Criminal Compliance
in the Spanish Legal System
General overview compared to the German system
During the XXXV Congress of the German Hispanic Association of Jurists held in the city of Tarragona on the 16, 17 and 18 September 2021, Dr. Jesus Becerra, a lawyer specialized in Economic Criminal Law, outlined the general features of the Spanish system of criminal liability for legal persons.
It was an excellent opportunity to carry out comparisons with the current German system, thanks to the participation of Dr. Ingo Bott, German lawyer established in Düsseldorf, also specialist in Economic Criminal Law.
The dissertation given by the lawyer based in Barcelona mainly consisted of presenting cases in which a legal person could be subject to criminal charges and how the implementation of an effective criminal compliance program exempts criminal liability of companies, as recently established in the order of the Central Court of Investigation (Juzgado Central de Instrucción) No 6 on March 23 of the current year, which decided not to continue with the criminal procedure against a company “…because it has been observed that an effective prevention model supervised by an autonomous body, was adopted and executed prior to the commission of the offence…”.
The Spanish penal system. Crime prevention within the company
In this sense, and as Dr. Becerra explained during the event, there is a real chance that a legal person can be subjected to a criminal proceeding in Spain. And the tool to avoid it would be the development and follow-up of a compliance program: that is, having suitable strategies in order to prevent crimes within the company.
This means asking the company for “self-regulation”. In other words, shifting the tasks of surveillance, investigation and sanction (traditionally responsibility of the State) to the company’s own organisations.
On the other hand, there was a presentation of the arguments to justify the model, which basically respond to a reaction of legislators to certain trends of organized structures towards criminality as well as to the difficulty in attributing responsibility to individuals acting under their corporate umbrella.
The attribution of criminal responsibility to the legal person
The specialist also explained that the attribution of criminal responsibility to the legal person is based on the existence of an offence previously committed by a person holding a management position in the company or by someone under its command. This offence must have been committed “in the name” or “on behalf” of and for the benefit of the company. On the other hand, the specific attribution of the crime to the company is based on the fact that there is a lack of controls that facilitates the criminal activity of that natural person.
Special emphasis was put on the fact that legal persons are criminally liable for a delimited list of crimes mainly associated with Economic and Property Criminal Law (fraud, money laundering, tax fraud, etc.), with corruption cases (illegal funding of political parties, influence peddling, bribery, etc.), with punishable acts in which there is a high possibility that organized crime is involved (human trafficking, prostitution and drug trafficking) and also terrorism.
In particular, in accordance with Art. 31 bis of the Spanish Criminal Code, the company would be exempt from criminal liability when the Board of Administration has adopted an effective compliance program that enables proper supervision and control of the business activity and, on the other hand, when the natural person who has committed the previous crime or “base” crime has evaded the control and supervision measures by fraudulent means.
What does the implementation of a compliance program involve?
In this sense, the implementation of a proper compliance program implies, first of all, an analysis of the particular activity of the company in which the program is to be implemented and its environment, as well as a specific detection of posible crimes that could be committed ad intra. This also includes the scheduling of these preventive measures and the appropriate training of managers and staff of the company. Secondly, a surveillance system should be developed in order to have a rigorous and effective information source that favours the possibility of launching internal investigations to detect violations of compliance duties. Moreover, the detection of offenders would be completely useless without a system of sanctions that could be effectively applied. Finally, the compliance program should be subject to regular reviews that facilitate the introduction of corrective measures if required.
The German penal system
These key feautures of criminal liability of legal persons, as described by Becerra, contrast with the German system, where there is no criminal liability for legal persons per se. Although the implementation of compliance programs is on the agenda in Germany, non-compliance with the duties of supervision and control does not have criminal consequences on companies but only administrative sanctions on them.
This is because there is the possibility, according to paragraph (§) 30 (1) of the Administrative Offences Act (Ordnungswidrigkeitgesetz, which is usually abbreviated OWiG), that an administrative fine may be imposed on a legal person if an organ of that legal person or a representative or a person with managerial responsibilities within the company, has committed an offence or an administrative offence. With this system, everything related to sanctioning corporations is kept out of the criminal law and thereby, the incolumity expressed in the old Latin principle societas delinquere non potest.
Similarities and differences between the Spanish penal system and the German penal system of the criminal responsibility of the legal person
However, the sanctioning system in both countries has some similarities: for example, while the imposition of a fine is not the only existing sanction, its application tends to predominate in both systems and, when this is the case, logically the practical consequences are essentially the same.
Anyhow, Dr. Becerra points out that the essential difference lies in the “semantic weight”, in the bias that a company can be subjected to both a criminal procedure and a criminal sanction. Not ignoring that the companies submission to criminal proceedings implies an obligation for the authorities to provide legal persons with all the range of constitutional guarantees that exist in this jurisdictional order and that may not be applied with equal force in the administrative procedure.
Finally, we can state that the current Spanish system is still very new and is nowadays in full development. A quick search in Spanish case law databases, reveals, for example, that there are currently less than a hundred judicial decisions directly related to the application of art. 31 bis. Therefore, the necessary entrenchment and consolidation of the model requires more time.
Bibliography
- BÖSE (2011). «Corporate criminal liability in Germany», en PIETH/IVORY (eds.), Corporate Criminal Liability. Emergence, Convergence and Risk, Dordrecht (pp. 227-254).
- CIGÜELA SOLA/ORTIZ DE URBINA GIMENO (2020). «Tema 3. La responsabilidad penal de las personas jurídicas: fundamentos y sistema de atribución», en SILVA SÁNCHEZ (dir.)/ROBLES PLANAS (Coord.), Lecciones de Derecho penal económico y de la empresa, (pp. 73-95).
- KUDLICH (2013). «¿Compliance mediante la punibilidad de asociaciones? (trad. Montiel), en KUHLEN/MONTIEL/ORTIZ DE URBINA GIMENO (eds.)», Compliance y teoría del Derecho penal (pp. 283-300).
- MONTANER FERNÁNDEZ (2020). «Tema 4. Compliance», en: SILVA SÁNCHEZ (dir.)/ROBLES PLANAS (coord.). Derecho Penal y persona. Libro homenaje al Prof. Dr. H.C. Mult. Jesús María Silva Sánchez (pp. 97-119).