France’s highest appeals court on overturned a ruling on Wednesday that shops in the country cannot legally sell cannabidiol (CBD)
Based on the free trade of goods within the European Union, the Cour de cassation ruled that judges could not find the sale of CBD in France illegal if it had been legally produced in a member state of the bloc.
The Court of Justice of the EU ruled last year that no national law can prohibit the sale of CBD legally produced in a member state, the French court also said.
“Without considering whether the substances seized had not been legally produced in another member state of the European Union, the court failed to provide a basis for its decision,” it said, referring to a ruling of a lower appeals court.
The Cour de cassation did not rule whether selling CBD in France was legal or not, and ordered a lower court to rule again on a case involving the owner of a shop selling CBD.
His decision was eagerly awaited. The Court of Cassation quashed on Wednesday a judgment condemning the manager of a shop in Grenoble which sold products based on cannabidiol (CBD) – the non-psychotropic molecule of cannabis – and ordered a new trial in Paris.
In its judgment “of general application”, the highest judicial authority follows the opinion of the Court of Justice of the European Union which indicated in November that “the free movement of goods within the EU is opposed to this that one of its member states prohibits the marketing of CBD if it is legally produced in another member state “.
Friday June 4, 2021
Appeal n ° 21-81.656
The Court dismisses the appeal of a former minister against the judgment of the Court of Justice of the Republic which convicted him, on March 4, 2021, for complicity in the abuse of corporate assets.
The facts and the procedure
A former minister is accused of having participated in the establishment of a network of intermediaries responsible for promoting the signing of armaments contracts concluded with Saudi Arabia and Pakistan, with abnormal remuneration conditions, which made it possible to generate retro-commissions intended to finance the presidential electoral campaign of a former prime minister in 1995.
The intermediaries concerned and other persons who took part in the organization of the fraud are the subject of prosecution before the ordinary courts.
The Court of Justice of the Republic was seized in 2019 to judge the former prime minister and the former minister.
On March 4, 2021, the Court of Justice of the Republic sentenced the former minister for acts of complicity in the abuse of corporate assets to two years’ suspended imprisonment and a 100,000 euros fine. She released the former prime minister who was being prosecuted for the same facts and for concealment.
The appeal to the Court of Cassation
The Court of Cassation was seized by the former minister of an appeal against this judgment of the Court of Justice of the Republic of March 4, 2021.
The plenary assembly of the Court of Cassation examined the seven grounds raising procedural and substantive questions. Only the first question, which concerns the late notification to an accused of the right to remain silent, is novel.
The judgment of the Court of Cassation
The plenary assembly clarified the case law of the criminal chamber of the Court of Cassation by ruling that when the notification of the right to remain silent occurs after the preliminary debates on a request presented by another party and that the accused person has not taken the floor, it is up to the latter to establish how this irregularity harmed its interests.
However, the former minister did not provide proof of a grievance resulting from the late notification of his right to remain silent.
The law of 23 November 1993 provides that the procedure applicable to debates before the Court of Justice of the Republic is that which is followed before the criminal court. Beyond this specific case, the solution could therefore apply to common law proceedings in criminal matters.
The other grounds also being rejected, the judgment of the Court of Justice of the Republic condemning the former minister is confirmed.
Judgment n ° 655 of June 4, 2021 (21-81.656) – Cour de cassation – Plenary assembly
– ECLI: FR: CCASS: 2021: AP00
COURT OF JUSTICE OF THE REPUBLIC – RIGHT OF DEFENSE
Applicant (s): Mr. C … Z …
Facts and procedure
1. It follows from the contested judgment and the procedural documents as follows.
2. Information has been opened relating in particular to the circumstances in which intermediaries, including MM. [D] [AB], [F] [J] and [H], designated under the name “network K”, in the commercial steps taken with a view to the conclusion of armaments contracts between France and the authorities of ‘Saudi Arabia, on the one hand, and Pakistan, on the other.
3. By an order of 12 June 2014, the investigating judges referred MM. [CD] [P], [F] [J], [D] [AB], [B] [Y], [CF] [AE] and [CE] [Q], in particular counts of misuse of property social to the detriment of the companies French Company for the Export of Armament Systems (Sofresa) and the Direction des Chantiers Navals-International (Dcn-I), complicity and concealment of these same crimes. These private companies with public capital had been delegated by the French State for the management of certain aspects of the arms markets concerned and had also appointed and remunerated the intermediaries solicited with a view to canvassing foreign States.
4. Prior to this decision, these same judges, by order of February 6, 2014, declared themselves incompetent to know facts likely to be attributed to MM. [A] [X] and [C] [Z], which the latter may have committed in the exercise of their ministerial functions.
5. Seized by requisitions of June 26, 2014, the investigating committee of the Court of Justice of the Republic, by judgment of September 30, 2019, ordered the referral to the judgment formation of this same Court of Mr. [X] for complicity in the abuse of corporate assets of Sofresa and Dcn-I and concealment, and Mr. [Z] for complicity in the abuse of corporate assets to the detriment of the same legal persons.
6. By judgment of March 4, 2021, the Court of Justice of the Republic acquitted Mr [X] and declared Mr [Z] guilty, which she sentenced to two years’ suspended imprisonment and 100,000 euros. ‘fine.
