Bufete Escura (Spain - TAGLaw) This presentation contains information regarding the Corporate Criminal Compliance, already in force in other countries that has been established in Spain through the amendment of the Criminal Code, since July 2015.

1. CORPORATE CRIMINAL
COMPLIANCE
Confidential Document

2. Corporate Criminal Compliance
Criminal Liability
of Companies
Compliance
Model of
Prevention
Sensible
Practices
Methodology
Compliance
Vigilance
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3. Criminal Liability of
the CompaniesCriminal Liability of
Companies
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Criminal Liability of
Companies
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5. Criminal Liability of
Companies
Criminal Code
Organic Law
5/2010
 Corporation shall
be criminally liable
for certain offences
 The status of the
corporation is not
clear during the trial
 An exemption
seems to exist but
is not specifically
regulated
Current Criminal Code – After
amendment by Organic Law 1/2015
 Corporation shall be criminally liable for certain
offences. The type and number of offences are
increased
 Corporation is treated the same as an accused
individual during the trial
 A Criminal Compliance program as the only
means for the company to make itself exempted
from criminal liability
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6. Reason for the implementation of
Criminal Compliance
The article 31 bis establishes the exemptions of responsibility:
a) Previous adoption and effective implementation of an appropriate organization and
management model that prevents offences like the one committed or reduces
significantly the risk of such offences being committed
b) A body with an autonomous initiative and control powers must supervise the
functioning and the compliance with the program
c) The individual perpetrators have committed the offence by fraudulently misleading the
organization and prevention models
d) The body of b) carried out the supervision of the program
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7. Reason for the implementation of
Criminal Compliance
As well, the Code provides mitigation on the liability.
Extenuating circumstances in relation to the criminal liability of legal entities shall only
be deemed to exist, if, subsequent to the offence being committed and through their
legal representatives, they have:
• Confessed the offence to the authorities, before learning that legal proceedings are
being brought against them
• Collaborated with the investigation into the matter, providing evidence, at any point in
the proceedings, that was new and decisive in relation to clarifying the criminal
liability arising from the facts
• Repaired or diminished the damage caused by the offence, at any point in the
proceedings and prior to the hearing
• Established, prior to the hearing of evidence, effective measures to prevent and
detect offences that may be committed in the future with the means or under the
cover of the legal entity
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8. Criminal Liability of
Companies
Offences
 smuggling
 illegal organ trade
 trafficking in human beings
 prostitution, sexual exploitation
and corruption of minors
 discovery and
revelation of secrets
 swindling
 frustration of execution
 punishable insolvency
 damages
 against intellectual
property
 against industrial
property
 against the market
and consumers
 corruption in the
business
 receiving stolen
goods and money
laundering
 illegal funding of political
parties
 against the Social
Security and the
Treasury
 against the rights of
workers
 against the rights of foreign
citizens
 concerning
organization of the
territory and town
planning
 against natural resources and
the environment
 related to nuclear energy and
 of risk caused by explosives
and other such agents
 agains the public
health
 on forgery of currency and tax
stamps
 on forgery of credit and debit
cards and traveller’s cheques
 bribery
 on influence peddling
 committed when exercising the
fundamental rights and public
liberties guaranteed by the
Constitution
 of terrorism
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9. Criminal Liability of
Companies
Who can commit an offence?
 Chief Executive Office
 Any employee of the company (including directors)
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10. Criminal Liability of
the Companies
Penalties for legal persons
 Fine by quotas or
proportional
 Dissolution of the legal
person
 Suspension of its
activities for a term that may
not exceed five years
 Closure of its premises
and establishments for a
term that may not exceed
five years
 Prohibition to carry out
the activities through
which it has committed,
favoured or concealed the
felony in the future. Such
prohibition may be
temporary or definitive. It
temporary, the term may not
exceed fifteen years
 Barring from obtaining
public subsidies and aid,
to enter into contacts with
the public sector and to
enjoy tax or Social
Security benefits and
incentives, for a term that
may not exceed fifteen
years
 Judicial intervention to
safeguard the rights of the
workers or creditors for
the time deemed
necessary, which may not
exceed five years
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11. Relations with the Public Administration and the political parties
Sensible
Practices
Relations with the Social Security and the Treasury
Business trade
Organization of the territory and town planning, natural resources and the environment
Collective Security
Frauds
Workers and foreign citizens
Other offences: trafficking of human beings, illegal trade of organs…
Data Protection
Information Technology
Receiving stolen goods and money laundering
Relations and decision making inside the company
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12. Characteristics
◙ Customized and adapted to the company
◙ Neutral
◙ Operational
◙ Accessible
◙ Simple
Configuration of the work team
◙ Determine the human teams engaged in the process
◙ By company, by department
Model of
Prevention
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13. 1) Knowledge of
the sensible
practices
• First meeting between Bufete Escura and the Company to determine the
documentation needed to know the sensible practices
2) Collection of
documentation
and questionnaire
• Collection of required documentation. Forward to the company the questionnaire in
order to analyze the risks of each department
3) Preparation of
the questionnaire
• Preparation of the questionnaire
Methodology
KNOWLEDGE OF THE COMPANY
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14. 4) Preparation of
the memory
• Configuration of the memory adapted to the company
5) Establishment of
the organizational
programs
• Establish the organizational programs for each type of offences
6) Closure of the
memory
• The closure of the memory with the whole information and is introduced to the
direction of the company
Methodology
COMPLIANCE
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15. 7) Approval of the
memory
• Approval agreement of the memory by the administrators and the board of directors.
8) Presentation to
the employees
• Training of the responsible and selected employees
• The employees sign the document according to the Corporate Criminal Compliance.
Send information to the Committee
9) Creation of the
Committee of
Vigilance and
Control of the
Compliance
• Creation of the Committee of Vigilance and Control of the Compliance
• Periodic Meetings with the professionals. Recomended term revisions of the
documentation that guarantees the vigilance measures
Methodology
IMPLEMENTATION OF THE COMPLIANCE
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16. EXEMPTION OF CRIMINAL
LIABILITY
COMPLIANCE
Company
Compliance
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17. Compliance
officer body
1.- Review of the documentation and the
sensible practices
2.- Determine the members of the Committee
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18. Conclusion
Corporate Criminal Compliance of the legal entities is a reality
since the reform of the Criminal Code
The unique mechanism of exemption on liability is the
Compliance. Article 31 bis
The service offered is adapted to the regulation requested by
the law
Sensible practices must be analyzed and the Company must
create organizational programs
The phases for the implementation of Criminal Compliance are
based on a methodology and co-work within the legal entities
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