POLICING IN CENTRAL AND EASTERN EUROPE: Comparing Firsthand Knowledge with Experience from the West,
© 1996 College of Police and Security Studies, Slovenia


CORPORATE WRONGDOING POLICING

Janez Pečar

Under debate in the Slovene Parliament is the draft law on "the accountability of legal persons for criminal offences", which will particularly stipulate unlawful corporate activity as a criminal and punishable offence as in the sixty criminal offences already specified by the Penal Code for physical persons. This will open new problems for the Slovene Police in the detection and investigation of such activities and will introduce corporate policing which is also a relatively new activity. The economic circumstances, especially of a transitional society, require changes in the role of the police which must also adapt itself to dealing with white collar crime and, together with, especially corporate crime which may at the same time be organisational and organised. Since corporate crime is based on structural opportunities, the position of a particular enterprise in the activity or market as a whole, the weakness of the victims and their vulnerability and other circumstances among which secrecy is the most important, the police is faced with the responsibility of securing appropriate policing which, in the economic and corporate fields is not daily police activity and which has nothing to do with services. The police must pro-actively respond to corporate crime and rely primarily on its own resources and methods - often special and applied on special authorisation.

Economic sovereignty is important for Slovenia also in order to ensure political independence. It is, however, being threatened both by domestic and foreign corporate criminal activity and various forms of damage to national wealth. The detection and investigation of corporate and commercial crime in general, requires unity and a high level of cooperation also with other mechanisms outside criminal justice which must also participate in policing, not only at the inter-institutional but also at the international level. Since the internationalisation of crime leads to the internationalisation of resistance against it, albeit through the conduction of various extensive undercover investigations and above all for the achievement of transparency of unfair corporate activity, to whom unlawful gain and profit are the key motivations for creating damage to others.

The policing of corporate crime and other forms of economic and business deviations presents itself as a new challenge which, at the same time, raises a dilemma in the understanding of the role of the police in contemporary society. This is more so, the more corporate crime is inaccessible and undetectable and the more the enterprise's unlawful interests are concealed behind present advantages in the difficult times of our "transition". It is therefore not out of place to ask what forms of policing would be most appropriate in this case and how to effectively resist corporate crime in the future when, due to different socio-economic circumstances and changes in the system, corporate power will be greater than at present.

Keywords: police, policing, corporate crime, economy, corporate activity, victimisation, investigation, international cooperation.

Exsecutio iuris non habet iniuriam
The execution of law does not include injustice

Through economic crime whose contents are always difficult to define, various opportunities for the disregard of the law in the interest of the enterprise have also been developing. Together with this, a type of criminality is emerging which is different from that committed by people in commerce for their own personal benefit. Corporate crime involves criminal offence by a "legal person". Attempts are currently being made in the Slovene Parliament to criminalise these activities. If successful, the new regulation will, within the framework of the present view on corporate crime, create police detecting and investigation problems concerning such deviations which, although result from the conduct of people, "legal persons" too should, under particular circumstances, be held responsible for them.

The detection of corporate crime is not the duty of the police alone although the police is always in the front row in the fight against crime. While policing is the most important activity in this field, crime, in the contemporary world, is also being dealt with by some other institutions other than the police. The "softness" or "toughness"1 of policing depends on the crime policy of each individual society which always reflects attitudes to economic freedom and possible liberalism in dealing with economic excesses. In this respect the police also must find new ways of operation both in the detection and prevention of crime and, within the framework of its activities, contribute to the implementation of law, be it in the economic, financial and commercial fields, in which it is not entirely competent and whereby community policing should not be considered a new police "philosophy" in the contemporary world.

While a "discovery" several decades old in criminology, corporate crime policing is, nonetheless, a relatively new activity, especially in our circumstances in which we are expecting to achieve the regulation of "corporate crime" in the near future. Together with this the police is also faced with a fairly new task of dealing with the most complex part of commercial crime. This policing is something entirely different from all other forms of such activities which are, not only more clearly defined, but also acceptable, also because they present themselves as more beneficial and direct. The problems of policing in suppressing, limiting or generally dealing with corporate crime manifest themselves right away especially due to the difficulties involved in controlling the phenomenon which is not categorised as conventional and traditional crime albeit it has been in existence since humanity created its organisations for the economic management of goods, of course with the help of people.

