Does Compliance end with a CCS?

Articles, News
Juan NunezThe Criminal Compliance System is increasingly adopted by Spanish companies to avoid the economic consequences of offences that may be committed within the companies by employees being extended to the members of the board of directors; this objective responsibility stems from a criminal conception according to which the company’s top management must have done everything possible to prevent offences from occurring, from which the company would obtain some benefit. This concept exists in a similar way in France with the Sapin II Law, and also in Germany, albeit in the administrative field. It should not be assumed, however, that elsewhere the consequences of negligent management or lack of control over the activities of employees are totally alien to the directors: the responsibility, in one way or another, falls, at the end of the day, on those who are ultimately responsible for an economic activity. This work goes even further, indicating that the work does not end with the adoption of the System, but it must be followed by its implementation.   The incorporation of Criminal Compliance System in companies is a practice that is becoming more widespread, both because of the consequences of not doing so and because of the extension of the ethical culture in business activity. On the one hand, the consequences focus on the fact that the directors (CEO) of a company must implement a control of the activity and its processes, so that if, due to the absence of this control, a person linked to the company were to commit an offence, the directors would be responsible for the financial damage caused. This result is based on the principle that those responsible for the company must do everything possible to prevent wrongdoing. On the other hand, the CCS, together with the codes of good governance and ethics that derive from them, sometimes oblige companies to relate only with companies that have implemented their own, so that not having them in place will lead, to an increasing extent, to lost business opportunities. It has to be kept in mind, and has been often emphasised, that the CCS in itself is not sufficient.  Some Supreme Court rulings have been very clear in determining that the CCS cannot be a simple copied protocol, poorly adapted; it cannot be a cover to avoid the application of Art. 31 and 129 of the Spanish Criminal Code, but must be consciously implemented so that it fulfils its regulatory and controlling function in those cases in which it could be used to commit offences. Rule 1/2016 of the State Attorney General’s Office has been particularly explicit in relation to the implementation in organisations of merely „aesthetic” crime compliance systems, leaving aside the true spirit that CCSs must contain, and which therefore would not serve their intended purpose. Therefore, a Criminal Compliance System shall be configured as an absolutely individualised service designed for the specific characteristics of each company, and its development as well. Many companies and entrepreneurs, however, only understand Compliance as an imposed necessity and not as an advantage. Consequently, with this concept of necessity, they often stick to the CCS, considering that a facelift will be enough to keep them in the club of excellence. On the contrary, companies should understand that, in addition to being a legal obligation under art. 31 bis Spanish Penal Code, implementing these plans is what the Anglo-Saxons call a ‘business benefit’. However, in order to obtain this result, it is necessary to develop the CCS so that it can truly unfold its effects: the CCS is a declaration of intent; a desideratum of conduct and controls that shall be duly disseminated among all the components of the company. But, what then? Can it be considered sufficient to indicate what shall not be done, or shall controls really be put in place to detect and prevent contraventions of these indications? We understand that all means must be put in place to prevent the omission of wrongdoing, which requires more than a CCS: its development. In order to develop the CCS, it is necessary to analyse the aspects to be controlled and to implement these controls, to determine the information routes, to appoint the controllers. To this end, specific protocols and policies are implemented, such as, for example, those regulating conflicts of interest, the preservation of business secrets, the use of digital certificates, the selection of suppliers, the circulation of information and documentation, the prevention of money laundering, tax policy, sales policy, digital disconnection policy, … all those that may be considered necessary to successfully implement a CCS and for it to be a real and effective tool. It is obvious that a company correctly equipped with these instruments will not only be more appreciated in its daily operations and in the eyes of its suppliers and customers (the business benefit), but will also be much more highly valued by potential investors. Juan Núñez –

