GAB is pleased to welcome back Frederick Davis, a lawyer in the Paris office of Debevoise & Plimpton, who contributes the following guest post:

Most countries prohibit multiple prosecutions for the same acts or offenses. This is known in the United States as the prohibition against “double jeopardy”; in Europe and elsewhere the principle is known as ne bis in idem. But what happens if a person or company is pursued in more than one country? This question is particularly relevant to the fight against foreign bribery, where the same act will often offend the criminal laws of multiple countries. The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, adopted in 1997, clearly anticipated the possibility of multi-state prosecutions, but provided in Article 4.3 only that the relevant authorities should “consult with a view to determining the most appropriate jurisdiction for prosecution,” a provision that has been consistently interpreted as precatory, not providing an individual right against double prosecution.

The law in the United States provides no protection against duplicate prosecution by a different sovereign. The situation is more complex in Europe. In some countries, such as France, domestic legislation limits a prosecutor’s power to pursue a person or entity already the object of a prosecution in another country, but only if the exercise of French jurisdiction is “extraterritorial” (that is, where no constitutive act of the alleged crime took place on French territory, but the prosecution based on some other factor, such as the French nationality of the accused or the victim).  Within Europe, a series of overlapping treaties—Protocol Number 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms (CPHRFF), adopted in 1984 by the Council of Europe and signed by most but not all of its members; Article 54 of the Convention to Implement the Schengen Agreement (CISA), adopted in 1990; and Article 50 of the Charter of Fundamental Rights of the European Union (CFR) adopted in 2009—all contain ne bis in idem provisions, though they are not identical. (The CISA provision, for example, protects against re-prosecution based on the same “acts,” while the CFR and CPHRFF protect against multiple prosecutions for the same “offense.”)  The CISA provision has been expansively interpreted by the European Court of Justice, which has noted that CISA mandates a “mutual trust” in the criminal justice systems of other signatory countries, and respect for their decisions “even when the outcome would be different if [the second country’s] own national law were applied.”

Lurking behind these and other developments in Europe is the possibility that protection against multiple prosecutions may one day be viewed as right, grounded in international treaty obligations, that is cognizable under domestic constitutions. No court has yet so ruled, but there are sufficient intimations of such a possibility in some French decisions, for example, that the issue is frequently raised there.

In 2015 and 2016, two French courts issued interesting opinions interpreting the ne bis in idem provision of Article 14(7) of the International Covenant on Civil and Political Rights (ICCPR).  The decisions, which are not officially published but have been described and are available online, arose in separate cases involving prosecutions under France’s overseas bribery law. Both cases involved the UN’s so-called “Oil-for-Food” program, in operation between 1995 and 2003, which allowed Iraq—then under international sanctions—to sell oil on world markets in exchange for food, medicine, and other humanitarian supplies. The program was riddled with corruption, leading to multiple investigations.

• In June 2015, a trial court in Paris ruled that four French companies could not be prosecuted because their corporate parents had entered into either a Deferred Prosecution Agreement (DPA) or Non-Prosecution Agreement (NPA) with the US Department of Justice in connection with alleged violations of the US Foreign Corrupt Practices Act (FCPA) arising out of the same underlying conduct. After ruling that the French domestic legislation noted above did not apply because relevant acts took place in France, and without discussing the European treaties noted above (which did not apply to prior prosecutions outside of Europe), the Court ruled that Article 14(7) of the ICCPR, which has been signed by both the United States and France, prohibited prosecution of the French companies under French law. The court acknowledged that the companies’ corporate parent had not been criminally convicted—the whole point of a DPA/NPA is to avoid an official conviction, or in the latter case even a formal accusation—but the trial court nevertheless concluded that because the parent company had paid penalties to the US authorities based on the same facts that would support a criminal prosecution, the ICCPR barred re-prosecution. That decision is now on appeal, and a decision is expected in 2017.
• In 2013, in a case against different defendants also implicated in the Oil-for-Food scandal, a French trial court had relied on the ICCPR to bar prosecution of a corporate defendant that had pleaded guilty in New York state court. However, in February 2016, the Paris Court of Appeals reversed that decision, on the ground that while the “acts” were the same, the “offense” was not. The company had pleaded guilty in New York state court to aggravated larceny rather than to foreign bribery—the former, not the latter, constituting a state law offense. The appellate court ruled that the French prosecutor remained free to prosecute the company for the different – and implicitly more important – crime of bribery, even though the penalty paid in New York vastly exceeded the maximum penalty permitted under the French overseas bribery law.

These decisions raise a host of questions. If the 2015 decision is confirmed on appeal and adopted elsewhere in Europe, this will encourage companies to negotiate a DPA or an NPA in the US and then use such an outcome to bar prosecution elsewhere. However, there will be no similar incentive to negotiate with non-US prosecutors since the US federal courts have regularly ruled that the ICCPR, as a non-self-executing treaty, confers no personally enforceable rights in the United States. And by emphasizing that the ICCPR (along with CISA and the CFR) protects only against re-prosecution for the same “offense,” the 2016 Court of Appeals decision clearly intended to introduce an element of flexibility, permitting a second state to justify re-prosecution by differentiating the importance of the prior “offense.” Nonetheless, these developments, while not seamless, make substantial progress towards recognizing a principle of “international double jeopardy,” which so far the United States has failed to do.