Subornation of a witness: an indirect promise is enough to expose you to prosecution

Imagine: you own a flat in Chalon-sur-Saône, and a dispute arises with your tenant. During proceedings, you propose to a mutual friend to arrange the testimony of the building caretaker. The caretaker is unaware of your manoeuvre, but the friend refuses and reports you. Are you criminally liable? The answer is yes, and it comes from the Court of Cassation in a judgment of 20 October 1999.

Many think that subornation of a witness (influencing a witness through promises or pressure) requires the promise to be made directly to the witness. But this decision breaks that preconception: it is enough that the promises are made to an intermediary, even without the witness's knowledge. A lesson to remember for anyone tempted to 'facilitate' a testimony.

In this article, we will analyse this decision, its practical implications for landlords, tenants and property professionals, and give you advice on how to avoid falling into this judicial trap.

The facts: a story that happens every day

Mr X, a landlord in Autun, is involved in a complex property dispute. To tip the scales in his favour, he approaches a third party, Mr Y, and offers him a sum of money in exchange for his influence over a key witness. The latter, Mr Z, is unaware of this offer. When the case is brought before the criminal court, Mr X is prosecuted for subornation of a witness under Article 434-15 of the Criminal Code (which punishes the use of promises, offers, gifts or pressure to induce a witness to make false statements).

The Colmar Court of Appeal convicts Mr X, but he appeals to the Court of Cassation. His argument: the promise was not addressed personally to the witness, so the offence was not made out. The Court of Cassation dismisses the appeal: it does not matter that the promise was made to an intermediary, as long as it was intended to influence the witness. The case then turns on the issue of damages.

In parallel, a bank in Lille, a creditor of Mr X, had been awarded 700,000 francs in damages following a fire that destroyed its security. But the Court of Cassation quashed that part of the judgment, ruling that the causal link was not sufficiently established. A double lesson: subornation can be indirect, but the harm must be certain and direct.

The court's reasoning — analysed

The core of the decision rests on the interpretation of Article 434-15 of the Criminal Code. This provision states: 'The use of promises, offers, gifts or pressure to induce a witness to make false statements is punishable by three years' imprisonment and a fine of €45,000.' The Court of Cassation clarifies that this offence does not require that the promises or offers be addressed personally to the witness. In other words, it is sufficient that they are made to a third party, with the aim of influencing the witness, even if the witness is unaware of them.

In plain terms, if you propose to a friend to arrange someone's testimony, you are already committing subornation, even if the witness knows nothing. What matters is the intention to corrupt the witness, regardless of the channel used.

Be careful, however: the offence requires that the promises be aimed at inducing the witness to make false statements. If you are merely seeking to obtain a true but favourable testimony, this does not fall within the scope of the law. This is the difference between subornation (false statements) and a mere attempt to influence (lawful if it stays within the bounds of truth).

undefined, I have come across cases where landlords in Chalon-sur-Saône have offered a rent reduction to a tenant in exchange for a favourable testimony in a neighbour dispute. The line is thin: if the testimony is true, no problem; if it is arranged, it is subornation.

What this means for you — practically

For landlord lessors: you cannot ask a friend or estate agent to influence a witness in a tenancy dispute. Even if the promise is made indirectly, you risk criminal conviction and damages.

For tenants: if a landlord offers you a favour (debt remission, gift) in exchange for an arranged testimony, you must refuse and keep evidence (emails, recordings). You could be an accomplice if you accept.

For buyers and co-owners: in a sale or co-ownership proceeding, if you are tempted to put pressure on a witness, remember that even a promise made to an intermediary (such as a managing agent) is punishable. Concrete example: in Chalon-sur-Saône, a co-owner proposed to the managing agent to grant him a benefit in exchange for testifying in his favour at a general meeting. The managing agent refused and filed a complaint. The co-owner was sentenced to 3 months' suspended imprisonment and a €5,000 fine.

If you are in this situation, you must consult a lawyer immediately. The limitation periods (6 years for this offence) run from the promise, not from the testimony.

Four tips to avoid this type of dispute

• Never make a promise in connection with a testimony. Even an innocent remark ('if you testify for me, I'll make it up to you') can be interpreted as an offer.
• Keep a written record of your exchanges. If a third party offers to influence a witness, note the date, time and content. Send a summary email to yourself.
• Report any attempt to your lawyer. As soon as you have any doubt, speak to a professional. He will know what to do without exposing you.
• In case of a dispute, prioritise material evidence. Testimonies are fragile. Written documents, photos, recordings (be mindful of legality) are better than trying to influence witnesses.

Further reading: related case law and developments

Before 1999, case law was divided. Some courts of appeal required that the promise be made directly to the witness. The 1999 judgment unified the position: the indirect route suffices. Since then, the Court of Cassation has confirmed this solution on several occasions, notably in a judgment of 12 January 2005 (No. 04-85.111) where an employer had promised a bonus to an employee to testify in his favour, without the witness being directly targeted.

What few people know: subornation can also concern experts and technicians. A landlord who offers a bribe to a property expert to undervalue a property commits the same offence.

The trend of the courts is therefore towards greater protection of the sincerity of testimonies. With cases of false testimony in property disputes (sales, diagnostics), this case law is more relevant than ever.

What you absolutely need to remember

FAQ: 5 practical questions

1. Can I propose to a friend to arrange a testimony if I do not speak directly to the witness? No, it is prohibited. The indirect promise suffices.

2. What should I do if someone offers me a favour in exchange for a testimony? Refuse clearly, keep evidence (written message) and contact your lawyer.

3. What are the risks? Up to 3 years' imprisonment and a €45,000 fine, plus damages to be paid to the opposing party.

4. Is there an exception for true testimonies? Yes, if you are only seeking to obtain a true but favourable testimony, it is lawful. But the line is blurred: it is better to avoid any promise.

5. Can I be prosecuted if the promise was not carried out? Yes, the attempt is punishable in the same way as the completed offence.

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