DOCSLIB.ORG

France: Phase 2

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
France: Phase 2 DIRECTORATE FOR FINANCIAL, FISCAL AND ENTERPRISE AFFAIRS FRANCE: PHASE 2 REPORT ON THE APPLICATION OF THE CONVENTION ON COMBATING BRIBERY OF FOREIGN PUBLIC OFFICIALS IN INTERNATIONAL BUSINESS TRANSACTIONS AND THE 1997 RECOMMENDATION ON COMBATING BRIBERY IN INTERNATIONAL BUSINESS TRANSACTIONS This report was approved and adopted by the Working Group on Bribery in International Business Transactions (CIME) on 22 January 2004. 1 TABLE OF CONTENTS INTRODUCTION....................................................................................................................................... 5 a) The new Act in the context of French foreign trade and investment.......................................... 5 b) Coming to terms with the phenomenon...................................................................................... 6 c) Prosecution on grounds of misuse of corporate assets in bribery cases...................................... 7 d) Structure and methodology of this report ................................................................................... 8 A. PREVENTING AND DETECTING THE OFFENCE OF BRIBERY OF FOREIGN PUBLIC OFFICIALS .............................................................................................. 9 1. Preventing the bribery of foreign public officials....................................................................... 9 a) The growing awareness of large French corporations ................................................................ 9 b) Increasing the awareness of small and medium-sized enterprises (SMEs) .............................. 10 c) Awareness raising in the field of export credits and bilateral development aid ....................... 11 d) Support for enterprises from the Public Revenue Department (Trésor) and French diplomatic missions ............................................................................................... 12 2. Detecting the bribery of foreign public officials....................................................................... 14 a) Reporting of an offence by the perpetrators and third parties................................................... 14 i) Denunciation by one of the people involved, a rival, or anonymously or in the press......... 14 ii) Denunciation by company employees .................................................................................. 15 iii) Disclosure by salaried accounting staff and chartered accountants working in companies...........................................................................................................17 b) Disclosure of the offence by auditors ....................................................................................... 17 c) Reporting of the offence by civil servants and institutional bodies exercising supervisory powers..................................................................................................21 i) Detection of the offence by the tax authorities ..................................................................... 21 ii) Disclosure in relation to cases of money-laundering............................................................ 22 iii) Detection of the offence by other departments, services and constituted authorities ........... 25 iv) The place and role of the public administration and public officials in the mechanisms for detecting the offence of bribery........................................................ 26 B. PROSECUTION OF THE OFFENCE OF ACTIVE BRIBERY OF FOREIGN PUBLIC OFFICIALS AND RELATED BREACHES OF THE LAW................. 28 1. The instigation of public legal action........................................................................................ 28 a) Instigation of public proceedings and the possibility of bringing a civil party petition as part of the criminal proceeding.............................................................................................28 b) The role of the Public Prosecutor’s Office in the conduct of proceedings ............................... 30 2. Prosecution of the offence ........................................................................................................ 32 2 a) Means of investigation and prosecution ................................................................................... 32 i) Structures supporting the Public Prosecutor’s Office and investigating magistrates ........... 32 ii) Numbers of magistrates responsible for business-related crime and the resources available to them ...................................................................................... 33 iii) The economic and financial poles......................................................................................... 34 b) Means of investigation.............................................................................................................. 35 i) International mutual assistance............................................................................................. 36 ii) Statute of limitation as it applies to the offence of bribing foreign public officials ............. 38 3. Establishing the offence of bribery........................................................................................... 39 a) How the intentional element in the offence of bribery is dealt with......................................... 39 b) How the material element of the offence of bribery is dealt with............................................. 40 i) The concept of “without right” ............................................................................................. 41 ii) The role played by the intermediary in transmitting the offer of a bribe.............................. 