The Prosecution’s criterion on crime prevention programs of the legal persons

Jordi Tirvió Portús, Partner Criminal Law. AGM Abogados

Following the last modification of the Spanish Criminal Code, the Prosecutor’s General Office has published a few days ago the Circular 1/2016, about the criminal liability of legal persons.

Through these circulars, the State General Attorney establishes the guidelines to be followed by all the public prosecutors in application of the different matters affecting to criminal law. Therefore, through these instruments, the Prosecutor General’s Office sets the standard of action of the public prosecutors at criminal procedures.

One of the elements analyzed by the Circular 1/2016 referred to criminal liability of legal persons, sets the conditions and requirements for the organizational and management models that companies must adopt in order to prevent the commission of criminal offences and, when applicable, the exemption of the criminal liability.

The exposition made by The Prosecutor’s General Office is quite comprehensive. The central idea stands on establishing that organizational and management models must be specifically designed for each legal person (taking into account its nature, activity, particular risks, etc.) and being effectively applied. In summary, it highlights the following:

• Organizational and management models must be perfectly adapted to each company and its concretes risks. The programs must be clears, accurate and effectives, and of course, drawn up in writing. It is not sufficient the existence of a model but it also requires prove of its efficiency to prevent the specific criminal offense that has been committed. In order to do that, it will be necessary to make up a judgment of suitability between the contents of the program and the offense committed. Standard programs will not be considered valid.
• One of the key elements of the prevention models is the existence of internal “whistleblowing channels”.
• Another key element is the “compliance officer”, whose function is to supervise the crime prevention model. As established at the article 31 bis of the Spanish Criminal Code, it must be a specific body of the legal person with autonomous powers of initiative and control. Therefore, it will be specifically created to assume this function and it is necessary that it meets a sufficient knowledge and professional experience. In order to achieve the widest coverage, it will be as well necessary that it has appropriate tools, access to internal procedures and all the necessary information about the company activities.
• The goal of the organizational and management models is not only to focus in avoiding the criminal penalties to the company, but also to promote a real corporative ethic culture. Consequently, its real efficacy resides in the importance of how these models affect the decision-making of the managers and employees of the company, and how its contents reflects on the real expression of the company compliance culture. In this sense, public prosecutors are entrusted to analyze if the established prevention programs express a corporative commitment that truly dissuade the commission of criminal offenses. The General Attorney insists on the fact that prevention programs that are only established to meet formal requirements aimed to exonerate the company will not be considered valid.
• According to the previous point, the General Office stands that any efficient model depends on the unequivocal commitment and support of the top management in order to transmit a culture of compliance to the rest of the company.