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The IBA’s response to the situation in Ukraine
Herbert Smith Freehills, Paris
On 26 February 2021, the Paris Criminal Court unexpectedly refused to approve the guilty pleas (comparutions sur reconnaissance préalable de culpabilité CRPC) of a French group of companies prosecuted in 2021 in a case of active bribery of public officials and breach of trust in Togo.
Though the pleas had been accepted by the three individuals: the chairman and the CEO of the group and the international director of a subsidiary of the group, the court instead approved a judicial interest agreement (Convention judiciaire d’intérêt public CJIP, the French equivalent of a Deferred Prosecution Agreement (DPA)). The legal entity will have to pay a public interest fine and carry out an anti-corruption compliance programme over the course of two years under the supervision of the French Anti-Corruption Agency.
The CJIP is reserved for legal entities only. Natural persons, notably directors of a defendant legal entity, cannot be offered a CJIP, unlike, for example, in the case of a DPA or Non Prosecution Agreements under United States law. The CJIP mechanism explicitly provides that ‘the legal representatives of the defendant legal entity remain liable as natural persons’.
The same facts can therefore give rise to the conclusion of a CJIP with the legal entity, and at the same time to ‘traditional’ criminal proceedings against the legal entity’s senior management. Natural persons can nevertheless benefit from a CRPC, which is applicable to all offences.
On a practical basis, the CRPC is often used for natural persons in parallel with the conclusion of a CJIP. The CRPC has consequently emerged as a complementary tool to the CJIP. However, such coordination, which is not provided for under the French Criminal Procedure Code, is not automatic and results solely from practice, which is assessed on a case-by-case basis.
The improvement of the CJIP lies in the inclusion of natural persons in its scope of application or, failing that, in better coordination between the CJIP and the CRPC.
The main concern emerging from these various reflections is to uphold the effectiveness a natural person's right of defence of during the process leading to the conclusion of a CJIP.
In 2020, during the examination of the European Public Prosecutor’s Office and Specialised Criminal Justice bill before the French parliament, several MPs’ amendments aimed to impose the conclusion of a criminal transaction with natural persons in parallel to the CJIP concluded by the legal person, or even to extend to natural persons the possibility of concluding a CJIP.
In the case at hand, the refusal to approve the proposed CRPCs, alongside the validated CJIP, highlights the limits of the CRPC as a complementary tool to the CJIP, despite the defendants having admitted their guilt in the context of the implementation of CRPCs.
In the CRPC framework, the Judge’s intervention completes a process of negotiation undertaken between the prosecutor and the prosecuted person. In the face of the negotiated and accepted CRPC, the Homologation Judge can either approve the agreement or refuse it outright, excluding the possibility of modifying it.
In this case, the Paris Criminal Court refused to approve the CRPCs, considering that the sentences were inappropriate in view of ‘the seriousness of the acts alleged’ and that it was ‘necessary’ that these acts, which ‘seriously undermined public economic order and the sovereignty of Togo’, be judged by a court. Such reasoning is an application of the new Article 495-11-1 of the French Criminal Procedure Code, which allows the Judge to refuse to approve the CRPC if they consider 'that the nature of the facts, the personality of the person concerned, the situation of the victim or the interests of society justify an ordinary correctional hearing’.
The case illustrates the limits of the CRPC. While it is possible to appeal the decision to homologate the CRPC, no such appeal exists against the decision to refuse homologation. Due to the lack of appeal mechanisms against the refusal of homologation of a CRPC, some defendants have attempted to appeal to the Cour de cassation (the French Supreme Court), but without success.
For example, in 2017, a member of the French parliament negotiated with the prosecutor for a CRPC to admit to money laundering and financial disclosure violations. His CRPC was refused because the Homologation Judge declared that the sentence was ‘inappropriate in light of the circumstances of the offence and the personality of the author’ who was a ‘representative of the Nation’. The Cour de cassation considered that the Homologation Judge did not have to justify his decision to refuse a CRPC.
In a decision dated 30 March 2021, concerning the illegal financing of a political party, the Cour de cassation considered that the Judge may refuse to approve the case for a reason not provided for by the French Criminal Procedure Code. It therefore confirms that the Homologation Judge has discretionary power to refuse a CRPC.
The way in which the French CRPC mechanism is drafted creates real uncertainty for defendants.
Although the Cour de cassation has confirmed the absence to appeal against a refusal of homologation, it has nevertheless recently agreed to transmit a priority question of constitutionality (QPC) to the Constitutional Council. In this case, the defendant argued that the right to an effective remedy as protected at a constitutional level was violated by the absence of an appeal against a refusal to homologate a CRPC. The Constitutional Council will rule on this question in the coming months.
The lack of homologation by the Homologation Judge raises the question of self-incrimination. Indeed, the individual had admitted his guilt at the CRPC hearing. Since the Homologation Judge then refused to homologate the CRPC and sent the case back to the prosecutor for trial, the individual then finds himself in a situation of self-incrimination before his trial.
