Compliance

Compliance with regulations

Each firm or company has different characteristics with respect to regulations due to its activity, location and size.

Our Compliance Officers advise you in compliance with the Regulatory Norms.

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Compliance

Compliance with regulations

Each firm or company has different characteristics with respect to regulations due to its activity, location and size.

Ask us for advice

 

Compliance

Conflict and risk prevention

A good model of organization and management must include surveillance and control measures.

Ask for advice from our Compliance experts.

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Compliance

Conflict and risk prevention

A good model of organization and management must include surveillance and control measures.

Ask us for an appointment

 

Compliance

Protection from criminal liability

Companies and institutions may be responsible for the crimes of employees and partners.

We help you establish the Crime Prevention System.

Ask us for information

Compliance

Protection from criminal liability

Companies and institutions may be responsible for the crimes of employees and partners.

Ask us for information

Compliance: frequently asked questions

Compliance Department

The Compliance Department of Barea & Zango, within the area of Advocacy and Mediation, offers the Criminal Offenses Prevention Service.

Our experts in Economic Criminal Law, in close collaboration with our Compliance Officers, offer such prevention through the elaboration of Compliance Programs made after an exhaustive study of the needs of each of our clients.

In case the term "Compliance" is not very familiar, here are some basic concepts that will help you understand how important it can be for companies to have this service.

 

Compliance Department

The Compliance Department of Barea & Zango, within the area of Advocacy and Mediation, offers the Criminal Offenses Prevention Service.

Our experts in Economic Criminal Law, in close collaboration with our Compliance Officers, offer such prevention through the elaboration of Compliance Programs made after an exhaustive study of the needs of each of our clients.

In case the term "Compliance" is not very familiar, here are some basic concepts that will help you understand how important it can be for companies to have this service.

What is the Compliance Service?

The latest reform of the Criminal Code makes legal persons immediate subjects of criminal law, liable to commit crimes outside the specific individuals who integrate them and be, therefore, sanctioned with real penalties.

From the 1/2015 Reform changes the conception of the legal entity has changed. Currently, the the legal entity is immediately responsible for all those acts that are committed within it, regardless of whether or not it has knowledge.

Compliance Service helps companies prepare for and prevent any kind of responsibility because of this legislative change.

 

What is the Compliance Service?

The latest reform of the Criminal Code makes legal persons immediate subjects of criminal law, liable to commit crimes outside the specific individuals who integrate them and be, therefore, sanctioned with real penalties.

From the 1/2015 Reform changes the conception of the legal entity has changed. Currently, the the legal entity is immediately responsible for all those acts that are committed within it, regardless of whether or not it has knowledge.

Compliance Service helps companies prepare for and prevent any kind of responsibility because of this legislative change.

Who is responsible for the crime?

Article 31 bis. 1 of the Criminal Code specifies that the legal entity is responsible when:

  1. A person who acts in the organization commits a crime.
  2. The crime has been committed in the name or on behalf of the legal entity.
  3. The legal entity has received a direct or indirect benefit.

Thus, legal persons can be liable for crimes committed by their legal representatives, their administrators, attorneys-in-fact, employees, clients, suppliers, collaborators, etc., provided that due control has not been exercised over them.

 

Who is responsible for the crime?

Article 31 bis. 1 of the Criminal Code specifies that the legal entity is responsible when:

  1. A person who acts in the organization commits a crime.
  2. The crime has been committed in the name or on behalf of the legal entity.
  3. The legal entity has received a direct or indirect benefit.

Thus, legal persons can be liable for crimes committed by their legal representatives, their administrators, attorneys-in-fact, employees, clients, suppliers, collaborators, etc., provided that due control has not been exercised over them.

How to avoid responsabilities

In article 31 bis. 2 and 4 of the Criminal Code establishes that such criminal liability will be exempt if the administrative body has adopted and executed effectively, before the commission of the crime, models of organization and management that include the appropriate surveillance and control measures to prevent crimes of the same nature or to significantly reduce the risk of its commission, that is, if it has established a crime prevention system.

 

How to avoid responsabilities

In article 31 bis. 2 and 4 of the Criminal Code establishes that such criminal liability will be exempt if the administrative body has adopted and executed effectively, before the commission of the crime, models of organization and management that include the appropriate surveillance and control measures to prevent crimes of the same nature or to significantly reduce the risk of its commission, that is, if it has established a crime prevention system.

