Criminal Liability Of Private Legal Entities - Guidelines For The Implementation Of An Effective Integrity Program

Author:Mr Francisco M. Gutiérrez, Tomás M. Araya, Mercedes de Artaza, María Victoria Funes and Florencia Pagani
Profession:M & M Bomchil
 
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Resolution No. 27/2018 of the Secretariat of Public Ethic, Transparency and Fight against Corruption, under the auspices of the Ministry of Justice and Human Rights, was published in the Official Gazette on October 4, 2018. The Resolution establishes the guidelines for the implementation of the Integrity Program, prescribed by Law 27,401 of Criminal Liability of Private Legal Entities.

The Integrity Program is the "set of actions, mechanisms and internal procedures to promote integrity, supervision and control, aimed at preventing, detecting and correcting irregularities and unlawful acts". Even though it is not mandatory, the Law grants important legal benefits to the legal entities that implement an Integrity Program: (1) exemption from criminal liability (if appropriate, a spontaneous self-denounce is made, and the undue obtained benefit is returned); (2) attenuation of an eventual criminal sanction; (3) condition to access an effective collaboration agreement at a judicial stage; and (4) requirement to contract with the National State.

The Guidelines provide a technical guide of the parameters for the design, implementation and evaluation of a Program. For the Program to be considered "adequate" it must take into account the following aspects:

The company's "own" risks in relation to the potential occurrence of any of the criminal conducts provided by the Law. The company's dimension, taking into account the complexity of its internal organization, the number of employees, its dispersion in branches, etc. Its economic capacity. Moreover, three mandatory elements have been set out as the baseline that the Program shall include: A code of ethics or policies and integrity proceedings applicable to all levels of the...

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