Legal compliance programs in companies confront the rights of workers

That justice in Spain is slow and ineffective is something that has been observed for quite some time now. In fact, this panorama represents the generalized perception that citizens have when asked about the functioning of the Spanish Justice Administration: there is a lack of means, resources, and the collapse and saturation of the courts requires an urgent reform and modernization in which Work has already begun through the preparation of the Justice Plan 2030, promoted by the Ministry of Justice of the Government of Spain.

Challenges and Challenges of Criminal Justice

This situation is further exacerbated if we talk about criminal justice, where the deficiencies observed are not insignificant: the offender is stigmatized, the victim does not see their needs satisfied and the resocializing principle that should guide the penalties, enshrined in article 25.2 of the Spanish Constitution fails miserably.

In the constant search to find that panacea that puts an end to all the evils that plague the Administration of Justice, in the criminal order it is worth stopping at the objectives set by recent policies that are aimed at increasing the desired levels of efficiency.

Among other issues, this has resulted in the regulation of the criminal liability of legal persons so that they can be penalized for committing an offense in the same way as natural persons before the appearance of new and more complex criminal phenomena in a context of globalization, such as economic and organized crime.

Towards a culture of legality

Thus, in terms of criminal liability of legal persons, one of the most relevant reforms that have been carried out in recent years, giving rise to one of the fashionable topics in the legal and business world is, without a doubt, the relative to the compliance programs or regulatory compliance programs, that is, organizational systems aimed at guaranteeing compliance with the law in the development of those activities that are carried out within a company.

However, in this context, the term compliance it is linked to a greater extent to crime prevention models, introducing the possibility that legal persons may be exempt from criminal liability. In this way, organizations adopt a culture of compliance aimed at avoiding or, at least, at reducing the risk of the commission of certain crimes.

Originating in the United States as a reaction to a series of financial and corruption scandals, it is not only an issue that takes on special importance because it constitutes a mechanism aimed at creating a culture of legal compliance within companies, thus contributing to good corporate governance and business ethics, but also because of its numerous implications in terms of justice in the context of criminal proceedings against legal persons.

The role of programs compliance

Through Organic Law 5/2010, of June 22, the possibility of attributing criminal liability to legal persons was included in our legal system. However, this first regulation did not contemplate the possibility that those could be exempted from said responsibility if they proved that they had done everything possible to avoid the commission of the corresponding crime, but only established certain mitigating factors in response to some behaviors of the legal person. after the commission of the criminal act.

Thus, the most important change comes with the reform of the Criminal Code of 2015 through Organic Law 1/2015, of March 30, introducing certain exonerating and mitigating circumstances of this responsibility based on the fact that the company or organization has endowed itself with of an “organization and management model”. In this way, a mechanism of exoneration or reduction of the company’s criminal liability is established if it has an effective legal compliance program.

To do this, the program must meet a series of requirements that is responsible for listing article 31 bis 5 of the Penal Code as the preparation of a “criminal risk map”; the implementation of financial resource management models to avoid the existence of “b boxes”; the creation of internal reporting systems or channels or the adoption of a disciplinary system, for example.

Faced with the objective of efficiency that is pursued through internal business investigations carried out by entities as a result of the implementation of a legal compliance program in the face of suspicion of the commission of a crime, various questions arise that raise the question of whether , in reality, there is no detriment in the field of procedural guarantees and that, ultimately, make this matter arouse great interest in the field of criminal justice.

Thus, it is worth noting the possible violation of the fundamental rights of workers who are investigated by the entity, such as the right to privacy, the secrecy of communications, the right to the presumption of innocence and not testify against themselves. In addition, to all this are added the multiple risks associated with what would be a “privatization” of public criminal investigation, which leads to the necessary reflection on the so-called compliance or regulatory compliance.

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