11 April 2013 – On March 21, the investigation chamber rendered a judgment in the ongoing judicial investigation involving Vincent Bolloré and two other executives of the company, for alleged corruption in Togo. In this critical judgement the court not only confirmed the indictment of Bolloré, but also gave conclusive clarification on the judicial treatment of individuals for alleged corruption committed by and through the company.
Leaders of the Bolloré group are suspected of having financed the re-election of the President of Togo, Faure Gnassingbé, through the intermediary of Havas, a subsidiary of the group, that under-invoiced its services in political advising. In exchange, the African leader allegedly awarded Vincent Bolloré the concession for the management of the ports of Lomé via another of its subsidiaries, Bolloré Africa Logistics.
Having qualified facts of active corruption, the prosecutor office concluded with the company Bolloré a Judicial Agreement of Public Interest (CJIP – French equivalent of a deferred prosecution agreement) under the terms of which it had to pay a fine of 12 million euros thus escaping more dissuasive penal sanctions, one of which the ban on competing for future public contracts.
In line with this current propensity to expand negotiated justice for financial crime matters, allowing avoiding the exposure of a public trial, the national financial prosecutor’s office, Vincent Bolloré and the two executives of the company have agreed on negotiating a sentence through recourse to a procedure of “guilty plea deals” (or Comparution sur reconnaissance préalable de culpabilité – CRPC) which provided for the payment of 375,000 euros fine.
However, the judge refused to approve these deals considering that the decisions were “unsuitable” in view of the seriousness of the charges and that it was “necessary” that the individuals be referred to court.
A pivotal decision in the fight against financial crimes
On March 21, the investigating chamber confirmed the indictments of Vincent Bolloré and the two company executives and rejected the motions for annulment seeking to overthrow the ongoing judicial investigations.
The investigating chamber also ruled on the autonomy between the judicial treatment of individuals and companies in matters of corruption. The Court confirmed that if the CJIP offers companies the possibility of benefiting from a system of negotiated justice, the individuals involved remain liable as legal representatives of the company.
With this judgment, the investigating chamber sanctions the tendency towards a parallelism between company’s ability to negotiate and the possibility of resorting to a criminal procedure alternative to judgment for individuals (both designed to maintain opacity). This tendency to consider a complementarity between the two procedures carries the risk of making impossible any public trial involving individuals as long as the company has had recourse to a CJIP.
The court invalidates this movement towards aligning judicial treatment of individuals and legal entities and marks a halt to the contractualization of the criminal trial in matters of financial crimes.