The Federal Court has ruled.
The Public Prosecutor’s Office appeal against the judgment acquitting former State Councillor Pierre Maudet is partially admitted and the case is referred to the Court of Appeal so that it can convict Pierre Maudet for accepting an advantage.
This decision(6B_220/2022 of October 31, 2022), rendered in a composition of 5 judges and in an area that is not often addressed in the case law, will certainly be the subject of many fascinating comments on art. 322quinquies CP and 322sexies CP (granting and acceptance of an advantage).
For the time being, however, we note that some of the words used by Pierre Maudet during his hearings seem to have been interpreted against him to justify his conviction.
This is particularly the case of the “uneasiness” that the former State Councillor says he felt about an invitation to Abu Dhabi, “since he could not conceive of anyone else, let alone a foreign state, paying for his family’s vacation. He also perceived a political risk, in this case that he would be exposed in the media and that his family would be implicated“.
This “discomfort”, expressed in the proceedings, would thus demonstrate that Pierre Maudet was aware of the undue nature of the advantage and had accommodated himself to having benefited from it because of his official functions:
“These different circumstances, and in particular those related to the discomfort that A.________ described having felt before the trip, attest, as the cantonal court held, thathe was well aware of the unwarranted nature of the particularly generous invitation he had received in his capacity as State CouncillorThis was a luxurious, all-expenses-paid stay, essentially private and for pleasure, and extended to his family and friends C.________ and B.________.
(…)
Despite this, A.________ nevertheless accepted the invitation to the Grand Prix and enjoyed his “family expedition”, all expenses paid, accommodating the risk of being accused of having confused his private interests with those linked to the appearance of a free and honest performance of his office as State Councillor. ” (Consider. 2.7.1).
Here is a “malaise” which seals the guilty intention in its most diluted form (particularly frail in this case!), that of the possible fraud, and which illustrates well the ritual formulet“everything you say can be held against you!
And contrary to what the Court of Appeal had retained to acquit PIerre Maudet, the Federal Tribunal underlines that the offence of accepting an advantage does not require that the reasons for which the briber grants the advantage be known.
Thus, for the Federal Court: “ it is irrelevant whether or not the agent actually intends to perform the behaviour expected of him, or indeed whether or not he actually receives the promised benefit (cf. judgment 6B_391/2017 of 11 January 2018 recital 5.2 and the cited reference), so that, on the subjective level, it is ultimately sufficient that the public official accepts the fact that the undue advantage is given to him in order to influence him in the exercise of his official duties (cf. DYENS, op. cit., no. 8 ad art. 322sexies CP) ” (Consider. 2.4.1).
What counts is therefore to: ” determine whether, objectively, the persons involved in the granting of this undue advantage had an interest in benefiting from the benevolence of public officials in the future and whether they were subjectively aware of this and therefore accommodated the possibility that the undue advantage had been given to them in their capacity to guide them in some way in the performance of their official duties.“(recital 2.4.2).
For the Federal Court, this was the case in this instance, and the offence of accepting an advantage was therefore committed.
Developments to follow…
