THE CRIMINAL PROSECUTION OF CORPORATIONS FOR CORRUPTION CASES

THE RESPONSE OF THE PERUVIAN STATE

Resumo

The Inter-American Convention against Corruption states that this phenomenon affects the legitimacy of public institutions, while the United Nations Convention against Corruption notes that it undermines democracy and the rule of law, leading to human rights violations. Specifically, it has been identified that corruption infringes upon economic, social, and cultural rights, as well as civil and political rights. For these reasons, it is fundamental for States, including Peru, to sanction all actors involved in corrupt acts. One of these actors is corporations, which are used to commit corrupt acts and benefit from them by not establishing controls over their members' actions. Precisely to address this situation, Peru approved Law No. 30424 in 2016, which incorporates corporate criminal liability for corruption, among other offenses. However, to date, there are not only no convictions against corporations for these acts, but also few prosecutorial investigations on the matter.

Based on the above, our research focuses on the limitations of the Peruvian legal system in prosecuting corporations involved in corruption, particularly emphasizing the role of the Public Prosecutor's Office. The justification for this research topic lies in the fact that the approval of corporate criminal liability for acts of corruption was conceived as a measure to prevent impunity for these acts and to recognize the company as a fundamental actor in their commission. Nonetheless, this has not materialized in practice, raising questions about the reasons for this situation. In this context, our objective is to identify the problems faced by the Public Prosecutor's Office in prosecuting corporations and to connect this situation with the inefficacy of the anti-corruption efforts undertaken by the Peruvian State in this area, a situation that increases distrust in public institutions and weakens our fragile democracy. To achieve this, we use a dogmatic methodology, analyzing regulations, case law, and specialized doctrine at both national and international levels. The proposed hypothesis is that the greatest weakness of the system established for the criminal prosecution of legal entities for acts of corruption lies in the contradictory procedures for investigating the company and proving its responsibility, resulting in two situations: a) prosecutors who prefer not to criminally prosecute companies; or b) prosecutors who take different approaches to these cases, leading to the Public Prosecutor's Office, as the institution empowered to prosecute crime, not having a uniform view of its role against corruption.