To combat corruption there is not yet a formula that can prevent or avoid it. However, to take it to its minimum expression, it is necessary to achieve the commitment of the entities and their officials (at all levels), to avoid that they fall into acts of corruption and thus encourage the application of prevention, detection and management tools within of its structures, so all entities are called to design, develop and strengthen a compliance culture, through the compliance program and compliance officers.
Although it is in the regulated markets where initially we start talking about compliance, according to its technical meaning, looking for the adaptation of the entity to a certain regulatory framework, at a global level, in the public and private sectors, preventive tools and instruments are established, to address the fight against corruption, such as corporate governance policies, transparency programs, codes of ethics, anti-corruption manuals, risk management systems for money laundering and financing of terrorism, and policies against conflicts of interest , in order to avoid the commission of illegal or punishable behavior.
Compliance programs give companies that apply them a competitive advantage in the market, projecting their client’s peace of mind and confidence.
The possibility of preventing, avoiding and overcoming a case of corruption depends on the level of preparedness that each entity has internally and the strength of its strategy in the compliance program.
Hence the importance of the professionals in this area, who should not focus solely on solving problems, but on identifying "red flags" and preventing them from materializing.
In countries such as Spain, compliance programs took effect from the incorporation into the legal system of criminal liability of legal persons, since they were established as a mitigating circumstance of criminal responsibility.
Unlike Spain, in Colombia there is no criminal liability of legal persons. However, companies can be subject to administrative sanctions, as contemplated by Law 1778 of 2016, which dictates rules on the liability of legal persons for acts of transnational corruption.
Despite this difference, we cannot think that the administrative sanction is less important than the criminal one or that, since this type of crime is not specifically contemplated, there are no consequences and the corresponding measures must not be adopted, especially when the law establishes the obligation to adopt them and the consequences for not doing so. There is no need to indicate that natural persons are subject to criminal and administrative sanctions. This is how we have seen that the Financial Superintendence (Superfinanciera) has sanctioned several compliance officers for failure in the systems they administer.
By legal mandate, the entities supervised by the Superintendence, and although they are not the only ones, must adopt the Risk Management System for Money Laundering and Terrorism Financing (Sarlaft) and appoint a responsible official -of compliance- to be entrusted, among other tasks, to verify the adequate compliance of said system.
The compliance officer is the person who assists, advises, accompanies and recommends the administrative and management bodies in compliance with current regulations, implements controls and monitors their effectiveness, and this responsibility falls on the responsibility of efficiently executing the system, being in charge of reporting channels, mapping risks and being the maximum guarantor of the supervision, dissemination, operation, monitoring and control of the program.
It should be noted that today, in many financial institutions, compliance officers have not been duly assessed or their importance is not known, contrary to the law. Thus, they are not provided with the necessary technological tools to perform their work or they are only assigned tasks of customer service and requests, complaints and claims, issues of utmost importance, but corresponding to other areas, leaving aside and forgetting its important role within the institution and its task facing the financial market.
In general terms, we must warn that if Colombian companies want to be competitive worldwide, they should start adopting this type of policies and tools, and go one step ahead of our regulations, with corporate culture in this sense, as it is not a duty. which exclusively assists the entities that are supervised by the Superfinanciera, but a duty of all in our commitment to fight against corruption.
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* Ricardo Fernández has more than 30 years of experience in the insurance sector, contact him at: ricardo.fernandez@samancoberturasysoluciones.com
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