Criminal compliance or compliance programs are a series of preventive tools that seek to avoid criminal infractions (sanctions or reputational damage) as a result of non-compliance with the regulatory framework that could generate liability for a company.
The Criminal Code establishes that legal persons can commit 24 different crimes, such as fraud, money laundering, bribery, punishable insolvency or influence peddling, among others. Criminal Compliance arises precisely to prevent from within legal persons the commission of these crimes.
Criminal compliance is regulated by Article 31 bis of the Criminal Code, under Title II (Persons criminally responsible for offences), and has been changed from a voluntary option to a requirement to be integrated into internal strategy and structures:
In the cases provided for in this Code, legal persons shall be criminally liable:
a) For offences committed in the name of or on behalf of them, and for their direct or indirect benefit, by their legal representatives or by those who, acting individually or as members of an organ of the legal person, are authorized to take decisions on behalf of the legal person or hold organizational and control powers within the legal person.
b) Of the crimes committed, in the exercise of social activities and on behalf and for the direct or indirect benefit of the same, by those who, being subject to the authority of the natural persons mentioned in the previous paragraph, have been able to carry out the acts because they have seriously failed to comply with the duties of supervision, monitoring and control of their activity in the specific circumstances of the case.
A preventive system of criminal compliance serves as a guarantee for third parties, demonstrating that the company complies with both the law and the good practices of the sector.
Functions of a compliance department
- Identification: To identify the risks faced by a company and advise on them.
- Prevention: Design and implement controls to protect a company from these risks.
- Surveillance and Detection: Monitor and report on the effectiveness of controls on the exposure of companies to risks.
- Resolution: Resolve compliance issues as they arise.
- Advisory: Advise the company on standards and controls.
Penalties of possible imposition on the company
- Quota or proportional fine.
- Dissolution of the legal entity.
- Suspension of the company's activities for a period of less than five years.
- Closure of premises and establishments for a period of less than five years.
- Prohibition to carry out in the future activities in the exercise of which a crime has been committed, favoured or covered up.
- Disqualification from obtaining public subsidies and aid.
- Judicial intervention to safeguard the rights of workers or creditors.