Ensuring the criminal liability of companies

Until 2015, legal entities (limited or public companies, political parties, associations, etc.) could not be subject to criminal liability. In other words, they could not be convicted for committing a crime. This changed with the reform of the Penal Code, which opened the door for certain crimes to be directly attributed to the legal entity, in addition to the natural person who committed the criminal act within the organization.

With this reform, the penalties that can be imposed on companies for criminal conduct committed within their organization were established. It is noteworthy that there is a "death penalty" for legal entities, as the highest penalty that can be imposed for a crime attributable to the company is its dissolution.

On the other hand, at the same time that this regime of criminal liability of the legal person is regulated, a mechanism is also established to exempt or mitigate these criminal consequences. This is how "Crime Compliance Programs" or Criminal Compliance Plans, originating from Anglo-Saxon law, appear. By implementing one of these plans in the company, it is possible to exempt the legal entity from criminal liability, thus avoiding the application of any of the envisaged penalties.

Implementing a compliance plan is not a simple task, as it requires a detailed analysis of the company and an understanding of its activities and internal organization. It is necessary to analyze how the will of a legal entity is formed, through the decisions of its managers and employees, and how measures and controls can be implemented to prevent the commission of crimes that can be attributed to it. Additionally, one of the most important requirements for considering the prevention plan as a mitigating factor in criminal liability is that it be periodically reviewed and updated according to changes in the company and its environment.

One of the most high-profile cases where criminal compliance has come into play is the Football Club Barcelona. Currently, the club is being investigated for an alleged bribery crime related to the possible purchase of referees, and some media attribute this alleged crime to errors in the compliance plan and the lack of detection by those responsible for this plan.