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The Usefulness of the Compliance Program by Enric Bertolin.

The Usefulness of the Compliance Program by Enric Bertolin.


Having a well-designed and properly implemented Compliance program is a vital element for any company. The approach is relatively straightforward: certain crimes can generate criminal liability for the company, regardless of the criminal liability of the director or employee who commits the crime.

This risk scenario arises when the conduct generates a direct or indirect benefit for the company employing the natural person responsible for the acts. Examples include obtaining national or European public subsidies, seeking a lower corporate tax burden, or irregularly hiring suppliers without the intention of paying for their services, among many other cases.

In connection with the above, adopting and effectively implementing an organizational and management model that includes surveillance and control measures to prevent crimes can even exclude the company’s criminal liability.

This risk identification and crime prevention program is known as criminal compliance. The first instance in which the company can be exempted from criminal liability, though not the worker, arises when the company has acted diligently, particularly when the prevention program was implemented prior to the commission of the crime by the director, employee, or worker.

The consequence of this is clear: the company avoids severe criminal sanctions provided for in our penal code, such as fines, closure of premises or establishments, temporary suspension of activities, prohibition from engaging in commercial activities, and others. This exemption from criminal liability applies, for example, when the individual perpetrator commits the crime by fraudulently circumventing the company's existing organizational and prevention models. In such cases, the perpetrator's actions are sophisticated since they intentionally bypass all the control mechanisms established by the company.

In these cases, no criminal sanction applies to the company, as no culpable conduct exists when the company has done everything within its power to prevent the incident.

Secondly, there are cases where a deficiency in the Compliance program has allowed the commission of a crime by an individual. In this situation, the Compliance program can mitigate the company’s criminal liability but not exclude it as in the previous scenario.

This clear distinction arises from the foundation of corporate criminal liability, which is rooted in organizational deficiencies aimed at preventing crimes by directors or employees.

This deficiency, which generates criminal liability for the company, may appear in the identification of criminal risks, the design of measures to be implemented, or in their actual implementation.

Finally, a Compliance program may be irrelevant in cases where the company has chosen, for example, to copy a crime prevention model from a third party, which they found or were provided with, without adapting or personalizing it to the company’s unique characteristics and functional structure.

These practices take us back nearly 30 years when, in 1995, the legislator introduced the Occupational Risk Prevention Act. At that time, some companies opted to copy the health and safety plan of another company and simply changed the company name.

Fortunately, it seems that few business owners act this way in criminal risk prevention, as their non-compliance is easily detectable through a simple review of the copied plan. This often reveals risks that are actually present but not identified, measures therefore not implemented, or errors in the document pointing clearly to another company with markedly different activities.

In summary, a well-designed criminal Compliance program and the correct implementation of prevention and control measures provide legal security to the company while potentially addressing previously unidentified disloyal employee behavior.


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Photography: Carlos González Armesto
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