Negotiated Criminal Justice and French Guilty Plea Procedure: Improved Rights for the Prosecuted Individuals
11 min read
A number of recent legislative and jurisprudential developments have improved the rights of persons prosecuted under the French guilty plea procedure (Comparution sur reconnaissance préalable de culpabilité in French, or "CRPC"), an alternative to criminal trial.
In a decision dated 29 November 2023, published in the Bulletin1 (the French Supreme Court Official Gazette), the Criminal Division of the French Supreme Court ruled that all elements referring to the admission of guilt by the person indicted who is the subject of a CRPC procedure should be removed from the investigation file in the event of the failure of the CRPC. The week before, on 20 November 2023, the Law on the orientation and programming of the Ministry of Justice (2023–2027) amended the CRPC regime to provide that the public prosecutor will be able to – after the President of the Judicial Court has refused once to approve the sentence proposed under the CRPC – refer the matter to the President a second time for the approval of another proposed sentence.
By doing so, the lawmakers and the judicial authorities have clarified and increased the attractiveness of this form of prosecution. The CRPC has – because of legal imprecisions and recent court decisions – indeed recently appeared as offering insufficient guarantees in terms of the rights of the defence, particularly in the case of a parallel deferred prosecution agreement (Convention judiciaire d'intérêt public in French, or "CJIP") concluded by a legal entity being prosecuted for similar or related facts.
1. The CRPC procedure
The CRPC procedure,2 commonly called the "guilty plea" procedure, allows the public prosecutor to propose one or more of the main penalties incurred for a given offence to a legal or natural person who admits his or her guilt and does not dispute the facts of the case. If the proposal is accepted, the person is brought before the President of the Judicial Court for approval of the proposed sentence.
This procedure applies to all criminal offences, with the exception of those mentioned in article 495-16 of the Criminal Code (offences committed by minors, press offenses, manslaughter, political offences or offences for which a special law exists) and voluntary or involuntary injuries and sexual assaults referred to in articles 222-9 to 222-31-2 of the Criminal Code, if they are punishable by a prison sentence of more than five years.3 The prison sentence proposed under a CRPC may not exceed half of the prison sentence incurred and may not exceed three years.
The CRPC procedure has enjoyed a certain success since its introduction into French law by Law no. 2004-204 of 9 March 2004, known as the Perben II Law, particularly because it allows the prosecuted person to obtain a more lenient sentence than would otherwise have been decided at the trial, whilst avoiding the uncertainties, costs and delays of the trial itself.
Procedurally, the CRPC procedure can be initiated following a police investigation, but also during a judicial investigation conducted under the authority of an investigating judge. In both cases, if the procedure fails (i.e. if the accused does not admit his guilt in the end or if the President of the Judicial Court refuses to approve the sentence proposed by the public prosecutor), the public prosecutor is obliged to refer the accused person to the criminal court for trial or to the investigating judge for the recommencement of the judicial investigation. In both cases, in accordance with article 495-14 of the French Code of Criminal Procedure, and in order to protect the rights of the accused, the procedural documents relating to the CRPC procedure mustn't be communicated to the trial court or the investigating judge, and the parties, including the public prosecutor, must not refer to the statements made or documents submitted during the CRPC procedure.
2. The removal from the investigation file of the documents mentioning the admission of guilt of the indicted person
In the case which gave rise to the ruling dated 29 November 2023, a person indicted in the context of a judicial investigation sought, after the President of the Judicial Court refused to approve the sentence proposed by the public prosecutor at the end of a CRPC procedure, to annul several acts and documents of the judicial investigation before the investigation division of the court of appeal (the chambre de l'instruction). There were amongst these documents the letter sent by his counsel to the investigating judge admitting his guilt and requesting the initiation of a CRPC procedure, the order to initiate the CRPC procedure by the investigating judge, the prosecutor's opinion on the indicted person's request to be placed under the status of assisted witness and, finally, the decision to add to the case file the court order approving the deferred prosecution agreement (CJIP) concluded with the public prosecutor by the companies he headed, and which put an end to the prosecution against them for the same offences.
The investigation division of the court of appeal had rejected these requests for annulment on the basis of a literal interpretation of the texts. The letter from the accused's counsel admitting his guilt and the CRPC initiation order could not, in their view, be removed from the judicial investigation file after the failure of the CRPC procedure, as these elements predated the implementation of the CRPC procedure. Indeed, article 495-14 of the French Code of Criminal Procedure only provides for the removal from the file of the "statements made or documents submitted during the procedure" of the CRPC, and not before it. This harsh solution had the effect of affecting the rights of the person subsequently tried before the criminal court, who was necessarily disadvantaged by the presence of an admission of guilt in the file and, as a result, restricted in his choice of defence, since any denial of the facts would then lack credibility.
This ruling was partially overturned by the French Supreme Court, which based its decision on the preparatory work for the Perben II Law, the principle of presumption of innocence and the right not to incriminate oneself, guaranteed in particular by Article 6 of the European Convention on Human Rights.