41 iii) The distinction between bribery and trading in influence..................................................... 42 iv) The corruption pact............................................................................................................... 43 c) French criminal law jurisdiction ............................................................................................... 44 i) Territorial jurisdiction – Offences committed or deemed to have been committed on the territory of the French Republic................................................................................. 44 ii) Personal jurisdiction – Offences committed outside the territory of the French Republic... 45 C. PUNISHING THE OFFENCE OF ACTIVE BRIBERY OF FOREIGN PUBLIC OFFICIALS AND CONNECTED OFFENCES ................................................................................................. 46 1. Persons judged guilty by the courts .......................................................................................... 46 a) Persons judged to be perpetrators of the offence of actively bribing foreign public officials .. 46 i) The responsibility of companies with regard to the anti-bribery legislation and to French law generally.................................................................................................. 48 ii) Holding companies liable for the illegal activities of foreign subsidiaries........................... 49 iii) Persons judged to be accomplices and receivers in relation to the offence of active bribery.................................................................................................................... 50 b) Persons found guilty of accounting and tax offences ............................................................... 51 i) The responsibility of company management in relation to accounting matters.................... 51 ii) Prosecution of salaried accountants, chartered accountants and auditors............................. 52 iii) Sanctioning the non-deductibility for tax purposes of bribes paid in connection with exporting activities........................................................................................................ 53 2. Punishing the offence of active bribery of foreign public officials: penalties handed down by judges............................................................................................................. 55 a) The sanctions applicable and the penalties actually imposed by judges................................... 55 b) The penalties imposed in practice by the courts ....................................................................... 55 3 c) French courts and confiscation of the object or proceeds of the offence.................................. 56 D RECOMMENDATIONS ............................................................................................................... 57 a) Recommendations..................................................................................................................... 58 b) Follow-up by the Working Group............................................................................................. 60 ANNEXES.................................................................................................................................................... 61 Annex 1: Business-related and financial offences for which penalties were imposed (1990-2001)......... 62 Annex 2: Summary table of judgements................................................................................................... 64 Annex 3: List of institutions met during the on-site visit, 23 to 27 June 2003 ......................................... 67 4 INTRODUCTION a) The new Act in the context of French foreign trade and investment 1. The adoption by France of Act No. 2000-595 of 30 June 2000 amending the Criminal
Load more

Recommended publications
  • Organization Interpol
    If you have issues viewing or accessing this file contact us at NCJRS.gov. APR ~1976 , INTERNATIONAL' CRIMINAL ,POLICE ORGANIZATION INTERPOL / XXXVlllth GENERAL ASSEMBLY SESSION MEXICO 13th - 18th OCTOBER 1969 Report submitted by ~he GENERAL SECRETARIAT Subject : POWERS. AND DUTIES OF THE POLICE WITH REGARD TO DETENTION. A INTRODUCTION Backa-FC?1l.?d to. the survey. The Organisation's programme of activities adopted by tho G:~:c9ral Assembly sessions in.1965 and 1967 included an important survey, to be conctucted in several stages 7 of tho powers and duties of the police whon investigating offences against criminal law. The first part of this survey covers thG pm-Ters and dutios of the police with regard to the detention of persons. Circula.r N° 1898-POLNA!112 lias sent oat on 8th April 1968 to all ,'.' Interpol Nation9.l Central Bureaus 7 enclosing a q.uestionnaire on this subject. t. ; The Circular explained that the aim of the survey was to obtain information t~ from each a.ffiliated country on the legal conditions in which "the pOli.ce m~y ~ hold for a certain time for th~ purposes of criminal enquiries a person who • has not boen charged and for whom a 'tITarrant of arrest has nO'b been issued by ~.. \:0 a magistrate". .j. ~ 'r - 2 - - 3 - Power to datal'n or hold a person fO)' qu t' , vTe felt there was little point in dealing with arrests made by order exercise of the power of arrest. Fo~ t es lOnlng ~s subordinate to the of a magistrate with a view to bringing a person to trial, or arrests made in to the power of detaining a parson Whoh~:en~~un~rles therefors 7 with regard execution of a conviction, since the regulations governing such cases are arrest warrant has been; "''''ued 't c arged and for Vlhom no probably of a similar natuy.o in most oountries.