Consideration of means
On the first plea
Statement of means
7. The plea accuses the judgment of informing Mr. [Z] of his right to remain silent after the debate on the requests for additional information and the joining of the incident to the merits, then ” that in application of article 406 of the code of criminal procedure the president, after having established his identity and given knowledge of the act which seized the court, informs the defendant of his right, during the debates, to make statements, to answer questions put to him or to be silent; that the disregard of the obligation to inform the accused of the right to remain silent necessarily adversely affects him; that the protection of the rights of the defense sought by this text is guaranteed only if the accused is informed of this right at the opening of the hearing before any debate, including on requests for additional information raised in limine litis; that it follows in this case from the references to the judgment under appeal that Mr. [Z], who appeared at the hearing of the Court of Justice on January 19, 2021, was only informed of the right to make statements, to answer questions put to him or to remain silent after Mr. [X] ‘s lawyers supported a request for further information in limine litis, which the public prosecutor presented his requisitions on this request and that the Court joined the incident to the merits after withdrawing to deliberate; that in ruling thus, whereas the debates had begun as of the examination of this request, the court of appeal ignored the meaning and the scope of the aforementioned text. ”
Response of the Court
8. According to article 406 of the Code of Criminal Procedure, the president or one of the assessors appointed by him, after having ascertained his identity and given knowledge of the act which has referred to the court, informs the accused of his right, during the debates, to make statements, to answer questions put to him or to be silent.
9. These provisions are, in accordance with article 26 of organic law n ° 93-1252 of 23 November 1993, applicable before the Court of Justice of the Republic.
10. Pursuant to article 802 of the Code of Criminal Procedure, in the event of violation of the forms prescribed by law on pain of nullity or non-observance of the substantive formalities, any court, including the Court of Cassation, which is seised of a request for annulment can only pronounce the nullity when this has had the effect of harming the interests of the party to which it concerns.
11. Such an attack is necessarily characterized with regard to the accused, when the information required by the aforementioned article 406 has not been provided (Crim., July 8, 2015, appeal n ° 14-85.699, Bull. Crim. 2015, n ° 178).
12. The situation is different for an accused who receives this information after introductory debates on a request presented, at the beginning of the hearing, by another party, and during which he has not taken the floor. In this case, the late completion of this formality can only entail a nullity with regard to this accused if he can justify that his interests have been harmed.
13. The judgment mentions that the President read out the document which referred the matter to the Court, noted the presence of Mr [X] ‘s lawyers, asked Mr [Z] whether he had appointed a lawyer, the interested party having replied that he was alone in his defense.
14. He states that the president gave the floor to the lawyers of Mr. [X] on their request for additional information presented in limine litis, that the public prosecutor presented his requisitions, that the lawyers of Mr. [X] indicated that they had no further observations to make and that after a recess, the President informed the parties that the incident was joined to the merits.
15. He added that the President then notified the defendants of their right, during the debates, to make statements, to answer questions put to them or to be silent.
16. If it is wrong that this notification was made to Mr. [Z] after the discussions held on the request for additional information, the judgment does not incur censorship, for the reasons following.
17. In the first place, the Court of Justice of the Republic was not seized of any request presented by Mr. [Z].
18. Secondly, the complainant did not speak during the discussions on the additional information and does not allege that he was prevented from doing so.
19. Finally, Mr [Z], who could himself formulate any request for additional information at any time, including during the proceedings on the merits, does not rely on any complaint resulting from the conditions under which the request presented. by Mr [X] was referred to or the decision to join it to the merits and does not criticize the grounds on which it was rejected either.
20. In those circumstances, Mr [Z] is not justified in maintaining that the late notification which was made to him, during the proceedings, of his right to make statements, to answer the questions put to him or to to remain silent, necessarily adversely affects her and does not establish how she would have harmed her interests.
21. The plea must therefore be rejected.
On the second plea
Statement of means
22. The plea criticizes the judgment for overriding the hearing of absent witnesses without having requested Mr. [Z] ‘s observations on this point and without justifying it, then “That any accused has the right to examine or have examined witnesses against him and to obtain the summons and examination of witnesses on his behalf under the same conditions as witnesses against him; that the procedure as a whole must respect the rights of the defense, the adversarial principle and the principle of equality of arms; that by deciding to bypass the hearing of the four absent witnesses after having collected the observations of the public prosecutor and counsel for Mr. [X], without even having requested Mr. [Z ]’s observations on this point, and without having justified its decision in the light of the circumstances of the case, the Court of Justice disregarded the right to a fair trial as guaranteed by Articles 6, § 1 and 6, § 3, d, of the European Convention on Human Rights. man, Articles 591 and 593 of the Code of Criminal Procedure, ”
Response of the Court
23. According to Article 6, § 3, d, of the Convention for the Protection of Human Rights and Fundamental Freedoms, every accused has the right in particular to examine or have examined the witnesses against him and to obtain the summons and the examination of defense witnesses under the same conditions as prosecution witnesses.
24. According to settled case law (Crim., June 27, 2001, appeal n ° 00-87.414, Bull. Crim., 2001, n ° 164; Crim., March 4, 2014, appeal n ° 13-81.916, Bull. Crim. , 2014, n ° 63), the trial judges cannot, without incurring censorship, refrain from ordering the hearing of witnesses requested by the defense without stating the reasons for their decision, if they are seized by conclusions , regularly filed, exposing the usefulness of their testimonies.
