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LAW WOULD PENALISE COMPANIES, BUT NOT CHARGE THEM

Companies could be punished for crimes

THE GOVERNMENT has introduced a bill that would let legal entities be punished for crimes, but not charged for them.
This is in spite of the fact that when today's coalition members were part of the opposition, they opposed such penalties.

THE GOVERNMENT has introduced a bill that would let legal entities be punished for crimes, but not charged for them.

This is in spite of the fact that when today's coalition members were part of the opposition, they opposed such penalties.

A legal entity is a person or group of people that represents itself as a business. Former justice minister Daniel Lipšic, now an MP for the Christian Democratic Movement party (KDH), was the main advocate for holding them legally responsible in the previous government.

The current proposal would amend a law that was passed a year and a half ago. Štefan Minárik, the general manager of the Justice Ministry's criminal law department, told journalists the need for the change was shown after a cable car caught on fire in Kaprun, Austria in 2000, killing about 150 people.

"The tragedy . . . showed the inevitable need to pass such a law, like the Austrians did," he told the Pravda daily on September 12. "It was undoubtedly proven that the company was responsible for the deaths of those people."

According to Justice Ministry officials, in cases where a legal entity is obviously responsible, the relevant bodies and authorities would start a prosecution in the case. The court would introduce a protective measure for the company in question so that it could not be found guilty of any crimes. Then the court would decide on a penalty at a public trial.

The sanctions would be fines of up to Sk500 million, or the forfeiture of property.

But the court would not be able to ban the entity from operating, as such a sanction is a punishment under the Criminal Law.

The trouble with proving the criminal responsibility of companies is determining intent, said Ján Bernát, the head of the legislation department of the Justice Ministry.

"Using protective measures which could be imposed by the court towards legal entities is the most feasible way to do this," he said.

Lipšic said the bill - which is now waiting for the public commentary process - is neither fish nor fowl.

"This bill introduces the criminal responsibility of legal entities without really introducing it," he told The Slovak Spectator. "It is simply a nonsensical concept which allows the seizure of the property or money of a legal entity, without any prosecution of this legal entity - and this could cause constitutional trouble."

The government is obliged to introduce the criminal responsibility of legal entities because of the European Union requires it, he said.

"If we failed to fulfill it, there is a trial in the European Court of Justice in Luxembourg waiting for us," he warned.

Minárik said criminal respon-sibility could be introduced to the law later.

"I am not ruling out that in the future, we could introduce full criminal responsibility for legal entities," he was quoted by the Pravda daily.

Lipšic further criticised the proposal for not allowing any other types of sentences. It is not obvious which procedural rules would apply, he said.

The Slovak Bar Association does not approve of the proposed legislation, either.

"It introduces collective punishment for the employees of the legal entity, who are not responsible for the illegal actions of the authorised bodies," the association's secretary, Andrej Popovec, told media.

But Lipšic told The Slovak Spectator that there needs to be criminal recourse for legal entities.

"This is important, as many crimes are committed by people to the benefit of legal entities," he said. "So it is absolutely inadequate to prosecute only authorised representatives of the legal entity, while the entity survives without being penalised in any way when a crime has been committed to its benefit.

"Moreover, in many cases it is not even possible to determine the guilt of a specific person, especially in cases of economic crime."

Companies should be prosecuted for organised crime, corruption, bribery, human trafficking, the illegal arms trade and other related crimes, Lipšic said.

The executive manager of the Business Alliance of Slovakia (PAS), Róbert Kičina, told The Slovak Spectator his organisation is not completely opposed to criminal responsibility for companies.

"However, we are not pushing for general criminal responsibility to be introduced - for example, punishment for a company for any crime committed by one of its representatives," he said. "Instead, we suggest that the criminal responsibility for companies only be introduced for clearly defined crimes."

According to Kičina, businesspeople and entrepreneurs are aware that the country is bound by international obligations to introduce criminal responsibility for companies. The ministerial bill cites four international agreements that set out the duty to introduce the criminal responsibility.

"Maybe the trouble is that the ministry wants to introduce the so-called protective measures, which are not punishments in the legal language," Kičina added. "However, this is just playing with words. Whether it's called a protective measure or a punishment, the company will perceive it as a sanction that threatens to deprive it of money or property."

Lipšic said there are other reasons why the current ministerial bill is unacceptable.

"It is like a situation when someone is insane - he or she cannot be sentenced and they are given a protective treatment," he said. "But this is a completely absurd situation."

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