Speech by David Asatiani, President of the GBA

Articles, News
David Asatiani PhotoDear colleagues, Ladies and gentlemen, On behalf of the Georgian advocates, I would like to deliver warm regards to all participants of the conference. I will start by extending my gratitude to organizers and leaders of the Polish legal profession for making this important event to happen and also many thanks to European Association of Lawyers and President Slazak. I am convinced this conference will serve as an excellent occasion for exchange of ideas and sharing of experiences among legal professionals from different countries. Today, I would like to concentrate your attention on those aspects of our work, which, I believe, can serve as a solid foundation for strengthening the independence of legal profession and for advancing quality administration of justice. Therefore, I will start by emphasizing how crucially important it is that advocates in every country work hard and stay vigilant that their institutional and individual independence is respected, maintained and further promoted. I feel proud to have been the part of a tireless work of Georgian advocates that led to our strong professional unity represented by the Georgian Bar Association – organization which is institutionally and financially fully independent from any governmental agency and which has built a capacity to effectively self-govern every aspect of profession in Georgia – starting with the admission to the profession and ending with administering the disciplinary proceedings. Due to this level of independence and unity, we have managed to achieve the point when we have no prevalent and grave facts of interference in advocates’ work and overall the environment to conduct legal practice in Georgia is improved and approximated to European standards. For instance, one of the benchmark achievements of the recent years are that Constitutional guarantees for the work of Lawyers were introduced as well as it became punishable by criminal law to interfere in advocates’ professional activities. However, it is also true that in every country, especially in countries of incipient democracy, there may always be the tendency and cases of undue interference in advocates’ work. For this reason it is important that besides setting-up legislative and institutional guarantees for the independence of legal profession, we also need to introduce mechanisms to permanently monitor its protection and timely react to any case that may involve the violation of advocates’ rights. For this purpose, the special Committee on the Protection of Lawyer’s Rights operates within the Georgian Bar on permanent basis, which is directly supervised by and reports to the President of the Bar. By this way we ensure that no advocate’s complaint stays unattended and every case is checked against the standards of non-interreference in advocate’s professional activities. Saying all this, it should also be emphasized that today we live in a world of dynamic changes. This creates the context where if we – advocates and Bar Associations – only focus on our watchdog role to ensure our independence, it will not be sufficient. Rather, we should also aim at such public positioning of our profession, which contributes to enhancing trust, prestige and reputation of advocates and their professional unions in a society. This, in turn, will have a positive spillover effect over such aspects as independence and strength of the profession. In this regard, I would like to highlight few important points: Firstly, as a self-governing profession, we need to pay a particular attention that standard for entry into the profession is high and it attracts even more qualified candidates to this profession. This was a major reason the Georgian Bar have recently increased the standard of entry into the profession by amending the Law and introducing a mandatory initial training program for future advocates. The duration of this program is 1 year where candidates learn all core principles of legal profession and major skills necessary for advocates, such as ethics, rhetoric, communication with client, service fee negotiation, management of law firm and etc. Candidates are also assigned to highly experienced mentor advocates for internship. Also, besides taking care of standards of entry into the profession, it is of key importance that Bar Associations create effective formats for lawyers to cope with a dynamic character of law. For this reason, we pay high importance to the system of continuing legal education and currently we are in the processes of redesigning our CLE system in order to make it more efficient and tailored towards the needs of advocates, including by integrating modern developments in technology and learning methodologies. In addition, we need to ensure that ethical standards of the legal profession copes with modern challenges, including the ones created by the development of Social Media and similar platforms. We at the Georgian Bar realize that those ethical rules and procedures that were adopted years ago might not correspond to these modern challenges and therefore, in cooperation with our international partners, we plan to thoroughly assess those rules and procedures and modify it in accordance to European and international standards. Further, we need to intensify our work to promote the role of advocate in a society. It is frequently not adequately recognized how much effort lawyers make in order for quality justice to be delivered and rule of law to be upheld. The most concerning in this regard is the problem of lawyers’ identification with their clients that in many cases leads to a huge social pressure and aggression towards advocates, especially in high-profile cases. To address this problem, we initiated a complex campaign to protect advocates from undue social influence. For instance, we partnered with the bestseller Georgian author to write a book regarding the role of advocate and essence of their work. Also, the movie and social advertisement was created by one of the most popular Georgian movie directors regarding the history of Georgian legal profession that were broadcasted by almost all major TV channels. These activities show to have a positive impact over the public image of advocates and therefore we continue to further intensify our work in this direction. To this end, I believe, it is also very important that advocates show themselves as representatives of socially responsible profession and engage in pro-bono activities. To promote pro-bono work among lawyers, the Georgian Bar Association, with support of partner donor organizations, has started to implement various pro-bono projects, such as free legal aid for people with disabilities, legal aid for indigent single parents as well as pro-bono days. Despite the fact that effective state-funded legal aid system exists in Georgia, throughout implantation of the above-mentioned pro-bono projects it became apparent that there still are individuals in our society who do not fall within the mandate of the free legal aid and due to hardship cannot afford legal advice and representation. Therefore, to ensure that no one is denied justice, we currently work to set-up a Pro Bono Center within the Georgian Bar Association, which will create a platform for, advocates to more actively engage in socially responsible activities. Adding to all of the above-mentioned, it should also be underlined that advocates and Bars should play an active role in leading and promoting the initiatives related to close cooperation among different representatives of legal profession – lawyers, judges and prosecutors. Although Bench and Bar have significant responsibilities to collaborate in order to ensure the quality of justice and to promote public confidence,such cooperation between the key stakeholders of justice system has historically been very limited. To tackle this challenge, upon the initiative of the Georgian Bar and in close partnership with the Supreme Court of Georgia and the Chief Prosecutors Office, a formalized mechanism of the Bench-Bar cooperation called – “Justice Coordination Council” – was established. A special ceremony for launching the mechanism was held, where myself, the Chief Justice and Attorney General jointly signed the memorandum establishing the Justice Coordination Council. I believe that the Justice Coordination Council will enhance cooperation culture among key justice stakeholders for the common goal, such as setting uniform court practices and improving the administration of justice. It also creates a forum for judges, lawyers, prosecutors and other professionals to discuss the issues related to interpretation of law that will contribute to the development of uniform court practice, which, in turn, will enhance the predictability and transparency of judicial proceedings for the court customers. Additionally, by development of uniform and more predictable court practices, the Justice Coordination Council will significantly diminish the risk of bias or corruption among judges. In other words, once all the justice stakeholders agree on some form of interpretation of the law and its application in court proceedings, divergence of a judge from it should have to be very well substantiated. In the end, I would like to also highlight the importance of mutual, regional and international cooperation of Bar Associations and individual lawyers so that we can share experiences and best practices in order to support each-others progress towards more independent, strong and well functioning legal profession. In this regard, international and regional professional organizations should be more attentive towards setting-up effective mechanisms for increasing integration of Bars of countries of transitional democracy. Particular attention should be paid to the fact that each and every of these Bar Associations operate in highly different political, social and institutional contexts. I believe that understanding of peculiarities of those local contexts is essential to streamline the process of integration of mentioned Bars in European and international family of legal professionals. In my opinion “one size fits all” approach should be avoided and “development through integration” approach should prevail. To sum up, I believe that by safeguarding our institutional and individual independence, by ensuring higher professional standards, by promoting the role of lawyers in the society, by enhancing public image of advocates, by encouraging bench-bar cooperation and by intensifying international cooperation we will ensure further progress for legal profession as well as justice systems in our respective countries. In the end, I would like to thank again the organizers for delivering this event and all of you for your kind attention. David Asatiani President of the Georgian Bar Association

