By Dr Frank A. Tabone – Associate
The notion of Corporate Criminal Liability as regulated under the Criminal Code, Chapter 9 of the Laws of Malta, was established by Act III of 2002.
Article 121D which is found under Title III of the Criminal Code, Chapter 9 of the Laws of Malta, which title regulates those crimes against the Administration of Justice and other Public Administrations, determines the elements of when a body corporate shall be held criminally responsible.
Article 121D dictates that for the offence of corporate criminal liability to subsist:
- A person must be found guilty of an offence regulated under Title III of the Criminal Code;
- At the time of the offence, the person was the director, manager, secretary or other principal officer of a body corporate or is a person having a power of representation of such a body or having an authority to take decisions on behalf of that body or having authority to exercise control within that body;
- The offence was committed for the benefit, in part or in whole, of that body corporate in question.
If a company is found guilty of the offence regulated under article 121D, it shall be liable to a payment of a fine (multa) of not less than twenty thousand euro (20,000) and not more than two million (2,000,000).
Further to, the fine which the company is ordered to pay by the Court, may also be recovered as a civil debt and the sentence of the Court shall also constitute an executive title for all intents and purposes of the Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta.
Article 121D further provides that in those instances where the legal representation of the company in question, is no longer vested in the person found guilty of an offence under the above mentioned title, the legal representation shall be transferred to the person occupying the position of director, manager, secretary of other principal officer of the body corporate or is a person having the power of representation or the authority to take decisions on behalf of the company.
Act III of 2002 also introduced article 248E(4) of Chapter 9 of the Laws of Malta, which provides that when a person is found guilty of any offence regulated under sub-title VIII Bis ‘Of the Traffic of Persons’, and was at the time of the commission of the offence an employee or in the service of a body corporate; the commission of the offence was in whole or in part carried out for the benefit of the body corporate, and the commission of the offence was rendered possible because of the lack of supervision or control by a person referred to in article 121D, that person shall also be deemed to be vested with the legal representation of the same body corporate, which company shall be liable to the payment of a fine (multa) of not less than ten thousand euro (10,000) and not exceeding two million euro (2,000,000).
Article 121E and Article 248E(4A) of the Criminal Code further provide that in the case of when the offence is committed for the benefit, in part or in whole, of a body corporate; is committed by a person who at the time of the offence had the power of representation of the company, the authority to take decisions on behalf of the company, or the authority to exercise control of the body corporate, the company in question may be subject to:
“(i) exclusion from entitlement to public benefits or aid; (ii) the suspension or cancellation of any licence, permit or other authority to engage in any trade, business or other commercial activity; (iii) placing under judicial supervision; (iv) the compulsory winding up of the body corporate; or (v) the temporary or permanent closure of any establishment which may have been used for the commission of the offence”.