Individuals, or natural persons in legal jargon, can commit crimes and hence can be prosecuted for crimes. Similarly many jurisdictions provide for the criminal prosecution of juristic persons, popularly known as “corporations”. The question might rise should the criminal prosecution of the government be possible?
At first sight it would make sense that if a private corporation could face criminal charges, then the government – which is a juristic person too – should be treated the same way. Intuitively and morally the government should not be “above the law” and if it commits a crime, it should be held accountable.
Nevertheless, the criminal prosecution of the government is not as straight forward as it would seem. Important to note, we are here only concerned with the government as institution not of individual members of the government.
Under an inquisitorial system crimes are prosecuted by the government, which is represented by the public prosecutor. If the government could be prosecuted, then we would have the bizarre situation the state would accuse itself of crimes, Or put simply this would violate the principle that one could not sue oneself.
I admit this is quite a formalistic approach. But even from a more substantive point of view, the criminal prosecution of the government is problematic. Suppose that the government were convicted for crimes, how should the government be punished?
As a juristic person the government cannot be incarcerated nor could it be executed. Also community service is obviously out of the question. Which leaves us with monetary penalties or fines, which is the usual punishment for corporations convicted for crimes.
However, fines – as opposed to restitution – are paid to the government. Therefore even this option is virtually meaningless as punishment and hence there is no sensible way to punish the government even if it would be found guilty.
The only significance of the government being convicted in criminal court would be symbolic. In our opinion this would be a very weak justification for allowing criminal prosecution of the government.
Rather than criminal prosecution, the government should be sued in civil court if the government would have violated the law. A fundamental difference with criminal procedure, is that anyone who suffered from a civil wrong could sue the perpetrator in civil court. Also if damages are awarded, they have to be paid to the other party and not to government (unless the state happens to be that other party).
A conviction in a civil court has the same value as a criminal conviction. But a civil conviction of the government would be more substantial than a criminal one.
We conclude that criminal prosecution of the government is an inappropriate way to do justice and that civil action would be a more effective method to “punish and shame” the government for wrongful behaviour. However, this does not mean the government officials should not be prosecuted.