Are compliance programs a mitigating factor to reduce/eliminate liability for bribery offences in your jurisdiction?
Bribery & Corruption
Under domestic economic laws, various compliances are put in place for an individual and a corporate entity. Such compliances act as a deterrent in facilitation of bribes. Ranging from tax compliances, to internal and statutory audits, the compliances under domestic economic laws are comprehensive preventing a person / entity from committing an overt act. However, compliance measures per se do not mitigate the risk of prosecution but may be helpful in demonstrating a lack of mens rea.
There is no specific rule set out in the Angolan legal system that excludes the liability of legal persons for corruption crimes if they decide to adopt and implement compliance programs aimed at preventing acts of corruption from being carried out.
Article 5(6) LCMLO sets out that “[the] liability of legal persons and entities treated as such shall be excluded when the perpetrator has acted against express orders or instructions of whoever is entitled to do so”. The content of the rule may be construed in the sense of excluding the liability of legal persons for acts of corruption carried out by their workers, employees or any other person who has acted in the name and/or in representation of a corporate body when compliance programs meant to prevent acts of corruption are in force. However, there is no case law or doctrine trend to confirm this interpretation.
There is no specific rule in the Portuguese legal system that excludes the liability of legal persons for crimes of corruption when they have compliance programs in place aimed at preventing the commission of acts of corruption.
However, Article 11(6) of the Penal Code – pursuant to which”[the] liability of legal persons and entities treated as such is excluded when the perpetrator has acted against the orders or instructions of whoever is entitled to do so” – has been construed both by national legal theory and case law precisely in the sense that the existence and implementation of compliance programs and mechanisms that have certain characteristics may result in the exclusion of the liability of legal persons for acts of corruption committed by their workers, employees or any other person who has acted in the name and/or on behalf of the legal entity.