In 2015, PRI conducted some preliminary internal research into plea-bargains – an agreement by which the defendant agrees to plead guilty in exchange for a concession from the prosecutor, usually a lesser charge or a reduced sentence. This is agreed upon in advance, approved by a judge, and a full trial is avoided.
Over 30 countries operate plea-bargaining systems, although the models vary.
During the course of the research, the French system was identified as a comparatively good practice model which avoids some of the abuses identified in other systems. Under the French Penal Code, plea bargaining can be used for minor offences and any sentence of imprisonment proposed in the bargain may not exceed one year. PRI asked Akila Taleb-Karlsson, Lecturer in Criminal Law and Criminal Justice at the Law Faculty of the University of Toulon, to describe the French model.
The “Comparution sur reconnaissance préalable de culpabilité” (CRPC) is a pre-trial guilty plea procedure that was introduced in France in 2004. As enshrined in articles 495-7 to 495-16 of the French Criminal Code of Procedure (CCP), this form of criminal prosecution for offences which carry a prison sentence up to 10 years, entitles the prosecutor to impose a sentence on the offender who has consented to the procedure and pleaded guilty beforehand. The guilty plea can be initiated by the prosecutor, the offender or his/her counsel. However, if the prosecution and the defence disagree, the decision rests with the prosecutor who thus has the final word in the matter. Once the offender has accepted the sentence – or ‘the plea-bargain’ – a request is filed to the Court for the judge’s approval or rejection of the whole procedure.
Unlike diversion from prosecution (e.g. cautions), the French guilty plea – being a form of prosecution – implies that the prosecution can determine any sentence including a prison sentence of one year maximum. The prosecutor can also decide that the offender should be fined. In such circumstances, he/she determines the amount of the fine taking account of the defendant’s professional situation and financial resources.
As mentioned above, the targeted offences are those specified in article 495-7 of the CCP namely those carrying a prison sentence of 10 years or less. Nevertheless, the French guilty plea is excluded for certain offences especially those which, by nature, imply an adversarial debate (e.g. involuntary manslaughter) or offences whose proceeding is defined by a special law (e.g. offences related to the media, political offences). Besides, the CRPC cannot be triggered if the offence constitutes a crime under French law. For instance, there is no such procedure available for offences such as murder or rape.
To be more specific, the French guilty plea procedure involves two phases: the ‘sentence proposal’ phase and the ‘approval hearing’ phase.
The ‘sentence proposal’ phase
This initial phase involves a brief discussion between the offender, his/her lawyer and the prosecutor about the facts of the case so the prosecutor can decide what sentence it considers the most appropriate according to the seriousness of the offence as well as the offender’s personal and professional situation. It should be noted that under the French procedure, the assistance of a lawyer is mandatory. During this meeting which is not open to the public, the prosecutor – after a brief summary of the facts – asks the offender who is assisted by his/her lawyer to confirm that he/she has committed the offence. The prosecutor then proposes a sentence which the offender is free to accept or to refuse. The offender may also be granted a reflection period of 10 days before communicating a decision.
If the defendant does not accept the sentence, he/she must be informed that the case will be tried the “normal way” (i.e. through the traditional criminal justice process with a full trial: a hearing dedicated to determine the innocence/guilt of the accused followed by a sentencing hearing) before the Correctional Court with no prior agreement on the sentence and consequently, without an opportunity to have a less harsh sentence imposed. If, however, the offender consents to the procedure and accepts the sentence, the case reaches the second phase.
The ‘approval hearing’ phase
This second phase takes place promptly after the prosecution and defence have reached an agreement. During this public hearing, in which the prosecutor’s presence is not required, the judge ensures that the charges and the prosecution case are factually and legally correct and that they match with the defendant’s confession. Moreover, the judge verifies that the sentence proposed by the prosecution and accepted by the offender is appropriate (with regard to the seriousness of the offence and the defendant’s personal situation). If the judge has any doubt on the case or if he/she deems the sentence is not appropriate, the judge can only disapprove the procedure and send the case to be tried before the Court. In other words, the judge can neither impose nor propose a new sentence that he/she would believe to be appropriate. In case the judge approves the guilty plea, a court order is issued and read in public. The order contains the reasons (legal grounds) for such a decision and has the same effects as a judgment/order of a court. Therefore, if no appeal is lodged, the order is comparable to an enforceable court judgment (i.e. the order acquires the force of res judicata).
An effective alternative?