25. In order not to proceed with the hearing of four of the eight witnesses cited by the public prosecutor alone, the judgment mentions that the president called the witnesses, noted that four of them were present and gave notice of the apologies invoked by those who were absent, whom the representative of the public prosecutor immediately afterwards indicated that he was waiving the hearing of defaulting witnesses and that Mr [X] ‘s lawyers stated that they had no observations to make.
26. The judgment specifies, after the questioning of the defendants on the merits, that the witnesses present were heard and that the president then read out the depositions of three of the four absent witnesses, gathered during the information.
27. In the state of these statements, Mr. [Z] cannot complain about the alleged insufficiency of the reasons by which the Court of Justice of the Republic decided not to hear the absent witnesses, nor of this that his observations were not solicited on this point.
28. In fact, on the one hand, these witnesses were called by the public prosecutor, who immediately abandoned their hearing, and Mr. [Z] did not himself seize the court of any request to appear or hearing of witnesses, whether at the opening of the proceedings or during the hearing, on the other hand, it does not explain how the decision not to order the hearing of witnesses called by the Ministry public would harm his interests, finally, he does not allege that he was prevented from expressing himself.
29. Consequently, the plea cannot be accepted.
On the third plea
Statement of means
30. The plea criticizes the judgment for considering that the acts of complicity in the abuse of corporate assets allegedly committed from 1993 to 1995 are not time-barred, then:
“1 ° / that the prescription of public action for the offense of misuse of corporate assets runs from the presentation of the annual accounts by which the disputed expenses were charged to the company; that it is only in the event of concealment that the starting point of this period can be postponed to the day when the facts appeared and could be noted under conditions allowing the exercise of public action; that in the present case, it follows from the own findings of the judgment under appeal that the payment of the commissions attached to the disputed contracts by the companies Sofresa and Dcn-I had indeed been entered in the social accounts of 1995 and 1996 under the name “technical costs” and “advances on commission”; that by postponing the starting point of public action,
2 ° / that in the event of concealment, the starting point of the limitation period for public action must be set on the day when the offense appeared and could be observed under conditions allowing the exercise of public action ; that to rule out any prescription notwithstanding the numerous press articles published in July 1996 echoing irregularities concerning the armaments contracts signed on the one hand, with Pakistan and, on the other hand, with Arabia Arabia, and explicitly referring to the establishment of a possible system of retro-commissions in favor of Mr. [X], the Court of Justice affirms that “the starting point of the limitation period cannot depend on the publication of articles poorly detailed press, often written in the conditional and limited to expressing a suspicion or considering a hypothesis ”;
3 ° / that in the event of concealment, the starting point of the limitation period for public action must be set on the day when the offense appeared and could be observed under conditions allowing the exercise of public action ; that in order to rule out any prescription notwithstanding the proven knowledge of the facts referred to in this prevention by the investigating magistrates and the public prosecutor in the so-called Fondo case from 1998 and 1999, the Court of Justice confines itself to the peremptory affirmation that “l ‘Fondo case invoked by Mr [X] is totally unrelated to the facts of the case ”; that it nevertheless results from the referral judgment of the investigating committee of the Court of Justice of the Republic (CJR D 4059 p. 224), that the judicial investigation opened in 1997 in the Fondo file, relating to a loan contract of 5 million francs backed by a deposit of cash of the same amount which benefited the Republican Party in June 1996, raised the question of the origin of the funds and the possible links between these species and the contracts weaponry covered by this prevention, as expressly noted in the aforementioned judgment of September 30, 2019, stating that “this lead had already appeared in the Fondo file”; that it also results from the documents extracted from the Fondo proceedings and attached to the present proceedings, that Mr. [CG] [BA], journalist had been questioned by the investigating magistrates on October 28, 1998 following the broadcast of his reports of September 6 and 20, 1998 on Canal + in the program “Le Vrai journal”, on the possible origin of 5 million species, in view of the two testimonies received “from intermediaries who had a role to play, with regard to the retrocession of commissions which would have been paid on the occasion of the arms market concluded between France and Saudi Arabia , under the name of Sawari II ”(CJR D506 / 3); that it finally results from the documents produced by Mr. [X] in support of his conclusions, that in this file of the Fondo, after having knowledge of the facts reported by the journalist of Canal +, the public prosecutor had requested to the investigating magistrates, in a supplementary indictment of August 6, 1999, to “continue to inform about facts which they are already seized of (…) and in particular for the purposes of researching the origin of the 5 million species deposited with the FSCE in the ‘American Express Bank in Luxembourg (request for lifting of defense secrecy) ”, request which had been rejected by the investigating magistrates as well as by the investigating chamber following the appeal of the Public Prosecutor’s Office; that in the light of these objective and consistent elements such as to establish that as early as 1998, and no later than August 6, 1999 in the so-called Fondo judicial investigation, the public prosecutor was fully aware of the possible existence of retrocommissions linked to the weapons contracts subject to prevention, the Court of Justice could not, without distorting the documents of the procedure and the documents produced in the debates, affirm that the Fondo case was totally unrelated to the facts of the case; that in so pronouncing, the Court of Justice disregarded Articles, 8 in the wording applicable to the facts of the case, 9-1 and 593 of the Code of Criminal Procedure, together with Articles L. 242-6 paragraph 1,
4 ° / that by thus refusing to take into consideration the decisive documents from the Fondo file, fundamental to the exercise of the rights of the defense, in that they were such as to indisputably establish the prescription of the facts referred to to the present prevention, and produced at the hearings for the first time before the Court insofar as they had been deliberately concealed throughout the investigation procedure from all the accused persons, who were refused, to several times, the communication of the entire Fondo file, in order to have contradictory access only to certain documents in this file, carefully sorted by the examining magistrate with the obvious aim of avoiding the discovery of the acquisition of the prescription by the defense, the Court of Justice disregarded Mr.[Z] to a fair trial, which implies respect for the principle of equality of arms and the fundamental right to the adversarial nature of the procedure, together with respect for the rights of the defense, and has deprived its decision of any legal basis. with regard to articles, preliminary, 427 and 593 of the Code of Criminal Procedure, 6, § 1 and 6, § 3 of the European Convention on Human Rights. ”
Response of the Court
31. According to settled case-law (Crim., May 3, 1990, appeal n ° 89-81.370, Bull. Crim. 1990, n ° 168; Crim., June 25, 2013, appeal n ° 11-88.037, Bull. . crim. 2013, n ° 153), on the one hand, the limitation exception is of a public policy nature and can, as such, be raised at any time, on the other hand, when it is invoked for the first time before the Court of Cassation, it is admissible only on the condition that the Court finds in the findings of the judges on the merits, that it was up to the applicant if necessary to provoke, the elements necessary to assess them the value, failing which the means taken from the prescription of public action is new and mixed in fact and in law, and as such inadmissible.
