Within the operations of a company, there can be some risks that could materialise due to the breach of legal regulations and, in some cases, the commission of a crime. Since the reform of the Criminal Code in 2010, legal entities can know be criminally responsible for the commission of crimes inside its operations, on behalf of their administrators, members of the board, employees, as stated by the 31st and following articles of the Spanish Criminal Code. To avoid these sanctions, it is essential to consider the Criminal Code, the rules of the Spanish Normalisation Association (UNE) on the subject, as well as the jurisprudence that our courts start to dictate on the subject.
When does the legal person respond?
The legal person could criminally respond, from the crimes contained in the Criminal Code for legal entities, when the crime has been committed by a legal representative (administrators, members of the board, representatives, etc.) and said crime favours, either directly or indirectly, the company.
They will also criminally respond to the crimes committed by the employees when (i) the crime has been committed regarding the performance of his duties and favouring the company; (ii) the company has ignored its obligations regarding supervision, monitoring, and control. If the company were to be considered responsible for the commission of a crime, the punishment could range from a fine to the dissolution of the legal entity.
The law states that the criminal responsibility of a legal person can be exempted or mitigated when adequate models of organisation and management have been established. One of the ways of guaranteeing that a company complies with said obligation is to have a legal compliance program, in which every existing risk inside the company is analysed and the necessary measures to avoid the materialisation of these risks are established, as well as the possible sanctions to impose in case of non-compliance by the different members of the legal entity. Said program must be revised periodically to guarantee its effectiveness.
To guarantee that the proceedings that take place serve as an exemption for the legal person, the personalised counselling of experts is essential in this area, to comply with the requisites stated in the law.
In ALCÁZAR you will find the necessary team of professionals, who will analyse the specific circumstances of your society, of the sector in which it operates, and all the necessary documentation to determine the main risks attached to the commission of a crime. With this purpose, with the help of ALCÁZAR, as many documents as necessary will be elaborated to create a guarantee for the adopted measures and the supervision of said measures, making the necessary indications to minimise the risk for the legal person.
The ALCÁZAR team is formed by lawyers who possess vast experience in dealing with complying with the law, as well as in other areas that have to be taken into account for the correct implementation of the compliance program. You can contact us through the contact form or by calling 952 00 55 24.