Pursuant to the December 13, 2011 Act no. 2011-1862 on the allocation of court cases and the reduction of certain judicial procedures (Official Journal of the French Republic of December 14, 2011), all offences of bribery, fraud and abuse of trust now qualify for the “plea bargain” procedure. On December 8, 2011, the Conseil constitutionnel confirmed the constitutionality of these new provisions, following a referral by 60 senators.
 

Instituted under the Perben II Act of March 9, 2004, the “plea bargain” procedure gives the public prosecutor the possibility, subject to the judge’s final approval, of proposing to an accused who accepts the principle of his criminal liability a penalty consisting in a fine that may be equivalent to the entire fine carried by the offence and/or a prison sentence that cannot be more than half of the potential imprisonment and no more than one year’s imprisonment in all cases.

Now, before the Act of December 13, 2011, the “plea bargain” procedure could only be implemented for offences that are punishable, for the main part, by a prison sentence of five years or less and a fine. The reform brought about by the new Act has considerably widened the scope of this procedure.

Indeed, the new provisions set forth the possibility of using the “plea bargain” procedure following a judicial investigation (new Article 180-1 of the French Criminal Procedure Code) and, on the other hand, extend its scope of application to all offences (Article 495-7 of the French Criminal Procedure Code), save certain exceptions (such as offences causing bodily harm with or without intent, press offences, manslaughter or offences prosecuted according to a procedure set forth in specific legislation, such as tax fraud).

Based on these new provisions, new economic and financial offences therefore fall into the scope of the “plea bargain” procedure. This is particularly the case for passive bribery and influence peddling offences committed by public officials (Article 432-11 of the French Criminal Code), active bribery and influence peddling offences committed by individuals (Article 433-1 of the French Criminal Code), and especially active or passive bribery by or of persons holding public authority in a foreign State or within a public international organisation (Article 435-1 and 435-3 of the French Criminal Code); many governments are indeed currently paying specific attention to these latter offences. As all of these offences are punishable by prison sentences of over five years, they did not previously qualify for the “plea bargain” procedure. Likewise, fraud and abuse of trust offences may now qualify for this procedure when they are committed under aggravating circumstances, and particularly when the fraud is organised (Article 313-2 and 314-2 of the French Criminal Code).

Although the scope of the “plea bargain” procedure has been broadened, the procedure itself remains unchanged: the public prosecutor may, either sua sponte or at the request of the interested party or his lawyer, use the “plea bargain” procedure for anyone summoned or referred to appear before him, when such person admits the charges made against him. A lawyer must be present when the proposal is made to the accused. His acceptance implies the referral of the accused before the President of the Tribunal de grande instance or his representative, for approval.

To approve the decision, the judge verifies the legal qualification of the charges and examines the proposed penalty in view of the circumstances of the offence and the perpetrator’s character. The judge may deny the approval if he considers that the nature of the facts, the interested party’s character, the victim’s situation or the interests of society justify an ordinary criminal hearing.
If the proposal made by the public prosecutor is approved, the judge hands down a decision which constitutes a sentence and which may be appealed. If approval is denied, the public prosecutor is then required, unless there is any new evidence, to refer the matter to the criminal court or request that a judicial investigation be opened.

So now the most serious financial offences, particularly offences concerning international bribery, may qualify for the “plea bargain” procedure, thus marking the lawmakers’ intent to give not only the public prosecution service but also the investigating judges effective tools to combat financial crime.

Kami Haeri - Partner - Board Member of the Paris Bar