In this way police activity in corporate crime exceeds the previously known methods of policing which may be divided into "militarism, legalism, professionalism and communalism"2. Policing differs from previous roles also because of the application of special operational methods and equipment. Dealing with corporate crime with the application of present conventional knowledge, skills and equipment is utopia and demands a special concept to deal with special societal problems which require specialised responses, whereby classic mechanisms of detection and documentation are no longer satisfactory. The new and different, difficult and complex, hardly accessible and often invisible, particularly economic, financial and commercial problems of society, call for changes in the police methods of policing and thus different forms of coordination also with non-police, private and expert institutions. This certainly indicates the "criminogenity" of the contemporary economic world which is creating a type of victimisation entirely different from the primary and which, due to this reason, is also more subtle and more damaging. Criminal problems however exist and remain also police problems and the police, has always had to and, will have to adapt its strategy to the dangers in society and ensure a certain level, and corporate conformism (albeit not the only possibility) and security in individual fields of the economy and the public or private management of goods. For this very reason, there is a need to introduce and maintain some kind of corporate wrongdoing policing different from the policing that deals with individual offenders or the execution of emphasised police roles in the community. Economic circumstances with the most varying social problems urgently call for changes in police roles especially in a society in transition. The future of police activity therefore calls for different and new opportunities in the systematic execution of policing even in the economy, finance and commercial activity (policing of commerce) the greater the differences in ownership and the greater the problem of moral security.

1 UNDERSTANDING CORPORATE CRIME

In his book entitled White Collar Crime, E. Sunderland argues that the understanding of this crime differs from the traditional and conventional. He, above all, came to the realisation; that the offenders are members of higher social classes who take advantage of their profession, expertise, knowledge and skills to commit crimes; that they are difficult to detect if not even inaccessible; that in most cases they do not even consider themselves criminals and, more importantly; that social control mechanisms and criminal justice treat them differently from other offenders, if ever criminal proceedings are instituted against their conduct. Although some criminologists, sociologists and writers later reached various views with respect to white collar crime which they often treated as organised and above all as, organisational, discussions on this problem raised the important question of equality of people before the law and the correctness of judicial institutions.

White collar crime at the same time in criminology raises the issue of corporate crime which is also crime of the elite, respectable people from high social classes who in contrast to personal gain and purposes of achieving personal wealth and securing advantage, violate legal norms and, thus, business morality, for the benefit of the enterprise or firm. This circumstance on its own, without anything else, creates a special feeling. Considering that the principal aim of corporate activity is to generate profit without private motivation and considering especially that this activity hardly tolerates limitations, it is felt that these are questions of "gallantry" misdemeanour for which different rules apply, other than those applied to classic personal gain crimes, especially of the private type.

In addition to this, it is important to point out the complexity, ambiguity, diversity and difficulty of defining commercial crime and, even more so, white collar crime, organisational crime and especially corporate crime. Theory offers innumerable definitions and as many different views so much that many writers on the subject prefer to discuss the dissimilarities instead of making generalisations about those special characteristics according to which it would be possible to distinguish a particular type of criminality from all the others. The phenomenal diversity, aetiological distinctness, the indeterminable victimisation, the difficulty in determining what is still and what is no longer legitimate and legal, apart from everything else, also create various forms of "overlapping" in which it is possible, in a specific incident, to recognise various components with similar features in case, individual incidents of organisational, corporate, commercial, white collar, structural, government or state or other similar crime, do not have much in common and we may see in them what we want to see in accordance with our understanding of particular types of danger.

All this is certainly characterised by the "culture of competition"3, motivated by success and welfare which, under circumstances of the uneven distribution of unequal opportunities, forces people to resort to unlawful means. According to this theory, criminal actions are the result of: appropriate motivation, the neutralisation of ethical standards which tolerate the offender's actions and, available opportunities. These views together with others, be it individual or integrative, lead to understanding corporate crime as dealt with from the theoretical perspective.

