This article first appeared in El Deber on August 21, 2021.
Once again the legislature is trying to incorporate the criminal liability of legal persons (PJ’s) in the Penal Code. The draft Law for the Strengthening of the Fight against Corruption presents a criminal regime against companies with a narrower scope than that of previous versions. Thus, according to the bill, JPs will only be criminally charged if they are involved in the commission of certain corruption crimes, such as passive bribery, breach of contracts with the State, illicit enrichment of individuals, money laundering, among others.
This insistence on the criminal prosecution of companies is not a mania of the current government, it comes from an international trend, which leaving aside the obsolete discussion of whether companies have souls or not, has opted to assimilate the guilt based on risk and the consequence that each organization is the guarantor of its deeds.
However, the draft law (PL) has shortcomings that must be corrected before its enactment into law. Thus, the conditions for investigating and eventually sanctioning an AP are very excessive. According to the PL, any person with decision-making or management power in a company could expose it to a criminal investigation when it commits one of the crimes mentioned and this crime is understood to have been committed for the benefit of the AP, or when it is used for the commission of the crime. This means that a wide range of individuals may put the company in which they work at risk with their criminal conduct, even if they commit the offenses by manipulating the company’s resources or organization to cover up for it.
In foreign jurisdictions, the criminal prosecution of the PJ’s is triggered when the crime committed is for the benefit of the PJ and when it is proven that the individual circumvented the preventive control mechanisms implemented in advance by the same company; or when the PJ did not implement any control mechanism and the crime emerged from its organization without any shortcut. In these cases also, the internal adoption of crime prevention models in the company (criminal compliance) is presented as a ground for criminal exoneration, when the PJ proves that it implemented them before the crime. In other words, corporate compliance would fulfill the function of preventing risky activities of its officers or directors from causing criminal damage to the company. But unfortunately, none of these conditions is recognized in the Bolivian project.
In addition, the lack of a specific procedure to investigate JPs and for them to exercise their jurisdictional guarantees before a process leads to thinking that if this Law is approved as it is, its provisions will only serve to extort or to remain as regulatory ornaments, as it happens with many criminal regulations against JPs. In a similar situation is the administrative sanctioning system in charge of the Authority for the Inspection and Control of Companies and other entities, a theoretical alternative to the criminal prosecution of judicial officers, but which in practice is incapable of conducting an effective procedure that also complies with all the constitutional guarantees for those under investigation.
Leaving aside the obsolete legal discussion that rejects a system of the criminal indictment of PJ’s, a reform of this nature can be justified to the extent that internationally more and more corporations demand to associate or invest only with companies that have solid criminal compliance systems. Therefore, a company that lacks these systems, and whose legislation lacks a criminal regulation against corporate criminal risks, will lack important competitive advantages. Therefore, the criminal regulation of companies is necessary to protect against crime, but without sacrificing the competitiveness of the national economy.