Can the legal entity under investigation be required to identify the specific natural person who was involved in the alleged criminal acts?
I. INTRODUCTION
Despite the fact that the criminal liability of legal entities has been provided for in our legal system since the amendment made to the Criminal Code by Organic Law 5/2010 of 22 June, the fact is that, more than fourteen years after its entry into force, the practical application of this corporate criminal liability continues to be an inexhaustible source of questions, the answers to which are far from peaceful.
One of the problems we encounter with distressing frequency is the disparity of criteria followed by judges and courts when it comes to determining against whom the criminal proceeding should be directed when the possible criminal act has been committed within the framework of the activity of a collective entity. In this context, in addition to the already more than claimed – although, unfortunately, still necessary – discourse on the requirement to clearly define when the summons to testify as a defendant is directed against the legal entity, with the consequent warning – in practice, almost always absent – to proceed to designate a procedural representative to act on its behalf, it is worth reflecting on what happens when, once this procedural step has been passed, the very configuration of our criminal system determines the impossibility of continuing the proceedings against the legal entity.
For instance, let’s figure the following factual assumption: a complaint is filed against a corporate entity, without it being possible for the person initiating the proceedings to identify the involvement of any specific natural person in the alleged acts, and once the proceedings against the entity have been initiated and followed up, it is concluded that there are reasonable indications of criminality, but in relation to a crime for which the criminal liability of the legal entity is not foreseen. On the basis of the above, the question arises: can the Judge force the collective entity to identify the specific natural person who, on its behalf, gave the order or took the decision to act in that particular way?
Although the solution may seem clear, insofar as the adoption of the most protective stance would oblige a negative answer – closing the criminal proceedings and leaving intact the possible actions that could be brought against the legal entity before the civil jurisdiction – it is not without its critics..
II.- THE ‘NUMERUS CLAUSUS’ SYSTEM OF INCRIMINATION AND THE PARTICULARITIES THAT SHOULD GOVERN THE INVESTIGATIVE WORK.
Indeed, as can be deduced from the provisions of Article 31 bis of the Criminal Code, legal persons are only criminally liable for those crimes in which such a possibility is expressly provided for, thus constituting a numerus clausus system that makes corporate criminal liability subject to its express provision in the corresponding types of the special part of the Code.
However, it is clear that legal persons, as immaterial entities, only act through the natural persons who, in one capacity or another, are behind them. In this sense, the criminal liability of legal persons necessarily requires the existence of an offence attributable to natural persons, but it must be understood that the eventual liabilities that could be brought against the latter are autonomous from that of the former. This is clear from Article 31 ter of the Criminal Code and has been repeatedly recognised by our High Court, which has been categorical in determining that the criminal liability of legal persons does not require either a prior declaration of that of natural persons or a prior individualisation of the criminal conduct in specific natural persons (1).
This does not prevent us from underlining that the very fact that the criminal liability of legal persons always requires the commission by one or more natural persons of a criminal act necessarily implies that the investigation tasks of the judicial investigation phase also extend to the acts attributable to all of them. In addition to being the most logical thing to do, this can be inferred from the wording of Article 409 bis, first paragraph of the Criminal Procedure Act when it states that ‘when a legal person has been charged, a statement shall be taken from the specially appointed representative of the legal person, assisted by his lawyer. The statement shall be aimed at ascertaining the facts and the participation in them of the entity charged and of the other persons who may also have intervened in their realisation…’.
Therefore, it seems reasonable to conclude that, even if the proceedings are indirectly directed against a legal person, the purpose of the investigation must also be to identify – in order to then also be able to prosecute – the specific individuals who carried out the behaviour potentially constituting an offence.
III.- THE REQUEST TO THE LEGAL PERSON UNDER INVESTIGATION TO IDENTIFY THE NATURAL PERSON WHO WAS INVOLVED IN THE FACTS.
1. The impossibility of continuing the proceedings against the legal person during the period of judicial proceedings.
It happens in practice that, once the judicial investigation phase has been exhausted, the judge, despite concluding that there are sufficient rational indications of criminality to agree to continue with the proceedings, is obliged to decree that they should be dismissed and closed, on warning – often in response to statements made by the defence itself – that the offence for which the investigation has been carried out and in which the facts in question could be subsumed does not involve corporate criminal liability, without it having been possible to identify and individualise, throughout the investigation phase, the person responsible for the offence in question, that the offence for which it has been investigating and in which the facts that are the object of the case could be subsumed does not provide for corporate criminal liability, without it having been possible to identify and individualise any specific natural person who could be held criminally liable during the investigation phase.