The other side of the issue is the public understanding of corporate crime as depicted, primarily, by the public media which normally sensationalises individual events, depending on their interest in creating news and presenting information, if only we ignore some appropriate analyses of danger which are very rare in the public media. Corporate crime, however, always creates an interest in the damage that it causes although, as far as the country and public are concerned, it may be mostly unfelt as it is a special type of victimisation. For this reason many "scandals" have limited publicity in which case it is sometimes difficult to tell whether the public is alarmed as a result of publicity or whether publicity a result of the danger the incident presents. It is, however, generally accepted everywhere that the inappropriate conduct of the commercial world is not particularly reflected in journalism and as such the public is not suitably informed about individual events and their causers. It is also true that many "affairs" gradually fade and as is the case in Slovenia, most of the latest corporate scandals do not even reach the expected court proceedings which would probably calm the Slovene public at the time when even the politicians are not bothered about "what people think"4 and how much should they expect from the government in the suppression of corporate criminality.

In Slovenia, this problem emerged more strongly with the processes of privatisation of public property whereby no clear distinction was ever made between corporate and individual white collar crime. Damage is assessed according to various criteria and attempts, at least formal, are being made to limit the damage to a comprehensible level.

2 VICTIMISATION

In the case of corporate crime, the main question is what kind of victimisation is caused and who are the victims. In case of any victimisation the important question is the "contribution or share of the victims in their own personal victimisation. It is important to stress here first of all that corporate crime does not involve the typical "couple penal" with its personalised relationship which in victimiology represents the classic relationship between the offender and victim. This does not however mean that corporate crime victimisation does not create "vulnerable areas." The victims of corporate crime may be exceptionally diffusive and the enterprises themselves, after all, create the opportunities for the damage they suffer but this is not the issue of our discussion here which rather deals with corporate "aggressiveness" in the sense of criminal conduct. This also includes criminal conduct which our criminal law is seeking to incriminate and make punishable through the appropriate proposal of the law on the "accountability of legal persons for criminal offences" which is before the second reading in the Slovene Parliament.

Corporate crime victimisation depends on the actor's partner who is determinable by business relationship. The business relationship is often determined in advance by law which regulates organisation, business, commercial, promotion, trade, transportation and other matters, especially in commercial enterprises. It is possible to expect the offenders and their potential victims to emerge from within these relationships. However, most corporate crime victimisation is the result of structural opportunities, the victim's weaknesses and vulnerability, the position held in the activity, and the situation in which the consequences are more or less felt or even overwhelming (in case of two enterprises one against the other in a victimogeneous complex). In competitive capitalism, the more successful enterprises always take over the less successful or commercially unsuccessful ones and, thus concentrate particular activities or several activities at the same time in big corporations and in oligopolies and monopolies.5 At the macro levels victimisation takes place according to interests resulting from the need to break through in business which is not always moral and is accompanied by criminal tendencies. It is, however, often difficult in commercial and business competitiveness to distinguish between moral and immoral, as gaining a profit itself may be immoral, especially if it extends over unregulated areas. If victimisation in a relationship of two "legal persons" may be determinable, and if we may distinguish victimisation between the state and enterprises, then we may talk about secondary victimisation in which case there is no direct victimisation. In case of a variety of other forms of victimisation which our criminal law is also preparing by specially determining individual criminal offences, the victimisation is in most cases different and, above all, such that it is a matter of tertiary victimisation if not entirely "victimless activities"6

Both are characterised by a massive distribution of victimisation so much that individuals either do not feel it or are not even aware of it. This is, not only because they are not informed about it but also because they are simply not concerned since they do not feel affected by it. On many occasions, corporate crime involves multiple victimisation whereby certain criminal action affects several groups of victims and several enterprises at once including the public community and its values which, in case of criminal offence, are of course protected by law.

Corporate crime is mostly subtle and kept in a dark area and as such officially recorded incidents do not represent its real magnitude (for example, modern technocrime; computerised crime; corporate, banking and insurance fraud; tax evasion; disregard of regulations concerning protection of workers; ecological criminality; the production of non-quality commodities; swindling customers; price fixation; and disloyal competition). The true extent of victimisation is therefore always much higher than the available information in any country. The trust put in criminal statistics thus bears no foundation. Since it is mostly a case of tertiary victimisation and probably also secondary victimisation whereby even the victims themselves are often not prepared to cooperate in the prosecution of offenders, the rate of reporting is exceptionally low, which at the same time creates distrust. For this reason, "any commercial conduct which underestimates trust, irrespective of whether it is committed by high ranking businessmen or not, presents a threat to the foundations of capitalist economy."7

Corporate crime may also appear in the form of a "hidden economy" looking for victims in the search for gain and profits especially in a system of inequality and inadequate commercial crime control in which the police is involved, primarily, with its means of proactive supervision, detection and processing of crime in commerce.

