RELATED OFFENSES AND INTERRUPTIVE ACTS OF PRESCRIPTION
LexInter | October 20, 2006 | 0 Comments

RELATED OFFENSES AND INTERRUPTIVE ACTS OF PRESCRIPTION

THE COURT OF CASSATION, CRIMINAL CHAMBER, in its public hearing held at the Palais de Justice in PARIS, on December 1, two thousand and four, delivered the following judgment:

On the report of the counselor CHALLE, the observations of Me FOUSSARD, and of the professional civil society WAQUET, FARGE and HAZAN, lawyers in the Court, and the conclusions of Mr. Advocate General DI GUARDIA;

Deciding on the appeal brought by:

– THE CITY OF PARIS, civil party,

against the judgment of the investigating chamber of the PARIS Court of Appeal, 3rd section, dated December 5, 2003, which, in the information followed, in particular, against Raymond-Max C …, Daniel D … and Michel E …, heads embezzlement of public funds and concealment, found the prescription of public action;

Having regard to article 575, paragraph 2, 3, of the Code of Criminal Procedure;

Considering the briefs produced in demand and in defense;

On the second ground of cassation, taken from the violation of articles 321-1 and 432-15 and following of the Penal Code, together articles 7, 8, 203, 591 and 593 of the Code of penal procedure, lack of reasons;

“in that the infirmative judgment attacked found the prescription of the facts of embezzlement of public funds imputed to Daniel D … and Michel E … and concealment of this offense imputed to Raymond-Max C …;

“on the grounds that” as noted by the investigating judge, in matters of embezzlement and concealment of this offense, the starting point of the limitation period is on the day when the embezzlement appeared and could be observed under conditions allowing the exercise of public action; in the present case, assuming them established, the diversions were concealed by their authors by resorting to administrative and accounting procedures regular in the form; that heard as a witness on May 20, 2003 by the investigating magistrate, if Georges F … declared to have discovered the fictitious nature of the jobs in question only after having left his functions, specifying that he did not had no competence with regard to contractual project managers, he also explained that he was mandated to submit to the Prefect’s legality control contracts that had not been done until 1988 and that he was subjected to difficulties concerning the bank details of the interested parties in Corrèze then, in 1986/1988, the fact that some of them had joined ministerial cabinets while continuing to be paid by the city of Paris without a secondment agreement; that it follows from the own declarations of Georges F …, civil administrator of his state, that at least during the years 1986/1988, he personally noted the existence of fictitious jobs since certain project managers had joined ministerial cabinets while continuing to be paid by the city of Paris; that, above all, the preliminary investigation mentioned above (D 43 to 88), closed without follow-up on August 18, 1995 on the grounds that it did not allow sufficient evidence to be collected (D 292); that it emerges that the said investigation actually finds its cause in the transcript of an anonymous telephone communication established by an examining magistrate of Créteil, reporting illicit financing by the city of Paris and companies for the benefit many people, some of whom were designated by name, to which were attached a report of the hearing on rogatory commission from Philippe G …, quoted during the said telephone communication, and copies of documents relating to the employment of this one at the town hall of Paris; that by four successive mandates,

that the orders thus given by the public prosecutor to a judicial police service to investigate the reality of the facts denounced to the judge of Créteil implied the search for all the diversions of which the city of Paris may have been victim through ‘fictitious jobs of project managers insofar as the whistleblower had indicated that it was not only Philippe G … who had benefited from them and that other people, of whom he cited some, while specifying the name of some organizers of the system, had benefited from it; that during their hearings within the framework of this preliminary investigation, the people heard all denied the existence of fictitious jobs within the staff of the town hall of Paris; that more precisely, the successive directors of the mayor’s office (Michel E …, Rémy H … and MA ..) denied the existence of such an organization; that MY …, for whom it was established that he was paid by the city of Paris from July 1, 1988 to January 28, 1992, declared to have actually worked for it during this period and to have assumed at the same time the office of voluntary secretary of the Corrèze federation of the Rally for the Republic; that MZ … affirmed to have actually worked during one year, from August 1990 to August 1991, for the city of Paris in addition to the employment which he occupied elsewhere; he was paid by the city of Paris from July 1, 1988 to January 28, 1992, declared to have really worked for this one during this period and to have assumed at the same time the office of voluntary secretary of the corrézienne federation of the Rassemblement pour the Republic ; that MZ … affirmed to have actually worked during one year, from August 1990 to August 1991, for the city of Paris in addition to the employment which he occupied elsewhere; he was paid by the city of Paris from July 1, 1988 to January 28, 1992, declared to have really worked for this one during this period and to have assumed at the same time the office of voluntary secretary of the corrézienne federation of the Rassemblement pour the Republic ; that MZ … affirmed to have actually worked during one year, from August 1990 to August 1991, for the city of Paris in addition to the employment which he occupied elsewhere;