However, what happens in those cases in which, once this obstacle has been detected, the investigation phase is still in force? Given that the company is the only one that can have the necessary information to identify the specific person who acted on its behalf, is it legally correct for the investigating judge to agree, as a new investigative measure, to request the legal person – until then under investigation – to provide this information?
2. Prohibition of self-incrimination
A similar problem, which has already been the subject of debate, is the legitimacy of the investigating judge agreeing, at the request of the prosecution, to order the defendant in the criminal proceedings to hand over documents in his possession which could be of interest to the prosecution. In this respect, MAGRO SERVET is clear in concluding that the right to the presumption of innocence, the right not to testify against oneself and the right not to confess guilt prevent the person under investigation from having to provide evidence to the prosecution for the construction of prosecution evidence that could undermine the presumption of innocence (2).
In this sense, it is worth mentioning the constitutional on the right against self-incrimination, which is based on one of the manifestations of the right to the presumption of innocence, specifically that which places the burden of proof on the prosecution and whose essential content is identified as a right not to be convicted or punished on the basis of self-incriminating information provided under duress (3).
Specifically, it is worth highlighting Constitutional Court Ruling 18/2005, of 1 February when it states: ‘unlike the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter, ECHR), our Constitution does specifically mention in Article 24.2 the rights ‘not to testify against oneself’ and ‘not to confess guilt’, which, as we have pointed out, are closely related to the rights of defence and the presumption of innocence, of which they constitute a specific manifestation (STC 161/1997, of 2 October, FJ 5). In particular, we have affirmed that the rights not to testify against oneself and not to confess guilt ‘are guarantees or instrumental rights of the generic right of defence, to which they provide cover in their passive manifestation, that is, that which is exercised precisely through the inactivity of the subject on whom an accusation falls or may fall, who, consequently, can choose to defend himself in the process in the way he considers most convenient for his interests, without in any case being forced or induced, under any constraint or compulsion, to testify against himself or to confess guilt’ [SSTC 197/1995, 21 December 1995, FJ 6; 161/1997, of 2 October, FJ 5; 229/1999, of 13 December, FJ 3 b); 127/2000, of 16 May, FJ 4 a); 67/2001, of 17 March, FJ 6]. And we have also declared that the aforementioned rights ‘are also linked to one of the manifestations of the right to the presumption of innocence: that which places the burden of proof on the prosecution; this burden cannot be changed factually by placing on the accused the obligation to provide elements of proof that imply self-incrimination’ (161/1997, 2 October, FJ 5).
The extension and applicability of these rights and procedural guarantees to legal persons, even if sometimes with certain modulations, is beyond dispute (4). Furthermore, the right to remain silent, not to testify against oneself and not to confess guilt, all of which are listed in general terms in Article 118 of the Criminal Procedure Act with regard to natural persons under investigation, are also explicitly included in relation to corporate entities in Article 786 bis of the same Criminal Procedure Act, which states that ‘when the accused is a legal person, it may be represented for the better exercise of the right to defence by a person specially designated, who must occupy the place reserved for the accused in the courtroom. This person may testify on behalf of the legal person if such evidence has been proposed and admitted, without prejudice to the right to remain silent, not to testify against oneself and not to confess guilt, as well as to exercise the right to the last word at the end of the trial…’.
3. Applicability to the case under analysis: it must be the prosecution who provides the information that allows for the continuation of the proceedings.
Well, we understand that the above conclusion is fully transferable to the case now under analysis. If, as we have explained, the legal entity under investigation, acting through its specially appointed procedural representative, has the right to lie, not to declare if it does not wish to do so and to answer only those questions it is interested in from among all those asked, it cannot in any case be obliged to provide the proceedings with information that would serve to constitute the evidence against it in a future conviction.
Indeed, the passive attitude is a legitimate defence strategy: unlike the witness, the person under investigation not only does not have the obligation to tell the truth, but can remain silent, partially or totally, under the protection of his right not to confess guilt, which implies the right not to collaborate with his own incrimination (5).
4. Does a preliminary injunction against the legal person enable such an injunction to be granted?
Even so, in this scenario, it could be argued that, given the impossibility of continuing the proceedings against the legal person, it would no longer have the status of being investigated in the criminal proceedings and, therefore, the procedural rights and guarantees referred to above – the right to remain silent, the right not to confess guilt and the right against self-incrimination – would no longer be applicable to it. In this sense, what happens if the proceedings are dismissed as far as the legal person is concerned? With the status of investigated person eliminated, could it be required to cooperate as can be done with respect to any third party?
