The Spanish Penal Code reform introduced a few changes concerning exemption from criminal liability of companies.
The current regulation on post-crime extenuating circumstances is maintained. The extenuating circumstances are still the following:
- Confession to the crime
- Cooperation with the investigation by providing evidence
- Haveing repaired or diminished the damage caused
The reform also expressly includes a ground for exemption from criminal liability as long as a company fulfills and proves specific conditions. If the crime was committed by a company’s legal representatives, by people authorized to make decisions on behalf of the company or by people that hold powers of organization and control within the company, the exemption from criminal responsibility will still apply if the following requirements are met:
- An organization and management plan that includes surveillance and control measures suitable for preventing crimes or for significantly reducing the risk of its perpetration was adopted and executed prior to the commission of the crime.
- The perpetrators committed the crime fraudulently avoiding the organization and prevention plan.
- The supervision of the functioning and fulfillment of the implemented prevention plan is assigned to an external company that is legally entrusted with monitoring the efficiency of the internal controls of the company. In small-size companies, these functions can be assumed directly by the company’s administrative body.
- No omission or insufficient exercise of the monitoring, surveillance and control functions of the former body occurred.
In the case where the crime was committed by individuals subject to the authority of the company’s legal representatives or people with powers of organization and control within the company, the exemption from criminal responsibility will still apply if, before the crime, an organization and management plan appropriate to prevent crimes of the same nature as the one committed or to significantly reduce the risk of its perpetration was adopted and efficiently executed within the company.
This article is not considered as legal advice