How does France fight corruption and how does the Sapin law work? Bernard Vatier and Sylvie Gavrilov speak to FACTS

At the end of last year, an international conference on fighting corruption was held in Sofia. Institutions for countering corruption and ongoing reforms in Bulgaria were discussed at it. The conference marked the 10th anniversary of the establishment of the Club of Francophone Lawyers in Sofia and the 30th anniversary of the acceptance of Bulgaria as a member of the International Organization of La Francophonie. How does France fight corruption? Lawyer Bernard Vautier - chairman of the Paris Bar Association, general secretary and founder of the International Union of Bar Associations with a Common Legal Tradition (CIB), and the chairman of the Club of Francophone Lawyers in Sofia Sylvie Gavrilov speak to FAKTI.

- Mr. Vatier and Gavrirlov, what are the main mechanisms for fighting corruption?
- Bernard Vatier: In the first place, we must refer to a more general concept - the countermeasure against damage to integrity or integrity. We need to promote education, raise awareness among those involved in judicial politics about the danger of breach of integrity. Violations of integrity are very specific crimes in so far as they are committed in secret and find their legitimacy in the fact that the perpetrators go into hiding and thus benefit from impunity. This impunity encourages the multiplication of integrity violations in the absence of identification of integrity violations and their repression.
Therefore, it is necessary to put in place systems that allow crimes of violation of integrity to be identified so that they come out of the realm of discretion, and systems that allow to ensure an exemplary repression that can call into question impunity. Second, a prevention policy should be put in place to help economic entities put in place systems to combat integrity violations.
Transparency mechanisms should be introduced in the field of political life, namely:

- Identifying professional practices to avoid interference and creating ethics committees to monitor when a person moves from a public function to private companies and vice versa, subject to the activity of the ethics committee. Identification and publicity of the assets of public persons and their varieties;

- Assistance to economic entities in the fight against violations of integrity by creating internal norms and rules and monitoring compliance with these norms and rules;

- Creation of fast and effective mechanisms for sanctioning by special criminal procedures: independence of prosecutors. Publicity of cases. Property sanctioning under criminal law, which aims to introduce deterrent and quick measures;

- Institutionalizing the concept of whistleblowers to expose any serious crime that may affect public life;

- What is the French experience?
- B.V.: It includes 3 phases:
1. Preventive phase
- Transparency in public life. This is the creation of an independent body responsible for registering the assets of high-ranking political and judicial officials so that any unusual enrichment can be identified. This body is also responsible for the application of ethical rules to avoid improper interaction between politicians and public officials on the one hand and private companies on the other
- Business training. This is the role of the anti-corruption agency. It intervenes to help establish systems to combat integrity violations in companies and to identify corruption crimes - influence peddling, extortion, illegal usurpation, misappropriation of public funds and favoritism. It assists in the enforcement of sanctions while ensuring that internal mechanisms for combating integrity violations are effective.
- The concept of a whistleblower (giving immunity to those who witness corruption, money laundering, tax fraud and who report it in good faith)

2. Repressive phase
- Creation of a specialized prosecutor's office and specialized police in financial matters to deal with violations of integrity. This prosecutor's office must act transparently and completely independently. In the event of a finding of guilt, the prosecutor should be able to propose a penalty agreement presented to the judge. This system allows for swift and deterrent repression.

- Silvi Gavrilov: We should add that a specialized court and prosecutor's office were also established in Bulgaria, but they did not fulfill their purpose and their activities were terminated. The specialization of individual divisions within the existing court and prosecutor's office is very important for the efficient counteraction of corruption.

- And what did you do in France?
- B.V.: Everything we described above. Public interest settlement is a procedure that allows the prosecutor to enter into an agreement with a legal entity accused of breach of integrity. This measure as an alternative to prosecution is applicable to companies, associations, local authorities, etc. charged with corruption, influence peddling, tax fraud, tax fraud money laundering and any related crime. It has the effect of extinguishing the criminal prosecution if the legal entity in question fulfills the obligations it undertook in the agreement with the prosecutor's office approved by the court. These obligations, alternative or cumulative, may consist of:
- payment of a public interest fine to the state, the amount of which cannot exceed 30% of the average annual turnover;
- the execution – in the case under the control of the French Anti-Corruption Agency, of a program to comply with its procedures for the prevention and fight against corruption for a maximum period of 3 years as compensation for damages
- Proposed by the prosecutor and accepted by the legal entity, it must be approved by the judge in open session. The agreement and the validation decision are published on the website of the French Anti-Corruption Agency.

The financial specialist prosecutor wanted to create and disseminate guidelines to clarify and explain the terms of application of the agreements. Their aim is to encourage legal entities to adopt a cooperative approach with the judiciary as well as with the anti-corruption agency. For economic operators and foreign judicial authorities, they represent an element of predictability and a factor of legal certainty. This document was developed jointly with the French Anti-Corruption Agency.

- S.G.: With the recent changes in the organizational law of the Bulgarian anti-corruption body, the aim is precisely to increase the efficiency of countermeasures. Opinions on the efficacy of the new changes in the legal community are mixed. We have to wait for a certain period to see to what extent the changes will lead to real changes in countering corrupt practices.

- The anti-corruption practice in France is known as the four pillars of the “Sapin” law. At the core is…
- B.V.: First of all, a body for transparency in public life. Next comes an anti-corruption agency, after that is a specialized financial prosecutor's office, and the fourth is whistleblower protection.

- How fair is the court agreement in the public interest introduced by the “Sapen” law?
- B.V.: It is fair in its nature, as it is based on an admission of guilt and acceptance of the proposed sanction. It is also subject to judicial review. However, this presents a difficulty with regard to the personal liability of company directors. The admission of guilt by the body corporate presupposes the existence of an offense imputable to the directors and is likely to result in their criminal liability, even though they are not parties to the plea.

- What is the role of civil society in France in investigating and exposing corruption?
- B.V.: The main role of civil society has been institutionalized with the introduction of European legislation on whistleblowers, transposed into French legislation by a law of December 9, 2016. The Council of Europe defines whistleblowing as disclosure of information for activities that pose a threat or harm to the public “common interest”. People raise the alarm because they think these activities should be stopped or palliative measures should be taken. It is often simply a matter of informing employers of wrongdoing that they are unaware of and which they are quick to correct. In other cases, whistleblowers may find it necessary to contact regulatory or supervisory authorities or relevant law enforcement authorities. The whistleblower benefits from impunity as long as he acts in good faith. He must be protected from the associated risks: dismissal, murder, attacks on the health or peace of his family, or even legal proceedings aimed at censuring him and depriving him of his property. The whistleblower concept is based on the principle that “better protection of whistleblowers also means securing the economy”, as corruption slows its development through “bad decisions, increased public costs and cuts of investments“.
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b.b. - The interview took place with the assistance of lawyer Ginka Hristova.