Corporate Criminal Investigation and Prevention

Transcription

1 Corporate Criminal Investigation and Prevention

2 INTRODUCTION. Preventive Criminal Law. The current complexity of corporate structures has led to an increase in the rate of internal illicit acts, which in turn has forced corporations to increase their legal security levels by conducting independent internal investigations. These investigations have helped to timely react to these illicit acts (mostly propertyrelated) thus minimizing any direct damage caused to organizations. Additionally, and as a result of a prevalence of a criminal liability model by default of derivative organization with regard to corporations, owners, controllers, directors and top executives are now considering the application of criminal risk prevention instruments in their organizations. These instruments do not only increase the legal compliance of standards by workers but also eliminate any signs and presumptions of civil and criminal liability regarding their own organization. 0202

3 LEGAL GROUNDS. Crime Prevention Models and Protocols Law on corporate criminal liability was published on December 2, Currently, corporations, regardless of their nature, structure and size, can be investigated by the Public Ministry when during investigations on money laundering crimes as stated in Article 27 of Law 19913; funding of terrorist activities as stated in Article 8 of Law and bribery as stated in Articles 250 and 250 bis of the Criminal Code, conducted against its owners, comptrollers, responsible parties, senior executives, representatives or those who conduct management and supervision activities, or against individuals who are under direct supervision or management of any of the individuals mentioned above, the Prosecutor in charge of the investigation deems necessary to additionally sanction the corporation for considering that the crime was a result of the non compliance of the duty to properly manage and supervise the corporation. Criminal liability results in penalties that have a direct effect on a corporation, separately from the criminal responsibility of those individuals who may have been involved in the events. Sanctions may even include the dissolution of a corporation. 0303

4 LEGAL GROUNDS. Crime Prevention Models and Protocols Additionally, Law established the grounds for exemption from criminal liability of corporations whenever a crime-prevention, organization, management and supervision model had been previously adopted and implemented. Consequently, corporations are forced to prevent crimes by developing an organization, management and supervision model in advance. Our law firm has designed a legal consulting service whose main objective is to properly design and implement a crime-prevention model to adjust to each corporate structure. Furthermore, the increase in different types of crimes that may have an effect on company workers and external individuals in addition to a weakening of the security levels required by all organizations has encouraged us to design a consistent legal consulting service and develop specific crime-prevention protocols such as sexual abuse prevention protocols in educational institutions. 0404

5 PARTNERS JOSÉ MIGUEL BARAHONA AVENDAÑO Barahona Castillo Bonacic Law Firm - Partner Lawyer graduated from Pontificia Universidad Catolica de Chile ( ). Professor of Civil and Criminal Procedure Law - Law School, Pontificia Universidad Católica de Chile (2000 to date). In 1999, Mr. Barahona won the Fernando Fueyo Laneri Prize which was awarded for his thesis The Remedy of Complaint: A Functional Interpretation, published by the Lexis Nexis publishing house. Diploma on the Reform of Criminal Procedure Law - Pontificia Universidad Catolica de Chile (2004). Member of the Chilean Chapter of the Pan American Institute of Procedure Law. Member of the Chilean Attorney s Association and a contributor to the Law Journal. Languages: Spanish and English 0505

6 PARTNERS FRANCISCO VICTORINO CASTILLO VERA Barahona Castillo Bonacic Law Firm - Partner Lawyer, Pontificia Universidad Catolica de Chile ( ). Master s Degree in Business and Corporate Criminal Law, Universidad de Chile ( ). Diploma on the Reform of Criminal Procedure, Universidad Alberto Hurtado (2006); University Certificate in Civil Law: Civil Liability, Pontificia Universidad Cató olica de Chile (2003). Professor of Criminal Law at Universidad Andrés Bello (2005 to date) and Professor of Economic Criminal Law at Universidad Andres Bello (2011 to date) Fundación Juan Pablo II Scholarship for Academic Excellence ( ) Member of the Chilean Attorney s Association. Publications: Illegal evidence for Violation of the Rights of Defence as Guaranteed by Due Process. Microjuris. Bulletin No. MJD199. Doctrine / Violation of the Non Bis In Idem Principle in the System of State Sanctions (Criminal and Administrative): Irrelevancy for Unconstitutionality. Microjuris. Bulleting No. MJD321. Doctrine / The Crime of Public Disorders in the Bill that strengthens Protection of Public Order. Microjuris. Bulletin No. MJD648. Doctrine

7 PARTNERS CRISTÓBAL PATRICIO BONACIC MIDANE Barahona Castillo Bonacic Law Firm - Partner Lawyer graduated from Pontificia Universidad Catolica de Chile ( ). Mr. Bonacic received the Jaime Guzman Errazuriz Award granted to the best student in Constitutional Law (2000) and Honorary Registration Award (2001). He was also given the Jose Tocornal Jordan, Pedro N. Montenegro and Lexis Nexis Publishing House Award granted to the best graduate (2003). In addition to the Luis Gutiérrez Alliende Award granted to the Best Student of Commercial Law (2003) and the Fernando Rozas Vial Award granted to the Best Student in Civil Law (2003). Post-degree in Criminology (2007) and Diploma on the Reform of Criminal Procedure (2006) - Pontificia Universidad Catolica de Chile. Professor of Criminal Law and Criminal Procedure Law at Pontificia Universidad Catolica de Chile (2005 to date). Formerly, Mr. Bonacic served as Assistant Attorney of the Sexual and Violent Crimes Department, National Prosecutor Department of the Chilean Public Ministry and as lawyer of Claro and Cía s Litigation Division Member of the Chilean Attorney s Association 0707

8 SERVICES The various crime-prevention services offered by Barahona Castillo Bonacic Abogados are provided progressively, always bearing in mind the final objective, i.e., provide corporations a specific Prevention Protocol for their business and a reliable and/or efficient Crime Prevention Model that will release them from any civil / criminal liability. Corporate Criminal Prevention Due Diligence Creation of a new role in your Company: In charge of Crime Prevention; Design, Implementation and Certification of Protocols Crime Prevention Model Training on Corporate Criminal Prevention Protocol Supervision Documentation to Exempt from Corporate Liability 0808

9 ADVANTAGES The advantages obtained by your organization as a result of the implementation of the Crime Prevention Protocol / Model, are the following, among others: Release a corporation from any criminal liability to which it may be exposed. This is a diligence evidence for civil liability issues. Reinforces your corporate image and differentiates you from your competitors. Contributes to maintaining your creditworthiness. Currently this represents relevant information for sale, purchase, merger and transformation processes of any corporation. 0909