Defence of companies and their directors · Madrid and Alicante
No court acquits a company for owning a bound manual. It acquits, if at all, when it is proven that the model was working on the day of the facts. Defence of companies under investigation and of their directors, with separation of defences where the case demands it.
In brief. Article 31 bis transfers the offence of the individual to the company where it was committed for its direct or indirect benefit. The exemption requires four cumulative conditions: a model adopted and effectively executed before the offence, a supervisory body with autonomous powers, fraudulent circumvention by the perpetrators, and no failure of supervision. Partial proof only mitigates.
Article 31 bis provides two routes of attribution. The offence of the manager: committed by a legal representative or by someone with powers of organisation and control, in the name or on behalf of the company and for its direct or indirect benefit; the defence disputes the author’s position and, above all, whether there was a benefit for the entity or only for the individual. And the offence of the subordinate: committed by an employee because those above gravely breached their duties of supervision and control; there the litigation is about what control was demandable given the size, the sector and the specific circumstances. Two different titles, defended differently.
The exemption of Article 31 bis 2 requires four conditions operating together: a model of organisation and management adopted and effectively executed before the offence, with surveillance measures apt to prevent offences of that nature; supervision entrusted to a body with autonomous powers of initiative and control; fraudulent circumvention of the model by the individual authors; and no omission or insufficient exercise of supervision. If any condition is only partially proven, the law provides for mitigation, not exemption. Two defences, the company’s and the director’s, do not always fit in the same courtroom.
| Question | Rule | Framework | Key point |
|---|---|---|---|
| Fine | 33.7 a) | By instalments or proportional | Modulated where individual and company are both fined |
| Dissolution | 33.7 b) | Definitive loss of legal personality | Reserved for instrumental entities |
| Suspension and closure | 33.7 c) d) | Up to five years | Possible as interim measures (Art. 544 quater LECrim) |
| Prohibitions | 33.7 e) f) | Activities, subsidies, public contracting | Frequently the heaviest real consequence |
| Judicial intervention | 33.7 g) | To safeguard workers or creditors | Combatted with proportionality and lesser measures |
| Representative | 786 bis LECrim | The company appears through a designated representative | Should not be a person who is themselves investigated |
| Investigation clock | 324 LECrim | 12 months, extendable | Computation clarified by STS 747/2024 |
| Corporate operations | 130.2 CP | Liability travels with the entity | Review open criminal cases before signing any merger |
This framework is indicative; the applicable penalties and their extent depend on the offence in the catalogue, the entity’s regime and the specific circumstances of each case.
The dates. The whole system of Article 31 bis 2 pivots on a temporal comparison: the date of the facts against the date the model was adopted and began to be executed. Board minutes with a certain date, the contract with the whistleblowing-channel provider, training invoices, document metadata. Where the only proof of implementation is a PDF without traceability, the defence starts at a disadvantage no argument repairs. And a control that has never fired is indistinguishable from no control: programmes that work leave scars, alerts attended, payments blocked, employees disciplined, suppliers rejected. Those scars are the best proof of the first condition.
The benefit. Without direct or indirect benefit for the company there is no attribution under Article 31 bis 1. Where the manager acted exclusively in their own interest and against the entity’s assets, the company is injured, not benefited; when the facts sustain it, that line of defence is more solid than any discussion about the manual’s quality. And the coherence between the two defences: where company and director appear with the same counsel, the defence brief tends to say simultaneously that there were effective controls and that nobody controlled anything. Courts read that contradiction. Separating defences costs money and creates awkward conversations, but it is often the decision that saves one of the two, and sometimes both.
Citable support, always to be verified at source: on internal-investigation evidence and access to employee mail, STS 328/2021; on trade secrets and the duty of reserve, STS 285/2008 (ECLI:ES:TS:2008:2885); on privacy of messages and recordings, STS 928/2023 (ECLI:ES:TS:2023:5589); on chain of custody, STS 491/2016 (ECLI:ES:TS:2016:2623); and on the Article 324 LECrim clock, STS 747/2024 (ECLI:ES:TS:2024:4260). On imputation models and the judicial assessment of compliance programmes, the internal reference is the doctrine of Encinar del Pozo (Technical Office of the Supreme Court’s Criminal Chamber). This page does not constitute legal advice.
Entities summoned under Article 31 bis: designation of the representative, proof of the model’s execution and defence before the courts of Alicante, Benidorm, Dénia, Torrevieja, Orihuela and Elche.
Sole and joint directors whose interests may diverge from the company’s: independent defence from the first filing.
Supervisory bodies and compliance officers: documentation of supervision and defence of their diligence.
Corporate operations with open criminal cases: due diligence of the criminal risk and its contractual allocation before signing.
Speak to a criminal lawyer
Criminal defence in English before the courts of Alicante and the rest of Spain, for residents and for visitors who have flown home.
Société de Conseil Juridique et Expert es un despacho de abogados con sedes en Madrid, Alicante, Londres y París, especializado en defensa y acusación penal, delitos económicos y corporativos y derecho tecnológico. Trabajamos con orientación estratégica en procedimientos penales complejos, propiedad intelectual y análisis forense avanzado, y prestamos consultoría jurídica, compliance y escudos de protección a particulares y empresas. Atendemos desde Alicante y Madrid, con consulta online en toda España y asistencia al detenido 24 horas. Resuelva sus dudas en las preguntas frecuentes o solicite una primera consulta.
Copyright © 2026 Société de Conseil Juridique et Expert S.L.
