was invited, of what consisted the damage which the UFC Que Choisir was seeking to repair and without seeking if it was not related to the specificity of its mission, the court of appeal deprived its decision of legal basis “;

Having regard to the said articles;

Whereas no offense having caused direct or indirect damage to the collective interest of consumers is excluded from the provisions of paragraph 1 of article L. 421-1 of the Consumer Code;

Whereas, to declare the Federal Union of Consumers – What to choose?, Approved association, inadmissible in its constitution of civil party, in the proceedings brought for the count of homicides and unintentional injuries following the collapse of a forum from the Furiani stadium, the second-degree court held that the aforementioned offenses “were not committed for economic reasons in relation to consumer law”, that “the collective interest of citizens in their general security is not is not distinguished from the direct or indirect damages that the victims of the disaster may have suffered individually “and that” the collective interest of the association is not distinguished either from the social damage arising from the scale of theaccident for which compensation is provided by the exercise of public action “;

But given that by pronouncing thus, and while, according to Article L. 221-1 of the Consumer Code, the services must, under normal conditions of use, present the security that one can legitimately expect , the court of appeal ignored the meaning and scope of the aforementioned texts;

From where it follows that the cassation is incurred on this head;

For these reasons :

DECLARES the public action extinguished with regard to MC;

I. On the appeals of Pierre Giorgi, Michel P, Bernard Rossi, Luc P, Raymond L. and Socotec, as well as on that of MC and his colleagues Grimaldi;

REJECTS THEM;

II. On the appeal of the UFC Que Choisir? :

BREAKS AND ANNULS the abovementioned judgment of the BASTIA Court of Appeal of December 13, 1995, but in its only provisions relating to the civil action of the UFC, all other provisions being expressly maintained;

And so that he is again tried, in accordance with the law, within the limits of the cassation thus pronounced:

REFERS the case and the parties to the PARIS Court of Appeal.

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