📧📕Compliance et droits de la défense. Enquête interne - CJIP - CRPC : les lignes de force de l'ouvrage (Compliance and rights of the defence. Internal investigation – French Judicial Public Interest Agreement – French guilty plea procedure : the main themes of the book)

The book Compliance et droits de la défense. Enquête interne - CJIP - CRPC (Compliance and rights of the defence. Internal investigation – French Judicial Public Interest Agreement – French guilty plea procedure) is now available in bookshops.

The book is part of the Regulations & Compliance collection, which I founded almost 10 years ago, and which is co-edited by the Journal of Regulation & Compliance and Dalloz.

 

Here is the general presentation (I) and the main points (II) which describe each of the contributions, showing the unity of the work by articulating each contribution in relation to the others, in a general plan which constitutes the overall demonstration that the rights of the defense must play a full part in compliance mechanisms.

 

I. GENERAL PRESENTATION OF THE BOOK COMPLIANCE ET DROIT DE LA DÉFENSE - ENQUÊTE INTERNE - CJIP - CRPC (COMPLIANCE AND RIGHTS OF THE DEFENCE. INTERNAL INVESTIGATION - FRENCH JUDICIAL INTEREST AGREEMENT - FRENCH GUILTY PLEA PROCEDURE)

The rights of the defence are one of the pillars of our rule of law. On the face of it, compliance techniques are not concerned with them, on the pretext of efficiency. This would be particularly true in a trilogy that unfolds over time: internal investigations, the conventions judiciaires d’intérêt public - CJIP (Judicial Public Interest Agreement) and the comparutions sur reconnaissance préalable de culpabilité – CRPC (french guilty plea procedure).

However, because Compliance Law is also the expression of the Rule of Law, in that it aims to detect and prevent systemic risks in order to protect present and future human beings, we must go beyond this opposition and articulate Compliance and the rights of the defense.

The Monumental Goals of Compliance, which justify its power, for example to obtain information, and the fundamental rights of the defense, which for example impose the presumption of innocence, must be adjusted to each other; by interpreting texts, or even adopting new ones.

The book analyzes each of these three techniques, in particular the still little-regulated internal investigation, and sheds light on them in relation to each other, in order to formulate proposals.

 

II. THE MAIN THRUST OF THE BOOK: UNDERSTANDING PRACTICES IN ORDER TO REDRAW THE BOUNDARIES AND INCREASE THE POINTS OF CONTACT BETWEEN COMPLIANCE AND THE RIGHTS OF THE DEFENSE IN INTERNAL INVESTIGATIONS, THE CJIP AND THE CRPC

How difficult it is to have an overall vision, not necessarily warlike but nevertheless realistic, of this Compliance and rights of defence subject! Yet the title of the book itself expresses this ambition: to link compliance mechanisms, high-performance systemic tools in which there seems to be so little Law and so few rights, and the rights of the defence, which are both and above all prerogatives held by individuals, subjective rights constituting the index par excellence of a society built on the Rule of Law, fundamental subjective rights for which a compromise would already be a bad sign for the social group in which we live, which would be devoured by the hubris of compliance efficiency.

The task is therefore an arduous one, fraught with pitfalls. Pitfalls because we get lost in the processes that take place first of all in companies, through internal investigations, then in the offices of public prosecutors receiving advice from companies to draw up convention judiciaire d’intérêt public - CJIP (judicial public interest agreement), then in the courtroom for a comparution sur reconnaissance préalable de culpabilité – CRPC (french guilty plea procedure), where individuals reappear while the judge takes his place. Traps, because in order to apprehend them from a single viewpoint, unifying their diverse practices through principles, how can we do so without taking sides, either in favour of compliance, or in favour of the rights of the defence.... This is all the more difficult when one of the players who appears to be losing or conceding in one of the phases of the CJIP or CRPC only seems to be doing so in order to prepare his next advantage in the mechanism that will soon open up, and not necessarily with the same interlocutors. We therefore need to take a global look if we are to give an overall assessment, so as to align these methods with a few principles.

Indeed, because it is human beings who are at the heart of the systems guarded by the ever more powerful mechanisms of compliance, these are ways of doing things that the Law must ground in the essential principles of life in society. The first aim of the book is therefore to shed light on practices in internal investigations, CJIPs and CRPCs, on what goes well and what goes less well or badly, and on the distances between what goes on there and the usual description that is often made of it. And yet, the distance is often great, even supposing we talk about it, because there are many studies on the CJIP when few have been carried out, there are few on internal investigations when they are legion, and there are even fewer works that articulate what is nonetheless thought of as a single entity in practice: internal investigations, CJIP and CRPC.

As long as we don't have an overall view of this, we can't remedy any shortcomings that may exist, either because we don't know what's going on, or because we haven't measured the extent to which internal investigations, CJIP and CRPC only take place in relation to each other in practice, while hard and soft law texts, decisions and analyses segment them. The book's first ambition is therefore to restore an overall vision, because this is the vision of practice itself. If shortcomings are found to exist, they can be denounced.

However, we note that some of the situations described may be described by some as deficient, or even dramatic, while by others they may on the contrary be approved as they stand. This applies to the question of whether or not the investigation report should be kept secret from the prosecuting authority, which may propose a CJIP , whether or not the CJIP should be extended to individuals, whether or not a lawyer should be present at the internal investigation stage, whether or not the lawyer should support the interests of the company he is investigating, etc, whether or not the investigation has been delegated from the public authorities to the company, whether or not the lawyer-investigator and then the lawyer-defendant have the same status, whether or not the victims are involved in the CJIP , and so on.

The soft-law nature of most of these texts makes the exercise complicated. Then, if there is a gap between the texts and what we think should be the right standard, we say that in practice things are different from what the texts say, or we consider that the texts should be changed. Point by point, a veritable kaleidoscope emerges.

The result is a work in which the contributions sometimes clash with one another, the principle of contradiction creeping into the very structure of the work, thus establishing the reader himself as the judge, that character so absent. Readers will be able to draw up their own opinions, as the book lists texts, describes practices and illustrates all that can be thought of them, in visions that are sometimes analytical and sometimes global, setting out various proposals.

Yes, the book's aim is to enable readers to form their own ideas, and to take part in what is undoubtedly the subject of debate today: the confrontation between Compliance and the rights of the defense.

 

To open up this subject and gain an overall view, Matthieu Boissavy goes beyond section 1 of this summary and takes sides in section 2, since he considers that between Compliance and the rights of the defense, we must always be in favor of respect for human rights, which in principle nobody disputes, but which he considers is sometimes abused. He begins by describing compliance, whereby a company's freedom is curtailed to ensure that its power serves the goals set by the public authorities and prevents risks from materializing. These "monumental goals" are set by the public authorities either to prevent the occurrence of systemic risks, or to achieve beneficial objectives for society, human beings and the environment. In order to do this, companies will have to investigate and denounce themselves, and this self-denunciation will reduce the criminal sanctions incurred as a result of the infringements they themselves have uncovered. These monitoring tools facilitate the mechanism of the convention judiciaire d’intérêt public - CJIP (judicial public interest agreement). They work "for the better" if the aforementioned monumental goals are achieved. They work "for the worse", if this is at the cost of sacrificing the rights of the defense.