    [Show full text]
  • INTA Criminal Enforcement of Copyrights
    CRIMINAL ENFORCEMENT OF COPYRIGHTS AN ANTHOLOGY FOR IP PRACTITIONERS EDITORS: FAISAL DAUDPOTA TÂNIA AOKI CARNEIRO (ENFORCEMENT SUB-COMMITTEE) COPYRIGHT COMMITTEE MARCH 2021 CONTENTS Executive Summary ................................................................................................................................ 3 Contributors ............................................................................................................................................ 4 Albania .................................................................................................................................................... 6 Argentina ................................................................................................................................................ 9 Australia ................................................................................................................................................ 12 Belgium ................................................................................................................................................. 15 Brazil ..................................................................................................................................................... 18 Bulgaria ................................................................................................................................................. 21 Canada .................................................................................................................................................
    [Show full text]
  • Country Review Report of Brazil
    Country Review Report of Brazil Review by Haiti and Mexico of the implementation by Brazil of articles 15 – 42 of Chapter III. “Criminalization and law enforcement” and articles 44 – 50 of Chapter IV. “International cooperation” of the United Nations Convention against Corruption for the review cycle 2010 - 2015 1 I. Introduction The Conference of the States Parties to the United Nations Convention against Corruption was established pursuant to article 63 of the Convention to, inter alia, promote and review the implementation of the Convention. In accordance with article 63, paragraph 7, of the Convention, the Conference established at its third session, held in Doha from 9 to 13 November 2009, the Mechanism for the Review of Implementation of the Convention. The Mechanism was established also pursuant to article 4, paragraph 1, of the Convention, which states that States parties shall carry out their obligations under the Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and of non-intervention in the domestic affairs of other States. The Review Mechanism is an intergovernmental process whose overall goal is to assist States parties in implementing the Convention. The review process is based on the terms of reference of the Review Mechanism. II. Process The following review of the implementation by Brazil of the Convention is based on the completed response to the comprehensive self-assessment checklist received from Brazil, and any supplementary information provided in accordance
    [Show full text]
  • CASE of M1.S.S. V. BELGIUM and GREECE 1
    GRAND CHAMBER CASE OF M.S.S. v. BELGIUM AND GREECE (Application no. 30696/09) JUDGMENT STRASBOURG 21 January 2011 This judgment is final but may be subject to editorial revision. JUDGMENT – M.S.S. v. BELGIUM AND GREECE 1 In the case of M.S.S. v. Belgium and Greece, The European Court of Human Rights, sitting as a Grand Chamber composed of: Jean-Paul Costa, President, Christos Rozakis, Nicolas Bratza, Peer Lorenzen, Françoise Tulkens, Josep Casadevall, Ireneu Cabral Barreto, Elisabet Fura, Khanlar Hajiyev, Danut ÷ Jo čien ÷, Dragoljub Popovi ć, Mark Villiger, András Sajó, Ledi Bianku, Ann Power, Işıl Karaka ş, Nebojša Vu čini ć, Judges, and Michael O'Boyle, Deputy Registrar, Having deliberated in private on 1 September and 15 December 2010, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 30696/09) against the Kingdom of Belgium and the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Afghan national, Mr M.S.S. (“the applicant”), on 11 June 2009. The President of the Chamber to which the case had been assigned acceded to the applicant's request not to have his name disclosed (Rule 47 § 3 of the Rules of Court). 2. The applicant was represented by Mr Z. Chihaoui, a lawyer practising in Brussels. The Belgian Government were represented by their Agent, Mr M. Tysebaert and their co-Agent, Mrs I. Niedlispacher. The Greek Government were represented by Mrs M.
