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A question to the lawyers

by name Wed May 17th, 2006 at 11:55:48 AM EST

This is directed to european lawyers among the readership of this site, but americans may also find it of interest.

As a layman - IANAL - i've always found the concept of a "criminal organization" interesting. Many, if not all european laws, have clauses pertaining organized criminality, making the participation in such "criminal organizations" punishable, but when one looks at what some highly honorable organizations do one has to wonder how they manage to evade being tagged "criminal".

The concept of a "criminal organization" is intuitive, and insofar as I understand Austrian law, it defines as criminal organizations which routinely and customarily transgress laws in order to make gains. A drug-selling gang clearly falls within that definition, and prostitution and kiddy-porn rings also make it. These would be two examples of the more disgusting kind.

But lets look at another kind of organization: corporations. Lets take as an example of what I mean the german REWE group (http://www.rewe-group.com), americans may want to look at Wal-Mart (http://www.walmart.com). REWE owns a significant part of retail shops in Austria (Billa, Spar, Penny, ...) and in other parts of Europe. They make neat gains year after year. That in itself would be OK, but in order to make their profits they treat their employees like shit. As a part of their day-to-day business practices, they not only routinely transgress on labor laws in many ways, but they bilk their employees, who work for hunger wages, out of millions of euros. In order to do this they fals thatify, sorry, "correct" working hour records so that over-hours are never shown, they routinely fire people who become sick, who take vacations, who would have the right to maternity protection under the law, they routinely "forget" to pay overhours if these are recorded, they extort employees into working 12 and 16-hour days for weeks (w/o just compensation, of course) should these want to keep their job.

So, how is REWE (or Wal-Mart) different from the people who sell drugs or who make kiddy-porn films ? REWE routinely and as part of every-day business operations subverts and transgresses against standing laws and do real damage to real people. A significant part of their earnings comes from their customary transgression of laboral laws, from bilking their employees out of substantial amounts of compensations and benefits they should otherwise receive under standing laws, just as a significant of the earnings of any drug-running gang comes out of them breaking laws against selling drugs ...

Is the difference that these (and other) corporations invest some of their gains in lawyers and PR people ?

Does the difference stem from the fact that part of their business is legit ?

Second question to the lawyers: how does one go about having an organization declared criminal if one is neither a lawyer nor part of the judicial system ?Is there any example ?

Update [2006-5-19 9:53:2 by name]: Clarification
I am not talking here about "not being nice". I am talking about corporations clearly breaking the laws of the land, be that land called france, spain, austria or the US or whatever. "not being nice" would IMO fall under harassment or mobbing, in some jurisdictions punishable with prison terms.

what i am talking about here is: if the law says "the minimum wage is $n per hour" and corporation X pays their people less than $n per hour, that IMO is a clear violation of laws. if the law says "pregnant women shall not be dismissed" then pushing pregnant women out is IMO a clear violation of laws. in both both cases laws are being broken for profit. in both cases these corporations get away with it.

second clarification is about my question. what i want to know is what is the criteria in various jurisdictions - mainly european - to declare that an organization is a criminal organization (and since we are at it, why are not organizations like ENRON prosecuted under RICO ?) and treat it accordingly:

- must an organization, corporation, whatever, derive "some" of its income from fraud, extorsion or any other violations of the law in order to be treated as a criminal organization ?
- or must this corporation "customarily" violate laws, even minor ones, in order to make profit, so that it is seen as a criminal organization ?
- or must this corporation derive "at least so and so much percent" of its income from law transgressions ?
- or must a corporation derive "most" of its income from law transgressions ?
- or is there any other criterion or set of criteria used in order for "iustitia" to acquiesce to the fact that this organization is criminal ?

for the sake of argument i bring in another, added, question: the mircosoft vs. EU case: AFAIK M$ violated laws and did so continuously and knowingly and calculated the profits derived from those transgressions into their business so that they ultimately rested their business model on continued violations of the law. why is the EU then "in talks" with M$ instead of giving them the obvious treatment they deserve, namely to throw the top 2-3 echelons of management and all their lawyers into the slammer ?

That's a very interesting question in regard to Europe, which I assume has tougher labor laws.  

But I always thught that a "criminal organization" is one which breaks the laws (and in most places where Walmart does business, their terrible business practices are within the law) and that the entire organization exists in order to subvert the law (rather than say, is run by people who just happen to be breaking the law.)

