Corporations and the Privilege against Self-Incrimination

Description

This book asks whether the well-established privilege against self-incrimination applies to corporations, whether it should, and if so, to what extent. It provides research and theory on fair trial rights of corporations as defendants that is currently lacking from existing research. The research is conducted along two lines: firstly, the book analyses the origin, ratio and scope of the privilege against self-incrimination from a European perspective as well as from the perspectives of three selected national systems (Belgium, England and Wales and the United States of America). It covers the established CJEU case law in competition cases, the rulings in DB v Consob and Adler Real Estate and addresses Directive (EU) 2016/343. Secondly, it encompasses both theoretical and practical considerations, such as the relevance of privilege in relation to pre-existing documents, internal investigations and the applicability of the privilege against self-incrimination in different types of cases. It will appeal to scholars of EU criminal law, but also to white-collar and competition practitioners. Volume 18 in the series Hart Studies in European Criminal Law Acknowledgements Contents List of Abbreviations Table of Cases Table of Legislation 1. Introduction I. Corporate Offenders and Procedural Safeguards II. Corporations, Punitive Cases and the Privilege against Self-Incrimination III. Structure and Methodology 2. The Roots and Historical Rationale(s) of the Privilege against Self-Incrimination I. Nemo Tenetur Prodere Seipsum II. The Oath Ex Officio III. Torture IV. Consolidation of the Privilege against Self-Incrimination V. The Missing Piece of the Puzzle? VI. Applying the Historical Rationales to Corporations 3. How Different Are Corporations for the Purpose of the Privilege against Self-Incrimination? I. Corporate Personhood II. (Im)possibility of Exerting Physical or Psychological Pressure on Corporations III. Importance of Documentary Evidence IV. Impossibility of Exercising the Privilege against Self-Incrimination Independently V. Comparable Categories VI. Legitimate Aim VII. Objective Criterion of Distinction VIII. Suitability and Necessity IX. Proportionality Sensu Stricto 4. Contemporary Rationales of the Privilege against Self-Incrimination I. Protection from Cruel Choices II. The Protection of the Innocent III. The Privilege against Self-Incrimination and the Presumption of Innocence IV. Privacy Protection 5. Self-Incrimination 6. Compulsion I. Compulsion by Public Authorities II. Permitted Compulsion III. Adverse Inferences IV. Private Compulsion 7. The Privilege against Self-Incrimination and Different Types of Evidence I. Oral Statements II. Documentary Evidence III. Encrypted Evidence 8. The Applicability of the Privilege against Self-Incrimination Ratione Temporis 9. Waiver of the Privilege against Self-Incrimination 10. Corporations and the Privilege against Self-Incrimination I. (Supra)national Models of Corporate Criminal Liability II. Corporations and the Privilege against Self-Incrimination III. Linking Models of Corporate Criminal Liability to the (Un)availability of a Corporate Privilege against Self-Incrimination IV. The Cooperating Corporation 11. A Proposal for a Balanced Corporate Privilege against Self-Incrimination I. Different Models of a Corporate Privilege against Self-Incrimination II. A Proposal for a Balanced Corporate Privilege against Self-Incrimination 12. Overall Conclusion Bibliography Index