Criminal Procedure

► Full Reference : É. Verny, Procédure pénale (Criminal Procedure), 1st ed. 2005 – 10th ed., 2026, Dalloz, “Cours Dalloz-Série Droit privé” Series, 506 p. - ► General presentation of the book (written in French) : This textbook, up to date with the latest texts, is intended for all law students and all practitioners updating their knowledge. It is built in three parts. The first part sets out the framework of the criminal trial, that is to say the principles and bodies of the criminal trial on the one hand, and the actions arising from the offence on the other. Then, following a chronological approach, the second part describes what happens before the public prosecution is set in motion, before the third part describes what happens from that moment onwards. The second part therefore examines judicial police investigations, the decision to take no further action and the alternatives to prosecution, while the third part deals with referral to the judge, the pre-trial investigation, the hearing and the judgment. - 📚See the entire collection in which the book is published. - 📚Books in the collection directly related to this one : 📕Droit pénal général (General Criminal Law) 📕Droit pénal spécial (Special Criminal Law) 📕Droit pénal des affaires (Business Criminal Law) -

► Full reference : S-M.. Cabon, « Théorie et pratique de la négociation dans la justice pénale » (Theory and Practice of Negotiation in Criminal Justice), in M.-A. Frison-Roche & M. Boissavy (dir.), Compliance et Droits de la défense – Enquête interne, CIIP, CRPC, Journal of Regulation & Compliance (JoRC) et Dalloz, coll. “Régulations & Compliance“, 2024, pp. 241-252. - ► English Summary of this article (made by the Journal of Regulation & Compliance – JoRC) : The author defines the technique of “negotiation” as the one by which “each party will attempt to reconcile [interests] through a process of cooperation and mutual concessions”. French criminal justice uses it not so much because of the attraction of the American model, but in an attempt to resolve the difficulties caused by the flow of litigation, the process having been extended to punitive litigation, notably before administrative regulatory authorities. Its principle is therefore the cooperation of the offender. The author highlights the “practical” satisfactions claimed, since cases are resolved and sanctions are accepted, and the “theoretical” concerns, since fundamental principles, such as the rights of the defence, seem to be set aside, the claim being made that the practical advantages and the fact that nothing obliges companies to accept CJIPs and CRPCs justify not dwelling on these “theoretical” considerations. The article is therefore built on the confrontation between “the Useful” and “the Just”, because this is how the system is presented, utility and consent being emphasised in particular in the guidelines of the public authorities. Against this background, the author examines how the texts continue, or not, to protect the person who risks being sanctioned in fine, notably in inquiries and investigations; the fact that this person consents to waive this protection, in particular by providing the evidence that will form the basis of the finding of guilt, while the public authority does not at the same time waive prosecution, is problematic with regard to “the Just”. The second part of the article is therefore devoted to “the Useful compelled to be Just”. In this respect, the author considers that the independence of the public prosecutor should be stronger, on the model of the European Public Prosecutor’s Office, and that the review by the judicial courts should be deeper, since the current procedure for validating CJIPs seems governed by the principle that the parties control the proceedings, a principle ill-suited to criminal justice.

► Full reference : S. Sauphanor, « Le rapport d’enquête interne à l’épreuve des droits de la défense » (The Internal Investigation Report Put to the Test of the Rights of the Defence), in M.-A. Frison-Roche and M. Boissavy (eds.), Compliance et droits de la défense. Enquête interne – CJIP – CRPC, Journal of Regulation & Compliance (JoRC) and Dalloz, coll. “Régulations & Compliance“, 2024, pp. 131-138. - ► English Summary of this article (made by the Journal of Regulation & Compliance – JoRC) : For the author, the internal investigation still constitutes an “immense blind spot”. It is nevertheless an essential subject, since it constitutes a quasi-criminal procedure and may lead to a criminal sanction. The principles of criminal procedure should therefore be fully applied to it. This is not the case. The author first states that the investigation crystallises an imbalance, which can only become entrenched later, between those who conduct the investigation and those who must cooperate, thus constituting an intrinsic dysfunction, the rights of the defence being little present during the investigations, which crystallises in the report and hinders the defence of the persons concerned. But because the investigation report is not a record of the truth but rather the major piece of evidence in a broader mechanism, for example the prospect of a CJIP, the persons concerned, legal but also natural, must think of it as an element of defence: it must have been drawn up fairly, its annulment must be possible otherwise, and it may prove the diligence of each party, in an anticipated defence strategy designed in particular by the legal person later exposed to sanctions, with the risk that it sacrifices the specific interests of employees. The result is a difficult role for the lawyer of the person who commissioned the investigation report, who must discern which interests to defend and how. Likewise, the confidentiality of communications with the client is difficult to claim for the investigation report, since it must be designed as a piece of evidence intended to be produced, the author considering on the contrary that it should be designed from the outset as not secret but as intended to be communicated to the authorities and in subsequent proceedings.

