Although nowadays there are more and more situations in which legal entities are called to criminal responsibility for a wide range of offences, the criminal liability of a legal entity remains an incomplete and insufficiently regulated institution, which is why the current reality has known numerous practical inconveniences.
A typical example is the very common situation in which legal entities are required by the prosecution bodies to provide with information and/or documents (in copies according to the originals, very rarely in simple copies and not infrequently even in original), including clarifications, following that, at a further point in time, the same legal entities are charged with crimes related precisely to the information/documents made available and/or clarifications provided.
This approach is at the confluence of several legal provisions interpretation, but, even without much further depth of the subject, any objective observer can easily notice that, in situations mentioned above, the legal entity can be in disadvantage/injured in terms of its legitimate rights and interests in criminal proceedings.
Thus, at least apparently there can be a conflict between the right of the legal entity not to express any procedural position, i.e. not to give clarifications on the assumptions documented in the investigation, and the obligation to make the information, documents, as well as the clarifications requested available to the prosecution bodies, this conflict is often overcome by a difficulty to establish the appropriate procedural framework, in the absence of information/documents and clarifications that the legal person can provide.
WHAT ARE THE LEGAL ENTITY’S RIGHTS SUBJECT TO CRIMINAL PROCEEDINGS?
As a rule, in criminal proceedings, a legal entity has the same rights and procedural obligations as any other person indicted, with small peculiarities that can be determined by some special regulations of the legal entity statute.
Thus, the legal entity indicted in a criminal trial has fundamentally the right to a fair trial and to defend itself, the latter essentially including the right not to give any statement (to be read as the right not to express any procedural position, given that the participation of the legal entity within the criminal process always takes place through a representative) and the right not to contribute to his own prosecution, the so-called privilege against self-incrimination.
Although, as a concept, the right to a fair trial implies ensuring fairness throughout the criminal proceedings, strictly formally, in the Romanian procedural law, the procedural rights are guaranteed starting with the acquisition of the quality as a part in the file, so that in practice not infrequently in the beginning of the investigation the emphasis is placed by the prosecution bodies only on obtaining data and information, the effective ensuring of the procedural rights being easily neglected.
In this context, however, mention should be made that in the jurisprudence of the Romanian Constitutional Court it was underlined the need to extend the requirements imposed by the right to a fair trial also on the initial stages of the criminal trial, in this respect being rendered the decisions no. 599/21.10.2014 and no. 641/11.11.2014, which, at a close look, have not yet come to receive the proper attention.
WHAT DOES THE PRIVILEGE AGAINST SELF-INCRIMINATION ENTAIL?
In essence, the privilege against self-incrimination is a fundamental principle in criminal law, which implies that the state cannot compel a person (a suspect) to cooperate with judicial bodies by providing evidence that could incriminate him. In this register, it should be considered that the evidence, as a notion, has a broad meaning, designated by Article 97 of the Criminal Procedure Code, that is to say any element of fact which serves to establish the existence or non-existence of a crime, to identify the person who committed it and to know the circumstances necessary for the just settlement of the case and which contribute to finding out the truth in the criminal trial.
It can thus be observed that the degree of protection granted under the dome of privilege against self-incrimination is at a maximum level, since, on the one hand, conceptually, there is no exception in which the beneficiary of this privilege is obliged to collaborate with the judicial bodies, and, on the other hand, the interpretation of the notion of evidence may have the broadest meaning that the person concerned (and interested) may give in order not to be in danger of incriminating herself.
This approach has proved to be necessary in practice, starting from the so-called "theory of the three difficult choices faced by the person", reinforced in the E.C.H.R. jurisprudence, according to which it is not normal to ask the alleged perpetrator to choose between being sanctioned for refusing to cooperate, providing the authorities with incriminating information or lying and risking being convicted for it (Weh v. Austria).
Moreover, in the legal doctrine and in the jurisprudence of the national courts has been constantly supported, as a principle, the opinion that the witness would not commit the crime of false testimony if, in order not to blame himself for committing a crime, he makes untrue statements or, with intent, he passes under silence certain essential circumstances about which he was asked.
DOES THE LEGAL ENTITY BENEFIT FROM SELF-INCRIMINATION PRIVILEGE?
The answer to this question can only be affirmative, since there is no legal basis regulating such an exemption from the exercise of the fundamental rights that a person charged in criminal matters is benefiting.
In other words, if there is a possibility that a criminal charge may be brought against a legal entity, then the latter must benefit from all the guarantees of a fair trial, which also includes the privilege against self-incrimination.
Moreover, the E.C.H.R. has come to support this conclusion, in its jurisprudence showing that to the extent that a criminal charge is brought against a legal entity, the guarantees provided by the European Convention for the Protection of Human Rights and Fundamental Freedoms, including those established by Article 6 of the Convention on the right to a fair trial (one of the components of this right is also the right to defense), there are also incidents concerning the legal entity (e.g. relevant in this respect have the rulings in the cases Fortum Oil and Gas Oy v. Finland and PayKar Yev Hagtanak Ltd vs. Armenia).
