Anti-Corruption 2023 Comparisons

Colombia has endorsed the following anti-corruption conventions:

• the United Nations Convention against Corruption – UNODC;
• Inter-American Convention Against Corruption;
• OECD Anti-Bribery Convention.

The national legislation anti-corruption is mainly found in Law 1474 of 2014 (the “Anti-Corruption Statute”). In this Statute there are measures of a criminal, contractual and administrative nature and from public policy intended to fight this deplorable phenomenon. Regarding offences related to corruption, this Law amends or adds provisions to the Criminal Code (Law 599 of 2000): therefore, all criminal conduct, including that referred to, can be consulted in the Code.

Law 1778 of 2016 established rules on the administrative accountability of legal persons for acts of corruption. The Law enables Superintendency of Corporations in order to investigate and administratively sanction these offences.

Finally, Law 2195 of 2022 was established whereby action was taken with regard to transparency, prevention and the fight against corruption; and other provisions are established where administrative, criminal and public policy are implemented to complement the Anti-Corruption Statute.

The United Nations Office on Drugs and Crime and the Office of the Attorney General drafted an investigative guide for the offences related to corruption. The document sets out the context of the corruption phenomenon and several investigative and procedural instruments were developed to assist the attorney in prosecuting these offences. It is worth stating that the guide is not a standard, and it is not legally binding for the investigation and prosecution of this type of offences.

On the other hand, precedent of the Supreme Court of Justice – Criminal Appellate Division grants valuable tools for the interpretation of the different criminal definitions. For example, the Court has established that for offences against public administration, interpretation should be made from the civil service perspective and its relationship with the offence and not from the “formal” quality that the active subject (individual or public official) may hold.

As indicated in 1.2 National Legislation, the Law 2195 of 2022 was issued. This Law intends to implement provisions for preventing corruption through strengthening in the structuring and co-ordination of public institutions, promoting the legality culture and creating effective regulatory mechanisms for reparation for damages caused by acts of corruption.

In Colombia there are four types of bribery.

• Active bribery: public official prosecuted for accepting or receiving any bribe in return for delaying or omitting an activity in their position.
• Passive bribery: public official prosecuted for accepting or receiving any bribe in return for making an activity in their position.
• Bribery by giving or offering: the individual is prosecuted for offering money to a public official for delaying, omitting or making an activity in their position. 
• Tacit bribery: the individual is prosecuted for bribing a public official on an issue of interest to the individual; the public official who accepts the bribe is prosecuted.

Article 20 of the criminal law establishes that public officials are “members of public corporation, employees and State workers and their decentralised territorial entities and by services, for these purposes the public officials are members of public force, individuals that exercise public functions permanently or temporarily, officers and workers of Banco de la República, the members of the National Citizens Commission for the Fight against Corruption”.

Every particular case should involve analysis of whether the public functions of the active individual are related to the bribe purpose. It should be considered whether the bribe offered has the potential of corrupting the public official.

Finally, it should be indicated that Article 433 of the criminal law prosecutes the transactional bribe.

Articles 411 and 411-A of the criminal law prosecutes influence-peddling. The first provision is directed against a public official who uses the influence derived from their position or tasks to obtain benefits from a public official for their benefit or for a third party. The second prosecutes individuals who influence a public official in order to obtain economic benefits. In the latter case, this means that if the individual seeks non-economic benefits, the conduct is not punishable.

Influence-peddling by foreign public officials is not considered as criminal in Colombia. Nevertheless, those acts can be administratively prosecuted by the Superintendency of Corporations under Law 1778 of 2016.

Document forgery is established in Section III of Header IX Criminal Code. Depending on the entity’s nature, the forgery can be public or private. Using forged documents to obtain an administrative or legal decision is a procedural violation.

Section I of Header XV Criminal Code sets out the different modes of embezzlement.

• Embezzlement by appropriation: consists in the public official, by virtue of their role, seizing government or individual property entrusted for management or possession.
• Embezzlement by usage: consists in the public official improperly using government or individual property given to them by virtue of their role.
• Embezzlement by different official application: this mode occurs when the public official uses government or individual property given to them by virtue of their role for a different use than established.
• Culpable embezzlement: consists in the public official by negligence allowing loss and damage on government or individual property entrusted to them by virtue of their role.

Commission of an offence can occur through an intermediary. The perpetrator is considered as anyone who uses a third party as an instrument for the commission of an offence, provided that at least one of the following three conditions occurs:

• the person used as an instrument should act under error;
• the person used as an instrument is immune from prosecution; or
• an organised power apparatus was used.

