Canton of
Vaud – Canton Court – March 11th, 2005
TRIBUNAL of ACCUSATION
February 9th, 2005 Session
Presided by Judge Mr. COTTIER, president
Judges: Judges Mr. Jomini and Mr. Meylan
Secretary: Mr. Bühier, secretary deputy
Sect. 260, 284, 294 subsect. f, Code of Criminal Procedure
Whereas, the preliminary investigation procedure N° PE02.041405-NTC, presided by the instructing judge of Canton of Vaud against Ruben ACOSTA, Franz SCHMIED and Jean-Pierre SEPPEY for forgery of information about business transactions, fraudulent management and fake documents, instituted by the Court at its own initiative, and instituted by Mario GOIJMAN,
Whereas, the resolution issued in December 13th , 2004, by which the examining judge dismissed the complaint, and holding the State liable for costs,
Whereas, the appeal filed in due time and form by Mario Goijman against said resolution,
Whereas, the representation of Ruben Acosta and Jean-Pierre Seppey,
And whereas, substantially, Mario Goijman accused Ruben Acosta of having charged commissions abusively for an amount of Fr. 8.320.000 related to several sponsorship and broadcasting contracts, as well as for having changed or having made changed a report made by the trustee PricewaterhouseCoopers S.A, auditing external body of the International Volleyball Federation (hereinafter called FIVB) with the aim of hiding the payment of said commissions,
That the Bylaws of the FIVB foresee an internal and external review whose reports shall be subject to approval by the finance commission, the board of directors and, finally, every two years, by the congress of the entity (record of the hearing n° 6, R. 3, p.2).
That in the year 2000, Ruben Acosta collected Fr. 8.320.000 of commissions of sponsorship and broadcasting contracts (record of the hearing n° 4, p.2; n° 7, R. 8, p.4).
That the FIVB refused to register such amount in a specific item of the results account of the fiscal year 2000. Instead, they prefered to present the income accounts netted from commissions, and without any enclosure or note whatsoever (record of the hearing nº 6, R. 4, pp.2-3),
That PricewaterhouseCoopers S.A. agreed to show the accounting in this way, but requested the addition of an explanatory note enclosed with the report,
That said enclosure, entitled “Enclosure III” appeared under the heading “III Notes” at the bottom of the letter addressed to the FIVB on February 16th , 2001, suggesting the approval of the accounts (P. 4/7),
That the above mentioned enclosure outlined the amount of the commissions paid during the fiscal year 2000, which was of Fr. 8.320.0000, and also the method that was applied to make the entry of such amount in the accountancy (íbidem),
That at Jean-Pierre Seppey’s request, PricewaterhouseCoopers S.A. sent the FIVB two different versions of their audit report of 2001 (following year)(record of the hearing nº 6, R. 5, p.3),
That regarding this, the auditing company stated the following in the letter dated on January 21st , 2002 (P. 17/4):
“In the first version, the commissions obtained from the broadcasting contracts paid to the president Ruben Acosta (Fr. 8.320.0000) do not appear clearly in the results account. Instead, they are deducted from different income accounts. An enclosure, which is part of the balance sheet, has been added to it, and explains this fact clearly, which is the same as the one that appears in our audit report of the fiscal year 2000.
In the second version, the income appears totally and the commissions are stated clearly, in a separate item. Thus, the enclosure is of no use and has been removed.
