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Threatening someone to file a complaint: is it blackmail?

Threatening someone to file a complaint against him: is it blackmail?

The offense of blackmail is defined in article 312-10 of the French Penal Code (current). It is the fact for a person to obtain, by threatening to reveal or impute to another, facts likely to undermine his honor or his consideration, either a signature, an undertaking or a waiver, or the revelation of a secret, or the delivery of funds, securities or any property.

The material element of the offense is characterized by the threat to reveal or impute a fact likely to undermine the honor or consideration of the victim. It therefore excludes any violence or physical harm to the victim. It is indeed a moral attack. It also matters little whether the alleged facts are true or false. They must not be accessible to the public at the time when the perpetrator of the offense uses them. Thus, case law considers that the threat of revealing an individual's sexual orientation constitutes the offense of blackmail (Cass. Crim. of January 13, 2016 (appeal no.: 14-85905)).

Also, the threat may well be addressed directly to the victim or indirectly (to another person but who will have to pay for the victim). It is the fact, for example, of threatening a parent to denounce the forgery committed by his child if he does not pay a sum of money.

The offense of blackmail is, in accordance with the aforementioned article 312-10, punishable by five years' imprisonment and a fine of 75 euros. The blackmailer is punishable as soon as he is aware that his action aims to obtain the undue discount by threat. Mens rea is characterized by the fact that the perpetrator of the offense is aware that he is using a "illegal threat" to get what he wants.

As for the right of action, it is the "the right, for the author of a claim, to be heard on the merits of it so that the judge can say it is well or ill founded" (article 30 of the Code of Civil Procedure).

Concretely, within the meaning of Article 30 of the Code of Civil Procedure, it is the possibility for any litigant to bring his claims before a judge so that the latter can judge their merits or ill-foundedness. The right of action or the right to sue is a potestative right in that it essentially depends on the will of its holder. If one can contractually limit his right of action, it is nevertheless not possible to oblige a person to seize the jurisdictions in the event of the occurrence of a dispute. Indeed, the setting in motion of the right of action by referral to the court (request), is the sole responsibility of its holder.

Thus, as soon as a person fulfills the conditions for legal action, namely: the legitimate interest to act, the legal capacity and the quality, he can bring claims before a judge, it being indicated that any legal action taken in a dilatory or abusive manner may give rise to the condemnation of its author to a civil fine of a maximum of 10 euros, without prejudice to damages within the meaning of article 000-32 of the Code of Civil Procedure.

Consequently, the threat of a person to use legal means to compel him to perform cannot constitute blackmail. Need it be recalled that the formal notice organized by articles 1344 to 1345-3 of the Code of Civil Procedure is nothing other than a "legal threat" – summation; a legal means granted to creditors to compel their debtors to perform their obligations under penalty of taking legal action against them. This is indeed a threat to take legal action – but a threat authorized by law.

Relatively, the Criminal Division of the Court of Cassation ruled in the judgments of March 12, 1985 and March 13, 1990, that it did not constitute blackmail if a creditor threatened his debtor with resorting to legal means to obtain the payment of his debthttps://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000007064839). Also, the threat still has to relate to an obligation (debt) existing or that the creditor is actually entitled to its performance.

Indeed, when the creditor's threat relates to an obligation which no longer exists or when the latter has no interest in its execution or when the threat relates to facts unrelated to the cause of the debt whose payment is claimed , this is, in accordance with the judgment of March 5, 1975 of the criminal chamber (the threat of revealing facts) constituting blackmail and therefore punishable under article 312-10 of the Penal Code.

In short, the threat made to a person to take legal action in the event of non-performance of a legal or contractual obligation incumbent upon him, is not, since it is related to the obligation whose performance is claimed, not constituting the offense of blackmail.

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