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Minimising criminal liability: A question of effective prevention

| News | Corporate Compliance

An increase in demand has been accompanied by an increase in supply. However, the programs that arise are not always effective. To choose the most suitable experts, it is essential to assess their experience and training

Preparing and implementing a compliance program requires an effective and efficient management model. Furthermore, risk analyses must be conducted in a rigorous manner and suitable controls put in place to mitigate these risks “without losing sight of the provisions of ISO 19601, which has become an instrument to analyse whether or not a system for the prevention of criminal offences meets requirements”, says Benjamín Prieto, partner at Andersen Tax & Legal and head of the procedural law department at the Andersen Tax & Legal office in Valencia. In addition, he says, “a program with these characteristics is dynamic”: once it is in place, it must be kept up to date and tools, such as the channel for complaints and communication, must function perfectly.

To do this, there must be professionals with experience available. It is important that they work with a system in phases in which risks are analysed, the controls necessary to mitigate them are established, the complaints channel is put in place and a training plan for all personnel is formulated.

According to Prieto, “in our procedure (to be specific, from that moment onwards), we collaborate with businesses in all of their requirements: we provide training, advise in decision-making, the Compliance Officer or Compliance Committee and conduct the audits required in order to assess how it was put in place. It should be remembered that as experts in criminal procedural law, we address the defence of the legal entity in procedures in which it is involved”.

On this point, Benjamín Prieto emphasises that access to specialist advice is essential, in particular for SMEs. He refers to the figure of the compliance officer, saying that “in the case of SMEs compliance officers often do not have specific training, hence the need for specialist advice when resolving operating issues”. “While it is essential under the law to put a compliance program in place, this program must be very strict due to the fact that not all such programs are effective and, therefore, not all will attenuate criminal liability”, says Prieto.

“The challenge lies in conveying the importance of putting these programs in place to small companies”, explains Mr. Prieto, who points out that in the case of this autonomous region businesses are well-positioned vis-à-vis the rest of Spain. “Our autonomous region has a strong business fabric, with very relevant companies that have been pioneers in all types of progress, security and transparency. This has led them require of all their business partners and suppliers to implement crime prevention programs in order to be able to work with them”, he adds.

For those that do not yet have these programs in place, the most common argument is that they provide protection against possible illegal conduct by individuals that could result in a criminal charge. “However, businesses must be made to see how a suitable compliance policy can transform their organisation, making it more competitive and enabling it to create trust among its partners and suppliers”.


Public companies also affected

The Penal Code states that due to the fact that they provide a service in the general and collective interest, and in view of the resources used to finance them, public companies must demonstrate a clear commitment to compliance with regulations, and not merely demand such compliance from those who wish to work with them. “This is regulated in article 31 bis quinquies of the Code, which states that public commercial companies can be liable for instalment or proportional fines, as well as legal intervention to protect the rights of employees and creditors”, says Benjamín Prieto, who points out that the transparent management of public funds was already addressed in the law on transparency, access to public information and good governance of 2013. “In any event”, he adds, “even though the Administration cannot be charged with a criminal offence, public entities that put a compliance program in place will be showing the community a standard of transparency and exemplariness that is not insignificant”.


Para más información, puede contactar con:

Benjamín J. Prieto Clar


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