► Full reference : J. Boudot, « Le dilemme de l’avocat pénaliste face à la CRPC » (The Criminal Lawyer’s Dilemma when Faced with the CRPC), in M.-A. Frison-Roche and M. Boissavy (eds.), Compliance et droits de la défense. Enquête interne – CJIP – CRPC, Journal of Regulation & Compliance (JoRC) and Dalloz, coll. “Régulations & Compliance“, 2024, pp. 323-328. - ► English Summary of this article (made by the Journal of Regulation & Compliance – JoRC) : In this article, the author expresses a personal and clear-cut view of the CRPC mechanism and, more broadly, of negotiated justice, which he regrets has succeeded in invading criminal law for management reasons. On the basis of his practice as a lawyer, the author considers, first, that the person concerned is placed in a situation in which he cannot refuse the proposal made to him by the prosecutor, even if he did not commit the facts in the way in which they will be retained in the record and the transcript that will be made of them. Second, he asserts that this places the lawyer in an untenable position with regard to the person he was supposed to defend, because he must “advise” him, but this leads him to make a “bet” instead of resisting, and in this system of either defeat by consent or betting, and no longer confrontation, the lawyer may lead his client to his downfall.

► Full reference : J. Karsenti, « Défendre les intérêts des victimes dans la justice pénale économique négociée » (Defending the Interests of Victims in Negotiated Economic Criminal Justice), in M.-A. Frison-Roche and M. Boissavy (eds.), Compliance et droits de la défense. Enquête interne – CJIP – CRPC, Journal of Regulation & Compliance (JoRC) and Dalloz, coll. “Régulations & Compliance“, 2024, pp. 339-349. - ► English Summary of this article (made by the Journal of Regulation & Compliance – JoRC) : The article opens with a general presentation of the birth of negotiated criminal justice, which the author attributes above all to a desire for efficiency, whereas justice should not be negotiated and guilt is proven, not settled. But the flow of litigation and its management decided otherwise, with the revolution of the CRPC, then of the CJIP. The latter also brings France into line with international standards that weigh on and benefit companies, legal persons, the whole placing these alternative modes of prosecution at the heart of criminal procedure. The increasingly economic nature of these procedures, specific to large economic players, means that they stand alone before prosecutors whose sole authority in fact prevails, the article asserting that neither the judge nor the victims are truly present. The author’s severe judgment becomes more radical regarding the CJIP. The author criticises this lack of place both for natural persons, in particular the corporate officers of legal persons, and for the victims of their actions, the legal persons likely to defend the interests of victims having little access and few rights. The result is a random compensation of victims. This negotiated justice would therefore run counter to ordinary criminal procedure, which, for its part, is increasingly open to victims.

► Full reference : S. L. Dreyfuss, « La lutte anti-corruption : l’emprunt au modèle américain et à ses récentes évolutions » (The Fight against Corruption: Borrowing from the American Model and Its Recent Developments), in M.-A. Frison-Roche and M. Boissavy (eds.), Compliance et droits de la défense. Enquête interne – CJIP – CRPC, Journal of Regulation & Compliance (JoRC) and Dalloz, coll. “Régulations & Compliance“, 2024, pp. 253-258. - ► English Summary of this article (made by the Journal of Regulation & Compliance – JoRC) : Relying on the relevance of paying particular attention to American mechanisms, since they so strongly inspire European and French legislators, for example between the DPA and the CJIP, the author describes the features of the new system introduced in 2022 and 2023 by the DoJ: the Declination and the Presumption of Declination. Without requiring any authorisation or approval by a judge, the DoJ grants the benefit of a guarantee of non-prosecution, a guarantee given to the company through what the author presents as a “contract”, in exchange for which the company provides its full cooperation, in particular all the evidence at its disposal, first and foremost against itself. Unlike France, where the investigation is conducted by the company itself, the DoJ thus feeds the investigation which it directs and over which it retains full control, having moreover the material and human resources to conduct it.

► Full reference : D. Hever, « La défense des personnes physiques dans les enquêtes internes » (The Defence of Natural Persons in Internal Investigations), in M.-A. Frison-Roche and M. Boissavy (eds.), Compliance et droits de la défense. Enquête interne – CJIP – CRPC, Journal of Regulation & Compliance (JoRC) and Dalloz, coll. “Régulations & Compliance“, 2024, pp. 229-235. - ► English Summary of this article (made by the Journal of Regulation & Compliance – JoRC) : The author considers that the practice of investigations is currently not sufficiently regulated and that the law should frame it more closely so that the rights of the natural persons involved, in particular their rights of the defence, are better protected. She considers that, beyond Compliance issues, internal investigations expose natural persons to serious risks of criminal proceedings against them. They must therefore immediately benefit from rights in this respect. Yet practice and case law are still too weak. Among the avenues for improvement proposed, the author favours a new law granting a series of new rights to natural persons whose interests are affected by an internal investigation in view of possible criminal proceedings.

