What is Criminal Compliance?
With the reform of the Penal Code in the year 2010, legal entities came to be susceptible of being criminally liable in cases of commission of a crime by one or more of their members (whether a legal representative or executive with decision-making powers or powers of organisation and control who acts in the name or on account of the organisation, or any other member submitted to the authority of the former when these have defaulted on their duties of supervision, surveillance and control) provided that such action entails a direct or indirect benefit for the legal entity.
In the year 2015, a new legislative reform contemplated the possibility of exempting the legal entity from criminal liability if it can be demonstrated that prior to the commission of the crime it had established a model of organisation and management which included effective measures of surveillance and control of its activity addressed to the prevention of commission of unlawful acts; that it had entrusted its supervision to a body with autonomous powers; and that the perpetrator of the acts must have fraudulently eluded said model in order to commit the crime.
The design and implementation of a Compliance System is a solution for mitigating the risk of commission of crimes within the company and obtaining the company’s exemption from liability in the event that such crimes are committed. However, a Compliance System can go far beyond the requirements of the Penal Code, not simply responding to its demands: in this way, for an organisation which wants to proclaim ethical commitment as a seal of identity, establishing a Compliance System will imply acting in accordance with certain ethical principles and values assumed voluntarily and reflected in every one of its actions, in keeping with its commitment to society and the markets in which it operates, thus demonstrating that the established model is not merely aesthetic but drives its activity and guides its steps.
Consequently, a Compliance System will be proof not only of the establishment of the model of organisation and management required by the Penal Code but also of an ethical commitment to legality and the socially responsible practices which the organisation has integrated into its own DNA.