Companies can be criminally liable for certain acts and omissions, under the Criminal Code.
Criminal liability for corporations has been introduced in order to avoid a situation where the individual offender within a company cannot be identified because of the its intricate management structures. It allows the company to be held liable whether or not one or more individuals are also held responsible for the same act.
In many jurisdictions, only individuals can be criminally liable; but there has been increasing pressure on member countries from the EU and OECD to extend the reach of criminal law to corporations, and an equal and opposite resistance to it from the corporate world.
The Slovak Republic, like Spain, has opted for the compromise solution of introducing indirect criminal liability for corporations. The penalties that can be imposed are protective measures such as forfeiture of funds or property, rather than direct sanctions. Only one protective measure may be imposed for any crime.
Forfeiture of funds by a company is a discretionary measure open to a court and can result from a person committing (or attempting to commit or being complicit in the committing of) any crime when:
- exercising authority to represent the company, take decisions in its name or exercise control over its activities
- being negligent in their supervision or the standard of professional care exercised on behalf the company
The court can order forfeiture of between €800 and €1.66 million, depending on the circumstances of the crime.
The court will automatically order forfeiture of assets for certain crimes (including attempts and complicity as before) where the company has acquired property in whole or part through criminal activities or by using funds originating from a crime through the same negligence or exercise of authority as for forfeiture of funds.
Enforcement includes adjudication of bankruptcy without motion. The state becomes the owner of any forfeited property still owned by the company after the bankruptcy proceedings have been concluded.
No protective measures (either forfeiture of funds or assets) may be imposed on a company that cannot be adjudicated bankrupt or where enforcement could affect property owned by the Slovak Republic or another country or the EU or another international public organisation.
Protective measures are initiated by a motion from the attorney general as soon as the investigation yields (beyond reasonable doubt) that a crime was committed by those in charge of the company's management (ie with authority to represent it, take decisions for it or exercise control over it) or was committed by someone in a subordinate role through the managers' lack of supervision and control. The investigation must identify the individual offender whether or not that person is ultimately convicted of the crime.
Law: the Criminal Code (Act No. 224/2010 Coll. amending and supplementing Act No. 300/2005 Coll. Criminal Code, as amended)
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 19/01/2012.