CMS Expert Guide To Mandatory Reporting Of Criminal Offences For Companies And Their Responsible Persons in Colombia

According to Article 67 of the Proceeding Penal Code of Colombia every person has a legal duty to report any criminal offence that they are aware of. In case the individual is a public official then they must initiate a criminal investigation or report it to the authorities. Nevertheless, this mandate only has legal consequences if the criminal offences that are not being reported are those listed in Articles 417, and 441 of the Colombian Penal Code.

Under Article 441 of the Colombian Penal Code any individual may be sentenced to up to eight years’ imprisonment if they knowingly and without just cause fail to report one of the following: Genocide, forced displacement, torture, forced disappearance, homicide, kidnapping, extortionate kidnapping or extortion, drug trafficking, drug trafficking , terrorism, terrorist-financing or supporting terrorism, illicit enrichment, fronting, money laundering, any of the behaviours contemplated in Title II and in Chapter IV of Title IV of said code, in the latter case when the passive subject is a minor.

Article 417 of the Colombian Penal Code sanctions any public servants with fines and loss of employment or public office, if they have knowledge of the commission of a punishable offence that must be investigated ex officio, and they fail to report it to the authorities. The penalty will be imprisonment up to six years if the punishable conduct that is omitted to be reported is one of those contemplated in Article 441.

Also, certain professionals may face legal consequences if they fail to report certain conduct as a result of to their professional codes and other relevant laws.  This is the case with doctors, teachers or social workers.

The responsibility to report a criminal offence within a company is generally assigned to the person who becomes aware of the offence. This could be any employee, but it is often the responsibility of higher-level management, compliance officers, or legal departments. As noted above in response to question 1, every individual has a legal duty to report criminal offences, nevertheless within a company this would be ruled by their compliance guidelines. Therefore, the person in charge is the person mandated by said guidelines.

Failing to report a criminal offence or its perpetrator can lead to several risks, including:

1. Legal consequences: Articles 441 of the Penal Code outline penalties for failing to report certain offences, as noted in question 1.
2. Civil liability: Victims may sue for damages under civil law provisions.
3. Reputational damage: The company may suffer reputational harm, affecting business operations and stakeholder relationships.
4. Regulatory penalties: Companies may face fines or other penalties from regulatory bodies for non-compliance with reporting obligations.

The main risks of reporting a criminal offence are related to specific legal repercussions and confidentiality breaches.

One must be certain that a criminal offence occurred; if not, it is possible to be prosecuted for false accusations, which carries the sanction of fines up to thirty minimum wages and imprisonment of 12 years.

Reporting a crime may also lead to breaches of confidentiality, especially if sensitive information is involved.  Nevertheless, confidentiality duties cannot extend to the commission of any crime, and so the breach of confidentiality might not have any specific consequence. It is recommended to take professional legal advice before filing any criminal complaint.

In Colombia, criminal liability is personal and does not include legal entities. Therefore, in principle, legal entities will not be held criminally liable. However, if company officials are involved in criminal or corrupt conduct, it is possible that the legal entity may be held civilly liable within the framework of the comprehensive reparation process, which occurs once there is a conviction against individuals. Therefore, the company can be called jointly liable for civil damages.

Regarding company officials, it is possible that there may be accessory liability if they have collaborated or allowed the commission of crimes, if they were aware of the occurrence of the criminal acts or could have been aware of the facts. In any case, in principle, for there to be accessory liability, there must be intent, except in crimes that allow the commission of an act in a negligent manner.