Dangerous liaisons between breach of trust and concealment: when the non bis in idem rule interferes

► CASE LAW • CRIMINAL

Court of Revision, judgments of 24/09/2015 (Appeal no. 2015-37) and of 24/03/2016 (referral after cassation)

The judgments of the Court of Revision of 24/09/2015 and 24/03/2016 are of interest with regard to the criminalisation of the offence of concealment (handling stolen goods,"recel") and the application of the ne bis in idem principle, which prohibits a person from being prosecuted again for an offence for which s/he has been finally judged.

The foreign defendant held funds in bank accounts opened in the Principality that were the proceeds of offences (which under Monegasque law can be classified as breach of trust) that he had committed in the United States between 2005 and 2006, for which he had been finally tried in New York and sentenced to imprisonment in 2008 (for breach of trust and laundering the proceeds of transfers of funds to the Principality). Released in 2012, he objected that he could be prosecuted in Monaco for concealment of breach of trust ("recel d’abus de confiance") .
His claims were rejected by the Criminal Court (judgement of 25/11/2014), then by the Court of Appeal (judgement of 04/05/2015), but he won his case before the Court of Revision, which broke with its previous position.

The Court of Revision confers a transnational scope to the ne bis in idem principle and excludes the qualification of concealment ("recel").

The perpetrator of the breach of trust ("abus de confiance") committed abroad, who can prove that he was finally convicted there, cannot be prosecuted again in Monaco for concealment of breach of trust ("recel d'abus de confiance").

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The first contribution of the Court's ruling lies in the broad interpretation of article 393 of the Code of Criminal Procedure: its wording does not exclude the applicability of the ne bis in idem principle to the principal perpetrator of a crime committed abroad, prosecuted in Monaco for receiving the proceeds of that crime. The ne bis in idem principle is therefore applicable to both national and transnational criminal cases.

The prosecution under Article 9, 2° of the Code of Criminal Procedure (offence committed abroad, by a person of foreign nationality, holding in Monaco the proceeds of that offence) is extinguished by the application of the ne bis in idem principle as set out in Article 10, § 1.

The second contribution of the judgment relates to the criminalisation of concealment ("recel"). The Court of Revision rules out the possibility of holding the perpetrator of a fraudulent misappropriation of an object to be the recipient of that object.

Thus, the perpetrator of the breach of trust ("abus de confiance"), who has been definitively punished abroad for this offence, cannot be prosecuted as a fence ("receleur") in the Principality.

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