Title: Responsibility of legal persons as a tool to combat organised crime.

Author: Nino Giovanny Drouet Campo

Technological advances have brought great benefits to society, but at the same time have led to the emergence of new forms of criminal behaviours. These behaviours are characterised by complex, hierarchical, transnational and group participation structures. Organised criminality that penal law, having been thought of as an individual subject, cannot combat with its traditional weapons to such an extent that it is said that penal law is currently experiencing a period of crisis That is why the international community and the doctrine, facing these new challenges, has sought to give several remedies to this problem. One solution is to propose that the laws of the countries make the legal persons responsible, either in a civil, administrative or penal way. As for the first two forms of liability, there has been no resistance to their application. However, in the penal law sphere there has been fierce and persistent resistance from a sector of the doctrine which, faithful to the Roman principle of societas delinquere non potest, maintains that legal persons cannot be criminally sanctioned. This criterion that, thanks to new doctrinal proposals, has gradually lost its force, to such an extent that many of the countries that initially did not accept the criminal liability of legal persons now admit it.

On the other hand, due to the fact that the main purpose of organised crime is to obtain economic resources and to find a way to enjoy those economic resources, it has seen in the legal persons, due to the economic importance that it has within the countries, an indispensable partner to convert their illicit money into licit money. This is why penal law has had to be updated and implemented as a mechanism to combat this macro-criminality a modern instrument, which is to make the legal person criminally responsible.

Despite the importance of this issue at present, because through the criminal liability of the legal person it is possible to neutralize organised crime by strangling the economic element that is as powerful as the armed wing, the regulation of the criminal liability of collective entities is not done in a way that is related to organised crime. Nevertheless, it is studied and regulated independently, which causes this new tool to lose effectiveness to such an extent that some countries have no practical application within criminal policy.

Based on the before mentioned, the objective of this thesis was to study whether the criminal liability of legal persons as currently regulated can be used as one significant tool to fight against organised crime.

At the end of this research project, several conclusions were reached, the main ones’ being

To hold legal persons criminally liable is a trend that has gradually been established in many countries of the continental legal system that used to be reluctant to its implementation.

To sanction legal persons legally is a need of criminal policy in the post-industrial age.

Current regulations and most of the doctrine deal with the criminal liability of legal persons separately from organised crime. This has led to legal loopholes that leave certain illegal actions carried out by legal persons related to organised delinquency unpunished.

Because the implementation of criminal liability of legal persons in legislation serves various purposes, its use as an instrument to fight against organised crime is of little use in some countries and is not used in others.

Use of criminal liability of legal persons is a key instrument to fight against organised crime, since it attacks the main purpose for which this kind of organisation is constituted: the economic factor. Without which there are no weapons. This implementation bribes consciences, acquisition of shares of power in the institutions of the State, among other things; in other words, it puts an end to this criminality.

As such, if we want this new non-traditional instrument of penal law to fulfil its commitment of combating organised crime, we require that its regulation and study be carried out in a related manner. To such an extent that we must think about reconstructing the concept of organised crime that includes the legal person, as well as typifying certain actions in which these entities participate in collusion with criminal organisations; acts that stay unpunished due to the absence of legislation, all of which, far from weakening the actions of organised crime, strengthens them.