Compliance Officers Face Criminal Liability in Brazil Under Authorship by Guarantor’s Position Doctrine

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SAO PAULO, BRAZIL - In a significant development, compliance officers in Brazil may now face criminal liability for failures to prevent corporate crimes under the authorship by guarantor’s position doctrine. This doctrine, inspired by German law, holds individuals in leadership positions accountable for nonfeasance on duties they are aware of and formally assumed.

What is the Authorship by Guarantor’s Position Doctrine?

The doctrine is covered in Article 13, s2(b) of Brazil’s Criminal Code, which states that an individual may be held criminally liable if they have the ability and opportunity to act but choose not to prevent a harmful result. The law requires a link between the third party’s conduct, the misdeed, and the guarantor’s nonfeasance.

Who are Considered Guarantors?

In the context of corporate crimes, compliance officers are considered guarantors due to their special duty of oversight and protection related to certain criminal risks in the business. When taking on this role, they voluntarily assume legal duties concerning these risks and may be held accountable if they fail to prevent or detect misdeeds.

Key Requirements for Compliance Officers

To assess a compliance officer’s criminal liability under the authorship by guarantor’s position doctrine, companies must demonstrate that they have implemented a structured and effective compliance program based on detection, prevention, and response. The program must also meet minimum standards foreseen in Brazil’s anti-corruption laws and regulations.

Structured Compliance Program: A detailed analysis of the effectiveness of the compliance program is mandatory, as failures in its structure or lack of top support may limit the liability of the compliance officer.
Risk Assessment: Companies must properly assess and classify criminal risks into severity/probability criteria to ensure that the compliance officer is aware of all risks under their oversight.

Consequences for Non-Compliance

“Under Brazilian criminal law, it is expected that the compliance officer adopts all possible, required, and expected measures to prevent and avoid misdeeds related to business,” said a legal expert. “If they commit a knowingly nonfeasance, they may face criminal liability due to violations of their duty as guarantor.”

Recommendations for Companies

This development highlights the importance of effective compliance programs in Brazil and the potential consequences for individuals who fail to discharge their duties as guarantors. Companies operating in Brazil would do well to review their compliance policies and procedures to ensure they are meeting the minimum standards required by law.

Sources:

Beck, U. (2006). Living in the world risk society. Economy and Society, 35(3), 329.
Estellita, H. (2017). Responsabilidade penal de dirigentes de empresas por omissão. São Paulo: Marcial Pons.
Rotsch, T. (2012). Criminal compliance. Revista para el análisis del derecho, Barcelona, n 5, p 619.

Note: This article is intended to provide a general overview of the authorship by guarantor’s position doctrine in Brazil and its implications for compliance officers. It is not intended as legal advice and should not be relied upon as such.