Legal entities
Compliance program
Even if the conditions for criminal liability of a legal entity are met, there is a way to avoid negative consequences. A legal entity shall be exempt from criminal liability if it has made all the efforts that could reasonably be required of it to prevent the commission of the unlawful act.
One possible solution may be the introduction of a compliance program. This is a set of measures designed to prevent criminal activity that could be attributed to the legal entity concerned. The specific form of such a program is not regulated by law as each legal entity is different, whether it is different in size or in the focus of its activities.
The content and scope must therefore be adapted to the specific conditions of the company. However, compliance programmes have one thing in common - they should not be a collection of abstract directives hidden in the bowels of an intranet. For a compliance program to work, it must be put into practice.
The possible content of the compliance program is described in the methodology of the Supreme Public Prosecutor's Office. The document describes tools at three levels - prevention, detection and reaction. Below you will find a simplified outline of them.
Prevention tools
Code of Ethics
A basic document in which a legal entity declares adherence to certain principles and refuses to tolerate any illegal actions.
Training
It is necessary to present the attitudes and procedures of combating illegal activity to employees not only in a written document, but also through practical training.
Advice
The possibility of personal consultations regarding the procedure in specific situations that the worker encountered should also be available.
Communication
All persons across the given legal entity should be prepared to communicate, explain and solve problems that arise.
Employee background checks
The company's employees should be screened appropriately with regard to the position for which they are hired, or on which it acts.
Partner reviews
Business partners should also be subject to a certain background check. The content and scope should reflect their importance and the nature of their activities.
Detection tools
Whistleblowing
Internal notification system for reporting suspected illegal actions related to a legal entity. Legal obligation for selected entities.
Internal investigation
Verification of established suspicion by internal tools of the legal entity. Securing information and evidence, evaluating and deciding on the next course of action.
Monitoring
Continuous supervision of processes related to the legal entity with an emphasis on activities associated with a higher degree of risk.
Reaction tools
Labor law
In case of violation of relevant obligations by the employee, sanctions ranging from reprimand or reduction of remuneration to immediate termination of employment are imposed.
Recovery of damages
Illegal actions can cause damage. In such a case, the legal entity is consistently demanding its compensation.
Criminal law
As a last resort, the detected illegal act is dealt with at the level of criminal law. A criminal report has been filed in the matter and the matter has been handed over to the relevant authorities.
Compliance reporting
The established compliance program is not immutable. It needs to be continuously monitored and improved based on the experience gained.
Compliance audit
Review of the established compliance program with regular frequency or in response to an incident or changes in a given legal entity.
Good to know
What should the compliance program contain?
According to the Supreme Public Prosecutor's Office, this may be in particular the following: code of ethics, training, checks of business partners and employees, internal reporting system of suspicious behavior (whistleblowing), internal investigation process of established suspicions, internal monitoring and audits. In the same way, it is necessary to take the appropriate steps when confirming an illegal act - whether it is about labor law and similar sanctions, the application of compensation for damages, or the filing of a criminal report.
Does a compliance program make sense even for a small entity?
In connection with the criminal liability of legal entities , the law does not distinguish between "large" and "small" entities. Even in the case of a smaller legal entity, a compliance program makes sense.
Of course, it needs to be adapted to specific conditions. If it is a small company with a few employees, the scope of measures introduced will be significantly more limited than in the case of a large corporation with hundreds or thousands of employees. However, even a simple structure of measures in the case of criminal prosecution will send a clear signal to the law enforcement authorities - the entity in question does not tolerate illegal actions by its representatives and actively fights against it. This can be a key element protecting the relevant legal entity from criminal liability.
Does the compliance program only deal with criminal liability?
Although one of the main objectives of the implementation of the compliance program is to strengthen the protection of the legal entity against the potential emergence of its criminal liability, it is not exhausted by this. By implementing it, the entity in question makes it clear that it does not allow illegal actions in connection with its activities. This can have a positive effect not only on the internal company culture, but also on relations with suppliers, as some entities in contracts require that their business partners recognize certain values, or they had implemented measures corresponding to the compliance program.
Does it make sense to create a compliance program after the initiation of criminal prosecution?
Building a compliance program has the greatest effect for potential exemption from criminal liability in situations where it is implemented even before the relevant criminal activity occurs.
However, even if it is introduced only in response to certain objectionable conduct, it is still a positive act of a legal entity, which can have an impact even in an ongoing criminal proceeding. And this, among other things, with regard to the legal obligation of the court to take into account the behavior of the offender after the crime, or to his attitude to the crime in criminal proceedings.