Just two years after the entry into force of its corporate liability legislation, Colombia concluded its first foreign bribery case against a corporation in 2018 and is currently carrying out 20 foreign bribery investigations into companies. These are encouraging steps, and Colombia should now increase the engagement of key government and law enforcement agencies to deliver a comprehensive policy on foreign bribery and enforce the offence against both individuals and companies, according to a new report by the OECD Working Group on Bribery.
Since its Phase 2 evaluation by the Working Group in 2015, Colombia has demonstrated limited commitment in terms of training, awareness raising, detection and reporting of foreign bribery. In particular, whistleblower-protection legislation is still desperately lacking. The Working Group also notes that further efforts are necessary to strengthen the capacity of law enforcement agencies to detect, investigate and prosecute proactively foreign bribery. Further steps could also be taken to preserve foreign bribery investigations and prosecutions from political influence.
The Working Group has just completed its Phase 3 evaluation of Colombia's implementation of the OECD Anti-Bribery Convention and related instruments, and further recommends that Colombia:
- Enhance cooperation and coordination between the Superintendency of Corporations and the Prosecutor General's Office (Fiscalía) to ensure more effective and proactive exchange of information in foreign bribery cases;
- Ensure that legal persons committing foreign bribery are subject to effective, proportionate and dissuasive sanctions, including confiscation of the proceeds of bribery;
- Urgently adopt whistleblower protection legislation that provides clear and comprehensive protections from retaliation to whistleblowers across the public and private sectors.
The Report also highlights positive aspects of Colombia's efforts to fight foreign bribery. In particular, Colombia's Superintendency of Corporations has been active in investigating allegations of foreign bribery by companies, and in promoting corporate anti-corruption compliance programmes. Investigations by the PGO into individuals are ongoing and are expected to lead to further enforcement. Colombia also appears to have a sound framework for providing and seeking international cooperation in foreign bribery cases. Steps taken by Colombia to introduce reporting obligations of foreign bribery for auditors may also enhance the detection and sanctioning of foreign bribery, although greater efforts may still be necessary to improve the detection of foreign bribery through anti-money laundering mechanisms.
The Phase 3 Report of Colombia, adopted by the 44 members of the OECD Working Group on Bribery on 12 December 2019. The Report lists the recommendations the Working Group made to Colombia on pages 62-66, and includes an overview of recent enforcement activity and specific legal, policy, and institutional features of Colombia's framework for fighting foreign bribery. Colombia will submit an oral report to the Working Group in December 2020 on progress made to adopt whistleblower protection legislation. In accordance with the standard procedure, Colombia will submit a written report to the Working Group within two years (i.e. by December 2021) on its implementation of all recommendations and its enforcement efforts, which will also be publicly available.
