CRIMINAL COMPLIANCE

Criminal compliance or compliance program is the set of rules and measures adopted by a company to prevent the commission of crimes within it.

Criminal compliance has undergone significant development in recent years, especially following the introduction of criminal liability of legal persons in the Spanish Criminal Code in 2010. Since the reform that year, companies can be criminally liable for the commission of certain crimes committed by their directors and managers or by their employees, provided that the natural person who actually commits the crime does so acting in the name or on behalf of the company and for its benefit.

If a legal entity is found criminally liable for an offense, the following penalties may be imposed: fine, dissolution, suspension of activities for up to 5 years, closure of premises for up to 5 years, temporary or definitive prohibition to carry out certain activities in the future, disqualification from obtaining subsidies, public aid or tax or Social Security benefits or incentives, and judicial intervention.

In 2015, a novelty was introduced: the possibility of exempting from criminal liability legal entities that had a criminal compliance program properly implemented at the time of the commission of the crime. Therefore, in recent years the vast majority of companies have implemented compliance programs to prevent the commission of crimes within their organization and, in any case, to ensure that, if a crime is committed, the company would not be criminally liable for it.

In addition, the Criminal Code provides for the possibility of mitigating the penalty (i.e. imposing a lesser penalty) to those companies or legal entities that, despite not having a criminal compliance program in place at the time of the commission of the crime, implement, prior to the oral trial, effective measures to prevent and discover crimes that may be committed within the company in the future.

For all these reasons, companies have significant legal incentives to implement criminal compliance, beyond their willingness to create an ethical and compliant environment within the company.

NIETO ENRIQUEZ Abogados Penalistas has its own Department dedicated to preventive criminal advice to executives and companies and to the development of crime prevention programs (Criminal Compliance) adapted to the needs of our clients, which allow them to avoid the risks of committing crimes in the exercise of their business activity.

What criminal compliance services do we provide?

• Development of a crime prevention or criminal compliance program.
• Implementation of the Criminal Compliance System.
• Review and update of compliance programs.
• Legal reports of Due Diligence or Compliance in criminal matters.
• Management of the Company’s whistleblower channel.
• Elaboration of specific policies for each department within the company.
• Design of general policies applicable to the entire company.
• Advice on internal investigations.
• Adaptation of criminal compliance to UNE 19601, ISO 37301 and/or ISO 37001.
• Accompaniment in the process of Criminal Compliance certification.
• Providing training in criminal compliance for managers and employees, either in person or online.
• Design of training materials.
• Preparation of Money Laundering Prevention Manuals.
• Specialized advice as members of the compliance body of the companies.
• Continuous external advice to the Compliance Officer or Ethics Committee of the companies.