Fight impunity for corporate crimes by investigating and prosecuting offences
States have a duty to protect against human rights abuses committed by corporate actors. This includes addressing issues of political will, adopting adequate regulations, prohibiting corporate crimes, investigating abuses and providing an effective remedy. Where there are gaps in the existing legal frameworks, States must adopt or amend laws. States must also guarantee the safety and independence of investigators and prosecutors to pursue corporate crimes.
Law enforcement plays a central role in ensuring justice. They can face significant personal risks and other obstacles in doing so. Yet to fight impunity, law enforcement must take action to confront the challenges of pursing corporate crimes head-on, including the inherent complexity and power of corporate actors.
Investigators and prosecutors interviewed by the Project Advisers acknowledged that in some States a significant obstacle to justice in corporate crimes cases is the influence corporate actors may have over governments and regulatory systems, either directly or indirectly. For example, in some cases it may not be in the interest of government authorities to pursue a corporate entity or its directors for corporate crimes due to personal and professional relationships, or financial and/or other aligned interests between the corporate actor and the State. Individual investigators or prosecutors may be pressured into, or rewarded for, turning a blind eye. On the other hand, if they do decide to act in that situation and pursue corporate actors for illegal activities, they may face real personal risks and find their safety compromised.
Where law enforcement does have the independence to act, corporate crimes cases still often receive less priority than other domestic offences. There are many reasons why corporate crimes cases receive insufficient attention. Examples include a lack of experience with such cases among investigators and prosecutors as well as internal pressures to close cases quickly and successfully. Additionally, corporate crimes cases can generally be seen as more complicated, requiring specialised knowledge and additional resources. They can involve a large number of actors: the company itself, its subsidiaries and affiliates as well as those directors, employees and agents acting on their behalf. In some jurisdictions, laws applicable to corporate crimes may set out specific or even unique legal tests for establishing liability that are challenging to meet. Other jurisdictions may not criminalise serious human rights abuses in line with international law or may not provide for the criminal liability of corporate actors.
In some cases, very specific evidence (e.g. senior level involvement in the crime) may be required to satisfy the legal standards needed to charge or prosecute. Finding the right evidence may require particular expertise that individuals considering the case may not have, including an understanding of corporate and management structures or recovering and analysing large amounts of financial, commercial, electronic, telecommunications and digital data. Moreover, some of that evidence may be under the control of the relevant corporate actor.
Corporate actors may also have greater financial, legal and technical resources to fight a case than other investigative targets. For example, although the financial burden of defending a case is high, wealthy corporate actors could more easily afford to retain many of the more specialised technical and financial experts, consequently leaving prosecutors and investigators with few experts at their disposal.
The cumulative effect of these challenges is the perpetuation of a culture of impunity for corporate crimes. Where illegal conduct goes unchallenged, victims are left without effective remedies and there is little deterrent against future abuse.↥ Back to top
Issues of political will must be tackled head-on: States must make accountability for corporate crimes a priority. Where there are gaps in the existing legal frameworks, States must adopt or amend laws.
States must also create an environment that is conducive to pursuing corporate crimes cases. States must ensure that law enforcement is incentivised to pursue corporate crimes and has the necessary tools and resources, institutional capacity, independence and impartiality to do so. States should provide targeted training and guidance on corporate crimes.
Law enforcement must also be free to pursue corporate crimes cases without fear of reprisals or undue influence. Senior officials in government must regard the independence and impartiality of investigators and prosecutors as sacrosanct. Where required, States must build specific protections into the system. These could include legal measures (e.g. statutory requirements that ensure transparency about how and when ministers have oversight of the prosecutor’s office) and sanctions to protect the independence and impartiality of law enforcement, as well as practical measures to ensure their personal security and that of their families.