For example, selling narcotics or human beings is not something, in most places, that you could do legally, whereas selling clothing and lawnmowers is.  So an organization of drug smugglers exists to provide a service outside what the law allows for.  Secondly, their business practices rely on murder, extortion, etc. which are clearly illegal, whereas corporations like Walmart can treat wokers like shit but know how to do it in such a way as to make them immune from prosecution, they know the loopholes. etc.

In the end it seems that business practice is not judged in the same way as services provided and using money as a weapon isn't judged in the same way as using a gun.  There's a diary in there somewhere.  Means justify the ends...

All that said, I think we should absolutely begin refering to these companies as "criminal orgainzations" because they really are, we just haven't created the criminal code to fit the crime yet.

Those who can make you believe absurdities can make you commit atrocities. -Voltaire

by p------- on Wed May 17th, 2006 at 12:27:47 PM EST
I am no lawyer either, but selling narcotics is, in most places something you can do legally.

Provided you are accepted as a pharmaceutical company.

Sweden's finest (and perhaps only) collaborative, leftist e-newspaper Synapze.se

by A swedish kind of death on Thu May 18th, 2006 at 03:37:31 PM EST
[ Parent ]
I should have been more specific: legal narcotics.  Although you also have to be a qualified pharmacist to deal the legal stuff...  At least in America.

Aside: Considering we are of the few who have responded to this diary, I really don't understand the low ratings being handed out...

Those who can make you believe absurdities can make you commit atrocities. -Voltaire

by p------- on Fri May 19th, 2006 at 01:49:13 PM EST
[ Parent ]
Yes, the word "criminal" seems to refer to the letter of the law, not to soft concepts like "common decency".

If you say they are not "nice", then most people will agree, but then say either
a) Yes, well, but what can I do? (Implying the answer is "nothing".)
b) It's a corporation and not a charity, you know.

sapere aude

by Number 6 on Fri May 19th, 2006 at 05:31:12 AM EST
[ Parent ]
I think it's possibly because corporate violence being one stepped removed from the kind of direct physical violence that criminal gangs rely on.

There's also no widespread understanding that economic violence is a criminal activity. Depriving someone of their livelihood to make yourself richer is only notionally less criminal than shooting them in the leg and robbing them. But because it's clean and there's no blood it can seem to be less criminally damaging.

Two things that need to change are a better understanding of cause and effect which puts corporate violence inside the circle of criminal activity rather than outside. And a more widespread understanding and acceptance that economic violence is still violence. In other words that this isn't a clean economic issue where only numbers and abstractions matter. But that it's about real violence perpetrated on real victims with some very real and frightening social effects.

by ThatBritGuy (thatbritguy (at) googlemail.com) on Fri May 19th, 2006 at 09:49:48 AM EST
[ Parent ]
Thank you for bringing this topic to the forefront. I hope to find some time to comment ; the least I can do is recommend it.

When through hell, just keep going. W. Churchill
by Agnes a Paris on Thu May 18th, 2006 at 02:13:57 PM EST
I think this is a fascinating topic, and your diary furthers Jérôme's post on "The Business case". To what extent is it the business of lawyers and regulators to "interfere" with the conduct of activities of legal and illegal businesses ?

I attended a "Ethics in the Corporate world" course back at college and the personal conclusion I drew are as follows :

  1. Ethics is a selling concept, nothing else, at global corporate scale. Ethics is meaningful only at individual level, ie managers are prevented by labour laws to fire everybody without notice, but only their individual sense of morality will (or will not) hinder them from treating their employees like crap.

  2. Companies are profit driven, and only the threat of seeing their profits shrink can compel them to abide by the set of regulations designed to make the corporate world evolve from its raw liberal original form. Same for any social community, as Hobbes so pointedly phrased it : the main reason we let "the monopoly of legitimate violence rest with the Sate" is to avoid anarchy.

I am not a lawyer myself, but from experience of working with them I dare say their focus is protecting their clients interests, not making the world a better place.

And if I may be so bold and make a suggestion to the gnomes, this diary deserves being front paged. Indeed, it addresses a complex issue that we debate and should debate more as a left wing community, ie the relationship between human beings and companies in the business world.

When through hell, just keep going. W. Churchill

by Agnes a Paris on Fri May 19th, 2006 at 08:34:45 AM EST

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