Receiving Illegal Interest: Impossible to Charge the Principal Offender with Receiving

Imagine: you own a plot of land in Lisieux. One day, you learn that your neighbour, a municipal councillor, voted for a planning permission for a wind farm project that also concerns his own land. You think to yourself: "That's an illegal interest!" But what happens if the criminal proceedings are time-barred? Can you still prosecute that person for receiving? This is precisely the question put to the Court of Cassation on 12 November 2015.

In a case that shook the communes of Ally and Mercoeur, local elected officials were suspected of favouring a wind farm project in which they had a personal interest. However, the principal offence (illegal interest) was time-barred. The judges then attempted to circumvent the obstacle by prosecuting the officials for receiving the proceeds of that illegal interest. The Court of Cassation put an end to this attempt: you cannot charge the principal offender with receiving the proceeds of his own offence.

This decision, which may seem technical, has very concrete consequences. For elected officials, of course, but also for property owners and real estate professionals who might be tempted to denounce conflicts of interest. If the principal offence is time-barred, receiving is not possible. In short, if you wait too long to act, you risk losing all recourse. Let us dissect this case.

The Facts: A Story as Common as Any

In the early 2000s, the communes of Ally and Mercoeur, in the Cantal, saw the emergence of a wind farm project led by a private company. Among the local actors, two municipal councillors, whom we will call Mr A and Mr B, were involved in voting on the planning permissions. Problem: they were also owners of land concerned by the project, or had links with the promoting company. In short, a potential conflict of interest.

Soon, local residents and associations denounced irregularities: different siting of the turbines from what was planned, non-compliant construction of blades, failure to respect distances. An investigation was opened. In 2009, Mr A and Mr B were charged with illegal interest (the act of an elected official taking part in a deliberation in which he has a personal interest). But the investigation dragged on. In 2014, the criminal proceedings for this offence became time-barred (the limitation period was 3 years at the time for délits).

To avoid leaving the officials unpunished, the prosecution and the civil party then turned to another offence: receiving of illegal interest. Receiving is the act of holding or benefiting from the proceeds of an offence while knowing its fraudulent origin. Here, the idea was that the officials, by voting for the planning permission, had "received" their own illegal interest by continuing to benefit from the project's returns. However, the Riom Court of Appeal still convicted the officials for receiving. They appealed to the Court of Cassation.

The Court of Cassation quashed the judgment. It recalled a fundamental principle: you cannot be both the perpetrator of the principal offence and the receiver of your own offence. This is known as the principle of non-cumul between the source offence and receiving. In other words, if you steal a car, you cannot be prosecuted for receiving your own stolen car. Here, the same logic applies: illegal interest is the principal offence, and receiving requires a separate perpetrator who knowingly benefits from the proceeds of that offence. However, the officials were the perpetrators of the principal offence. Even if that offence is time-barred, receiving cannot "revive" against them.

The Reasoning of the Court — Analysed

To understand the decision, you must first grasp two key concepts: illegal interest and receiving.

Illegal interest is defined in Article 432-12 of the Criminal Code. It punishes the act, by a person holding public authority (such as an elected official), of taking a personal interest in a matter under their responsibility. For example, voting for a planning permission for a project concerning their own land. The penalties can be up to 5 years' imprisonment and a fine of €500,000.

Receiving, on the other hand, is defined in Article 321-1 of the Criminal Code: "Receiving is the act of concealing, holding or transferring a thing, or acting as an intermediary, knowing that the thing comes from a crime or délit." Therefore, the object of the receiving (here, the benefit from the wind farm project) must come from a prior offence. But case law is clear: receiving requires a perpetrator distinct from the principal offence. You cannot receive your own stolen goods, your own breach of trust, or, as here, your own illegal interest.

In this case, the Riom Court of Appeal had held that the officials could be convicted for receiving because the principal offence was time-barred. But the Court of Cassation corrected this: the limitation of the principal offence does not erase the principle of non-cumul. It is a matter of legal logic: if the principal offence is no longer punishable, receiving cannot exist without it, because it is accessory to it. And above all, you cannot be both the "thief" and the "receiver" of the same thing.

This reasoning is not new. The Court of Cassation had already affirmed it for other offences (e.g., receiving stolen goods, receiving of corporate assets misuse). But this is the first time it has applied it so clearly to illegal interest. What is interesting is that the Court of Appeal had attempted a broad interpretation to circumvent the limitation. The Court of Cassation reaffirmed strict law. undefined that if you are a victim of a conflict of interest by an elected official, you must act quickly, before the limitation of the principal offence expires. After that time, there is no longer any recourse, even via receiving.