3 THE ROLE OF THE POLICE - POLICING

Corporate crime, with respect to its form of appearance as well as to incrimination in criminal law is one of those deviations which are, to a great extent, outside the usual scope of police activity. Since the rate of reporting is also relatively low while the subtlety is very high, every police in the world is faced with the question as how to detect cases which result from illegal corporate activity and how to deal with corporate crime itself. The police, as a mechanism of supervision does not want to get involved, especially, in private matters without being invited to do so and it does not want to do so even when another offence is committed.8 When dealing with commercial and, especially, corporate crime, the police treads on grounds on which, in most cases, it does not feel at home and nor does its education system guide it through the problems of detecting commercial violation for which specialisation is necessary and there are other government institutions available which master the economy. The dilemma therefore arises as a result of general attitudes to the regulation of business life, which starts with the question as to how should the police act within the framework of its general role in policing philosophy which, during the past decade, has emerged to the forefront of supervision policy, especially in contemporary societies.

The police plays several roles the most important among them being: maintaining and implementing the law, and the suppression or limitation of crime. Within the framework of these two fundamental premises the police must also operate in a way so as to perform duties either for the local community or for the state and, either oppressively or preventively. These extremes not only lead to a lot of inconsistencies but also to ambiguity and divisiveness as to what to do for whom; with what intensity; and how to justify particular actions; with what to approach public needs; how to avoid politicisation; where to operate with skilled experts and which measures to implement through usual practice; what professionalism means to the police, etc.

Corporate crime, both aetiologically and phenomenologically is not a daily police activity. It is not excessive behaviour on the street and public place and it is not deviation that is detected and documented by conventional criminal regulations - neither in tactics or methodology. The recognition and detection of corporate crime is police activity which demands the capability to comprehend that information which, as indicative, creates suspicion that something that deserves police supervisory attention is going on in a particular enterprise or, with a physical person. And that is not all. Every police is not only obliged to detect and document incidents and collect information about people, but must also analyse the situation in individual fields and report it to the authorities and politicians and in this regard, promptly and justifiably inform the most important public institutions not only of what is going on but also warn them about what may happen.

This is why policing within the framework of responding to corporate crime is entirely something different from community policing which, through police activity, may satisfy the people's needs for safety services especially in the places where they are and where they live, whereas policing in commercial, corporate activity and commercial life is much more complex and difficult to implement. Here, it is not a question of the "visibility" of the police and its presence. This is a matter of tolerance towards "supervision", being more questionable, if not in fact annoying. In this case, there is no personalised crime, no physical victimisation, etc. It is a question of exploitation of opportunity, of acquiring advantage and profit in the relationship between people because of goods. This requires an entirely different way of looking for signals for the possible processing of offenders, by directing investigation attention towards the life style of suspects. This means the gathering of "evidence" with the use of special operational equipment and methods and in the expectation of incidents connected with individual functions such as finance, trade, purchasing etc.

Commercial dishonesty cannot be dealt with through the application of police standards of the 19th century. It is no longer a question of a police "service" role. Here the police is being faced with "havens of secrecy"9, with the internationalisation of criminality and with a situation in which police input is quite different from average and can not be compared with conventional crime. For this reason policing in the sense of corporate criminality calls for special police strategy, techniques and methods, special sources and special training and cooperation with non-police institutions, which we are also familiar with in our country during this period of "transition" (APPNI, the customs, public prosecution, inspectorates, auditing organisations, accounts court, etc.),

Policing does not only mean reacting and processing. It also means the prevention of criminality. Both actions demand the assessment of danger and often the need to determine the advantages of something or someone. In Slovenia too, the specialised police for dealing with corporate crime, has recently frequently dealt with new and more difficult forms of commercial crime connected with unlawful privatisation, business fraud, tax evasion, forgery and destruction of documents, alterations10, etc.

