CORPORATE CRIMINAL LIABILITY
Acts can be committed both by natural persons and by legal entities
Under Dutch Caribbean criminal law, criminal acts can be committed both by natural persons and by legal entities, for instance, limited liability companies and foundations, and can take part in the crime in a variety of roles incurring liability, including, perpetrators, co-perpetrators or accomplices. As far as legal entities are concerned, criminal liability may arise for: (i) employees of a legal entity, (ii) the legal entity itself, and (iii) those directors or managers of the legal entity of whom it can be proven that they have directed or ordered the prohibited conduct.
Corporate criminal liability presupposes a criminal act committed by an individual. This individual act can lead to a corporate criminal liability, if the corporate entity is proven to have displayed a certain degree of conduct in relation to the criminal behavior of the individual in question. Only in the event it has been established that a criminal act has been committed by a corporate entity, certain natural persons within the corporation that can be proven to have “directed” or “ordered” the prohibited conduct, can be held criminally responsible as well. The criteria to establish this have been developed by case law. A manager or director may be deemed to have directed the prohibited conduct, if he has been negligent in acting to avoid the occurrence of, and thus facilitating, such criminal behavior. In that event, it would have to be proven that the manager or director had the intention of committing a criminal act or taken the considerable risk of others within the company committing such act. Please note that whether a manager “should have known” that there was a considerable risk is not the standard.
This approach to criminal liability of corporations and their managers or directors is especially relevant with respect to tax offences (fiscale delicten) and forgery (valsheid in geschrifte). In theory, however, a company can be prosecuted for every conceivable criminal act, provided certain tests are met.
The Criminal Code punishes those who violate their obligation to keep a shareholders’ register in accordance with the Corporate Code with a prison time of three months or a fine of ANG 5,000 (Curaçao and St. Maarten), Afl. 5,000 (Aruba) or USD 2,800 (BES-islands). The Criminal Code also provides for punishment of those who violate the obligation to keep accounts on a daily basis and to draw up the annual accounts in accordance with the Corporate Code with a prison time of three months or a fine as mentioned previously. There have been few, if any, prosecution having been raised in relation to the obligation to keep a shareholders’ register and to keep accounts.
Karel Frielink
(Attorney/Lawyer, Partner)
(19 October 2018)
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