This book asks whether the well-established privilege against self-incrimination applies to corporations, whether it should, and if so, to what extent. Those questions have an increasingly important EU criminal law dimension. To answer them, this study draws on comparative insights from Belgium, England and Wales, and the US; as well as case law of the ECtHR and EU Law. It covers the established CJEU case law in competition cases, the recent CJEU ruling in DB v Consob and addresses Directive (EU) 2016/343. It will appeal to scholars of EU criminal law, but also to white-collar and competition practitioners.
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
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