How to face the situation

In case the crime is committed, there is only one way to avoid or mitigate a possible criminal conviction. It can only be shown that the organization has been diligent, adopting the necessary measures to prove that the crime has been committed by skipping the will of the organization and its control mechanisms.

This unique probative method available to the organization translates into the implementation of a crime prevention plan that will allow its partners and administrators to avoid or minimize the criminal liability derived.

Article 31 bis. 5 of the Criminal Code establishes the minimum requirements that must be met by a Crime Prevention Plan so that the company can be exempt.

These plans or Criminal Compliance Systems integrate a series of processes, measures and control mechanisms adapted to each organization, which must necessarily comply with the requirements established by law.

 

How to face the situation

In case the crime is committed, there is only one way to avoid or mitigate a possible criminal conviction. It can only be shown that the organization has been diligent, adopting the necessary measures to prove that the crime has been committed by skipping the will of the organization and its control mechanisms.

This unique probative method available to the organization translates into the implementation of a crime prevention plan that will allow its partners and administrators to avoid or minimize the criminal liability derived.

Article 31 bis. 5 of the Criminal Code establishes the minimum requirements that must be met by a Crime Prevention Plan so that the company can be exempt.

These plans or Criminal Compliance Systems integrate a series of processes, measures and control mechanisms adapted to each organization, which must necessarily comply with the requirements established by law.

How to prove it

UNE 19601: Criminal Management System Compliance is standardized standard that provides clear and objective criteria to establish the requirements to be met Penal Management System Compliance in an organization, as well as internal guidelines.

In addition, this standard allows this system to submit independent external evaluation and certification, which will allow the organization to provide maximum evidence of the existence and effectiveness of its system management.

 

How to prove it

UNE 19601: Criminal Management System Compliance is standardized standard that provides clear and objective criteria to establish the requirements to be met Penal Management System Compliance in an organization, as well as internal guidelines.

In addition, this standard allows this system to submit independent external evaluation and certification, which will allow the organization to provide maximum evidence of the existence and effectiveness of its system management.

The Compliance Program

Typified Offenses

The Compliance Program or Criminal Compliance is the tool that allows to exonerate the possible liability of the legal entity before a criminal act committed within the organization. Offenses under the Penal Code that can lead to criminal liability of the company and its directors are:

a Computer damage and hacking (art.264 quater).

b Crimes against intellectual and industrial property, the market and consumers (art.270-288). They include in turn:

  • Illegal facilitation of access to broadcasting and television services.
  • Misleading advertising.
  • Fraudulent billing.
  • Abuse of privileged information.
  • Crimes of corruption in business.

c Crimes against public health (art.366 and 269 bis).

d Counterfeit credit cards and debit cards and travelers checks (art.399 bis).

e Influence peddling (art.428 to 430).

f Discovery and disclosure of secrets (art.197 quinquies).

g Own and improper scams (art.251 bis).

h Money laundering (art.302).

i Punishable insolvencies: uprisings and punishable competitions (art.261 bis).

j Crimes against Public Finance and Social Security (art.305 to 310 bis).

k Crimes against the rights of foreign citizens (art.318 bis).

l Crimes over the planning of the territory and urban planning (art.319).

m Crimes against natural resources and the environment (art.327 and 328).

n Crimes related to nuclear energy and ionizing radiation (art.343).

o Crimes of risk caused by explosives (art.348).

p Bribery (art.247 bis).

q Counterfeit currency and stamp effects (art.386.5).

r Financing terrorism (art.576 bis).

s Crimes related to prostitution and sexual exploitation and corruption of minors (art.187 to 189 bis).

Steps to follow

In order to establish a Compliance Program and be able to prevent the aforementioned crimes and, in the case of their commission, reach the exemption it is necessary to establish the following steps:

  1. Definition of the Context of the Organization
  2. Identification and evaluation of a Criminal Risk Matrix
  3. Establishment of a Treatment and Control Plan
  4. Definition of Compliance Responsibilities
  5. Staff training and awareness
  6. Implementation of a Whistleblower Channel
  7. Performing a periodic internal evaluation
  8. External evaluation or possible certificationx


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