that MI .., president of the Corrèze chamber of commerce, disputed having been the instigator of fictitious jobs, having benefited from them himself and having been responsible for recruiting the people who could be employed in this context by the town hall of Paris; that the Advocate General correctly emphasizes that the persons thus heard did not have recourse to any artifice, confining themselves to denying any infringement, so that no concealment maneuver or consequence of a concealment maneuver can be characterized as having hindered the course of the preliminary investigation and that this concerned the same misappropriations as those currently before the examining magistrate; that she deduces exactly that the absence of discovery of proof of the offenses denounced to the judge of Créteil results exclusively from the absence of more in-depth diligence, even though investigations could usefully have continued in view of the administrative files of Philippe G … and Bernard Y … given to the investigators by Mr. A., then director of the general administration of the city of Paris; that in this state, it is sufficiently demonstrated that the suspicions of embezzlement of public funds were brought to the attention of the public prosecutor in 1995 and that an investigation was then carried out; that it cannot be seriously maintained that the absence of confirmation of the founded character of the anonymous denunciation, at the end of the investigation then carried out, does not allow to retain that the judicial authority does not was not then validly informed of the extent of the facts of misappropriation as it was by the complaint with the constitution of civil party which is at the origin of this information, without disregarding the rules of public order relating to prescription as recalled by the Advocate General; that indeed, have the character of acts interrupting the prescription all those having for object to note the infringements and to discover the authors of them, in particular the reports drawn up by the officers and agents of judicial police within the framework of the instructions given by the public prosecutor, without there being any need to focus on their usefulness or their result; (…); that Mrs. Advocate General correctly observes that the acts of prosecution carried out in a separate procedure, not attached to this information, are not likely to have interrupted the limitation period of the public action with regard to the facts object of the latter; that ultimately, no act of prosecution has taken place in this case between the last act carried out in the context of the preliminary investigation, closed without follow-up in August 1995, and the filing of the complaint with the constitution of civil party of the December 15, 1998 so that the appellants are well founded to avail themselves of the prescription of public action; regard to the facts that are the subject of the latter; that ultimately, no act of prosecution has taken place in this case between the last act carried out in the context of the preliminary investigation, closed without follow-up in August 1995, and the filing of the complaint with the constitution of civil party of the December 15, 1998 so that the appellants are well founded to avail themselves of the prescription of public action; regard to the facts that are the subject of the latter; that ultimately, no act of prosecution has taken place in this case between the last act carried out in the context of the preliminary investigation, closed without follow-up in August 1995, and the filing of the complaint with the constitution of civil party of the December 15, 1998 so that the appellants are well founded to avail themselves of the prescription of public action;

that in any event, to reject a request for an act from MB …, concerning the employment of project manager in Paris under which Philippe G … was paid while he was working in Tulle for the benefit of Raymond -Max C …, the magistrate then in charge of the file has, in the reasons for his order of April 23, 1999, stated that “the facts”, which emerge from the aforementioned procedure closed without continuation, are prescribed since the last act of prosecution dates back to July 20, 1995; that Raymond-Max C … notes with relevance that this same preliminary investigation expressly dealt with the facts relating to the employment of project manager in Paris of Bernard Y …, from which he is presently criticized for having benefited through the Corrèze federation of the Rassemblement pour la République; that