    [Show full text]
  • Sentencing Laws & Practices in France
    Scholarship Repository University of Minnesota Law School Articles Faculty Scholarship 1995 Sentencing Laws & Practices in France Richard Frase University of Minnesota Law School, [email protected] Follow this and additional works at: https://scholarship.law.umn.edu/faculty_articles Part of the Law Commons Recommended Citation Richard Frase, Sentencing Laws & Practices in France, 7 FED. SENTENCING R. 275 (1995), available at https://scholarship.law.umn.edu/faculty_articles/514. This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in the Faculty Scholarship collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Federal Sentencing Reporter. Vol. 7, No. 6, May / June 1995 275 FRANCE SENTENCING LAWS & PRACTICES Table 1 IN FRANCE Incarceration rates in France and the United States (1991) Richard S. Frase* US. France ratio Inmates per 100,000 residents The French make very sparing use of custodial Convicted inmates only 409.1 50.1 8.2:1 penalties and punish most offenses with fines or All inmates 495.9 84.6 5.9:1 suspended sentences. France's less punitive attitude Inmates per 100 weighted adult arrests is evident not only in its sentencing laws and prac- Convicted inmates only 24.1 7.2 3.3:1 tices, but also at earlier stages of the criminal process: All inmates 29.2 12.2 2.4:1 in the legal definition of crimes; in the use of custo- dial arrest and pretrial detention; and in decisions While the ideal crime-related base for assessing about whether (and on what charges) to prosecute.
    [Show full text]
  • Remedies and Strategies for Permanent Resident Clients July 2011
    Remedies and Strategies for Permanent Resident Clients July 2011 CHAPTER 1 REMEDIES AND STRATEGIES FOR PERMANENT RESIDENT CLIENTS This chapter includes: § 1.1 Introduction ........................................................................................................ 1-1 § 1.2 How to Use This Manual.................................................................................... 1-2 § 1.3 Which Permanent Residents Are Subject to the Grounds of Inadmissibility and Which Are Subject to the Grounds of Deportability ................................... 1-3 § 1.4 Burdens of Proof ................................................................................................ 1-8 § 1.5 Evidentiary Considerations; Motions to Suppress ........................................... 1-12 § 1.6 When and Whether to Concede Removability ................................................. 1-17 § 1.7 Analyzing Your Client’s Case .......................................................................... 1-19 § 1.8 A Word on Judicial Review ............................................................................. 1-20 § 1.1 Introduction To be an effective immigration advocate, it is essential to have a thorough understanding of the laws affecting your clients. This manual is designed to give practitioners that understanding with respect to Lawful Permanent Residents1 who have been charged with being removable. This manual is designed as a “how to” manual; it contains clear, concise, and detailed explanations of the grounds of removal LPRs are most likely to face, when they do and don’t apply, the remedies for each, and the practicalities of working with clients to elicit the evidence necessary to successfully defend their cases. Although the primary focus of this book is on the remedies available for LPR clients who have been found removable, we wish to emphasize from the outset that the first line of defense in many cases involving LPR clients will be to deny the allegations in the Notice to Appear (NTA) and move for termination of the proceedings.
    [Show full text]
  • Submission on Review of Defamation Act 2009
    Submission on Review of Defamation Act 2009 From: Kieran Fitzpatrick Anbally, Cummer, Co. Galway 28 December 2016 ___________________________________________________________________ The 2009 Defamation Act - The Department of Justice and Equality is now inviting contributions from members of the public to inform this review. Organisations or individuals wishing to contribute should send a submission by 31 December 2016: • by email to [email protected] ___________________________________________________________________________ Dear Sir/Madame, I wish to suggest that the 2009 Act be reviewed under the following nine headings, before I respond to the proposed headings as outlined by the Department of Justice: 1. Strict Liability/Burden of Proof 2. Proportionality 3. Capping of awards 4. Exclusion of Quangos 5. Lower protection of persons/entities performing public roles 6. Fair Trial rights 7. Open Justice 8. Register of Defamation payments 9. Equal Justice Let’s look at each of the above 9 headings: 1 1. Strict Liability This is not required by the constitution, and is against the public interest. Without effective media scrutiny of public officials, corruption can occur, inappropriate favouritism can go unaddressed, contracts/tenders can be rigged in favour of connected persons etc. It must be firstly recognised that there is an asymmetry of information between state actors and the media/public. State actors hold key information, a lot of which is exempt under freedom of information laws. If journalists must prove all allegations, then this seriously impedes their “constitutional role” as the fourth estate. Unfortunately, the constitution does not provide sufficient explicit protection to a free media, with a somewhat antiquated reference to the ‘education of public opinion’ in Article 40.6.
