A criminal complaint (denuncia or querella) has been filed against my company: first steps and key differences

Receiving a criminal complaint (denuncia) or a private prosecution (querella) against the company calls for a swift reaction, but not every company holds the same position in criminal proceedings. The first question is not only which offence is alleged, but what liability the accusation attributes to the company: criminal liability as a legal person, or secondary civil liability for damage caused by an individual.

The difference affects strategy, evidence, procedural representation and the financial consequences. It is therefore advisable to review immediately the court decision, the complaint and the available case file, without relying solely on the notification received.

When can a company be criminally liable?

A company may be criminally investigated when the offence is one for which the law provides liability of legal persons and it is attributed to a representative, director or person with powers of organisation and control, or to a subordinate whose conduct was made possible by a serious breach of the duties of supervision, oversight and control.

In addition, the offence must have been committed on behalf of or for the account of the company and for its direct or indirect benefit. It is therefore not enough to assert that a director or employee committed an offence within the organisation. The prosecution will have to link the facts to the entity and to the specific requirements of corporate liability.

Article 31 bis of the Spanish Criminal Code also gives weight to organisation and management models. A compliance programme is not a decorative document: its prior existence, its suitability for the specific risk, its real application, the autonomy of oversight and the response to possible breaches will all have to be proven. In small companies, the law allows certain oversight functions to be assumed by the management body, but this does not remove the need for effective controls (Article 31 bis.3 of the Criminal Code).

Recent case law insists that the liability of a legal person cannot become automatic liability for the acts of its director. The Supreme Court has held that the elements specific to the entity’s liability must be proven and that a conviction cannot rest solely on the conduct of the individual (Supreme Court judgment 768/2025 of 25 September).

How is a legal person under investigation defended?

A company under investigation has its own procedural rights. It must appoint a lawyer, a procurador and a person to represent it specifically in the proceedings. That representation should not necessarily be confused with that of a director or executive under investigation for the same facts.

Any conflict of interest must be analysed from the outset. If the company’s defence requires attributing the act to the individual conduct of the director, or if the director’s position may harm the company, sharing representation and legal counsel may create a conflict. In that case it is advisable to consider a separate defence and a special representative who is not personally accused and is not required to give evidence as a witness.

The legal person may be informed of the facts, examine the case file on the applicable procedural terms, take part in the investigation and exercise its right of defence. In its statement, the specially appointed representative is assisted by a lawyer, and the company retains the right to remain silent, not to incriminate itself and not to plead guilty. The representative’s failure to appear does not necessarily halt the proceedings: the step may take place with defence counsel (Articles 119, 120 and 409 bis of the Criminal Procedure Act).

At trial, the appointed person may sit in the place reserved for the accused, give evidence on behalf of the company and exercise the right to have the last word. A person who is to give evidence as a witness cannot be appointed to this role. If the representative does not appear, the trial may continue in the presence of the company’s lawyer and procurador (Article 786 bis of the Criminal Procedure Act).

What does secondary civil liability mean?

A company may not be accused of any offence and yet be summoned to the proceedings as a party with secondary civil liability. This usually arises when an individual commits an offence within a relationship of dependence or in the performance of functions linked to the business activity. The claim does not seek to impose a penalty on the company, but for it to pay compensation if those directly criminally liable do not do so first.

The treatment is different. The company does not defend its criminal innocence as an accused party; instead, it disputes the existence of the offence for civil purposes, the relationship with the perpetrator, the functional link and the amount of the damage. Secondary civil liability may be compatible with the criminal acquittal of the legal person, because the two institutions have different requirements. The Supreme Court has stressed that this liability does not necessarily require a formal employment relationship or a direct benefit for the company, but it does require a sufficient connection between the criminal activity and the functions performed for the principal (Supreme Court judgment 647/2021 of 19 July).

A company with secondary civil liability must also be summoned to the proceedings and given a real opportunity to defend itself. It should not be assumed that its participation is covered because its director has appeared as an accused. The company may have conflicting interests and needs to know the civil claim, propose evidence and make the relevant submissions.

What to do on receiving the complaint

First, the company’s exact procedural position must be identified. It is not enough to know that it is mentioned in a complaint. Second, contracts, emails, invoices, accounting records, internal protocols, whistleblowing channels and digital evidence relating to the facts should be preserved immediately. Destroying, altering or informally selecting documents may make matters worse.

Contacting complainants, witnesses or employees to try to “clarify” the facts without a previously defined strategy should also be avoided. It is preferable to channel any communication through the defence and to separate the internal investigation from the criminal defence, preserving confidentiality and documenting who has access to the information.

Finally, the company must assess the criminal, financial, reputational and operational risks. A legal person may face fines and, for certain offences and in certain circumstances, penalties such as suspension of activities, closure of premises, disqualification from contracting with the public sector or even dissolution. A complaint is not a conviction, but it does require the response to be organised from day one and a precise distinction to be drawn between the company being criminally investigated and a mere claim of secondary civil liability against it.

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