“whereas, firstly, when the offenses are related, an act interrupting the limitation period with regard to one of the offenses, has effect with regard to the others, even if the proceedings have been carried out separately; that there is connectedness since the facts proceed from a single conception and are determined by the same cause and tend to the same goal, regardless of the existence of separate proceedings; that by ruling out any effect on the existence of a possible connection, on the grounds that the acts of prosecution carried out in a separate procedure not attached to this information were not likely to have interrupted the limitation period for the public action with regard to the facts that are the subject of the latter, a legally ineffective reason, the trial judges violated the aforementioned texts;

“and while, secondly, in the present case, in its pleadings, the city of Paris had argued that the facts which are the subject of the present proceedings were related to those which gave rise to the information opened to the tribunal de grande instance de Nanterre, insofar as the tribunal de grande instance of Nanterre was seized of fictitious jobs for the benefit of the Rassemblement pour la République, in particular through the conclusion of contracts for officials of the city of Paris;

that by refraining from examining whether the facts prosecuted in the context of the proceedings before them were not related to the facts prosecuted before the Nanterre Criminal Court, and in particular whether they were not the result of a unique design or had been determined by the same cause and tended to the same goal, the trial judges deprived their decision of legal basis with regard to the aforementioned texts “;

Having regard to articles 203 and 593 of the Code of Criminal Procedure;

Whereas in the event of related offenses which are the subject of separate proceedings, an act interrupting the limitation period concerning one of them necessarily has the same effect with regard to the other regardless of the consolidation of these proceedings;

Whereas any judgment or judgment must include the specific reasons to justify the decision; that the insufficiency or the contradiction of the reasons is equivalent to their absence;

Whereas it follows from the judgment under appeal and from the documents of the procedure that, on December 15, 1998, a taxpayer from the city of Paris, previously authorized by the administrative court, lodged a complaint with the constitution of civil party against an unnamed person , in particular, of the head of embezzlement of public funds, by denouncing the payment, during 1983 to 1988, of remunerations to contractual persons in charge of mission assigned to the office of the mayor of Paris whereas the interested parties would not have provided any effective service or would have exercised their activities for the benefit of other employers; that this complaint was based, in particular, on a certificate of Georges F …, director of the general administration of the city of Paris from 1983 to 1988, and on his hearing, May 20, 1998, in execution of

Whereas, to note the prescription of the facts of embezzlement of public funds accused of Daniel D … and Michel E … and of concealment attributed to Raymond-Max C …, and set aside the order of the examining magistrate who had noted that these facts are related to those subject of the proceedings referred to the criminal court of Nanterre, heads of abuse of corporate assets for the benefit of the Rassemblement Pour la République, the judgment is limited to stating that the acts carried out in separate proceedings, not attached to this information, are not likely to have interrupted the limitation period for the public action with regard to the facts that are the subject of the latter;

But given that by being so determined, without examining whether there was no connection, within the meaning of Article 203 of the Code of Criminal Procedure, between the facts which are the subject of the two proceedings in question and whether the acts carried out in that referred to the correctional court of Nanterre had not interrupted the limitation period with regard to the facts which are the subject of this information, the investigating chamber did not justify its decision;

From which it follows that the cassation is incurred;

For these reasons, and without there being any need to examine the first plea proposed,

BREAK AND ANNUL, in all its provisions, the aforementioned judgment of the investigating chamber of the Paris Court of Appeal, dated December 5, 2003, and for it to be tried again, in accordance with the law ,

REFERS the case and the parties to the investigative chamber of the Versailles Court of Appeal, to that designated by special deliberation taken in the council chamber;

ORDERS the printing of this judgment, its transcription on the registers of the clerk of the investigative chamber of the Paris Court of Appeal, its mention in the margin or following the annulled judgment;

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. Pibouleau senior advisor, acting as president to replace the president unable to attend, Mr. Challe advisor rapporteur, MM. Roger, Dulin, Mmes Thin, Desgrange, MM. Rognon, Chanut, Mme Nocquet, councilors of the chamber, Mme de la Lance, M. Soulard, Mme Salmeron, Degorce referendum councilors;

Advocate General: Mr. Di Guardia;

Clerk of the chamber: Ms. Randouin;

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

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