Secondly, we are reminded of the importance of the rights of the defense, their roots in history, indeed in natural law, their position at the very top of the hierarchy of norms and, according to the contributor, the integration of the adversarial principle within them, as well as the fact that they apply even outside trials, as jurisprudence has imposed, for example, in matters of dismissal. This is why, thirdly, the contribution asserts that the rights of the defense must always apply in all compliance mechanisms, even if they do not involve a trial or a sanction in the strict sense of the term, notably in internal investigations, those procedures without trial which are above all evidentiary mechanisms for the future, the elements being exploited in CJIP and comparution sur reconnaissance préalable de culpabilité – CRPC (french guilty plea procedure), in which the freedom of consent is often questionable... In addition, the contributor expresses his doubts about the effectiveness of the consents expressed during the CJIP and CRPC.

To find out more ➡️🧱M. Boissavy, 📝Compliance et droits de la défense: toujours pour le respect des droits humains.

 

Since, in practice, everyone's strategies interfere, everyone anticipating, everyone remembering, because at the investigation stage we are already thinking about the next steps that are not only the convention judiciaire d’intérêt public - CJIP (judicial public interest agreement) and comparution sur reconnaissance préalable de culpabilité –CRPC (french guilty plea procedure) but perhaps also the convictions that will come, while later in these proceedings we seek to rediscover that past where investigations provided so much precious information, we need to Circuler dans le temps pour l'efficience des droits de la défense dans les systèmes de Compliance ("Moving through time to align Compliance with the rights of the defence"). In section 3, I therefore adopt this method to take a comprehensive look at Compliance and the rights of the defence, emphasizing first of all that this subject often gives rise to largely opposing presentations, reflecting the initial confrontation between Compliance and the rights of the defence. This initial confrontation must be acknowledged, all the more so as the challenge is to avoid it becoming definitive. But in a state governed by the rule of law, the rights of the defense are central, and the hierarchy of norms dictates that they remain the privilege of all those who risk being punished in the future. Admittedly, if we look at the course of events in a linear way, compliance mechanisms being ex ante, the rights of the defense would only come to life when repressive procedures were later brought against the person, moral or physical. The question would not even arise, or not in a central way. Yet this is a false compatibility between compliance and the rights of the defense.

Indeed, it is the prospect of possible future punishment that underpins the granting of rights of defence. This consideration of the future not only enables but obliges the Law to "circulate in time", to always think in advance of what may happen tomorrow: this is how we must think of the internal investigation, the CJIP and the CRPC. As soon as these compliance tools are put into practice, at the very moment when they are being used, we are already thinking about how they will be used, which is what they have often been used for, because the internal investigation is a formidable piece of evidence for obtaining a subsequent conviction and/or CJIP and/or CRPC, the rights of the defense shift in time.

Two ambiguities affecting compliance law itself, which can be clarified by the rights of the defense, are becoming clearer. The first concerns the place occupied by the consent of the person who could have been protected by the rights of defence and who exercises his will to renounce them. Indeed, consent, linked to the will of which it is the expression, is also aimed at the future and once again allows compliance to take precedence over the prerogatives of the individual, who of his own accord chooses not to benefit from them. The omnipresence of "consent" in compliance is enlightening here. To protect the link that must remain between consent and the free will of the individuals concerned, the figure of the third party must nevertheless be reintroduced into the internal investigation and the CJIP, since there are many candidates to embody this impartial third party, but the organization remains weak, notably due to the singular absence of the judge.

In the same way that better-protected consent can serve as a link between compliance and the rights of the defense, keeping secrets could reconcile them, on the one hand if we identify more precisely the potential for future sanctions at the time when the investigation is taking place, when the CJIP is being negotiated, and on the other if we better measure the ability of secrecy to promote the transmission of information.

To find out more ➡️🧱M.-A. Frison-Roche, 📝Circuler dans le temps pour l'efficience des droits de la défense dans les systèmes de Compliance.

 

Since the anticipation that each makes and the retroactivity of the findings made in mechanisms that are above all evidentiary are what unite internal investigations, convention judiciaire d’intérêt public - CJIP (judicial public interest agreement) and comparution sur reconnaissance préalable de culpabilité – CRPC (french guilty plea procedure), making each de facto the condition of the others, it is logical to build the book over time, first devoting a Title I to the procedural issues of the internal investigation confronted with the rights of the defense, which allows us to have the elements to apprehend in a Title II the procedural issues of CJIP and CRPC confronted with the rights of the defense.

 

Title I, devoted to the procedural challenges of internal investigations and the rights of the defense, is divided into 4 chapters. The aim of Chapter I is to provide a general vision of the rights of the defense in internal investigations. Once this has been achieved, Chapter II can take a more analytical approach, dealing in turn with the rights of the defense at each stage of the internal investigation. Once this stage-by-stage progression has been completed, Chapter III highlights the specific nature of internal investigations in international companies and the place occupied by the rights of the defense. The singular role of the lawyer in internal investigations, to which Chapter IV is devoted, also emerges.

 

Within the general vision of the rights of the defense in internal investigations , to which chapter I is devoted, section 1 proposes a doctrinal approach to internal investigations and private criminal investigations. Benjamin Fiorini outlines the two profoundly distinct, even opposing, cultures of inquisitorial and adversarial repressive procedural systems. The former give confidence and power to public officials to find the truth, while the latter give confidence and power to the opposing parties in the dispute. Private investigations naturally develop in the latter system, but not in the former.

This second system of thought is rooted in the United States, which naturally welcomes internal investigations carried out by companies, and associates procedural principles such as the rights of the defense, adversarial proceedings and the right to counsel. The first system, characteristic of continental law systems, is resistant to the very idea of a private criminal investigation. This is why, when the internal investigation mechanism develops within a company, the aforementioned procedural mechanisms are less naturally associated with it.

To find out more ➡️🧱B. Fiorini, 📝Approche doctrinale de l'enquête interne et de l'enquête pénale privée.

 

This leads to Section 2, which takes a critical look at La place des droits de la défense dans l'enquête interne selon le guide AFA/PNF. Margaux Durand-Poincloux , David Apelbaum and Paola Sardi-Antasan present the guide published in 2023 by the Agence française anticorruption – AFA (French Anti-Corruption Agency) and the Parquet national financier - PNF (French National Financial Prosecutor’s Office), Les enquêtes internes anticorruption. Guide Pratique (Internal anti-corruption investigations. Practical Guide), and consider that the rights of the defense do not have the place that should be implied by the general principles. They feel that the procedural guarantees are insufficient for the person being prosecuted.

What's more, because the lawyer does not have the resources he should legitimately have at his disposal, the rights of the company within which the internal investigation is taking place are disregarded. The contributors conclude that this guide represents a kind of "step backwards" in relation to the principles governing repression, particularly in that the report resulting from the investigation is not protected by any secrecy.

For further information, see ➡️🧱M. Durand-Poincloux, D. Apelbaum and P. Sardi-Antasan, 📝Regard critique : La place des droits de la défense dans l'enquête interne selon le guide AFA/PNF.

