In a decision handed down on November 29, 2023 in the case known as “Bolloré”, the French Supreme Court ruled on the implications of the refusal to approve an agreement reached between the national financial prosecutor’s office and three senior executives as natural persons, in the context of an Appearance on Preliminary Acknoledgement of Guilt (hereinafter “APAG”).
The Bolloré Case – Elements and progress of the case
This case, which began in 2013 with an investigation into the conditions surrounding the extension of the Lomé port concession by Bolloré Africa Logistics between 2009 and 2011, involved suspicions of financing the re-election of Togolese President Faure Gnassingbé. The executives, including Vincent Bolloré, were indicted in 2018 for bribery of a foreign public official.
While the legal entities involved negotiated a Public Interest Judicial Agreement (hereinafter the “PIJA”), with a total fine of 12 millions euros and a compliance program, the executives opted for an APAG with the national financial prosecutor.
However, at the homologation hearing, the president of the Paris judicial court homologated the PIJA for the benefit of the legal entities, but refused to homologate the APAG, arguing that the seriousness of the facts required a public judgment. This temporal disagreement between the PIJA and the APAG left the directors admitting their guilt without any certainty as to the outcome of the ongoing proceedings.
Following an appeal related to the consequences of the refusal of homologation, the Criminal Division ruled that, in the event of the failure of an APAG, the accused’s requests or agreements for referral to an APAG, as well as related documents, should be removed from the investigation file.
Appearance on Preliminary Acknowledgement of Guilt – French Plea Bargain
Introduced in 2004 by the Perben II law, and codified in article 495-7 of the French Code of Criminal Procedure, the APAG is a judicial procedure enabling the expeditious trial of the perpetrator of an offence, provided that he or she acknowledges the charges.
Applied to certain offenses, and at the request or with the agreement of the public prosecutor, this procedure comprises two essential stages: the prosecutor’s proposed sentence and the homologation hearing.
The sentence proposed by the public prosecutor may be accepted or refused by the offender. The prosecutor may propose a prison sentence and/or a fine. However, the term of imprisonment may not exceed 3 years, nor may it exceed half the sentence incurred.
If the sentence is accepted, a report is drawn up containing the acknowledgement of the facts, the proposal and the acceptance of the sentence, and the case is immediately referred to the judge for approval. If, on the other hand, the offender refuses to accept the sentence, he or she receives a new summons to appear before the criminal court for trial.
Initially designed for investigations by the public prosecutor’s office, this procedure was extended to judicial information in 2011 by law n°2011-1862.
In probity-related cases, the APAG has become the preferred route for executives facing prosecution, particularly when the company negotiates a PIJA with the public prosecutor’s office.
While APAG has its advantages, notably speed of judgment and savings in resources, it is not without its drawbacks.
Challenges for the APAG – Risks for the presumption of innocence and the rights of the defense
The main risk inherent in implementing an APAG during the course of a judicial investigation lies in the fact that, should the process fail, the file will retain a record of the defendant’s acknowledgement of the facts, as well as his or her acceptance of the criminal characterization.
Although article 495-14 of the French Code of Criminal Procedure stipulates that where the person concerned has not accepted the proposed sentence, or where the president of the judicial court has not approved the public prosecutor’s proposal, the minutes may not be transmitted to the investigating or trial court, and that neither the public prosecutor nor the parties may refer to this court the statements made or the documents handed over during the APAG procedure, the decision to refer the case to the public prosecutor remains in the file. This situation poses a problem, since if the APAG fails, the executive finds himself before a trial court which cannot ignore his admission of guilt made at the investigation stage.
This circumstance clearly weakens his defense, and keeping the committal order in the investigation file raises concerns about the presumption of innocence and the rights of the defense. In support of their pleas, the defendants raised the right to the presumption of innocence and the consequent right not to contribute to one’s own incrimination. In support of their pleas, the defendants raised the right to the presumption of innocence and the consequent right not to contribute to one’s own incrimination.
The Court points out, however, that the current wording of the text does not prohibit the transmission of the accused’s request or agreement to refer the case to the public prosecutor with a view to the APAG, as provided for in article 180-1 of the French Code of Criminal Procedure. Nor does it prohibit the referral of the case to the APAG, which only lapses if the proceedings fail.
The Court justifies this position by asserting that maintaining the referral order does not undermine the presumption of innocence, arguing that the failure of the APAG may result from the fact that the accused did not admit to the facts in the presence of his lawyer. This justification is open to criticism, as it overlooks the fact that the introduction of the APAG requires prior acknowledgement of the facts by the accused. The French Supreme Court reasoning therefore appears somewhat inadequate.
What’s more, if the accused executive was assisted by a lawyer during the judicial investigation, his or her acknowledgement of the facts would appear to have been made with full knowledge of the facts, or in cases such as the Bolloré case, where the PIJA approval order refers to the acknowledgement of the facts in the context of a failed APAG, the executives’ subsequent defense before the criminal court seems compromised.
Ultimately, the solution provided by the ruling of November 29, 2023 is showing its limitations, and requires a reassessment of case law to avoid widening the inequality between the criminal liability of legal entities and that of individuals.
In the meantime, the Bolloré case may discourage defendants from resorting to the APAG.
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