Ena Gotovuša, PhD
Teaching assistant at the Law School of Sarajevo University, Department of Criminal Law (subject Criminal Procedure Law) and external research assistant in Foundation Public Law Centre

Debate whether legal persons can be criminally liable has been subject of academic interest and discussions for a long time. Led by Latin phrase “societas delinquere non potest”, the vast majority of legal systems did not accept criminal liability of legal persons for a long time. The key argument for this viewpoint was the lack of „mens rea” element (the “guilty mind” or intention of an individual). Yet, it would be unfair to say that legal persons were not responsible for breach of law in any other way. Legislation of the Former Republic of Yugoslavia recognized economic transgressions as a separate category of criminal offence. After the dissolution of the Former Republic of Yugoslavia, all member states showed commitment to European integration. In order to join the European Union, candidates for future membership had to harmonize national law with “acquis communautaire” and consequently introduced criminal liability of legal persons in criminal and criminal procedure codes. In the paper, besides the historical background, the author analyzes differences and similarities between criminal liability of legal persons in Bosnia and Herzegovina and Croatia, focusing on specific features of criminal proceedings against legal persons. Both countries adopted a model of derived, subjective and cumulative liability. Author compares differences between specific matters of criminal procedure against legal persons. The issue that deserves special attention in the context of derived liability of legal persons is whether a natural person and a legal person can have joint defense. Besides specific features of a criminal procedure against legal persons, the paper also elaborates different regulation of sanctions, security measures and consequences of conviction for against a legal person. Finally, in the conclusion, the author advocates intervention in B&H legislation, following the solutions prescribed by the Law on the Liability of Legal Persons for Criminal Offenses regarding joint and mandatory defense, and, especially, for establishing of a public criminal register of convictions against legal persons. Public criminal register of convictions against legal persons has a vital role in national economy, having in mind that legal persons are most common users of financial services.

Keywords: criminal liability of legal person, model of derived liability, joint defense of legal person, mandatory defense of legal person, public criminal register of convictions against legal persons.

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