Criminal Liability of Legal Entities: Case of Transnationality (Spain)
Due to the importance of the issue of the Corporate Criminal Compliance at both national and international level, Bufete Escura has prepared and article in order to inform about the criminal liability of legal entities which is generating a growing jurisprudential body that develops the legal provisions in this regard, since these are not always sufficient to answer all the questions that arise. Hereby, Bufete Escura analyses the case of transnationality under the frame of Corporate Criminal Compliance.
One of the issues is the case of transnationality is what happens in cases in which the legal entity judged is foreign.
Article 23.1 of the Judiciary Spanish Law (LOPJ) states that “In the criminal order shall correspond to the Spanish jurisdiction the knowledge of the causes for crimes and offenses committed in Spanish territory (…), without prejudice to the provisions of the international treaties in which Spain is a part“. In the case of a foreign legal entity that committed a crime in Spain, the judgment of the Supreme Court 583/2017, July 19th, Supremo upheld the conviction that the National Court had previously imposed on a company in Mali that had committed a crime of money laundering in Spain. Actually, this company had been condemned for a crime against public health in the previous judgment of the Supreme Court 154/2016, February 29th.
However, the judgment of the National Court 23/2016, July 18th, showed a discrepant interpretation based on article 9 of the Spanish Civil Code. According to this judgment, it was not appropriate to agree on the dissolution of a certain company “because it is not a Spanish national company, in addition to its possible non-existence highlighted by the reports of the SVA aforesaid“. In this context, it should be recalled that the aforementioned article 9.11 CC states that “The personal law corresponding to legal entities is determined by their nationality, and will govern everything related to capacity, constitution, representation, operation, transformation, dissolution and extinction. In the merger of companies of different nationalities, the respective personal laws will be taken into account“.
Of course, it should be borne in mind that we are talking about the criminal liability of organizations with legal personality, although certain aspects have civil and/or administrative repercussions (such as their hypothetical dissolution in case of conviction, which should be registered in the corresponding Commercial Registry). Therefore, the contradiction between both norms must be resolved, as the Supreme Court does, in favor of criminal provisions, although in cases where the internal law of a foreign State is affected, it must necessarily comply with the provisions of such foreign law.
Another issue that can be posed is the opposite, that is, what happens when a Spanish legal entity commits a crime in a foreign State.
In this case, we must comply with the provisions of Article 23.2 LOPJ, which states that Spanish courts will know “about crimes that have been committed outside the national territory, provided that the criminally responsible were Spanish or foreigners who had acquired Spanish nationality after the commission of the event and meet the following requirements:
a) That the act is punishable at the place of execution, unless, by virtue of an international treaty or a normative act of an international Organization of which Spain is a party, this requirement is not necessary, without prejudice to the provisions of the following sections.
b) That the aggrieved or the Public Prosecutor interposes a complaint before the Spanish Courts.
c) That the offender has not been acquitted, pardoned or punished abroad, or, in the latter case, has not complied with the sentence. If only it has been fulfilled in part, it will be taken into account to reduce proportionally the corresponding one“.
Therefore, and not forgetting the other provisions of the aforesaid article (which are not cited as redundant), a Spanish legal entity that committed a crime abroad (for example, through a proxy that travels abroad) may be sentenced according to the rules of the Article 31 bis of the Spanish Criminal Code if the act was considered as constituent of a crime in the other State.
Finally, it should be remembered that in the cases of groups of companies operating at a multinational level the Compliance Programs of the parent company do not have why to serve their subsidiaries as such: they must have their own, adapted to the legislation of each States in which they operate. Without prejudice to this, the Parent Company Program may be used for some general guidelines, but it is extremely important, for all that has been explained up to now, that the Programs of the subsidiaries are adapted to the internal legislations.