Narrating the chroniclers who, after the siege of the French town of Beziers in 1209, before the Crusaders would go about their final assault iron hand, interpellated concerned the Grand Inquisitor: once inside the city, how do we distinguish the heretics who they are not? It is attributed to Arnaldo Amalric that answer would happen to posterity: “Kill them all. God will honor yours “(Caedite eos. Novit enim Dominus qui sunt eius). B├ęziers taking caused a bloodbath that wiped between 7,000 and 8,000 people, mainly fallen in the Church of the Madeleine. And that is when there is no discrimination, serious injustices affecting those least to blame committed.
A person has the status of “investigation” -before “imputed” – in criminal proceedings is a safeguard that provides defense against the charges attributed to him. Therefore, in theory, any investigation should be satisfied that condition, as gives procedural guarantees of their rights. But it is known that all this does not deprive it of the affronts attending even though it is finally acquitted, including those jocularly known as penalty and penalty bench newscast. Both relate to the media, referring first to the dissemination of the news as soon as it is known, and the second to chronicle the trial. In addition, they are independent of the final court decision, which almost never enjoy the prominence of that enjoyed those. Be introduced in the van or declaring in the middle of the courtroom, are situations force a spectacular unsurpassed even by the works of Stephen King. In practice, these penalties become a constitutional guarantee in a pitiful ordeal, likely to continue for years and especially painful not only for those affected, but for their close circle of relationships. Therefore, magistrates and judges strive daily to discern best who is called to process and in what capacity.
Personal responsibility Compliance Officer in Spain is under debate. Although the Circular 1/2016 of the Public Prosecutor’s Office attached to an equivalent level of any manager, it is certainly not a peaceful issue equate those who are willing to take those decisions with others who are merely exercising functions monitoring (which is literally the allocation made by the Criminal Code). In any case, this technical-legal debate neglects the role of this figure for the alleged criminal policy to introduce criminal liability of legal persons in the systems. Although the reception of such a regime in Spain in 2010 was the subject of extensive legal debate, there was some consent to consider it away from our legal tradition and, therefore, difficult to fit within our system. However, this did not prevent incorporate, given its effectiveness for companies acometiesen measures for the prevention and detection of certain crimes, as has already happened in other jurisdictions in our environment.
Being the desired criminal policy, one must ask what role does the Compliance Officer in it. You’d think that this is a key to operate a transformation of organizations and way of doing business, helping to create or consolidate a culture of corporate compliance with the laws and ethical figure. However, instead of attributing this high purpose, there is a risk of turning it into a simple pole of attraction of guilt and responsibility, in a sacrificial lamb against compliance incidents. There is already talk of “Compliance Officer fuse”: said of one who is set to stop or hinder the course of the responsibility, at the expense of assuming full -usually through a broad delegation of powers, not always beloved by the afectado-. And so we are coming to a situation where, instead of encouraging want or should play that role, intimidate achieved at the expense of constantly emphasize their possible criminal liability. Obviously, the Justice finish clarifying who truly participated in unlawful acts, but in the meantime, nothing prevents a Compliance Officer is called to process and suffer the discomfort, especially atrocious event upon the occurrence in people personally contrary to the investigated practices that have tried to avoid loneliness and misunderstanding in their role. It is a way of undermining the objectives of the criminal policy, losing an excellent opportunity to support the duties of a cardinal to strengthen business ethics role. No honest person should fear being appointed Compliance Officer, but at the expense of mulling over his responsibility rather than protect it, is getting just the opposite. Compliance modern standards also outlined its mission as a link with stakeholders, including public administrations, so that it can contribute effectively to this result improvement is in the minds of all. This aspect, incidentally, is one of the objectives to be pursued in all Compliance model, as seen in the Series Deployment Kits Compliance I am posting.
German philosopher Hegel said that the only thing that explains the history is that we learn nothing from it. It gives the opportunity to contribute to a better society, involving legal persons in the fight against execrable behavior and providing for this, firm who are called to play an important role in supporting it. The Compliance Officer is a key to foster corporate cultures respectful with the norms and values and shall be subject to push and protection from institutions, but not of martyrdom figure.