The Decline of the Exculpatory Effect of Criminal Compliance Programs?
Since the financial crisis of 2007, the corporate world recognized the necessity to manage risks related to criminal non-compliance as an integral part of business risk. This was encouraged by cross-border laws such as the UK Bribery Act of 2010, the Canadian Corruption of Foreign Public Officials Act (CFPOA), or the U.S. Foreign Corrupt Practices Act (FCPA). In this context, legal systems of Roman-Germanic origin incorporated regimes of autonomous criminal liability attribution for legal entities, for crimes committed within the scope of business activity, characterized by keeping organizations that effectively implemented Crime Prevention Models (Criminal Compliance Programs) exempt from criminal liability.
In Peru, 6 years have passed since the Corporate Criminal Liability Law (Law No. 30424) came into force. Many companies have made significant efforts to implement compliance programs in accordance with the best international practices and standards required by local regulations, including the Regulations of Law No. 30424, the Guidelines published by the Superintendency of the Securities Market “SMV”, and the Technical Standards approved by the National Institute of Quality.
However, the most recent amendment to Law No. 30424 prevents appreciating the exculpatory effects of the Crime Prevention Model when partners, shareholders, directors, de facto or legal administrators, legal representatives, or agents of the legal entity with ‘control capacity’, understood as decision-making power over the specific management area where the criminal offense occurred, have intervened in the undue practice.
Thus, no matter how suitable the measures implemented by the company are to prevent the commission of crimes or reduce the risk of their perpetration, the company will not be exempt from corporate liability when individual liability for the act falls on the company's directors and/or executives.
Beyond the justified criticisms this regulatory change deserves, to maintain the effectiveness of criminal compliance programs, it is necessary to broaden their design, including due diligence measures in the selection of senior management and directors, which must be documented. Additionally, it requires having clearly detailed of job descriptions to avoid incorrect imputation of criminal liability merely by the position held in the organization. This is the only way in which the value of prevention models can be maintained, as systems that identify and mitigate risks of crime commission in business activity, providing adequate legal-criminal protection to the legal entity.