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Criminal Law Forum for Business and the Company

The legal discussions generated by the jurisprudence of our courts related to criminal sanctions for crimes that affect business, the life of societies and companies, both in the field of substantial law and in procedural law, makes it necessary to reflect on a series of issues of maximum relevance. Incorporating into this analysis not only the comparative experience, but also the economic and business vision will allow integrating in the conclusions and solutions to contribute all of the elements that should make it up.

Enrique Bacigalupo Zapater

Director.
Professor of Criminal Law; former Supreme Court Magistrate; A25 Lawyers and Economists. Law degree from the University of Buenos Aires, 1960. Doctor of Law and Social Sciences, University of Buenos Aires, 1970. Doctor of Law, Complutense University of Madrid. Member of the Academic Council of FIDE.

Miguel Colmenero Menéndez de Luarca

Director.
Magistrate of the Criminal Chamber, Supreme Court. Previously, he belonged to the Fiscal Career, in which since 1977 he served in different positions in the Prosecutor's Offices of the Provincial Courts of Guipúzcoa, Cádiz and Seville. Between 1992 and 1998 he was chief prosecutor of the Provincial Court of Segovia, and from 1998 to 2002 prosecutor of the Supreme Court, in the section corresponding to the Second Chamber. In February of that year, he was appointed magistrate of the same Chamber for the turn reserved for jurists of recognized competence. He was a member of the Fiscal Council between 2000 and 2002 and a member of the Central Electoral Board in the 2004-2008 legislature.

Javier Sánchez-Vera

Director.
Professor of Criminal Law, Complutense University of Madrid, Partner of Oliva - Ayala Abogados. Member of the Academic Council of Fide.

Silvina Bacigalupo Saggese

Director.
Professor of Criminal Law, Autonomous University of Madrid. Law degree from the Autonomous University of Madrid (1992). Doctor of Law from the UAM (1997). Member of the Academic Council of FIDE.

Jacobo Barja de Quiroga

Director.
President of Chamber V of the Supreme Court. Member of the Academic Council of Fide.

Eduardo de Porres

Director.
Magistrate of Chamber II of the Supreme Court. Law degree from the Complutense University of Madrid. His passage through the judicial career began in 1986 and was assigned to Yeca (Murcia) where he served in the Court of Instruction and First Instance, also in Madrid in the 20th district, in the 52nd Court of First Instance in Madrid and in the Audencia Provincial of Madrid, he was appointed president of the Court during 2014 and 2018.

Publications

Discover all the publications, session summaries and other documents related to the activity of this forum:

9 of February 2021

Speaker: Eduardo De Porres Ortíz De Urbina, Magistrate of Chamber II, Supreme Court

Moderator: Javier Sánchez-Vera Gómez-Trelles, Professor of Criminal Law, Complutense University of Madrid. Oliva - Ayala Abogados-OTRI

Summary:

The session was structured around two manifestations of the principle of presumption of innocence in the criminal process. On the one hand, the statement of the victim as the only evidence to refute the innocence of the accused. On the other hand, the position of the Court of Appeal and Cassation respectively for the purposes of the invocation of a violation of the right to the presumption of innocence after the configuration of the double instance.

 

Regarding the first of the questions, De Porres explained that one of the most relevant manifestations of the presumption of innocence displays its effects in the evidentiary assessment. To this end, he recalled the jurisprudential requirements so that there is no violation of the right to the presumption of innocence, among which he highlighted the following: that it is a prosecution test, constitutionally obtained, that it has been legally practiced and, finally , that their assessment has been developed in a rational way. However, the same speaker asked the following question: when should the proof be understood to have been rationally valued?

 

At first, De Porres responded to the previous question in a generic way and later limited it to the sufficiency of the victim's statement as the only evidence. As it was, he began by pointing to the relevance of motivation in the resolution. The need to avoid generic motivations; assessments in which, due to illogical or insufficient process discursive that leads from proof to proven fact. For this, he pointed out the importance of attending to alternative motivations. Not so much to analyze the potentiality of the appellant's motivation, but to verify whether that of the Court has been consistent, in short, whether the assessment regarding the alternatives has been verified and justified.

 

Subsequently, De Porres set out those parameters that the Constitutional Court considers should be assessed for the sufficiency of the victim's statement as sole proof of the charge; although pointing out at all times that they are not requirements as such given the lack of evidence assessed in the criminal process. Thus, he indicated the following parameters: subjective credibility, objective credibility and persistence in the incrimination.

