17 / 69
The preventive role of the judiciary in protecting the financial interest of the European Union.
A comparative analysis for improved performance
15
The autonomous criminal liability of legal persons
On the other hand, in all cases of ‘objective’ approach to the criminal liability of the legal person and in
most cases when the other doctrines are applied, the criminal liability of the legal person is autonomous
from the sanctioning of a natural person. This autonomy is twofold
17
:
the personal autonomy
, allowing for the legal person to be prosecuted separately from the
natural person. In some cases, the law still requires the identification of the individual
perpetrator.
the procedural autonomy
, if the legal person can be tried and convicted regardless of what
decision has been taken or will be taken with respect to the individual perpetrator
3.2.4.
The scope of corporate liability
Covered entities
In most jurisdictions corporate liability applies to legal persons, including for-profit and non-profit
organisations, private companies or companies owned by the State or the local government, foreign and
domestic corporations. “Legal person” is a term defined by the civil law and does not cover short-term
unincorporated partnerships or other unincorporated entity without a legal personality. However, as
such entities or associations have the capacity to perform legal actions, they are subject to liability in
some countries, as Montenegro or Latvia, according to the OECD Anti-Corruption Network for Eastern
Europe and Central Asia assessment
18
On the other hand, inmost jurisdictions the State, municipalities and other public institutions are immune
from criminal liability. In some countries private entities with public functions (as notaries or bailiffs) are
not criminally liable.
Covered offences
The scope of the criminal liability of the legal person should also be analysed from the point of view of
the covered offences, two approaches being possible:
a.
The general approach, when legal persons are criminally liable for any crime;
b.
The specific liability approaches, when the criminal legislation provides a limited list of criminal
offences for which a legal person can be sanctioned.
3.3.
Corporate punitive liability in Greece, Italy, Lithuania and Romania for fraud,
corruption, money laundering and crimes against the EU financial interest
Among the four national case studies undertaken within the project, three countries apply criminal
liability of the legal person, in different forms: Lithuania, Italy and Romania. Greece applies administrative
punitive liability for criminal offences for legal persons.
17
Ibid
, p. 26-29.
18
Ibid
, p. 30.