Even if the parties cannot mention the failure of the CRPC or the content of the negotiation at the subsequent trial, there is reason to doubt that the individual will benefit from a fair trial.
Finally, the Homologation Judge cannot be considered a formal buffer in the negotiated criminal trial. Their role is essential to monitor the nature of the plea agreements, the situation and opinion of victims deprived of a public trial, and the interests of society.
As a relatively new category in the French legal system, so-called ‘negotiated justice’ mechanisms such as the CRPC, which are based on an admission of guilt, have participated in the emergence of a movement towards the negotiated criminal trial and have shifted the stage of the Judge’s intervention to later in the case.
The scope of application of the CRPC was progressively extended, with a view to encouraging the rapid processing of cases that could be exempted from ordinary criminal trial.
Despite efforts to improve the attractiveness of the CRPC, Judges seem to want to remain present. Their role seems to have even been strengthened by the latest reforms. For example, the new Article 495-11-1 of the French Criminal Procedure Code allows the Judge to exercise, at a later stage, an actual and total power of discretion, even if it means interrupting the ‘consensual’ resolution of the dispute.
The reasons invoked by the ruling of 26 February 2021 border on a ‘disavowal’ of the initiative taken by the prosecutor to use the negotiated route of a CRPC in such a case.
Did the Homologation Judge consider that the CRPC was not appropriate given the nature and seriousness of the facts? Did they consider it essential to hold an adversarial and public trial? Did the Judge expect the prosecutor to propose a more severe sentence?
Does the new Article 495-11-1 of the French Criminal Procedure Code give the Judge the means to limit a posteriori the prosecutor’s discretionary power?
Negotiated justice is supposed to offer defendants a certain amount of predictability as to the outcome of their case.
The decision of 26 February 2021 underlines an important step. If one can consider that, by this decision, the Judges of the Paris Correctional Court have largely destroyed the efforts of the legislator to develop negotiated criminal justice in France, it can also be argued that the jurisprudence wanted to specify the function of the trial judge in a movement of contractualisation of the criminal trial seeking to reduce its perimeter of intervention.
Such a trend may not be followed by the legislator. As a matter of fact, two French MPs have published propositions to improve the SAPIN II Law. Their proposition No 26 is as follows:
‘Create a CRPC specific procedure to acts of corruption, which could only be proposed in the event of spontaneous disclosure of the facts and full cooperation of the individual in the investigations, and whose approval procedures would be more regulated: the Homologation Judge’s assessment would essentially focus on the legal characterisation of the facts, on the spontaneous nature of their disclosure, as well as on the reality of the individual’s cooperation in the investigations.’
Lawyers will be keeping a keen eye on whether this proposition is voted on by the French parliament.
 See Art 41-1-2, French Criminal Procedure Code.
 See Art 495-7, French Criminal Procedure Code.
 Circular of 31 January 2018 on the presentation of the criminal provisions of the so-called ‘SAPIN II’ law; the French Financial Prosecutor and the French Anti-Corruption Agency, Guidelines on the Implementation of the Judicial Public Interest Agreement, 26 June 2019.
 See P Dufourq and C Lanta de Bérard, ‘Justice négociée : quel sort pour les personnes physiques’, Dalloz Actualité, 9 September 2019.
 Simon Piel, ‘In a case of corruption in Africa, the French justice refuses the guilty plea of Vincent Bolloré’ Le Monde (Paris, 26 February 2021).
 Agence France-Presse, ‘Account in Switzerland: the LR deputy Bernard Brochand will have to be judged in correctional’, Le Point.fr (Paris, 15 September 2017) (‘The court considers that the sentences are inappropriate in view of the circumstances of the offence and the personality of the author, “representative of the Nation”, explained the Judge to the member of parliament during the hearing’).
 Cass crim, 1 September 2020, No 19-83.658 (‘4. Since no text provides for the possibility of an appeal against an order refusing to approve the sentences proposed by the public prosecutor in the context of an appearance on the basis of a plea of guilty, an appeal to the Supreme Court against such a decision is only possible if its examination reveals a risk of abuse of power subject to review by the Supreme Court’).
 Cass crim, 30 March 2021, No 20-86.358 (‘7. The Judge noted that the refusal of homologation would allow the court, which might be seized of the case, to rule consistently on the role of each of the three defendants in their knowledge of the alleged facts. 8. In so ruling, the Judge delegated by the president of the court did not commit any excess of power. 9. Consequently, the appeal of the public prosecutor must be declared inadmissible’).
 Cass crim, 7 April 2021, No 21-90.004: ‘Does article 495-11-1 of the Code of Criminal Procedure, insofar as it does not provide for an appeal against the order of refusal of homologation by the Judge, infringe the rights and freedoms guaranteed by article 16 of the Declaration of the Rights of Man and the Citizen of 1789?’.
 Art 495-14, French Criminal Procedure Code.
 Like any method of prosecution, the use of the CRPC is the result of a quasi-discretionary choice by the Prosecutor.
 See Information report, Impact assessment of Sapin 2 Law, 7 July 2021.