For its part, law enforcement officials must be committed to fight impunity for corporate crimes. In particular, they should take steps to ensure they feel able to take corporate crimes cases forward, having both the confidence and skills required to do so. They should also take steps to ensure they are properly equipped to address corporate crimes cases, including through accessing training as well as global expert networks and corporate intelligence specialists (e.g. individuals or offices familiar with techniques or technologies for investigating corporate transactions or asset tracing). When pursuing corporate crimes cases, law enforcement should take appropriate measures to protect themselves from harassment, intimidation, threats of violence or other reprisals.
Ultimately, law enforcement must make as strong a commitment to the investigation of corporate crimes as it does to the fight against other types of serious crimes. They should recognise the merit of pursuing these cases and be aware of the diversity and types of illegal acts that can constitute corporate crimes in their jurisdiction. Priority should be given to cases that are of strategic value or importance, will set or build a precedent or are likely to be successful. This will build knowledge and expertise, and make it more likely that additional resources and support will be made available by the State to pursue future cases.
Law enforcement should consider the following factors when prioritising corporate crimes cases for investigation and, if appropriate, prosecution:
- Whether the crime involves human rights abuses;
- The public interest in pursuing the case, including the potential harm or risk to society for not doing so;
- The history of wrongdoing of the corporate actors involved;
- Whether the corporate actors benefitted or could have benefitted from the wrongdoing;
- The deterrent effect of pursuing the case; and
- The availability, or unavailability, of alternative accountability mechanisms (i.e. will the failure to pursue a criminal case mean that the victims will not obtain effective remedies).
In pursuing cases, it must also be remembered that enforcement has to be executed in a manner that is consistent with international and national laws for procedural fairness, particularly with respect to individuals who are accused.↥ Back to top
The importance of protecting prosecutors’ personal safety to ensure that they are free from intimidation, hindrance, harassment, improper interference, unjustified exposure to civil, penal or other liability or reprisal when discharging their duty in pursuing cases is recognised by international organisations, such as the International Association of Prosecutors (IAP).
The IAP is a global organisation of prosecutors with representatives from over 170 countries. It was established in 1995 primarily to address the rapid growth in serious transnational crimes, including drug trafficking, money laundering and fraud.3 Its aim is to set and raise standards for the professional conduct and ethics of prosecutors; promote the rule of law, fairness, impartiality and respect for human rights; and improve international cooperation to combat crimes.4
In 2008, the IAP adopted the Declaration on Minimum Standards Concerning the Security and Protection of Public Prosecutors and their Families. 5 The Declaration established standards that States should abide by in protecting prosecutors and their families from threats to their safety and security as a result of their work. The Declaration, consisting of fourteen principles, establishes that States should take appropriate steps to assess the security risks facing prosecutors and their families, and implement measures to ensure they are physically protected. When threats, violence, harassment or other forms of intimidation or inappropriate forms of surveillance occur, States should ensure that such incidents are fully investigated and steps are taken to prevent reoccurrences.↥ Back to top
The prosecution in Belgium of multinational company Carestel (now Auto-Grill) and German company Kronos for human trafficking demonstrates how prioritising the investigation and prosecution of certain types of crimes can encourage police and prosecutors to pursue cases even if they are resource-intensive and complex. Belgium’s multi-disciplinary and collaborative approach to tackling human trafficking also provides lessons relevant to Principle 5 (Collaborate widely to ensure accountability for corporate crimes, particularly in cross-border cases).
In 2012, following an extensive criminal investigation that began in 2006, Carestel and Kronos were found guilty of human trafficking for the purposes of labour exploitation under Article 433 of the Belgian Penal Code.6 Carestel managed various motorway service stations in Belgium. It outsourced the cleaning of the bathrooms to Kronos, which was responsible for hiring and managing staff. The investigation started after a routine visit by labour inspectors found that cleaners in the restrooms were subject to harsh working conditions.7
The cleaners hired by Kronos came mostly from Eastern Europe, had been brought into Belgium illegally and worked seven days a week for fifteen hours a day for about three to four euros per hour.8 The cleaners worked as self-employed sub-contractors who are not protected under Belgian labour laws on wages and working hours.9 The cleaners had signed contracts they did not understand, were unaware as to whether they were working as employees or independent contractors, lived in a house owned by Kronos and were transported by Kronos staff to and from the various locations they worked every day.
