Criminal responsibility of legal entities
– Implementation of a criminal offenses prevention and detection model
Law 5/2010 on the amendment of the Spanish Criminal Code introduced, for the first time, a framework for criminal responsibility of legal entities which has been broadened and developed in the recent amendment passed as Organic Law 1/2015, of March 30th, in force on July 1st 2015.
The current system requires companies and management to incorporate these new statutory compliance obligations to EXEMPT or MITIGATE possible criminal responsibilities, for the organization as well as its administrators and managers.
To this effect it is imperative to implement a MODEL FOR THE PREVENTION AND DETECTION OF CRIMINAL OFFENSES with the purpose of detecting and preventing the offenses committed by:
- Their legal representatives or by those who acting individually or as members of a Body of the legal entity are authorized to make decisions or have management and organizational faculties.
- Those who are subjected to the authority of the aforementioned (employees, partners, agents, etc.) who may have been able to commit the criminal offenses for a serious breach of their responsibilities for supervising, monitoring and controlling their activity.
Minimum requisites’ established in the Criminal Code for a criminal offenses prevention and detection model
1. Risk map of criminal offenses: Identification of the company’s: Identification of the company’s activities where the offenses which need to be prevented can be committed.
2. Action protocols: They shall establish protocols or procedures which define the willingness of organizations for training and decision-making processes and their implementation based on those protocols.
3. Financial resources: It will have appropriate management models and financial resources to impede the commission of offenses which need to be prevented.
4. Whistleblower Channel: Shall be imposed to inform of possible risks and breaches to the Body responsible for monitoring the operation and compliance.
5. Disciplinary system: Will establish a disciplinary system which properly sanctions the breach of measures set out in the model.
6. Periodic review system: Shall establish a periodic review system for the model and its possible amendment when significant infringements to its provisions have become evident, changes occur in the organization or its management structure or in the developed activity which makes them necessary.
Phases of implementation in the CRIMINAL OFFENSES PREVENTION AND DETECTION MODEL
PLANNING:
- Project plan
- Management commitment
- Delivery of documentation
RISK ANALYSIS:
- Process analysis
- Ascertain probability
RISK MANAGEMENT:
- Census on measures to implement
- Communication channel
- Disciplinary system
- Action plan
PREVENTION PROTOCOL
- Establishment of an independent supervisory body
- Drafting internal legislation
TRAINING AND AWARENESS
- Training employees and management on developed protocols
The prevention model has to take into consideration the size of the organization as well as type of activities for a personalized approach to detect and prevent criminal risks
Audalia Nexia’s multidisciplinary nature allows us to partake in challenging projects by combining the knowledge fromdifferent departments. Thus, we adapt our services to our clients’ needs, aside from the provision of services clearly defined and included within its legislative framework such as financial auditing and tax, accounting and labor management.
