Extension of the offences for which the legal person can be held liable and their impact on compliance systems
On September 7th 2022, the Official State Gazette (Boletín Oficial del Estado) published the new Organic Law 10/2022, of September 6th, on the comprehensive guarantee of sexual freedom with the aim of adopting effective, global and coordinated measures between the different public administrations to guarantee comprehensive protection against any form of sexual violence.
Specifically, different prevention and awareness-raising actions are established and, among them, Organic Law 10/1995, of November 23rd, of the Spanish Criminal Code, is modified. Thus, the new Organic Law 10/2022 and, consequently, the reform of the Penal Code, will enter into force thirty (30) days after its publication in the Official State Gazette.
The amendments to the Spanish Criminal Code in relation to the criminal liability of the legal person and with implications for Compliance are as follows:
- Amendment of Article 173.1, introducing criminal liability for the legal person:
“1. Anyone who inflicts degrading treatment on another person, seriously undermining their moral integrity, shall be punished with a prison sentence of six months to two years.
The same penalty shall be imposed on those who, in the context of any employment or civil service relationship and taking advantage of their relationship of superiority, repeatedly carry out hostile or humiliating acts against another person which, without amounting to degrading treatment, constitute serious harassment of the victim.
The same penalty shall also be imposed on anyone who repeatedly carries out hostile or humiliating acts which, without amounting to degrading treatment, are intended to prevent the legitimate enjoyment of the dwelling.
When, in accordance with the provisions of Article 31 bis, a legal person is responsible for the offences included in the three preceding paragraphs, it shall be liable to a fine of between six months and two years. In accordance with the rules laid down in Article 66a, the Judges and Courts may also impose the penalties set out in Article 33(7) (b) to (g).”
- Amendment of Article 184.5, introducing criminal liability for the legal person:
“1. Anyone who requests favours of a sexual nature, for themselves or for a third party, in the context of an employment, teaching, service provision or similar, continuous or habitual relationship, and with such behaviour causes the victim an objective and seriously intimidating, hostile or humiliating situation, shall be punished, as a perpetrator of sexual harassment, with a prison sentence of six to twelve months or a fine of ten to fifteen months and special disqualification from the exercise of the profession, trade or activity for twelve to fifteen months.
2. If the perpetrator of sexual harassment has committed the act taking advantage of a situation of work, teaching or hierarchical superiority, or over a person subject to his or her guardianship or custody, or with the express or tacit announcement of causing the victim a harm related to the legitimate expectations that the victim may have within the scope of the aforementioned relationship, the penalty shall be imprisonment for one to two years and special disqualification from the exercise of the profession, trade or activity for eighteen to twenty-four months.
3. Likewise, if the perpetrator of sexual harassment has committed it in centres for the protection or reform of minors, internment centres for foreigners, or any other detention, custody or reception centre, including temporary stay centres, the penalty shall be imprisonment for one to two years and special disqualification from the exercise of the profession, trade or activity for eighteen to twenty-four months, without prejudice to the provisions of Article 443.2.
4. When the victim is in a situation of special vulnerability due to age, illness or disability, the penalty shall be imposed in the upper half.
5. When, in accordance with the provisions of Article 31 bis, a legal person is responsible for this offence, it shall be sentenced to a fine of six months to two years. In accordance with the rules laid down in Article 66a, judges and courts may also impose the penalties set out in Article 33(7) (b) to (g).”
The aforementioned amendments represent an extension of the catalogue of numerus clausus offences established in the Spanish Criminal Code that may entail criminal liability for the legal person and have a direct impact on Compliance.
- Amendment of Article 189 ter, on offences relating to prostitution and the sexual exploitation and corruption of minors, introducing the penalty of dissolution as an imperative sanction.
- Amendment of Article 197, relating to the offences of discovery and disclosure of secrets. Specifically, the following typical conduct is added: “A fine of one to three months shall be imposed on anyone who, having received the images or audiovisual recordings referred to in the previous paragraph, disseminates, discloses or transfers them to third parties without the consent of the person concerned“.
Overall, the reform of the Spanish Criminal Code introduced by Organic Law 10/2022 directly affects the Compliance Systems of Spanish entities, which must adapt them to ensure compliance with these new provisions.
Compliance Department of Molins Defensa Penal.