Minimum Procedural Rights for Corporations in Corporate Criminal Procedure

Abstract

Criminal trials are special, as various procedural guarantees are only available if someone is charged with a criminal offense—but not in administrative or civil proceedings. These guarantees special to criminal justice range from the presumption of innocence over the privilege against self-incrimination (nemo tenetur se ipsum accusare) to the high standard of proof required for a criminal conviction. Whether and to which extent these guarantees apply in criminal proceedings against legal persons is primarily a question of criminal policy. There are, however limits enshrined in constitutional and human rights law, which also protect legal persons (1). If the legal consequences a legal person faces are limited to incapacitation and restitution, the constitutional and human rights guarantees special to criminal proceedings are inapplicable. They must be adhered to only if the legal consequences include genuine punishment (2). In such cases, the right to a fair trial as well as other, more specific procedural guarantees are to be upheld similarly—but not necessarily equivalent—to criminal proceedings against natural persons, as the principle of individual guilt is limping and the core of the criminal law is not affected. Nemo tenetur and ne bis in idem protection may be enjoyed by the owners, but not necessarily by the legal representatives of a corporation (3). Finally, special care must be taken in order to avoid collateral damage to the criminal justice system overall and to the individual rights of innocent stakeholders in the legal entity. Instead, the trust in the criminal justice system should be strengthened by providing more guarantees—even if they are not constitutionally required (4).