THE “COMPLIANCE OFFICER” FOR COMPANIES

All companies in Spain, no matter their size, number of employees, will have to hire a “Compliance Officer” or appoint a person in the company to provide this legal service.

This new thing in Spain came over from Common Law countries, such as the United Kingdom or USA, as this system has been implemented there for some years now. Despite it is quite unknown here in Spain, since 1st July 2015, as New Criminal Code came into force, all companies new to be updated and comply with Criminal Code and Corporate legislation.

Compliance Officer merges as a person in charge to supervise and control all the daily legal activities of the company, its employees, in order to prevent major offences to be committed whether by employees or employees on behalf of the company.

As above mentioned, this measure has affected all companies located in Spain, including Ltd, Inc. Or even self employed people who run a business. In small companies, the Compliance Officer might be an employee, being the accountand or administrative recommendable, but having to report to an external lawyer to check if the company comply with the Laws. In bigger companies, the Compliance Officer ust be an external body, preferebly a qualified and certified Lawyer-compliance officer, member of the Law Society and any Compliance Association based in Spain.

This Compliance Officer body became mandatory due to some changes in the Criminal Code and Anti Money Laundering Laws enacted in 2010.
The main tasks will be the following:
Offer legal planning and advice in regards to General Compliance.
Coordinate the different business sectors of the company.
Supervise accountancy and turnover.
Teach employees in order to prevent and avoid offence commission.
Issue a report every month or quarterly with the CEO or Director.
Establish and set a prevention of economical offence scheme/protocol
Set a direct report of offences in case of any suspicion.

Section 31 bis of the new Criminal Code entered this new and crucial job and obligation for businesses in Spain. Along this section we can find the responsibilities in which companies and their administrators may incurr. If the company, or its administrator or manager, or even an employee committ a fraud or money laundering or forgery, among others, the consequence and Sentence which the company may face could be, depending on the amount and responsilibity involved, the temporary closure of the company premises and offices and trading prohibition; the definite closure and liquidation of the business; an economical sanction and fine of thousands of Euros or over a million Euro.

At Bufete Padilla, we have and provide this compliance officer service to self employed people, to small businesses, mid size companies and big ones since July 2015, so any queries you may have don’t hesitate in asking us without any commitment.

CRIMINAL

THE DETENTION AND THE ARREST IN SPAIN

I’m going to explain all the legal aspects concerning the detention and the arrest in this country, so as your rights and obligations.

Firstly, it’s very important to make a brief and little explanation of what the detention and the arrest are exactly.

Detention means to be retained by the police or other authorities (Guardia Civil,) in some place after you have been caught up making some offence, like robbery or smuggling, etc., and Arrest means that you have been accused for making an offence and that police or other authorities have used physical strenghth and might bring you to jail and probably in some hours to see the Judge to declare in front of him or her.

When an arrest is made, the accused always must be told that he or she is being arrested and given the ground for his or her arrest. If unluckily at any time you are arrested here in Spain, you must know that you have got the same Basic Rights you have in any democratic country, such as the right to remain silent, the right to hear the charges against you, the right to legal counsel, the right to contact your lawyer or the chance to get a free Legal Assistance.

In Spanish Criminal Law, the Arrest is regulated in the Criminal Proceeding Act or Ley de Enjuiciamiento Criminal (LECRIM hereinafter)l, still in force since the 19th century, Articles 489 to 501, although some other Acts regulate it, such as the 1984 Habeas Corpus Act, the Security and Police Forces Act, or the Criminal Under Aged Act. There is also European Regulation on this matter, such as the contained in the European Convention for Protection of Human Rights, in its Article 5.

After an arrest is made some legal effects appear, such as the privation of liberty of the arrested person or the legal status of the detainee which changes completely. The right to legal counsel is established in the Article 24 of the Spanish 1978 Constitution, and is recognized as one of the main Basic Human Rights under the Spanish Legal System.

It’s also advisable for all of you to know, if you ignore the Spanish Criminal System, that not only the Police or the Guardia Civil can execute a detention, but you as normal citizens, if someone is caught by you after making a robbery or an aggression to somebody else, you are entitled to retain the guy until the Police comes and he could never denounce you for this, you use a very aggressive manner on the detention. All this is established from the Article 490 and on of the LECRIM.

The question now is, what is the maximun period or time a person can be arrested? There are three kinds of periods for the arrest, the ordinary term, the maximun ordinary term and the extraordinary term.

The first must be the strictly necessary to clarify the events which caused the arrestment, such as the identification and the declaration of the detaine.

On the other hand, the maximun ordinary term must occur only in case the Police couldn’t, by any way, clarify all the events and, according to Article 520 LECRIM, always within the first 72 hours from the arrestment, no more. If the 72 hours passed and the events are not clarified by the Police, you must be inmediately released with no charges. Anyway, if after 24 hours from your arrestment the Judge doesn’t issue another Resolution regarding your arrestment in order to extend it, according to Article 496 of the famous LECRIM, you must also be set free.

