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Legal persons can be held criminally liable in two cases, according to Article 31 bis of the Spanish Code of Criminal Law:
- For offences committed by their legal representatives, directors or senior managers acting in the name or on behalf of the legal person and to its direct or indirect benefit;
- For offences committed by employees when there is a serious breach by the management of its duties of supervision, vigilance and control.
Following the reform under Basic Law 1/2015 of Spanish Criminal Code, compliance programmes take on vital importance, since this Law establishes that a legal person shall be free of criminal liability if, before the offence is committed, the managing body of the company has implemented a criminal compliance programme to prevent the risk of criminal acts being committed in the course of its business activities.
The company must map out the risks and be in a position to prove that, before the offence was committed, it had adopted and efficiently implemented an organisational and management model which includes the most appropriate vigilance and control measures to prevent the most probable offences, depending on its sector of activity.
At Sánchez-Cervera Abogados, we are highly specialised in criminal compliance, working closely with our clients to implement or review their crime prevention models.
Click here for Circular 1/2016 of the State Public Prosecution Service on the criminal liability of legal persons following the reform of Spanish Criminal Code which came into force in July 2015.
Finally, of relevance is the fact that international standards are becoming apparent in compliance matters.
One of the standards that is already being implemented in Spain is UNE-ISO 19600:2015, on compliance management systems. In addition, in October 2016, standard ISO 37001:2016, on anti-bribery management systems, was published.
In the absence of other references, companies are very concerned about their crime prevention plans meeting the standards published by standardisation entities, and even have these audited and certified by independent third parties. All of this is aimed at verifying compliance with the requirements foreseen in the Spanish Criminal Code in order to consider these plans effective and adequately implemented in each company.
Copyright © 2018 SÁNCHEZ-CERVERA ABOGADOS, S.L. CIF: B87461513 Telf.: (+34) 91 411 48 78 / Fax: (+34) 91 411 50 23. E-mail: firstname.lastname@example.org
Office: C/ General Oráa, 26 (Madrid - 28006).
Recorded in the Madrid Companies Register in volume 34.303, of the 8th Section, sheet 131, page number M-617104.