Anti-Bribery and Corruption Laws in Colombia

Bribery offences in Colombia target personal benefits in the private and public sectors. The sphere of application covers minor, medium and high-profile bribery cases, which depend on the magnitude of the resources and people involved. National legislation criminalises several forms of corruption including active and passive bribery, public extortion, and abuse of office, among others. 

Criminal code: 

Article 250A. Private corruption. Whoever, directly or indirectly, promises, offers or grants to officers, directors, employees or advisors of a corporation, association or foundation, a gift or any non-justified benefit, for the benefit of the promisor, offeror or grantor, or a third person, to the detriment of such corporation, association or foundation. 

Article 250B. Unlawful administration. The company´s registered or de facto officer, director, partner or shareholder, advisor or employee, who in order to obtain a benefit for himself or a third party, in abuse of the functions of his position (i) fraudulently disposes of the company’s assets; or (ii) assumes an obligation on behalf of the company that causes a direct economic loss to its partners and that might be assessable. 

Article 407. Bribery of a public official. Whoever offers or gives money or other benefits to a public official (i) for the purpose of withholding or omitting an act which is under the public official´s responsibility or performing an act against its duties as a public servant; or (ii) to perform an act under its responsibility as a public servant. 

Article 410A. Restrictive competition agreements. When two or more entities or individuals in a process of public bidding, public auction, abbreviated selection or contest agree to unlawfully alter the contractual procedure. 

Article 411A. Traffic of influence by individuals. Unlawfully influencing a public official in a matter that he knows or should know, in order to obtain any economic benefit. 

Article 433. Transnational bribery. Whoever gives or offers to a foreign public official, for the benefit of such public official or for the benefit of a third person, directly or indirectly, any money or object with a pecuniary value or benefit, in exchange for performing, omitting or delaying any act related to an economic or commercial transaction. 

Article 444. Bribery. Whoever delivers or promises to deliver money or confer a benefit to a witness, in order for him to give a false statement, or fail to reveal the total or partial truth during his deposition. 

Article 444A. Bribery in criminal proceedings. Whoever delivers or promises to deliver money for his or someone else’s profit or whoever confers a benefit to a witness of a criminal offence, for him to refrain to assist to his deposition, or for him to give a false statement, or fail to reveal the total or partial truth. 1  

Administrative penalties: 

Administrative liability of legal entities: Legal entities that through one or several (i) employees; (ii) contractors; (iii) administrators; or (iv) associates employed by the company or by any of its subsidiaries or any other subordinate legal entity (i) give; (ii) offer; or (iii) promise to a foreign public official, directly or indirectly (i) sums of money; (ii) any item of pecuniary value; or (iii) other benefit or utility in exchange for the foreign public official (i) performing; (ii) omitting; or (iii) delaying any act related to the exercise of its functions and in relation to a business or international transaction, will be held liable and fined. 

Depending on the offence committed, penalties vary. Nevertheless, the most common penalties are prison or fines, appraised in legal monthly salaries. Normally prison varies between three to ten years, and fines vary between ten to 1,000 legal monthly salaries. At the time of this Guide, the legal monthly salary in force is approximately USD 270. There are also mitigating circumstances, such as not having a criminal record at the time of the sentencing, and aggravating circumstances such as corruption related to assets dedicated to providing for the basic needs of the population.  

Even though only individuals are subject of criminal liability, according to the law of Transparency, prevention, and fight against corruption, corporations might be subject of administrative liability because of a criminal sentence against one of its executive, employees, partners, or associates. These sanctions may include fines up to 200,000 legal monthly wages, disbarment in procurement processes, publication of the penalty or sanction in widely circulated media, prohibition to receive any type of incentive or subsidy from the government, or the removal of the manager or other staff members that were found guilty. 

Regarding foreign bribery, Law 1778 of 2016, also known as Foreign Bribery Law, let the Colombian Superintendency of Companies impose one or more of the following sanctions on legal entities involved in acts of transnational bribery: i) fines up to 200,000 current legal monthly minimum wages, plus the greater value between the benefit obtained or intended. ii) disqualification from contracting with the Colombian state for up to 20 years, iii) publication of the sanction in widely circulated media and on its website for up to one year, bearing the costs, iv) prohibition from receiving government incentives for 10 years.

The Foreign Bribery Law also includes sanctions in case of structural reforms if a company changes its structure before the sanction, the following rules apply: i) in mergers, the absorbing or new company will be sanctioned, ii) in spin-offs, all involved companies will be jointly liable, iii) in transfers of control, the acquirer will be sanctioned, iv) these rules also apply to other associative forms. 

• State of need in cases of extortion. This is the most common defence, based on the possibility of allocating the responsibility entirely to the public official, who may be extorting the private individual by utilising his or her office. 
• Error regarding the facts of the crime, such as not being aware that the individual is a public official.