The Act of 18 March 2018 amending a number of provisions of criminal law, criminal procedure and procedural law in general sought to address several rulings in which the Constitutional Court had concluded that a number of elements of criminal law and criminal procedure violated the principle of equality.
The Act was published on 2 May 2018 and entered into force on 12 May 2018. It introduces the right to file an appeal in the event that access to the file is refused in the course of investigations carried out by the prosecution service (article 3); provides that a civil party can be ordered to pay (part of) the attorney's fees when it is the only party launching an appeal which it subsequently loses (article 6); and amends the procedural framework for settlements (article 9 – see Eubelius Spotlights June 2018). Another unconstitutional situation, which resulted from the application of article 20 of the Preliminary Title of the Code of Criminal Procedure ("PT CCP"), has also been remedied. That situation related to the inadmissibility of criminal proceedings against a legal person (article 2).
Article 20 PT CCP provides that criminal proceedings are inadmissible – and thus one can no longer be convicted – upon death (natural persons), or (by analogy) when legal personality is lost (legal persons). In order to avoid abuse as regards legal persons (where legal persons could be dissolved or liquidated in order to escape criminal liability), some exceptions are stipulated. To that end, Article 20 PT CCP, prior to the Act of 18 March 2018, stated that criminal proceedings against legal persons were no longer admissible after the closing of a liquidation, upon judicial dissolution or upon dissolution without liquidation, unless:
- the liquidation, judicial dissolution or dissolution without liquidation had been aimed at avoiding prosecution, or
- the legal person had been charged by the investigating judge pursuant to article 61bis CCP prior to the loss of legal personality.
This led to a rather contradictory situation – in the case of the prosecution of a legal person which had been summoned to appear in court as a defendant, or referred by a pre-trial court, without having been charged first – where one had to demonstrate that the liquidation or dissolution was an attempt to escape prosecution, unlike in cases where the legal person had been formally charged. This was rather inconsistent, as a formal charge is made during the investigation carried out by the investigating judge (and thus while evidence is still being gathered and at a time when it is not certain whether a case will be brought before a trial court), while a referral by a pre-trial court or a summons in itself entails that one has to appear in a trial court. Referrals and summonses are more far-reaching than being charged, and they thus imply a bigger risk of conviction of the legal person. It was remarkable that such an increased risk did not entail that criminal proceedings would remain admissible even if liquidation or dissolution took place, unless it could be shown that the liquidation or dissolution was organised to avoid prosecution.
In its judgment (54/2017) of 13 July 2017, the Constitutional Court ruled that the aforementioned provision was more than remarkable and that it was in violation of articles 10 and 11 of the Constitution. The Court found that it was not reasonably justified that criminal proceedings against a legal person which had been referred to court without having been charged previously, or which had been summoned to appear in trial court, could only be continued when it could be shown that the liquidation or dissolution was aimed at evading prosecution, whereas no such proof was required to continue criminal proceedings against legal persons which had been charged by an investigating judge prior to their liquidation or dissolution. In both cases, the legal person was aware of a pending criminal case prior to its loss of legal personality.
The Act of 18 March 2018 remedied this point of criticism. As from 12 May 2018, criminal proceedings can also be continued against legal persons referred by a pre-trial court or summoned to appear in a criminal court where liquidation or dissolution occurs, even in the absence of proof that the legal person had sought to evade prosecution.
At the time Article 20 PT CCP was introduced, it was stipulated that the investigating judge could, if he found serious indications of the guilt of the legal person during his investigation, suspend its dissolution or liquidation. That rule has not been matched by a similar provision in the Act of 18 March 2018 to the effect that trial courts could take action when confronted with a similar liquidation or dissolution. Thus, the trial courts cannot suspend such an operation; they can only decide to convict the legal person even after its liquidation or dissolution. In other words, one inequality is cured, but another one remains…
Lastly, it should be emphasised that the amended version of Article 20 PT CCP determines in an exhaustive manner the exceptional cases in which criminal proceedings are not inadmissible. In all other cases where a legal person implicated in criminal proceedings is liquidated or dissolved, criminal proceedings against it are no longer admissible, unless it can be shown that the loss of legal personality was aimed at evading prosecution. Thus, in principle, in relation to legal persons which have been explicitly mentioned in a claim to launch a judicial investigation or in a criminal complaint by a civil party, but which have not been charged and/or referred to court, criminal proceedings will become inadmissible when they are dissolved or liquidated (unless the aforementioned evidence is provided).
It is safe to conclude that one needs to remain cautious whenever one is confronted with a liquidation or dissolution in the course of criminal proceedings.