The judge of the National High Court Manuel García-Castellón, who is instructing the Punic case, has agreed to the provisional dismissal of the proceedings against Indra as a legal entity in separate piece number nine against the criteria that the Anti-Corruption Prosecutor’s Office held. In that piece the alleged illegal financing of the PP of Madrid through the diversion of funds from the Computing and Communication Agency (ICM) of the Community of Madrid through said company.
Indra’s number two, a survivor charged in Punic and under suspicion of Operation Lezo
In an order dated March 23, the magistrate agrees to this measure as “it has not resulted in the existence of a serious breach of the control, surveillance or supervision duties on the part of the entity, regarding the performance of its employees and also , having verified the adoption and execution, before the commission of the crime, of an effective prevention model supervised by an autonomous body “.
Indra had previously requested the dismissal on understanding that, once all the necessary and pertinent procedures had been carried out, it had been proven that the behaviors allegedly carried out by some of its professionals could not be attributed to the legal person as a whole, in addition to the fact that the company had a compliance model normative effectively implemented.
This decision by García-Castellón comes against the criteria of the Anticorruption Prosecutor’s Office, which had opposed the request for dismissal, arguing that it was not the appropriate procedural moment, given that there were “important” steps to be taken.
In his order, the magistrate considers that it is not appropriate to carry out the procedures requested by the Public Ministry and understands that the investigation of this piece is “already exhausted”, as the Fourth Section of the Chamber of the Criminal in a car from February 17.
In that order, the Chamber rejected the proceedings requested by Anti-Corruption in the framework of the piece nine of Púnica and urged to conclude the investigation “which has already been extended in time since the beginning of 2014.”
“This court considers that after a very long investigation that began more than seven years ago, the proceedings in question should not delay the conclusion of what they call separate piece number nine any longer,” said the Chamber.
Effective compliance system
The instructor also points out in his resolution that the documentation provided so far shows that Indra had implemented, at the time of the events that are the subject of this separate piece, an effective prevention and compliance system, without having provided by the prosecutor elements of charge that allow to conclude the existence of a structural defect in the prevention, surveillance and supervision model in force in the company.
“The statement of the Public Ministry cannot be shared, when it points out that the mere existence of a regulatory compliance program is only a very vague indication of the possible exoneration provided for in the Penal Code,” he explains, adding that the Prosecutor’s Office circular General 1/2016 mentions the importance of assessing the existence of an implanted “culture of compliance”, as a basis for criminal responsibility.
In this case, continues the magistrate, the documentation provided shows that the regulatory prevention mechanisms implemented in the company made it possible to locate, identify and eradicate those responsible for the apparently criminal acts.
It points out that the existence of a regulatory compliance system cannot be measured from the requirement of “absolute effectiveness”, so that its mere existence prevents the appearance of any crime, but from the capacity of the corporate entity to prevent, and where appropriate , react effectively to the commission of the crime.
In the present case, it continues, Indra’s response to the apparently criminal acts “was forceful, as can be seen from the documentation presented, carrying out a detailed analysis of the causes that motivated the actions of the alleged perpetrators, and proceeding with their dismissal. “.
And it adds that it can be concluded that the program implemented in the corporate entity, according to an evaluation of the same “ex post facto”, worked, and that the existing system in the company whose implementation was already recognized in files 136/20 and 137 / 20 of May 7, 2020, it was effective to fulfill the intended purpose.
“But the fact is that, furthermore, once the investigation phase has been exhausted and all the procedures aimed at specifying the alleged responsibility of the legal entity Indra have been carried out, the accusation has not provided evidence that would allow us to deduce, with the seriousness that this procedural moment demands, the concurrence of a serious breach of the duties of supervision by the legal entity “, concludes the judge.
The study and assessment of the evidence provided, he adds, allows us to appreciate the existence of behaviors attributable to certain natural persons, former employees of the entity, who, despite the existing measures in the corporation, and bypassing the prevention mechanisms implemented, could have delinquent.
Now, it concludes, these same indications do not allow to prove the concurrence of all the elements that allow to substantiate the criminal responsibility of the legal entity Indra.
It should be remembered that within the framework of this same piece, the Fourth Section of the Criminal Chamber of the National Court confirmed the dismissal of the proceedings against the former president of Indra Javier Monzón. The decision of the Chamber came after García-Castellón agreed on the file for Monzón in mid-January, and after the appeal of both the Anti-Corruption Prosecutor’s Office and the popular accusation Adade.