Is the elected official a criminal target? …or the opposing vocations

A 13-year-old girl dies as a result of a carousel accident. The mayor of the city is liable and the elected representative will inevitably be sentenced by the Criminal Tribunal. Convicted of manslaughter and involuntary injury, the mayor tendered his resignation. His fault? The elected representative had not asked the fairground for the documents certifying that the carousel had been inspected. The breach of an express safety obligation is then characterized….

Illegal appropriation of interests, corruption and influence peddling, misappropriation, breach of a safety obligation… The exercise of the mandate of elected officials must be approached with the greatest caution: in every accident, it is possible to point them out!

The criminal liability of elected officials

The criminal liability of elected officials for acts committed in the performance of their duties results from several texts, in particular from Article 121-3 of the Penal Code and Articles 432-10 to 432-12, 432-14, 441-2 and 441-4 of the Penal Code.

Between intentional and unintentional offences, elected officials should be encouraged to act with caution and probity. 

Breaches of the duty of probity

The Penal Code sanctions breaches of the duty of integrity by elected officials by establishing several offences, such as misappropriation, corruption and influence peddling, illegal taking of interests, favouritism and embezzlement and misappropriation of property.

Breaches of the duty of probity are the first ground for condemning elected officials. The latter are most often convicted of illegally taking interests.

Article 432-12 of the Penal Code establishes the offence of illegal taking of interest as follows:

“The fact, by a person depositary of the public authority or entrusted with a public service mission or by a person holding a public office, of taking, receiving or retaining, directly or indirectly, any interest in an undertaking or in a transaction for which she is, at the time of the act, wholly or partly responsible for ensuring the supervision, administration, liquidation or payment”.

Since January 2019, several cases have been ongoing: a mayor being prosecuted for illegally taking interests in connection with the acquisition of an apartment belonging to a SCI. The elected representative is the president of the surveillance board of the company that holds a share of the capital of the SCI.

More recently, a mayor was arrested for illegally taking an interest in a building permit withdrawal.

Therefore, would it not be necessary to strengthen education, prevention and information of elected officials regarding their duty of probity and the sanctions associated with its breach?

From simple clumsiness to failure to comply with an express obligation of safety or prudence

The breach of the duty of probity is not the only reason why an elected official may be held liable. A simple clumsiness can lead to the conviction of an elected official.

Article 121-3 paragraph 4 of the Penal Code establishes unintentional misconduct (carelessness, negligence) as follows:

” physical individuals who did not directly cause the damage, but who created or contributed to the situation that made it possible to achieve the damage or who did not take measures to avoid it, are criminally liable if it is established that they have either clearly violated a particular obligation of prudence or security provided for by law or regulation, or committed a serious mistake and exposed others to a particularly serious risk which they could not ignore“.

In this context, the way is clear for all types of unintentional offences, such as the offence of manslaughter and unintentional injury: it is sufficient to establish a gross negligence.

The gross negligence may result from a breach of an obligation of safety or prudence or from a simple clumsiness…

It follows from the above that the elected representative is indeed a criminal target. This is something to make people think about vocations? and thus understand resignations, renunciations….