Foundations must also have a compliance system to minimize risks. However, in order to implement a compliance system in a foundation, you must first know its legal regime.
The first thing we must know is, do foundations fall under the criminal liability established in article 31 bis of the Penal Code? To do this, we must go to article 35 of the Civil Code, which provides that public interest foundations will be considered legal entities. However, article 31 quinquies of the Penal Code excludes organizations that exercise public sovereign or administrative powers and, although it does not expressly exclude public sector foundations, there are doubts as they are entities that exercise public powers.
As for private foundations, they acquire legal personality with the registration of the deed in the Registry of Foundations.
Foundations are governed by the Board of Trustees, the body that is assigned the representation and administration of the foundation, that is, the group of people who direct or oversee the affairs of a social or cultural organization so that it fulfills its purposes.
This board of trustees is made up of trustees who can be both natural and legal persons.
Article 15 of the Foundations Law establishes that “Natural persons who have full capacity to act and are not disqualified from holding public office may be members of the Board of Trustees. “Legal entities may be part of the Board of Trustees, and must designate the person or individuals who represent them in the terms established in the Statutes.”
That is, the trustees are responsible for the implementation and compliance of criminal risk models with measures aimed at reducing the risks that may be committed in the daily activity of the foundation.
Foundations, due to their characteristics, are more likely to suffer certain crimes such as: scams, business corruption or illegal financing of political parties. Law 10/2010, of April 28, on the Prevention of Money Laundering and Financing of Terrorism, makes special mention of foundations in article 39:
“The Protectorate and the Board of Trustees (…) and the personnel with responsibilities in the management of the foundations will ensure that they are not used for money laundering or to channel funds or resources to people or entities linked to terrorist groups or organizations.
In short, we must keep in mind that, with a good implementation of measures aimed at reducing risks, we avoid the aforementioned crimes and also improve the transparency of organizations such as foundations.