4 INVESTIGATION - DETECTION

Most of the experts in this field are of the opinion that it is difficult to detect and control commercial crime. In addition to that, intolerable conduct in commerce and corporate activity is, mainly, "mala prohibita" and not as much "mala in se" conduct, which is irrelevant to the police understanding of legality and to the operation of the stigma in the case of accessibility and culpability of the offender. All over the world, however, efforts are being made to put the economy under control and, with this, also corporate crime which in Slovenia is becoming especially important, should it become criminalised and made punishable with a "lex specialis" in the near future. In any event, even if only culpability of physical persons remains in the penal code, we must not withdraw attention from the criminality of responsible persons in enterprises or white collar crime.

The investigation of corporate crime, depending on the type and special characteristics of particular activities, involves the gathering, classification, putting together and presentation of various information, measuring and comparing with the circumstances and consequences, considering patterns, critical analysis and confirmation with evidence, not to mention the need to inspect accounts, documentation, various sources of information which can be acquired only through the application of special methods accessible to only specified bodies with special authorisation. Since corporate crime is in most cases well concealed, it is very difficult to collect the data about it required for later processing, which must also justify input as against the benefits. So far this has been going on in Slovenia as an uncoordinated operation, which is unproductive not only in a financial sense but also in a moral sense and it is manifested in the loss of public trust, not as much in the police, as in criminal justice generally.

When detecting commercial and corporate crime we should always pay attention to the possibility of repetition of the offence, originality of the act, the nature of the criminal offence, the damage caused by the offence, the guilt of the offender and the strength of the facts11 which offer proof of crime. At the same time it is always necessary to take into consideration: the special features of the enterprise, the culture and consciousness of the enterprise, including lack of control, the stereotype relationship between individual groups of people, an atmosphere of preparedness to take risks or carelessness, staff selection mechanisms, identification with the enterprise, relationships between management staff, collective consciousness, organisational life,12 and the like, up to knowledge about the criminogenity of the environment prevailing, in one form or another, in a particular enterprise, which leads to various incidents, individual or group, private or corporate, and the like.

Since corporate crime mingles with allowable activities and takes place among other forms of normal and legal conduct, this makes it a greater problem as it is necessary to isolate it, separately deal with it, and carry out investigations in a way so as not to interfere with business activity. As long as there remains no incrimination of legal persons in Slovenia, it may be expected that "corporate activity" will, in most cases, remain immune to "criminal accountability". At the end of the 2nd millennium of the new era, however, the tendency indicates a growing demand to make "corporations answerable for criminal motive because of the intentions of their staff"13. Such regulation undoubtedly considerably simplifies the processing of corporate crime however committed in the interest of a legal person.

Dealing with crime and the economy therefore changes the attitude to such topics and directs it into understanding economics and crime control14. This is necessary also because of the application of criminal investigation forms of operation in the investigation of commercial and, especially, corporate crime. This in turn raises fears of the emergency of a "police state", which may increase during the investigation of un-reported and uncontrollable crime, through the application of under cover operations and various forms of "criminal intelligence operations" because of which new approaches are being considered for the developing of a new concept of the "police of the future". This will increasingly have to clarify the views on its "contradictions" with regard to what is real crime in contrast to conventional, street and, above all, visible crime.

Corporate crime will increasingly pose a threat to: property, money, goods and, above all, to business secrecy. And if corporate activity can not protect itself, the state, especially a small one, and for the sake of its sovereinty, must provide appropriate security. For Slovenia, economic sovereignty is a matter of priority on which political independence also depends. We must therefore not shy away from contemporary operational methods and means of investigation and studying commercial and corporate crime and all those investigation and inquiry techniques which do not represent traditional routine police work.

Corporate criminality is not characterised only by problems of detection but also by an unfavourable ratio between discovered offenders and their culpability. While the law is considered the basic control mechanism, it is poorly applied in Slovenia, in the suppression of corporate crime which is more heterogeneous than any other crime, and more so, the bigger the number of laws attempting to limit it. The police, especially the specialised police plays a key role in this case.