32. It does not follow from any statement of the judgment, nor from any conclusion before the Court of Justice of the Republic, that Mr. [Z] has pleaded that the prosecution is time-barred.
33. The judgment does not contain the elements necessary to assess the value of those of the complaints formulated in the third part of the plea, based on the supplementary indictment of 6 August 1999, which were not submitted for the assessment of the judges of the background. In so far as it is based on this supplementary indictment, this plea is therefore inadmissible.
34. It is therefore for the Court of Cassation, in order to respond to the first two branches of the plea and the other complaints formulated in the third branch, to examine whether it finds in the findings of the trial judges the elements enabling the limitation to be established. of public action.
35. According to article 8 of the Code of Criminal Procedure in the version then in force, the limitation period for public action for offenses of misuse of corporate assets, complicity and concealment of abuse of corporate assets is d. ‘a period of three years. In the event of concealment, this period runs, according to settled case-law (Crim., February 13, 1989, appeal n ° 88-81.218, Bull. Crim. 1989, n ° 69) from the day on which the offense appeared and ended. could be observed under conditions allowing the exercise of public action.
36. To reject the plea taken from the prescription of the public action presented by Mr. [X] before the Court of Justice of the Republic, after noting that the facts alleged against MM. [Z] and [X] ran from 1993 to 1995, the judgment states that the starting point of the limitation period was set at September 21, 2006, the date on which was seized, in the context of an investigation opened at the beginning of 2006, the Nautilus file, which included a note of September 11, 2002 indicating a link between the Karachi attack of May 8, 2002 and the system of hidden remuneration set up on the occasion of the procurement sale of arms, which made it possible to finance the electoral campaign of Mr. [X], a note which the investigating committee noted to be secret until it was seized in 2006,
37. The judgment recalls, on the one hand, that the payment of the sums in dispute was, in fact, entered in the accounts of the companies Sofresa and Dcn-I under the sole designation of ‘technical costs’ or’ advances on commission. », Not allowing the identification of the nature of the expenses, on the other hand, that the only mention of such payments did not make it possible to detect a possible abuse of social good without carrying out an analysis of the methods of payment of the commissions.
38. He adds that it is irrelevant that certain public authorities may have become aware of facts liable to constitute offenses since this information has not been brought to the attention of the public prosecutor, which alone can carry out public action. , and that the starting point of the prescription could not depend on the publication of poorly detailed press articles, often written in the conditional and limited to expressing a suspicion or considering a hypothesis.
39. It further specifies that it cannot be maintained that the judicial authorities were aware of the existence of retrocommissions paid to network K under the contracts at issue since, on the one hand, the case of Fondo is completely foreign to the facts of the case, on the other hand, the report of Mr. [TY] of April 23, 1998 was not brought to the attention of the public prosecutor before its filing within the framework of the information conducted by investigating judges.
40. It follows from these findings, devoid of insufficiency or contradiction, that the Court of Justice of the Republic has exactly set the starting point for the limitation period on September 21, 2006, so that public action is not prescribed and that in its first two branches and for the remainder of the third, the plea is unfounded.
41. Finally, the Court of Justice of the Republic, which was not seized by Mr. [Z] of any means relating to the conditions under which an annexation only partial in the file of the procedure of documents extracted from the file of the so-called Fondo case could have constituted an infringement of the principles of a fair trial, did not, in order to retain that this case was foreign to the facts before it, excluded those of these documents which were produced for the first time before it, of so that the fourth branch is actually missing.
