Corruption is a figure that, despite being socially criticized, has existed since the beginning of civilization. It is not possible to point to a single event in history as the trigger that originates the figure of corruption.
For corrupt acts such as theft and expropriation to achieve their expansionism, are seen from the ancient civilizations, (Mesopotamia, Persia, Egypt, Greece, etc). This was pointed out by Bertlot Brecht, in his book on Julius Caesar, when he says “The clothes of their governors were full of pockets.”
However, it was not until about 25 years ago, with the creation of the International Transparency Organization (TI), that the issue became part of the public debate. Subsequently, other institutions of civil society, both public and private, began to offer measures to confront the problem, allowing the emergence of the Inter-American Convention against Corruption of the Organization of American States (OAS); the first instrument of its kind on a global scale, which sought the agreement of countries to improve prevention and collaboration mechanisms between member states in America.
According to the United Nations, about a trillion dollars in bribes are paid each year, and it is estimated that 2.6 trillion dollars are stolen annually through acts of corruption, a sum that is equivalent to more than 5% of world GDP. Corruption and its derivatives are serious crimes that slow down economic and social development in all societies.
Despite this, even with the efforts that have been made both at the international and national levels, the problem persists. What allows us to conclude that the obstacle that has prevented the total control of corrupt acts is their impunity.
Particularly in Latin America, “the great institutional problem in Latin America is the lack of‘ checks and balances ’(control and balance) mechanisms,” affirms Raúl Ferro, of the Center for the Opening and Development of Latin America (CADAL).
Although at the political level in Latin America there are more than a dozen former presidents in jail, fugitives, involved in acts of corruption or dismissed, corruption is not limited to the governmental sphere; rather, it is a phenomenon that occurs in both the public and private spheres.
The phenomenon of corruption has become a transnational problem, led by the active participation of companies as their corrupting agents. This has required the modification of the legal system of various countries around the world; and Costa Rica is not the exception.
Since 2012, Costa Rica began the process for its integration into the Organization for Economic Cooperation and Development (“OECD”). To carry out this process, the OECD requires the country to carry out certain efforts in the implementation of instruments and practices by the different actors of the Costa Rican public management.
On May 11th, 2017, Costa Rica joined the OECD Convention to Combat Bribery of Foreign Public Servants in International Business Transactions – the only international anti-corruption instrument that focuses on the “offering” side of corruption.
Said adhesion gave rise to recommendations by the OECD working group, through which, the draft law number 21,248 “Law of Liability of Legal Persons on Domestic Bribery, Transnational Bribery and other Crimes” (hereinafter the “Law”), approved in the second debate on June 6th of the current year.
The Law opens the possibility of criminally holding legal persons (national or foreign) and other business figures (such as trusts, associations and foundations), who commit crimes of domestic bribery or transnational bribery, establishing a regulation according to the most high international standards in the matter. Similarly, it sanctions parent companies for actions of their subsidiaries and affiliates.
The foregoing, without prejudice to the individual criminal responsibility of natural persons for the commission of any of the crimes mentioned under the pre-existing regulatory bodies. In other words, the criminal liability of legal persons will be independent from the criminal liability of natural persons.
With regard to penalties, all crimes defined in the Law will be subject to a penalty of one thousand to ten thousand base salaries, with the exception of small and medium-sized legal entities, who will be fined thirty to two hundred base salaries.
Likewise, if the crime is related to an administrative contracting procedure, the legal person responsible will be applied the previous fine or up to ten percent (10%) of the amount of its offer and also, disqualification from participate in public procurement procedures for ten years.
Other penalties would range from being disqualified from enjoying benefits or tax incentives or social security, for a period of three to ten years; until the total or partial cancellation of the operation or functioning permit and eventually, the dissolution of the legal entity, among others. Said penalties do not exclude eventual sanctions against public officials or individuals; Nor does it exclude the possibility of demanding responsibility for damages caused to the State.
One of the great and plausible novelties of the Law is that the penalties of legal persons may be reduced by up to 40% if they comply with a series of actions and parameters that will be classified as “extenuating circumstances”.
Among these stand out having independent compliance agents, having an effective anti-corruption program and reporting internal situations / infractions contrary to the Law and / or collaborating with the investigation.
The Law proposes the “Anti-Corruption Programs”, as the model of organization, crime prevention, management and control – and therefore facilitator for obtaining the previously mentioned mitigating factors.
The Anti-Corruption Programs must contain a series of minimum conditions, such as the establishment of protocols, codes of ethics, rules and procedures that prevent the commission of crimes; as well as the identification of activities, both habitual or sporadic, that increase the risk of committing crimes. Companies must also undergo an external audit of the company’s accounts to regulate their financial controls.
So far the country’s reaction has been positive and it has made relevant efforts in the promulgation of new regulations and providing assistance for the effective application of current laws on corruption.
The above is a sample of the country’s commitment to guarantee the implementation of the Action Plan on the commitments included in the OECD Roadmap. It is expected that the Costa Rican regulatory framework will continue to strengthen to adjust it to the highest standards on this matter. We are happily on the right track.