In keeping with the trend in Latin American countries such as Peru, a bill was published in September establishing the scope of legal persons’ criminal liability. Independently of whether the capital is domestic or foreign, with or without state holding, the bill sets out that legal persons can be liable for committing the following felonies as defined in the Penal Code:

1.      Domestic and cross-border bribery and influence peddling, (articles 259 and 28b)
2.      Negotiations that are incompatible with holding public office (article 265)
3.      Exacting kick-backs (article 268)
4.      Illicit enrichment by public officials and employees (articles 268.1 and 268.2)
5.      Faking balance sheets and contents of reports  (article 300)

The criminal liability regime will apply to legal persons for the felonies they have committed, directly or indirectly, with their intervention or in their name, interest or benefit. It will also apply to actions carried out to their advantage or interest by a third party not properly authorized to represent them, provided that the legal person has ratified the operation or action.

Penalties

The penalties applicable for these felonies may consist of: i) a fine of between two and five times the profit improperly obtained or that might have been obtained; ii) total or partial suspension of the institution’s activities, for a maximum of 10 years; iii) suspension from taking part in public tenders or bids or any other activity linked to the State, for a maximum of 10 years; iv) dissolution and liquidation of the legal person if it had been created for the sole purpose of committing the felony; v) loss or suspension of entitlement to state benefits; and vi) publication of a summary of the guilty ruling, to be paid for by the legal person.

However, the bill makes provisions for certain grounds for exemption from penalty, provided the following circumstances apply:

• Self-reporting of the illicit activity after conducting internal investigation
• Adoption, before the felony was committed, of an appropriate monitoring and supervisory system, known as an “Integrity Program”
• Reimbursement of the illicit earnings obtained

Integrity Program

The Integrity Program should include activities, mechanisms and internal procedures designed to prevent, detect and correct irregularities and illicit dealings considered under this regulation. It should contain at least the following components:

• Code of ethics or conduct, or policies and procedures for integrity that apply to all company directors and employees
• Regular training sessions about the program for directors, managers and employees
• Internal channels for reporting irregularities and programs to protect whistleblowers
• Internal officer to develop, coordinate and supervise the program, similar to the Compliance Officer provided for under Spanish law
• Continuous monitoring and assessment of the program’s effectiveness

In any event, the Program will have to be tailored to the size, economic capacity and risks associated with the company’s business.