26 Oct First sentences of the Spanish Supreme Court on the criminal liability of companies
The deep amendment of the Spanish Criminal Code, which entered into force on July 1, 2015, introduces for the first time in our legal system the criminal liability of companies and mercantile companies, breaking with the previous tradition that only made individuals responsible for crimes, not to organizations.
Since then, a culture has been promoted in the companies of compliance, that is to say, of application of mechanisms that avoid in the internal departaments of the companies the commission of said crimes.
The key to the adoption of these programs is that in case of commission of crime, the company could be exempt from any responsibility if the existence and autonomous application is demonstrated by independent bodies of said compliance plans.
More than 2 years later, to date we have 12 judgments of the Supreme Court in Spain on criminal liability of companies, and there are still many questions on several issues. But we can also draw some conclusions about them:
· First of all, it should be noted that all the defendants lacked a compliance plan, nor did they have a “compliance officer”, a whistleblowing channel … That is, we are really looking to verify the role that Courts will grant regulatory compliance programs in the exemption or liability of legal persons, which highlights the importance of adopting them as soon as possible and with the greatest perfection and adjustment to the risks of each company.
· What seems clear from the point of view of the defense of the company is that it must defend itself and be part of autonomous form that is, since the penalties can reach both the company itself (penalty of dissolution for example) also to the directors, executives, administrators, the defense must be given separately.
· From the point of view of the criminal types, it seems to be confirmed, and half of these judgments prove it, is that companies are responding above all to crimes of fraud. Although not be overlooked other adjoining, such as punishable insolvency, misappropriation, money laundering, crimes against the Treasury and Social Security … On the contrary, the Judgment of February 23, 2017 of the High Court confirms that the Criminal type of crime against workers cannot be committed by companies, only by individuals.
· It is also missed, but from a legislative point of view, a more developed regulation that indicates the value or importance of the complaints channel or the compliance officer’s statute. Statute that determines, capacity, entitled, obligations, etc.
At Navarro Llima Abogados we prepare compliance plans tailored to the needs and risks of your company. If you simply want more information, do not hesitate to contact us.