The excessive rigidity of the compliance regulation in the LECrim Draft. – There is Right

Within the following strains I’ll attempt to argue why the brand new regulation of the normative compliance legal process within the Preliminary Draft Regulation on Prison Process, although it’s a guarantor, it’s too inflexible, which can have because of this that the accused firms can have it tough.

It isn’t a query right here a lot of evaluating what’s contained within the Draft Draft as of verifying that are the problems which were finest handled or which of them haven’t been handled. In brief, I’ll attempt to determine what it contributes to the regulation of the legal course of as regards authorized individuals and whether or not it’s for the higher or not. Clearly, the analyzed textual content continues to be a blueprint, so it’s imagined to be topic to assessment. On this sense, the legislator needs to be open to options, {qualifications} and, why not say so, to criticism concerning the legislative initiative, all the time with the intention of enhancing it.

Thus, in precept, the rules tends to make sure the contradictory intervention of the protection in all procedures associated to the authorized individual sued [1]. It appears that evidently the spirit of the legislator is to not deprive at any time of the rights of the protection to the entity that’s within the place of responding criminally, reminiscent of the best to stay silent; to not testify in opposition to herself; to not confess responsible and, even, to the final phrase.

Nevertheless, the system that’s established begins from a uncertain hypothetical premise: it’s taken without any consideration that every one firms are going to be organized in a sure method, however the pre-legislator forgets that it’s attainable that it isn’t so. The legislator’s assumptions are typically met, however actual life is rather more enriching; there shall be firms that arrange the management system by somebody situated in one other method within the group chart, or via numerous codecs of outsourced our bodies.

At the moment, when an entity is investigated criminally, its governing our bodies resolve who’s essentially the most applicable individual to signify it in every trial. Nevertheless, this freedom of designation disappears within the present Draft. The system that’s supposed to determine begins from the premise that the one that has to seem as consultant of the authorized entity is the one they name “Director of the Inside Management System”, That’s, the generally known as Compliance officer O Compliance Officer.

The issue, for my part, is aggravated when the rules are too inflexible and it’s required that “Director of the Inside Management System “, Who seems as a consultant, meets sure traits:

1ª; act below the direct authority of the executive physique, 2ª; with particular energy of legal authorized illustration y 3ª; even when the place was not being held on the time of the occasions.

The latter can hardly be admissible: it’s completely attainable that the Compliance officer ignore the compliance and / or prevention system on the time of the occasions that give rise to company crime, and even ignore the info themselves, in order that, even, you can be held accountable for ignorance. This is able to generate an undoubted scenario of defenselessness within the indicted authorized individual.

For instance, the corporate might have appointed an out of doors lawyer as a compliance officer; Would he need to resign as protection lawyer within the case, to sit down on the dock? That is what appears to emerge from the brand new article 81. 1º LECrim.

Here’s a clear instance of the rigidity of the system. Notice that, in part 2 of that very same article, the likelihood that nobody has been appointed to that place is contemplated. Lack of designation that’s supplemented by a designation ex officio by the Choose of Ensures on the request of the Public Prosecutor’s Workplace in the one that holds the “most actual energy of determination within the governing or administrative physique”.

Then again, it’s nonetheless curious that the Official He might not be a member of the Board, which shall be regular, and by default the Chief Government Officer (who’s normally the physique with the best government energy) has to attend, who’s there for different issues. It follows that the legislator, in any respect prices, all the time desires the person who’s accountable for inside management to signify the authorized individual charged. However, I insist, with the three necessities beforehand expressed, it isn’t attainable to assign one other procedural function to that individual.

Subsequently, the brand new legislation immediately impacts the statute procedural legislation of the indicted authorized individual. Obligatory requires the intervention of that consultant, to the purpose that their unjustified absence might even result in the detention. In case of absence or impossibility, “the diligence with the entity’s lawyer shall be understood.” Allow us to not overlook that the accused authorized entity might conform, with particular energy, and independently of the opposite defendants. It will probably even be declared in default.

Lastly, it expressly prohibits the illustration of the accused authorized one that should testify as a witness or should have another intervention within the observe of proof. With all this, I see virtually not possible that the exterior lawyer who performs features of Compliance officer can train the protection of the indicted authorized individual.

One other level of controversy is within the regulation of compliance physique within the Draft.

Within the present Penal Code it says that it should be “… a physique of the authorized individual with autonomous powers of initiative and management…”. The Draft Invoice says that it should be immediately and instantly below the authority of the best administration physique of the corporate. Effectively, the legislator appears to confuse two totally different features right here: “compliance physique” with “surveillance physique” (that of article 31 bis.2 Penal Code; with autonomous decision-making energy, which supervises the management mechanisms). Surveillance could possibly be, for instance, the “Audit Committee” supplied for public restricted firms listed in artwork. 529, quaterdecies of the Capital Firms Regulation (RDL 2/7/2010)

Don’t forget that the decision regulatory compliance, and particularly the legal, from the doctrine established by the well-known Judgment of the Supreme Courtroom of February 29, 2016 (the primary that spoke of “tradition of compliance”) It’s a process of the corporate, of its administrative physique, which delegates it to its “Compliance Workplace or to an” Ethics Committee “or” Prevention Committee “: to investigate and handle legal / legal threat (with an inside system: complaints channel, personal inquiries, sanctions … and many others.).

Nevertheless, the “delegating” physique (administrative physique) can even commit against the law. Who controls it? The delegated officer? It can’t be each controlling and managed. It should be achieved by the “oversight / supervision physique”.

In brief, it shouldn’t be pressured to all the time be the Compliance officer the consultant of the authorized individual in courtroom (primary rule of the brand new article 81). On this we discover a clear distinction with respect to the present artwork. 119 Lecrim, which frees the accused authorized individual for the appointment of a consultant, in addition to a lawyer and lawyer. If the brand new regulation is profitable, the protection of authorized individuals topic to legal proceedings shall be harder.

NOTES

[1]Apparently, a brand new terminology is enshrined within the LECrim. It’s spoken of: “indicted” individual – subjected to course of (in any of its phases); of “investigated” individual – subjected to investigation part; of the “accused” individual – in opposition to whom legal motion is taken; and of an individual “convicted or punished” – one in opposition to whom a conviction has been handed down. Nevertheless, the time period “accused” individual doesn’t seem within the authorized textual content. We communicate of “imputation”, however not of “accused”.

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