5 UNITY OF "INVESTIGATION"

The officially registered criminality with which they operate all over the world is an exceptionally filtered process and represents activities of any of the state supervision mechanisms which deal with the detection, prosecution, administering of justice and implementation of punitive sanctions. Although statistical data is frequently presented as reality, officially known criminality is far from what actually goes on in any society. What is known, of course, depends not only on the diversity of crime and its features but, to a great extent, also on the capability, agility, mobility and, especially, on the success of detecting institutions. The key factor therefore is "detection" or, to put it better, the successful operation of all those control mechanisms which ensure law on the front-line in the "battle" against any kind of wrongdoing. In this respect, the police certainly takes first place, and responds either reactively or proactively to incidents of wrongdoing determined by law. It responds reactively in cases where motivation for reporting exists and proactively especially in cases where due to a variety of reasons such motivation barely exists or is very low.

Corporate criminality is a phenomenon which is unreportable and undetectable. This condition gives it special meaning and offers a special role to the mechanisms for its treatment. This role is determined by the success of the mechanisms on the one hand, and the means and methods available, on the other. For this reason, the supervision and possible control of corporate crime is a technical, formal and informal question of their application. It is necessary here also to use special operational methods and equipment which, for the majority of the various forms of criminality and, with respect to criminal investigation methodology and tactics are, not yet well prepared, as is the case with most of the so-called classic or traditional or conventional criminality, long in existence.

While commercial crime has been known since Roman times, corporate crime is relatively a new phenomenon of exceptionally varying and adaptable forms, committed in areas which are difficult to gain access to or reach, by people who are proficient in their activities and are also skilful, agile, competitive, reckless, greedy and who know how to exploit an opportunity in order to gain benefit. Gain and advantage are the most general and widely used motives - also for investigation. These aspects may always be found wherever commercial criminal law prohibits actions that cause damage to others. It is therefore possible, in the language of the theory of social interaction, that first of all legislation itself creates wrongdoers, who should be searched for through the use of appropriate criminal investigation methods and on the basis of the detection of individual signals which vary with different offences.

It is totally impossible to demand from the police to exercise control over the situation in the commercial field in the same way it succeeds in the maintenance of public order and peace, which it may supervise through its physical and technical presence. This model can not be applied in economic, corporate and commercial activity at a time when it is not possible to rely on reactive operation, especially in cases of less motivation for reporting. This requires from the police, which, generally, can not supervise everything that needs to be supervised, to decide on detection either according to the signals that it acquires or according to the priorities resulting from various requirements, including competent public institutions together with other possible control mechanisms which guarantee or implement the law.

Although preliminary criminal proceedings may be entirely individual police activity, there is a need, in the case of the various forms of corporate crime, for certain unity and a high degree of cooperation with several other mechanisms outside criminal justice. For the operational processing, completion, possible inquiry and professional opinion, gathering of necessary information, auditing of accounts, individual complex forms of detection, investigation and providing of evidence, knowledge of the background to individual incidents and the persons and their roles, possible changes in investigating tactics and application of means and methods, all call for team work and a level of uniformity of views regarding the general aim of the investigation, even if through the application of special measures. The purpose of each investigation is to avoid unfounded institution of criminal proceedings and to conduct investigations without incurring excessive cost or at least with reasonable cost, to avoid unnecessary or excessive damage, to act according to unified norms and viewpoints and avoid the use of varying criteria, to collect all suitable documentation and, to ensure that invasion of individual rights and personal freedoms (especially commercial privacy) is limited to justified and acceptable actions necessary for successful investigation. The police must know that, with suitable modifications for adaptation to the environment, it is possible to use many of the economic and business principles applied in the upper world equally well in the under world15. The general advice given in detecting and investigation is that, one should always ask himself "what would I do if I was the offender?"16

The power of investigation must therefore be found in cooperation at inter-institutional level, in the preparation of suitable methods, in the search for documents which provide evidence of: suspicious activity and, above all, with the creation of appropriate knowledge and formation of common teams also for the national management and guidance of investigating activity.

6 INTERNATIONAL COOPERATION (OF THE POLICE)

Today, not only Europe, but the whole world, is gradually turning into a single market space. International economy, international corporate activity, multinationals, economic links and the use of new technology, international communications, open borders (for example between European Union member countries) and the unlimited flow of people, goods, capital and services, the decline of morality in particular fields within specific connections, the infiltration of organised crime into legitimate activity, etc., are all increasingly calling for the need for common action and resistance against everything that is disturbing international coexistence and success as well as national economies and the efficiency of individual countries and their enterprises on the international market. Since, in addition to legitimate commercial and corporate activity, the distribution of unlawful opportunities and use of illegal means in corporate activity are also taking place, there is a need for greater global control other than that offered in each country by its national mechanisms of resistance to commercial, organised, organisational and, above all, also corporate crime.

