Overview of the principle of active personality
Certain international instruments, including the Convention Against Torture of 1984 (Art. 5.1 (b)), and the Convention for the Suppression of the Financing of Terrorism of 1999 (article 7) require States to include the principle of active personality in their national laws to prosecute human rights violations. Through certain Framework Decisions, the EU has also spread the principle of active personality among its Member States for specific crimes such as terrorism and human trafficking.
Even outside of these instruments, however, the principle of active personality is widespread in the EU Member States. Many States view jurisdiction based on active personality as a corollary to the rule of non-extradition of nationals. In this sense, the application of active personality should have a different scope with regard to individuals and legal persons. Because legal persons are by nature not extraditable, the principle of active personality should apply fully to them. This section first explores the various forms this principle has taken in the criminal laws of several EU Member States. It then examines the cross-cutting issues that need to be addressed if active personality is to serve within the EU as a strong basis for prosecuting businesses that violate human rights in third countries.
Active personality in the EU Member States
In Belgium, the use of active personality depends on whether the facts in question are considered “ordinary offences” or serious violations of international humanitarian law. 1
- All Belgian individuals and legal persons are subject to Belgian law and the jurisdiction of Belgian courts for “ordinary” misdemeanours committed abroad, provided the suspect is present on Belgian soil and the double criminality requirement is met. 2 In the likely situation of a foreign victim, the role of the Belgian State will be secondary. Apart from the requirement that the alleged perpetrator remain on Belgian soil and not be extradited, Belgian courts may act only following a complaint from the victim or his or her heirs, or following the receipt of an official notice from the foreign government of the place the offence occurred. 3
Consider a multinational company whose parent company is headquartered in Belgium and whose majority-owned subsidiaries commit human rights violations outside of Belgium. Provided that the act is criminalised both in Belgium and the place the offence occurred, the parent company may be prosecuted in Belgium in order to provide redress when prosecution is unlikely or physically impossible in the country where the unlawful act took place. Of course, the success of such a lawsuit ultimately depends on whether or not the corporate veil can be pierced.
- In cases of serious violations of international humanitarian law, the active personality principle applies when the accused holds Belgian nationality or maintains his or her principal residence in Belgium. These criteria apply at either the time the offence is committed or the time prosecution begins. 4 In the case at hand the defendant is not required to be in Belgium 5 (it will become clear, however, that this “reduced condition” is interesting only when the defendant is an individual), nor is double criminality required. However, we can regret the absence of a clear clear definition of what is meant by a corporation’s “principal residence in Belgium”.
In France, courts have jurisdiction if it is established that an individual or legal person held or holds French nationality at the time a crime is committed abroad, or at the time prosecution begins in France. These two bases for jurisdiction maintain the court’s ability to prosecute defendants who acquire another nationality in order to escape criminal proceedings. Although double criminality is examined in all cases of crimes committed abroad by French nationals, it is required only in cases in which the French national is an accomplice rather than the primary perpetrator of the act. 6 Where the French national is an accomplice, the public prosecutor alone may open a prosecution, 7 and only following a complaint from a victim or his or her heirs, or following an official complaint from a government authority in the country where the act occurred. French prosecutions on the basis of active personality are subject to prosecutions conducted by the State where the offence occurred, and with the exception of amnesties granted by the foreign State, 8 will not be carried out if the foreign State issues a final decision regarding the same offence. A defendant’s presence on French soil is not required for a prosecution to proceed, and trials in absentia (in the absence of the suspected perpetrator of the infraction) are possible. Until the Perben II Law of March 9, 2004, the trial in absentia allowed the Court to rule without a jury and without respecting the adversarial principle (the absent accused could not be represented by a lawyer). However, the European Court of Human Rights declared this procedure contrary to Article 6 of European Convention on Human Rights. Subsequently, the Perben II Law established the “procedure of criminal default” when the accused party does not appear at the hearing. Thus, when the Court does not refer the case to a later session pending the execution of an arrest warrant, the Court rules on the charge without the assistance of the jurors (unless co-accused parties are present, or the absence of the accused has been noted after the opening of the proceedings). A lawyer may now represent the absent defendant. In the event of a firm sentence of deprivation of liberty, the court issues an arrest warrant. 9
Complaint in france against the parent company and a subsidiary of the french-headquartered Group Rougier, suspected of committing multiple offences in cameroon
On 22 March 2002, seven villagers from the Djoum region of Cameroon filed a criminal complaint and civil suit with the Dean of the Examining Magistrates of Paris. The suits allege destruction of property, forgery, fraud, possession of stolen goods and bribery of officials by the leadership of Société forestière de Doumé (SFID), a Cameroon subsidiary of Group Rougier (a global leader in the timber industry), and the group’s France-headquartered parent company Rougier SA. The suits allege that the defendants illegally plundered forest resources to the detriment of the local population. After illegally harvesting various types of wood without license and after destroying fields to lay access roads, SFID refused to pay the looted villagers the financial compensation they claimed. The villagers faced considerable resistance from the local government, which they considered to be biased after apparently receiving benefits either directly or indirectly from SFID. A complaint lodged with Cameroon’s Attorney General resulted in a nolle prosequi and was dismissed.