 

However, as the book constitutes a kind of dialogue, or at the very least provides the reader with the elements to form an opinion, in section 3, Jean-François Bohnert develops Les conditions de réussite de l'enquête interne dans les rapports entre le Parquet national financier et l'entreprise mise en cause (The conditions for a successful internal investigation in the relationship between the French National Financial Prosecutor’s Office and the accused company). In his contribution, the National Financial Prosecutor recalls that he has expressed his views on internal investigations in guidelines and guides, documents which merely describe "a practice and meet the objectives of transparency and predictability for the public and economic players". He believes that a company faced with a suspected infringement must decide whether or not to launch an internal investigation, in order to reorganize in particular. If this approach contributes to uncovering the truth, it will be valued in any subsequent proceedings.

Investigation conditions and procedures must be satisfactory, particularly as regards the gathering of information, the procedural guarantees offered to individuals, and the drafting of the investigation report. If the report reveals "behavior that does not comply with established internal procedures", the company may draw the appropriate legal and/or disciplinary consequences. The contributor stresses that the analysis must be carried out independently of the writing of the report, so as not to bias the presentation of the facts.

It is recalled that the guidelines invite the company to spontaneously inform the PNF of the facts revealed by the investigation, thus enabling the company to claim a "negotiated and softened penal response" due to this "attitude of cooperation and good faith" and the "seriousness" of the investigations carried out, while the PNF conducts a criminal investigation. The PNF will be able to request access to the internal investigation's implementation reports, mission letters, etc. On the other hand, a "defensive" internal investigation, for example, opened after the criminal investigation has been launched, could be counterproductive. On the contrary, collaboration can be established, with the PNF proposing a framework document for an internal investigation, a timetable, etc., which can result in ongoing links between the PNF and the company during the internal investigation. The PNF considers that if lawyers are involved in this context, they should be different from those involved in the parallel or subsequent criminal proceedings.

To find out more ➡️🧱J.-F. Bohnert, 📝Les conditions de réussite de l'enquête interne dans les rapports entre le Parquet national financier et l'entreprise mise en cause - l'enquête interne au soutien de la défense de l'entreprise

 

This general overview highlights the considerable stakes involved in the international investigation, which is often the key to the outcome, as well as the often diametrically opposed positions taken by the various parties. Opinions and attitudes can be brought closer together if we take a less general perspective, focusing on specific cases and particular segments of the often lengthy and complicated surveys.

 

This is the subject of Chapter II, which deals with the Les droits de la défense à chaque étape de l’enquête interne (The rights of the defence at each stage of the internal investigation). Logically, section 1 of this chapter begins with La réception des alertes par l'avocat (The receipt of alerts by the lawyer). Maria Lancri begins by outlining the legislative developments in France and the rest of Europe with regard to the whistle-blowing mechanism linked to the investigation process, the rights deriving from it, and the technical systems that companies have set up as a result.

The article goes on to highlight the benefits of entrusting a lawyer with the results of alerts, on the basis of which investigations will be triggered by companies. The contributor demonstrates that the procedure for receiving alerts must not be limited to a mechanical reception, but must integrate secrets and anticipate the investigation that will be launched, which is by nature what a lawyer does. In fact, she insists on the fact that the lawyer will increase the guarantees of respect for confidentiality, the effective handling of the alert and the limitation of the risk of reprisals. More generally, she develops the idea that the lawyer helps to reassure the various people involved.

For further information ➡️🧱M. Lancri, 📝La réception des alertes par l'avocat

 

Next up, outlined in a section 2, is Collecte et traitement des informations dans les enquêtes internes à l’ère numérique (Information gathering and processing in internal investigations in the digital age), whose processes and issues are described by Uriel Goldberg. Focusing on technology, these developments encompass less the rights of the defense, which are not addressed as such, but rather the methodology required by the object sought, the information processing required to achieve it, and the constraints engendered by the tools used. The aim is to achieve the greatest possible reliability and efficiency in data collection and handling.

Methods for obtaining data are described. This is made difficult by the variety of simultaneously applicable legal systems, confidentiality obligations and the personal nature of certain data, which makes them legally unusable. The next step is to extract the relevant data from the mass of data.

The methodology used by the professional consists in clearly indicating at the outset the scope of the information search and the specifics of the survey, a framework to be communicated to the people and organizations involved. This means specifying the geographical scope of the research, the period covered, the people involved in the internal survey, the type of data sought, the IT systems involved, the level of confidentiality required, and the internal procedures for data storage and access. The information collected is either structured or unstructured, both types articulating as technology constantly evolves, while the principles of investigation must remain stable.

To find out more ➡️🧱U. Goldberg,📝Collecte et traitement des informations dans les enquêtes internes à l’ère numérique 

 

The multidisciplinarity required to conduct an internal investigation appears even more clearly in section 3, as it is devoted to L'apport de la psychologie pour l'effectivité des droits de la défense dans l'enquête interne pour harcèlement au travail. Nathalie Leroy and Danièle Zucker, one a lawyer and the other a clinical psychologist, begin by highlighting the specific features and, in particular, the difficulties inherent in the internal investigations required by companies in cases of sexual or psychological harassment. The aim here is to show the fruit of close collaboration between the legal expert and the psychologist in such cases, so that a dialogue can be established in which everyone can express themselves and be protected, which is a way of giving life to the rights of the defense. What they describe as a "cross-view", required by the fact that harassment is a "psychological concept" to which the Law attaches legal consequences, justifies not limiting ourselves to a strictly factual and organizational approach.

The mastery of psychology makes it possible to give relevance to attitudes that are not legally reprehensible. We therefore need to develop an appropriate methodology that complements factual and legal analysis, integrating personality indices, considering post-traumatic stress, and decoding what may be a system of harassment. In addition, the method adopted must enhance the reliability of the interviews, so that everyone's voice can take its place (hearing techniques, reinforcement of personal skills).

To find out more ➡️🧱N. Leroy & D. Zucker, 📝L'apport de la psychologie pour l'effectivité des droits de la défense dans l'enquête interne pour harcèlement au travail.

 

It is precisely this crucial moment in the hearings that the book then turns to, to show first of all that Le respect des droits de la défense lors des auditions des enquêtes internes: un gage d'efficacité (The respect for the rights of the defense during internal investigation hearings is a guarantee of effectiveness). To demonstrate this in section 4, Ghita Khalid Rouissi and Emmanuel DAOUD take a chronological look at the internal investigation mechanism, which often follows an alert, and more specifically at the hearings that are then held. In most cases, the rules are set out in practice, with a little case law and a few publications by the Paris Bar and the Conseil national des barreaux (CNB) when a lawyer is involved.

The contribution recalls the texts describing the methods provided for, recommended or advised in this area, whether in terms of preparing the hearing, conducting it or drawing the consequences, so that it is brought closer to criminal proceedings, formalization being a guarantee of respect for the rights of the defense.

To find out more ➡️🧱E. Daoud & G. K. Rouissi, 📝Le respect des droits de la défense lors des auditions des enquêtes internes: un gage d'efficacité.

 

But here again oppositions come alive, showing that our legal system is not yet mature. In fact, in section 5, analyzing the position of the Agence française anticorruption – AFA (French Anti-Corruption Agency) and the Parquet national financier - PNF (French National Financial Prosecutor’s Office), on the subject of L’enquête interne au cœur des enjeux de conformité et de justice négociée : analyse de la position de l'AFA et du PNF (Internal investigations at the heart of compliance and negotiated justice), ERIC RUSSO stresses the continuum between internal investigations and negotiated justice, and the willingness of authorities and companies to cooperate, in an international context and based on an Anglo-Saxon model, but the rights of the defense would not have their full place. With regard to the latter, both those of the persons interviewed and those of the company, which should not remain passive, he stresses that the legislator could provide a better framework for the internal investigation and considers that when the investigation takes on a certain proportion, it is in the company's interest to entrust its conduct to a lawyer. What's more, he is clearly in favor of the lawyer combining the role of investigator with that of company defender, contrary to the recommendations of the AFA and PNF, who see this as incompatible.