    [Show full text]
  • Penal Code Penal Code
    PENAL CODE PENAL CODE With the participation of John Rason SPENCER QC Professor of Law, University of Cambridge Fellow of Selwyn College FIRST PART ENACTED PARTS Articles 111-1 to 727-2 BOOK I GENERAL PROVISIONS Articles 111-1 to 133-1 TITLE I THE CRIMINAL LAW Articles 111-1 to 113-1 CHAPTER I GENERAL PRINCIPLES Articles 111-1 to 111-5 ARTICLE 111-1 Criminal offences are categorised as according to their seriousness as felonies, misdemeanours or petty offences. ARTICLE 111-2 Statute defines felonies and misdemeanours and determines the penalties applicable to their perpetrators. Regulations define petty offences and determine the penalties applicable to those who commit them, within the limits and according to the distinctions established by law. ARTICLE 111-3 No one may be punished for a felony or for a misdemeanour whose ingredients are not defined by statute, nor for a petty offence whose ingredients are not defined by a regulation. No one may be punished by a penalty which is not provided for by the statute, if the offence is a felony or a misdemeanour, or by a regulation, if the offence is a petty offence. ARTICLE 111-4 Criminal legislation is to be construed strictly. ARTICLE 111-5 Criminal courts have jurisdiction to interpret administrative decisions of a regulatory or individual nature, and to appreciate their legality where the solution to the criminal case they are handling depends upon such examination. CHAPTER II OF THE OPERATIVE PERIOD OF A CRIMINAL LAW Articles 112-1 to 112-4 ARTICLE 112-1 Conduct is punishable only where it constituted a criminal offence at the time when it took place.
    [Show full text]
  • Brazil: Phase 1 Review of Implementation of the Convention and 1997 Recommendation
    DIRECTORATE FOR FINANCIAL AND ENTERPRISE AFFAIRS BRAZIL: PHASE 1 REVIEW OF IMPLEMENTATION OF THE CONVENTION AND 1997 RECOMMENDATION This report was approved and adopted by the Working Group on Bribery in International Business Transactions on 31 August 2004. BRAZIL REVIEW OF IMPLEMENTATION OF THE CONVENTION AND 1997 RECOMMENDATION A. IMPLEMENTATION OF THE CONVENTION Formal Issues Brazil signed the Convention on 17 December 1997 and deposited its instrument of ratification on 24 August 2000, pursuant to Legislative Decree No. 125, of 15 June 2000. Brazil enacted the implementing legislation in the form of Law No. 10,467, of 11 June 2002, which amended the Penal Code and Law No. 9,613, of March 3 1998, and came into force on 11 June 2002. Convention as a Whole The active bribery of a Brazilian public official is a criminal offence under Article 317 of the Brazilian Penal Code. Article 333 of the Penal Code makes it an offence for a Brazilian public official to accept a bribe. Both the offences of active and passive bribery predate the Convention. Other existing legislation relevant to the bribery of domestic public officials includes Law No. 9,034 of 3 May 1995, governing criminal organisations, and Law No. 9,613 of 3 March 1998, relating to money laundering and the concealment of assets. In order to meet the requirements of the Convention, Brazil penalised an act of bribery of a foreign public official through the enactment of the implementing legislation (Law No. 10,467, of 11 June 2002), which added to the Penal Code, Section XI, Chapter II-A entitled “Crimes committed by individuals against a foreign public administration” that contains the offence of Active bribery in an international business transaction and the definition of a “foreign public official”.
