First of all, it should be noted that Italian prosecutors are not related to the government, but they are professional judges. Their obligations to initiate criminal proceedings are mandatory and not discretionary (Article 112 of the Constitution): in the absence of a “criminal complaint” (a communication on certain facts that may constitute an offence), the prosecutor is obliged to initiate formal criminal proceedings, to open an investigation and, if he considers that the conditions for a criminal offence are met, to initiate criminal criminal proceedings requesting the “arrest of the suspect” for the trial. main. The Judicial Convention of Public Interest (CJIP), which was taken up at Sapin II after much debate, is France`s interpretation of the DPA, established by Sapin II and available for the first time on June 1, 2017. The CJIP is considered a revolutionary instrument in the application of the fight against French corruption and is limited to companies and applies to corruption and money laundering offences. “The real advantage of the CJIP is to avoid a formal criminal conviction, which means that the company that receives a CJIP does not have a criminal record. And the company can participate in public tenders,” said Melina Wolman, partner at Pinsent Masons. Companies can participate in a CJIP during the preliminary investigation or during the investigation. A CJIP can be accompanied by a fine of up to 30 percent of a company`s turnover. The CJIP may also include the payment of damages to victims. Thus, in a case involving HSBC as a victim, the French State (tax administration) received €142 million in damages recorded in the CJIP. In addition, a CJIP does not protect executives from criminal liability (just as a DPA does not replace prosecution of those involved in corrupt behavior).
There is no requirement to respond to a CJIP when an internal investigation has been conducted or has been conducted. This is also the case in the United States. However, when it comes to fines, they consider aggravating factors and other factors that can reduce fines and constraints on companies,” said Xavier Oustalniol, partner at StoneTurn.The French Anti-Corruption Agency (AFA) may impose certain corrective measures after the CJIP, including reporting and follow-up paid by the company. for a maximum period of three years. While the U.S. DoJ focuses on implementation, the AFA focuses on enforcement and prevention. For prosecutors, they offer a balance between time- and resource-intensive proceedings and the absence of any enforcement. Since companies must fully cooperate and provide law enforcement with detailed information to obtain a DPA, there is much less pressure on the prosecutor to handle a case.
A DPA also acts as a “force multiplier” because it allows regulators to avoid long and complex processes, without guaranteeing a guilty verdict in exchange for a streamlined process with a predetermined outcome. . . .