In addition, the actual perpetrator is criminally accountable for coercing the perpetrator as well as those who help to commit the offence, no matter if they are not a public official.

The statutory limitation is estimated in accordance with the maximum sentence for the offence. The limitation starts from the date the events occurred. Where the defendant is a public official, the limitation will be increased by half; the limitation will not exceed 20 years.

It should be mentioned that if a charge is allocated, the limitation is suspended and will be counted by half. When judgment is established and an appeal for cassation is filed, the limitation will be suspended for five years.

The Colombian criminal law governs nationwide. However, it can govern abroad in the following circumstances.

• There are offences against national security and the existence of the state, against the constitutional system, against the social economic order, or of national currency counterfeiting, terrorism financing, and resources management for terrorism, even if there were acquittal or conviction abroad of a sentence more minor than established in Colombian Law.
• The person serving the Colombian State has immunity acknowledged by international law and commits an offence abroad.
• The person serving the Colombian State does not have immunity and has not been judged abroad for that offence.
• The citizen, in either of the situations mentioned above, is in Colombia after committing an offence abroad, when Colombian criminal law has convicted them with a term of imprisonment whose minimum is not less than two years and they have not been judged abroad.

In Colombia there is no criminal accountability for a legal person, but that does not mean there are no consequences. Article 91 of Law 906 of 2004 (Criminal Procedure Code) establishes suspension and liquidation of the legal person when used for punishable acts.

Defences for this type of offence depend on the circumstances of the case. Usually, what is sought is to discredit the materiality of the conduct, in other words, prove that the defendant acted according to law. Another defence is to distort the defendant’s deceit by establishing that the offender did not have knowledge about the offence: for instance, the offender did not know that the public funds were lost. An individual with public tasks might have a viable defence by proving that their official tasks are not linked with the alleged offence.

As indicated above, there are no specific defences for this type of offences, as they depend on the circumstances of the case. To this effect, it depends on the factual framework and the evidence obtained in order to discredit the defences. Nevertheless, there are no legal constraints for not having a defence.

Colombian criminal law has the principle of detriment as limit; therefore, the criminal law is not relevant when there is no real damage or real danger to the public administration. This can be seen when a public official appropriates  property of little value. For instance:

• taking stationery items;
• breaking a good of little value through minimal negligence and the public official fixes it; or
• accepting a socially acceptable gift which has no potential to corrupt (a candy, a coffee, a pencil, etc).

There is no industry exempt from committing this type of offences.

Law 906 of 2004 has the legal concept of discretionary principle, which can be applied in the following cases:

• when the defendant until before starting the trial commits to serve as witness against the other defendants, under total or partial immunity; and
• when the perpetrator or participant in bribery makes the relevant denunciation which acts as the origin of the criminal investigation, providing useful evidence for the trial and serving as witness, as long as they voluntarily and comprehensively repair the damage caused.

Penalties are established in the criminal code. For this type of offences, the penalties are mainly prison and a fine.

For bribery by appropriation, the penalties vary between 64 and 540 months of imprisonment and a fine up to 50.000 statutory monthly minimum wage depending on the amount. In case of bribery, the penalties are from 48 to 144 months of imprisonment and a fine from 66.66 to 150 statutory monthly minimum wage depending on modality.

The penalties for all offences have a scope for mobility. The Criminal Code establishes some guidelines based on proportionality, reasonableness, damage caused, severity of deceit or guilt for establishing a fair penalty. In accordance with Law 2197 of 2022, guidelines establish the penalty if the defendant has been convicted of a fraudulent offence within the previous 60 months.

Law 1778 of 2016 establishes that the Superintendency of Corporations has liability for promoting the implementation of transparency and business ethics programmes that include mechanisms and standards for internal audits and the prevention of transnational bribery.

Through external circular letter, the Superintendency of Corporations issued a “Guide oriented on implementing compliance programmes for preventing offences established in Article 2 of Law 1778 of 2016”. It established:

• liability of implementing compliance programmes based on:
1. identification and segmentation of risks;
2. risks measurement;
3. development of policies in accordance with risks;
4. policies assessment; and
5. upgrading of policies;
• implementation of reporting channels;
• personnel training;
• protection for employees who decide not to participate in any transnational bribery offence; and
• assignment of specific liabilities to employees exposed to transnational bribery.

The infringement of those liabilities in no way constitutes an offence. However, a company can be subjected to financial penalties by the Superintendency of Corporations. If an offence of transnational bribery is committed and the company’s directors know about the situation and do not report it, they will be accountable for favouring which has a penalty ranging from 16 to 72 months of imprisonment.