    [Show full text]
  • English/French
    LEGAL VOCABULARY ENGLISH/FRENCH Author Unknown Glossary Provided Courtesy of the State of Maryland, Administrative Office of the Courts 1 ENGLISH FRENCH A Abandoned Abandonné Abduct (V) Enlever Abetment Encouragement Abettor Instigateur Abrogate (V) Révoquer Abscond (V) Se soustraire à la justice Abuse Violence/mauvais traitement/abus Abused Maltraité/sévices sexuels Accessory Complice Accessory after the fact Aide après le délit/receleur Accessory before the fact Complice par instigtion Accessory during the fact Complice par abstention Accomplice Complice/ coauteur Accuse (V) Accuser Accused Accusé Acquit (V) Acquitter Acquittal Acquitté Action Action Addict Toxicomane Adjudication Jugement Admission Entrée Adversary system Procedure accusatoire Affidavit Attestation Affirmed Affirmé Aftercare service Service postcure Aggravating circumstances Circonstances aggravantes Aid and bet (V) Assister et soutenir 2 Alcoholic Alcoolique Alibi Alibi Alimony Pension alimentaire Allegation Allégation Alternative Dispute Resolution (ADR) Alternative à un procès Alternative/measure/sanction Mesure/sanction de substitution Answer Réponse du défenseur aux allégations du demandeur Anti-social behavior Comportement anti social Appeal Appel Appearance Comparution Appellant Appellant Arbitration Arbitrage Argue (V) Discuter Armed robbery (AR) Vol à main armée Arraignment Interrogatoire de première comparution Array Série de photographies Arrest Arrestation Assault Voies de fait (agression) Assault and battery Coups et blessures Assault on a Police Officer
    [Show full text]
  • Country Report for Belgium
    Country Report for Belgium I ADMINISTRATIVE DETENTION a) Preliminary remarks 1. Belgian law contains no specific provisions regarding detention for counter-terrorism, security or intelligence-gathering purposes. Detention for these purposes is governed by the ordinary law. This means that detention in the context of counter-terrorism or other national security operations can only occur where a person has been charged with an offence. This section will therefore consider the ordinary system of pre-trial detention and the possibility under Belgian law of imposing control and safety measures on prisoners. Given that the system of pre-trial detention and these control and safety measures are in place for all categories of offenders and not specifically or exclusively aimed at persons suspected or convicted of terrorist acts, this will not be discussed in detail. 2. The Statute on Detention on Remand1 distinguishes the following three categories of pre-trial detention: judicial arrest; the order to bring a suspect in for questioning; and the deprivation of liberty based on a warrant of detention (‘detention on remand’). The warrant of detention issued by the investigating Judge2 entails a longer period of deprivation of liberty that is subject to strict judicial control. Most of the following discussion deals with detention on remand. b) Police custody and judicial arrest 3. This is a brief deprivation of liberty for a maximum of 24 hours. If the person is caught in flagrante delicto, the police can take the decision to detain. The decision to deprive a person of his liberty who was not caught in flagrante delicto is taken by the public prosecutor.
    [Show full text]
  • SECOND SECTION CASE of COËME and OTHERS V. BELGIUM
    SECOND SECTION CASE OF COËME AND OTHERS v. BELGIUM (Applications nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96) JUDGMENT STRASBOURG 22 June 2000 FINAL 18/10/2000 In the case of Coëme and Others v. Belgium, The European Court of Human sitting as a Chamber composed of: Mr C.L. ROZAKIS, President, Mr A.B. BAKA, Mr B. CONFORTI, Mrs F. TULKENS, Mr P. LORENZEN, Mrs M. TSATSA-NIKOLOVSKA, Mr E. LEVITS, judges, and Mr E. FRIBERGH, Section Registrar, Having deliberated in private on 30 March, 6 April and 30 May 2000, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in five applications (nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96) against the Kingdom of Belgium lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Belgian nationals. The first of these applications was lodged by Mr Guy Coëme on 23 July 1996 and registered on 2 August 1996 under file no. 32492/96. Before the Court the applicant was represented by Mr P. Lambert, of the Brussels Bar. The second application was lodged by Mr Jean-Louis Mazy on 1 August 1996 and registered on 7 August 1996 under file no. 32547/96. Before the Court the applicant was represented by Mr O. Klees, of the Brussels Bar. The third application was originally lodged by Mr Jean-Louis Stalport on 5 August 1996 and registered on 7 August 1996 under file no.
    [Show full text]