Penal Compliance
What is Penal Compliance?
With the reform of the Criminal Code in 2010, legal entities became liable to be held criminally responsible in cases where a crime is committed by one or more of its members (whether a legal representative or an executive with decision-making capacity or organizational and control powers acting on behalf or for the benefit of the organization, or any other member subject to the authority of the former when they have failed to fulfill their duties of supervision, surveillance, and control), as long as such actions provided the legal entity with a direct or indirect benefit.
In 2015, a new legislative reform considered the possibility of exempting the legal entity from criminal liability if it could demonstrate that, prior to the commission of the crime, it had established an organizational and management model that included effective monitoring and control measures aimed at preventing the commission of unlawful acts, that it had entrusted its supervision to an autonomous body, and that the perpetrator of the crime had to fraudulently bypass the model in order to commit the offense.
The design and implementation of a Compliance System is a solution to mitigate the risk of crimes being committed within the company and to achieve exemption from liability in the event such crimes are committed. However, a Compliance system can go far beyond the requirements of the Criminal Code and not only meet its demands; in this way, for organizations that wish to have ethical commitment as their hallmark, establishing a Compliance System will mean acting in accordance with ethical principles and values voluntarily assumed and reflected in each of their actions, in line with their commitment to society and the markets in which they operate. This allows them to demonstrate that the established model is not merely cosmetic but rather informs the organization’s activity and guides its actions.
As a result, a Compliance System will not only serve as proof of the establishment of the organizational and management model required by the Criminal Code but also of the ethical commitment to legality and socially responsible practices that the organization has integrated into its own DNA.
What is Penal Compliance?
Additionally, the implementation of a Criminal Compliance System brings additional benefits to the company, including:
- Better positioning in public and private tenders
- Improved efficiency of operations through risk analysis and implemented controls
- Enhanced positioning for obtaining financing
- Improved positioning for negotiating insurance contracts
- Prevention of reputational damage due to incidents with potential criminal impacts
What services does GES40 offer?
The services of GES40 in the area of Criminal Compliance include:
Comprehensive analysis of the organization:
- Assessment of the overall state of the organization.
- Identification of processes and their characteristics.
- Identification and evaluation of risks associated with these processes.
- Proposal of actions to address these risks.
Design and implementation of the Compliance System:
- Drafting of Codes of Conduct, Policies, and Protocols for the organization.
- Initial training for organization members to understand and adopt the new measures and controls.
- Development of mechanisms for reporting non-compliance.
- Initial monitoring and evaluation of the results obtained through the introduction of measures and controls.
Maintenance:
- Advising the internal control body on the day-to-day management of the system.
- Ongoing specialized training for members of the organization.
- Modification of the system and introduction of new measures and controls based on monitoring results.
- Management and handling of mechanisms for reporting non-compliance.
