Francisco Lorenzo Martínez Balms Abogados | Marbella-España
Since a company has a crime prevention plan can prevent the commission of crimes both within the company, in its relationships in the market and with third parties. It is therefore a necessary and increasingly advisable investment, since a criminal incident can destroy many years of work. You can imagine the reaction of customers and other companies in the market will immediately distrust the services and products that are offered.
Balms Abogados advises having implemented a criminal prevention program, companies can reduce and, in many cases, avoid internal crimes that can be committed by recklessness even by their employees or managers within the organisation as external to clients and third parties and face criminal proceedings.
Since the reform of the Penal Code in 2010, article 31 bis of the Spanish Criminal Code regulates the cases in which a company is criminally liable. Since the introduction into the criminal code of the criminal liability of the company, the Supreme Court has indicated in its latest judgements what is the prevention of criminal risks in the company or the "due control" of workers, managers and third parties collaborating in the company.
The Supreme Court in its recent judgements has proven that the system of criminal liability of the legal entity is based, starting on the commission of the crime by the physical person in the company, for the absence of a culture of respect for the law or of corporate ethics. So, it is necessary to have an internal plan in the companies that establishes control measures that try to avoid, the commission of criminal offences by those who make up the same organisation.
The fact of having said criminal prevention plan is essential if we take into account that for the conviction of a company it is not enough to prove that the crime was committed by one of its directors or employees according to the aforementioned art. 31 bis CP, but it must also be proven that this crime committed by the individual is caused by the occurrence of a corporate crime, that is, by a structural defect in the prevention mechanisms required of any legal person. With this the Supreme Court clearly indicates that the absence of a criminal prevention plan is equivalent to estimating that there is a structural defect in the prevention mechanisms and so the company can be criminal responsible.
In any case the company must support its defence in the accreditation of the existence of such controls, revealing a culture of ethical and effective compliance between managers and employees.
Having a criminal prevention plan in the company and that works correctly not only prevents criminal liability, but is a Business Benefit for the following reasons:
1. Reduce and avoid criminal consequences for the company in litigation in which it may be involved.
2. Introduces and makes present an internal culture in the company based on an ethical code of conduct of all its employees and managers.
3. It facilitates the knowledge of the rights and obligations to prevent illegal conducts and most importantly,
4. The greater knowledge of all the previous factors that the prevention plan provides to the company provides greater competitive advantages over other companies (guidance, reputation, good corporate governance, transparency for contracting with the Public Administration or with foreign countries, etc.).
As we can see, the implementation of a criminal prevention plan in the company cannot be considered an expense, but an efficient investment that provides security and competitiveness to our organisation and reinforces its brand in the market.
Balms Abogados offers the advice of our experts with the maximum guarantee in order to evaluate your particular case and advise you on the need to provide your company with a criminal prevention plan.
The 12th Congress of the Spanish-Austrian Lawyers Association took place in Malaga on the 22nd of October.