The effectiveness of internal investigations in criminal compliance at an event organized by Gericó Associates

Debate on legal privilege, the figure of the whistleblower, and other criminal compliance issues at the presentation of the book “Internal investigations in criminal compliance. Key factors for its effectiveness”

The book “Internal investigations in criminal compliance. Factores clave para su eficacia”, published by Thomson Reuters Aranzadi, has been presented at the headquarters of the General Council of Spanish Bar Associations in an event organized by our consulting firm, Gericó Associates.

The event was attended by some of the authors of the book: Miquel Fortuny, managing partner of Fortuny Legal; Ignacio Esteban, partner at Garrigues; Jordi Gimeno, professor and vice-dean of Research and Internationalization at UNED; Helena Prieto, partner at Garrigues; and María Ángeles Villegas, magistrate, and coordinator of the Technical Office of the Criminal Division of the Supreme Court.

Criminal compliance, under debate

In relation to the fundamental rights of workers, Ignacio Esteban stated that “the labor law framework cannot be ignored even if the internal investigation is in the area of compliance (…). On occasions, an investigation has been fabulous in terms of its objectives, but it becomes ineffective because it has violated the fundamental rights of the workers who are the object of the investigation“.

For his part, Miquel Fortuny stated that “internal corporate investigations are highly complex and give rise to many doubts“. For this reason, the work they have written focuses on the “core issues that must be taken into account, such as obtaining and providing evidence, the employee’s right against self-incrimination, conflicts of interest, the company’s nemo tenetur or right to remain silent, the Falciani doctrine and the legal privilege or protection of communications between lawyer and client,” he added.

For his part, Jordi Gimeno added that this book “can become a reference work for investigations, as it is very complete and provides solutions for the present and even for lege ferenda or future legislation. In reference to whether legal privilege is applicable in Spain, Helena Prieto explained that “nemo tenetur and professional secrecy are existing tools in our regulations, which allow us to approach legal privilege and work-product privilege (the protection of materials of the opposing party’s lawyer before litigation in the US civil procedure), but there is still a long way to go and develop”. She also stated that “our accusatory model, without the Public Prosecutor’s Office having a monopoly on the investigation, limits the full introduction of comparative law institutions and innovations in the field of internal corporate investigations”.

Finally, María Ángeles Villegas assured that “the whistleblower is going to become an essential figure for the prosecution of crimes, but it is essential to offer him a real shield“. The magistrate considers that “the important thing about the complaints is the truth, not the underlying motive, since the important thing is the public interest at stake”.

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