To find out more ➡️🧱E. Russo,📝 L’enquête interne au cœur des enjeux de conformité et de justice négociée : analyse de la position de l'AFA et du PNF.

 

Continuing its journey, the book arrives at the investigation report, that coveted treasure trove of information. In section 6, Samuel Sauphanor describes Le rapport d'enquête interne à l'épreuve des droits de la défense (The internal investigation report tested against the rights of the defense). Indeed, the internal investigation is still a "huge blind spot". Yet it is an essential subject in that, for the contributor, the internal investigation constitutes a parapenal procedure and can have the effect of leading to a criminal sanction. The principles of criminal procedure should therefore be fully applied. This is not the case.

First of all, this contribution argues that the investigation creates an imbalance between those conducting the investigation and those who are required to cooperate, which can only become entrenched over time. This imbalance is intrinsically dysfunctional, as the rights of the defense are scarcely present during the investigation, and this crystallizes in the report, hindering the defense of those implicated.

Because the investigation report is not the collection of the truth, but rather the major piece of evidence in a wider mechanism, such as the pre-organization of a convention judiciaire d’intérêt public - CJIP (Judicial Public Interest Agreement), the accused persons, both legal entities and individuals, must consider it as an element of defense, which must have been constituted fairly, and which may be cancelled if it has not, in order to prove the diligence of both parties, in an anticipated defense strategy, particularly for the legal entity exposed to subsequent sanctions, with the risk of sacrificing the self-interest of collaborators.

The result is a difficult role for the lawyer acting on behalf of the person commissioning the investigation report, who has to decide which interests to defend and how to do so. In the same way, it is difficult to defend the confidentiality of communications with one's client, since the investigation report must be conceived as an evidentiary document destined to be produced. On the contrary, the contributor believes that it must be conceived from the outset as not being secret, but as being destined to be communicated to the authorities and in subsequent proceedings.

To find out more ➡️🧱S. Sauphanor, 📝Le rapport d'enquête interne à l'épreuve des droits de la défense

 

Once the overall perspective has been led by Chapter I, and the step-by-step path followed by Chapter II, Chapter III can address the essential theme constituted by The specificity of internal investigations in international companies.

 

In chapter III, devoted to La spécificité des enquêtes internes dans les entreprises internationales et la place (The specific nature of internal investigations in international companies and the place) of the rights of the defense, section 1 enables Olivier CATHERINE to develop La spécificité des enquêtes internes pratiquées par les groupes internationaux (The specific nature of internal investigations carried out by international groups). He describes how an internal investigation is conducted in an international company. In-house lawyers are particularly well-versed in this field, having followed the evolution of large companies, which implies the dynamics of global internal investigations.

To do this, the in-house lawyer must not only act as an "investigator", but also establish beforehand a legitimate and robust compliance program, both global and integrating local particularities. This reference framework, built around a common corpus of standards, covers in particular the whistle-blowing system and the conduct of internal investigations. This transparent system is designed to generate confidence throughout the Group.

Investigations are often international or take place abroad, the French particularity being the fragility of the secrecy of correspondence with lawyers and the lack of confidentiality of legal opinions, which can make it difficult for the company to implement the system properly, at a time when the rules governing criminal liability are becoming more flexible for groups. The contributor then describes the operational conduct of internal investigations carried out by an international group.

To find out more ➡️🧱O. Catherine, 📝La spécificité des enquêtes internes pratiquées par les groupes internationaux

 

Section 2 looks more specifically at ways of Garantir la valeur probatoire d’un rapport dans le cadre d’une enquête interne opérée dans une entreprise internationale (Guaranteeing the probative value of a report in the context of an internal investigation carried out by an international company). Monique Figueiredo explains why producing an internal investigation report is a major challenge for a company, especially if it is international in scope. From the outset, the company must conceive the report for what it is: an evidentiary tool. Indeed, through this report, the company establishes that it is doing its utmost to comply with local and international laws, that it observes the rights of defense and the adversarial principle in its investigations, and that it is developing a culture of impartiality within itself to conduct these investigations. To this end, the report must keep track of the rigorous investigative methodology followed, compliance with the various data laws, and traceability in evidentiary matters being ensured by the report.

Furthermore, because the case under consideration here is that of an international company, drawing up an internal investigation report comes up against a number of specific difficulties, to which solutions are proposed. These difficulties are of several kinds. They include the diversity of the legal systems involved, the diversity of languages and modes of communication, the diversity of corporate cultures reflected in the applicable local standards, the imperative of global coordination of the investigation and the need to respect the rights of the defense, which may be rejected in principle in certain parts of the world. Solutions are proposed for each of these difficulties.

To find out more ➡️🧱M. Figueiredo, 📝Garantir la valeur probatoire d’un rapport dans le cadre d’une enquête interne opérée dans une entreprise internationale.

 

It is indeed up to the company, faced with difficulties, to remedy them. This is why, in section 3, Lydia Méziani discusses La responsabilité de l'entreprise dans la conception et la menée de l'enquête interne (the company's responsibility in designing and carrying out internal investigations). She develops her conception of "corporate responsibility" in internal investigations. In her view, it is a tool for steering risk management, and since legislation and jurisprudence are unclear in their formulation of the multiple requirements and the precision of the modalities, the company must act to avoid incurring liability, preserve its reputation and manage its risks. It does so in a unified way and by organizing itself freely, as long as the methods of investigation are not illicit, the contributor considering that the rights of defense do not apply as principles. The company reiterates its "vertical" system, applying a unified method throughout the group.

The "virtues" of internal investigations for the company are underlined, in that they constitute a legal order in themselves, carrying the values of French laws around the world, via internal investigations with a unified methodology and through active collaboration with public authorities. Nevertheless, the contributor feels that her practice can be "inconsistent", believing that internal investigation law is still "immature".

For further information ➡️🧱L. Meziani, 📝La responsabilité de l'entreprise dans la conception et la menée de l'enquête interne

 

In this difficult and still-to-be-perfected organization, it is always useful to refer to the United States, where companies, regulators and judges developed a corpus earlier and amply. That's why, in section 4, Victoire Chatelin takes up the theme of Enquêtes internes, enquêtes pénales et droits de la défense (Internal investigations, criminal investigations and the rights of the defense), and instructs us on what American and English jurisprudence tells us (the Connolly case and the ENRC case).

She justifies the presentation of American and British case law in that internal investigations are a longer-established practice there, and can therefore be instructive in that they are more mature. However, cases show that when they are carried out in conjunction with the authorities - in the United States the DoJ, in the United Kingdom the SFO - they can jeopardize the rights of defense of those who are heard, and then the links between the company that is wrongly collaborating and the law firm that helped. In support of this, the American cases of Gavin, Coburn & Schwart and Tournant are described in detail, followed by the British case of ENRC, which has given rise to several decisions in the UK, illustrating the dangers of breaches of professional secrecy by lawyers in charge of internal investigations.

