15 December 2017
Following the reform brought about by Organic Law 5/2010, of 22 June, which introduced the criminal liability of legal persons into our legal system, our courts have handed down several sentences to legal persons for their participation in criminal acts.
Beforehand, we should recall two pioneering rulings on the matter, which have already been analysed by Sánchez-Cervera Abogados in previous articles: Ruling of the Supreme Court of 29 February 2016 and Ruling handed down by the Criminal Division of the National High Court on 15 July 2016.
Although it is true that the law provides for a prevention measure with the possibility of acting as an exoneration, which is very much in vogue, such as the ‘criminal compliance’ or crime prevention model, not all companies carry it out and the reality is that convictions of legal persons are on the increase.
Below we highlight some of the convictions that have been handed down in the area of criminal liability of legal persons, in chronological order, starting with the most recent ones:
One of the most notable recent judgments of the Supreme Court in this regard was 668/2017 handed down on 11 October 2017. This case concerns the nuisance caused to some neighbours by excessive noise from a nearby nursing home. Following an appeal in cassation by the plaintiffs against the legal person (the owner of the residence), the latter was acquitted.
The importance of this judgment therefore lies in the grounds for acquittal. Liability for one’s own actions is one of the main sine qua non requirements for proclaiming criminal responsibility and thus the fact that any conviction of legal persons must be based on the unrenounceable principles that inform the law. One of these principles is to establish in advance that the offence has been committed by at least one natural person who is a member of the organisation. Such a commission can occur either by action or by omission of the duty of care. In this case, your Honour considers that the object causing the damage complained of, i.e. ‘the excessive noise generated by the activity carried out in the nursing home’, has been attempted to be repaired on several occasions by the defendant in good faith and that therefore the elements of the type of the offence of noise pollution of which he is accused are not fulfilled.
On the other hand, Criminal Court no. 4 of Valencia, in its Judgment no. 73/2017 of 20 February, judges the creation of companies of a merely instrumental or ‘screen’ nature with the aim of harming their creditors and evading obligations to/with them. The company’s management team was therefore sentenced to up to two years’ imprisonment and the company was sentenced to a 2-year fine of EUR 60 per day as criminally liable as a necessary co-operator in the crime of punishable insolvency.
It is also worth noting Supreme Court Ruling 827/2016 of 3 November. In this case, the substance of the case lies in the drawing up of a fictitious bill of exchange, drawn up by the sole administrator of the issuing company and in cooperation with one of the main partners of the injured company, in order to collect the non-existent debt.
After being sued by the other two partners of the damaged company, the defendants presented three invoices and an acknowledgement of debt, created ex novo, to the court in order to get away with it. Finally, the company was sentenced to a fine of double the amount for which the bill of exchange had been issued and to pay one third of the costs of the proceedings as the criminally liable perpetrator of attempted fraud in the course of the proceedings.
Finally, it is worth mentioning the Judgment of the Provincial Court of Barcelona of 14 December 2016, which condemned FC Barcelona in the case known in the media as the ‘Neymar Case’. The club was accused of awarding contracts with companies linked to the footballer’s family, simulating the real purpose of the payments, which in reality was to cover up real payments to the player. Remuneration that should have been taxed as earned income under non-resident income tax, if applicable, and not under corporate income tax.
