Until a few years ago, the talk in Spain of internal investigations in the companies was to refer to processes that are confined to the elucidation of events at work. At present, however, these mechanisms are on their way to becoming an essential tool on which to support the fight against crime hidden behind complex networks corporate.
As in everything that has to do with the criminal responsibility of legal persons, Spain is lagging behind the countries of your environment. It is not until 2015, when it introduced the first reference to these procedures in the Penal Code. Article 31 quarter sets as a possible mitigating circumstance, that the organization cooperate “in the investigation of the fact, providing evidence […] that would a new and decisive steps” to clarify the crime.
Aware that the forecast is a bit loose (the attenuation is not guaranteed), the State Attorney General’s office has wanted to give the award to the companies they collaborate with, betting on the absolution total. So, your Circular 1/2016 noted that the internal investigation should not only be a mitigating factor, but that it “may lead to exemption from punishment”.
What to do with the suspect?
stay at your employee’s position investigated by a company can be incompatible with inquiries, well because it follow acting erratically, either because it could destroy evidence. According to José Prieto (Baker McKenzie), the most common is the suspension of employment but not of wages and the average duration of this situation is between 15 days and two months. For her part, Helena Prieto (Garrigues) recommends that, for safety, that the companies apply to the workers the guarantees of the penal process, as to inform you of your rights, or to allow the assistance of a lawyer.
The practical application of these processes of inquiry, however, is not straightforward. In the first place, because it merges two branches of the law that are governed by distinct principles (sometimes even conflicting), as are the criminal and the labour. And, secondly, because, beyond the stroke contained in the Criminal Code, is not regulated nor legal, nor jurisprudencialmente how they fit in the internal investigations in the judicial processes.
the united States is the country that has looked in depth at the role of these investigations in the criminal process, establishing a model that some jurists have questioned for being too “aggressive”. Prosecutors americans, which direct the instruction, from the processing to businesses that accept a full cooperation. In the most extreme cases, the agreement between the Attorney and the company (the deferred prosecution agreement or DPA), includes the obligation to carry out an internal investigation led by an outside lawyer appointed by the prosecutor, but paid by the company, and whose performance is not protected by professional secrecy.
The case of the U.S.
through the DPA, prosecutors will americans reward companies that waive two of its prerogatives, procedural: the attorney privilege (or attorney-client privilege) and the work product privilege. The first shields the confidentiality of communications between the lawyer and the company. The second guarantees the confidentiality of the material collected by and for the inquiries.
in Front Slotbar of the internal investigations imposed on the american model, systems, continental has opted for a system based on incentives. Despite the fact that the difference is substantial, the experience of anglo-saxon is very useful to anticipate some of the problems that will have to be resolved in Spain in relation to these processes.
One of them, as explained by the exfiscal and partner of Garrigues, Helena Prieto, is to specify the procedural rights that assist the company to not be harmed by your own research. That is to say, if the justice may require to the company or its counsel to disclose their findings even when these are harmful to the legal defense, where is their right to non-incrimination? “At this point, the uncertainty is total, because there is no regulation,” explains Prieto.
The situation becomes even more delicate if the investigation is left in the hands of an in-house attorney. In a 2010 judgement, the Court of Justice of the EU (CJEU) rejected the idea that the communications between the company and their own lawyers (the so-called in-house) were covered by the obligation of professional secrecy. That’s why, if it is detected that the facts are of a certain severity, Prieto recommended to go to an outside lawyer “to ensure the maximum protection of the privilege.
Ignacio Sanchez, counsel at Hogan Lovells in Madrid, points out another benefit of outsourcing: the credibility. “By putting research in the hands of the people not polluted by the company, you get more objectivity and a better means of inquiry,” he says.
The management of the documentation the result of the inquiries has already created many problems in other jurisdictions. In the Uk, for example, the courts have had to rule on whether the notes taken by the representative of the company in their interviews with workers are covered by the work product privilege. In Germany, for its part, the conflict has arisen in the accuracy of who exactly is the client protected by the privilege. According to have been resolved by the courts of the country, if the contract lawyer is signed up with the matrix, the privilege does not protect affiliates.
The other major flank of doubts raised by the execution of an internal investigation has to do with the limits of the performance of the entrepreneur and the rights that protect employees. From the labour perspective, the company has greater powers of investigation, the result of its capacity of organization and control that from the perspective of the criminal, where some actions can be excessively invasive. An example: the obligation to assist the employee who holds the Job Right, it may not be permissible, if the company acts as an investigator of criminal.
In this sense, José Prieto, partner of Labour of Baker McKenzie, believes that the lack of regulation must be supplemented with a greater caution on the part of the company in their performances. “Does it have to be the employee in front if they register their belongings? Theoretically not, but it is recommended,” he says.
it is Also especially delicate access to the material contained on the computing devices of the employees, since any irregularity may invalidate it as evidence. In this sense, the jurisprudence requires that any intervention is proportionate and that there is prior information to the employees. “And always preserving the chain of custody for which there is no doubt about its authenticity,” concludes Sanchez.
