Is it possible to criminally convict a company without convicting the perpetrator of the crime? by Enric Bertolín in Cinco Días.
Yes, it is possible to criminally convict a company without convicting the individual perpetrator of the crime. This is permitted by the Penal Code, and it often arises due to serious structural deficiencies within the company that ultimately allow the commission of the crime by its executive or representative.
Convicting the company without convicting any individual creates conceptual and evidentiary confusion, placing the cart before the horse in terms of corporate criminal responsibility. However, it is possible to criminally convict both the individual who commits the criminal act and the legal entity that benefits from the crime, which is the most common and logical scenario. Similarly, it is possible to convict only the individual who commits the criminal act without convicting the legal entity. This scenario is less common and occurs when the company has not directly or indirectly benefited from the convicted acts, or when the individual has acted in such a sophisticated manner as to bypass all controls and oversight by the company aimed at preventing such behaviors by its executives or representatives.
Additionally, it is possible to convict only the legal entity without convicting the individual who committed the criminal act. This happens when the individual perpetrator cannot be identified or when proceedings cannot be directed against them, for example, due to reasons of extinction or exemption from criminal liability.
When convicting only the company, it prompts reflection on the necessary clarity and legal certainty that criminal law must offer not only to citizens but also to companies. In this context, it becomes essential to identify the existing criminal risks and responsibilities accurately before any operation and its consequences.
In cases where only the company is convicted, determining whether the company is criminally responsible depends on understanding who, how, and why the crime was committed. The company's criminal liability stems from its serious structural deficits in surveillance and control programs aimed at preventing such crimes by individuals.
Investigating, proving, and potentially convicting a company, for example, for tax evasion, becomes challenging if there is no information about who devised the tax structure leading to the criminal liability. Similar challenges arise in cases of fraud against the Social Security system.
In cases of tax fraud, it is sometimes difficult to identify the individual responsible within the Board of Directors who designed the fiscal scheme under investigation. This justifies legal proceedings where only the legal entity is investigated, not the individual.
Such situations exist in judicial cases where organizations are accused of defrauding the tax authorities by using fictitious companies to evade taxes.
The lack of knowledge about the individual perpetrator hampers the defense of the investigated legal entity, mainly because it complicates the articulation of defensive arguments regarding the existence of a solid structure for preventing crimes by its executives or representatives.
Although legally possible, prosecuting only the legal entity without an accompanying individual presents significant evidentiary challenges to overcome the presumption of innocence. If the approach followed judicially mirrors that of predicate offenses in money laundering cases, it may not bode well for the procedural guarantees of corporate entities.
© Enric Bertolín, lawyer Morales Abogados Penalistas
