The 20 crimes for which a company can be convicted
However, the response of Justice is being slow in these cases: although in 2010 the criminal liability of legal entities was introduced for the first time in the Penal Code, four years later the measure has still not taken effect in the courts. , where there has still not been a single conviction against a company as a result of this regulatory change.
Meanwhile, legislation in this regard continues to advance. A new reform of the Penal Code has been stalled in Congress for more than a year – and there are 26 of them – which, among its multiple and varied measures that affect a third of the articles, also includes an expansion and clarification of some aspects related to the criminal liability of companies, bringing the Spanish model closer to Anglo-Saxon regulations with the introduction, for example, of the figure of the 'compliance officer' or the person responsible for regulatory compliance among its star measures. This is intended to incorporate greater control of irregular activity that may occur in companies, with the damage that all this may entail for shareholders or society in general.
List of crimes
With the current Penal Code in hand, there is currently a whole list of crimes – more than 20 – for which a company can be criminally punished (see attached graph), according to Luis Pastor Motta, prosecutor of the Technical Secretariat of the State Attorney General's Office, during a conference on 'News in the criminal liability of companies', organized by the firm BDO. And the fact is that, although a company cannot be 'imprisoned', the reputational and social damage of being criminally condemned by Justice outweighs a mere administrative sanction, as was the case previously.
The list ranges from issues such as illegal trafficking of organs to the financing of terrorism, although the most frequent crimes committed by companies as legal entities are those linked to economic issues such as scams, punishable insolvencies, money laundering, tax fraud or Social Security, bribery or influence peddling, among others.
However, the criteria followed for the selection of these assumptions and the exclusion of others are unknown. In fact, many experts find it surprising that it is considered that criminal liability may arise for the legal entity for unlikely or infrequent cases in a company such as those related to child pornography and yet they are left out of the list, for example, crimes against workers' rights.
Administrators' concern
With the current regulation and the one that is coming, the concern of the social administrators of the companies is growing. Without going any further, article 286.6 of the project provides for a crime of omission of the duty of surveillance and control for the legal representative or de facto or de jure administrator of any company, organization or entity that lacks legal personality, that omits the adoption of the surveillance or control measures that are required.
In this sense, BDO partners Ignacio Legido and Enric Doménech insisted at the conference organized by the firm on the need for companies to have a regulatory compliance plan, with a supervision and control body and ensuring that this plan is as as personalized as possible and adapted to the specific circumstances of the company, and not simply a generic protocol. All of this will allow us to reduce the responsibility that can be attributed to the firm as responsible for the crimes committed within it, if the new regulation pending approval in Congress finally goes ahead.
Keys. The applicable penalties
The penalties applicable to legal entities, according to article 33.7 of the Penal Code are the following:
– Fine by quota or proportional.
– Dissolution of the legal entity. The dissolution will produce the definitive loss of its legal personality, as well as its capacity to act in any way in legal traffic, or carry out any type of activity, even if it is lawful.
– Suspension of its activities for a period that may not exceed five years.
– Closure of its premises and establishments for a period that may not exceed five years.
– Prohibition of carrying out in the future the activities in the exercise of which the crime has been committed, favored or covered up. This prohibition may be temporary or permanent. If it is temporary, the term may not exceed fifteen years.
– Disqualification from obtaining public subsidies and aid, from contracting with the public sector and from enjoying tax or Social Security benefits and incentives, for a period that may not exceed fifteen years.
– Judicial intervention to safeguard the rights of workers or creditors for the time deemed necessary, which may not exceed five years.
Table of crimes and penalties (made by Ana Vela Mouriz, from the editorial staff of The Legal Consultant)
| CATALOG OF CRIMES FOR WHICH LEGAL PERSONS MAY BE RESPONSIBLE | ||
| CRIME | GRIEF | ARTICLE |
| Illegal trafficking of organs or their transplant | Fine of three to five times the profit obtained | Art. 156 bis 3 CP |
| human trafficking | Fine of three to five times the profit obtained | Art. 177 bis 7 CP |
| Crimes related to prostitution and corruption of minors |
|
Art 189 bis CP |
| Crimes against privacy and computer trespass. | Fine 6m-2a | Art. 197.3 CP |
| Scams and frauds |
|
Art. 251 bis CP |
| Punishable insolvencies |
|
Art. 261 bis CP |
| Computer damage |
|
Art. 264.4 CP |
| Crimes against intellectual and industrial property, the market and consumers and private corruption | • Crimes of arts 270, 271, 273, 274, 275, 276, 283, 285 and 286:
• Crimes of arts 277, 278, 279, 280, 281, 282, 282 bis, 284 and 286 bis:
|
Art. 288 CP |
| Reception and money laundering |
|
Art. 302.2 CP |
| Crimes against the Public Treasury and Social Security |
|
Art. 310 bis CP |
| Crimes against the rights of foreign citizens | Fine 2-5a or three to five times the benefit obtained, if the resulting amount is higher. | Art. 318 bis 4 CP |
| Crimes of illegal construction, building or urbanization | Fine 1-3a or, if the benefit obtained is higher, a fine of double to quadruple the amount of said benefit | Art. 319.4 CP |
| Crimes against the environment |
|
Arts. 327, 328.6 CP |
| Crimes related to nuclear energy and ionizing radiation | Fine 2-5a | Art. 343.3 CP |
| Risk crimes caused by explosives | Fine 1-3a, unless the damage caused is of a greater amount, in which case the fine will be double to quadruple the amount of said damage. | Art. 348.3 CP |
| Crimes against public health in the form of drug trafficking |
|
Art. 369 bis CP |
| False means of payment | Fine of two to five years | Art. 399 bis CP |
| Bribery |
|
Art. 427.2 CP |
| Influence peddling | Fine 6m-2a | Art. 430 CP |
| Corruption of foreign official | Fine 2-5a, or three to five times the benefit obtained if the resulting amount was higher. | Art. 445.2 CP |
| Terrorist financing |
|
Art. 576 bis CP |
| Certain cases of smuggling | In all cases, a proportional fine of two to four times the value of the goods, merchandise, goods or effects object of smuggling, and prohibition of obtaining subsidies and public aid to contract with the AAPP and to enjoy tax benefits and incentives or the SS for a period of between 1 and 3 years. Additionally, in the cases provided for in article 2.2 LO 12/1995, suspension for a period of between six months and two years of the import, export or trade activities of the category of goods, merchandise, goods or effects object of smuggling; in the cases provided for in article 2.3 LO 12/1995, closure of the premises or establishments in which their trade is carried out. |
Art. 3.3 LO 12/1995, repression of smuggling |
Fountain: www.noticiasjuridicas.com
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