Definition of criminal compliance
Criminal compliance comes from the English verb ‘to comply with’, which can be translated as ‘to comply with’, ‘in accordance with’, i.e. it is to be understood as doing what is legally due.
According to the author Hormazábal Malarée, the term criminal compliance in common law means that a certain activity is in accordance with the legal norms that regulate it.
However, this is not about compliance with specific legal norms, but must include the sectoral norms to which the activity must conform.
However, in the criminal law field, the term criminal compliance is only used to refer to the obligation of legal entities to establish internal mechanisms for the prevention of crimes, which can be committed by natural persons who occupy important positions for the benefit of the company.
Thus, criminal compliance emerges as a protective shield for companies against the possibility of being subject to criminal sanctions for what is called an organisational defect.
With the implementation of criminal compliance programmes, the legal entity can either avoid criminal liability or receive a mitigation in the application of the respective criminal sanction, as long as it has done everything in its power to avoid committing the crime.
In Venezuela, this possibility has been included in Article 65(4) of the Organic Law on Fair Pricing, in the following terms:
Without prejudice to those contemplated in the Penal Code, the following shall be considered extenuating circumstances that reduce the penalty by one third to one half: (...)
4) To have established, before the start of the oral trial, effective measures to prevent and discover crimes that could be committed in the future with the means or under the cover of the legal person.
This is how the expression criminal compliance was born, or the document through which it is sought, such as the corporate compliance program, which is nothing more than the written instrument in which the preventive measures to avoid crimes being committed within the company, in its name and for its benefit, are set out.
The author Juan Pablo Montiel in his book ‘Cuestiones teóricas fundamentales del criminal compliance’ establishes that with this institution:
‘First of all, giving compliance in criminal law its proper place forces us to rethink the role of the state as the one in charge of preventing and reacting to crime. By involving associations in the implementation of preventive strategies, there is a notable shift in the interpretation of the role of the state, which transcends the (classical) liberal or social vision of the rule of law.
Secondly, as can be seen in the last section, this has direct consequences for a fundamental constitutional rule of criminal law, namely the principle of legality.
The reconfiguration of roles in crime prevention triggers an amplification of the legal instruments that make it possible to define and specify the scope of criminally enhanced duties.
This makes it necessary to rethink the role of the law and the limitations within which it can refer to self-regulation. This also leads to other points that have not been addressed in this paper, such as the scope of due process guarantees in internal investigations.
Thirdly, the idea of efficiency is more prominent than ever in the discussion on crime prevention.
This word initially justifies the State's incorporation of companies as co-responsible agents of prevention, since otherwise it would be impossible to prevent corporate crime or, at best, it would have to invest enormous sums of money that would not end up being compensated by the benefits of preventing this type of crime.
Moreover, the idea of efficiency runs deep when companies are required to ensure that their compliance programmes function properly.
In other words, compliance programmes must be able to prevent crime, and to this end, criminal law risks must be managed efficiently.
On this basis, it makes even more sense for any compliance system to be based on a reliable risk map’ (Montiel 2017, 42).