On 23rd March, 2016, the Chamber of Deputies approved a bill in its third reading that amends Act No. 418/2011 Coll. on criminal liability of legal entities and proceedings against such persons, as amended (the “ACLLP”) submitted as Parliamentary Bulletin No. 304 (the “Amendment”).
The Amendment is designed primarily to reassess the range of crimes for which a legal entity may be criminally punished. The Amendment proposes a change to the provision of § 7 of the ACLLP. The current concept of the enumeration of offenses for which a legal entity may be punished is replaced by the concept of the negative definition, meaning that if the Amendment enters into force, a legal entity may be punished for all the offences set out in a separate part of the Criminal Code with the exception of offences explicitly mentioned in § 7 of the ACLLP. According to the Amendment, the main exclusions are to be those offences the facts of which either eliminate the possibility of their commission by a legal entity or are so closely tied to a natural person (perpetrator) that it is very difficult to construe the commission of such crime as being in the interest, or within the activity, of a legal entity.
The amendment also proposes that effective regret not establish criminal liability of legal entities for these offences:
- schemes to defraud in insolvency proceedings;
- violations of anti-monopoly regulations pursuant to § 248(1)(e) of the Criminal Code;
- negotiating benefits in a public procurement, a public tender or a public auction pursuant to § 256(3) or (4) of the Criminal Code;
- schemes to defraud in a public procurement or a public tender pursuant to § 257(1)(b) or (c) of the Criminal Code; and
- schemes to defraud in a public auction pursuant to § 258(1)(b) or (c) of the Criminal Code.
The Amendment proposes, for the purpose of bringing the concept more in line with the Criminal Code treatment, to expand the list of offences for which a foreign legal entity may be punished, irrespective of where an offence was committed. This primarily entails the possibility of punishing a foreign legal entity for infrequently occurring criminal offences such as torture and other inhumane and cruel treatment, violence against public authorities, apartheid and discrimination against groups of people and wartime atrocities.
The last of the proposed changes is exclusion of the possibility of a limitation on criminal liability and imprisonment for criminal offences mentioned in the provision of § 13 of the ACLLP. This primarily entails certain crimes against humanity and peace, war crimes, the crime of subversion of state power, terrorist attack and terror committed as a war crime or crime against humanity under international law.
The Czech Government approved the bill once it had been amended by MPs, inter alia, to include criminal libel in the list of offences for which a legal entity is criminally liable and, in contrast, to exclude the liability of a legal entity for violating anti-monopoly regulations pursuant to § 248(2) of the Criminal Code.No less importantly, approval of the bill as amended by the MPs narrowed the liability of legal entities to include only offences committed in their interest or within their activity. Thus, offences committed on behalf of legal entities will no longer constitute offences committed by legal entities establishing their criminally liability. This change is associated with the amended wording of the provision of § 8 of the ACLLP, where for a crime to be imputed to a legal entity, it shall have been committed by a person in a position of leadership within that legal entity, as opposed to the preceding legislative treatment wherein it sufficed for such person to have authorisation to act on behalf of the legal entity or to exercise decisive influence in such legal entity (absent the condition of a leadership position). The provision of § 8 of the ACLLP was broadened to include a paragraph 5, which enables a legal entity to be freed from liability for a criminal offence, if that legal entity made every effort that could reasonably have been required of it to prevent the commission of such offence by persons mentioned in § 8 of the ACLLP, i.e. statutory bodies, persons exercising decisive influence, employees and so on. To conclude, we note the published statistics indicating that from 1 st January, 2012, i.e. the effective date of the amended law to the 2014 year-end, criminal proceedings were brought against a total of 92 legal entities.