As you probably already know, for eleven years now, A company can be criminally responsible for crimes committed by its workers and representatives.
In this post you can read a summary of the reasons that justified the adoption of this measure and highlight the role that internal reporting channels play in all of this.
What is sought when holding a company criminally responsible?
The purpose of the reform of our system criminal offense in 2010 was to deter the commission of certain crimes that traditionally went unpunished because they were diluted in the opacity provided by the organizational structure of a company. Later, in 2012, this same premise began to be applied to unions and political parties.
Later, in July 2015, the Penal Code was reformed again, and with it, the criminal liability regime of the legal entity, strongly criticized by the doctrine since its consecration.
Between the most important modifications, the most popular and desired by companies, was the possibility of limiting (exempting or mitigating) the criminal liability of those legal entities whose administrative body, before the commission of the crime, had adopted and effectively implemented organizational and management models. that include surveillance and control measures suitable to prevent crimes or significantly reduce their commission.
Given this regulatory context, it is of great interest to organizations have an organization, management and prevention model that is effective for the mitigation of criminal risks, that is, what is known as the Criminal Compliance model.
The effectiveness of the Compliance model
That the Compliance model is effective and not blathering in front of the gallery is important (seriously, be careful with this) since only then will it be valid to participate in the limitation of the eventual criminal liability of the legal entity.
The effectiveness of a Criminal Compliance model fundamentally requires:
- Let the company know where are your risks
- They have been established action procedures face these risks with sufficient resources including a disciplinary system
- Let it be imposed the obligation to inform of possible risks and non-compliance to the body in charge of monitoring the operation and observance of the prevention model.
- And a periodic verification is carried out of the entire model.
An essential element: The ethical channel
To facilitate compliance with the obligation to report potential risks, organizations must establish reporting channels for internal non-compliance or illegal activities of the company, also known as ethical channels.
An ethical channel is a necessary instrument for the effectiveness of criminal Compliance models. However, it is also essential to ensure the compliance with acts of other regulations sectors of the Union that, in the end, benefit the public interest as it allows us to prevent and react to illicit or criminal acts.
Seeking this protection of the public interest, in 2020 the directive Whistleblowing established the obligation for companies with more than 50 workers to implement internal reporting and monitoring channels and procedures, regardless of the nature of their activities. The same obligation applies to those who offer financial services and products, regardless of the number of its workers.
Who can use an ethical channel?
Anyone who knows the risk. Workers, former workers, job applicants, contractors, subcontractors, suppliers or people seeking to provide services to the organization, or even family members of the latter can report, and will enjoy the protection of the Directive. Whistleblowing, regardless of the reasons for which they report.
What should an ethical channel be like?
An ethical channel It must be a communication system that allows reporting in writing or verbally, or both. Even, at the request of the complainant, among the reporting options, the possibility of report by holding face-to-face meetings within a reasonable period of time.
The essential thing is that it be a system supported by the governing body, known and easily accessible to any person within the scope of the Compliance model and, fundamentally, that it guarantees the confidentiality of the identity of the complainant, which is not the same as his anonymity. Although these types of complaints can also be accepted.
Who manages complaints?
To guarantee confidentiality it is necessary that the company designates an impartial person or department that is competent to follow up on complaints. This department is generally called Ethical committee.
The functions of ethical committee may be carried out by third parties authorized to receive reports of infringements on behalf of the company, provided that these third parties offer adequate guarantees of respect for independence, confidentiality, data protection and secrecy. These third parties They can be providers of external reporting platforms, external advisors, auditors, union representatives or worker representatives.
How are complaints managed?
The two fundamental reasons that stop a person from reporting are the fear of retaliation and the idea that reporting is useless. To overcome these two obstacles, the Directive Whistleblowing It has been established whistleblower protection mechanisms and follow-up requirements for mandatory complaints for companies, establishing a maximum period of 6 months to respond to the complainant, in the most complex cases.
When will it be applied?
The Directive is still earring of transposition in our country, which extends the validity of the aforementioned problems a little more, however, the deadline is December 17, 2023. A year in which we will surely see a new boom in the Compliance sector.
The Compliance sector is growing more and more, it is time to train in this aspect. You can do it through Master in Compliance & Data Protection Management of the EIP International Business School.
