The suspect’s presence on the soil of the prosecuting State

For individuals – corporate executives or other members of the company – there are two elements unanimously constituting presence. In the first, passing through the territory of the prosecuting State is usually sufficient to meet the condition of presence. In the second, unless presence is required at the time of trial, the condition of presence is not met if it is the result of extradition. In this case, voluntary presence is required.

Criteria differ from one State to the next

However, there are differences among States on the question of when this test should occur. The same State sometimes uses different criteria depending on the offence in question. States offer several approaches: 1) the time the complaint is lodged, 2) the time the proceedings begin (see the French position, below), ¹ the time of the trial (see the Spanish position, below) ² or a “less determined” moment. ³ In actuality, this condition is defined by national principles of procedure, and although additional principles are sometimes drawn from international human rights standards, they are not drawn from international law itself. ⁴

Overview the French position

In France, Article 689-1 of the Code of Criminal Procedure requires that the suspect “be located” on French soil prior to the commencement of any proceedings related to international conventions establishing universal jurisdiction and listed in articles 689-2 and following of the Code of Criminal Procedure.

The interpretation of when the person being prosecuted must be present on French soil is not clear. The Court of Cassation indicates in a 2017 decision that the presence of the person must be noted at the opening of the investigations. ⁵ This position is not unanimously accepted by the various institutions involved. For example, the Central Office for Combatting Crimes Against Humanity, Genocide and War Crimes (OCLCH) considers that the investigation falls under the jurisdiction of France as long as the person concerned was present in France when the complaint was filed ⁶ .

For example, in 2018, a complaint was filed against Prince Mohammed Ben Salmane of Saudi Arabia shortly before he left France. Even though the investigation had not formally begun at the time of filing the complaint, the investigating magistrate opened an investigation, since it had been proven that Prince Mohammed Ben Salmane was indeed present on French soil when the complaint was filed. ⁷

It results from a ruling issued by the Court of Cassation on 9 April 2008 in the case of disappearances from Brazzaville Beach and from a ruling issued by the Criminal Chamber of the Court of Cassation on 21 January 2009 which gives trial judges sovereign discretion to determine whether the suspect is on French soil at the time of the prosecution’s commencement. ⁸ Once the accused is found to be on French soil and once proceedings have been initiated, they may continue even if the perpetrator leaves the country (see the case of the Mauritanian lieutenant Ely Ould Dah sentenced in absentia on 1 July 2005 to 10 years imprisonment by the Nîmes Court of Appeal for acts of torture committed in 1990). On the Ely Ould Dah case, in its final conclusions and recommendations addressed to France, the Committee against Torture recommended that “when the State establishes its jurisdiction over torture cases in which the accused is present on any soil under its jurisdiction, it should adopt the measures necessary to ensure that person’s detention and presence, in accordance with its obligations under Article 6 of the Convention.” ⁹

Overview the Spanish position

Spain’s Ley Orgánica del Poder Judicial does not expressly require the presence of a suspect on Spanish soil to exercise universal jurisdiction. Thus, in the Pinochet case, the Audiencia Nacional found Spanish courts competent when Pinochet was in the United Kingdom. Except under exceptional circumstances, however (see arts. 791(4), 789(4) and 793 of the Spanish Code of Criminal Procedure), trials in absentia are not permitted. The Tribunal Supremo’s 25 February 2003 ruling in the Rios Montt case, however, contextualises the lack of a presence requirement until trial. In this case, the Spanish high court ruled that in accordance with the principles of State sovereignty and non-interference, Spanish courts cannot exercise jurisdiction over cases allegedly constituting genocide unless there is a connecting factor with Spain. Spanish courts “do not specify the time at which the perpetrator must be located on Spanish soil, but imply that this element would be crucial prior to establishing a Spanish court’s jurisdiction. The launch of an investigation in the accused’s absence could nonetheless still be possible.” ¹⁰

The time at which presence is required will likely depend on whether presence is a condition for the establishment of criminal jurisdiction in order to avoid jurisdictional conflicts. If so, the condition must be met at the time of the prosecution, or upon the lodging of a complaint. If presence is a procedural requirement, however, and necessary only to avoid a trial in absentia, preliminary investigations may be initiated in the suspect’s absence. ¹¹ While investigations in absentia are relatively common and uncontroversial in international law, trials in absentia may provoke debate. ¹²

To the best of the authors’ knowledge, the scope of a corporation’s “presence” has not yet been fully clarified by criminal jurisprudence. Touching upon this issue, Henzelin notes that in certain cases, a foreign company is considered under the Alien Tort Claims Act as being on US soil “from the moment it carries out some of its activities there.” According to Henzelin, frequent trips by a representative of a foreign company to the United States are sufficient to create the minimum ties necessary to establish jurisdiction in US courts. ¹³

In terms of criteria for criminal liability, several options exist for establishing the presence of a company in an EU Member State.

The company has its headquarters in the Member State (a situation similar to nationality, see above);
The company owns a place of business in the Member State (a situation similar to residence, see above); or
The company simply conducts business in the Member State.

Requiring that conditions corresponding to residence be met seems inappropriate given the way the concept of presence is applied with respect to individuals. To establish “presence”, individuals do not need to maintain continued residence on the soil of a county, but simply pass through the country occasionally. Thus, the question remains whether Total’s partial ownership of its subsidiary results in the parent company’s ipso facto “material presence” in Belgium, regardless of any complicity by the Belgian subsidiary in the offences committed in Burma.

Requiring presence on a State’s soil is logical from the perspective that there is possibility of apprehending alleged perpetrators in order to judge them. In this sense, it is reasonable to argue that a subsidiary, branch or representative office meets the condition of presence within a prosecuting State only if it has provided assistance to the foreign parent company to commit an offence in a third country. ¹⁴

The Total case in Belgian courts

In its 5 May 2004 ruling, the Belgian Supreme Court held, however, that the presence of Total’s co-ordination centre – the central administration providing all functions necessary to represent the industrial and commercial group – was insufficient to establish the multinational’s material presence on Belgian soil. The co-ordination centre’s participation in Total’s operations in Burma, however, cannot be so easily denied. Holding that the co-ordination centre is a separate legal person, however, the court is likely to simply dismiss the idea that the parent company itself is present on Belgian soil. The possibility of lifting the corporate veil, thus, was not considered.