To find out more ➡️🧱V. Chatelin,📝 Enquêtes internes, enquêtes pénales et droits de la défense : que nous disent les jurisprudences américaine et anglaise (l’affaire Connolly et l’affaire ENRC) ?

 

This overview of internal investigations shows the singular role that the lawyer can play in them, a perspective to which the next chapter of the book is devoted.

 

Chapter IV, which highlights the singular role of the lawyer in internal investigations, opens with a section 1 on La méthodologie propre à l'avocat enquêteur (The investigating lawyer's own methodology). In it, William Feugère develops the idea that the lawyer is well placed to conduct an internal investigation, being both a specialist in the law involved, which he works on in his consulting practice, and in defense. With this in mind, the contributor begins by developing the methodology specific to the lawyer-investigator, an expert in both law and defense. As such, the lawyer is particularly concerned with the rights of the person being questioned, notably his or her rights of defence, to which the contributor considers that the flexible law issued by the AFA and the PNF gives relatively little place, whereas the case law of the Social Division of the Cour de cassation has developed them.

Secondly, the contributor insists that this specific methodology is linked to the deontology that characterizes the investigator as a lawyer. This leads him or her to be a kind of ideal investigator, which may seem counter-intuitive, but is due in particular to his or her independence, which is his or her very definition, and his or her prohibition on "exerting pressure".

To find out more ➡️🧱W. Feugère, 📝La méthodologie propre à l'avocat enquêteur

 

Section 2 takes the perspective of L'enquête interne façonnée par la déontologie de l'avocat (The internal investigation shaped by the lawyer's deontology). Stéphane de Navacelle , Julie Zorrilla and Laura Ragazzi demonstrate that the lawyer to whom the company decides to entrust an internal investigation thus becomes a "lawyer-investigator", this dual quality shaping the investigation since, for as long as he remains a lawyer, it is imbued with his deontology. Relying mainly on texts issued by the legal profession, such as the Vademecum de l'enquête interne, extracts from which are reproduced, they emphasize that the values of the lawyer are therefore imported into the internal investigation, but protest against the fact that professional secrecy, which is a cardinal principle of the profession, is challenged by the Parquet national financier and the Agence française anticorruption, even though the faith of the Palais could adjust interests.

Following the internal investigation chronologically, the contribution describes how the lawyer accepts his mission. The strength of his deontology is such that it should not prevent him from defending the company if it is prosecuted, notably on the basis of this same internal investigation. We describe the way in which the lawyer defines the framework of the investigation, in particular the stakeholders involved, then conducts the investigations, including interviews with people likely to be implicated, right up to the drafting of the investigation report, which must draw the consequences. The contributors regret that the confidentiality of this report is being challenged, even though it should not be, because the investigator who drew it up is a lawyer.

To find out more ➡️🧱S. De Navacelle, J. Zorrila and L. Ragazzi, 📝L'enquête interne façonnée par la déontologie de l'avocat.

 

Section 3 centers the analysis on the imperative to Préserver le secret professionnel de l'avocat dans l'enquête interne et son résultat (Preserve attorney-client privilege in the internal investigation and its outcome). Bénédicte Graulle and Yanis Rahim begin by presenting lawyer-client privilege as an inviolable secret, on which the organization of justice is based in a state governed by the rule of law, is of public order and absolute, and constitutes a fundamental right for all persons subject to the law. They underline the advantage for the company, when it decides to conduct an internal investigation, of entrusting it to a lawyer, thus benefiting by transitivity from the guarantees linked to professional secrecy. Indeed, they consider that if the company subsequently enters into the CJIP or CRPC mechanisms, it should be able to continue to benefit from the protection of this defense. However, the PNF and AFA deny this, and the contributors protest that this position is contra legem.

Referring in great detail to the application circular for the "Confiance" law and to the Code of Criminal Procedure, the contributors deplore the fact that lawyer-client confidentiality is now "variable geometry" in internal investigations, being unquestionably acquired only when an offence has been established, due to the dissociation, which they deem regrettable, between advisory and defense activities. The contribution thus presents a "trinity" to guide the interpreter in a Law that has become uncertain: "advice-counseling", which would no longer be protected by secrecy, "advice-defense", which should be just as protected as "defense-defense", which should be triggered, according to the very letter of the circular implementing the so-called "Confidence" law, as soon as the person in question believes he or she has committed an offence. However, the internal investigation does not affect the first type of activity, but fully engenders the other two, which are therefore indissociable from defense. This is illegitimately denied by the prosecuting authorities, who have no right to ignore the law's application circular. In fact, it is the lawyer's activities as a whole that call for the protection of secrecy, since there is a continuum between counsel and defense, both during the investigation and at its conclusion, in particular to ensure that the resulting report remains protected, which is why the contributors call for the formulation of a general principle that should impose itself by its sheer force, but which must be expressed to break the illegitimate stance taken by the authorities.

To find out more ➡️🧱B. Graulle & Y. Rahim, 📝Préserver le secret professionnel de l'avocat dans l'enquête interne et son résultat

 

Choosing to illustrate this in a concrete and pictorial way, section 4 takes up the lawyer-investigator in labor law, regarded as a Jansenist in the middle of the Wild West. In particular, Richard DOUDET describes the internal investigations carried out by a company in response to difficulties in labor relations. Companies now make extensive use of such investigations, partly because of the high incidence of harassment, and partly because the law, and in particular the case law of the French Supreme Court (Cour de cassation), requires them to do so. The contributor points out, however, that internal investigations are a practice that is subject to very little jurisprudence - no skills or qualifications are required to carry them out, nor is any corporate body informed of them, or even the principles of procedure respected - despite the fact that they present a number of risks.

First and foremost, these risks threaten the employer. If a decision is subsequently overturned, for example due to a lack of impartiality, which constitutes a fault on the part of the employer, all subsequent actions will also be at risk, such as dismissal. What's more, an employer who fails to conduct a proper investigation deprives himself of the outside perspective of an independent investigator, and thus misses an opportunity to improve his organization. The contributor points out that entrusting the investigation to someone within the company may well increase tensions, or even psychosocial trauma, within the company. He therefore believes that the lawyer, as an outsider to the company and bound by his code of ethics, is the ideal person to conduct this type of investigation, independently and impartially.

Indeed, the contributor goes on to describe this "lawyer-investigator" as a "regulated professional", who must apply his deontology to this practice of internal investigation "with Jansenist rigor". In fact, he remains a fully-fledged lawyer, bound by all his obligations, and in no way subordinate, which is essential for conducting an impartial investigation. To successfully orchestrate an internal investigation, he must therefore approach it as a "Jansenist", making "intensive use of his oath", in particular due secrecy, which can only enhance his credibility as a lawyer-investigator.

For further information ➡️🧱R. Doudet, 📝L'avocat-enquêteur en droit du travail: un janséniste au milieu du Far West

 

Section 5 develops the issue of La défense des personnes physiques dans les enquêtes internes (Defending individuals in internal investigations), which the lawyer cares about. Dorothée Hever believes that the practice of investigations is currently not sufficiently regulated, and that the law needs to do more to ensure that the rights of the individuals involved, in particular their rights of defense, are better protected.

