On 8 September 2016 we published an eAlert regarding the amendment to the Act on Criminal Liability of Legal Entities, which contains a new defence for legal entities. Under the amendment a legal entity will be excluded from criminal liability provided it can prove it has “undertaken all the effort that can be reasonably required” to prevent a crime from being committed and the crime was committed by a governing body, an executive of a legal entity or an employee while exercising his/her tasks.
On 29 November 2016 the Supreme State Prosecutor Office made its guideline (the “Guideline”) for advising state prosecutors on how to approach this new defence available to the public.
According to the Guideline, the necessary measures which a legal entity should adopt in order to be excluded from criminal liability should be assessed on a case-by-case basis and consider the type of legal entity under question. This will especially be the case with respect to persons who commit a crime that would be imputable to a legal entity, and further with respect to possible crimes which might be committed by a legal entity in the course of its business activity.
The Guideline also states that one of the factors which should be taken into account by state prosecutors during the investigation is the corporate culture, especially the corporate governance of each particular company. State prosecutors should focus on the size of a company, number of its employees, subject-matter of its business activity, its previous criminal history (if any) etc.
In addition, the Guideline lists the possible measures which should be adopted by legal entities, such as internal regulations, educational events (lectures, workshops), ethical codes, anti-bribery and corruption programmes, corporate ombudsman. Obviously, it is not necessary for a legal entity to adopt all of these measures. However, it is essential to implement the measures that are reasonably required and control and assess the results.
We recommend companies should adopt or modify their compliance programmes and other measures to reflect the abovementioned issues. In particular, legal entities should do their best to design the programmes and measures for their specific type of legal entity.
If you have any questions related to the Guideline or any other matter concerning the criminal liability of legal entities, please don’t hesitate to get in touch with one of our contacts.