Well, regardless of the fact that in this case it would be appropriate to provisionally dismiss the proceedings due to the lack of a known perpetrator against whom they could be directed, we understand that in this case too, the legal person could not be imposed this duty to cooperate in the criminal investigation. And this is because, if the criminal proceedings continue, the consequences of the criminal act will almost certainly end up reaching the legal entity, either through civil liability – which may even be direct in accordance with the provisions of Article 120.3 and 4 of the Criminal Code – or as a consequence of the reputational damage it will have to face as a result of the existence of a criminal conviction, even if it is in respect of one of its directors or employees and not of the legal entity as such.
It has been pointed out that the imposition of any sanction in the framework of a criminal proceeding on the legal entity entails important and harmful consequences of all kinds and with respect to a wide range of subjects, most of them outside the governing structure of the entity and outside the criminal activities carried out within it, all of whom may see their legitimate interests, expectations and rights affected (6).
On the other hand, it does not seem reasonable that, if we decide that, if there is a possibility of some kind of liability being derived against a person who is to give evidence in the context of criminal proceedings, that evidence must in any event be given as a person under investigation and not as a witness, precisely in order to preserve his right to remain silent, to not answer all or some of the questions, not to testify against himself and not to confess guilt, this condition can be modified without the slightest cavil when the existence of prima facie evidence of criminality has already been established, but in respect of an offence which does not entail the criminal liability of legal persons.
In this respect, from the moment that a person is suspected of having participated in the punishable act, it is not viable to summon him to testify as a witness, but rather he must necessarily be summoned as a person under investigation. Thus, it has been pointed out that the circumvention of the guarantees derived from the condition of being under investigation by summoning a witness against whom there are well-founded indications of the commission of a criminal act, would necessarily imply the nullity of any findings produced by said statement by the application of art. 11 LOPJ (7).
5. The right to effective judicial protection does not imply the right to the full conduct of criminal proceedings.
In view of the above, it is necessary to emphasise that the Constitutional Court has established that the right to effective judicial protection, in its aspect of access to jurisdiction through the exercise of criminal action, is configured as an ius ut procedatur, that is, a right of access to the courts and tribunals and to the process. Thus, the complainant or plaintiff, as the case may be, has the right to the initiation of criminal proceedings, to have them conducted in accordance with the rules of due process and to obtain a reasonable and lawful response, but this does not include the right to the full substantiation of the criminal proceedings, to obtain a conviction and the imposition of a sentence.
In this sense, if all the useful, relevant and, as far as we are particularly interested in here, possible investigative measures have been carried out, it has not been possible to ascertain by any means the identity of the specific natural persons who were involved in the events under investigation, the solution cannot be other than to agree the dismissal and closure of the proceedings. And this is always without prejudice to the possibility for the injured party to bring any legal action that may correspond to him before the civil courts.
6. Possible mitigation of sentence in case of collaboration.
Finally, it should be pointed out that we have not referred to the possibility of the legal person voluntarily deciding to collaborate actively in the course of the investigation, behaviour which could lead to the appreciation of an attenuating circumstance (ex. article 31 quater 1 b) of the Criminal Code), since the case just analysed, as we have explained in detail, is limited to those cases in which the criminal offence in question does not entail the criminal liability of legal persons. In other cases, there is no doubt that the possibility of obtaining this penal benefit is an important incentive for the collective body to make any information it has available to the judicial authority, and is thus an opportunity to which due consideration must be given when assessing the procedural strategy to be followed.
IV. CONCLUSION.
In conclusion, we understand that the right against self-incrimination, as a manifestation of the right to the presumption of innocence, prevents the Judge from ordering the legal person under investigation to provide the identity – or the information that allows identification – of the natural person or persons who were directly involved in the facts under investigation in the framework of a criminal proceeding.
V. BIBLIOGRAPHY
(1) STS 154/2016, de 29 de febrero (Ponente: Excmo. Sr. D. José Manuel Maza Martín), FJ 7.
(2) MAGRO SERVET, V. “¿Es válido que el juez inste el requerimiento de documentos al investigado en el proceso penal a instancia de la acusación?” en Diario La Ley, nº 9602, Sección Doctrina, 26 de Marzo de 2020, Wolters Kluwer.
(3) STC 161/1997, de 2 de octubre (FJ 5).
(4) STS 221/2016, de 13 de marzo (Ponente: Excmo. Sr. D. Manuel Marchena Gómez), FJ 5.
(5) SSTC 57/2002, de 11 de marzo; 132/2022, de 22 de julio; y 132/2004, de 20 de septiembre.
(6) ECHARRI CAST, F. “Derecho a la no autoincriminación de las personas jurídicas: ¿ficción o realidad?” en Revista de Responsabilidad Penal de Personas Jurídicas y Compliance, Volumen nº 1, Abril 2023.
(7) AAP Barcelona, Sección Novena, nº 460/2024, de 21 de mayo.
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