42. The plea must therefore be rejected.
On the fourth plea
Statement of means
43. The plea criticizes the judgment for declaring Mr. [Z] guilty of complicity in the abuse of corporate assets without ruling on the violations of his right to a fair trial and of the rights of the defense, due to the unreasonable delay that has elapsed. between the facts, the beginning of the proceedings, and its judgment by the Court of Justice of the Republic, then ” that the right to a fair trial implies that anyone against whom a criminal charge is brought has the right to have their case tried within a reasonable time so that the rights of the parties are preserved; that it follows in the present case from the own references to the judgment under appeal that Mr. [Z] had invoked a violation of his right to a “fair trial due to the unreasonable delay between the facts, the beginning of the proceedings and the present hearing ”; that despite the resulting obvious infringement of the rights of the defense, as regards a judgment relating to facts allegedly committed more than 28 years previously, in the state of the inevitable decline of evidence due in particular on the death not only of the main negotiator of the contracts, but also of many of the parties to the disputed contracts, the contested judgment confines itself to declaring Mr [Z] guilty of the acts with which he is accused without any reason being explained on the manifestly unreasonable duration of the proceedings; by pronouncing thus, the Court of Justice disregarded Articles 6, § 1, of the European Convention on Human Rights, preliminary and 593 of the Code of Criminal Procedure, together Article L. 111-3 of the Code of judicial organization. ”
Response of the Court
44. Article 385 of the Code of Criminal Procedure, applicable before the Court of Justice of the Republic, provides that exceptions of nullity must, in all cases, be presented before any defense on the merits.
45. It does not appear either from the references to the judgment or from the memorandum sent to the Court of Justice of the Republic before the opening of the proceedings by Mr [Z] that the latter brought an objection of nullity to this court. exceeding the reasonable time limit owing to the excessive length of the proceedings.
46. If, from February 2, 2021, Mr [Z] was represented and then assisted by a lawyer, the latter has not presented any conclusions for the same purposes and, according to the statements of the judgment, has Orally requested, primarily, the release of the person concerned, as well as, alternatively, the annulment of the proceedings for exceeding the reasonable time between the facts, the start of the proceedings and the hearing of the judgment.
47. Mr [Z] cannot complain about the lack of response to the latter request, since the objection of nullity presented by his lawyer at the time of the proceedings on the merits was, therefore, inadmissible.
48. In any event, according to settled case-law (Crim., April 24, 2013, appeal n ° 12-82.863, Bull. Crim. 2013, n ° 100), exceeding the reasonable time defined in article 6, § 1, of the Convention for the Protection of Human Rights and Fundamental Freedoms has no effect on the validity of the procedure and cannot be used as the basis for a request for annulment of the same procedure.
49. The plea must therefore be rejected.
On the fifth plea
Statement of means
50. The plea criticizes the judgment for declaring Mr. [Z] guilty of complicity in the abuse of corporate assets, after ruling on the guilt of [CF] [O] and Mr. [P] on account of abuse of corporate assets, in their respective capacities as CEO of Sofresa and Dcn-I, then:
“1 ° / that under article 68-1 of the Constitution, the Court of Justice is competent to judge members of the government for acts qualified as crimes or offenses committed in the exercise of their functions; that by declaring MM. [O] and [P] guilty of the offense of misuse of corporate assets, the complicity of which was alleged against Mr. [Z], when the latter, in their respective capacities as directors of the companies Sofresa and Dcn-I, fell within the jurisdiction of ordinary courts, the Court of Justice of the Republic has ruled beyond its jurisdiction in violation of the aforementioned article;
2 ° / that to declare Mr. [Z] guilty of complicity in the abuse of corporate assets allegedly committed by Mr. [O] in his capacity as president of Sofresa, the judgment under appeal declares that the latter is “the author” the offense of misuse of corporate assets committed to the detriment of Sofresa due to use of company assets contrary to the corporate interest, committed in its personal interest; that it is however common ground that the public action was extinguished with regard to Mr. [O], because of his death on October 16, 2011, without that it was never able to be heard during the judicial information and without his guilt having ever been established by a court during his lifetime; that thus pronouncing on the basis of a post-mortem conviction at the origin of the implication of Mr. [Z] as an accomplice, the Court of Justice not only disregarded the right to a fair trial, which implies respect for equality of arms and a fair balance between the parties, and presupposes that the accused is able to defend his case under conditions comply with the principle of equity, but also the right to the presumption of innocence, in violation of Articles 6, § 1 and 6, § 2 of the European Convention on Human Rights. “
Response of the Court
51. It follows from Articles 121-6 and 121-7 of the Criminal Code that complicity presupposes the existence of a main punishable fact that it is for the trial judges to characterize in all its elements, without consideration for the situation of the main author of this fact with regard to the prosecution (Crim., May 28, 1990, appeal n ° 89-83.826, Bull. crim. 1990, n ° 214).
52. The Court of Justice of the Republic, which investigated, as it should, whether the main fact, defined by the order for reference as abuse of corporate assets attributable to [CF] [O], deceased, and to M. [P], was characterized, and who examined for this purpose whether the property or credit of the companies Sofresa and Dcn-I had been made by their respective managers, for personal purposes, a use contrary to the ‘interest of these, did not rule on the guilt of the latter two.
