Criminal compliance What is it?

Criminal compliance, also known as criminal compliance, refers to the set of measures and procedures implemented by a company or organisation to prevent and detect possible crimes or criminal offences that may be committed by its employees or members.

The main objective of criminal compliance is to ensure compliance with laws and regulations on criminal matters, through the implementation of internal policies and procedures to prevent, detect and manage any possible risk of committing crimes or criminal offences within the organisation.

It is important to note that the implementation of a criminal compliance programme not only contributes to the prevention of crime and the improvement of the company's reputation and image, but can also be an important tool for legal defence in the event of a criminal charge against the organisation.

What is criminal compliance for?

Criminal compliance has several important purposes, among which are the following:

1. Preventing the commission of crimes: The main objective of criminal compliance is to prevent the commission of crimes or criminal offences within an organisation. The implementation of a criminal compliance programme can help identify risks of non-compliance with criminal laws and regulations and establish measures to prevent these risks from becoming crimes.
2. Protect the reputation and image of the company: The commission of criminal offences or violations by employees or members of an organisation can have serious consequences for the reputation and image of the company. Criminal compliance can help prevent these risks and demonstrate the organisation's commitment to compliance with criminal laws and regulations.
3. Comply with criminal laws and regulations: Implementing a criminal compliance programme can help ensure that the company complies with criminal laws and regulations. This can reduce the risk of fines and penalties from authorities and improve the company's position in the event of an investigation or prosecution.
4. Improve business efficiency and effectiveness: Implementing a criminal compliance programme can help improve business efficiency and effectiveness by reducing the risk of criminal offences or violations that may affect the organisation's productivity and performance.
5. Protect employees and members of the organisation: A criminal compliance programme can help protect employees and members of the organisation by establishing clear policies and procedures that promote a safe and ethical work environment.

What should a criminal compliance programme contain?

An effective criminal compliance programme should contain the following key elements:

• Risk analysis: The company should identify and assess the risks of non-compliance with criminal laws and regulations that may affect the company and its employees. This risk analysis should be ongoing and regularly updated.
• Policies and procedures: The company should establish clear policies and procedures that promote ethical behaviour and comply with criminal laws and regulations. These policies and procedures should be communicated and trained to all employees and members of the organisation.
• Designation of a compliance officer: The company should designate a criminal compliance officer to oversee and coordinate the implementation of the criminal compliance programme, and to report to the company's management committee and board of directors.
• Training and awareness raising: The company should provide regular training and awareness-raising to all employees and members of the organisation on criminal compliance policies and procedures, and on the importance of compliance with criminal laws and regulations.
• Due diligence: The company should implement due diligence processes on relationships with third parties, such as suppliers, business partners and customers, to identify potential risks of non-compliance with criminal laws and regulations.
• Monitoring and evaluation: The company should continuously monitor and evaluate the effectiveness of the criminal compliance programme, in order to identify and address possible weaknesses and improve the implementation of the programme.
• Whistleblowing channel: The company should establish a confidential and secure whistleblowing channel for employees and members of the organisation to report possible violations of criminal compliance policies and procedures.

When is criminal compliance mandatory?

In many countries, the implementation of a criminal compliance programme is not mandatory by law, although it may be required by regulators in certain industries. However, in some countries such as Brazil, France or Italy, the implementation of a criminal compliance programme is mandatory by law in certain circumstances.

For example, in Brazil, the Criminal Organisation Law provides that companies can be held criminally liable for acts of corruption and other offences committed by their employees or representatives on behalf of the company. To avoid such criminal liability, the company must implement an adequate criminal compliance programme, including measures to prevent and detect possible criminal offences or violations.

In France, the Sapin II Law establishes an obligation for certain companies to implement a criminal compliance programme to prevent bribery and corruption. Companies above certain turnover thresholds or with more than 500 employees are obliged to implement an appropriate criminal compliance programme.

In Italy, Law 231 establishes the criminal liability of companies for offences committed by their employees or representatives on behalf of the company. In order to avoid this criminal liability, the company must implement an adequate criminal compliance programme.

In general, although the implementation of a criminal compliance programme is not mandatory by law, more and more companies are adopting these measures as a best practice to ensure compliance with criminal laws and regulations, to protect the company's reputation and image, and to improve the efficiency and effectiveness of the organisation.