Running a company involves great responsibilities, especially when it comes to complying with the rules that govern it. In this respect, given the possibility that a legal entity may be held criminally liable for committing certain offences, it becomes necessary to have a plan that helps prevent them.
This plan will only be possible with the implementation of a programme whose purpose is to reduce the risks of offences being committed in the business sphere. This programme is what is known as a Criminal Risk Prevention Plan or Criminal Compliance. At BBMabogados we have the professional team with the broadest track record in this field, so do not hesitate to contact us.
The origin of the prevention of criminal risks?
In Spain, until 2010, only individuals were held liable for committing offences; that is, there was no way for a legal entity to be attributed this type of liability. So, for offences committed through organisations of this kind, only the natural persons who had taken part in carrying them out could be convicted.
Thus, in 2015, with the criminal reform, the exemption from criminal liability for companies was introduced and companies were required to appropriately adopt and implement criminal risk prevention programmes.
In this way, the need arose to draw up plans that allow companies to be exonerated from any criminal liability or, in the worst case, to mitigate the penalty.
What does a criminal risk prevention plan consist of?
It is a system of organisation and management, part of an organisation’s internal rules whatever its form (company, foundation, SME, etc.), by which the aim is to identify the potential risks of offences being committed in the course of its activity, while determining the appropriate tools to prevent and mitigate them should they occur.
So we find that it is the ideal tool to prevent and mitigate both criminal risks and any other type of risk the company might face. With its implementation, the management and control of the company’s own procedures will be more efficient. In addition, this system fosters a corporate culture of compliance with the institutional mission, vision and values.
Of course, these plans are always in constant change and evolution. This is because it must always be seen as a continuous process of review, analysis and supervision. All members of the organisation must be involved in this process, at its various stages. In other words, it must be known and mandatory for everyone who makes up the legal entity.
Which companies are required to comply with this criminal risk prevention plan in Santander?
The Criminal Code makes no distinction as to the companies required to draw up this plan. For this reason, whatever the type of company, the advisable course is to design and implement these compliance policies.
In any case, it should not only be seen as a plan that will prevent the company from being criminally convicted, but one that entails demonstrating transparent development of the organisation.
Criminal consequences of not having a prevention plan
A good criminal risk prevention system is of great importance in safeguarding our company. However small it may be, it is subject to risks. Although the criminal liability of companies is admittedly limited to offences typical of the business sphere, such as fraud, computer offences, punishable insolvencies, money laundering, offences against the Public Treasury, environmental offences, offences against workers’ rights, among others.
Consequently, at some point a company may find itself caught up in one of these situations, and the last thing anyone wants is for it, in an unlucky turn, to be criminally convicted, entailing different types of penalties.
Such penalties may consist of a fine, but measures are also provided for prohibiting the company from carrying out the activities through which the offence was committed, as well as a ban on contracting with the administration, suspension of activities or the closure of premises for a period of up to 5 years.
The judge hearing the case may even order the dissolution of the company or judicial intervention in the most serious cases.
As can be seen, the consequences can be fatal for a company. So the implementation of these compliance systems must be approached with absolute responsibility, alongside experts in the field, to avoid mistakes that could cost your organisation its investment and reputation.
What kind of advice is needed in these cases in Santander?
Do not hesitate to contact specialist solicitors, who will advise you in order to create the best prevention plan suited to your organisation, and to identify the real risks of criminal liability, as well as establish measures to avoid them and safeguard the company.
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