CRIMINAL LIABILITY OF LEGAL PERSONS IN COVID-19 TIMES
Gabriel Palma C.
In the context of the coronavirus health emergency (COVID-19), the Law 21.227 on Work Suspension and Access to Unemployment Insurance Benefits and the Law 21.240, which applies sanctions to the violation of isolation or other preventive measures ordered by the health authority, in the event of an epidemic or pandemic, were recently published.
Although the Law 21.227 contains a labour law matter, its article 14 provides the creation of a new criminal figure called fraudulent obtaining of complements and / or benefits, which will have the same validity as the law, that is, while the emergency lasts.
This crime affects the criminal liability of the legal person and is defined in the law as follows:
“Article 14.- Persons who, pursuant to the present law, obtain by means of simulation or deception accessories and / or benefits and, who, in the same way, obtain a greater benefit than that which corresponds to them, will be sanctioned with minor seclusion in their middle grades to maximum. The same sanction will be applicable to those who provide the means for the commission of such crimes. The foregoing is without prejudice to the obligation to reimburse the sums unduly received, with the corresponding adjustments in accordance with law.
Employers who are legal entities will be responsible for the crimes indicated in the previous paragraph that were committed directly and immediately in their interest or for their benefit, by their owners, controllers, managers, chief executives, representatives or those who carry out administration and supervision activities, provided that the commission of such crimes is a consequence of the breach, by the legal person, of the duties of direction and supervision, and they will be sanctioned with a fine for tax benefit corresponding to the double of the amount of the benefit improperly received and prohibition of holding acts and contracts with the State for two years.
Under the same assumptions as the previous paragraph, employers who are legal persons will also be responsible, when said crimes are committed by natural persons who are under the direct direction or supervision of any of the subjects mentioned in the previous paragraph.
The legal entities employers will not be responsible in the cases that the natural persons indicated in the previous paragraphs, have committed said crimes exclusively in their own advantage or in favour of a third party.
During the period of validity of this law, the fact provided for in the preceding paragraphs shall be those that give rise to the criminal liability of legal persons. For the determination and imposition of their penalties, as well as the other pertinent norms, it will be understood that it is a simple crime.”
Regarding Law 21.240, the latter comes to amend the Penal Code and Law 20.393 on Criminal Liability of Legal Persons, including a new crime that employers must take care of. As a consequence thereof, article 318ter of the Penal Code is created providing the following:
“Article 318 ter. The one who, knowingly and having the authority to dispose of the work of a subordinate, orders him to go to the place of performance of his duties when it is different from his domicile or residence, and the worker is in quarantine or mandatory sanitary isolation decreed by the health authority, will be punished with a minor prison sentence in its minimum to medium degrees and a fine of ten to two hundred monthly tax units for each worker who has been ordered to attend. “
The foregoing means that the legal person that has not adopted and implemented (or has adopted and poorly implemented) care measures or a compliance program to prevent and/or mitigate risks derived from these new crimes will be criminally liable.
In this sense, it is necessary to incorporate these figures into the crime prevention models that legal entities have implemented, thus requiring the entire institution to be careful in complying with current regulations.
These new crimes incorporated as a result of the health emergency are added to the catalogue of crimes that comprise our legislation on criminal liability of legal persons and that must be part of the crime prevention programs that legal persons must have, namely:
- Money laundering: Any act that tends to hide or disguise the illicit origin of certain assets, knowing that they come directly or indirectly from the perpetration of acts that constitute a crime (illicit drug trafficking, terrorist conduct, arms trafficking, among others).
- Financing of terrorism: whoever by any means requests, collects or provides funds with the purpose of using them in the commission of terrorist crimes indicated in Law 19.913.
- Bribery: Offer or consent to give a national or foreign public employee, an economic or other benefit, for the benefit of this or a third party, to make improper actions or omissions in their work.
- Reception: Whoever knowing the origin or not being able to do anything less than to know it, has in his possession at any title, stolen species or object of cattle rustling, reception or misappropriation, and transports, buys, sells, transforms or commercializes them in any way.
- Corruption between individuals: Who by himself or through another requests or agrees to receive a benefit in his own interest or that of a third party, in exchange for favouring or having favoured the offeror over another, in the contracting of goods or services or commercial relationships.
- Unfair administration: Whoever is in charge of the administration or management of the property of another, causes him harm, either by exercising his powers to dispose of it on his behalf or compel it, by executing any action in a manner manifestly contrary to his interest. (It has a special aggravating circumstance if it is the assets of an incapable person or an open or special corporation).
- Misappropriation: Whoever, to the detriment of another, appropriates or distracts money or other movable property, which they have received under the obligation to deliver or return them.
- Incompatible negotiation: Case in which any of the specific persons that the regulation determines, directly or indirectly, are personally interested or involved in any negotiation, performance, operation or management contract in which they must intervene by reason of their function or position. It is a crime of mere activity and therefore does not require the production of a result other than the behaviour itself.
- Contamination of Water: Anyone who, without authorization or in contravention of the conditions or in violation of applicable regulations, introduces or orders the introduction into the sea, rivers, lakes or any other body of water, chemical, biological or physical contaminating agents that cause damage to hydrobiological resources.
- Exploitation of prohibited resources: Process, seize, transform, transport, commercialize and store prohibited hydrobiological resources, and elaborate, commercialize and store products derived from these.
- Misappropriation of benthic resources: Carry out extractive activities in areas of management and exploitation of benthic resources, without being the owner of the rights to do such activities.
- Reception of collapsed or overexploited hydrobiological resources: Processing, elaborating or storing hydrobiological resources or products does not accredit resources in derivatives thereof, with respect to which their legal origin, and which correspond to a state of collapsed or over-exploited, according to the annual report of the subsecretary.
In this context, it is important to emphasize the importance of updating crime prevention programs as soon as legislative changes occur that involve the inclusion or modification of the crimes contained in the Law 20.393, since a company with an outdated model does not only imply the impossibility of its certification or remain at risk that it will be challenged in court by interested third parties, be they the Prosecutor’s Office or plaintiffs, but also implies unnecessary exposure to the risk of being sanctioned for the commission of the crime in question by not complying with the duty of supervision and direction following the self-regulation guidelines required by Law.