Protocols, risk management and instrument for criminalizing the employer

by | Jul 7, 2020 | Articles | 0 comments

Some businesses have already started to operate, others will do it soon, but definitely, we willall find a different market, with different times, ways and fears, some call it “new normality”,others “post-COVID reality”;but, what is certain -without any doubt- is that themarket is not the same; it has changed, and therefore so have its risks.Then, haveyou evaluated your new risks?,how do you plan to prevent them?There are at least three major changes that we will continue to live with for some time to come:remote work, greater digitalization, and the risk of contagion. Three clear contingencies thatexist today and that the businessman will have to manage effectively if he does not want to belinked to the consequences that these generate, because, I warn, the traditional defense ofignorance of the facts is no longer so easy. The Peruvian State has filled the businessman withprotocols to restart operations and it is these same protocols that will later be used by the PublicProsecutor’s Office to attribute criminal liability for non-compliance.To put it plainly, these protocols are a risk management system that, if not properly assessed bythe entrepreneur, will end up being his executioner. These protocols seek to reinforce regulatorycompliance, therefore they cannot end up being just another diploma hung on the wall to boostsales, otherwise, they will only end up being the basis for a condemnatory sentence againstthe employer.
It happens that the protocols, risk management systems, crime prevention models, goodcorporate governance programs, compliance, code of ethics, regulatory compliance programs,integrity programs, or whatever you want to call them in any part of the world, bring withthem an express recognition by the businessman of the risks of operating his business,specifically these systems oblige him to identify them, analyze them and establish mechanismsto mitigate them and, if possible, eliminate them, in such a way that, then, only the businessmanhas to control them and their non-compliance generates legal consequences.But beware, in my opinion, this simple logic works quite well in businesses of certaincharacteristics, where the entrepreneur has the real capacity to act to neutralize the source ofdanger or, in terms of Dr. Ivan Mini¹, where the subject must have had the capacity and psycho-physical possibility to perform the prescribed conduct.This is easy to explain with examples: what real – not legal – capacity does the entrepreneur of abusiness with several locations have to be in all of them at the same time in order to effectivelyexercise his duty to ensure the sources of danger? The answer is obvious: none. It is importantto remember that criminal law only punishes conduct that can be reproached for not havingacted otherwise (when it could have done so), so that the only thing left for the employer to dois to organize his area of competence with the support of third parties, via delegation, to preventthese risks from materializing in a result.Deconcentration and decentralization in the execution and control of the sources of dangerare a valid and above all effective mechanism adopted by the entrepreneur to adequatelymanage the risks of his business, provided, of course, that this function falls to delegates withfull capacities (knowledge, experience, decision, autonomy, solvency, economic, technologicaland human resources, etc.) to carry out the assignment received.Another example of why it is not fair and even less legal² to always attribute criminal liability tothe employer for all incidents occurring within his business under the classic excuse of holdingthe position of residual guarantor over a source of danger is, for instance, when it comes tospecialized work.What capacity can the employer have to supervise the work of acontractor who provides specialized services³ whose technical knowledge is beyond hisexperience? Unfortunately, in criminal practice, we see such cases, where the PublicProsecutor’s Office hastily imputes liability to the employer for failing to control a source ofdanger under his responsibility.Regarding the delegation, the recent Cassation No 1563-2019 La Libertad of February 26, 2020has established its position, highlighting the difference between the acts of delegation ofexecution of acts or assumption of positions and the delegation of acts of controlling andsupervising, establishing that in the first case (delegation of execution of acts) the delegator stillhas the duty to supervise the subordinates and their form of performance, that is to say, that hiscondition of guarantor only suffers a mutation, leaving in him a residual guarantor duty or
mediate guarantor. While in the case of the delegation of acts of control and supervision -saysthe Cassation- the delegation is full.The position of the Supreme Court on the aforementioned subject is supported by the position ofDr. Iván Meini, who on pages 369-270 of his book entitled Responsabilidad Penal delEmpresario por los hechos cometidos por sus subordinados4 , textually states:”In effect, when the object of delegation consists specifically of control or supervisionfunctions, that is, when the duty to control or supervise is precisely transferred, the position ofguarantor is completely delegated from the delegating management body to the delegatedsubordinate, leaving, consequently, no residual guarantor position in the hands of the delegator,unless the transfer of the duty to supervise suffers from some defect or the requirements for itsvalidity have not been observed”.The importance of organizing the business to neutralize or mitigate the sources of hazards isnow clear. The entrepreneur must identify, evaluate, manage and control them in a substantialand formally effective manner. Protocols cannot and should not be relegated to a mere paperand ink hanging on the wall as a reminder of the moment in which the company survived apandemic, they must be more than a support and guide, they must contain as essence therepresentation of a business model away from crime.Here is the most important point to finish understanding its relevance: the legal person, since itdoes not have a physical existence but it does have legal existence, all its participation in theearthly world is materialized in some way, directly or indirectly, through human conduct -activeor omissive-, hence the only thing that can make a difference or determine liability will be thespirit in which it acted: if it is proven that the essence of the company, reflected in internaldocuments and precedent behaviors, is opposed to the human conduct that materialized the risk,then it will be easy to identify the real author and affirm that the natural person acted based onits own spirit or, to be fairer and more precise, with a spirit different from that of the legalentity.And here we return to the protocols but to clarify that they should not be confused with thecrime prevention model of Law 30424, because although both are based on a risk managementsystem, the law that regulates the administrative liability of the legal person generatesresponsibilities and grants rights to legal persons only for certain crimes5.I close and summarize this commentary by warning that the protocols for restarting commercialoperations should not be neglected, they should be subject to permanent and periodic controland updating, this includes training and awareness talks so that they can be internalized in thepersonnel, only in this way can minimize or even avoid the commission of crimes, this withoutprejudice to the use that can be given in the criminal investigation to defend the interests ofother members of the organization and of the Legal Entity itself.
1 MEINI, Iván. Criminal liability of the Company’s management bodies for omissive behavior.El deber de garante del empresario frente a los hechos cometidos por sus subordinados. PUCPLaw School Journal. 1999. P. 9002 Proscription of strict liability (numeral VII of the Preliminary Title of the Criminal Code)3 The example clearly refers to a specialized company that meets all the technical and marketconditions to have no reason to doubt its good performance.4 MAINI,Iván, Responsabilidad Penal del Empresario por los hechos cometidos por sussubordinados- Editorial Tirant lo Blanc. Valencia. 2003. 369-370.5 Generic active bribery, Specific bribery, Collusion, Influence peddling, Money laundering,Illegal mining, Organized crime and Terrorism