► Full reference : M. Durand-Poincloux, D. Apelbaum et P. Sardi-Antasan, « Regard critique : La place des droits de la défense dans l’enquête interne selon le guide AFA/PNF » (A Critical Look: the Place of the Rights of the Defence in Internal Investigations According to the AFA/PNF Guide), in M.-A. Frison-Roche and M. Boissavy (eds.), Compliance et droits de la défense. Enquête interne – CJIP – CRPC, Journal of Regulation & Compliance (JoRC) and Dalloz, coll. “Régulations & Compliance“, 2024, pp. 69-75. - ► English Summary of this article (made by the Journal of Regulation & Compliance – JoRC) : The authors present the guide published in 2023 by the French Anti-Corruption Agency (AFA) and the National Financial Prosecutor’s Office (PNF), Anti-corruption internal investigations. Practical guide, considering that the rights of the defence do not have in it the place that general principles would imply. They consider that the procedural guarantees are insufficient for the person prosecuted. Moreover, because the lawyer would not have the means he could legitimately expect, it is the rights of the company conducting the internal investigation that are thereby disregarded. The authors conclude that this guide thus amounts to a kind of “step backwards” in relation to the principles governing punitive law, in particular in that the report resulting from the investigation is protected by no secrecy.

► Full Reference: S. Schiller, “Un juge unique en cas de manquement international à des obligations de compliance ?” (“A single judge in the event of an international breach of compliance obligations?”), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. “Régulations & Compliance“, Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, pp. 453-464. - read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published - ► Summary of the article (done by the author, translated by the Journal of Regulation & Compliance): Given the very international nature of the topic apprehended, the actors involved and therefore the compliance disputes, it is essential to know if a person can be implicated before several judges, attached to different states or even if he can be condemned by several jurisdictions. The answer is given by the non bis in idem principle, which is the subject of a abondant case law on the basis of Article 4 of Protocol n°7 of the ECHR, clearly inapplicable for jurisdictions emanating from different States. To assess whether breaches of compliance obligations may be subject to multiple sanctions in different states, it will first be necessary to ascertain whether there is a textual basis to be invoked. At European level, Article 50 of the Charter of Fundamental Rights now allows the principle of ne bis in idem to be invoked. Applicable to all areas of compliance, it provides very strong protection which covers not only sanctions, but also prosecutions. Like its effects, the scope of Article 50 is very broad. The procedures concerned are those which have a repressive nature, beyond those pronounced by criminal courts in the strict sense, which makes it possible to cover the convictions pronounced by one of the many regulatory authorities competent in matters of compliance. Internationally, the situation is less clear. Article 14-7 of the International Covenant on Civil and Political Rights may be invoked, if several obstacles are overcome, including the decision of 2 November 1987 of the Human Rights Committee which restricted it to the internal framework, requiring a double conviction by the same State. Even if these principles are applicable, two specificities of compliance situations risk hampering their application, the first related to the applicable procedural rules, in particular the rules of jurisdiction, the second related to the specificities of the situation. The application of the non bis in idem rule is only formally accepted with regard to universal jurisdiction and personal jurisdiction, that is to say extraterritorial jurisdiction, which is only part of the jurisdiction. . The Cour de cassation (French Judiciary Supreme Court) confirmed this in the famous so-called “Oil for food” judgment of March 14, 2018. The refusal to recognize this principle as universal, regardless of the jurisdiction rule in question, deprives French companies of a defense. Moreover, the repression of breaches of compliance rules is more and more often resolved through transactional mechanisms. The latter will not always fall within the scope of European and international rules laying down the non bis in idem principle, for lack of being sometimes qualified as “final judgment” under the terms of Article 50 of the Charter of Fundamental Rights of the European Union and Article 14-7 of the International Covenant on Civil and Political Rights. Breaches in terms of compliance are often based on multiple acts. This results from prescriptions the starting point of which is delayed at the last event and a facilitated jurisdiction for French courts when only one of the constitutive facts is found in France. In terms of compliance, the non bis in idem principle therefore generally does not protect companies and does not prevent them from being sued before the courts of two different countries for the same case. It nevertheless grants them another protection by obliging them to take into account foreign decisions in determining the amount of the penalty. The sanction against Airbus SE in the Judicial Convention of Public Interest (CJIP) of January 29, 2020 is a perfect illustration of this. Breaches in terms of compliance are often based on multiple acts. This causes delays in the starting point of prescriptions, starting point delayed at the last event, and this facilitates judicial jurisdiction for French courts when only one of the constitutive facts is found in France. In terms of compliance, the non bis in idem principle therefore generally does not protect companies and does not prevent them from being sued before the courts of two different countries for the same case. It nevertheless grants them another protection by obliging them to take into account foreign decisions in determining the amount of the penalty. The sanction against Airbus SE in the Convention judiciaire d’intérêt public -CJIP (French Judicial Convention of Public Interest) of January 29, 2020 is a perfect illustration of this. -