In addition to compliance issues, she believes that internal investigations expose individuals to serious risks of criminal proceedings. They must therefore immediately be granted rights in this respect. However, practices and case law are still too weak. Among the proposed improvements, the contributor gives preference to a new law, attributing a series of new rights to individuals whose interests are affected by an internal investigation with regard to possible criminal proceedings.

Find out more at ➡️🧱D. Hever, 📝La défense des personnes physiques dans les enquêtes internes

 

The second Title of the book deals with the procedural issues of convention judiciaire d’intérêt public - CJIP (Judicial Public Interest Agreement) and comparution sur reconnaissance préalable de culpabilité – CRPC (French guilty plea procedure) confronted with the rights of the defense. In symmetry with the construction of Title I, Chapter I is devoted to a general vision of the rights of the defense in the CJIP and CRPC. Chapter II then identifies the dialogues at work or to be perfected in the CJIP and CRPC, active forms of the rights of the defense. To this end, chapter III, also in symmetry with the first title of the book, sets out the singular role of the lawyer in the CJIP and CRPC.

 

To give a general vision of the rights of the defense in the CJIP and CRPC, chapter I opens with a section 1 on the Théorie et pratique de la négociation dans la justice pénale (Theory and practice of negotiation in criminal justice). Sarah-marie Cabon defines the technique of "negotiation" as one in which "each interlocutor attempts to render compatible his or her claims through cooperation and mutual concessions". This technique is used in French criminal justice, not so much as an attraction to the American model, but as a means of resolving the difficulties created by the flow of litigation, the process having been extended to criminal litigation, notably before administrative regulatory authorities. The principle is therefore cooperation on the part of the offender. She underlines the "practical" satisfactions claimed, since cases are solved, sanctions are accepted, and concerns are "theoretical", since fundamental principles seem to be set aside, such as the rights of the defense. It is reaffirmed that the practical advantages and the fact that nothing obliges companies to accept CJIP and CRPC justify going beyond these "theoretical" considerations.

The contribution is therefore built on the confrontation of "useful" and "fair", because that's how the system is presented, with usefulness and consent being particularly emphasized in the guidelines issued by public authorities. Faced with this, the contributor examines the way in which the texts continue, or do not continue, to protect the person who risks being ultimately punished, notably in inquiries and investigations, the fact that he or she consents to waive this protection, notably that he or she himself or herself provides the evidential elements of what will be the basis of his or her conviction, while the public authority does not yet waive prosecution at that point, which is problematic in terms of "fairness". The rest of the contribution is therefore devoted to "the useful forced to be just". In this respect, the contributor believes that the independence of the Public Prosecutor's Office should be stronger, along the lines of the European Public Prosecutor's Office, and the control of the judicial judge more profound, as the current procedure for validating CJIPs seems to be governed by the dispositif principle, a principle that does not suit criminal justice.

For further information ➡️🧱S.-M. Cabon, 📝Théorie et pratique de la négociation dans la justice pénale

 

Section 2 discusses borrowing from the American model and its recent developments, using the fight against corruption as an illustration. Stephen L. Dreyfuss underlines the relevance of this particular focus on American mechanisms, since they inspire both European and French legislators, for example between the DPA and the convention judiciaire d’intérêt public - CJIP (Judicial Public Interest Agreement). The contributor describes the features of the new system introduced by the DoJ in 2022 and 2023: declination and presumption of declination.

No longer requiring the authorization or approval of a judge, the DoJ grants the benefit of a guarantee not to sue, a guarantee provided to the company by what the texts now present as a "contract", in exchange for which the company provides its full cooperation, including all the evidence it has, primarily against itself. Unlike in France, where the investigation is carried out by the company itself, the DoJ's role is to provide input for the investigation, which the DoJ directs and retains full control over, as it also has the material and human resources to carry it out.

To find out more ➡️🧱S. L. Dreyfuss, 📝La lutte anti-corruption: l'emprunt au modèle américain et à ses récentes évolutions

 

In this same overall perspective on Negotiated Criminal Justice, its present benefits and future risks are analyzed in section 3. Alexis Bavitot argues that in France, negotiated criminal justice was not the result of a conscious political decision, but rather the successive integration of practical solutions to manage the flow of criminal litigation. The doctrine then sought to account for the comparution sur reconnaissance préalable de culpabilité – CRPC (French guilty plea procedure) and convention judiciaire d’intérêt public - CJIP (Judicial Public Interest Agreement), mechanisms based on a vocabulary and techniques that do not belong to criminal law. The advantages are primarily those of efficiency, the contributor pointing out that this can lead to unjust results, notably because the rights of the defense are more often than not excluded, in particular the right to remain silent and to invoke the presumption of innocence. The main risk lies in the disappearance of the judge, who is gradually disappearing from negotiated justice.

The contributor is all the more alarmed by the fact that negotiated criminal justice, as exemplified by the CJIP and CRPC, has been widely extended, both in its scope and in the people who are subject to it, who are encouraged to make "self-revelations". This should be put in perspective with the "consolidation" of this negotiated criminal justice system, i.e. a strengthening of the rights of the defense. However, this is not the case, despite proposals to this effect, including legislative reform.

To find out more ➡️🧱A. Bavitot,📝Justice pénale négociée : avantages présents, risques à venir

 

This justifies Chapter II's focus on the dialogues at work or to be perfected in CJIP and CRPC, active forms of the rights of the defense. The first example is given in section 1, where the particular case of tax fraud cases in the combination of comparution sur reconnaissance préalable de culpabilité – CRPC (French guilty plea procedure) and convention judiciaire d’intérêt public - CJIP (Judicial Public Interest Agreement) is chosen. Marion David points out that recourse to the CJIP or CRPC is only possible in cases of tax fraud since a 2018 law, and that both are widely used, recourse encouraged by the public authorities. The CRPC tends to be used for simple cases of fraud committed by individuals, while the CJIP is more concerned with complex cases involving schemes devised by companies, either for themselves or for third parties (banks and fund managers being directly concerned here). This complexity often justifies the criminal investigation being conducted in parallel with the CJIP negotiations.

The procedures are characteristic in that the tax authorities are also conducting a procedure, with the individual or legal entity being subject to qualifications that may differ in two procedures that do not have the same timeframe. If the tax authorities have already gathered information for an investigation, or even carried out an inspection and possibly made an adjustment before the case is referred to the public prosecutor, this has an effect on the criminal investigation in terms of "information already established by the tax authorities". Conversely, when the preliminary investigation or judicial inquiry has been completed, if the tax procedure has not been completed, is the subject of an appeal or has resulted in a settlement, the same influence applies. The duality of jurisdictions complicates these mechanisms.

This is illustrated by the case of Google, a company which, in 2015, challenged the tax authorities' tax reassessment before the administrative judge, arguing before the judge that its behavior was well-founded, and which in 2019 entered into a CJIP with the Parquet national financier - PNF (French National Financial Prosecutor’s Office) for acts that could be criminally qualified as tax fraud. The contributor concludes that, faced with this difference in reasoning between the tax authorities and the criminal authorities, the latter need to discuss the matter with each other, aided by lawyers who are masters of both tax law and criminal law. The second issue concerns the amount and duration of fines, in particular the public interest fine, which takes into account the "benefits derived from non-compliance", in this case the taxes evaded. The circular of October 4, 2021 recommends that the CJIP should give rise to a global and coordinated settlement of tax and criminal proceedings.

