THE COMPLIANCE PROGRAMME AS A REQUIREMENT

The Provincial Court of Zaragoza, in its judgement dated May 7th 2018 with appeal number 9/2018, announced a decision in relation to a charge of fraud under article 251 bis a) in conjunction with articles 248 and 250.5º of Crime Code, againts the commercial company “GRISELDA METALURGIA CALDERERA S.L.” (hereinafter, “GRISELDA”).

Said company gave to CAIXABANK S.A. bills of exchange sealed by another commercial company called “Talleres Alquezar”, which were not linked to any commercial activity; therefore, they were directed at obtaining the discounts. One out of the two joint and several administrations were investigated in the present case, due to the death of the second one, without finding proof of the signatures being stamped by him. According to the proof submitted and accepted, it was the deceased administrator the one in charge of the bank management.

The Court announced that, according to accepted common doctrine, “for the legal entity’s criminal liability to exist it is necessary that the criminal offence is committed on a basis of serious breach of the monitoring, vigilance and control duties in relation to its activity, having regard to the concrete circumstances of the case. The legal entity is criminally liable when there is a ‘failure in the organisation’ or clear infringement of the control duty”. In this sense, the Court referred to the Supreme Court’s sentence number 154/2016, dated February 29th, noting that “the legal entities’ criminal liability system is based on the requirement of the establishment and correct implementation of efficient control measures which prevent, as far as possible, from the commission of criminal infringements by the ones who are part of the organisation. It turns out to be necessary to find out whether the criminal offence committed by the natural person has been possible or facilitated due to the lack of culture of respect towards the law, which may appear as some kind of concrete figure of vigilance and control of behaviour of their managers and hierarchical subordinates. The existence or nonexistence of appropriate and efficient instruments to prevent criminal offences is essential to conclude their conviction or acquittal”.

All in all, in terms of legal entities’ criminal liability, it is needed for the accusation to prove, first, that a natural person which is part of the internal organisation of the company committed a criminal offence (named “reference fact” or “connexion fact”), and secondly, the existence or nonexistence of enough and efficient vigilance and control measures implemented by the company to prevent the employees from committing offences. Such measures are a clear reference to the compliance programmes, an important figure of the companies’ internal organisation which can legally benefit the commercial companies, inter alia, in terms of criminal offences. It is of importance to highlight that lately Spanish Courts have mentioned in several occasions the compliance programmes in business contexts related to criminal offences. The latter implies the importance given to such legal figure in the business sector, of decisive interest for the companies to implement in to avoid future damages, both at an internal (ad intra) and external (ad extra) level.

Autores: Alexandru Lazar / Miriam Santin


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