This research paper develops the relationship between two concepts that have given rise to much discussion in recent years: the criminal liability of legal persons and compliance. Both issues have acquired greater relevance in Costa Rica since the adoption on 10 June 2019 of Act No. 9699 on Liability of Legal Persons for Domestic Bribery, Transnational Bribery, and other Offences. This Act recognises the criminal liability of legal persons in the Costa Rican system. Previously the country had adopted the principle of "societas delinquere non potest".
6 july 2020
Author: Edgar Mauricio Garita Campos
Title: Compliance Programmes as a mitigating factor in the criminal liability of legal persons in Costa Rica
From this recognition, the object of the criminal proceedings is extended, since within this an assessment will be made of the effectiveness and suitability of the Compliance Programme of a certain legal person under investigation in the face of the commission or suspicion of an offence. One of the main risks indicated by the application of a mitigation of liability for compliance must be avoided, which is that the mitigation is provided both to effective Compliance Programmes and to those apparent or known as paper compliance, in the absence of clear criteria by judges to determine effectiveness and suitability.
The purpose of this research is focused on the mechanisms for verifying the effectiveness and suitability of the Compliance Programmes so that legal entities can receive a waiver or mitigation of liability.
The first chapter sets out issues associated with the criminal liability of legal persons, with emphasis on systems of imputation of liability, requirements for liability, penalties for legal persons, and mitigating factors.
The second chapter develops the issues related to Compliance Programmes, from their origin, functionality, benefits, stages, and essential components. Within the components, there is a review of the role of the Senior Management, the concept of compliance culture, the functions of the Administrative Body, the Compliance Body, its characteristics and functions, the protocols that make up the Compliance Programme, the complaints channel and the concept of whistle-blower, due diligence, training and communication of the Compliance Programme, the review process and the audit. Finally, different mechanisms are analysed to assess the Compliance Programmes, such as the provision of documentary and testimonial evidence, certifications, and expert reports, as well as other elements that have been assessed in international practice.
Finally, the third chapter analyses the content of the law that has been approved in Costa Rica. Initially, the origin of the law is examined in depth, with special emphasis on the context that facilitated the approval of this law. Subsequently, the system of imputation of liability that was decided to be applied in Costa Rica, imputation budgets, possible penalties for legal persons and mitigating factors of liability are presented. Finally, the chapter ends with some considerations to be taken into account for the application of the law in Costa Rica.
Among the main conclusions are the following: (i) the need to implement a system of criminal liability for legal persons to combat impunity; (ii) the imposition of fines is favoured over any other penalty, but even when a fine is applied, it must be verified whether there is associated collateral damage that merits a reduction in the amounts; (iii) there is no single unequivocal formula to verify the effectiveness and suitability of Compliance Programmes, mitigating or exonerating circumstances require a profound and integral analysis with respect to the reality of the legal person, and therefore, to be verified or discarded, a simple verification of requirements is not sufficient; and (iv) the assessment of compliance programmes and the social and economic circumstances that may arise from the imposition of a penalty constitute an extension of the scope of judges' functions, so it is necessary to train Costa Rican judges in all matters that are new to their function, for the proper application of the law.
