Towards a possible evolution of the criminal liability of the legal entity

The North American system of imputation of criminal responsibility of legal entities rests on the vicarious system, specifically on the doctrine of the superior responder from which it is possible to attribute responsibility to the legal entity for the acts committed by its employees, generating a system of responsibility by transfer, while the Spanish system seems to be heading towards an imputation for the act itself, renouncing the vicarious system that the already famous Circular 1/2016 opted for, but the North American system has – in my humble opinion – an element that I believe that sooner or later it must be incorporated into our system, and it is the fact that in the North American federal system, as well as in state systems, public legal entities can also be criminally responsible.

Although our art. 31 quinquies in its section 1 expressly establishes that “The provisions relating to the criminal liability of legal persons will not be applicable to the State, to territorial and institutional public administrations, to Regulatory Bodies, Agencies and public Business Entities, to organizations international public law, nor to those others that exercise public sovereign or administrative powers,” I consider that this non-application of 31 bis is an element that must eventually disappear as long as all legislation, both at the national level and in the scope of the comparative law, shows a tendency towards the inclusion of the culture of compliance, extending to various areas of society; Listed companies already have their specific sector regulations, the latest reform of the Penal Code greatly expands the presence of compliance programs in our society, and Directives 2014/23/EU and 2014/24/EU on the adjudication of concession contracts and public procurement respectively (Directive whose transposition period ended in April 2016, so we are already out of date, but by Resolution of March 16, 2016 of the General Directorate of State Heritage, the recommendation of the Administrative Contracting Advisory Board in which the direct and interpretative-integrative effect is recognized as of April 18, 2016 of this community regulation) make it necessary to consider that the culture of compliance is being sought to be inserted into society Spanish, is to confirm a fact.

Therefore, given that we are clearly experiencing an expansion, incorporation and insertion of the culture of regulatory compliance within our society, I do not consider that the idea of ​​a possible imputation of criminal liability to public legal entities is so unusual or so fanciful. -which must also involve the incorporation of the corresponding regulatory compliance programs for these entities-, in application of this intention to integrate the culture of compliance in all aspects of society; The commission of criminal offenses can occur in both the private sector and the public sector. We cannot fall into the erroneous idea that the public sector is, because it is public, perfect per se, or that administrative law is enough to promote this culture of compliance in the most effective way possible, although the penalties that could be imposed on a public and a private legal entity should be modulated and clearly differentiated (just as certain special crimes only carry penalties of special disqualification, such as 447 or 448 CP); It is nonsense that clearly attacks the Welfare State and civil society, the idea that the penalty to be imposed is dissolution, a ban on operating in a certain territory or a fine, for obvious reasons (not just because it is disproportionate). but for reasons of public utility). However, the imposition of a sentence of judicial intervention in which a member of the Public Prosecutor’s Office assumes the responsibility of ensuring effective regulatory compliance, reporting to the judge who imposes the measure the progress they produce, so that this does not turn out to be so meaningless. can suspend the sentence, once the intended goal is a fact. Therefore, it may be a prosecutor who acts – like the corporate compliance officer – within the entity in which the illegal act related to an organizational defect has occurred, with a view to normalizing the situation and turning that specific public entity from being non-compliant, to compliant.

The North American system provides for the possibility of the imputation of the public legal entity through the doctrine of sovereign immunity, which could be incorporated into our legal system, since the idea of ​​requesting a kind of permission to be able to do so should not be strange to us. exercise criminal actions – we have the example of the request regarding Deputies and Senators, for which it is necessary to obtain the favorable vote of the corresponding Chamber in order to investigate and prosecute a member of said Chamber, so the idea of ​​obtaining a kind of permission from a higher body to proceed criminally against someone is not an illogical, absurd, strange and contrary to our system – idea, which if taken to the case could translate into requesting the specific Ministry in which that specific public entity is inserted to investigate, effective consent to carry out the investigation, and prosecution.

Therefore, by way of conclusion, I reaffirm my idea that it is necessary to incorporate into our legal system the criminal liability of legal entities of a public nature (just as it is necessary to advance from the current numerus clausus system of crimes to that of numerus apertus), in order to ensure that the culture of regulatory compliance, that the culture of compliance with legality, penetrates deeply into our society so that one cannot be separated from the other.