Legal Criminal law
The criminal law area at Asegi Abogados works on corporate criminal law in its two dimensions: prevention, with compliance programmes, protocols and an internal whistleblowing channel, and defence of the company and its directors, representatives or employees before the Criminal Courts of Bizkaia, Gipuzkoa and Araba.
What's included
- Criminal risk map of the activity, with the specific processes and roles where the risks materialise
- Criminal compliance programme and code of good practice drafted from that map, not from a template
- Implementation of the internal whistleblowing channel and of the internal investigation protocol
- Training for the governing body and for staff with decision-making authority
- Legal defence at the investigation stage, at trial and on appeal before the Criminal Courts
- Acting as private prosecutor when the company is the party injured by an offence
Our work in the criminal law area is aimed above all at the company and at those who run it. It comes in at two very different moments: beforehand, when the company can still be organised so that the offence does not occur and so that, if it does, the company can show that it did what it should have done; and afterwards, when there is already a summons, a complaint or a criminal action on the table.
Prevention: risk analysis
We do not start with the manual, we start with the company. We identify in which specific processes (purchasing, treasury, public procurement, foreign trade, data processing, occupational risk prevention) criminal conduct could materialise, who has decision-making authority over them and what controls exist today. The programme comes out of that analysis, and not the other way round.
Compliance programmes and protocols
We draft and implement the criminal compliance programme and the code of good practice, together with the protocols that underpin it on data protection, equality, non-discrimination and prevention. We define responsibilities, evidence and review frequency, because a programme with no record of its application is difficult to prove later.
Internal whistleblowing channel
We implement the internal reporting channel and the investigation procedure to be followed when a report arrives: who receives it, how confidentiality is preserved, what enquiries are carried out and how the final decision is documented. We train the people who are going to manage it.
Defence of the company and its directors
We take on the defence at every stage of proceedings in corporate and property offences, breach of fiduciary duty, punishable insolvency, fraud, offences against workers’ safety, document forgery and offences against intellectual and industrial property. We coordinate that defence with the tax, corporate and employment areas when the same facts open several fronts at once.
Private prosecution
When the injured party is your company, we act as private prosecutor and pursue the recovery of the financial loss in parallel. We work from Bilbao, Donostia-San Sebastián and Vitoria-Gasteiz.
Frequently asked questions
- Can a company be convicted of a criminal offence?
- Yes. The Criminal Code provides for the criminal liability of legal persons, with penalties that include fines and other consequences that directly affect the business. That liability does not exclude the liability of the directors, representatives or employees who took part in the events.
- Does a compliance programme prevent the company from being convicted?
- Nothing is automatic, but it is the element on which the company's liability is argued. What is examined is whether the programme was real: whether it started from the company's own risk analysis, whether there were controls, training and a whistleblowing channel, and whether anyone supervised it. A manual downloaded and left in a drawer does not serve that purpose.
- When should the compliance programme be implemented?
- Before a problem exists. A programme approved after the events does not protect against them, and the moment it was implemented is examined in detail. The sensible approach is to address it when the company grows, enters a regulated sector, takes on staff with decision-making authority or begins to contract with the public administration.
- And if my company is the one that has suffered the offence?
- We also act as private prosecutor. This is the usual route in misappropriation, breach of fiduciary duty over company assets, fraud, document forgery or infringement of industrial property, and it is normally brought in parallel with the civil claim for what was taken.