1. Bribery in the home (private to public)
1.1 The Legal Environment
Any public officer, as well as anyone who engages in corrupt practices with public officers, is subject to the Colombian Criminal Code.
In addition, the Colombian Congress passed the Anti-Bribery Statute in July 2011 in an effort to strengthen the prevention, investigation, and punishment processes against private and public corruption. Various parts of the Criminal Code, the Public Procurement Statute, the Health Law, and the Disciplinary Statute were revised as a result of this passage, imposing more severe penalties on organizations and persons who commit corruption-related offences. The Colombian Congress recently passed an amendment to this Act that broadens the applicability of anti-corruption rules to legal companies and their culpability for global bribery.
Domestic bribery (proper, improper, and by providing or offering), corruption, and transnational bribery are all defined in the Colombian Criminal Code.
1.2 What does bribery mean?
Bribery can be perpetrated by both public authorities and private citizens.
The Colombian Criminal Code forbids government officials from requesting, receiving, or accepting money or other benefits/gifts, or promises of benefits, for their own benefit or for the benefit of a third party, in order to carry out their duties (improper bribery), or to delay or omit something related to their duties, or to carry out an action that is in violation of their official duties (proper bribery).
The Colombian Criminal Code also prohibits anyone from giving or offering money or other illegal profit to a public servant for his or her own benefit or that of a third party in order to: I unduly influence the performance of duties that the public servant must comply with; (ii) to influence the servant to delay or omit the performance of his or her duties; or (iii) to influence the servant to delay or omit the performance of his or her duties.
1.3 What does it mean to be a public official?
Article 20 of the Colombian Criminal Code defines public servers as all members of public corporations and workers of the state, as well as all of its decentralized (by territory or services) institutions, for the purposes of criminal law. Members of the public force, officers of private entities performing permanent or temporary public functions, functionaries and employees of the Central Bank (Banco de la Republica), members of the Citizens National Commission for the Fight Against Corruption, and persons administering resources enshrined in Article 123 of the Constitution are all considered public servers.
1.4 Bribery’s Consequences
(a) For the Individuals Involved
The Colombian Criminal Code imposes penalties ranging from 6 to 12 years in prison, fines ranging from 66 to 150 minimum monthly legal wages (i.e., from approximately USD 13,000 to approximately USD 30,000 at rates in effect at the time of publication).
(b) For the business or legal entity
The Colombian Criminal Code establishes corporate accountability for bribery activities, and as a result, the company would be liable for all damages incurred as a result of the crime.
Aside from this, businesses may be subject to the following:
Penalties
The Superintendence of Companies can impose fines of up to 200,000 times the value of the minimum monthly legal salaries (about USD 40 million at current rates) on companies found guilty of engaging in or benefitting from corruption.
Their ability to contract with the government is revoked.
Companies and individuals seeking state contracts may be barred from bidding on public contracts if they have committed crimes against the government (such as bribery or other corrupt acts or omissions) or have been convicted of crimes involving the promotion, financing, or affiliation with illegal groups, crimes against humanity, or drug trafficking in Colombo.
With the exception of open stock corporations, this prohibition applies not just to enterprises whose stockholders have committed the aforementioned offenses, but also to their parent firms and subordinates. The period of debarment has been lengthened from five to twenty years.
Those who finance political campaigns are barred from doing business with the government.
Companies or individuals who contributed more than 2.5 percent of the maximum amount allowed by law to presidential, gubernatorial, or mayoral campaigns are prohibited from entering into contracts with government entities, including decentralized government entities, of the respective administrative level for which the candidate was elected and for the period for which the candidate was elected.
This prohibition also applies to current or soon-to-be-incorporated companies (other than open stock corporations) whose legal representatives or shareholders have directly or indirectly sponsored political campaigns.
Statutory auditors’ Liability
The Anti-Bribery Statute also includes a condition that would result in the cancellation of a public accountant’s license. According to the statute, a public accountant’s professional license will be revoked if, while functioning as a statutory auditor, the accountant fails to disclose corruption actions that he or she becomes aware of while performing his or her duties to the competent prosecutor or disciplinary authorities.
1.5 Contributions from politics
Political parties, groups, and candidates are prohibited from receiving economic contributions or donations in excess of the sums set by the National Electoral Council six months before to an election under Article 14 of Law 130 of 1994. In the case of corporate gifts, Law 130 of 1994 stipulates that the donation must be approved by at least 50% plus one of the board of directors, the general assembly of shareholders, or the board of trustees.
In the case of presidential campaigns, Law 996 of 2005 stipulates that individuals may fund up to 20% of a presidential campaign’s expenses, provided that individual contributions do not exceed 2% of the campaign’s top fixed sum. The Constitutional Court ruled that contributions made by entities to presidential candidates were not in conformity with the constitution.
1.6 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, among others)
Colombian law prohibit private and public parties from offering or delivering something of value to any Colombian government agency or official, even if there is no intent to defraud.
However, Supreme Court rulings have indicated that private parties may be able to extend very moderate and reasonable invitations to certain public officials in certain circumstances, as long as the moderate invitations do not have the potential to influence the officer to whom the invitation is extended.
It is best to extend these invitations only when no decision from these public officials is pending and the invitation is prepared with a very specific objective in mind. Any costly or luxurious hospitality offered or granted to Colombian state officials should be avoided at all costs.
In general, Colombian legislation lacks precise mandatory procedures for determining whether or not a sponsorship or hospitality granted or extended to a government agency or its officials is appropriate. The law that the Colombian government publishes on an annual basis, outlining the capped values that public officials will receive as per diems when traveling on official business, is a suitable reference in evaluating the worth of the invitations.
2. Bribery in the home (private to private)
2.1 The Legal Environment
The Colombian Criminal Code now includes the offense of private corruption, thanks to the Anti-Bribery Statute. Furthermore, the Colombian Criminal Code contains rules that provide for punishment when individuals engage in certain behaviors such as disloyal administration, insider trading, and bid manipulation in procurement contracting.
2.2 What is bribery in the private sector?
Any individual who, directly or indirectly, offers or grants gifts or any unjustified rewards to directors, administrators, employees, or consultants of any company, association, or non-profit corporation, for his or her own benefit or for the benefit of a third party, in detriment to the company, association, or non-profit corporation, is guilty of private bribery.
It can also be committed by the directors, administrators, employees, or consultants of any company, association, or non-profit corporation who receive, request, or accept gifts or any unjustified reward in the name of said company, association, or non-profit corporation, whether directly or indirectly.