"I am attaching the resumes," said the minister.
Between resignations, chats, statements, and appointment attempts, public opinion has once again turned its attention to Title XV of the Colombian Penal Code, questioning which types of conduct may or may not fit within the criminal offense described in Article 411: influence peddling by a public official. In other words, amid numerous national events, the leading media outlets have brought to the table a debate on the application of criminal law to cases of potential violations of the principles that, according to Article 209 of the Constitution and Law 80 of 1993, must govern any action by public administration.
Therefore, beyond the questionable nature of the political landscape in our country and the reproach that can be made regarding the forms and dynamics we have naturalized over time, in this article, we will strive to move away from the obvious, the loud, and the redundant, to review what the Supreme Court of Justice has said about the constitution of the offense of influence peddling by a public official. However, it must be noted that any resemblance to a specific case is purely coincidental.
In this regard, we will address the following questions: What does the legislator intend to protect with the criminal offense of influence peddling by a public official? What are the elements that constitute it? And finally, does making a professional recommendation amongst public officials constitute this offense?
Let’s proceed in order:
What is intended to be protected?
The criminal offense of influence peddling by a public official is contained within crimes against public administration. These crimes protect a legal interest described as the "set of material conditions expressed as principles in Article 209 of the Constitution, which define the fundamental traits of public function and ethics" (SCJ, AP400-2018, Case No. 62333, Justice Luis Antonio Hernández Barbosa). Specifically, a criminal consequence is assigned to a public official who, abusing their power, exerts undue pressure on another public official to make a specific decision on a matter under their jurisdiction. This is done by leveraging a relationship of friendship, hierarchy, or kinship between the two officials, thereby violating the general principles of public service. In this case, the principles of transparency, equality, morality, and impartiality.
In other words, to safeguard the integrity of public administration, a criminal offense was established to punish behaviors that involve the unauthorized use of power to circumvent objective selection processes and restrict access to the long-sought meritocracy and competency of officials in their respective positions. It is an ex post measure in the fight against corruption.
What are the elements that constitute this offense?
Article 411 of the Penal Code states:
"A public official who improperly uses, for their own benefit or that of a third party, influences derived from the exercise of their office or function to obtain any benefit from another public official in a matter that they are handling or will handle shall incur..."
Based on this criminal offense, the consistent jurisprudence of the Supreme Court of Justice (SCJ, SP 12846-2017, Case No. 46484, Justice Luis Antonio Hernández Barbosa) has identified the following elements:
The first element consists of that conduct must be carried out by a public official. The crime we are examining requires that the perpetrator be a qualified subject. That is, the person committing the act under scrutiny must be linked to the State in a permanent, provisional, or temporary manner.
Second, the public official in question must make improper use of influences derived from their position. In other words, it is not enough to exercise any type of influence; rather, the legislator requires that, in order to classify it as a criminal act, the influence must be exerted by taking advantage of their official status as an authority.
In third place, the influence must be exercised for personal gain or for the benefit of a third party. That is, someone other than the official handling the matter (even if they also benefit) must gain from the influence.
Last but not least, the undue influence must aim to obtain a benefit from another public official regarding a matter they are handling or will handle. According to the Court, the influence subject to criminal reproach is that which seeks to cause "another State official to perform or omit an act within their official duties." Thus, it is not enough to exert influence on any public official; rather, to constitute a crime, the influence must be strictly directed at obtaining a decision that the influenced official has the authority to make.
In this sense, this crime requires "dual qualification" since both actors must be public officials: both the one exerting the influence and the one receiving it and handling the matter.
Now, according to the Supreme Court of Justice, the true essence of the offense of influence peddling lies in the fact that the public official, as the active subject of the conduct, "imposes or asserts their status over another public official, meaning that the way they make the request, as well as their rank or hierarchy, has the capacity to influence a matter the recipient is handling or must handle." Therefore, two essential requirements must be met to determine whether an act is criminal:
(i) The influence must be considered real and substantial, meaning it must have sufficient potential to influence another official due to their hierarchical relationship, job responsibilities, or personal relationships (including kinship, friendship, or political affiliation), and
(ii) The way the request is made or the influence is exerted must reach a level of "pressure" sufficient to alert authorities to an act akin to an abuse of power.
