Search For Information Tending To The Constitution Of Evidence In Foreign Proceedings
lexinter | March 20, 2017 | 0 Comments

Search For Information Tending To The Constitution Of Evidence In Foreign Proceedings

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE

THE COURT OF CASSATION, CRIMINAL CHAMBER, delivered the following judgment:
Ruling on the appeal brought by:

X … Christopher,

against the judgment of the PARIS Court of Appeal, 9th chamber, dated March 28, 2007, which, for research of economic, commercial, industrial, financial or technical information tending to the constitution of evidence in a procedure foreigner, sentenced him to a fine of 10,000 euros;

Considering the brief produced;

On the first ground of appeal, based on the violation and false application of Chapter 2 of the Hague Convention of March 18, 1970 on the taking of evidence abroad in civil or commercial matters and of Articles 1134 of the Civil Code, 111-4 of the penal code, 1 bis of law n ° 68-678 of July 26, 1968 amended by law n ° 80-538 of July 16, 1980, 591 and 593 of the code of penal procedure, lack and contradiction of reasons, lack of legal basis;

“in that the contested nursing judgment declared Christopher X … guilty of the offense defined in article 1 bis of the law of July 26, 1968, amended by the law of July 16, 1980;

“on the grounds that it results from the letter sent on December 21, 2000 by Jean-Claude Y … to Christopher X … , in reaction to a previous interview, that this lawyer asked his interlocutor to provide him with information on the manner in which the decisions of the MAAF board of directors were taken at the time of the takeover of Executive Life, alleging that the members of the board of directors had not been properly informed … that it had not was debated and decisions were taken in the corridors “; and having preached the false for the true knowledge,” Christopher X … s’is seen answering by Jean-Claude Y … that he had never taken a decision in the corridors in all the boards of directors in which he had participated ”; that he, in this way, obtained, or in any case attempted to obtain, the proof that the administrators of the MAAF had taken their decisions in full knowledge of the facts; that, contrary to what he maintains, Christopher X … was therefore not satisfied with approaching, in a neutral manner, persons whose testimony could subsequently have been requested within the framework of a procedure in accordance with the provisions of Chapter 2 of the Hague Convention, which authorizes the search for evidence by a diplomatic agent or an independent commissioner mandated by the foreign court, subject to the agreement of the competent authority designated by the executing State; that he sought, when he did not have any authorized mandate within the meaning of this convention, information s whose economic, commercial or financial nature is proven, and which tended to constitute evidence, since they were likely to justify the appointment of Jean-Claude Y … as prosecution witness in the proceedings pending before the California jurisdiction and guide his subsequent questioning; that the violation of article 1 bis of law n ° 68-678 of July 26, 1968, amended by law n ° 80-538 of July 16, 1980 is established;

“1 °) whereas the provisions of article 1 bis of law n ° 68-678 of July 26, 1968 amended by the law of July 16, 1980 are enacted subject to treaties or international agreements including the Convention of Haye of March 18, 1970, which provides, in Chapter 2, for the taking of evidence by a diplomatic agent or an independent commissioner mandated by the foreign jurisdiction; that, as Christopher X did … in his pleadings regularly filed and therefore neglected, the obtaining of evidence in application of the provisions of this chapter requires the prior consent of any witnesses since under Article 17 of the agreement, the commissioner does not have no power of constraint to proceed to acts of instruction and that it is such a prior agreement that he had therefore sought to collect from his interlocutor, Jean-Claude Y … ;

“2 °) whereas the letter of December 21, 2000 sent by Jean-Claude Y … to Christopher X … being in the file of the procedure, the Court of Cassation is able to ensure that it does not result not on his terms that Christopher X … has committed, according to the expression of the court of appeal, an abuse in the search for evidence ”likely to characterize the violation of article 1 bis of the law of July 26, 1968 but, being responsible for the interests of the State of California in the Executive Life file, limited to approaching people whose testimony could subsequently be requested in the context of a procedure in accordance with the provisions of Chapter 2 of the Hague Convention and that by distorting the terms clear from the letter which was submitted to it, the Court of Appeal also ruled by a decision marked by contradiction of reasons, which must be censured;

