HSE University Anti-Corruption Portal
Bolivia Amends Its Anti-Corruption Legislation

Law No. 1390 “On Reinforcing the Fight against Corruption” (Ley de Fortalecimiento Para la Lucha Contra la Corrupción) has entered into force in Bolivia.

The adopted legal act is aimed at improving the provisions of Law No. 004 “On the Fight against Corruption, Illicit Enrichment and Criminal Investigation” (Ley de Lucha Contra la Corrupción, Enriquecimiento Ilícito e Investigación de Fortunas), also known as the Marcelo Quiroga Santa CruzLaw, the Criminal Code and the Code of Criminal Procedure.

The major novelties of the Law regard the following areas:

1. Statute of limitations

The Law annuls the statute of limitations for holding persons liable for corruption crimes if these crimes cause a serious economic damage to the State or the highest executive authorities.

2. Introduction of liability of legal persons

The act expands the list of subjects for certain corruption crimes, extending liability of organisations (public and private, national and foreign) and their employees for: 

  • Passive bribery;

  • Illicit enrichment;

  • Money laundering;

  • Illegal contracting;

  • Violation of contract terms;

  • Establishment of shell companies or associations.

In this context, corporate responsibility may arise if a corruption or corruption-related crime:

1.   Was committed by a natural person:

  • Entitled to take decisions on behalf of the legal person or having managerial functions (or by a group of such persons);

  • Not entitled to make decisions on behalf of the legal person, but with the consent of a person or a group of persons having relevant functions;

  • Acting under the guidance of a person or a group of persons entitled to take decisions on behalf of the legal person or having managerial functions;

2.   Was committed with the aim to gain a benefit for the legal person or in its interest;

3.   The  legal person was used to commit such a crime.

The sanctions for legal persons introduced by the Law include:

  • Loss of the legal personality;

  • Imposition of a penalty;

  • Temporary loss of public subsidies or other payments;

  • Confiscation of proceeds of crime;

  • Partial suspension of activities;

  • Prohibition of activities;

  • Obligation to introduce a set of measures for preventing violations.

The circumstances that may allow an organisation to demand mitigation of sanctions are:

  • Self-disclosure to competent authorities before the proceedings against the legal person are instituted;

  • Cooperation with the investigation;

  • Provision of information important for detecting the persons involved in the crime;

  • Adoption of measures to eliminate and mitigate the damage caused by the crime or measures to manage the conflict.

3. Exemption of natural persons from liability

The Law introduces the possibility to terminate criminal proceedings for corruption crimes against a natural person in the event that:

  • the person provided the information important for the objectives of the investigation and procedural support to the investigation; 

  • the information provided by the person facilitated the prevention of a new crime or a considerable reduction of the scope and/or the consequences of the crime that had already taken place, in particular, it allowed detecting the circumstances in which the crime had been planned and committed (is being planned), identify the perpetrators and participants of the offence that had been committed or is being planned and define their roles in the criminal scheme; 

  • the offence of which the person is accused is a minor offence.

4. Change in anti-corruption standards for officials

The Law introduces changes in the existing restrictions regarding the acceptance of gifts: in particular, from now on, officials cannot be held criminally liable in the form of deprivation of liberty for the violation of the relevant prohibition – the Law stipulates that the only penalty will be the imposition of a fine. Additionally, the act has also introduced an exemption from the prohibition, recognising the acceptance and giving of the gifts stemming from tradition and customs and the gifts given in the course of social events as permissible. 

5. Change in sanctions against officials 

The adopted legal act expands the list of disciplinary measures that are applicable to officials: from now on, the persons convicted of corruption crimes can be prohibited from holding positions in the public sector (however, only in the area of activity where the crime was committed) for a period from six months to ten years. 

The disqualification period will be counted in accordance with the following scale:

  • from four to ten years – if the person was sentenced to imprisonment;

  • from six months to four years – if the person was sentenced to a punishment not related to imprisonment. 

The disqualification period starts once the main punishment is completed. The information about the suspension will be incorporated in a special register.

6. Restorative justice

The Law also grants the judges the right not to initiate conventional criminal proceedings against the person accused of having committed a corruption or corruption-related crime, transferring the case to the programme of restorative justice in the event that the crime does not inflict a serious economic damage on the State (the damage does not exceed 7,000,000 BOB, roughly 1,000,000 USD). This novelty is aimed at creating the conditions for voluntary reparation of damages caused and a more active employment of non-trial resolutions. 

According to the Law, the procedure for negotiations between the victim and the accused should be conducted by a dedicated multi-sectoral commission under the guidance and with the assistance of an accredited mediator; once an agreement is reached and the damage is repaired following the restorative procedure the victim must file a petition to the judge requesting to announce the termination of criminal proceedings, suspension of the penalty, probation, mitigation of penalty in the form of deprivation of liberty etc. 

7. Trials in absentia 

The act also provides for the possibility to hold court hearings of corruption cases and crimes against humanity in absentia if there is no reasonable ground for the non-appearance of the accused that has been subpoenaed and informed accordingly in line with the provisions of the Code of Criminal Procedure. 

The adopted Law, however, has been criticised by some experts and opposition believing that its provisions can be exploited by the ruling party to pressurise its opponents. In particular, the use of such subjective wording as the grounds for repealing the statute of limitations (“if the crime causes serious economic damage to the State or the highest executive authorities”) opens up ample opportunities for abuse and holding “the undesirable” liable; the admissibility of trials in absentia allows sentencing persons without their participation depriving them of the right to defend themselves in the court; the possibility to terminate criminal proceedings against the persons who cooperate with the investigation creates conditions for those associated with the current government to “slander” members of the opposition and go unpunished.

It should be also highlighted that the provisions of the Law concerning liability of legal persons are somewhat inadequate. In particular, in foreign countries corporate liability is generally incurred in the event that the crime was committed by a natural person related to the organisation and on its behalf or in its interest, and bypassing the corporate preventive measures. Furthermore, the fact that a company has a compliance system can serve as a ground for leniency. Therefore, in using these norms, the legislator encourages organisations to take corruption prevention measures. However, the Bolivian Law does not provide neither for the first nor for the second condition; as a consequence, the contribution of the amendments to corruption prevention in the private sector raises objectively justifiable doubts. 

Criminal prosecution

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