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Stéphane Bonifassi: French supreme court finds no double jeopardy based on foreign plea agreement

In a case surprisingly ignored by the mainstream media, considering the matter and the parties at stake, France’s Supreme Court recently determined that double jeopardy isn’t a viable defense to prevent the prosecution of a company that had entered into a plea agreement for charges tried in another country.

The decision by the Cour de Cassation, rendered on March 14, involved Swiss oil trader Vitol, which allegedly bribed the government of Iraq to obtain oil under the United Nations’ Oil-for-Food program that ran from 1996 to 2003. Under that program, Iraq could sell oil on the open market to purchase humanitarian supplies for its citizens.

In a 2007 case related to the bribery allegations, Vitol pleaded guilty to grand larceny in a New York court and paid $17 million in fines to avoid sanctions against its executives. Then in 2013, the energy trader, along with France’s oil and gas giant Total, S.A., was acquitted in a French criminal court on the charges. The acquittal stemmed from the fact that no individuals had benefited from Vitol’s agreement to pay Iraq for favorable contracts, a condition of most foreign bribery cases under French law. Here, instead, Iraq itself benefited from the payments. This lack of precedent created difficulties for the French lower court. Ultimately, in 2016, a Paris Court of Appeal fined Vitol €300,000, determining that its actions had amounted to corrupting foreign officials.

Yet at the center of Vitol’s defense was the New York plea agreement. Invoking the double jeopardy principle spelled out in Article 14(7) of the International Covenant on Civil and Political Rights, Vitol had argued that it could not be tried again for the same offense in France. The first-instance court had agreed with this premise, determining that the plea agreement would block French courts from hearing the case.

In its March decision, the Cour de Cassation disagreed with the lower courts, writing that Article 14(7) was not applicable to probes and convictions of foreign sovereigns, paving the way for the unprecedented conviction of a company for foreign bribery in France.

Similarly, but on slightly different grounds, in 2011, France’s lower courts had found that they couldn’t hear a case against Jeffrey Tesler, a solicitor from the United Kingdom who pleaded guilty in Houston, Texas, to charges of bribing Nigerian officials with more than $6 billion to secure engineering, procurement and construction contracts. In a January decision, the Cour de Cassation quashed the Court of Appeal’s decision and said that the case should be heard in France.

These cases show us that France’s Supreme Court isn’t willing to surrender the jurisdiction of French courts based on convictions rendered abroad when some of the facts occurred in France.

While I understand the lower courts’ rationale that trying cases in multiple foreign jurisdictions seems unfair and against a defendant’s Article 14 rights, I also think the Supreme Court’s decision is wise. Other countries, especially the United States, do not allow the French criminal justice system to dictate how they try their cases, and France should follow suit. Unless there’s reciprocity (like in the European space), France shouldn’t trust another system’s process and give up its sovereignty. And defendants cannot rest upon the European Court of Human Rights for action, either, as it recently confirmed its previous decisions, in which the double jeopardy principle only applies to prosecutions led by the same sovereign.

Legal proceedings elsewhere, therefore, no longer preclude action in France’s criminal justice system — something both plaintiffs and defendants should note when planning their strategies.

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Stéphane Bonifassi, pictured above, is the founder of Bonifassi Avocats, a Paris-based law firm that represents victims of fraud, embezzlement, misuse of company assets, corruption and money laundering. He has served as president of the Criminal Law Commission of the International Association of Lawyers (UIA), as well as co-chair of the Business Crime Committee of the International Bar Association (IBA).

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