The catalogue of crimes that can be committed by legal entities in Spain is expanded

The law that has come to be known as the "only yes means yes" act (Ley del "solo sí es sí") introduces new offences that could entail criminal liability for legal entities. This means that legal persons will have to review their compliance plans and implement new protocols to combat sexual harassment and prevent the commission of crimes against moral integrity.

Since 2010, when article 31 bis et seq. was introduced in the Spanish Criminal Code, legal persons can be held criminally liable for the commission of certain criminal offences. Unlike in other legal systems, the Spanish legislator has established that legal persons can only commit crimes that can be specifically committed by legal entities according to the criminal legislation; that is, the catalogue of offences is a closed list (numerus clausus).

Following several major amendments, including those made in 2013, 2015 and 2019, the new Organic Law 10/2022, of 6 September, on the comprehensive guarantee of sexual freedom, modifies the criminal liability of legal persons. The most important amendment is the extension of the list of offences, which now includes some conducts linked to crimes against moral integrity (degrading treatment) and sexual harassment.

Degrading treatment (article 173.1)

While the Criminal Code maintains the same definition for degrading treatment, a new paragraph concerning the criminal liability of legal persons has been added to this article. The new paragraph establishes that legal persons can be held criminally liable for this offence. Degrading treatment can be punishable with a fine between six months and two years and, in accordance with the provisions of article 66 bis, judges and courts may impose the penalties set out in article 33(7)(b) to (g) of the Criminal Code, in addition to those established in article 173.1.

This amendment intends companies, or other entities with legal personality, to be held criminally liable for the commission of this crime, especially in cases of harassment at work (known as mobbing).

Sexual harassment (article 184.5)

The second and last addition to the list of offences that can be committed by legal persons in accordance with Organic Law 10/2022 is related to sexual harassment, in both its basic form (article 184.1) and the aggravated version of the offence (articles 184.2 to 4). In these cases, the same penalties stated above can be imposed.

The aim of this amendment is to encourage enterprises to play a more active role in the prevention of harassment at work. Thus, they are being compelled to implement new policies and monitoring systems to prevent this crime from occurring in the workplace. If legal entities fail to implement these prevention mechanisms, they can now be held criminally liable for the offence, which is punishable with a fine that may range from six months to two years.

Dissolution of legal persons for prostitution, sexual exploitation and corruption of minors (article 189)

Although there are no changes with regard to the type of offences included in articles 187 et seq., or the fact that those can also be committed by legal persons (as this aspect was incorporated in the Spanish Criminal Code by Organic Law 8/2021, on the comprehensive protection of children and adolescents against violence), Organic Law 10/2022 adds to the penalties already established in this rule the possibility that legal persons may be ordered to be dissolved as provided for in article 33.7 b).

Discovery and disclosure of secrets (article 197)

Organic Law 10/2022 adds a new subparagraph (number 7) to article 197 of the Spanish Criminal Code and includes a new conduct under the discovery and disclosure of secrets offence. With its entry into force, the dissemination, disclosure or transfer to third parties of images or audio-visual recordings obtained in the home of a person (with his or her consent), or in any other place out of sight of third parties, will be punishable as long as this seriously affects the privacy of that person.

In accordance with the provisions of article 197 quinquies, legal persons can also be criminally liable for the conducts described in article 197 and, therefore, companies and other legal entities can now be charged with this new conduct.

Osborne Clarke comments

In the light of the amendments introduced in the Spanish Criminal Code by Organic Law 10/2022 companies should be particularly attentive to the behaviour of their representatives and employees, as well as take steps to review, adjust and change their criminal prevention programs so that they are compliant with the latest legislative developments.