The 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 – Bdabogados.com
Dear 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