53. The plea must therefore be rejected.
On the sixth plea, taken in its first three branches
Statement of means
54. The plea criticizes the judgment for declaring Mr. [Z] guilty of complicity in the misuse of corporate assets allegedly committed to the prejudice of the companies Sofresa and Dcn-I, then:
“1 ° / that no abuse of company property can be characterized in the absence of an act of use of company property contrary to the corporate interest and committed in the personal interest of its manager; It follows in the present case from the own findings of the judgment under appeal that the Agosta contract, like the Saudi contracts, the negotiations of which had been engaged for many years without succeeding, were “signed” after the intervention of the intermediaries of the K network, for amounts of several billion francs, and that they were “beneficiaries”, notwithstanding the advantages granted to the K network through the terms of payment of commissions contractually fixed and then unilaterally modified; that no element of judgment appealed does not demonstrate moreover how the leaders of the companies Sofresa and Dcn-I would have used the property of their company for personal purposes by signing these contracts; that nevertheless retaining the constitution of the offenses of misuse of corporate assets to the detriment of the companies Sofresa and Dcn-I, without establishing how the signing of armaments contracts having proved to be beneficial, was contrary to the corporate interest of companies involved and revealing the pursuit of a personal interest of their managers, nor demonstrate how the amounts of commissions paid to intermediaries were abnormal and likely to impoverish the companies Sofresa and Dcn-I even though these commissions were paid by buyer countries, the contract price being increased accordingly,
2 ° / that any contradiction of reasons is equivalent to their absence; that it follows in this case from the own statements of the judgment under appeal that a possible abuse of social good can “result only from the establishment of the abnormality of the terms of payment of said commission and their uselessness with regard to prospects for contracts signing ”(p. 53 no. 248); that the constitution of the offense of misuse of corporate assets to the detriment of Sofresa, is however expressly retained by the judgment under appeal “independently of the question of the utility of the K network” (p. 57, n ° 271); that in being thus determined by these contradictory reasons making at the same time of the proof of the uselessness of the network a determining element and an inoperative element of the constitution of the offense of abuse of social goods,
3 ° / that the burden of proof belongs to the prosecuting party and that the doubt benefits the accused; that belonged well in this case to the party pursuing, to demonstrate the uselessness of the intervention of the network K in the signing of contracts, to characterize the existence of an abuse of good social; that for lack of being able to establish such proof, when all the disputed contracts were precisely signed after the intervention of the K network, the Court of Justice bases the constitution of the offense of abuse of corporate assets on the assertions that “MM. [AB] and El Assir, were unable to specify what could be the consideration for the company Sofresa for such advantages “(p. 56, n ° 267) and that” the investigations carried out have not shown that the acceleration that has taken place in January 1995, a few days before the date of payment of the first installment, when the Agosta contract had been signed for four months, could find its justification in an event that interfered with the outcome of the negotiations which had already been completed or with the monitoring of the execution of the market ”(p. 58, n ° 277); by thus justifying the conviction of Mr. [Z] on the count of complicity in the abuse of corporate assets on the absence of certain proof provided by the intermediaries of the K network of their usefulness in the signing and execution of contracts, where it was on the contrary for the prosecuting party to demonstrate their uselessness, the Court of Justice reversed the burden of proof and disregarded the principle of the presumption of innocence which requires that doubt benefits the accused, in violation of the articles, preliminary, 427 and 593 of the Code of Criminal Procedure, ”
Response of the Court
55. To establish the existence of a main fact of abuse of corporate assets attributable to [CF] [O], director of the company Sofresa, the judgment holds that, as early as 1993, three of the four Saudi contracts concerned were finalized. , before Mr. [CG] was replaced by [CF] [O] at the head of the company, and Mr. [AB], who ran the ski resort of Isola 2000, located in the constituency of which Mr. [Z] was a deputy, either requested.
56. The judgment notes that [CF] [O] signed, between the end of 1993 and the beginning of 1994, on the one hand, consultancy contracts with the K network, and on the other hand, various amendments and other agreements granting to this network, or to the companies which depended on it, of the exorbitant financial advantages of the uses in force, designated in the procedure under the term “unbalance” and considered, from 1996, as unacceptable by the management and control bodies of the company Sofresa.
57. The Court of Justice of the Republic deduces from this, independently of the question of the utility of the K network, that there is evidence of use of the assets of the company Sofresa contrary to the corporate interest, including [CF ] [O] surrendered the author in his personal interest, the circumstance that the Saudi contracts were finally signed, even beneficiary, not being able to justify the advantages granted to this network in the fixing and the unilateral modification of the terms of payment commissions, without consideration for the company Sofresa, thus exposed to cash underfunding.
58. To establish the existence of a principal fact of abuse of corporate assets attributable to Mr. [P], director of the company Dcn-I, the judgment holds that the negotiations relating to the Agosta contract between France and the Pakistan, which started in 1992, were in the process of being finalized when, in May-June 1994, MM. [AB] and [J] got in touch with the company Dcn-l, which however already had a network of intermediaries at that date.
59. The judgment specifies that the intervention of MM. [AB] and [J], the usefulness of which has never been demonstrated, was marked by various contracts and amendments signed by Mr. [P] with the interested parties, granting them, on the one hand, substantial commissions, on the other hand, unusual conditions of early collection of a significant percentage of these same commissions.
60. He observes that the use of the K network is due to an intervention by Mr. [Q], then in charge of the mission of Mr. [Z], Minister of Defense, and notes that the usual intermediaries already appointed in this case have been remunerated under customary conditions, in particular through installments over the medium or long term.
61. It also notes that the company Mercor, under the control of members of the K network and beneficiary of some of the advantages granted under abnormal conditions to the members of this network, has, by a legal device including an assignment of debt to a Spanish bank, exempt from any commitment, while the contract was only in its first months of execution, without the company Dcn-I reacting or initiating any procedure.
62. Lastly, he adds that, whatever the profit which was eventually withdrawn from the Agosta contract, its signature, two months after the conclusion of the agreement with the company Mercor, cannot justify the advantages granted through the terms of payment of commissions contractually fixed and then modified without immediate compensation for the company Dcn-I, thus exposed to a cash underfunding of the armament contract.