Compliance in Covid’s time


December 17, 2020

Mélanie Diaz

Without a doubt, the experience of a pandemic such as the coronavirus has disrupted our society at all levels, testing us all, generating as many crises as opportunities; although it is proving difficult to see the light at the end of the tunnel, we must not lose sight of the opportunities that this unexpected situation also offers us.

The „new normality” we are currently experiencing has highlighted the urgent need to clearly identify the Compliance risks to which an organization may be exposed and the appropriate management of these risks, even for scenarios as unpredictable as a pandemic, to which it is very important to consider specific contingency plans.

Ethical culture

Companies must understand the need to establish an internal culture of Compliance and a commitment to ethics that permeates their actions, thus making of good practices the norm within the company and in its relations with third parties. If this is still a pending task, it is a good time to review internally the implementation of these issues in the organization.

Any new business movement, a sale, an absorption, a merger or a spin-off, and any business transformation, will be clouded by the lack of a good documentary, procedural, fiscal or ethical order, with the corresponding protocols to support them, since it should not be forgotten that article 130.2 of the Spanish Criminal Code establishes that criminal liability is transmitted and not extinguished, as happens with the death of individuals. A similar situation is to be found in other countries.

Market requirements

It is important to have 'the house in order’ and, increasingly, a good Compliance incorporated, if we want to sell to certain customers who, more and more, incorporate ethical rules that prevent buying from companies that do not have incorporated such instruments of internal control and traceability, to ensure a good regulatory and ethical.

It is an indisputable fact that, if we want to be accepted as provider of companies of a certain size, we have to implement these procedures, so that, if a company aspires to wider and higher horizons, one day or another it is going to face this inconvenience.

Anticipating this in advance will facilitate this moment and access to better business partners will be much easier. We should not leave it 'for later’. We are seeing with this pandemic how difficult it is for us to foresee, our tendency to 'nothing will happen’; and the consequences of this are being experienced these days. Let us try, in our business, to be one step ahead of the events.

The European Convention on Human Rights – vivid and powerful legal instrument?


December 10, 2020

Marzena Świstak

The Convention for the Protection of Human Rights and Fundamental Freedoms, customarily referred to as the European Convention on Human Rights, was opened for signature on 4 November 1950. Therefore, this year there is a special moment to underline the significant role of that international regulation. In adopting the text of the Convention, the Member States of the Council of Europe expressed a common heritage of political ideals and traditions, respect for freedom and the rule of law, but also the respect for the rights expressed in the Convention. The proper understanding and application of the Convention by States Parties was to be ensured by the European Court of Human Rights (established in 1959). The Republic of Poland signed the Convention on 26 November 1993 and ratified it on 19 January 1993. From 1 may 1993, it also recognized the jurisdiction of the European Court of Human Rights.

