The “illegal taking of interests”, the crime that makes public decision-makers tremble

How to defend yourself in the face of lawsuits for “ illegal taking of interests ” ? Former lawyer Eric Dupond-Moretti may have to give some law lessons to his fellow ministers. Two of them, Sébastien Lecornu (Overseas) and Olivier Dussopt (Public Accounts) are indeed the subject of prosecutions related to this offense, also at the heart of a procedure launched against the Keeper of the Seals himself. Three ministers in turmoil over facts of a different nature.

The case of the three ministers

Eric Dupond-Moretti is implicated for having ordered an administrative investigation against three magistrates of the National Financial Prosecutor’s Office who participated in an investigation aimed at discovering a mole who would have informed Nicolas Sarkozy and his lawyer Thierry Herzog in the “Bismuth” case. Telephone bills from several lawyers, including Eric Dupond-Moretti, had been examined, to the chagrin of the black dresses.

Sébastien Lecornu is criticized for having sat on the board of directors of a motorway company between July 2016 and June 2017, earning nearly € 8,000 gross of ” attendance fees “. At the time, he was also president of the Eure department and had approved several decisions concerning this company.

→ THE FACTS. Overseas Minister Sébastien Lecornu subject to PNF investigation

As for Olivier Dussopt, he is targeted for having received in January 2017 two lithographs offered by a water management company. At the time, the future minister was at the head of the town hall of Annonay (Ardèche) which, a few months later, had signed a contract with this company.

A crime “nightmare” for decision-makers

These three ministers are not the only politicians to be prosecuted for “Illegal taking of interest”. According to some, this crime has even become a kind of “Nightmare” for public decision-makers.Any elected official, any official lives with a sword of Damocles over their heads and I know officials who are going through hell because a magistrate has decided to get their heads “, affirmed in 2010 the senator (LR) Bernard Saugey defending a bill, remained without follow-up, aimed at ” clarify ” this offense.

This is based on article 432-12 of the Penal Code, which punishes the fact for a person holding public authority of “To take, receive or retain, directly or indirectly, any interest in a company or in an operation for which it is, at the time of the act, in whole or in part, responsible for ensuring the surveillance, administration, liquidation or payment ”. This offense is punishable by five years in prison and a fine of € 500,000. And a conviction can be pronounced even if the person concerned has not obtained personal enrichment and even if the community concerned has not suffered prejudice.

No benefits for relatives of elected officials

This offense makes it possible in particular to prosecute elected officials who have provided advantages to their family or friends. “Take a municipal council which votes the passage in building zone of plots until then inconstructible. If it is discovered that a distant cousin of the mayor owns land in this area, he can be condemned for illegal taking of interests if he voted for the decision ”, explains Me Rémi-Pierre Drai, who defends many elected officials. Today Minister of Territorial Cohesion, Jacqueline Gourault had recounted, in 2010, her experience as mayor of La Chaussée-Saint-Victor (Loir-et-Cher). “My municipality participated in the creation of a business crèche by buying ten places: there were eleven requests, including one from my daughter-in-law. She withdrew her request! “, Jacqueline Gourault explained, specifying that it was a typical case “ possible prosecutions.

Vice-president of the Anticor association, Eric Alt, however, protests against the idea that this offense would paralyze the action of public decision-makers. “This is a fallacious argument. The illegal taking of an interest is an obstacle offense which aims to prevent any situation in which an elected official or a civil servant would benefit from his position., he recalls. This is not a brake on public action: it prevents a public decision-maker from using his power for his benefit or to benefit one of his relatives. “


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