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Publicado el 31/3/2017
Since the last reform in 2015 on criminal liability of legal persons, the Supreme Court has issued eight judgments on this issue. In this opportunity, CONFILEGAL has an expert in these new topics such as Juan Antonio Frago, economic crimes prosecutor in A Coruña, and author of a blog that is already a reference for this sector http://enocasionesveoreos.blogspot.com. is/
For Frago, what we ask about these sentences states that "it is not that there is so much an evolution in the doctrine of the Supreme Court. All sentences less the second have been pronounced on purely procedural issues, in some cases very necessary, but it is necessary to go in the substantive part, which will generate many problems, given the parsimony of the regulation, although they have been added Four articles in the general part of the Penal Code ".
Also when we comment on what aspects the Supreme Court has to decide, this regulatory compliance expert points out that "the Supreme Court has barely pronounced itself on issues in the Criminal Code, because it has not been raised, beyond the second sentence, That there is much to sow. It must be taken into account that the TS has seen, in all cases, cases of companies that had nothing at all: no compliance plan, no compliance officer, no ethical code and disciplinary system, etc. "
For Frago, the High Court, especially in its second and third judgments, has asked the Parliament to regulate the declaration of the legal person when there may be conflicts of interest, particularly when it declares the same person to be physically investigated and as a specially designated representative of The legal ones, which in my practice I usually see, given that the Spanish business fabric is very small and medium-sized enterprises.
From his point of view, "what is really needed is an all-encompassing procedural regulation, given that little was introduced in Law 37/2011, leaving many issues in the background, and also a regulation of the figure Of the compliance officer, without legal status at this time.
Another issue that is unregulated are the whistleblowers or whistleblowers, especially if they are workers of the company, encouraging them to be possible, as in the US. This and other issues, such as the regulation referred to in the Criminal Code for the development of judicial intervention, whether in the instructional or executive phase, which has not yet seen the light.
The Provincial Court of Madrid sentenced an administrator and the company for fraud. Although the company did not appeal, the Supreme Court understood that, since the conduct of the administrator was not constitutive of fraud, it should proceed to acquit ex officio also the legal person. Attention is called to the TS on the extreme that the Audiencia did not pronounce on the guilt of the legal person, either to appreciate the vicarial system or the one of straight responsibility.
Four months later comes the second sentence of February 29, 2016 ...
This is by far the most interesting. It is a full sentence in which resolves the appeal of a cassation against a sentence of the National Court against several administrators and companies, who intended to introduce more than five thousand kilos of cocaine in our country, housing them in the holes of heavy machinery.
This sentence is very interesting, since it ratifies a penalty of dissolution, fines of more than 775 million euros, enters into the individualization of the sentence (66 bis Cp), etc. However, the Supreme is split in two, by voting 8-7, in the sense that the accusations will have to prove that the compliance plans were inidóneos.
To date, any absolutionary excuse, justification, exoneration, mitigation, etc., should be credited by those who were interested (the defense), and this breaks the secular tradition in an inexplicable way.
I believe that a drug-trafficking sentence of "almost pirate" companies was not the prototype of a "guiding sentence," as it was not a business class that was widely used by businesses, as well as because they had no compliance plans.
Honestly, I think the Supreme should have left that capital point for a company with a more usual business. If it is said that the criminal law of the legal person seeks to put the ball of crime prevention to the company itself, it should prove the suitability or not of the model, and not the Prosecutor, who knows no "guts" of the company Concrete.
On the third, on March 16, 2016, rapporteur Manuel Marchena Gómez, president of the Criminal Chamber, reversed a sentence of the Audiencia de Cáceres. What happened in this case?
Simple. The examining magistrate did not take individualized statement as investigated to the legal person, complying with arts. 119 and 409 bis LECRIM, and the Prosecution did not appeal and went ahead. To make matters worse, the Audiencia condemned with such a blatant procedural error. The resolution of the Supreme is absolutely logical, in revoking this sentence.
If it is said, as was already done in the second sentence of the Supreme Court, that guilt is separate (and not a vicarious system), procedural rights must be guaranteed autonomously.
"Lack of an all-encompassing procedural regulation of the legal person. Many issues have been left in the foreground. We must regulate the figure of the compliance officer and the so-called whistleblowers or whistleblowers, especially without being employees of the company. "
The fourth, dated 13-VI-2016, considered that the imputation of the company could not be attributed to an alleged environmental crime, why?
The Supreme Court considered that the imputation of the company could not be imputed for an alleged environmental crime, since the facts had taken place before the reform of the Criminal Code. The condemned man, who opened an illegal quarry in a protected area near Ponferrada, wanted the company to be condemned, not to him.
The Supreme Court understands that art. 31a Criminal Code at that time, and that it was the accusations, if any, that should have requested it, and it is not within the reach of an accused person to seek the conviction of another person, whether physical or legal
From 6-X-2016, it is the fifth that estimates the appeal of the Prosecutor's Office in what comes to be a rocambolesca procedural issue. I think it's related to the third and fourth, right?
So I analyzed it in my blog. The performance of the Prosecutor's Office was correct, not so those of the instructor and Audiencia, with what the Supreme ended up giving us the reason, albeit with the enormous loss of time and resources that has meant.
The sixth, of 3-XI-2016, confirms the previous one of the Audiencia of Barcelona.
Exactly, due to procedural fraud, such as another that has been recently issued by the Audiencia of Zaragoza in the field of companies related to the greengrocer. The scam will be the star crime in this responsibility of legal persons, and it is only necessary to see that, of the eight sentences of the Supreme Court, the 1st, 3rd, 6th and 7th affect this crime.
Two months later comes the seventh, on 26-I-2017, which confirms a sentence, this time from the Audiencia of Valencia.
Yes, and in fact only affects issues of civil liability, much talked about for decades, which brings nothing, since the company was already acquitted in Valencia.
And, for the moment, the eighth, of 23-II-2017, which ratifies a sentence of the Audiencia of Pontevedra, in a case against the rights of workers. Is it relevant?
Of course, given that it clears the doubt, very common in congresses and seminars, of whether it could be condemned as an offense against the rights of workers to companies, in a negative sense. By the way, the Audiencia of Castellón condemned by conformity to an accused exactly by the same crime, article 311. 2 Criminal Code, to have a high percentage of workers without being registered with the Social Security.