Through a number of legislative measures in 2013, France has strengthened its capacity to fight graft. One such reform relates to prosecutorial independence with regard to foreign bribery offenses.
This is an area in which Transparency International’s 2013 OECD Progress Report had recently highlighted inadequacies in the French system.
TI stated that the independence of French prosecutors could be strained if foreign bribery allegations involved action by the French executive. In this sense, TI targeted the provisions of Article 435-6 of the French Criminal Code which gave French prosecutors a monopoly on prosecuting offences of foreign bribery.
TI’s inference was that this legal framework could not in all cases gurantee that effective action against government graft would be initiated. Civil society organisations were not being permitted to request that an investigating judge open an investigation into foreign bribery allegations.
The danger of pressure by the executive placing prosecutorial independence at risk, can be seen more clearly in the light of a brief analysis of the French public prosecution service.
Peter Cullen, co-author of the Cambridge University Press Commentary on the Organisation for Economic Co-operation and Development’s (OECD) Convention on Bribery states that: ‘it is necessary to distinguish between two basic sets of relationships: first, the external relationship with the political authorities; second, the internal relationship within the Public Prosecutor’s office.’
With regard to the external relationship between the French public prosecution service and the political authorities, the Phase 2 report on France by the OECD Working Group on Bribery voiced concerns relating to the subordination and dependence by highlighting: ‘statutory subordination of the Public Prosecutor’s office to the executive by virtue of the very hierarchical internal organization presided over by the Ministry of Justice.’
As Cullen further notes, this dependency also finds its roots in the internal relationship within the public prosecution service: ‘which in France, and in other systems based on the Napoleonic Code, results in a strongly hierarchical functioning of the Public Prosecutor’s office or parquet.’
France has now answered some of its critics, however. Law n° 2013-1117 was passed on December 6th, and it repeals Article 435-6 of the French Criminal Code, putting an end to the monopoly of French prosecutors on prosecuting offences of foreign bribery.
The law acknowledges, though the creation of Article 2-23 of the Criminal Procedure Code, the right for associations fighting corruption to file a complaint and bring a civil party petition before an investigating judge for foreign bribery cases.
Other reforms, also contained in the provisions of the new law, also addresses shortcomings raised by TI, notably:
- Heavier sanctions for graft offences, including active corruption of a foreign public official;
- The halving of the term of imprisonment incurred by the author or accomplice of an act of foreign bribery if, having informed the administrative or judicial authority, the person enabled the infringing activity to be stopped or identified any other authors or accomplices;
- The new Article L 1132-3-3 in the French Labour Code and the new Article 40-6 in the Code of Criminal Procedure, both of which are designed to enhance whistleblower protection.
These developments echo the progress recently underlined by the FCPA Blog and the rather upbeat conclusions of TI France’s December report on Transparency in Public Life.
This evolution does not answer all of TIs recommendations for priority action, but 2013 marks a year in which France has been the theatre of several normative developments in the fight against graft through which a more robust structure to combat graft appears to have been carved out.
Philip Fitzgerald, a Scotland native, is a member of the French Bar. He can be contacted here.
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