Therefore, you are in possession of the balance sheets of the fiscal year 2000 offered in two different ways. We would like to expressly inform you that the enclosure is part of the accounts shown in the first version and that, as a result, these cannot be shown without said enclosure.”,
That the preliminary investigation showed that the whole version of the audit report in question, dated on January 16th, 2001 – concerning the fiscal year 2000 – was stated in the report of the finance commission of the FIVB issued on February 6th , 2001 and was informed to the internal auditors as well as to the members of the Executive Committee and the Board of Directors of the FIVB,
That however, said report, which was subject to consideration by the congress, was forged before being published in the “Financial Report” 2000-2001,
That actually, the note of “enclosure III”, which appears at the bottom of the letter dated on January 16th, 2001 had been eliminated (P. 4/7, 4/11),
That not taking into account the recommendations given by PricewaterhouseCoopers S.A. in the letter dated on January 21st, 2002, said enclosure III was simply suppressed,
That in addition, the letter dated on January 14th., 2002, by which the FIVB was requested to approve the 2001 balance sheet was replaced by the letter dated on January 16th., 2001, in which the note of enclosure III was “amputated” (P. 4/7 y 17/4),
That the examining judge considered that those facts were not criminally penalized for being non intentional,
That this court deems, however, that such behavior was planned to mislead the Congress, whose members, after having read the report of the fiscal year 2000, would not find any statement that could have been refered to commissions of an amount that was higher than eight million francs,
That the forgery of the letter requesting the FIVB to approve the balance sheet of the fiscal year 2000, as well as the removal of enclosure III were done intentionally and consciously,
That the directors of the FIVB are skilled businessmen and / or lawyers,
That cannot, therefore, affirm that they had the right to alter the audit report of PricewaterhouseCoopers S.A. and to submit it as if it were the original,
That it is of less importance the fact that the amount of Fr. 8.320.0000 appears in the report of the fiscal year 2001 in the comparative balance sheet of 2000-2001,
That an audit report of an auditing body is in fact a document and it seems that it had been altered intentionally to mislead the members of the congress,
That hence, the remedy filed with this respect shall be accepted and the resolution shall be partially canceled. The file shall be sent to the instructing judge, in order to proceed with the indictment of Ruben Acosta, Franz Schmied and Jean-Pierre Seppey for forgery of documents and false information about business transactions, with possible concurrence of the articles 152 and 252 of the Criminal Code (Corboz, the offences in the Swiss Law, Berna 2002, n°13 on art. 152 CP, p.356)
Whereas, Mario Goijman objects to the dismissal of the complaint ruled in connection with the charge of fraudulent management,
That he deems that the defendant received an unlawful amount of Fr. 8.320.0000 as commissions to the detriment of the FIVB,
That according to the file, provision 2.1 of the “financial principles for marketing and broadcasting,” adopted by the FIVB in April of the year 1990, a fixed commission of a 10% negotiation is hereby authorized when the contract is completely negotiated outside a marketing agency (P. 17/1, anexo 8),
That this was the case and therefore, Ruben Acosta was legally authorized to receive a commission, a fact that was then confirmed by Yvez Donzé in his capacity as reviewer, stating that he could prove the reliability of the contracts (record of the hearing nº 6, R. 8, p. 4; nº 14, R. 7, pp. 3-4),
That therefore, it is hereby not proved that Ruben Acosta infringed his management duties pursuant to article 156 since he exercised the powers that had been granted to him,
That neither the practice nor the amount of the commissions in question were objected by the auditing bodies of the FIVB That furthermore, Jean-Loup Chappelet, professor at the institute of high studies in the public administration (IDHEAP) affirms, in his judgment of April 15th., 2004, that many federations use agents to negotiate broadcasting and marketing rights and that 25% - 30% of the negotiated amounts end up being commissions (P. 134/1, p.2),
That as a result, it shall not be possible to state that Ruben Acosta harmed unlawfully the interests of the FIVB since the amount of the commissions in question is lower than the amount that should have been paid if the agents had received commissions,
That, since there is not enough criminal evidence pursuant to article 158 of the CP, the examining judge’s decision that puts an end to the criminal action in that respect is fair,
That the resolution can be confirmed as regards the dismissal of the complaint of fraudulent management;
Whereas, finally the remedy has been partially admitted,
The complaint of fraudulent management filed by the petitioner has been dismissed. The petitioner shall be held liable for the third part of the costs of this judgment (art. 307 CPP) while the State shall be held liable for the remaining part.
Therefore,
The Tribunal of Accusation
In a secret session, resolves:
I. That the remedy shall be partially admitted
II. That the resolution shall be partially canceled, regarding the dismissal of the charges of forged information in business transactions, and fake documents
III. That the file of the case shall be sent to the Cantonal instructing judge so that he institutes the indictment, and new judgment of these points.
IV. That the resolution regarding the dismissal of Ruben Acosta, Franz Schmied and Jean-Pierre Seppey as regards the charges of fraudulent management be partially confirmed.
V. That Mario Goijman shall be held liable for the costs of this judgment for the amount of Fr. 550 (five hundred fifty francs), that is to say Fr. 183,35 (one hundred eighty three and thirty five cents), being the State held liable for the remaining part.
VI. That this judgment be executed.
The president: The secretary:
This decision shall be notified to:
- Dr. Elie Elkaim, legal advisor, ( Mario Goijman),
- Dr. Laurent Isenegger, legal advisor, ( Mario Goijman),
- Dr. Michel Rossinelli, legal advisor ( Ruben Acosta and Jean-Pierre Seppey),
- Mr. Franz Schmied,
- International Olympic Committee, Ethic Commission
- Office of the Population Service
- To the General Prosecutor of the Canton of Vaud,
- Cantonal Instructing Judge, in Lausanne.
See attached the French Original of the Tribunal decision