Until a few years ago, speaking in Spain of internal investigations in companies was to refer to processes that were limited to the clarification of labor vicissitudes. At present, however, these mechanisms are on the way to becoming an essential instrument on which to support the fight against crime hidden behind complex corporate networks.
As in everything that has to do with criminal responsibility of legal persons, Spain is behind the countries of its environment. It is not until 2015, when the first reference to these procedures in the Penal Code is introduced. Article 31 quarter establishes as a possible attenuating circumstance, that the organization collaborates "in the investigation of the event, providing evidence […] that were new and decisive "to clarify the crime.
Aware that the forecast is somewhat lax (the attenuation is not guaranteed), the Attorney General of the State has wanted to strengthen the award to companies that collaborate, betting on total absolution. Thus, its Circular 1/2016 pointed out that the internal investigation should not only be an attenuating, but that "it can allow to reach the exemption of the penalty".
The permanence in his position of the employee investigated by a company may be incompatible with the inquiries, either because he continues to act in an irregular manner, or because he may destroy evidence. According to José Prieto (Baker McKenzie), the most common practice is the suspension of employment but not salary and the average duration of this situation is between 15 days and two months. For his part, for Helena Prieto (Garrigues) recommends, for safety, that companies apply to workers the guarantees that the criminal process, such as informing you of your rights or allowing the assistance of a lawyer.
The practical application of these processes of inquiryHowever, it is not easy. In the first place, because they mix two branches of the order that are governed by different (sometimes even opposed) principles, such as criminal and labor law. And, secondly, because, beyond the brushstroke contained in the Criminal Code, it is not regulated neither legally nor jurisprudentially how internal investigations fit into judicial processes.
The United States is the country that has deepened the role of these investigations in the criminal process, establishing a model that some jurists question as being too "aggressive". US prosecutors, who do direct the investigation, free prosecuting companies that accept full cooperation. In the most extreme cases, the agreement between the Office of the Prosecutor and the company (the deferred prosecution agreement or DPA), includes the obligation to conduct an internal investigation, directed by an external lawyer appointed by the prosecutor, but paid for by the company, and whose acting is not protected by professional secrecy.
The case of the USA
Through the DPA, American prosecutors reward companies that renounce two of their procedural prerogatives: the attorney privilege (or attorney-client privilege) and the work product privilege. The first shields the confidentiality of communications between the lawyer and the company. The second guarantees the secrecy of the material collected by and for the inquiries.
Faced with the internal investigations imposed on the North American model, the continental systems have opted for a system based on incentives. Although the difference is substantial, the Anglo-Saxon experience is very useful to anticipate some of the problems that will have to be solved in Spain in relation to these processes.
One of them, as explained by Garrigues' ex-public and partner, Helena Prieto, is to specify the procedural rights that assist the company so as not to be harmed by its own investigation. That is, if justice can require the company or its lawyer to disclose their findings even when they are detrimental to legal defense, where is their right to non-discrimination? "At this point the uncertainty is total because there is no regulation," says Prieto.
The situation becomes even more delicate if the investigation is left to an internal lawyer. In a ruling of 2010, the Court of Justice of the EU (CJEU) rejected that communications between the company and its own lawyers (those called in house) were covered by professional secrecy. Therefore, if it is detected that the facts are of a certain severity, Prieto recommends going to an external lawyer "to guarantee the maximum limit" of the protection of said prerogative.
Ignacio Sánchez, counsel for Hogan Lovells in Madrid, points out another benefit of outsourcing: credibility. "By putting research in the hands of people not contaminated by the company, you get more objectivity and better means of inquiry," he says.
The handling of the documentation resulting from the inquiries has already created many problems in other jurisdictions. In the United Kingdom, for example, the courts have had to decide whether the notes that the company representative takes in his interviews with the workers are covered by the work product privilege. In Germany, on the other hand, the conflict has arisen in the precision of who exactly is the client protected by the professional secret. As determined by the courts of the country, if the lawyer's contract is signed with the parent, the prerogative does not protect the subsidiaries.
The other great flank of doubts posed by the execution of an internal investigation has to do with the limits of the employer's actions and the rights that protect employees. From the labor perspective, the company has greater powers of inquiry, as a result of its capacity for organization and control than from a criminal perspective, where some actions may be excessively invasive. An example: the obligation to collaborate of the employee that contains Labor Law, may not be admissible if the company acts as a criminal investigator.
In this sense, José Prieto, partner of Laboral de Baker McKenzie, believes that the lack of regulation should be replaced with greater caution on the part of the company in its actions. "Does the employee have to be in front if their belongings are registered? Theoretically not, but it is recommendable, "he explains.
Access to the material contained in employees' computing devices is also particularly sensitive, since any irregularity could invalidate it as evidence. In this sense, jurisprudence requires that any intervention be proportional and that there be prior information to employees. "And always preserving the chain of custody so that there are no doubts about its authenticity", concludes Sanchez.