“3 °) whereas the obtaining of evidence outside of any solicitation is not criminalized by article 1 bis of the law of July 26, 1968; that the terms of the same letter show that intelligence” according to which Jean-Claude Y … would never have made the decision in the corridors of all the boards of directors in which he participated ”does not result from a solicitation of Christopher X … but from a spontaneous declaration of his interlocutor, as such, not punishable;

“4 °) whereas it finally results from the statements of the letter sent on December 21, 2000 by Jean-Claude Y … to Christopher X … that the approach” of Christopher X … was based on the search for the truth “therefore excluding that the latter has sought to guide the possible subsequent testimony” of his interlocutor as stated by the Court of Appeal in its reasons once again marked by contradiction “;

On the second ground of cassation, taken from the violation and false application of articles 1 bis of the law n ° 68-678 of July 26, 1968 modified by the law n ° 80-538 of July 16, 1980,591 and 593 of the code of criminal proceedings, lack of reasons, lack of legal basis;

“in that the contested nursing judgment declared Christopher X … guilty of the defined in article 1 bis of the law of July 26, 1968, amended by the law of July 16, 1980;

“on the grounds that it results from the letter sent on December 21, 2000 by Jean-Claude Y … to Christopher X … , in reaction to a previous interview, that this lawyer asked his interlocutor to provide him with information on the manner in which the decisions of the MAAF board of directors were taken at the time of the takeover of Executive Life, alleging that the members of the board of directors had not been properly informed … that it had not was debated and decisions were taken in the corridors “; and having preached the false for the true,” Christopher X … s’is seen answering by Jean-Claude Y … that he had never taken decisions in the corridors in all the boards of directors in which he had participated ”; that he, in this way, obtained, or in any case attempted to obtain, the proof that the administrators of the MAAF had taken their decisions in full knowledge of the facts;

“whereas, as the first judges had correctly stated, the mere allusion to the fact that the decisions of a board of directors would or not be taken in the corridors” does not constitute information of an economic or commercial nature, industrial, financial or technical falling within the scope of article 1 bis of the law of July 26, 1968 “;

On the third ground of appeal, based on the violation of articles 6 and 7 of the European Convention on Human Rights, 1 bis of law n ° 68-678 of July 26, 1968, amended by law n ° 80-538 of July 16, 1980, 591 and 593 of the Code of Criminal Procedure, lack of reasons, lack of legal basis;

“in that the contested nursing judgment declared Christopher X … guilty of the offense defined in article 1bis of the law of July 26, 1968, amended by the law of July 16, 1980;

“on the grounds that, contrary to what Christopher X maintains … , this incrimination, which aims to limit the abuses that can be committed in the search for evidence, does not constitute a disproportionate interference with the rights of the defense”; that the exercise of these rights is guaranteed by the guarantees attached to the procedures established by the Hague Convention;

“1 °) whereas cannot be considered as an abuse in the search for evidence”, the solicitation, supposing it to be proven, of information of an economic, commercial, industrial, financial or technical nature operated as in the present case without restraint ;

“2 °) whereas the right to a fair trial to which States are not authorized to impose any restriction (except with regard to the publicity of the hearing) implies a free and unhindered search of the evidence and that article 1bis of the law of July 26, 1968, insofar as it is interpreted as an obstacle to the exercise of this right, is incompatible with the provisions of articles 6 and 7 of the European Convention on Human Rights. ‘man “;

On the fourth ground of appeal, taken from the violation of articles 10 of the European Convention on Human Rights, 1 bis of law n ° 68-678 of July 26, 1968 amended by law n ° 80-538 of 16 July 1980, 591 and 593 of the Code of Criminal Procedure, lack of reasons, lack of legal basis;

“in that the contested nursing judgment declared Christopher X … guilty of the offense defined in article 1bis of the law of July 26, 1968, amended by the law of July 16, 1980;