Because local corruption (an alliance between the subsidiary and the authorities) had apparently deprived the Cameroonian villagers of an effective remedy from an independent and impartial court, they seized jurisdiction in France by filing a complaint on the principles of both territoriality and active personality. Rougier SA, the primary target of the complaint is incorporated in France and thus a French national. The victims argued that Rougier SA could be held strictly liable for possession of stolen goods on the grounds that the company had deposited dividends from SFID although the parent company knew or should have known that the money was the fruit of illegal activities, and that timber stolen from Cameroon had been imported into France. 10 In light of previous accusations levelled against SFID, 11 Rougier SA could not have been unaware of its subsidiary’s illegal activities.
The victims also argued that Rougier SA should be tried for its involvement in other crimes attributable to SFID, not only those for which the parent company was the primary beneficiary, but also taking into account the interdependence between the two companies. Rougier SA holds a majority stake in SFID and the accounts of the subsidiary are fiscally integrated into those of the parent company. In addition, at the time of the events (beginning in 1999), one person held the position of CEO for both SFID and the parent company, and both companies were managed by the same administrators. 12 The plaintiffs argued that this significant “financial and managerial overlap” between legally separate companies meant that Rougier SA clearly dictated SFID’s actions. The plaintiffs argued as a result, that because Rougier had reduced its subsidiary to taking orders, Rougier should be prosecuted under personal liability (not vicarious liability) for the acts of SFID. The subsidiary was simply an instrument through which the offence was committed. The alleged act itself was ordered by Group Rougier, for its interests and with its resources.
On 13 February 2004, the Examining Chamber of the Paris Court of Appeals dismissed the suit citing two procedural hurdles. Firstly, prosecutions misdemeanor (the facts of the case were described as such) committed by French nationals abroad may be initiated only at the request of the public prosecutor (Article 113-8 of the French Criminal Code). The public prosecutor had refused the terms of requests filed on 27 September 2002. Although one could not reasonably deny the harmful economic impact the events in question had on the local population, the public prosecutor held that the alleged events were not sufficiently serious to justify referral to an examining judge. Secondly, the Court of Appeals cited Article 113-5 of the French Criminal Code under which alleged accomplices (Rougier SA) cannot be prosecuted in France unless the foreign jurisdiction issues a final ruling condemning the principal author of the crime or offence committed abroad. Yet, it is precisely because of their inability to obtain a fair trial in Cameroon that the plaintiffs chose to “seize” the French courts. The Court found insufficient evidence of corruption in Cameroon, however, and rejected the plaintiffs’ argument. An appeal was filed but it was dismissed. Sherpa brought action before the European Court of Human Rights, but that appeal was declared inadmissible. 13
In order to increase the probability of prosecutions based on the principle of active personality, this condition French courts impose on extraterritorial investigations (i.e. the fact that a foreign jurisdiction has to condemn the principal author of the crime or offence first for it to be deemed admissible in France) should be revised. Conditioning the prosecution of a parent company in France on the prosecution of the principal author/accomplice abroad is problematic for several reasons. Firstly, there is a risk that such an approach will not adequately consider issues present in the judicial system of the country where the subsidiary is incorporated. Insufficient resources and corruption generally make it difficult to prosecute subsidiaries. Secondly, parent companies and subsidiaries are at times both complicit in serious human rights violations and at times the primary perpetrators are official representatives of the State in which the subsidiary is incorporated. Immunity from criminal prosecution in the courts of the third country again precludes any possibility of prosecuting companies guilty of involvement in violations. The approach adopted by the International Criminal Tribunal for Rwanda, which held that a person may be convicted of complicity even if the perpetrator cannot be identified, is preferable and allows the prosecution of serious human rights violations. 14
Finally, it would be interesting to examine the discretion exercised by the public prosecutor. Should he not be required to allow victims to appeal his decision, particularly when there is no other country in which the complaint can be effectively heard? In such cases, it is feared that the State is sometimes judge and jury. The prosecuting authority is also a host State to, and sometimes majority shareholder in, a powerful company that creates wealth. Given the heavy financial penalties to which a prosecution could lead, it could be painful to prosecute the parent company of a multinational corporation based on the prosecuting authority’s territory.
