Abstract
Are the current criteria for the criminal liability of leading officials of corporations under Dutch criminal law still adequate in view of the present-day knowledge on the functioning of modern organisations? Modern corporations no longer reflect the classical image of the Weberian pyramid that lies at the heart of the
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scheme of hierarchical accountability: the fully rational organisation that is headed by an all-knowing and all-powerful leadership. It is however only this ideal type where the application of the criteria for imposing liability doesn’t encounter problems. Neither detecting – i.e. gathering and procuring information – nor effecting – i.e. bringing about change within an organisation – proves problematic. With Weber’s ideal type of the rational bureaucracy being no longer accurate, a new theoretical frame of reference is required. Criminological research has shown that organisational deviance can only be understood if insights from organisational theory are taken into account. So, only by opening the ‘black box’ that is the modern organisation can we understand how corporations operate, make the true constellations of power and involvement come to light, and pass a valid judgement on the individual criminal responsibility of managers. By using updated and refined versions of the configurations that were originally developed by Mintzberg, more, and more accurate models of organisations can be provided. By identifying several leading positions within these archetypes, the possibilities and restrictions that these managerial positions face when it comes to detecting criminal behaviour within their organisation and effecting measures against such behaviour, can be analysed. In order to be criminally liable, a manager must have a certain level of de facto control over the alleged criminal behaviour, at least somewhat knowledge thereof, and there needs to be a violation of the duty of care. Many cases even require dolus eventualis. Based upon the aforementioned analysis, an assessment can be made of the extent in which these possibilities and restrictions affect the ability of each of these managerial positions to control the behaviour of others. Secondly, it can be determined how this influences the nature of knowledge that can be expected of them when it comes to criminal behaviour of subordinates. And finally, it gives an indication of the kind of measures that can be expected from managers to either stop or prevent such acts. In sum, it creates the opportunity to assess the adequacy of the criteria for liability. Overall, these criteria are well suited. The insights from organizational theory can even be used to further develop and fine-tune the duty of care. This would enhance the quality of the legal framework and ensure that neither ignorance nor incompetence is bliss. As such, a certain revision is required. Currently, doing more than is strictly required can backfire on management. It increases the chance of knowledge, which in turn triggers the duty of care and creates the risk of liability. Furthermore, the legislator should consider the separate penalisation of violating the institutional duty of care by introducing an obligation to ensure a sufficient organisation structure, organisation culture, and information infrastructure.
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