The State Attorney General's Office has published a Circular on a topic that is very current in the business world. This is Circular 1/2016 on the Penal responsibility of juridical persons.
The document covers numerous issues that derive from the important modification of the Penal Code made by Organic Law 1/2015, which we will discuss and analyze in this blog.
We are going to start by addressing in this post, one of them that is especially striking: the delimitation of functions and, by extension, the responsibility of the Compliance Officer (finally, it has been translated) or also called Compliance Officer.
According to him Article 31a of the Penal Code, this body is assigned the function of supervising regulatory compliance by the company and may be made up of one or more people, who must have sufficient training and authority.
Depending on the size of the company, this figure may be an internal body of the legal entity, in order to control the internal operation and compliance with the legal requirements in criminal matters that the company must respect.
Section 5.4 of the circular tries to shed light on some aspects that until now were the subject of debate among specialists in the field:
- Regarding the Compliance Officer, it is clarified that even though it is an organ of the legal person, does not imply that this body must carry out all the tasks that make up the regulatory compliance function alone, and may be carried out by other bodies or units other than the specific one for regulatory compliance.
- It also highlights the importance of the existence of a supervisory body for the general operation of the implemented prevention model, which must clearly establish the person responsible for said functions and tasks. The Prosecutor's Office emphasizes that the Compliance Officer must participate in the elaboration of the organization and risk management models and ensure their proper functioning, establishing appropriate audit, surveillance and control systems to verify, at least, compliance with the requirements of art. 31 bis. 5.
- Without prejudice to the functions of the Compliance Officer, the management body is responsible for establishing the company's risk control and management policies and their supervision.
- One of the contributions is the one referred to the way to obtain the "maximum levels of autonomy ”that the Compliance Officer must achieve. In our opinion, a transcendental issue has not yet been clarified: being appointed by the Administrative Body, the Compliance Officer will hardly enjoy full autonomy in his function. In order to provide a solution for the effective consummation of such autonomy, the Public Prosecutor's Office limits itself to proposing that the models provide the mechanisms for a “adequate management of any conflict of interest that could cause the performance of the functions of the compliance officer, ensuring that there is an operational separation between the administration body and the members of the control body, who preferably should not be administrators, or not in their whole".
Finally, regarding the responsibility of the Compliance Officer, it indicates that, on the one hand, he can, through a criminal act or omission of the subordinate's control, transfer criminal responsibility to the legal person (according to art. 31 bis.1.a, given their inclusion among the people who hold organizational and control powers within the organization); and, on the other hand, he may himself be, as a result of the omission, criminally responsible for the crime committed by the subordinate.
There are theories of some specialists who maintain that the responsibility of the Compliance Officer will never be criminally direct and rather speak of civil liability for violation of the “lex artis” in the performance of their duties. However, the General State Prosecutor's Office has it clear: the Officer can respond criminally and directly for the crimes in which society incurs.
Therefore, the Circular has mitigated some of the questions that surround this matter. In this regard, it will be interesting to see what the first judgment of the Supreme Court on criminal liability of a legal person will establish.
This resolution is currently in the drafting phase. His speaker, the magistrate of the Second Chamber, Mr. José Manuel Maza, without giving clues in this regard, made it clear in a recent conference given in Alicante that he himself had experienced a change in recent years, going from believing that people legal could not commit crimes, to be a firm defender of the full criminal responsibility of companies. We will be attentive and we will tell it.