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Situation of the Fight Against Corruption in France

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Situation of the Fight Against Corruption in France Paris International Litigation Bulletin no. 3 11 Situation of the fight against corruption in France According to the corruption perceptions index created by the gathered. Law no. 2000-595 of 30 June 2000 had, firstly, NGO Transparency International for 2011, France is ranked attempted to overcome this difficulty by specifying that acts of 25th, far behind New Zealand, Denmark or Finland, which are corruption could occur "at any time". However, the ambiguity seen as the most righteous countries. Nevertheless, France of this modification, as well as the absence of any consensus is ranked before Spain (31st), Hungary (54th) or Italy (69th). as to its scope, affected ongoing proceedings, giving rise to This index assesses on an annual basis 183 countries and strong criticisms by legal authors. territories on the basis of data resulting from numerous surveys relating, among other things, to the application of To clear all uncertainties, the texts, as amended by the Law of anti-corruption laws, access to information or conflicts of 17 May 2011, expressly take into account the acts of interests. corruption already committed in the scope of the offence of corruption ('for committing or having committed, for refraining According to the NGO, France's ranking would notably be due from acting or for having refrained from acting"). As a to the recent increase of cases receiving high media consequence, the offer or acceptance of payment for a coverage, which would damage its image in the eyes of previous favourable act shall be considered as an act international observers. The NGO actually underlined the establishing this offence. Without any possible doubts, the exceptional nature of sentences for corruption in France, in Law now sanctions the prior and subsequent act of corruption. particular in terms of international corruption (two sentences ordered in 10 years for the corruption of foreign officials, Nevertheless, despite this significant clarification, the compared to 42 in Germany) and notably presented the investigation of acts of corruption regularly encounters a following recommendations to the French Government in major obstacle: the military classification of documents and June 2011: sometimes even locations. The judges' access to classified documents is, indeed, subject to a procedure which notably Reform the status of the Public Prosecutor's Department requires the green light of the administrative authority having to replace it with an Attorney General of the Nation, an ordered the classification. This authority decides upon an independent judicial authority "capable of resisting the advisory opinion of the Consultative Commission on National interferences of the political power"; Defence Secrecy. Moreover, since Law no. 2009-928 of 29 July 2009, judges Reform the procedure of military classification to could only access classified locations for national defence strengthen its impartiality; secrecy following a temporary decision to declassify the location rendered by the administrative authority, thus Establish a kind of guilty plea in matters relating to subjecting the judicial power of investigation to an corruption in order to "accelerate the judicial system and administrative decision. The Constitutional Court, examining render it more efficient". a request for a priority ruling on an issue of constitutionality, ruled, on 10 November 2011, as contrary to the Constitution the legal provisions concerning classified locations for In the scope of the presidency of the G-20, France indicated national defence secrecy as well as those concerning that it wished to make the fight against corruption a priority. searches in such locations. This decision, which became This wish was reiterated during the G-20 summit which took effective on 1 December 2011, makes certain locations place in Cannes on 3 and 4 November 2011. Recent accessible to judges. This will potentially have a favourable legislative and case law developments seem to implement effect on the search of evidence in the scope of the fight this orientation. Indeed, Law no. 2011-525 of 17 May 2011 against corruption. amended the French Criminal Code in order to clear all ambiguities concerning the conditions governing the offence However, one ought to put the impact of this decision into of corruption and thus facilitate proof of such offence. perspective as the Constitutional Court has approved the provisions relating to the classification of documents. As a Before 2000, it was admitted that the corruption agreement, consequence, the classification of documents as military namely the agreement establishing the mutual intentions of secret shall remain enforceable against judges unless the the corrupting party and corrupt party, had to occur before the administrative authority changes its position. actual act of corruption. This requirement limited the cases where the elements constituting the offence could be Paris International Litigation Bulletin no. 3 12 It will, therefore, be interesting to pay attention to the future decisions that will be handed down in this field and to the possible legislative developments in order to see how the fight against corruption and the protection of military secrets will be balanced. Thomas Rouhette [email protected] Pauline Blondet [email protected].
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