63. The Court of Justice of the Republic infers from this that Mr. [P] made use of the assets of the company Dcn-I which he knew to be contrary to the corporate interest and in his personal interest, thus preserving his corporate mandate. and his remuneration as an officer of the company.
64. In the state of these findings, falling within its sovereign power, and these reasons, free from insufficiency or contradiction, it has, without reversing the burden of proof, characterized in all their constituent elements the abuse of property social workers whose complicity is accused of Mr. [Z] and justified his decision.
65. Thus, the plea is unfounded.
On the sixth plea, taken in its fourth to seventh branches
Statement of means
66. The plea makes the same complaint against the judgment, then:
to “intervene on the subject of the Agosta contract after an arbitration by the Prime Minister of July 1993 authorizing the taking in guarantee of the whole of the project up to 50% so that the State guarantee is granted” (n ° 294) , to have “also intervened on several occasions to promote the conclusion of Saudi contracts” (n ° 295), and finally to have given his “agreement” to the intervention of the K network (n ° 296); that all of these findings highlighting the central and driving role of Mr. [Z] in the negotiation and signing of arms contracts with Saudi Arabia and Pakistan in the interest of France, in its as Minister of Defense, do not in any way characterize any act of complicity with regard to unilateral changes in the terms of payment of commissions, only recognized as constituting offenses of misuse of corporate assets allegedly committed by MM. [O] and [P] to the prejudice of Sofresa and Dcn-I; that in determining itself thus, the Court of Justice did not legally justify its decision, in violation of articles, 121-6 and 121-7 of the penal code, L. 242-6 paragraph 1, 3 ° of the commercial code in its then applicable version and 593 of the Code of Criminal Procedure;
5 ° / that to declare Mr. [Z] guilty of the count of complicity in the abuse of corporate assets, the judgment further affirms that “it is also established that he was informed of the various stages of the negotiation of contracts of weapons in which he took part and the granting by the companies Sofresa and Dcn-I of advantages to the network [J] / [AB] that he had helped to put in personal relation at first with the Sofresa company ”(no. 293); that the mere fact of having been informed of the granting of advantages to the K network, assuming it to be proven, can not constitute a positive act of complicity necessarily exclusive of any inaction or abstention; that it is also contradicted by the own statements of the judgment under appeal according to which Mr. [Z] has always “denied having been informed of the content of the agreements made with the intermediaries, which were not his concerns ”(no. 289), without being supported by any evidence; that in determining itself thus, the Court of Justice did not justify its decision, in violation of articles, 121-6 and 121-7 of the penal code, L. 242-6 paragraph 1, 3 ° of the commercial code in its then applicable version and 593 of the Code of Criminal Procedure;
6 ° / that it was up to the judges to assess the facts of complicity alleged against Mr. [Z] on the date on which they were committed; that the mere observation of the agreement of Mr. [Z] to the intervention of the K network with a view to obtaining the signing of beneficial armaments contracts for France, cannot, except by disregarding the aforementioned principle of legality, be interpreted a posteriori as an act of complicity in the abuse of corporate assets resulting from the advantages enjoyed by the members of this network through changes in the terms of payment of contractually fixed commissions; that by deducing the constitution of the alleged facts from circumstances subsequent to the agreement of Mr. [Z] to the intervention of the K network, without in any way seeking to analyze the facts in the light of the economic situation,
7 ° / that the complicity supposes that is characterized a voluntary and conscious participation in the infringement committed by the principal author at the time when the assistance was brought or the instructions given; that after having itself noted that Mr [Z] had always denied having been informed of the content of the agreements concluded with intermediaries, the Court of Justice could not content itself with asserting that it is established that Mr [ Z] “played a central and driving role in the preparation and execution of abuses of corporate assets committed to the prejudice of the companies Dcn-I and Sofresa, of which he had perfect knowledge”, without even explaining the evidence on which she was based to make this peremptory affirmation still firmly contested by the accused; that by pronouncing thus, ”
Response of the Court
67. To find Mr. [Z] guilty of complicity in the offense of misuse of corporate assets, the judgment holds that, appointed Minister of Defense in March 1993 within the government of Mr. [X], he composed his cabinet by appointing its closest associate, Mr. [Q], as project manager and replaced Mr. [CG] as president of the company Sofresa by [CF] [O].
68. The judgment notes that the armaments contracts referred to in the prosecution were the subject of negotiations which, initiated under the authority of the previous government, were approaching the concluding phase during the political alternation and on the sidelines of which the networks intermediaries then put in place continued to be active and remunerated under conditions in accordance with the practices then in force, ie at the rate of the customer’s payments throughout the duration of the contract.
69. He notes that, upon his arrival at the Ministry of Defense, Mr. [Z] stepped up contacts with the Saudi authorities on the subject of contracts which concerned their country, that he took part in the negotiation of contracts for armament and that he was informed of the granting of advantages to the K network by the companies Sofresa and Dcn-l, which had contacted the interested parties, for the first, thanks to his personal intervention, for the second, through his representative, Mr. [Q].
70. He recalls that Mr. [Z], on the one hand, intervened on the subject of the Agosta contract with a view to authorizing the State guarantee for the entire project, while an arbitration by the Prime Minister in July 1993 had resulted in a 50% guarantee, on the other hand, on January 13, 1995, a few days before the entry into force of this contract, the State guarantee was granted, in particular to the company Dcn-l in supplement to Coface coverage.