Why would such a procedure be of interest to an inquisitorial system of criminal justice such as France? If it is the case that the French legislator has been largely influenced by the Anglo-Saxon guilty plea procedures, the CRPC is clearly aimed at both simplifying and speeding up the process before the Correctional Court – which handles a large number of criminal offences – so that it can rather devote its time and resources to more complex cases. Therefore, the French guilty plea appears to be a cost-effective solution in a criminal justice process that places its greatest weight on crime control and managerialism.
Contrary to the due process model which insists on liberty, fairness and the protection of the defendant’s rights, the crime control model, to evaluate criminal justice, focuses on security, efficiency and the promptness of the system in convicting the guilty. Additionally, the managerial approach which aims at dealing with the criminal justice system as if it was a company introduced the concept of performance and competitiveness. Managerialism (also referred to as “New Public Management”) promotes a results-based culture rather than a resource-based culture to increase the performance of each service by making ministers act like managers accountable for their actions. It has successfully spread to the point that delivering simple, speedy and summary justice now appears to be an overriding concern in many European countries, with fast-track and simplified procedures becoming more and more common, including in French criminal policy.
Simply put, when the case is straightforward and does not require any further investigation, when there is a clear admission of guilt, the CRPC is a relevant alternative to the traditional criminal justice process. France has thus complied with the relevant European recommendations (e.g. the need for implementing simplified procedures and among them guilty plea procedures) and has joined many other European countries by introducing a guilty plea coupled with the incentive of a lesser sentence.
In so far as the CRPC normally applies to cases ready for final judgment, the average length of this procedure is no more than 5-6 months (Directorate for Criminal Matters and Pardons’ figures). Hence, the need for efficiency and swift procedure can be observed when reading statistics of the Minister of Justice since the use of the CRPC has increased in the past year by 6%.
Moreover, since the scope of the CRPC was extended to almost all “délits” that is to say offences carrying a sentence up to 10 years imprisonment, there is no doubt that when custodial sentences should be imposed, the CRPC remains appropriate. Nevertheless, and as a matter of fact, because the use of the CRPC depends on the personality of the defendant and especially his/her willingness to admit his guilt, such a procedure should be a priority when a non-custodial sentence appears to be appropriate or at least when a sentence adjustment is sought by the parties and the judge.
The CRPC which has been used now for over a decade has proven its worth particularly in minor and mass offences (‘contentieux de masse’). Yet, because this form of criminal prosecution is applicable for offences which carry a prison sentence up to 10 years and entitles the prosecutor to impose a sentence of no more than one year imprisonment, the pressure on the defendant may be problematic. There is a risk that where a change of plea to guilty leads to a lesser sentence or when it does not involve a custodial sentence, a culture of negotiation is introduced thus creating an obvious and unacceptable disproportionate focus on the procedure at the expense of the defendant’s rights.
‘The CRPC [pre-trial guilty plea procedure] which has been used now for over a decade has proven its worth particularly in minor and mass offences.’
Therefore, an impartial and independent judicial oversight of the procedure remains essential. Indeed, on several occasions, the judges of the European Court of Human Rights who are, as a last resort, responsible for ensuring that fast-track procedures including guilty pleas are properly administered have recalled that “[i]t is important to bear in mind that when consenting to a guilty plea, a defendant waives several rights, including (…) the right to trial. (…). It is [thus] essential that the defendant’s plea must always be made voluntarily and free from any improper pressure (…). Judges should exercise adequate control over (…) agreements and see to it that these safeguards are fully implemented in practice”.
About the author
Dr. Akila Taleb-Karlsson currently holds the position as a Lecturer in Criminal law and Criminal Justice at the Law Faculty of the University of Toulon (France) and is the Director of studies – LLM programme “Personne et procès” (Toulon). She has completed a PhD in Criminal Law and Criminal Justice alongside which, she has worked as a Legal consultant at the Pre-Trial Chamber of the Special Tribunal for Lebanon (STL-Leidschendam, The Netherlands). She has also worked as a temporary lecturer and a research assistant at the Universities of Lyon 3, Lyon 2 and Lyon I and as a caseworker at the prosecution department of the Court of Appeal of Lyon (France). Her articles published in various legal journals particularly focus on comparative Criminal Law and Criminal Justice in light of the European court of Human Rights’ case-law.
 Council of Europe, Committee of Minister, The recommendation No. R (87) 18 of the Committee of Ministers to members States concerning simplification of criminal justice, Adopted by the Committee of Ministers on 17 September 1987 at the 410th Meeting of the Ministers’ Deputies, http://www.coe.int
 Minister of Justice 2016 statistics, p. 14, http://www.justice.gouv.fr
 ECrHR, 3rd Section, Case of Natsvlishvili and Togonidze v Georgia, Application no. 9043/05, 29 April 2014, http://www.hudoc.echr.coe.int
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