The effectiveness of the CRPC and the CJIP in tax fraud cases is emphasized, notably because recourse to these two techniques currently presupposes that the taxpayer has paid his taxes and any reassessments to which he may have been subject. In addition, the fine is proportional, since the total amount of any penalties imposed does not exceed the highest amount of one of the penalties incurred. This is why the fine proposed in the case of a CRPC takes into account the penalties incurred in tax matters, generally 80% of the tax reassessed. Similarly, in the case of CJIP, the public interest fine ceiling is determined by the higher of 30% of average annual sales over the last three years and the 80% penalties, from which the penalties actually paid by the company are deducted. The contributor notes that, in terms of tax fraud, the CRPC is less favorable than the CJIP, in that the CRPC remains a lengthy procedure during which the taxpayer is not certain of his fate, and at the end of which he may be subject to additional penalties. The CJIP can be a good solution for the company, which can at the same time contest the administrative adjustment procedure or encourage the administration to compromise, with the judicial authority acting as an arbiter between the two, encouraging the company to negotiate with the administration and encouraging the administration to compromise. The system's effectiveness is further enhanced by the reduction in the CJIP fine for self-disclosure and spontaneous regularization with the tax authorities. The tax technique of the rescrit is similar to that of the compliance program, with the company committing itself to future behaviors, which the tax authorities could acknowledge and guarantee the absence of penalties.

To find out more ➡️🧱M. David, 📝Combinaison des CRPC et des CJIP : le cas particulier des affaires de fraude fiscale.

 

But this dialogue is sometimes difficult. That's why section 2 aims to gather elements Pour une justice pénale négociée plus équitable (For a fairer negotiated criminal justice). Astrid Mignon Colombet highlights both the criticisms levelled against the CJIP and CRPC in the name of the rights of the defense, and the advantages of these new tools, which have been validated by the courts, guardians of fundamental rights, and whose adoption is spreading. What is needed, therefore, is to improve their operation. Indeed, she believes that the risk of ignoring the right to a fair trial arises more from the misuse of this procedure for purposes other than those for which it exists. What must be prevented is not the exchange of a non-prosecution or the negotiation of a sentence in exchange for revelations, but what is a misuse, a prejudice against a person who has not participated in the elaboration of the agreement. This often happens, particularly in the case of individuals, and is an infringement of the rights of the defense and the presumption of innocence, which constitutes an iniquity. To remedy this, we need to link the fate of legal entities and individuals more closely, and borrow from British law, which involves the judge in the agreement mechanisms at an early stage to ensure effective control.

To find out more ➡️🧱A. Mignon Colombet, 📝Pour une justice pénale négociée plus équitable

 

The vaunted or desired uniqueness is all the more difficult in law and practice given the divergence of legal systems, including in Europe. Section 3 measures Les impacts, sur les droits de la défense, des disparités de la justice pénale négociée dans l’Union européenne (The impact on the rights of the defense of the disparities in negotiated criminal justice in the European Union). Emmanuel Moyne begins by examining the use of negotiated justice techniques in French law within the European context. He notes their ongoing extension, in particular of the convention judiciaire d’intérêt public - CJIP (Judicial Public Interest Agreement), which, from reform to reform, now extends to tax fraud and environmental offenses, believing that this should apply to everything and everyone, i.e. to all offenses, particularly in competition law and all financial offenses, and not only to legal entities but also to individuals.

For the time being, the European Public Prosecutor's Office is more concerned with the European arena, and its action could be effective in leading to a penal transaction or a CJIP, particularly in environmental matters. For the time being, however, the heterogeneity of the simplified procedures available to the various delegated European Public Prosecutors in terms of prosecutions creates a risk of forum shopping. In addition, the lack of European harmonization of criminal transaction or CJIP mechanisms makes them difficult to implement, since not only have many Member States not even instituted them, but where they have, procedures are very diverse, particularly as regards the rights of the defense, which is problematic.

To find out more ➡️🧱E. Moyne, 📝Les impacts, sur les droits de la défense, des disparités de la justice pénale négociée dans l’Union européenne.

 

Practice may, however, suffice in some cases to iron out these text-related difficulties. Section 4 shows that this depends above all on L'évolution des rapports entre avocats et autorités de poursuites depuis l'introduction de la CJIP (The relationship between lawyers and prosecuting authorities since the introduction of the CJIP). Thomas Baudesson shows that the convention judiciaire d’intérêt public - CJIP (Judicial Public Interest Agreement), the most significant development in criminal procedure, has brought about a dialogue between the bar and the prosecuting authorities, who are moving from a confrontational approach to one of cooperation. It's a new kind of relationship. The prosecutor concerned is first and foremost the Parquet national financier - PNF (French National Financial Prosecutor’s Office), which benefits from expertise in the field, which it disseminates through its soft law and brings greater security to companies. He illustrates his remarks with the so-called "Airbus" CJIP, in which there was a confrontation with British and American practices in "cooperation investigations", which require mutual trust. But he recognizes the progress that still needs to be made, both on the part of lawyers who, in France, seem to remain in opposition to magistrates as a matter of principle, and unsympathetic to what their role in the search for the truth might be, and on the part of magistrates who seem to perceive lawyers as a kind of "mercenaries" to be distrusted as a matter of principle. This is why, in their guide to internal investigations, the Agence française anticorruption – AFA (French Anti-Corruption Agency) and the PNF ask that the lawyer conducting the investigation and the one handling the company's criminal defense should not be the same, which the contributor explains by this mistrust, presuming investigations of convenience, a suspicion of principle that the author regrets. Similarly, the refusal of magistrates to recognize the professional secrecy covering the investigation report seems to the author archaic compared to Anglo-Saxon conceptions, since both the DoJ and the SFO readily admit the legal privilege attached to this report. As a result, France is not at the same level of the rule of law as the United States and the United Kingdom. The author concludes that progress remains to be made if France is to complete its evolution to become fully attractive, so that companies confronted with reprehensible practices are effectively led to undertake a self-disclosure process.

To find out more ➡️🧱Th. Baudesson, 📝L'évolution des rapports entre avocats et autorités de poursuites depuis l'introduction de la CJIP

 

Indeed, Chapter III develops reflections on Le rôle singulier de l’avocat dans la CJIP et la CRPC (The singular role of the lawyer in the convention judiciaire d’intérêt public - CJIP (Judicial Public Interest Agreement) and comparution sur reconnaissance préalable de culpabilité – CRPC (French guilty plea procedure)). From the outset, the lawyer's role poses a problem, and it is in the form of a question that section 1 presents his approach to the CJIP: Quand se justifie et quand s'arrête la collaboration ? À propos de la CJIP (When is collaboration justified and when does it end?) Philippe Goossens explains that, in the traditional legal system, the lawyer is in "oppositional defense". The so-called "Sapin 2" law adds a "collaboration defense", which is more or less in line with the classic opposition defense. Both the advantages and disadvantages of the collaborative approach are listed, which the lawyer must take into account. The lawyer must handle both with pragmatism, in particular to ensure that the company's rights of defense and its interests find their place in the CJIP mechanism.

