The Act, among other things, introduces the possibility of using deferred prosecution agreements (DPAs) in the resolution of cases involving certain types of crimes. Thus, the Act supplements the CPC with a new Part VIIA, dedicated to such agreements, which, according to its provisions, constitute an agreement between the public prosecutor and the accused person or the person against whom proceedings are being conducted in the context of an alleged crime, whereby:

(a) the person agrees to comply with the requirements imposed on him or her by such agreement; and

b) the public prosecutor agrees that, upon approval of the agreement by the Supreme Court under section 149F [approval of the DPA by the court], sections 149C [legal effect of the DPA in proceedings during its period of validity] and 149I [termination of the DPA] apply in proceedings pending against the person in the context of the alleged offense.

A deferred prosecution agreement may be used by corporations, limited liability companies, partnerships or unincorporated associations (but not by natural persons) and only before the case is brought to trial. The offenses for which this type of instrument may be used include, inter alia, corruption offenses: accepting and giving bribes, bribery intermediation, corruption in procurement.

The deferred prosecution agreement must contain:

• an indictment or a draft thereof (drawn up by the prosecutor) in relation to the alleged offense;
• a statement of the circumstances of the case in which may be presented, including the confession of the person entering into the DPA;
• the obligations imposed on the person entering into the DPA, which may include obligations to:
  1. pay a financial penalty to the public prosecutor;
  2. compensate victims of the alleged offense;
  3. pay a donation to a charitable organization or other disinterested person;
  4. return the proceeds unlawfully obtained as a result of the alleged offense;
  5. implement a compliance program or take steps to improve an existing one regarding internal policies or employee training, or both;
  6. designate an individual who will:
     • Evaluate and monitor internal controls;
     • advise the parties to the agreement of possible improvements to the compliance program that are necessary or that will reduce the risks of repetition of misconduct prohibited under the DPA; and
     • inform the prosecutor of any violations in the implementation of the compliance program or internal controls;
  7. Ensure cooperation during:
     • any investigation related to an alleged offense; and
     • any investigation involving the possible commission of an offense by a director, employee, or agent of the person entering into the DPA, the commission of which was made possible in whole or in greater part by facts similar to those preceding the commission of the alleged offense for which the DPA is entered into;
  8. pay any reasonable costs incurred by the public prosecutor in the proceedings in respect of the alleged offense.

The agreement shall not become effective until the Supreme Court has affirmed that:

• it is in the interest of justice;
• its terms are fair, reasonable and proportionate.

Currently, deferred prosecution agreements are already in use in a number of countries. The country with the most active use of DPAs is the U.S., where this instrument, along with non-prosecution agreements (NPAs), is most often used by prosecutors in cases involving violations of the Foreign Corrupt Practices Act (FCPA). In addition to the U.S., the possibility of entering into deferred prosecution agreements is provided for in the legislation of the United Kingdom, France, Brazil, and there are discussions on the possibility of