Does a professional recommendation between public officials constitute this crime?
Having reviewed the above, let’s consider a hypothetical case: A public official, using their authority and influence within the current government, persistently recommends a close friend for a position to the director of a state entity. The proposed friend meets the professional requirements for the job, and the recommending official and the director have a history: the former lent money to the latter during past elections to prevent them from taking out a bank loan.
Now, regardless of any other potential crimes that could arise from this example and based solely on the available information, this behavior appears to meet the criteria for the crime of influence peddling by a public official:
(i) The classification standard is met for both the active subject of the conduct (the person making the recommendation) and the recipient of the influence, as they are both public officials.
(ii) Influence is exerted through an apparent exploitation of their political comradeship, even leveraging the existence of a past debt.
(iii) A third party (in this case, the recommended individual) benefits from the conduct by obtaining a position in a state entity while meeting the required qualifications.
(iv) The recipient of the request is aware of or will become aware of the matter, as they have the authority to make the decision.
However, to resolve the case and conduct a rigorous analysis, it is essential to examine the criteria established by the Supreme Court of Justice when distinguishing between a simple recommendation for a position and the commission of the crime under review. To do so, it must be determined whether, in the specific case, the influence exerted is certain and real, or sufficiently potent to assert the recommender’s status and sway the decision; and whether the way the request is made reaches a level of pressure sufficient to conclude that it constitutes an abusive exercise of power.
To this end, referring to the ruling, the Supreme Court of Justice states that “the conduct of a public official that merely highlights the merits and qualities of a person deemed worthy and a prime candidate for a public office cannot be considered unlawful.” Along the same lines, the Court clarifies that “a recommendation made by a public official regarding a citizen for a public position to be filled by contract or appointment does not, in itself, constitute influence peddling or any criminal conduct, as long as the references, whether written or oral, are meant to highlight the qualifications (...) of the recommended individual.” Based on this, the mere act of one public official requesting another to consider a candidate’s résumé does not constitute a criminal offense. This is even more so if the candidate meets the required qualifications for the position. In this sense, considering only these elements, one could conclude that the required standard to classify this conduct as a criminal offense is not met.
But what about the second element: the existence of an old debt between the two public officials, which seems like a perfect opportunity for repayment. The Court has addressed such situations, emphasizing that this is where the essence of the legal provision lies. A proper application of the principles of public administration should prevent external factors from corrupting the selection of any public official, particularly those related to personal and political matters. Consequently, to determine that a punishable offense has been committed, it must be analyzed whether the recommender imposes, negotiates, or exploits this prior debt solely to assert their status (exercise their influence) over the director of the state entity. That is, whether both the way the request is made and the recommender’s capacity to influence demonstrate that they are taking advantage of the situation and, therefore, engaging in an abusive exercise of power. In other words: they have power, they leverage it, and they intervene to obtain an advantage, a favor, or any kind of benefit.
Thus, a simple recommendation does not constitute the crime of influence peddling unless, as discussed, it is accompanied by a significant undue pressure. In such cases, the debate ultimately becomes a matter of evidence and case-specific indicators. For instance, criminal liability may arise when the recommended candidate does not meet even the most basic legal and/or technical requirements for the position, and only if the influence exerted meets the standard of being certain and real imposition. In any case, the spirit of the law must not be overlooked, as its purpose is to punish conduct that amounts to a true abuse of power.
Ultimately, the crime of influence peddling by a public official cannot be assessed based on mere perception or media scandal, but rather on the technical and legal elements that define it, in line with the Supreme Court of Justice’s jurisprudence. The mere act of making a recommendation—no matter how ethically or politically questionable—does not suffice to constitute a criminal offense unless undue pressure, an exploitation of the situation, an actual abuse of power, or a direct violation of the principles governing public service can be demonstrated.
In a society as turbulent as ours, it is essential for Criminal Law to retain its role as the ultima ratio, without becoming a tool for symbolic persecution or a mere reflection of public outrage. Criticizing conduct on ethical grounds is both valid and necessary, but assigning criminal liability requires much more than that. Primarily, strict adherence to the limits of the legal definition of the crime. Thus, the debate over public service must continue, but with the clear understanding that not everything that is morally reprehensible is necessarily punishable.
