The Recognition of Legal Persons in International Human Rights Instruments: Protection Against and Through Criminal Justice?

In: M. Pieth & R. Ivory (eds.), Corporate Criminal Liability. Emergence, Convergence, and Risk, Ius Gentium: Comparative Perspectives on Law and Justice 9, New York/Dordrecht/Heidelberg/London: Springer 2011, p. 355-389.

36 Pages Posted: 28 Apr 2012

Date Written: June 1, 2011

Abstract

Three principle questions are dealt with in this contribution. 1) Can private or public juristic entities (like companies, corporations and municipalities), find direct protection under international fundamental human rights norms when criminal law and criminal procedure are applied against them? 2) If not, the issue of indirect protection of legal persons merits attention: is it possible for individual stakeholders in these entities, such as owners, shareholders, employees, and members, to invoke the protection of human rights, when the violation is in fact directed against the organization in which they have an interest? 3) Yet, human rights are not just relevant as protections for legal persons: there is a growing awareness that legal persons are responsible for human rights violations. It is against this background that a third matter arises: do international human rights obligations to criminalize, prosecute, and punish human rights violations by public and private authors apply analogously to public law and private law legal entities who are responsible for such violations? This question in fact asks whether international human rights law requires states to provide for the possibility that juristic entities may be held criminally responsible.

Relative to these questions, this contribution analyzes and compares the four general international human rights instruments most relevant to criminal law and associated international case law: the UN International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR), the American Convention on Human Rights (ACHR), and the African Charter on Human and Peoples’ Rights (AfCHPR).

The assessment of these instruments and related case law should not only result in answers to the questions, it should also point to possible justifications – or the lack thereof – for differences in approach between these four systems. Before dealing with the third question (that of the state’s positive obligation to provide for criminal liability of private and public law legal persons), this contribution first explains how some of the most relevant human rights in criminal proceedings are applicable to private law legal persons, i.e., fair trial rights and privacy rights. In the conclusion it will be asserted that international human rights law should recognize legal persons both as possible victims and as possible perpetrators of human rights violations. It will be explained why and how the four international human rights systems approaches could be developed in this regard.

JEL Classification: Criminal law, Human Rights, Companies, Corporations, Liability

Suggested Citation

van Kempen, Piet Hein, The Recognition of Legal Persons in International Human Rights Instruments: Protection Against and Through Criminal Justice? (June 1, 2011). In: M. Pieth & R. Ivory (eds.), Corporate Criminal Liability. Emergence, Convergence, and Risk, Ius Gentium: Comparative Perspectives on Law and Justice 9, New York/Dordrecht/Heidelberg/London: Springer 2011, p. 355-389.. Available at SSRN: https://ssrn.com/abstract=2046046

Piet Hein Van Kempen (Contact Author)

Radboud University Nijmegen ( email )

Faculty of Law
PO Box 9049
Nijmegen, 6500 KK
Netherlands

HOME PAGE: http://www.ru.nl/english/people/kempen-p-van/

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