(Nov. 17, 2010) On November 9, 2010, the criminal chamber of the Cour de Cassation, France's Supreme Court for civil and criminal matters, overruled the decision of the Indictment Chamber of the Paris Court of Appeal of October 29, 2009, denying the status of “civil party” to an association named International Transparency France (ITF). (Cass. crim., Nov. 9, 2010, No. 09-88-272, Association Transparence International France, F-D, § 1, Lexbase online subscription database, No. A4182GGY.)
The association had been calling for a judicial investigation for corruption of Denis Sassou Nguesso, President of Congo-Brazzaville; Omar Bongo, former President of Gabon, now deceased, and some members of his family; and Téodoro Obiang Mbasogo, President of Equatorial Guinea. ITF has alleged that these heads of state and their families owned approximately €160 million (about US$219 million) in properties and bank accounts in France that could not be the fruits of their official salaries. In 2007, a police inquiry had confirmed the existence of these assets: Omar Bongo and his family were said to own 39 pieces of real estate and 70 bank accounts; Sassou Nguesso, 18 properties and 112 bank accounts; and Téodoro Obiang Mbasogo, one property, one bank account, and eight cars. The police enquiry did not result in any charges being filed. (Thomas Vampouille, L'enquête sur les biens mal acquis relancée, LE FIGARO.FR (Nov. 9, 2010), http://www.lefigaro.fr/actualite-france/2010/11/09/01016-20101109ARTFIG0
Under the French Code of Criminal Procedure, a civil party may join a criminal action initiated by the prosecutor or on its own initiate the prosecution by filing a civil party petition. This procedure offers the victim of a criminal offense the possibility of overturning the decision of a public prosecutor who decides not to file charges. Article 2 of the Code provides that “civil action aimed at the reparation of the damage suffered because of a felony or misdemeanor is open to all those who have suffered damage directly caused by the offense.” Associations that are not specifically authorized by the legislator to join or initiate an action as a civil party may, however, have the status of civil party if they can justify personal and direct damage caused by the criminal offenses they wish to denounce. (Cass. crim., supra.)
The Cour de Cassation noted that the mission of TIF was “to fight and prevent corruption at the national and international levels, in state-to-state relations, in state-to-persons or state-to-legal entities relations, public or private and between these persons, and, to this end, to undertake any actions to identify all corruption phenomena, to denounce them, and to make them cease.” It found the association's civil party petition admissible on the grounds that if the alleged offenses were established as fact, the corruption offenses listed in the case would be of a nature to cause direct and personal damage to the association. (Cass. crim., id.) As a result of the Cour de Cassation's decision, a judicial inquiry, led by an investigating judge, will be opened.