A pragmatic analysis on the effectiveness of this privilege regarding legal entities shows that in many cases the latter are called upon to provide the prosecution bodies with documents, certain data and information as well as clarifications in their respect, which subsequently may come to substantiate the criminal charges made in those cases.
To the extent that, regardless of the framework circumstances in which the documents, data, information and/or clarifications were requested, the allegations also come to be made against the legal entity who provided the information, the question of violation of the privilege against self-incrimination becomes obvious.
WHAT IS THE APPLICATION MECHANISM WHICH MAY BE ACCESSED BY LEGAL ENTITIES IN THIS SITUATIONS?
First of all, it must be said that the problem identified has proved to (still!) have a reduced importance through the judicial bodies perspective, since at the national level the privilege against self-incrimination is regularly viewed in the light of the Article 118 of the Criminal Procedure Code provisions, which enshrines the right of the witness not to accuse himself, and not in the light of the guarantees that Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ensures.
Generically, the mechanism provided in Article 118 of the Criminal Procedure Code establishes that, when a person is heard in court as a witness in criminal proceedings, the statement thus obtained cannot be used against him, if he subsequently acquires the procedural status of suspect or defendant.
Considering that making available to the criminal prosecution bodies, by a legal entity, of the documents, data, information and/or clarifications requested does not constitute a hearing of witnesses within the explicit meaning of the provisions of Article 114 and the following of the Criminal Procedure Code, apparently the mechanism provided for in Article 118 would not apply typically to legal entities.
In a less restrictive interpretation, however, based on the definition provided for in Article 114 (1) of the Criminal Procedure Code according to which the witness may be "any person (our note: without distinction between persons or legal entities) who have knowledge of facts or circumstances of fact constituting the evidence in the criminal case", it can reasonably be considered that any data, information, documents and/or clarifications in connection with them, expressed by a legal entity in writing, is equivalent to a statement given by the legal entity, similar to the declaration recorded by the judicial bodies according to the provisions of Articles 123 and 110 of the Criminal Procedure Code.
Therefore, it appears obvious that in a such situation, the provisions of Article 118 of the Criminal Procedure Code bind the prosecution bodies not to use the "declaration" of the legal entity (our note: to be read as the procedural position expressed in writing by the legal entity regarding the data, documents and/or clarifications requested by the criminal prosecution bodies) against it, i.e. not to use it to substantiate the criminal charge made at a later time against the legal entity.
The clarity of this conclusion is reinforced by the ECHR's established jurisprudence in the field of privilege against self-incrimination, referred to above. Apart from the theoretical perspective of the regulated procedural mechanisms in order to effectively ensure the fundamental rights that any accused person in criminal matters must benefit from, in practice it was possible to find a very wide range of interpretations as to what it means that a declaration should not be used against the person who gave it.
Thus, if in a very restrictive interpretation (i) some prosecution bodies considered that it was sufficient for the declaration not to be used formally, i.e. not to be mentioned in the procedural act of indictment of the person concerned, (ii) other prosecution bodies went with the interpretation to where they accepted that the person in question has every right not to make any kind of statement. In the first instance, there is obviously an infringement of the right of the defense, in view of the lack of effectiveness of the privilege against self-incrimination, since the facts provided to the prosecution bodies contribute to the formulation of the accusation, such a construction being tainted ab initio.
Moreover, the only situation that can unreservedly ensure the effectiveness of fundamental rights is that the factual elements provided to the criminal prosecution bodies by the legal person are not at all used in the case, even for the construction of allegations related to those made against the legal entity (person) who provided them, a situation that can be identified more easily in the second hypothesis mentioned above.
The criminal liability of the legal entity is an institution that certainly in the national law has not yet reached its maturity, being in a continuous expansion, determined in particular by the contribution of legal professionals who have identified problems but also procedural remedies regarding the functioning of mechanisms that ensure the full effectiveness of fundamental rights in criminal proceedings.
On this background, out of a common desire to contribute to the improvement of these mechanisms functioning, it is important that in the practice of the prosecution bodies the standard of analysis comes down from the high degree of abstraction of criminal procedural institutions when it comes to their reporting to the situation of legal entities, especially when the latter are asked for clarifications on the documents, data or information received from them.
Considering the evolution of criminal procedural law, especially in recent years, by reference to the decisions of the Romanian Constitutional Court, which mark a trend in the direction of establishing the procedural balance between the prosecution and the defense, it is necessary for all the parts involved in criminal trial to step forward and to regard the legal entity in the criminal trial as a subject with full rights and obligations, and not as a mere precarious holder of data, information and/or documents.
In parallel, it is the legal entities themselves who must take a preliminary examination of any request received by the prosecution bodies to provide data and information, documents and/or clarifications concerning or related to their activity to conclude that there is no risk of self-incrimination, having all procedural legitimacy in this respect, in order to respect and guarantee their fundamental rights.
This is all the more so since, considering the current regulation, the legal person is criminally liable for the crimes committed in carrying out the object of activity or in the interest or on behalf of the legal person, which implies both a wide range of crimes for which the criminal liability of the legal person may be drawn and a very wide margin of discretion on the part of the judicial bodies as to what syntagma implies "in the object of activity realization or in the interest or on behalf of the legal entity".
By Adrian Chirvase, Partner, Popescu & Asociatii