This has therefore led to more unified action either within the European Union or between individual countries through bilateral and multilateral agreements for the execution of control over particular activities (drugs, money laundering, migrants, exiles, terrorism, extradition, bank operations, etc.), or to the international detection and prosecution of particular criminal activities and the apprehension of the offenders. Notwithstanding individual conflicts of interests between countries or even between particular institutions, it is the police that succeeds most in coordinating, uniting, educating, transferring experiences or offering mutual help and participating in various areas of criminal suppression including corporate crime, which is motivated all over the world by "low risk and high gain" 17

The internationalisation of crime is leading to increasingly more organised internationalisation of resistance against crime through organisations such as the Interpol and Evropol, and other forms. This includes, besides police activity, other areas too in which corporate crime meets with criminal corporate activity, or in other words, where organised criminality as corporate activity poses a threat to legitimate corporate activity or in transactions which benefit legal corporate activity. This has led to the international coordination of investigations, to "international policing"18 in particular areas, to the introduction and development of systems of police intelligence operation, to international exchanges of information particularly concerning commercial crime, to the computerised processing and presentation of data, and to a variety of strategies in the fight against commercial crime. As such the "techno-police"19 era is expected to emerge in the near future which will see the realisation of Bentham's panoptical vision in many areas of criminal activity, which pose the greatest threat to the contemporary world through the uncontrolled gaining and acquisition of benefit and advantage.

Corporate criminal activity too can not avoid the general or individualised supervision, particularly the various forms of police activity, although other control mechanisms should not be ignored either, as they are specialised for particular areas: for example the institutions for the prevention of money laundering, various inspectorates and private organisations which are competent for conducting comprehensive auditing of accounts, various expert organisations, consultancies, etc. Frequent political pressure and lack of trust, conflicts in international relations, varying regulations concerning the operation of individual organisations including business secrets, the legal systems of individual countries or disharmony of norms, not to mention the general tendencies of a more consistent implementation of human rights and citizenship freedoms, in many ways represent obstacles to policing on many occasions also in the suppression of corporate crime. This situation reaches the point where "the trust of potential victims in the system is weakened while the confidence of potential offenders grows"20 with the possibility of unhindered or successful disregard of norms for the purpose of acquiring benefit at other people's disadvantage.

Apart from inter-institutional and interdisciplinary operation in the investigation of corporate crime, inter-state and international cooperation at continental level is also necessary, in order to achieve mutual understanding, the timely reaction to rising incidents and events, to increase investigating power through competent authorities, increase the success rate, the use of the right people in the right places and at the right time, measure and analyse efficiency and acquire the necessary means and organise appropriate supervision of supervisors in any investigating institution.

Of great importance therefore are: mutual assistance, training, information, legislation and mechanisms for the detection of commercial and corporate crime. This is the essence of any policing in the area of corporate criminality, especially business fraud, forgery, associating for the purpose of acquiring unlawful gain and for the achievement of transparency of dishonest international corporations, if need be, by the use of extensive undercover investigation of various forms of abuse.

7 CORPORATE CRIME POLICING AS A NEW CHALLENGE

Understanding, explaining and introducing policing has in recent years, in the majority of contemporary police institutions in post-industrial societies, become one of the major themes of their operation. The "concept" which, theoretically, is far from being precise, (if at all we should expect it to be), and the new "philosophies" involved frequently lead to dilemma in the understanding of the role of the police in contemporary society because it is not always sufficiently clear what the priorities are. The diversity of police duties is a condition of the role that has developed through history with new demands. These appear together with some inconsistencies which result from the need to maintain the police in any contemporary social community. While some people understand policing as some kind of "holism", others apply it to particular areas thus adding to the term "policing" as many "adjectives" as there are activities of the supervisory nature, and as many as there are areas where it is necessary to perform particular police activities including state and private.

