Unlawful taking of interest: A material offence where intent to defraud is not required?

A mayor is convicted of the charge of unlawful taking of interests and his sister of the charge of concealment of this offence because of the latter’s recruitment as general director of the services of the municipality. The defendants appealed to the Court of Cassation on the grounds that the family relationship uniting them could not in itself characterize the existence of an interest, moral in this case, within the meaning of Article 432-12 of the Criminal Code.

In a decision of 4 March 2020, the Court of Cassation dismissed their appeals on the grounds, inter alia, that guilty mind may be characterized solely by the fact that the perpetrator knowingly performed the act constituting the material element of the offence: “According to settled case law, abuse of office thus characterized is sufficient in itself to constitute the offence of unlawful taking of an interest, and guilty mind is constituted by the mere fact that the perpetrator knowingly performed the act constituting the material element of the offence. It is not necessary for him to have acted with intent to defraud. »

In this decision, the Court of Cassation ruled that it is not necessary for the perpetrator of the acts being prosecuted to have acted with intent to defraud.

Cass. crim. 4 March 2020, No. 19-83.390.