71. He adds that Mr. [Z] has also come forward on several occasions to favor the conclusion of Saudi contracts, in particular in March 1995, by asking the company Sofresa for this purpose, while the company Thomson, the main contractor of the contracts, faced with the financing difficulties and the share of risk that it was asked to guarantee, opposed the execution of the Sawari II contract, which led the company Sofresa to remunerate the intermediaries in advance of its own treasury.
72. He notes that the intervention of the K network was only made possible with the agreement of Mr. [Q] and Mr. [Z], who had invested the latter with his confidence and had established with Mr. . [AB] a close relationship.
73. He specifies that, in this context and because of the importance that Mr. [Z] attached to the signing of these weapons contracts, Mr. [Q] had no reason to keep for himself the information that ‘he held or not to report and that he declared, before the examining magistrate that he had not acted alone and that he was the subordinate of Mr. [Z], who “was in the know everything in real time ”and, before the criminal court that, having no personal authority over the presidents of the companies Sofresa and Dcn-l, he had always acted under the authority of his minister.
74. The Court of Justice of the Republic concludes from this that, contrary to what Mr [Z] has constantly maintained, he, through his numerous interventions in his capacity as Minister of Defense, played a central and driving role in the preparation and execution of the abuse of corporate assets committed to the prejudice of the companies Dcn-l and Sofresa, of which he had perfect knowledge, and that the offense of complicity in the abuse of corporate assets is constituted against him in its material as well as ‘intentional.
75. In the light of these findings, falling within its sovereign power, and these reasons, free from insufficiency or contradiction, it characterized the acts of complicity in the offense of misuse of corporate assets alleged against Mr. [Z ] and justified its decision.
76. Thus, the plea is unfounded.
On the seventh plea
Statement of the plea
77. The plea complains that the judgment condemned Mr. [Z] to a fine of 100,000 euros, then:
“1 ° / that in correctional matters, the judge who pronounces a fine must justify his decision with regard to the circumstances of the offense, the personality and the personal situation of its author, taking into account his resources and his charges; that in order to impose on Mr [Z] the payment of a fine in the amount of 100,000 euros, the judgment under appeal confined itself to asserting that the only elements produced by the person concerned were ‘vague and not supported by the production of any part ”, without at any time calling into question the veracity of the indications of Mr. [Z], according to which he had no personal assets with the exception of a car paid for on credit, was holder of two overdrawn bank accounts and benefited from two pensions, one from the National Assembly, the other from the Inspectorate of Finances;
2°/ que la jurisprudence européenne admet que le caractère déraisonnable de la durée d’une procédure en violation de l’article 6, § 1, de la Convention européenne des droits de l’homme puisse avoir une influence sur la peine ; qu’en se bornant à fixer à 100 000 euros le montant de la peine d’amende prononcée à l’encontre de M. [Z], sans même prendre en considération les circonstances particulières de l’infraction et la situation personnelle de ce dernier, amené à répondre de faits prétendument commis plus de 28 ans auparavant, en violation de son droit à être jugé dans un délai raisonnable et au prix d’une impossibilité d’exercer efficacement ses droits de la défense, la cour d’appel a méconnu les articles 132-1, et 132-20, alinéa 2, du code pénal, 485-1 et 593 du code de procédure pénale, ensemble l’article 6, § 1, de la Convention européenne des droits de l’homme. ”
Response of the Court
78. According to article 485-1 of the code of penal procedure, in correctional matters, the choice of the sentence must be motivated with regard to the provisions of articles 132-1 and 132-20 of the penal code, unless it is acts of a mandatory penalty or the confiscation of the proceeds or the object of
the offense. It follows that the fine must be justified taking into account the gravity of the facts, the personality of their author and his personal situation, including his resources and charges.
79. In order to sentence Mr [Z] to a 100,000 euros fine, the judgment sets out the latter’s professional career and his family situation.
80. It describes in detail the harmfulness of the acts prosecuted for the companies concerned, owned by the State and placed under its supervision, and notes that these acts result from a disregard for the general interest.
81. He specifies that when asked to justify his socio-economic situation, Mr. [Z] produced a letter in which he alleges that he does not have any real estate assets, that he has two bank accounts with debit balances and that he has two pensions, one from the National Assembly, the other from the General Inspectorate of Finance, of which he did not indicate the amounts.
82. He adds that the person concerned does not mention his pensions as a local elected official and that he does not provide any supporting documents.
83. He concludes from this that in view of the only elements produced by the person concerned, which are very vague and not supported by the production of any document, the fine must be fixed at an amount of 100,000 euros.
84. In the light of these reasons, proceeding from its sovereign assessment, the Court of Justice of the Republic, which was not seized of any conclusion inviting it to moderate the quantum of the sentence due to an excessive length of the procedure, justified its decision.
85. Consequently, the plea, inadmissible as new and mixed in fact and in law in its second part, is unfounded for the rest.
86. Furthermore, the judgment is formal in form.
FOR THESE REASONS, the Court:
DISMISSES the appeal;
President: Mme Duval-Arnould, acting as first president
Rapporteur: M. Seys, assisted by M. Dureux, auditor at the SDER
Advocate General: M. Petitprez
Advocate (s): SCP Gatineau, Fattaccini and Rebeyrol