(Emphasis added - M.A.C .)
The Honorable Justice D. Barak Erez further emphasized that a distinction must be made between a corporation and a human being, when such a distinction stems from the legal arrangement (Ozer case, ibid., at p. 13):
"Indeed, the rules of criminal law apply to corporations, but the considerations concerning rehabilitation and consideration of human aspects that justify avoiding a conviction are of particular weight when the defendant is a human being. Therefore, the cases in which it would be appropriate to avoid convicting a corporation found guilty of criminal offenses, if any, should be extremely rare and exceptional (just as in other contexts the distinction between individuals and corporations can be significant in the field of criminal law."
I am of the opinion that there is no impediment in principle for a corporation to enjoy the right to remain silent and as part of it, as explained above, the right against self-incrimination. However, in such a case, many questions will arise, such as who in the company will decide on this? The organs in office at the time? And if they are the ones during whose time the offenses were committed, will they still be given the right to decide? Perhaps leave this decision in the hands of the company's legal advisors? (For these questions and considerations in the matter, see: Andritsakis, Corporate Record-Keepers, ibid.). These questions are not required in the case before me, since the company does not now claim the right to remain silent, but rather argues that the very fact that the organs submitted documents, and testified about their actions, constitutes, in itself, a violation of its right to a fair trial.
It appears that over-identification between the corporation and the organs, so that waiving the organ's right to remain silent and its right to self-incrimination, will not be included in the scope of the evidence that can be filed against the company, will excessively harm the ability to prosecute corporations. As Neira Pena, Corporate Criminal Liability, ibid., at p. 209: