Businesses as Organs of Justice

A Doctrinal and Socio-Legal Study of the Participation of Companies in Criminal Proceedings

Globalization and digitalization have profoundly changed the relationship between nation states and the private sector in recent decades. Increasingly, private companies are creating and controlling the spaces in which economic and social interactions take place – for example, on the Internet or in financial markets. This has led to a situation in which these spaces are escaping the reach of investigative authorities. As a result, criminal proceedings are becoming more and more reliant on businesses to gather evidence and intelligence and forward their findings to the authorities. This is especially true with regard to large multinational companies since they, unlike the competent authorities, are free to glean information from multiple countries, thereby enabling authorities to acquire a cross-border view of criminal activities. This flexibility, together with technical infrastructures and know-how that often greatly exceed the capabilities of the authorities, can lead to situations in which businesses wield significant influence over criminal investigations.
As yet, criminal procedure law is not prepared for the growing role of the private sector as a proactive element of criminal justice. The law continues to treat private entities almost exclusively as witnesses or sources of data, but hardly ever as a player that, in many cases, enjoys the freedom to set its own agenda as to whether and how to collaborate with investigative authorities. In fact, informal practices of cooperation between authorities and businesses take place frequently, but such practices usually remain unregulated and are largely untransparent, even to courts and defendants. In other words, while such cooperation is in some places already a reality, the law has so far failed to address it as a phenomenon. Such silence is highly problematic with regard to the truth-seeking function and the fairness of criminal proceedings.
While this describes the state of affairs in many countries, the aim of this study is to fill Germany's existing lacuna. It does so by identifying normative conflicts that result from the increasing reliance on businesses and by offering solutions on how to incorporate the role of such businesses into law. To this end, it includes both empirical research and a doctrinal analysis.
More specifically, the study examines, in a first step, the numerous forms of private sector involvement in criminal investigations as well as in functionally related regulatory frameworks. It thereby identifies how the law, in many instances, de facto delegates investigative functions without openly acknowledging that it is doing so, let alone demonstrating awareness for the resulting problems. After establishing that in some instances German law already involves businesses as quasi-investigative agents, the study examines the characteristics of such private involvement, looking in particular at experiences gained in recent years in the financial services sector. This part of the study is conducted primarily by means of participatory observation of existing instances of public-private cooperation; its goal is to understand the extent to which such cooperation can realistically improve the effectiveness of criminal investigations and to identify the factors that determine businesses' willingness (or reluctance) to help the authorities. Based on these empirical observations, the study identifies a number of conflicts between private involvement and the functional assumptions and principles that underpin criminal procedure law. Finally, these findings lead to the development of recommendations on how future legislation could accommodate reliance on private sector involvement while at the same time remaining loyal to the tasks and procedural guarantees on which the legitimacy of criminal justice is based. The study concludes that adapting the law to the new social realities will ultimately require a profound rethinking of key structural hallmarks of the German criminal process, including a more pronounced separation between the gathering of criminal intelligence and the production of evidence, on the one hand, and the introduction of adequate remedies for the benefit of defendants vis-à-vis private organs of justice, on the other.