La sucesión procesal penal de la persona jurídica investigada

Abstract

The inclusion of legal persons as criminally liable parties requires a double consideration. On the one hand, the transfer to them of the principles and procedural guarantees that the legal system attributes to those subject to prosecution; on the other hand, the search for the effective repression and punishment of the crimes committed by the entities, in such a way that they do not avoid being subjected to criminal proceedings through the mere extinction of their legal personality. In the hackneyed debate on guarantees versus effectiveness, the criminal prosecution of legal persons presents nuances that differentiate it from the generic clauses conceived with a humanist vision. Such is the case of procedural succession in criminal jurisdiction. Forbidden in criminal proceedings due to the principles of guilt and personal responsibility, these have to be modulated in their application to entities. This is the only way in which the transfer of criminal liability provided for in Article 130.2 PC, whereby structural modifications or fraudulent dissolutions do not give rise to the extinction of the criminal action, finds a constitutional place. We thus find in criminal legislation the recognition of a kind of procedural succession "by cause of death" applicable to legal persons, the development of which in procedural legislation, however, has not taken place.