Derived Ineligibility to Contract with the State: A Form of Corporate Criminal Liability in Colombia?

Abstract

In Colombia, strictly speaking, there is no regime of criminal liability for legal entities. However, in our public procurement statute (subsection j of Article 8 of Law 80 of 1993), a perpetual disqualification to contract with the State is established when a natural person has been convicted of crimes against public administration. This disqualification extends to legal entities in which that person participates as an administrator, legal representative, board member, or controlling partner. The disqualification, which certainly affects the legal entity, lacks an opportunity within the criminal procedural framework for the affected legal entity to exercise the right to defense. Based on the above, using a methodology grounded in hermeneutics, legal doctrine, and the coherence of the national legal system in its various specialties, the authors debate both the legal nature of this disqualification —especially whether it constitutes a sanction against the legal entity or a mere preventive mechanism— and the suitability and constitutionality of this measure, within the context of the expanding punitive approach and the facade of zero tolerance towards acts of corruption. It is concluded that the derived or extended disqualification is indeed a sanction, originating from a criminal conviction, and therefore should respect the principles of culpability, presumption of innocence, and access to the administration of justice, with which it inevitably collides.