“1 °) whereas the provisions of article 1 bis of law n ° 68-678 of July 26, 1968 are enacted subject to international treaties or agreements including the European Convention on Human Rights; that this Convention specifies in Article 10 that the right of everyone to freedom of expression includes in particular the freedom to receive or impart information s without there being any interference from public authorities and regardless of border and that penalize the words of a lawyer who confined himself to reporting during a telephone conversation addressed to the former leader of ‘a mutual that the members of the board of directors (of this mutual) had not been well informed, that the issue had not been discussed and that the decisions would have been taken in the corridors ”constitutes an obstacle to freedom of expression and therefore a violation of Article 10 above;

“2 °) whereas this obstacle to freedom of expression is not justified within the meaning of article 10-2 of the convention since the general and absolute ban on communicating any information” – however trivial – it – of an economic, commercial, industrial, financial or technical nature tending to the constitution of evidence with a view to or within the framework of foreign judicial or administrative proceedings ”, constitutes an unnecessary and therefore disproportionate measure in a company democratic, including to protect the rights and reputations of others and to guarantee the authority and impartiality of the judiciary “;

The means being united;

Whereas it results from the judgment under appeal and from the procedural documents that the Federal Court of California, seized of a dispute relating to the conditions of the takeover of the North American life insurance company Executive Life and opposing the Commissioner to the assurances of this State to the French artisanal mutual insurance company (MAAF), issued, in particular in April and December 2000, international civil letters rogatory tending to the communication, by the latter company, of documents relating to the dispute , according to the modalities defined by the Hague Convention of March 18, 1970; that Chritopher X …, lawyer corresponding in France of the North American lawyer of the insurance commissioner, at the end of the year 2000, contacted Jean-Claude Y …, former administrator of the MAAF, to obtain information on the conditions in which the decisions of the board of directors of this company were taken at the time of the takeover of Executive Life, alleging that “the members of the board of directors had not been properly informed … that it was not ‘had not been discussed and that decisions would have been taken in the corridors “; that after an information judiciary, open complaint with constitution of civil part of the MAAF, has been referred to the court for having requested or sought information of an economic, commercial, industrial, financial or technical nature tending to the constitution of evidence with a view to foreign judicial or administrative proceedings, facts provided for and punished by articles 1 bis and 3 of the law of July 26, 1968, as amended;

Whereas, in order to find the accused guilty of this offense, the judgment states that the latter did not content itself with approaching, in a neutral manner, persons whose testimony could subsequently have been requested in accordance with the provisions of the Convention de la Haye, but has obtained, or in any case attempted to obtain, proof that the directors of the MAAF had made their decision with full knowledge of the facts; that the judges add that by acting thus, Christopher X … sought, while he was deprived of any authorized mandate within the meaning of the aforementioned convention, informations of an economic, commercial or financial nature tending to the constitution of evidence, capable of justifying the designation of the person approached as a prosecution witness in the procedure followed before the Californian court and of guiding his subsequent questioning; that they note, finally, that, contrary to what the defendant maintains, the incrimination, which aims to limit the abuses that may be committed in the search for evidence, does not constitute a disproportionate obstacle to the rights of the defense, of which the exercise is ensured by the guarantees attached to the procedures established by the Hague Convention;

Whereas in the state of these statements, from which it follows that the information sought on the circumstances in which the board of directors of MAAF made its decisions on the takeover of the company Executive Life are of an economic nature , financial or commercial and tend to the constitution of evidence in a foreign judicial procedure, the court of appeal, which answered the peremptory arguments of the conclusions, justified its decision, without disregarding the conventional texts invoked;

From which it follows that the means must be discarded;

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. Cotte president, Mrs. Nocquet advisor rapporteur, Mr. Dulin, Ms. Thin, Desgrange, Mr. Rognon, Ms. Ract-Madoux, Mr. Bayet advisers of the chamber, Mr. Soulard, Ms. Slove , Degorce, Labrousse referendum advisers;

Advocate General: M. Boccon-Gibod;

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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