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Is It Possible For Businesses To Reach A Pre-trial Agreement Through Plea Bargaining, Settlement Agreements Or Other Means?

Australia

A corporation can approach the CDPP early in the process to try to persuade the CDPP not to prosecute or, if prosecuted, to agree to a resolution subject to the court’s sentencing discretion. However, if a prosecution occurs, there is no statutory or other process for resolving the matter other than traditional forms of plea bargaining, rolled-up charges, or reduced charges that may be agreed to with the CDPP, which must then be presented to the sentencing judge for determination of the appropriate sentence. At any moment, an accused can seek to negotiate a resolution with the CDPP (individuals often seek to avail themselves of this). The DPP Act gives the CDPP the authority to provide a prospective accused person various levels of undertakings and/or immunities in exchange for certain conditions.

 

Belgium

Yes, both organizations and people can negotiate and agree to a (pre-)trial plea bargaining agreement or a criminal settlement in response to corruption charges. However, despite the fact that it has been a part of criminal proceedings since 2016, the plea bargaining system is rarely used. This is attributable, among other things, to prosecutors’ lack of interest in the mechanism.

 

France

Yes. The settlement agreement was incorporated into Article 41-1-2 of the French Criminal Procedure Code by Article 22 of the Sapin II Act. Despite the fact that the settlement agreement was influenced by the deferred prosecution agreements used in the United States and the United Kingdom, there are some major differences. The French Anti-Corruption Agency (AFA) and the Financial Prosecution Office (PNF) recently released recommendations on how to carry out the settlement agreement. The settlement agreement procedure allows the public prosecutor to offer public or private legal persons accused of crimes such as corruption, influence peddling, and tax fraud, as well as related offenses, the opportunity to enter into an agreement that will extinguish the public action, regardless of their nationality, turnover, or number of employees. The settlement agreement does not cover a company’s legal representatives, who are nonetheless held personally liable. The legal entity may be required to fulfill one or more of the following tasks under the settlement agreement: payment of a ‘public interest’ fine proportional to the benefits gained from the violations (within a limit of 30% of the average annual turnover, calculated on the basis of the latest three annual turnover numbers known at the time of the violations’ discovery); Under the supervision of the AFA, a mandatory compliance program will be implemented for a maximum of three years. In these situations, the legal entity is responsible for the costs incurred by the AFA in conducting the legal, financial, tax, and accounting review required for the audit, up to a ceiling specified in the agreement; and Compensation for any known victims who have been harmed as a result of the crime. The settlement agreement must be validated by a judge once the public prosecutor and the legal entity have negotiated its provisions (the president of the first-instance court). The Anti-Fraud Authority (AFA) will oversee the implementation of the anti-corruption program mandated by the settlement agreement. The AFA “shall report to the public prosecutor on the implementation of the programme on his or her request and at least once per year” during its supervision, and “shall report any difficulties and will also submit a report when the time limit for execution of the measure lapses.” The public prosecutor has the authority to restart the case if the settlement agreement is broken.

 

Germany

It is possible to reach an agreement during the fine procedures, according to German law, under Sections 46 and 71(1) of the Act on Administrative Offenses in conjunction with Section 257c of the Code of Criminal Procedure. The company and the public prosecutor’s office may develop an agreement in which the firm’s accommodation (for example, in the form of a confession) will be rewarded with the dismissal of the proceedings or the possibility of a fine assessment with an upper or lower limit. However, an agreement on the exact amount of the fine is not permitted.

 

Ireland

When it comes to criminal sentence in Ireland, the courts have sole jurisdiction. Formal plea negotiations or settlement agreements with the Office of the Director of Public Prosecutions are not permitted under the law. However, somebody accused in a criminal case may be able to plead guilty to a charge that is less serious than the original charge, resulting in a more compassionate sentence. The court retains ultimate sentencing power in all cases.

 

Switzerland

Individuals and organizations can petition the prosecutor to conduct accelerated procedures under Articles 358 and following of the Swiss Criminal Procedure Code (SCPC). In exchange, the accused must confess the facts necessary for a legal assessment of the case and acknowledge the civil claims, even if just in concept and where relevant. Finally, a court must approve the plea agreement in a brief trial. The accused can avoid a protracted trial by behaving in this manner. In this case, the court will issue a judgment outlining the offenses, punishments, and civil claims set forth in the indictment, to which the parties have agreed. This kind of consent is unrevocable. If the settlement agreement falls through for any reason (for example, the court does not approve it), all evidence must be discarded and a new ordinary criminal procedure with a new prosecutor must be initiated. The so-called summary penalty order procedure is another option. There is no court trial in the SCPC, according to Articles 352 and following. The conditions are quite stringent. The accused must acknowledge responsibility for the crime, or his or her guilt must be proven beyond a reasonable doubt. The penalty shall not be more than CHF 540,000 in fines or six months in prison.

 

UK

Plea bargaining and settlement agreements are not available to any defendant, whether a corporation or an individual, in criminal proceedings. Defendants can agree to plead guilty to certain crimes under the Crown Prosecutor’s Code, and prosecutors can accept this if they believe the court is “able to pass a punishment that meets the nature of the offense.” Companies can choose to enter into a DPA if the SFO believes it is acceptable to do so. While there is no such thing as plea bargaining, using a strategic approach and knowing when to oppose or cooperate with investigators can have a big impact on the investigation’s conclusion. The Attorney General’s Guidelines on Plea Discussions in Cases of Serious or Complex Fraud allow businesses and individuals to engage in pre-charge plea negotiations with prosecutors to determine how the case should be handled.

 

United Arab Emirates

There is currently no legislation that allows for this. However, if a corporation cooperates fully, this could be considered a mitigating element during sentencing.

 

United States of America

Yes. The Principles of Federal Prosecution (US Attorneys’ Manual 9-27.420) outline the factors to consider when the government is deciding whether or not to enter into a plea agreement with a defendant. The DOJ may agree to resolve criminal FCPA matters through a declination or, in suitable situations, a negotiated resolution resulting in a plea agreement, deferred prosecution agreement, or non-prosecution agreement in accordance with the principles. To be considered for a plea agreement by the DOJ, the corporation would have to acknowledge to the charges’ facts, accept guilt, and agree to be convicted of the offenses accused (DOJ).