Since the reform introduced by article 31.1 bis of the Criminal Code, under which legal persons can be held liable for offenses committed through them, a ruling by the Supreme Court analysing this new concept and helping companies to establish a series of interpretive guidelines when developing and implementing compliance systems in their daily operation was expected.
Law 5/2010 of 22 June, which amended Law 10/1995 of 23 November of the Criminal Code, introduced the criminal liability of legal persons for committing certain crimes into our legal system, a reform which has undergone a process of review and modification intended to refine the identified deficiencies identified in its first 5 years of operation. This new reform was implemented by Law 1/2015 of 30 March, and entered into force on 1 July 2015.
The latter reform, which has been in force for only 5 months, has clarified the measures and prevention systems to be adopted by legal entities to prevent the commission of crimes within their organisations and to implement the exemptions regulated in the Criminal Code. In spite of the above, it must be noted that since the introduction of the criminal liability of legal persons, certain doubts have been raised from both the doctrine itself and from the business sector regarding how this liability will be applied in practice and which requirements will be considered by the Courts in evaluating the preventive measures which have been implemented, and whether they are sufficient to be considered as exempt from this responsibility.
The few rulings handed down to date do not facilitate an explanation as to which criteria will be followed by our Courts to attribute criminal responsibility to a legal entity as the matter has been dealt with from a basic perspective, almost superficial, in fact. Indeed, until last September the Supreme Court had ruled on the criminal liability of legal persons through Judicial Decree 2008/2011 of 15 December 2011, Rec. 1201/2011, by stating that the criminal liability of legal persons does not exclude the responsibility of natural persons who may be involved in the company, and through Sentence 436/2012 of 28 May regarding the enforcement of the penalty of closure of premises in the context of drug-trafficking offences committed through a business or organisation, after the amendment that came into force with the reform of Law 5/2010.
Thus, the Audiencia Provincial de Cádiz (Provincial Court of Cádiz) (Section 4) in its Judgment no. 81/2014 of 17 March determined that legal persons are only responsible for those crimes expressly set out in the Criminal Code and not in the commission of offenses. The Audiencia Nacional (National Court), in its pioneering act indictment dated 11 October 2011 (no. 19/2011), charged 5 companies for the crime of drug trafficking because it was suspected that the companies’ activities of export of machinery were covering up cocaine trafficking operations. However, this resolution does not analyse the criminal responsibility of legal persons, rather it can be considered more as a lifting of the corporate veil, considering the societies were accused because they were managed by the natural persons charged and further carried out barely any activity.
Also, the Audiencia Nacional has pointed out in the Indictment no. 260/2014 of 17 December (Section 4, Criminal Division) that State corporations can be also found criminally responsible and that the exclusion provided in this regard in Article 31 bis.5 would only apply to the State and other Public institutions and agencies. Finally, in Judgment no. 2/2015 of 23 January the Audiencia Nacional stated that companies not formally incorporated or lacking legal personality cannot be declared criminally responsible because “irregular companies lack their own assets, and consequently cannot be dissolved because they do not exist as such, nor can they be fined because they do not have autonomous assets”.
In conclusion, and as is clear from the above, so far there has not been a judgment handed down that rules beyond that explicitly established in the Criminal Code, a situation that has not been modified by the first judgment of the Supreme Court on this issue. Although a greater depth of analysis of the principle of criminal responsibility of legal persons was expected, the truth is that the most important conclusion on the matter is the following: This Court has not had the opportunity to rule on the basis of liability of collective entities declarable under art. 31 bis of the CP […] It seems clear that any damning declaration of legal entities must be based on undeniable principles underlying criminal law […].
That is to say, we know that legal persons will be judged under the principles of legality, guilt, subordination, protection of legal rights or harmfulness and presumption of innocence, equality and proportionality in the imposition of penalties, but once again the criteria or requirements that will trigger the imposition of penalties for legal persons are still not properly analysed by the Court, leaving companies ample leeway when designing their systems for preventing the commission of crimes and a degree of uncertainty as to when they must be applied.