To find out more ➡️🧱Ph. Goossens, 📝Quand se justifie et quand s'arrête la collaboration ? À propos de la CJIP

 

It is because of these difficulties that, as highlighted in section 2, the first dialogue required is Le dialogue de l’avocat et de son client, chef d’entreprise, face à la proposition d’une CRPC et d’une CJIP (The dialogue of the lawyer and his client, a company director, faced with the proposal of a comparution sur reconnaissance préalable de culpabilité – CRPC (French guilty plea procedure) and convention judiciaire d’intérêt public - CJIP (Judicial Public Interest Agreement). François Saint-Pierre describes the new problems that the CRPC and CJIP have created for company directors, and the help that the lawyer can give them in the dialogue he has with them. To this end, he outlines the factors to be taken into consideration when making strategic choices with regard to the public prosecutor's office - factors that are not only "rational" but also psychological.

Indeed, while negotiating and obtaining a CRPC or CJIP has many advantages, such as avoiding the vagaries of the law, limiting the number of people liable to be prosecuted, saving time and money, avoiding a criminal trial and reducing media stigmatization, the executive is also deprived of the psychological need to justify himself and be judged. What's more, the decision to accept the logic of negotiated justice must then be justified by the executive within the company, to his or her staff, and externally, notably to bankers.

To find out more ➡️🧱Fr. Saint-Pierre, 📝Le dialogue de l’avocat et de son client, chef d’entreprise, face à la proposition d’une CRPC et d’une CJIP.

 

This situation leads to Le dilemme de l'avocat pénaliste face à la CRPC (a dilemma for the criminal lawyer faced with the comparution sur reconnaissance préalable de culpabilité – CRPC (French guilty plea procedure)), described in section 3. Jean Boudot expresses a personal, clear-cut view of the mechanisms of the CRPC and, more broadly, of negotiated justice, which he regrets has succeeded in invading criminal law for management reasons. Based on his experience as a lawyer, the contributor believes that, first and foremost, the defendant is placed in a situation where he or she cannot refuse the proposal made by the public prosecutor, even if he or she did not commit the acts in the way they will be remembered and transcribed. Secondly, he asserts that this puts the lawyer in an untenable position with regard to the person he was supposed to defend, as he has to "advise" him, but this leads him to make a "bet" instead of resisting, and to enter into this new system, either of defeat by consent, or of betting and no longer of confrontation, a system where the lawyer can lead his client to his ruin.

To find out more ➡️🧱J. Boudot, 📝Le dilemme de l'avocat pénaliste face à la CRPC

 

Section 4 emphasizes that the lawyer remains committed to his primary vocation, particularly when a natural person is at stake: Défendre les intérêts de la personne physique confrontée à la justice négociée : préserver l’effectivité des droits de la défense et le respect de la présomption d’innocence (Defending the interests of the natural person faced with negotiated justice: preserving the effectiveness of defense rights and respect for the presumption of innocence). Capucine LANTA de BERARD and Pauline Dufourq believe that individuals, and in particular corporate officers, are the "poor cousins" of negotiated justice, even though the latter presents numerous risks for these individuals. Firstly, this is because the comparution sur reconnaissance préalable de culpabilité – CRPC (French guilty plea procedure) is unsuitable for them, notably because it is not the equivalent of the convention judiciaire d’intérêt public - CJIP (Judicial Public Interest Agreement) and implies an admission of responsibility, whereas the CJIP specifically excludes this, but because the latter, like the internal investigation that often precedes it, is aimed at natural persons, at facts directly attributable to corporate officers who have no margin left when the time comes for their own trial. The "Bolloré" case is a case in point. In this way, the internal investigation not only serves as a means of cooperation, but also as a means of accusing the individual. What's more, the company can negotiate against its employees, who are individuals, without the latter even knowing it, since the presumption of innocence hardly applies in what is nevertheless a delegated criminal investigation.

The contributors list a number of solutions to remedy this unfavorable situation. These could include legislative reform to ensure that the negotiated settlement covers both the legal entity and the individuals involved, firmer supervision of the internal investigation to ensure greater respect for the principles of criminal procedure for the benefit of those questioned and involved, more effective respect for the presumption of innocence when entering into negotiations in a CJIP and, borrowing from British law, a prohibition on the use before a judge of any information resulting from a CJIP.

To find out more ➡️🧱C. Lanta de Bérard & P. Dufourq, 📝Défendre les intérêts de la personne physique confrontée à la justice négociée : préserver l’effectivité des droits de la défense et le respect de la présomption d’innocence.

 

In section 5, we look at how to Défendre les intérêts des victimes dans la justice pénale économique négociée (Defend the interests of victims in negotiated economic criminal justice. Jérôme Karsenti links the birth of negotiated justice above all to a desire for efficiency, whereas justice should not be negotiated, and guilt is proven and cannot be compromised. But the flow of litigation and its management decided otherwise, with the revolution of the comparution sur reconnaissance préalable de culpabilité – CRPC (French guilty plea procedure), then the convention judiciaire d’intérêt public - CJIP (Judicial Public Interest Agreement). The latter also brings France into line with international standards, which benefit companies and legal entities by placing these alternative methods of prosecution at the heart of criminal procedure.

The increasingly economic nature of these procedures, which are specific to the major domestic economic players, means that they stand alone against prosecutors whose sole authority reigns de facto, the article stating that neither the judge nor the victims are truly present. The contributor's harsh assessment of the CJIP is even more radical. This lack of space is criticized both for natural persons, notably corporate officers of legal entities, and for the victims of the latter's actions, with legal entities likely to defend the interests of victims having little access and few rights. The result is random compensation for victims. Negotiated justice is therefore at odds with ordinary criminal procedure, which is increasingly open to victims.

To find out more ➡️🧱J. Karsenti, 📝Défendre les intérêts des victimes dans la justice pénale économique négociée

 

In conclusion to so many remarkable contributions articulated in this way, having given attention to diverse experiences and sometimes opposing demands, contentment and protests, it emerges from this work that the mechanisms of internal investigation compliance, convention judiciaire d’intérêt public - CJIP (Judicial Public Interest Agreement) and comparution sur reconnaissance préalable de culpabilité – CRPC (French guilty plea procedure), are inseparable and useful, but that their maturity presupposes a stronger integration of the rights of the defense. This is all the more necessary as these three mechanisms gain momentum. This integration will be difficult because different cultures are at work here, but the more general movement towards the jurisdictionalization of Compliance will help, by integrating a judge who is currently very little present.

To find out more ➡️🧱M.-A. Frison-Roche (ed.), 📕La juridictionnalisation de la Compliance, 2023

 

These three tools also need to be considered together, as this book aims to do. This is hardly the case, however, because Compliance Law is still in its infancy, and internal investigations seem to fall within the remit of employment law, or even management law, the CRPC within that of general criminal procedure, and the convention judiciaire d’intérêt public - CJIP (Judicial Public Interest Agreement)  within that of specific "regulations".

The creation of a substantive Compliance Law is a way out of this regulatory vision, for it is not practice that stifles principles, but the regulatory vision of a mechanical compliance that could do so, and against which companies, judges, prosecutors and lawyers must fight so that Compliance Law strengthens the rule of law in its adjustment to the rights of the defense. When we've finished confusing "compliance" with Compliance Law, we'll be able to do so more easily.

🧱To distinguish between "Compliance" and "conformity" ➡️ 🕴️M.-A. Frison-Roche, 🚧 Compliance and conformity : distinguishing them to articulate them