In the legal field, the criminal liability of legal persons has undergone significant changes in recent years. Prior to the enactment of Organic Law 5/2010, criminal sanctions of legal persons were limited to payment of fines imposed directly on the administrator or representative. However, with the introduction of article 31 bis of the Criminal Code, the criminal liability of legal persons is recognized as such.
Organic Law 5/2010: a turning point
Organic Law 5/2010 of 22 June, which amends Organic Law 10/1995 of the Criminal Code, establishes for the first time the criminal liability of legal persons. However, this responsibility may be declared only in cases expressly provided for by law.
The law established a twofold method for establishing the responsibility of legal persons. On the one hand, offenses committed on behalf of the entity by persons with the power of representation are imputed, and on the other, responsibility is attributed to violations caused by the lack of adequate control over employees. It is important to note that the criminal liability of a legal person can be declared whether or not the criminal liability of the natural person can be identified.
Reforms of 2015: Technological improvements and precise delimitation
With the entry into force of Organic Law 1/2015, amendments were made to articles 31, 31 bis and 31 ter, 31 quater, 31 quinquiz and 33 of the Criminal Code, among others. The main purpose of these reforms was to technically improve the regulation of criminal liability of legal persons and to substantially delimit the material of proper control, on which this liability is based.
The 2015 reform sought to remove any doubts that may have existed regarding the criminal liability of legal persons, making it clear that it is based on the principle of self-responsibility and must respect the principle of the presumption of innocence. These principles have a direct bearing on the rule of evidence and procedural guarantees that must be followed for sentencing.
The role of reasonable control and objective criminal responsibility
The State Attorney General’s Office has made it clear that a system of automatic liability of legal persons is not proposed. Although the conduct of natural persons may shift responsibility to the entity, organizational blame, perceived as a reason for immunity, serves as a presumption and reinforcement of guilt. It also eliminates any purposeful criminal liability of the company, as it would be contrary to the invariable principle of criminal law.
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