Compliance: Jurisprudence on anonymous complaints
The Supreme Court, through its Criminal Chamber, ruled in ruling 272/2020, dated February 6, 2020, validating the use of an anonymous complaint as a source to investigate crimes within a company.
It addresses issues related to Compliance, such as the importance of having a regulatory compliance system and highlights the importance of initiating an investigation following a complaint in the event that the company lacks a regulatory compliance program.
In the matter dealt with in said ruling, the company received the complaint through the Human Resources department, since it did not have an internal complaint channel.
With this Sentence, the validity of anonymous complaints is determined to report a criminal act, and an internal investigation can be initiated without the need for the complainant to identify himself.
There are other rulings related to anonymous reporting, such as that of the Madrid Superior Court of Social Justice, which handed down a ruling on February 15, 2019, in which an airline worker reports through an internal channel of the company and, After the complaint, the worker begins to be harassed, causing sick leave due to temporary disability. In this case, the company is ordered to compensate the plaintiff for damages.
It is evident therefore that the preservation of anonymity is intended to avoid retaliation and possible occupational risks to whistleblowers.
After the approval of Directive (EU) 2019/1937 of the European Parliament and of the Council of 10/23/2019, it will be mandatory for a large part of public and private entities to have an internal Whistleblowing Channel. This Directive will ensure that workers can report any breach of European regulations that occurs within an organization through channels that guarantee the safety of the whistleblower.
Member States must implement the provisions of this Directive on December 17, 2021, except for private entities that have between 50 and 249 workers, which will have 2 more years to implement internal reporting channels.
