The area of the Criminal Law Corporate has been gaining an increasingly large in the legal field and in the business agenda. On the one hand, Several years ago, the regulation on the prevention, investigation and prosecution of the crime business. has increased, but also the cases of corruption and leaps to the penal field are growing.
Odebrecht is the case most relevant to enterprise corruption recently. But it has not been the only one. In Colombia, other business processes have crossed the administrative boundaries, and have come to criminal matters, for example, the most recent complaints to the Prosecutor for the scam that made the previous minister of Transport, Guillermo Reyes, against officers and members of the boards of Ultra-Air, and the Living Air.
For its part, Andrés Jiménez, member of Riveros Bazzani Lawyers, while in Colombia there is criminal liability of legal persons, exposure to criminal matters of those who are part of these companies –as members of boards of directors, legal representatives, and employees– is growing.
This has meant that at times the companies have to contemplate the criminal law as part of their assessments of risk, but also that the criminal lawyer to understand and prepare in finance, accounting, themes, corporate and commercial to speak the same language as their customers.. “The accession of Colombia to the Oecd had an impact on the issuance of new laws as the penalty for evasion of taxes, laws against transnational bribery, corruption, private and unfair administration, and forced the real sector to implement programmes against money laundering,” says Jimenez.
For him, the Criminal Law the tax is the area that has shown the greatest growth. He explains that the Dian adopted an approach to the collection of taxes through the office of the Prosecutor General of the Nation. “The prosecuting body was created a specialized unit to serve only this type of crime. This was already happening with the omission of a withholding agent to those who do not pay VAT, excise tax, and withholding taxes. On the other hand, the recent tax reforms have focused on phenomena such as the omission of a statement of assets and the inclusion of passive non-existent.. The first event has to do with large estates in the outside is not declared in Colombia. The second event is related to, for example, with the purchase of fake invoices or using suppliers dummy to simulate operations that decrease the income of a company. This means that companies need to have a lot more rigour in the management of their taxes. since poor handling of tax can lead to a process in the office of the Prosecutor,” says Jimenez.
As pointed out by Tutasaura, in addition to the tax, other fronts open space in this practice, for example, the Economic Criminal Law, which covers crimes such as fraud, embezzlement, falsification of documents and other acts that directly affect the financial stability and the integrity of commercial transactions.
Also, Compliance and Crime Prevention (compliance). It comes to the implementation of compliance programs, essential to prevent corporate crimes and to mitigate its effects. “It is recommended that organizations adopt policies and procedures that reduce the risk or effects of illegal activities.” explains Tutasaura.
In addition, it highlights the Criminal Law, Environmental includes an increase in the investigation and prosecution of environmental crimes that involve companies, such as pollution, illegal exploitation of natural resources and the omission of environmental regulations; just like the Criminal Law of Intellectual Property, that it has reached a key role in the economy for the crimes related to the violation of copyrights, trademarks, and patents.
In Colombia, there is a particular fact, that implies additional insight in this field: the processes that are underway in the JEP, “who has not the faculty of charged individuals, but their decisions itself give rise to the ordinary courts to start the investigation of the case. An example of this is the offence of financing of paramilitary groups, which is an offence that, on the occasion of the investigations ordered by the JEP. and that has initiated the public Prosecutor's office, has shown a highly significant increase. Many individuals will be called to give explanations to the Prosecutor's office”, explains Fabio Humar, director in charge of the practice of criminal law and criminal corporate Gómez Pinzón.
In turn, Jimenez believes that if you mention a company in the framework of the JEP can have two impacts. The first, with their counterparts in Colombia or abroad, since in the last few years in the commercial contracts has increased the inclusion of clauses with regard to business and human rights, which, at least, put the company referred to give explanations about why a third-party points out in Court as the JEP -. And the second is legal: the JEP is not competent to investigate companies or its members, which shall be the office of the Prosecutor General of the Nation.in charge of advancing the investigation and prosecution of the alleged conduct. “This represents a major challenge for businesses, because in occasions the statements made do not count with the support of evidence, seeking benefits and, in others, it is simply the recognition of extortion to the business, but the present as if it were funding. This is a challenge reputational, legal and judicial, which is not easy to understand and handle”, she adds.
But Colombia still has a way to go in this field, as pointed out by Alexander Mejia, a member of CMM Attorneys, advances have been mainly in strengthening the legislation, but need to invest resources, provide training to public officials, to broaden the base of actors –judges, prosecutors, researchers, invest in tools for processing and analysis of data for research, robust and with better prospects of success than the current one. “Failure to comply with these objectives in order to produce real breakthroughs in this area”, he concludes.
