Legislación sobre la Discapacidad en Ecuador

offence in the DCC, criminal procedure law must also regulate the procedure to bring corporations before the criminal court, since a corporation as the subject of criminal law has different characteristic from a natural person. Therefore, the procedural law related to corporations was also introduced in 1976 within the Dutch Procedural Code when the Dutch recognized corporations as the subject of the Criminal Code.562 _{In the Chapter VI of Book IV}

of the Dutch Code of Criminal Procedure Article 528 to 532 (further: the DCCP) regulates the prosecution and the trial of legal persons.563 In general, the stipulations related to the prosecution and the trial of corporations rule two important things, which are the stipulation on the representative of corporations in criminal trials in Article 528 and the communication of court notice for different forms of legal person in Article 529 and Article 532 of the DCCP. These Articles stipulate:564

556 _{See Article 6 Paragraph 1 of the EOA which refer to Article 23 paragraph 7 of the DCC.} 557 _{See Article 7 Paragraph d of the EOA which refer to Article 33a of the DCC}

558 _{See Article 7 Paragraph c of the EOA.} 559 _{See Article 7 Paragraph f of the EOA} 560 _{See Article 8 Paragraph c of the EOA} 561 _{See Article 8 Paragraph b of the EOA}

562 _{See Kamerstuk Eerste Kamer 1975-1976 kamerstuknummer 13655 ondernummer 140. p. 2.}

563 _{The original version of the Dutch Criminal Procedure Code can be accessed on}

http://wetten.overheid.nl/BWBR0001903/geldigheidsdatum_13-07-2014.

564 _{English version of the Dutch Criminal Procedural Code can be accessed on}

Article 528

1. If criminal prosecution is instituted against a legal person, a special purpose fund or a shipping company, this legal person or this special purpose fund shall be represented during the prosecution by the director or, if there are more directors, by one of them and the shipping company by the accountant or one of the members of the shipping company. A person authorised by the representative may appear on his behalf.

2. If the criminal prosecution is instituted against a partnership or unincorporated company, said partnership or company shall be represented during the prosecution by the liable partner or, if there are more liable partners, by one of them. A person authorised by the representative may appear on his behalf.

3. The court may order that a specific director or partner appear in person; in that case it may order that he be brought forcibly to court.

Article 529

1. Judicial notices to a legal person shall be given at: a. the registered office of the legal person, or b. the place of business of the legal person, or c. the place of residence of one of the directors.

2. A judicial notice shall be served by its delivery to one of the directors, or to a person authorised by the legal person to accept receipt of the document on its behalf. The delivery shall be deemed in these cases to be service in person. Said notice may be delivered to these persons at a location other than the ones referred to in subsection (1). 3. The delivery of a judicial notice, as referred to in the preceding subsection, may also be

made at one of the locations, described in subsection (1), to any person who is in the employment of the legal person and who declares that he is prepared to deliver the notice. Article 530

1. Judicial notices to a partnership or unincorporated company shall be given at: a. the place of business of the partnership or company, or

b. the place of residence of one of the liable partners.

2. A judicial notice shall be served by its delivery to one of the liable partners or to a person authorised by one or more of them to accept receipt of the document on their behalf. The delivery shall be deemed in these cases to be service in person. Said notice may be delivered to these persons at a location other than the ones referred to in subsection (1). 3. The delivery of a judicial notice, as referred to in the preceding subsection, may also be given at one of the locations, described in subsection (1), to any person who is in the employment of the partnership or company or of a liable partner and who declares that he is prepared to deliver the notice.

4. The preceding subsections shall apply mutatis mutandis in the case of prosecution of a

special purpose fund or shipping company; in this case the directors or the accountant and the members of the shipping company shall take the place of the liable partners.

Article 531

If delivery could not be made in accordance with section 529(2) or (3), or section 530(2) or (3), then the letter shall be sent back to the authority which issued it and then presented to the clerk to the District Court where or in whose area of jurisdiction the case will be brought before the court or was last brought before the court. In that case the Public Prosecution Service shall promptly send a copy of the letter to the address stated in the letter, which shall be noted in the record of delivery.

Article 532

Sections 585-587, 588(2) and (4), 588a, 589(1), (3) and (4) and 590(1) and (3) shall apply mutatis mutandis to judicial notices given to a legal person, partnership or unincorporated company, a special purpose fund or shipping company.565

Article 528 of the DCCP states that in criminal proceedings the representative of the corporation is based on the form of the corporation. A legal person, a special purpose fund or a shipping company, shall be represented during the prosecution by the director. On the other hand, a partnership or unincorporated company, shall be represented during the prosecution by the liable partner. The corporation itself may appoint the director(s) within the corporation that will represent the corporation (Article 528 (1)). On the other hand, the court also has the authority to order a specific director of the corporation before the court (Article 528(3)).

Related to the circulation of the court notices, Article 529 of the DCCP regulates that the letter of summons from the court can be submitted to several addresses: the address of the corporation, the office of the corporation and at the address of one of its directors. For partnership or unincorporated company based on Article 530, judicial notices can be submitted to the place of business of the partnership or company, or the place of residence of one of the liable partners. If the delivery could not be made, Article 531 rules that the letter shall be sent back to the authority which issued it to be presented to the District court which has the jurisdiction of the case. That article also states that the letter shall be promptly sent to the address and shall be noted in the delivery record. Related to the procedure and the form of the summons for corporations, Article 532 stipulates that judicial notices to legal person basically similar to natural persons.

In addition, the Dutch Supreme Court has also had a critical position in giving further meaning from the stipulation in the DCCP related to the prosecution and the trial of corporations because not all procedural matters are stipulated with comprehensive detail. For

565 _{The stipulations on judicial notification regarding legal persons will be moved to articles 36j-36m DCCP when}

example, as a defendant, in one case the court stated that a corporation also has the right to remain silent as well as a natural person within the trial. That right is only enjoyed by the director(s) who represents the corporation before the court. Furthermore, the director who represents the corporation also cannot be a witness in that case.566 In addition, in corporate criminal cases in the Netherlands, the prosecutor usually separates the indictment to prosecute a legal person and the indictment to prosecute a natural person when the corporation committed a criminal offence.567

4.5. Conclusion Remarks Regarding the Dutch Corporate Criminal Legal System