Commented case 05 of 6 · illustrative
A private school facing a serious incident
An illustrative, composite case: no fact, person or school in this account is real. A private school faces a serious incident during a school trip and discovers that its protocol existed on paper but not in practice. The case works through the criminal liability of the legal person — whose entry into force is deferred — and the concrete decisions the leadership took in the weeks that followed.
Step by step
What happened
The incident
During an eighth-grade school trip, a student suffers a serious fall at a hired sports facility. There is a single teacher accompanying thirty-two students. The families’ permission was collected by text message. There is no record of who checked the conditions of the venue.
The student recovers. The family, rightly, asks in writing who authorised the trip, who was supervising and what was checked beforehand.
The board meeting
The head of school puts three documents on the table: the school’s trips protocol, the authorisation for the activity, and the supervision record. The first exists and is well written. The other two do not exist.
Someone proposes reconstructing the paperwork with an earlier date. The head of school cuts the conversation short: “If we falsify a document today, we turn a supervision problem into a crime. We are not going to do that. We are going to write the truth and fix what is missing.”
What the leadership decides
- Answer the family with the truth, in writing, including what the school did not do well, and cover the medical care.
- Suspend all trips until the protocol has a named person responsible, a prior checklist, a minimum ratio of accompanying staff and written authorisation from families.
- Draw up a real risk map of the school: transport, laboratories, the court, trips, students’ arrival and departure, digital channels.
- Appoint a person responsible for compliance, with a deputy for their absences, and a confidential complaints channel accessible to staff, students and families.
- Train the staff — including security and transport — and keep a record of attendance.
The board’s question
A board member asks whether the school, as an institution, can be criminally sanctioned. The answer is precise and has a date: the regime of criminal liability of legal persons entered into force on a deferred basis, three months from 5 August 2026 Art. 31Ley 44-26. That is, there is a short window, and it is not for resting: it is for arriving prepared.
Three months later
The school has a code of conduct, a risk map, documented training, a complaints channel, a protocol for action and traceability. None of those documents is decorative: each has a named person responsible and a review date.
The student’s family, who could have sued, asked instead to take part in the review of the protocol.
The legal reading
What the law protects here
What the law protects here
Legal persons are criminally liable for the acts or omissions of their bodies, representatives or subordinates, where there was also a failure in their duties of direction, control or supervision Art. 8Ley 74-25, alongside the natural persons Art. 9Ley 74-25. The penalties are the fine, complementary penalties and legal dissolution Art. 39Ley 74-25; the fine for very serious offences runs from one hundred to one thousand five hundred public-sector minimum wages Art. 40Ley 74-25, and the complementary penalties include closure and the revocation of licences or administrative authorisations Art. 41Ley 74-25.
The date matters. This regime — Arts. 8 to 11 — did not enter into force with the rest: Ley 44-26 deferred it “within a period of three months, from 5 August 2026”, so that legal persons can adapt Art. 31Ley 44-26. Everything else in the Code is in force. Another decisive distinction: MINERD public schools are not liable as legal persons, because the State and its bodies are exempt Art. 13Ley 74-25; their natural persons are. Private schools do fall within the regime.
The law also says how to be protected: a real compliance programme — a code of conduct, a risk map, continuous training, a supervisory body, anonymous complaints channels, documentary traceability — mitigates liability and can exclude it where the two circumstances the law requires are met Art. 8Ley 74-25.
Which decisions were protective, and why
- Refusing to reconstruct documents. It would have turned a supervision failure into documentary forgery Art. 348Ley 74-25, more serious than the original event.
- Telling the truth and making amends. Repairing the harm and cooperating are expressly mitigating Art. 8Ley 74-25.
- Redoing the trip arrangements in line with rules that already existed. The Normas de Convivencia (the school-coexistence rules) reach activities outside the premises Art. 3Ordenanza 05-2023 and the Código de Ética requires written authorisation and a second accompanying teacher Art. 12MINERD Code of Ethics. Institutional liability arises from the organisational defect, not from the accident.
- Using the three-month window to adapt Art. 31Ley 44-26, which is what it was created for.
The tempting shortcuts and what they risked
Negotiating the family’s silence would have been the worst. Here the event is an accident arising from a supervision defect, not ill-treatment, so the failure to inform under Art. 325 is not triggered by itself; what is compromised is the duty to report of whoever is under an obligation to do so Art. 327Ley 74-25 — and as soon as any indication of ill-treatment or a sexual offence appears, then Art. 325 does apply Art. 325Ley 74-25, and the legal person is liable for it too Art. 346Ley 74-25. And any settlement resting on reconstructed documents drags the forgery along with it Art. 348Ley 74-25. And “waiting until the rule is in force” confuses the deadline with a permission: the deferral is preparation time.
A transferable practice
Apply the named-owner test: for every protocol, who executes it, who covers for them, and where the record is kept. Any protocol that does not pass those three questions does not yet exist.
The team’s commentary
What this case teaches
Español — The Spanish version is the reference text — the legal verification described in the audit report was carried out on it.
Audit report — the independent legal review of this material, with the errors we found and corrected (page in Spanish).
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