The court ruled that Kronos was guilty of human trafficking and that Carestel was also guilty as an accomplice under Article 66 of the Belgian Penal Code.10 Although Carestel claimed it was not responsible for the actions of Kronos as a sub-contractor, the court found that it willingly and knowingly collaborated with Kronos and that such collaboration resulted in an illegal act. At the very least, the court ruled, Carestel willingly and knowingly collaborated with Kronos in awareness and acceptance of the risk of such collaboration. The court fined Kronos €528,000 (then US$649,000) and Carestel €99,000 (then US$122,000).11
The fact that human trafficking is a priority area for the Belgian government played a key role in enabling the prosecution of cases such as the Carestel/Kronos case. Since 1999, the Ministry of Justice (MOJ) and the Board of Prosecutors General have issued a directive to law enforcement agencies outlining national policy on the investigation and prosecution of human trafficking, which is reviewed by the MOJ’s Criminal Policy Department on a yearly basis.12 The Directive provides standardised guidance on investigating and prosecuting human trafficking cases, including recommendations on investigative methods in more complex cases. It sets out criteria for which cases to prioritise, including the young age of the victims, the extent of the infringement on human dignity, the degree of violence used or threatened, elements pointing to the repeated occurrence of the offence, and elements revealing the major social impact of the offence. The Directive also promotes a multi-disciplinary approach to trafficking, providing for collaboration and regular information and data sharing between judicial officials and law enforcement, as well as between local and national authorities.↥ Back to top
The partnership between the UN International Commission to Combat Impunity in Guatemala (known by the Spanish acronym CICIG), the Guatemalan Prosecutor General’s office and the “high-risk” courts demonstrates how international cooperation can help to overcome the political hurdles inherent in the investigation and prosecution of high-profile human rights cases.
CICIG was created at the request of the Guatemalan government to deal with the extremely high levels of impunity for violent crime, parallel criminal structures and a lack of progress on human rights cases from the internal armed conflict in Guatemala that resulted in the deaths of nearly 200,000 people, mostly indigenous persons.13
CICIG is mandated to support the Guatemalan judicial system and operates under Guatemalan law. CICIG may act as a prosecutor, with the authority to initiate investigations into “illegal security groups” and “clandestine security structures”, defined as groups that “commit illegal acts that affect the Guatemalan people’s enjoyment and exercise of their fundamental human rights, and have direct or indirect links to State agents or the ability to block judicial actions related to their illegal activities”.14 CICIG can also file administrative complaints against public officials, and particularly those that seek to impede the functions of CICIG.
While CICIG is unusual in that it has independent investigative authority, it nonetheless depends upon Guatemalan authorities to investigate and adjudicate cases.15 It was therefore essential for CICIG and the international governments who support CICIG, including the United States and other western donors, to encourage the appointment of independent prosecutors and judges to process these cases. CICIG and its supporters therefore publicly monitored and reported on the proceedings to select these judicial personnel and CICIG also investigated sitting judges for failing to properly adjudicate high-profile cases.16
A key component of CICIG’s success has been its focus on the security of Guatemalan judicial personnel, who are the subject of violent threats and extortion by powerful criminal networks. CICIG and its supporters contributed to the creation of “high-risk” courts that adjudicate cases concerning human rights and organised crime.17 While these courts continue to face significant political barriers, they have been successful in overcoming many such barriers to prosecute high-level military personnel involved in mass atrocities committed during the armed conflict.18
CICIG’s efforts to promote the independence of the Prosecutor General’s office also contributed to the nomination of the first female Prosecutor General of Guatemala who played a significant role in reducing rates of impunity in Guatemala for atrocities committed during the armed conflict. All of these efforts contributed to a wave of high profile arrests, including the arrest of the then-President of Guatemala, Otto Perez Molina, on major corruption charges.19↥ Back to top