More recently, the French Supreme Court held the parent company liable for the acts of a subsidiary qualified as corruption of foreign public officials, in application of the principles of active personality and territoriality.
The Court used the technique of the bundle of indications by retaining that the foreign subsidiary was 100% owned, the subsidiary did not benefit from financial and decisional autonomy, as its accounting operations went back to the head office of the parent company and the subsidiary was a simple "legal vehicle" used by the managers of the parent company for the implementation of financial decisions.
The judges ruled that the French courts had jurisdiction in this case because the bribery was decided upon and organized on national territory, where the amount of the remuneration due in this respect was also paid. This case recalls that the principle of territoriality in criminal law is not limited to the characterisation of the offence, in all its constitutive elements, on the territory of France (Article 113-2 of French Criminal Code): French courts have jurisdiction to rule on the offence if one of its “constitutive facts” are carried out on the territory. 15
DLH’s logging activity and the perpetuation of conflict in liberia
This case pits Global Witness, Sherpa, Greenpeace France, Friends of the Earth and a Liberian activist against the multinational DLH (Dalhoff, Larsen & Horneman), a timber company with worldwide operations. The plaintiffs filed a complaint before the Public Prosecutor at the Court of Nantes, France in late 2009.
The plaintiffs accuse the French arm of DLH (DHL France) of having contributed to the civil war in Liberia between 2000 and 2003 by sourcing Liberian companies which in turn provided support to the regime of Charles Taylor which was subject to international sanctions. DLH France was accused of buying wood from illegal logging concessions and thus possession of stolen goods, which is punishable under Article 321-1 of the French Penal Code. According to a Global Witness, “the complaint is based on solid evidence of the involvement of DLH’s suppliers in illicit activities such as bribery, tax evasion, environmental degradation, arms sales in violation of the UN embargo and human rights violations.” 16 The case was dismissed by the prosecutor, on February 15, 2013, and required “no further action”. The other cases, one against DLH Nordisk A/S (as perpetrator) and one against DHL A/S (as accomplice) were filed in Denmark.
The general principle of active personality is embodied in the criminal codes of Germany, Austria, Denmark, Spain, Finland, Greece, the Netherlands, Portugal and Sweden.
Two characteristics are common in the criminal provisions of the abovementioned countries. Apart from specific exceptions, all crimes and misdemeanours (misdemeanours must be of a certain degree of severity) may be prosecuted on the basis of active personality, provided they are also punishable in the country in which they were carried out (double criminality).
In Denmark, active personality jurisdiction extends to foreign residents and citizens in Denmark as well as in Finland, Iceland, Norway and Sweden, provided they are present in Denmark at the time proceedings are initiated, not at the time of the Commission of the crime. Finland and Sweden 17 have similar regimes.
Greece does not condition the exercise of active personality on double criminality if the offence is committed in an ungoverned territory. Portugal provides for a similar suspension of the double criminality rule when offences are carried out in a place where no punitive power is exercised.
Broadly speaking, the UK rejects the principle of active personality and agrees to extradite its nationals. 18 Departures from this rule may be found, however in cases under the Offences against the Person Act of 1861 19 and the International Criminal Court Act 2001. 20