Sterilizing the goose that lays the golden eggs

by | Jan 8, 2015 | Articles | 0 comments

It is no longer a novelty to see how the State imposes more and more costs to companies and I am not sure if the justification in the Risk Theory has anything to do with it, could it be that the State, in view of its inefficiency in the fight against criminality, is trying to transfer its responsibility?

Today, certain types of companies are obliged to include in their payrolls Compliance Officers for the prevention of Money Laundering and Terrorism Financing, to implement costly processes of environmental control and Controlled Inputs, to assume serious criminal responsibilities for mere administrative infractions, such as the Health and Safety at Work Law.

As the issue does not cease, last December 3rd, 2013 the Executive Branch has proposed to the Legislative a Bill with urgency character, by means of which it intends to regulate the autonomous liability of legal persons in corruption crimes, that is to say and in simple terms, the direct sanction[1] to the company, without the need to include in the criminal process any natural person, unless the evidence of the case involves him/her.

Beyond the doctrinal discussions of criminal type that may exist for this reason and to make it clear, I am in favor of including the criminal liability of the legal person in our legal system, what I question of this project is the motivation that is intended to incorporate it, because I do not find in its statement of reasons an adequate development of criminal policy that validates it, only a mere justification to be full members of an International Organization, this at the cost and account -once again- of the legal person itself.

It is true that this bill, under the pretext of seeking to be part of the Organization for Economic Cooperation and Development, immediately after proposing the autonomous responsibility of the legal person, intends to condition its impunity with the implementation of a model of prevention of anti-corruption policies. Brilliant formula, isn’t it; and tomorrow we will have prevention models for the rest of the crimes?

Doesn’t the State realize that every time it imposes such a duty on companies, it somehow increases its cost? This will be even more noticeable in smaller companies.
It would be different if it were a real will of the company and not the mere fulfillment of an imposed duty, or do you really believe that a criminal network dedicated to this type of crime will not be able to evade these limitations, of course they will, it will cost them a little more money to implement their prevention model, but I am sure they will succeed.

Enough of incorporating new unnecessary criminal types to our Code and indiscriminately increasing penalties without an adequate technical criterion, the penal system is not a catch-all where any social problem can fit, experience has already shown that criminalizing or overcriminalization does not reduce the crime rate.

I do not doubt the good intention of the Executive, but I do not believe that the motivation exposed resists an adequate analysis of criminal policy, I agree with the need to begin to impute autonomous responsibility to legal persons and thus dismantle so many “ghost” companies that are created for the occasion and thus hide the identity of criminals, but I do not think this is the ideal way to do it, in any case let’s wait for the debate in Congress to see what happens.

1] Such as the imposition of fines, dissolution, closure of premises, cancellation of licenses, concessions, rights and others, suspension of social activities, temporary or definitive prohibition to carry out in the future activities of the same kind or nature and temporary suspension to contract with the State.