Negotiating the Truth in the Interests of Justice? On the Different Models for Controlling Corporate Crime

The typical trial-centred systems of criminal justice based primarily on the strict application of substantive criminal law (definition of offences and punishments) have reached their functional limits in most parts of the modern legal world. As a result, new sanction models and out-of-court penalties, administrative and discretionary case disposals, alternative forms of ‘conflict’ resolution including mediation and plea bargaining, informal enforcement techniques, and other procedural arrangements for shortening, simplifying, or avoiding the criminal investigation and trial have emerged at unprecedented levels in legal orders affiliated both with the civil law and the common law tradition. These mechanisms and legal institutions are primarily designed to enhance the effectiveness of justice administration in terms of procedural economy and satisfactory statistical results. At the same time, the widespread development of softlaw instruments and new strategies for improved national and transnational cooperation between law enforcement agencies, legal professionals, and natural and legal persons seek to shift the focus of crime control from repression to prevention.

This presentation of a work-in-progress project focuses on modern and alternative enforcement and conflict resolution models in criminal matters with special regard to the use of prosecution agreements to address corporate crime. In legal orders with a long tradition of plea bargains and with rules recognizing the criminal responsibility of legal persons, such as the USA and the UK, prosecution officers and judges, more than ever before, may be called upon to decide whether it would be in the interests of justice to dispose complex cases of corporate fraud and corruption not by means of a full diagnostic criminal trial but based on out-of-court negotiations between the state and the suspected organizations. Quid-pro-quo agreements, self-report techniques, and unilateral (out-of-court) statements of fact – usually resulting in the application of enhanced corporate compliance programmes and the ‘voluntary imposition’ of severe financial penalties – may facilitate quick and cost-effective suspensions or terminations of corporate criminal prosecutions. This in turn may lower the risk of extensive (socioeconomic) collateral damage typical for full-fledged prosecutions without simultaneously excluding basic retributive elements of criminal justice. Further, legal systems usually provide for ample possibilities for the judicial review of settlements between law enforcement authorities and corporations as well as rules that guarantee, at least in theory, the attribution of full penal responsibility to the individuals (natural persons) implicated in the corporate misconduct at issue.

Nevertheless, compared to conflict resolution proceedings within the formal framework of the conventional criminal trial, these modern negotiation mechanisms for disposing corporate crime cases may increase the risk of jeopardizing traditional objectives and principles of criminal law and procedure, which, at least from a sociolegal perspective, may be of universal significance. Important in this context are especially the aims of “finding the truth” (mainly in terms of achieving accurate diagnostic results corresponding to the requirements of substantive criminal law), imposing proportional punishments in accordance with the actual level of guilt of the perpetrators, and avoiding impunity for the natural persons most responsible for the harm caused, as well as the guarantees of publicity and transparency in the delivery of criminal justice.

Hence, the lecturer, whose legal background is Continental-European, intends to examine in his comparative research questions related to the theoretical foundations, symbolic functions, and practical purposes of criminal prosecutions and punishments in the fight against corporate misconduct. To this end, he plans, inter alia, to explore the advantages and disadvantages of prosecutorial instruments such as the DPAs in the UK by functionally comparing their purposes and merits with those of other (alternative) models that do not require the direct use of the criminal justice system in order to control (prevent and suppress) economic and corporate transgressions (e.g. civil confiscation, tax and administrative fines, purely preventive imposition of compliance programmes, etc.).

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Dr. Emmanouil Billis is Senior Researcher at the Max Planck Institute for Foreign and International Criminal Law (Freiburg/Germany) and a qualified lawyer in Athens (Greece). He completed his law studies at the Democritus University of Thrace (Greece) in 2005 and earned a master’s degree in criminal procedure at the National and Kapodistrian University of Athens in 2008. He was awarded an LL.M. from the University of Bonn (Germany) in 2010 for a thesis on issues of European criminal procedure and human rights law and a doctorate from the University of Freiburg in 2014 for a comparative dissertation on the role of the judge in adversarial and inquisitorial evidentiary proceedings (Die Rolle des Richters im adversatorischen und im inquisitorischen Beweisverfahren, Duncker & Humblot 2015). A former member of the International Max Planck Research School for Comparative Criminal Law, he was the recipient of an Alexander S. Onassis Public Benefit Foundation scholarship. An Academic Visitor and Visiting Scholar at the Universities of Athens, Oxford, and Tromsø for academic year 2018/2019, he has been also a Visiting Scholar at Queen Mary University of London since 2016. Dr. Billis has published extensively in English, German, and Greek on issues of criminal law and procedure, European and international criminal law, and comparative criminal justice. He is, inter alia, editor of ‘The Greek Penal Code – English Translation’ (Duncker & Humblot 2017) and coeditor of ‘Europe in Crisis: Crime, Criminal Justice, and the Way Forward’ (Ant. N. Sakkoulas 2017) and of ‘Alternative Systems of Crime Control: National, Transnational, and International Dimensions’ (Duncker & Humblot 2018). In 2017 the Max Planck Society presented Emmanouil Billis with the Otto Hahn Medal and the Otto Hahn Award for outstanding scientific achievements.