INTRUSION INTO AN AUTOMATED TREATMENT SYSTEM
LexInter | June 21, 2003 | 0 Comments

INTRUSION INTO AN AUTOMATED TREATMENT SYSTEM

LA COUR DE CASSATION, CRIMINAL CHAMBER, in his public hearing held at the Palais de Justice in PARIS, on the tenth of December nineteen hundred and ninety-eight, rendered the next stop:

On the report of the referendum advisor of the LANCE, the observations of the professional civil society LYON-CAEN, FABIANI and THIRIEZ, lawyer in the Court, and the conclusions of the lawyer general AMIEL;

Deciding on the appeal brought by:

– The company ADRIAN, civil party,

against the judgment of the indictment chamber of the AIX-EN-PROVENCE court of appeal, dated September 25, 1997, which, in the proceedings against an unnamed person for the misuse of corporate assets, upheld the dismissal order issued by the investigating judge;

Considering the ampliative and additional memories produced;

Having regard to article 575, paragraph 2, 6, of the Code of Criminal Procedure;

On the third ground of cassation, taken from the violation of articles 32, 34, 192 and 592 of the Code of Criminal Procedure;

“in that the judgment under appeal does not note the presence of the public prosecutor at the hearing of its delivery, on September 25, 1997;

“while the public prosecutor, an integral and necessary part of the criminal courts, must attend the delivery of the decision, which must expressly mention it, failing which it cannot formally meet the essential conditions of its legal existence”;

Whereas the contested judgment notes the presence and the hearing of the representative of the public prosecutor at the hearing of the debates, without specifying that the latter was also present at its reading;

That in this state, the grievance is unfounded;

That in fact, article 216 of the Code of Criminal Procedure, specific to the indictment chamber, does not require that the presence of the public prosecutor at the hearing for the delivery of the judgment be mentioned and, according to the article 592, paragraph 2, of the same Code, the invalidity of the decision is only incurred if it is not heard during the debates;

From which it follows that the plea must be rejected;

On the first ground of appeal, based on the violation of articles 462-2 of the old Penal Code, 323-1 of the new Penal Code, 575 and 593 of the Code of Criminal Procedure, failure to respond to the essential points of the brief, lack of and contradiction of reasons, lack of legal basis;

“in that the contested judgment said there was no need to follow the head of intrusion into a system of automatic processing of data;

in his report as well as in his hearing during the information, is precise on this point; that it indicates, in fact, page 465 of its report, that “for all that, the fraudulent access cannot be proved insofar as the access keys had been communicated to Raymond Agnel by José-Luis Adrian under his functions of managing director of the company Adrian SA and of manager of SARL Socamec “and that finally,” the position of Raymond Agnel of managing director of a company in which he has invested a sum of 15,000,000 francs gives him a priori and statutorily the right to oversee commercial management “; is precise on this point; that it indicates, in fact, page 465 of its report, that “for all that, the fraudulent access cannot be proved insofar as the access keys had been communicated to Raymond Agnel by José-Luis Adrian under his functions of managing director of the company Adrian SA and of manager of SARL Socamec “and that finally,” the position of Raymond Agnel of managing director of a company in which he has invested a sum of 15,000,000 francs gives him a priori and statutorily the right to oversee commercial management “; is precise on this point; that it indicates, in fact, page 465 of its report, that “for all that, the fraudulent access cannot be proved insofar as the access keys had been communicated to Raymond Agnel by José-Luis Adrian under his functions of managing director of the company Adrian SA and of manager of SARL Socamec “and that finally,” the position of Raymond Agnel of managing director of a company in which he has invested a sum of 15,000,000 francs gives him a priori and statutorily the right to oversee commercial management “;

“whereas, on the one hand, access to an automated data processing system necessarily becomes fraudulent and, thereby, constituting the offense incriminated by article 323-1 of the new Criminal Code as soon as it was carried out for purposes other than those agreed with the master of the system, so that the Court, which, in order to rule out this incrimination, referred to the quality of managing director of Raymond Agnel, while observing itself that the actions of this one had been dictated by the intention of having a pledge on the Adrian group for the regularization of the last contracts, in other words a means of pressure, did not, in the state of these statements marred just as much ofinsufficiency than contradiction, allowed its decision to meet in form the essential conditions of its legal existence;

“and while, on the other hand, the indictment chamber, which thus considered that there could not be fraudulent access to the extent that the access keys had been communicated to Raymond Agnel by José-Luis Adrian, without responding to the peremptory argumentation of the brief of the civil party arguing that this access was limited only to the programs relating to the exploitation of mountain products and that it is precisely thanks to the absence of José-Luis Adrian that Raymond Agnel obtained an extension of his access to all the programs of the company Adrian, did not, there either, in the state of this lack of response, allowed its decision to formally satisfy the essential conditions of its legal existence “;

On the second ground of appeal, based on the violation of articles 379 of the old Penal Code, 311-1 of the new Penal Code, 575 and 593 of the Code of Criminal Procedure, lack and contradiction of reasons, lack of legal basis;

“in that the contested judgment said there was no need to follow the flight chief;

to be constituted, that the proof be reported, that he fraudulently obtained information from the company Adrian relating to the competitive and secret sector; that, on this point, the expert Battini noted in his report that “for all that, fraudulent access cannot be proved insofar as the access keys had been communicated to Raymond Agnel by José-Luis Adrian under of his duties as Managing Director of Adrian SA “;

“whereas physical detention not accompanied by delivery of possession is not exclusive of the fraudulent apprehension constituting theft, which is the case when a person holding, by reason of his duties, documents belonging to a third party performs, without the latter’s knowledge, the reprography for personal purposes; that, therefore, the indictment chamber, which thus noted that Raymond Agnel had had photocopies of the computer data relating to the file made customers and manufacturing formulas, property of the company Adrian, for the purposes of using them in the context of its negotiations with this company, or even for a personal scientific interest, could not, therefore, without vitiating its decision with a flagrant contradiction of reasons, rule out the prevention of theft on the basis of the circumstance, moreover totally inoperative, drawn from the absence of proof that Raymond Agnel fraudulently obtained the information above “;

The means being united;

Whereas the statements of the contested judgment put the Court of Cassation in a position to ensure that, to confirm the order of dismissal undertaken, the indictment chamber, after analyzing the facts denounced in the complaint and responding to the essential articulations of the brief before it, set out the reasons by which it considered that there were not sufficient charges against anyone for having committed the offenses charged or any other offense and that there was no no need to carry out additional investigations;

Whereas the means proposed, which amount to discussing the value of the reasons of fact and of law retained by the judges, do not contain any of the complaints that article 575 of the Code of Criminal Procedure authorizes the civil party to formulate against a judgment of the indictment chamber in the absence of an appeal from the prosecution;

From which it follows that the pleas are inadmissible;

And considering that the stop is regular in the form;

DISMISSES the appeal;

Thus judged and pronounced by the Court of Cassation, criminal chamber, in its public hearing, the day, month and year above;

Were present at the debates and deliberation: Mr. Gomez president, Mrs. de la Lance rapporteur advisor, MM. Schumacher, Martin, Pibouleau, Challe, Roger, Palisse advisers of the chamber, MM. de Mordant de Massiac, Soulard, Mme Agostini, referendum advisers;

Advocate General: M. Amiel;

Clerk of the chamber: Mrs Ely;

In witness whereof, this judgment has been signed by the president, the rapporteur and the clerk of the chamber;

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