Criminal liability of companies
Criminal liability of companies is a reality since 2010, when the Criminal Code established a system of criminal sanctions for legal persons that did not carry out internal tasks to prevent certain crimes.
If a company allows (even through negligence) its personnel to commit crimes in order to get contracts or any type of business or benefit for it, it can be charged, judged and convicted with sentences that go from a fine to court intervention, suspension of business or dissolution.
The criminal liability does not substitute but rather is accumulated to that of the directors, representatives or executives that committed the crime.
The catalogue of crimes for which a legal person can be convicted in Spain is extensive. Currently, different companies have already been charged and are facing their possible criminal liability before the courts, with the legal and reputational cost that this may signify.
It is here where the relevance of the corporate compliance programs arise, which allow the company to comply with the duty of prevention and control. In addition, the implementation of rigorous corporate compliance programs can exempt a company from being convicted for the crimes committed by its executives or directors, according to the new draft of the Criminal Code. Therefore, it is understood that if a company has implemented mechanisms of prevention and control and despite everything someone gets around them and commits a crime to improve its figures and obtain business, then the legal person cannot be convicted for it.
In order to develop the corporate compliance programs, JAUSAS acts together with important criminal lawyers to overcome the obstacles that traditionally threaten these projects, which normally are developed by legal counselling firms that are leaders exclusively in Commercial Law or in Criminal Law.
How we work?
La implantación de un programa de compliance penal se realiza en tres fases:
In this phase, the criminal risks of the company are identified according to its activities, organisational structure and size, and the effectiveness of the protocols, internal policies and controls, in case they exist, are verified. The result is a map of criminal risks faced by each department of the company, with the degree of probability that they occur and with the degree of coverage that they have.
The team in charge of the project develops a set of internal rules that offers clear action guidelines to employees or executives in relation with which behaviours to avoid or to carry out in situations of criminal risk.
In this phase, the different mechanisms for prevention and control are created, among which the following are highlighted: - Whistleblowing for the communication of possible non-compliances of the internal rules of the company and/or of the legal rules - Internal sanctioning regime - Training plans and information to the staff - Program of counselling and control of suppliers