The extraordinary term only occurs when an emergency situation or an extreme state is published by the Goverment (war, conflicts, i.e.). It also occurs for the terrorist of ETA or IRA for instance, when they are arrested, the maximun period of 72 hours can be extended for another 48 hours more of arrestment if The Jugde passes the Resolution by the request from the Police if it’s thought to go ahead with further investigation, prior to the first 48 hours period. This was regulated after the amendment of the LECRIM came into force in 1988 and the Article 520 bis was added. When an Emergency State is declared by the Goverment, the arrestment can be extended up to 10 days as maximum, according to Article 55.1 of the Spanish Constitution and the LO 4/1981 Act.

If somehow you find yourself arrested for more than 72 hours please rush and call your family or ask for a lawyer or even write yourself in a piece of paper that you want to request the Right of Habeas Corpus Proceeding, although it can be provided by a free lawyer. This proceeding was established in the LO 6/1984, also in the Article 17.1 of the Spanish Constitution and the 1950 Internacional Convention of Rome for Protection of Human Rights, which is applied here since 1979 after the ratification by the Spanish Goverment.

To finish this week’s column I also would like you to know that if you think you were ilegally arrested or that Police or Guardia Civil used ilegal ways or manners you could denounce this in Court, of course with the help of a specialized Lawyer, within the term of 6 months since the arrestment took place.

 

THE SPANISH PENITENTIARY SYSTEM

I’m going to explain some aspects and matters regarding the Spanish prisons, what rights and duties the prisoners have inside the Prison, the three different qualification degrees for prisoners, the management of the prisoner’s own money inside, etc.

Firstly, I would like, as I always do, to refer the Regulation and Law applicable and enforceable according to the Spanish Penitentiary System. The three most important Acts to take into account in this subject are: The General Penitentiary 1/1979 (hereinafter LOGP), 26th September Act, The Penitentiary 190/1996, 9th February, Regulation, the arch-well known 1978, 6th December Spanish Constitution and the 1995 Criminal Code.

The rights and duties are linked to the special reciprocal relationship that prisoners have with the Penitentiary Administration.

1.- Rights: Article 3 LOGP.

- Prisoners are able to exercise all the civil, political, social, economical and cultural rights, even the right of voting in elections, as long as this has not been prohibited by the Judge’s Resolution.

- Prisoners are also able to continue the pending civil procedures at the moment of entering the prison and they are even able to start new civil actions, such as Divorce, Claim for debts, Probate, etc, using a private or a free Estate Lawyer or Abogado de oficio.

- The Administration shall look after for prisoner’s life, integrity and health. This right is also established on Article 15 Spanish Constitution.

- Prisoners have the right to be named by their own and proper names, avoiding nick names which can be discriminatory.

- Article 6 LOGP establishes that is completely forbidden physical or psychological mistreatment to prisoners.

- Prisoners can also present official complaints for mistreatment or due to the applied regime to the Prison Authorities or to his or her legal representative.

2.- Duties: Article 4 LOGP.

- Prisoners must respect all the rules and the internal regime applied inside the Prison and complete all the disciplinary sanctions issued due to a bad behaviour or misconduct. Time tables, personal hygiene, order, cleaning, etc. must be fulfilled by prisoners.

- Prisoners must also keep a normal attitude of respect and consideration with all the Prison workers and employees, so with Judiciary Authorities.

- Lastly, prisoners must behave properly with other prisoners.

Another important issue to talk about is the three different qualification degrees for prisoners.

FIRST DEGREE. First degree prisoners are those who are extremely dangerous and are completely unable to settle with other prisoners. These prisoners are sent to a closed Regime Penitentiary Centre. The prisoners can’t go out of the prison under any circumstance.

SECOND DEGREE. In this degree are situated most of the prisoners in Spain. It’s considered the standard situation usually. The centre here is not obviously closed, but it’s called Ordinary Penitentiary. If the prisoner behaves well for such a long time and becomes a non-dangerous prisoner status (it takes some years), he or she might obtain a permission to go out from the prison for a maximum of 8 hours, all the time being supervised by a Police Officer and once a Resolution is issued by the Penitentiary Watching Judge (Juez de Vigilancia Penitenciaria).

THIRD DEGREE. According to this degree, the Centre is called Open Regime, which means a kind of weakened fulfilment of the indictment Resolution. Here you can find the less dangerous and best settled prisoners of Spain, who can work out of jail, doing almost a normal life, but going back to sleep to prison. This degree is very difficult to achieve because the prisoner must fulfil many psychological requirements, according to the report from Psychological Penitentiary Committee and also according to the Penitentiary Watching Judge, who shall issue the final terms of the permission.

Lastly, one of the main worries for prisoners when they’re sent in, it’s their financial situation, such as how do I get cigarettes or even a simple coke? Answering this, I should let you know that inside the prison, prisoners can start working, or receive money from their families. This money must be put in a Santander bank Account provided by the Prison Authorities, so the prisoner can manage and administer his own money inside by using a card very similar to a credit card we all have in our wallets. The money in prison is called “peculio”. And this deposit should be put in under this concept: “ingreso de peculio”, adding the prisoner’s full name, that’s it.

Next week I’ll explain all the types of labour and company contracts, its term, its minimal conditions, and some rights for employees and for employers.