Because of the various possibilities of identifying police supervisory roles within the framework of policing, this paper deals with those areas in which it is practically even more weak. This is the area of the detection of corporate criminality which, on many occasions is also commercial and organisational or white collar or organised group criminality, i.e. the most problematic area. It is problematic especially because it is inaccessible and generally unprosecutable which is also the result of the different understanding of corporate crime in most countries in the world. Despite the fact that corporate crime has been known in criminology for more than half a century, attitudes towards it have not yet changed much. This crime is however committed by people and not by enterprises as "legal persons". At the same time, unlawful profit is generated for the interests of the company. This is why policing is, in this case, different from the conventional which is based on the theory of white collar crime committed, in most cases, by individuals from higher classes who exploit their knowledge and skills in their profession for their own benefit. In the case of corporate crime it is a question of criminal activity by people for the benefit of the enterprise, i.e., the legal person. This is represents the essential distinction in the meaning of policing.

Corporate crime is not the activity of lower classes. Due to the special, group interests, involved and with which the offenders try to achieve and maintain the "company's" welfare through illegal methods and at the disadvantage of others, this circumstance becomes more important the greater the collective accountability and the more "gallantry" the offence of an individual may appear. For this reason, dealing with corporate crime does not concern only policing but is also a question of justice and equality of people before the law. This is more so, the more obvious are the differences in the implementation of criminal and punitive policy within individual social classes, professional groups or individuals.

This may probably be the reason why the criminologist Donald R. Cressey stated: "What we need is a new type of corporate policeman"21. This is particularly necessary the more the enterprises are capable of protecting themselves against the stigma for offence, and the more they are able to commit various types of damaging activities which bring them various advantages - if not net profit, acquired through unlawful means. It is therefore necessary to deal with corporate criminality also in a global context and not only in the sense of individualised treatment of specific offences which may also be benevolently understood from the viewpoint of the enterprise, as is often the case even during criminal proceedings. The danger of this criminality is in the unlimited material and other damage and especially in the fact that the processing of these activities and the criminal proceedings on "scandals", especially those connected with some of Slovenia's biggest enterprises, is an entirely Sisyphean task into which society invests a lot of resources while, instead of establishing accountability, "matters" fade into nothing in the end.

As we are, in Slovenia, attempting, to regulate the accountability of legal persons for specified criminal offences which are already specified for physical persons in the Penal Code, this problem is of vital importance for our policing as we, especially, do not have a lot of experience and because the Council of Europe is inviting us to regulate corporate accountability"22. Commercial crime, which is being committed in relation to privatisation and our "transition" in general presents, together with corporate crime, an important challenge not only to policing but also to our criminology and crime policy. We must therefore ask ourselves, what form of policing is most appropriate in this area and what needs to be done in order to achieve it. This is particularly important because of the relatively new expectations concerning the resistance against crime committed by the corporate elite, motivated by profit and through disregard of law made possible, in turn, by corporate power.

NOTES

  1. Marlow, p. 76

  2. Feltes, p. 38

  3. Coleman, C., in Poveda, p. 100

  4. Levi, M. : Regulating Fraud ...., p.57

  5. Bosworth - Davies /Saltmarsch in Reuvid, ed., p. 19

  6. Scarpa, C. : in Gianluca / Peltzman, p. 270

  7. Levi, M.: Regulating Fraud ..., p. 79

  8. Nelken, p.373

  9. Reuvid, p. 195

  10. Križman, : Poskusne goljufije in utaje, Primorske novice, 12.4.1996

  11. Shapiro: Insider Trading, in "The Annals...." p. 54

  12. Punch, p. 99-100

  13. Bernard, in Poveda, p. 37

  14. Crime and Economy, p. 10

  15. Shelling, according to Scarpa in Gianluca et al., p. 269

  16. Forbes, in Revuid, p. 265

  17. Revuid, p. XI

  18. Levi, M.: Regulating Fraud...., p. 292

  19. ibd. 293

  20. Alenka Žnidaršič Kranjc: What's Ethical in Business, RKK 44 (1994) 2, p. 206

  21. Cressey, in Wells, J.: Accountancy and White Collar Crime, in The Annals...., p. 94

  22. Punch, p. 102


Table of Contents | Measuring Organized Crime in Western Europe

The HTML conversion of this chapter was supported by the
National Institute of Justice/
National Criminal Justice Reference Service
Washington, D.C.