The Criminal Division of the Supreme Court ruled that, in the context of a judicial investigation, if the CRPC has not been approved by the President of the Judicial Court or accepted by the prosecuted person, "the request or agreement of the person under investigation to refer the case to the public prosecutor to initiate a guilty plea procedure, together with the documents or references in documents relating to this request or agreement, must be removed from the judicial investigation file" (i.e. the documents where the indicted person admits his guilt) so as not to violate the aforementioned rights.
The Supreme Court stated that the documents mentioning the admission of guilt cannot be annulled, as they are not irregular per se. Their removal from the case file must then be carried out by the investigation division of the court of appeal, at the request of the investigating judge, by way of redaction.
However, the judges of the Criminal Division considered that it was not necessary to remove the order referring the matter to the CRPC procedure from the judicial investigation file since it does not contain, as such, any information on the admission of the facts by the person prosecuted. The judges considered that it only provides information on the existence of this procedure, which may have failed precisely because the prosecuted person subsequently refused to admit his guilt. They also ruled that the other documents that the indicted person sought to annul (public prosecutor's opinion, decision to add to the file the order approving the parallel CJIP) cannot be annulled or removed from the file but must be redacted if they refer to the admission of guilt.
The ruling of the Supreme Court represents some progress in terms of the rights of the prosecuted persons in the context of a judicial investigation following the failure of a CRPC procedure and will make it easier to advocate for an acquittal before the criminal court. However, the new guarantees established by the Supreme Court have certain limits. In fact, as the Supreme Court stated, the investigation file will retain a record of the CRPC through the presence of the order that decided to initiate the CRPC procedure. However, according to article 180-1 of the French Code of Criminal Procedure, the admission of guilt by the person indicted is a necessary condition for the initiation of the CRPC procedure in the context of a judicial investigation. The judges, who will later have to hear the case at trial, will be able to infer that the accused person accepted the principle of his guilt at this time of the procedure.
3. The possibility of submitting a second sentence proposal in the event of failure of the CRPC procedure
At the same time, the attractiveness of the CRCP procedure has been strengthened by the recent amendment of article 495-12 of the French Code of Criminal Procedure by the Law no. 2023-1059 of 20 November 2023 on the orientation and programming of the Ministry of Justice 2023-2027. The new version of the article, which will enter into force on 30 September 2024, provides that the public prosecutor may, after the failure of a first CRCP procedure, submit a second request for approval to the President of the Judicial Court.
Under the current regime, the public prosecutor has no choice but to refer the matter to the criminal court or to an investigating judge if the approval of the sentence is refused. The Supreme Court used to consider that the President of the Judicial Court who declared a second request for approval of a proposed sentence inadmissible had not exceeded his powers.4
The possibility for the public prosecutor to submit a new sentence proposal will thus give a second chance to the parties who have opted for the CRPC procedure, particularly in the event that the President of the Judicial Court would consider that the initial sentence was not appropriate. The public prosecutor will be able to adjust the proposed sentence, making it more lenient or more severe, or to add complementary sanctions to satisfy the expressed or anticipated requirements of the President of the Judicial Court.
4. A new impetus for the CRPC?
These legislative and jurisprudential adjustments are probably related to the questions raised – in the context of the case that gave rise to the ruling of 29 November 2023 commented on above – by the refusal of the President of the Judicial Court to approve the proposed sentence in the CRPC procedure, whilst the deferred prosecution agreement (CJIP) entered into by the legal person prosecuted for the same facts had been approved by him.
In this case, the natural person prosecuted cannot benefit from the settlement negotiated by the legal person in the CJIP, since this procedure is only open to legal persons. Although it is subject to a different legal regime and has a different scope, the CRPC is the only instrument that can be used as a complement (rather than an equivalent) to the CJIP. The combination of the two procedures is, however, complex and carries far-reaching consequences: individuals opting for a CRPC must, in certain respects, bear the consequences of the incentive given to the legal entity to make a "straightforward admission of the facts" and to "conduct an internal investigation to identify the main individuals involved in the facts and to disclose them to the public prosecutor's office",5 as these actions allow them to obtain a reduction of the fine incurred in the context of a CJIP.
The refusal to approve the CRPC in this particular case, on the grounds that the proposed sentences were not appropriate given the seriousness of the offences prosecuted, has reflected the constraints and limits associated with the dual regime of these two judicial procedures. It also highlighted the uncertainty related to the approval of the sentence negotiated in the context of the CRPC which also, unlike the CJIP, requires the accused person to admit his guilt and does not provide for the removal of this admission from the investigation file in the event of failure of the procedure.
The ruling of 29 November 2023, by deciding the withdrawal of these documents, and the new article 495-12, by providing for the possibility of proposing a second sentence – while obviously not aligning the regime or jurisdictional effect of the two procedures – will nonetheless clarify the conditions for their coordinated implementation.
1French Supreme Court, Criminal Division, 29 November 2023, no. 23-81.825.
2 Articles 495-7 et seq. of the French Code of Criminal Procedure.
3 Articles 495-7 and 495-16 of the French Code of Criminal Procedure.
4 French Supreme Court, Criminal Division., 17 May 2022, no. 21-86.131.
5 French National Financial Prosecutor's Office, Guidelines on the Implementation of the Public Interest Judicial Agreement, 16 January 2023.
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