By acceding to the Convention, each country confirms the will to ensure, in real terms, the fundamental rights and freedoms expressed in it. The aforementioned are considered as the foundation of justice and peace in Europe. The European Convention on Human Rights has become the most important Treaty in the Council of Europe acquis (now there are 47 States as parties to that regulation). The European Convention on Human Rights has played an important role in the development and awareness of human rights in Europe.

The European Convention on Human Rights is a unique human rights protection system at European and global level based on an individual complaint mechanism to the European Court of Human Rights And to supervise the implementation of its decisions by the Committee of Ministers of the Council of Europe. It is often the last or even the only instance of appeal for people whose rights have been restricted or even breached. The governments of individual States Parties to the Convention have the duty (and even the right) to appoint candidates for the judiciary among the highest moral level and recognized uncontested legal qualifications. They shall also ensure that the national legal system is functioning in a manner that respects the values and principles of the Convention. An individual complaint to the Court should be considered as a last resort. What is more, if it has been already submitted and, as a consequence, resulted in a judgment, the State is obliged to implement it immediately and fully.

From the perspective of almost thirty years, there is no doubt that participation in the European Convention on Human Rights has affected (and still affects) a fundamental change also in the Polish legal order. This led e.g. to eliminate institutions and practices that are incompatible with the values of the Convention. It was also an impetus for national legislators to introduce solutions resulting from the authoritative interpretation of the Convention (e.g. the provisions on zabazan claims) and fundamentally influenced the Polish courts and tribunals’ judicial trend. Between 1993 and 2015, the European Convention was a crucial, international signpost of the right direction for the evolution of the regime of the Republic of Poland toward a model of the rule of law.

Under the Article 9 of the Polish Constitution, Polish public authorities are bound by judgments of courts or decisions of other international or supranational bodies. In practice, this problem is primarily a matter for the rulings of the European Court of Human Rights. Although such judgments do not directly bind the authorities and they do not directly shape the legal situation of persons, for example, they do not cause the repeal of acts of national law which have infringed human rights. However, the statements in the European Court of Human Rights rulings indicating violations of the Convention mean that the national authorities acted unlawfully. These authorities may not contest the decision of the European Court of Human Rights that the infringement existed.  The judgment requires the State to take action to restore legal compliance. However, in situations where international law standards are directly applied, this application should take into account the importance (interpretation) of the international bodies legal analysis. The consequences of the statement of an infringement of personal rights create certain obligations between the victim and the country which committed the infringement. It is understood that the issuing of a judgment declaring an infringement of the Convention constitutes a „right of redress”. Furthermore, the State should take all necessary steps to eliminate the effects of the infringement has been found and restore the situation. Nevertheless it should be posed that the mere fact of finding an infringement of the Convention does not create an obligation to take precise action. Member States have the freedom to choose the way to redress the judgment, which cannot be taken over by the European Court of Human Rights. It is not possible to order any State to amend its internal legislation. The Convention does not, however, impose any obligation to resume legal proceedings which have become final. Otherwise, it would entail a significant reduction of a feeling of legal certainty. The need to prevent further infringements, must not involve modification of a specific resolution already issued, but may consist the impetus to undertake specific steps to avoid similar, wrong actions in the future. The inability to resume legal proceedings should not be understood as the ignorance by a State Party to the Convention.

The significance of the Convention is not to be underestimated. It is not only the voice of history. The most influential framework of rights that should be protected is under the regulation of the Convention. Just name the Article 6 that provides a detailed right to a fair trial, including the right to a public hearing before an independent and impartial tribunal within reasonable time, the presumption of innocence, and other minimum rights for those charged with a criminal offence (adequate time and facilities to prepare their defence, access to legal representation, right to examine witnesses against them or have them examined, right to the free assistance of an interpreter). The majority of convention violations that the court finds today are excessive delays, in violation of the „reasonable time” requirement, in civil and criminal proceedings before national courts. Another significant set of violations concerns the „confrontation clause” of Article 6 (e.g. the right to examine witnesses or have them examined).

Nevertheless, there are many protection areas, that may be mentioned also as crucial and actual at the moment. It is enough to mention academic freedom requirement that should be guaranteed in the democratic society. Though academic freedom is not explicitly provided for in the European Convention on Human Rights, the European Court of Human Rights has brought issues regarding academic freedom within the ambit of the Convention. It tends to do so under Article 10, which guarantees freedom of expression. What is more, even in the Polish legal system recently there have been undertaken legislative measured within the area mentioned. The statutory draft of “package of academic freedom” should be mentioned. The aforementioned shows that the Convention’s regulations are constantly vivid in the legal area. It is not a “distant regulation”, but a fundamental framework that may be used as a flexible instrument of human rights’ protection.

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