The Criminal Liability of the Compliance Officer: An Approach Through Several Hard Cases

Víctor Gómez MARTIN
2020 Journal of Penal Law & Criminology  
There is broad consensus in the academic legal opinion that traditional theories on perpetration and participation are insufficient to determine criminal liability in complex organisational structures, in particular in the business sector. Corporate activity rarely takes place through the implementation of naturalistic actions; it is more often a matter of adopting agreements reached by management bodies. Consequently, when determining perpetration, the decisive element is displaced from actual
more » ... commission to the taking of strategic decisions, or even failure to avoid the criminal conduct committed by a third party. In this context, it is hardly surprising that particular relevance falls upon the attribution of liability for commission by omission. This would also be motivated by reasons of a practical nature: without evidence of actual commission of the offence, it would doubtlessly be easier to attest that the crime committed by someone lower down in the hierarchy had taken place in the sphere of competence of a hierarchical superior (administrator or senior manager) who, though able to prevent it, failed to do so. Based on this twofold premise, this paper sets out to reflect upon one of the new corporate subjects arising out of the reforms introduced by Organic Laws 5/2010 and 1/2015 in the field of criminal liability of legal persons and crime prevention models (corporate criminal compliance): the compliance officer.
doi:10.26650/jplc2020-0010 fatcat:hswpoym5gnbujadvxcjecvv6pa