► Full Reference: Siproudhis, J.-B.,, C.,  Le transfert de responsabilité du régulateur et du juge vers l’entreprise : la démonstration par le système d’alerte ("The transfer of responsibility from the regulator and the judge to the company: demonstration by the whistleblowing mechanism"), in Frison-Roche, M.-A. (dir.), La juridictionnalisation de la Compliance, série "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) et Dalloz, à paraître.  -   ► Article Summary (done by the Author) : From the practitioner perspective, compliance is geared towards a gradual transfer of responsibilities from both regulators and judges.   In France, the whistleblowing mechanism imposed by the so-called "Sapin 2" and "Duty of Vigilance" laws illustrates this evolution. Indeed,  internal alerts management follows key judiciary process milestones : admissibility, investigations, dismissal or sanction. This turns corporations duties into prosecutors or judges’, provided that they respect a specific framework contributing to respect the rules of a fair trial. This requirement raises several legal and sociological challenges to which the author devotes his developments. -   📝 go to the general presentation of the book in which this article is published. -     This requirement raises several legal and sociological challenges to which the author devotes his developments.    

Référence générale : Frison-Roche, M.-A., "La justice pénale est passée de l'inquisitoire à l'accusatoire" (By Compliance, Continental Criminal Justice Mechanisms have come from Inquisitorial Procedure to Adversarial System), Interview in French about the impact of the "conventions judiciaire d'intérêt public", the French equivalent of DPI, and Compliance Procedures in French Law, Lettre des juristes d'affaires, n°1416, October 14, 2019. Summary : In this interview and through the three questions asked, the answers show that we have gone from an inquisitorial system to an adversarial system, which is a  sort of Revolution especially in matter of proofw. The French legal system must be adapted, but also or, above all, this conception of Compliance efficiency is a mechanism without a judge. The expression of "deal of justice" is excessive, because precisely if there is a "deal", there is no a "judge" : the prosecutor was not a judge. These mechanisms are also handled by the administrative Independant Bodies of Regulation or Supervision, which act here as "prosecuting authorities", that is to say as prosecutor. They also "deal" the non-appearance of the judge, the opposite of "justice", in a classical conception which is the figure of the judge. It is true that in the case of the "convention judiciaire d'intérêt public" the French Law requires an approval by the judge of the CJIP: it is then that the stake moved. There is a change of culture: the prosecutor is in the center, the Regulator or the Supervisor are the "prosecuting authority" and it is as approval authority that the judge or the administrative Sanctions Committee intervenes. But later. When the essential are the proofs obtained in the first lapse of time. The firm or the person can be evaded by asserting his "right to the judge". This judge who seeks the truth while an authority to pursue wants something else: win. We must understand that.    Read the Interview (in French) and the answers to these three questions:  1. En quoi les mécanismes de justice négociée, relativement récents en France, bouleversent les concepts hexagonaux de l’ordre judiciaire ? /  How the negotiated justice mechanisms, relatively recent in France, upset the hexagonal concepts of the judiciary? 2. Les entreprises ont-elles véritablement le choix d’accepter ces « deals de justice » ? / Do companies really have the choice to accept these "deals of justice"? 3. En matière de lutte contre la corruption, les autorités de poursuite se comportent désormais comme des juges puisqu’ils exigent des engagements pour le futur. Quels sont les risques ? / In the fight against corruption, prosecution authorities now behave like judges since they demand commitments for the future. What are the risks ?

In its judgment of 23 July 2014, MM. B., A. et C., the Conseil d'État (French Council of State) shall transmit a  Question prioritaire de constitutionnalité – QPC (Priority Question of Constitutionality) to the Conseil constitutionnel  (French Constitutional Council) about the compliance of the procedural organization of the Cour de discipline budgétaire et financière – CDBF (French Court of fiscal and financial discipline) in terms of constitutional principle impartiality. Indeed, the jurisprudence of the Constitutional Council has incorporated in the constitutional corpus the principle of impartiality, objectively designed   as judicial jurisprudence and the jurisprudence of the European Court of Human Rights have done and have imposed the organs exercising power sanction must give to see their impartiality (definition of the "objective impartiality") to third parties who must have confidence in this body which has power to impose sanctions.