If the Company is unable to identify all relevant individuals or provide complete factual information, despite seeking full cooperation in good faith, the Organization may still be eligible for cooperation credits. See U.S.S.G. § 8C2.5(g), CMT. (n. 13) (“The cooperation to be measured is the cooperation of the organization itself, not the cooperation of individuals within the organization. If, owing to the lack of cooperation of certain individuals, neither the Organization nor law enforcement personnel are able to identify the guilty person or persons within the Organization, despite the Organization`s efforts to cooperate fully, the Organization may still be granted full cooperation. For example, there may be circumstances where, despite best efforts to conduct a thorough investigation, a company does not have access to certain evidence or is not legally prohibited from disclosing it to the government. In these circumstances, it is for the undertaking to cooperate in proving the restrictions to which it is exposed vis-à-vis the Public Prosecutor`s Office. In the case of plea agreements in which the company undertakes to cooperate, the prosecutor must ensure that the cooperation is fully truthful.

To this end, the attorney should require the company to adequately disclose relevant factual information and documents, make employees and representatives available to employees for a record, file appropriate certified financial statements, approve government or external audits, and take all other steps necessary to ensure that the full extent of the company`s misconduct is disclosed, and that the person responsible for the staff is identified. may be prosecuted. See generally JM 9-28.700. In taking such measures, Ministry counsel should recognize that solicitor-client communication is often critical to a company`s efforts to comply with complex regulatory and legal systems, and that, as discussed in detail above, cooperation is not measured by the waiver of solicitor-client privilege and the protection of work products. but rather as a preliminary matter by the disclosure of facts about a person. Wrongdoing. as well as other considerations mentioned in this document, such as the provision of witnesses for questioning and assistance in the interpretation of complex documents or business documents. A law cannot simply punish a person for his or her status. According to the Supreme Court in Robinson v. California, 370 U.S. 660 (1962), any law that criminalizes the status of a person imposes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.

For example, a state might not punish a person for “being homeless,” which would be a status offense, but punish a homeless person for trespassing or loitering, which involves certain behavior. At the heart of the principle of necessity, however, is that force, if necessary, must not exceed the minimum reasonably necessary in the circumstances. This means that violent or potentially violent suspects should also be arrested or killed, except in very extreme cases where the use of force and lethal force is the only way to stop imminent danger to life. In 1982, the Human Rights Committee, in its opinion on the case of Guerrero v. Colombia that the state acted unlawfully by shooting at suspected terrorists instead of arresting them, as it might have done under the circumstances. In 2015, the Grand Chamber of the European Court of Human Rights in the case of Bouyid v. Belgium reiterated (No. 23380/09) that “in the case of a person who .. In the face of law enforcement officials, any use of physical force that is not strictly necessary for one`s own conduct violates human dignity and in principle constitutes a violation of the right not to be subjected to torture or inhuman or degrading treatment (paras.

88 and 100). B. Note: Once the decision to levy a fee has been taken, the same rules apply as for the imposition of royalties on natural persons. These rules require “faithful and honest application of criminal guidelines” and an “individualized assessment of the extent to which certain charges fit the specific circumstances of the case, align with the goals of the Federal Penal Code, and maximize the impact of federal funds on crime.” See JM 9-27 300. In reaching this conclusion, “the public prosecutor should take into account, inter alia, factors such as the [advisory] area of criminal policy arising from the indictment in determining whether the sentence resulting from such a criminal framework .. is proportionate to the seriousness of the accused`s conduct and whether the indictment meets criminal objectives such as punishment, protection of the public, specific and general deterrence and rehabilitation. Almost all convictions of a company, like almost all convictions of an individual, will have an impact on innocent third parties, and the mere existence of such an effect is not enough to prevent prosecution of the company. Therefore, when assessing the relevance of collateral consequences, various factors already discussed, such as the prevalence of criminal behavior and the adequacy of the company`s compliance programs, should be taken into account in determining the weight to be given to this factor. For example, the scales may tip in favor of prosecuting companies in situations where the scope of wrongdoing in a case is widespread and maintained within a division of the business (or spreads into the pockets of the business organization). In such cases, the potential injustice of the visitation penalty may be much less significant for the Company`s crimes against shareholders if those shareholders have benefited significantly from widespread or pervasive, albeit unconsciously, criminal activity. Similarly, the exclusion cannot be considered as a security interest, but as a direct and fully proportionate consequence of the fault if the senior management or shareholders of a closely related company were involved in or knew of the fault and the conduct in question was accepted as a means of doing business for an extended period of time. In the absence of exceptional circumstances or approved ministerial guidelines, such as the Antitrust Leniency Notice, no corporate decision should provide protection against criminal liability of individuals.