"…in the nature of a human right, designed to protect individuals from oppressive methods of obtaining evidence of their guilt for use against them. In respect of natural persons, a fair state-individual balance requires such protection; however, in respect of corporations, the privilege is not required to maintain an appropriate state-individual balance. Nor is the privilege so fundamental that the denial of its availability to corporations in relation to the production of documents would undermine the foundations of our accusatorial system of criminal justice."
He adds that it will not be possible to locate corporate-economic crime without examining documents in the possession of the corporations.
Therefore, it was ruled that these rights, which derive from the constitutional right to human dignity and liberty, do not apply to corporations. Some states in Australia have legislated this (for the situation in Australia, see Barbara Ann Hocking & Laura Leigh Manville, "What of the Right to Silence: Still Supporting the Presumption of Innocence, or a Growing Legal Fiction", 1 Macquarie Law Journal, 63 (2001)). See also Cosmas Moisidis, Criminal Discovery, from Truth to Proof and Back Again, 141 (2008). See also Campbell, Corporate Law, ibid., at p. 6).
In Europe, the starting point is different, and initially, no criminal liability was imposed on corporations. However, in cases where a corporation is prosecuted, including in civil proceedings, it has all the procedural protections, including the right to remain silent and the right to self-incrimination. Thus, for example, in Belgium, a case was discussed in which a financial institution refused to hand over documents on the grounds that they might incriminate it and was fined. The Court of Appeals in the criminal proceeding in which the bank was accused ordered not to take into account the evidence produced by the bank after claiming that it might incriminate it. The court ruled that the bank, like any defendant, has the right to remain silent and the right to self-incrimination (see: Case P.12.1150.F, the Supreme Court's decision upholding the decision of the Court of Appeals as it appears in the OECD summary above). In Spain, where the corporation's criminal liability was recognized, it was accompanied by all procedural protections and the right against self-incrimination was established in the law, as it applied to corporations. The main reason for this is that in the Continent, the concept of the right to a fair trial, including these rights, is based on the prevention of abuse of state power, and less on the human rights of the accused or suspect (see Neira Pena, Corporate Criminal Liability ibid., at p. 205).