However, note: this decision only concerns the case where the perpetrator of the principal offence is also the receiver. If another person (an accomplice, a third party) benefits from the project knowingly, they can be prosecuted for receiving, even if the principal offence is time-barred. This is an important nuance.

What This Changes for You — Practically

This decision has practical implications for several profiles.

For property owners and neighbours: if you suspect an elected official of having a conflict of interest in a real estate project (planning permission, housing development, wind farm...), do not delay in acting. You must file a complaint or report the facts to the public prosecutor within 3 years (limitation period for illegal interest). After that time, even if the official has benefited from the project, you will no longer be able to prosecute them for receiving. Concrete example: in Mondeville, a shopping centre project was voted on by a municipal councillor whose brother-in-law was the developer. If the facts date back more than 3 years, it is impossible to attack for receiving if the principal offence is time-barred.

For local elected officials: this decision protects you to some extent. If an offence of illegal interest is time-barred, you cannot be prosecuted for receiving your own act. But be careful: the limitation period can be interrupted by investigative acts. And if a third party (an accomplice) has benefited from the project, they can be prosecuted. Moreover, if you are re-elected and continue to vote on projects in which you have an interest, the limitation period resets with each new vote. So do not rely on limitation to protect you.

For property developers: be vigilant about conflicts of interest of the elected officials you work with. If an official is involved in your project and has a personal interest, you could be prosecuted for complicity or receiving, even if the official is not convicted. For example, if the official granted you a planning permission in exchange for a benefit, you could be considered a receiver of the proceeds of the offence (the permission). In that case, you are a third party, so the principle of non-cumul does not apply.

For co-owners: in a co-ownership, it sometimes happens that members of the syndicate council vote for works that personally benefit them (e.g., renovation of their terrace at the expense of the co-ownership). If the offence is time-barred (3 years), you will not be able to prosecute them for receiving. But you can take civil action to obtain compensation for the damage, as the civil limitation period is 5 years.

Four Tips to Avoid This Type of Dispute

• Act quickly: as soon as you become aware of a possible conflict of interest, consult a lawyer and file a complaint without delay. The limitation period of 3 years runs from the date of the contested decision (vote on the permission, signing of the contract...). Do not rely on receiving to save the situation.
• Document everything: keep minutes of municipal council meetings, planning permissions, correspondence. In the event of a dispute, these documents will be essential to prove the date of the facts and the official's personal interest.
• Check links of interest: before investing in a real estate project, find out about the officials who vote on the authorisations. A simple consultation of the register of declarations of interests (mandatory for officials) can save you a lot of trouble.
• Consider civil action: even if criminal proceedings are time-barred, you can claim damages before the civil court for the harm suffered (e.g., loss of value of your property). The civil limitation period is 5 years from the discovery of the damage.
• Consult a lawyer lawyer: each case is unique. A lawyer will help you choose the best strategy and meet deadlines.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further Reading: Related Case Law and Developments

This decision is part of a consistent line of case law from the Court of Cassation. One can cite the judgment of 4 February 2014 (No. 12-87.576) which already held that receiving of corporate assets misuse cannot be charged against the perpetrator of the misuse. Similarly, the judgment of 20 November 2013 (No. 12-87.003) for receiving stolen goods. The logic is always the same: receiving is a separate offence that requires a different perpetrator.

A more recent decision, of 9 September 2020 (No. 19-83.012), clarified that receiving can be established even if the principal offence did not give rise to a conviction, provided the existence of the offence is proven. But this does not change the principle of non-cumul: the principal perpetrator cannot be a receiver.

The trend of the courts is therefore clear: no receiving for the principal perpetrator. This means that victims must act quickly. A legislative development could however change the situation: a bill aimed at extending the limitation period for illegal interest to 6 years is under discussion. If adopted, this will leave more time to act.

What You Absolutely Must Remember

FAQ

1. Can I prosecute an official for receiving if the principal offence is time-barred? No, if you are the perpetrator of the principal offence. But if you are a third party (an accomplice), yes.
2. What is the time limit to act in case of illegal interest? 3 years from the contested decision. For civil action, 5 years.
3. What if I discover a conflict of interest after 3 years? You can still take civil action for damages, but not criminal action.
4. Can an official be convicted for receiving if he has benefited from his own offence? No, according to this decision. But he can be convicted for the principal offence if it is not time-barred.
5. Does this decision apply to other offences? Yes, the principle is general: you cannot receive the proceeds of your own offence (theft, breach of trust, etc.).

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