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New regulations for the prevention, detection and prosecution of corruption

By December 7, 2018 No Comments
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On November 20th, 2018, Law N° 21.121, which amends the Criminal Code (“CC”) and other legal norms with the purpose of preventing, detecting and prosecuting corruption (the “Law”), was published in the Official Gazette and entered into force.
 
The main amendments introduced by the Law are highlighted below:

1. To the Criminal Code


(i) Increase of the penalties and/or fines applicable to the crimes of embezzlement of public funds (arts. 233 and 235 of the CC), fraud against the Treasury (art. 239 of the CC), incompatible negotiation (art. 240 of the CC), illegal exaction (art. 241 of the CC) and bribery of national and foreign public employees (arts 248, 248 bis, 249, 250 and 251 bis of the CC); (ii) Modification of the statute of limitations on criminal action arising from the above-mentioned crimes and others from Title V, Book II of the CC (art. 260 bis of the CC); and, (iii) Effective cooperation is regulated as a mitigating measure of criminal responsibility for the alluded crimes and others from Title V, Book II of the CC (art. 260 quater of the CC).

New hypotheses of perpetration of incompatible negotiation and bribery of public employees offences are incorporated to the CC including, among others, the figure of bribery in which the public employee is not required to perform any action in exchange of the benefit he or she requests or accepts to receive, only the existence of such request or acceptance being sufficient for the offence to be deemed perpetrated (first paragraph of art. 248 of the CC).


Two new offences are typified:

  • Corruption between private individuals, active and passive (arts. 287 bis and 287 ter of the CC): : offence consisting in (i) a person giving, offering or consenting to give an employee or agent a benefit, or (ii) an employee or agent requesting or accepting to receive a benefit; in both cases, with the purpose of encouraging or having encouraged the contracting with one offeror over another.
 
  • Disloyal management (art. 470 No. 11 of the CC): offence perpetrated by anybody who, whether by virtue of the law, the order of an authority or by an act or contract, manages the patrimony of someone else, and while performing his/her duties as such inflicts patrimonial damage by abusively exercising his/her faculties to dispose of it on such person’s behalf or to obligate it, or by executing or omitting another action in a manner manifestly contrary to the interest of the owner of the affected patrimony.
             
2. To law Nº 20.393

The catalogue of offences whose perpetration could attribute criminal responsibility to legal persons was extended (from four to eight). As a result of this modification, nowadays such offences correspond to money laundering (art. 27 of Law No. 19, 913), financing of terrorism (art. 8 of Law No. 18, 314), incompatible negotiation (art. 240 of the CC), bribery of national and/or foreign public employees (arts. 250 and 251 bis of the CC), corruption between private individuals (arts. 287 bis and 287 ter of the CC), handling of stolen goods (art. 456 bis A of the CC), wrongful appropriation (art. 470 No. 1 of the CC) and disloyal management (art. 470 No. 11 of the CC).
 

3. To law Nº 19.913
 
Wrongful appropriation (art. 470 No. 1 of the CC) and disloyal management (art. 470 No. 11 of the CC) are introduced as base crimes for the perpetration of money laundering offences (art. 27 of Law No. 19,913).
  
Finally, it must be noted that, as a result of the enactment of the Law, those legal entities who currently have implemented crime prevention models in compliance with the provisions of Law N° 20.393, shall adjust them to the new regulations entered in force in order to take preventive measures with regard to the offences recently included in the catalogue of the aforementioned Law. The same shall be done by all those bound by the provisions of Law No. 19,913.
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