Costa Rica recently strengthened its anti-bribery laws by introducing corporate criminal liability. Despite this achievement, loopholes in the definition of the foreign bribery offence and its enforcement raise significant concerns, according to a new report by the OECD Working Group on Bribery.
The 44-country Working Group has just completed its Phase 2 evaluation of Costa Rica’s implementation of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and related instruments.
Costa Rica’s foreign bribery offence does not address some of the most common means of committing this crime. The offence’s onerous intent requirement could leave most cases of foreign bribery committed through intermediaries unpunished. A briber may escape liability if a foreign official solicited the bribe. Foreign bribery enforcement has not received sufficient resources and priority. The Public Prosecution Service and the Attorney General’s Office are both involved in foreign bribery enforcement, which may duplicate efforts and jeopardise cases. Costa Rica also needs to ensure that factors such as national economic interest do not influence the sanctioning of foreign bribery cases. It should also improve guidance and transparency for non-trial resolutions and collaboration agreements.
The Group made further recommendations to improve Costa Rica’s fight against foreign bribery, including:
Fully use all available sources to detect foreign bribery, including the media and reporting by public officials;
Explicitly deny the tax deduction of all bribes, not only those that facilitate or expedite a transaction;
Improve its extradition regime, and where appropriate prosecute offenders who are not extradited;
Adopt comprehensive legislation to protect whistleblowers from retaliation; and
Encourage companies to adopt anti-corruption compliance programmes.
The report also highlights positive aspects of Costa Rica’s efforts to fight foreign bribery. Recent legislation on corporate liability comprehensively addresses issues such as the standard of liability, sanctions and procedure. Costa Rica commendably enacted a new false accounting offence; it now needs to ensure that the offence applies to all legal persons, including state-owned enterprises. The available sanctions against natural and legal persons (apart from small- and medium-sized enterprises) have increased. The provision of mutual legal assistance to foreign countries has largely been prompt and effective.
The OECD Working Group on Bribery adopted the report on 11 March 2020, including recommendations made to Costa Rica on pages [76-83]. In accordance with standard procedures, Costa Rica will report to the Working Group orally in March 2021 on steps taken to implement key recommendations, and in writing in March 2022 on its implementation of all recommendations and its foreign bribery enforcement actions. This written report will be publicly available.