Lobbying activities are not specially regulated by domestic law. However, when doing these activities, the crime regulations should be observed in order to avoiding committing the offences of influence-peddling or bribery.

Article 67 of the Criminal Procedure Code establishes the liability of reporting, meaning every person should report to the authorities about any known offences that should be investigated.

Constitutional Article 250 establishes the liability of the Attorney for protecting victims and witnesses. The Criminal Procedure Code allows for the imposition of preventive custody when there is risk to the victim or witnesses. Decree 63 of 2007 established the witness protection law in criminal prosecution. This allows implementation of the following measures:

• restraining of the risks;
• temporary or permanent relocation of the witness inside or outside the country;
• change of identity;
• modification of physical features; and
• other necessary measures for protecting their life, as well as physical, psychological, and working safety.

As a general rule, there are no incentives for whistle-blowers in cases of bribery or corruption, excepting when there are rewards programmes from authorities for prosecution of criminal offences.

The relevant provisions for making reports of irregularities are established in the Criminal Procedure Code and Criminal Code.

Enforcement is implemented administratively and criminally:

• in criminal jurisdiction through criminal prosecutions established in Law 600 of 2000, and 906 of 2004; and
• administratively, laws are applied under administrative, disciplinary and fiscal responsibility.

The enforcement bodies are as follows.

• Attorney General’s Office: entity in charge of investigating and prosecuting the commission of offences.
• General Procurator of the Nation: investigates, prosecutes and disciplines public officials.
• Comptroller General of the Republic: in charge of carrying out fiscal accountability proceedings.
• Superintendency of Corporations: carries out inspections and monitors companies that should implement compliance programmes for the prevention of transnational bribery.
• General Auditing Office: in charge of surveillance of fiscal management.

Every entity has investigation powers for fulfilling their constitutional and legal liabilities. If necessary, they can impose requirements on companies for collecting information/documentation, verification, and questioning, among other activities. 

Every entity has the option of offering incentives for those who report, compensate, and serve as witness, in order to solve corruption offences. These incentives might be reduction of the penalty until partial or total immunity from prosecution.

The Attorney General’s Office is an authority belonging to the judicial branch. However, it cannot make substantive decisions regarding criminal liability, as this is within the jurisdiction of criminal judges. The other entities have an administrative nature.

The current jurisprudence relevant to corruption offences is from 25 May 2022 under file number 54153. In this proceeding a local attorney from Tumaco (Nariño) was investigated for committing bribery and breach of public duty. According to the judgment, the attorney received money for: (i) granting release to people captured for influence-peddling, (ii) accusing defendants of a lesser offence, and (iii) giving a money seizure. The court established that the reception of bribes can be proven through evidence; when analysing the convergence of the indicated offences, it could be inferred that the public official received bribes.

Recently, a former congressman was convicted for bribing a judge of the Supreme Court of Justice and sentenced to 72 months of imprisonment. For the same acts a former judge bribed was convicted and sentenced to 116 months and 12 days of imprisonment and a fine of 94.48 statutory monthly minimum wage.

As indicated in earlier sections, criminal accountability is exclusive to natural persons without limiting reference to Article 91 of the Criminal Procedure Code that establishes suspension of legal persons used for committing an offence. The penalty for this type of offence for natural persons is a term of imprisonment, with no possibility of penal alternatives. The offences have penalties of up to 50,000 statutory monthly minimum wage. In any case, if the criminal behaviour affects national assets, the defendant will be subject to permanent disqualification from exercising public tasks or obtaining state contracts.

In 2020, the OECD carried out a report named “Exporting Corruption” where Colombia’s situation was assessed regarding the fight against corruption. In that assessment, although there was recognition of progress in inter-institutional co-operation and the efforts of the Attorney General’s Office for securing convictions for these offences, the truth is that the assessment was not positive. The OECD found weaknesses in the completeness of the information as there are no databases with figures regarding transnational bribery; the court and administrative rulings are issued too late; there are no public records of the final recipients, effective or real, of the company, despite being established by Law 2010 of 2019.

Combining the above findings, the report makes some suggestions:

• improvement of information systems;
• improvement of issuing time for court and administrative rulings;
• establishing legislation for improving the protection of natural and legal persons that report acts of corruption; and
• increasing public discussion about the criminal accountability of legal persons.

It is likely that there will be changes to the anti-corruption legislation. Unfortunately, this criminal phenomenon is the one that has affected the Colombian community the most; acts of corruption exposed by the media cause uneasiness in public opinion. The Colombian legislative culture is characterised by using criminal law to fight acts of criminality, usually with more repressive measures. Therefore, it is likely that new criminal definitions will be established or benefits might be limited for this type of offences.