 

With regard to the second question, the session allowed a debate on the role that corresponds to each Court - appeal and cassation - in controlling the violation of the principle of the presumption of innocence. De Porres explained that, after the full configuration of the double instance, the main role in the assessment of the evidence for such purposes corresponds to the appeal; The functions of the Court of Cassation being fundamentally limited to analyzing whether the appeal has met the requirements that govern its scope of control. In this way, the Magistrate of the Criminal Chamber of the Supreme Court pointed out the importance of properly formulating appeals in view of the limitation of functions that exists in cassation for the judging body.

 

As has been anticipated, after De Porres's presentation, Javier Sánchez-Vera contributed his perspective, perhaps not only academic but also as a practicing lawyer, in this session about the standard of assessment from the principle to the presumption of innocence.

 

Sánchez-Vera pointed the vertebral role of the presumption of innocence in the criminal process. The presumption of innocence is not just another principle of the criminal process; the presumption of innocence is the process itself. For this reason, the debate on the guilt of the accused must remain open until the sentence is passed. Faced with this scenario, Sánchez-Vera expressed a series of procedural assumptions that could pose a threat to the presumption of innocence by rushing forward, hastily and extemporaneously, the debate, that is, the closure, to the court ruling.

 

On the one hand, provisional imprisonment for reasons other than the risk of flight. Sánchez-Vera considered that said precautionary measure, based for example not on the risk of flight but on a possible repetition of crime, violates the right that concerns us since, without even having a judicial ruling regarding the first hypothetical criminal conduct, it is taken a custodial measure based on the fact that he may commit a –supposed– “new” crime. Said graphically, we would not have settled the first, and we already accused him of a supposed second.

 

On the other hand, it showed its rejection of those jurisprudential exceptions through which the accused can be sentenced based on what happened during the investigation phase, such as the case of the alleged confession of the crime or in the processes that the testimony of a deceased witness. In Sánchez-Vera's opinion, such anticipations should be eliminated since It begins with these evidentiary relaxations and ends up attacking in a global way the presumption of innocence of the accused since, once the exception that the process might not be open to the end is accepted, there would no longer be any limitations on this to open more and more of the exception field.

 

Finally, a debate began in which the various participants had the opportunity to talk and share their considerations about the problem presented by the speakers.

 

 

Summary prepared by Oscar Marí, Opponent of the Judicial and Fiscal Careers.

10 of February 2020

Speaker: Enrique Bacigalupo, Professor of Criminal Law. Lawyer, A25 Lawyers and Economists

Moderator: Javier Sánchez-Vera Gómez-Trelles, Professor of Criminal Law, Complutense University of Madrid. Oliva - Ayala Abogados-OTRI

Summary:

The art. 291 CP has introduced a limit to the majority principle that governs social decision-making. For this, the Legislator has resorted to the concept of abuse of rights. In many aspects of business practice decisions are made that are often questioned by the minority, especially in cases of capital increase. Determining when a majority decision can be considered abusive is extremely complex and requires us to seriously consider the issues that arise in this area before making a decision that significantly affects the minority. On the other hand, in the same line as the Criminal Code, the LSA provides in art. 204 challenge the corporate agreements imposed abusively by the majority, even if they do not cause damage to the corporate patrimony. The relationships between criminal and commercial law also have considerable complexity here.

March 2 2020

Speakers:

  • Javier Sánchez-Vera, Professor of Criminal Law, Complutense University of Madrid. Oliva-Ayala Abogados-OTRI. Member of the Academic Council of Fide
  • Charity Mourelo Gómez, Head of the Central Unit for the Coordination of crimes against the Public Treasury, State Tax Administration Agency (AEAT)

 

Summary:

Do prosecutions for tax crimes require evidentiary specialties? The complexity of many of them has led to notable doctrinal and jurisprudential controversies in recent times. Problems about whether there is evidence illegally obtained, as in the Falciani case, or the question of the experts in said prosecutions, are some of them. The subject of intense debate has also been –and still is– aspects such as prescription, regularization, relations with money laundering, and others, with their obligatory reflex effect at the evidentiary level.

It seems that, with the crime condemned to live in an eternal legal tension, it is convenient to review its essential aspects of evaluation of the evidence, to try to shed light on it.

Academic coordination: Carmen Hermida Diaz

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