The entry into preventive detention of José Luis Abalos and his former advisor Koldo García, in the context of the Koldo case, has completely changed the political scenario. The image of the former minister entering Soto del Real is a symbol of the earthquake … Personal and institutional as well. The focus is not just on who goes to prison, but on who should have prevented the conspiracy from existing. What is under discussion is not only the individual behavior of two socialist leaders. What should take precedence in investigation is the cause PSOE It failed to comply with its obligation to design and implement an appropriate model of criminal compliance to prevent crimes such as those charged in Cerdan, Abalos and Koldo.
This duty is not rhetorical. Since the reform of Organic Law No. 6/2002 on political parties, Article 9 bis requires parties to have internal crime prevention measures, financial controls and codes of conduct. In addition, Article 31 bis of the Code is added Penal CodeIn force since 2010 and strengthened in 2015, it states that any legal entity, including political parties, can be criminally liable for crimes committed on its behalf when it does not implement adequate prevention and control mechanisms.
Liability does not arise from a direct order, but rather from failure to comply with the duty of supervision, which leaves a clear path to the commission of the crimes attributed to these three individuals.
This is the key to the debate PSOE Try to avoid. It’s not just about what Cerdan, Abalos or Koldo did. It’s about what the party did to prevent this. From a legal standpoint, the question is whether it did its duty to prevent what the investigation was investigating. If you do not, your liability is not political and could be criminal.
The investigation must determine whether the network of alleged kickbacks in the purchase of masks developed in a context where… Internal mechanisms The party failed or simply did not exist.
If this failure facilitates the actions of those in administrative positions, then responsibility ceases to be individual and becomes organizational. It is sufficient that the structure was not reasonably capable of detecting the violations. This is the essence of Article 31 bis.
Abalos was not just another militant. He was organization secretary of the Socialist Workers’ Party between 2017 and 2021, a position that directs the party’s internal life and clarifies policy. Operational decisions More sensitive. His successor, Santos Cerdán, spent nearly five months in temporary prison for a piece linked to the same tire. Two successive secretaries of the organization deprived of liberty do not describe an accident or personal transgression. It reveals the collapse of the duty of vigilance at the heart of the party. When the second organic number falls twice in a row due to events of a similar nature, the legal question is inevitable and prompts us to think about what control mechanisms exist and why they did not work.
The Socialist Workers’ Party confirms that it learned of the events from the press. This interpretation, which is not new to the SWP, may be politically useful, but legally it is nuanced and difficult to support in court. A party legally bound by its existence Effective prevention systemsWith continuous monitoring, evaluations, controls and verifications, the failure of these models cannot be detected in advance.
Internal ignorance can lead to involuntary sacrifice of the party in criminal proceedings and a lack of control can appear in the form.
jurisprudence supreme court He insists that compliance models must be authentic and effective. Evidence or appearance protocols are not sufficient.
If the PSOE wants to avoid possible accusation and conviction, it will have to provide evidence: Internal documentsSupervision records, protocols, procedures, preventative controls, operational reporting channels, and financial traceability. The law requires advance action, not last-minute solutions.
If the party fails to prove these extremes, the scenarios that open up will not be secondary. The most innocuous is that of a profitable participant. Another is Subsidiary civil liability. But the most serious scenario is direct criminal liability as a legal entity.
The consequences are stipulated in the Penal Code: heavy fines, denial of receiving public funds, judicial intervention, suspension of activities, Headquarters closed In extreme cases, the party dissolves. This last measure is exceptional, but the law includes it literally. If the instructions reveal systemic failures in the duty to prevent, no scenario is excluded.
Whether the PSOE has fulfilled its legal duty to prevent crimes within its structure remains to be seen Legal question That will determine your future. If controls fail, the responsibility does not end with Alpalus. He starts in the organization that was supposed to stop him.
Felipe Garcia Hernandez He is the Managing Partner of Círculo Legal and a member of the International Board of Directors of the Global Compliance Association