Anti-Corruption 2024 Comparisons

The main international conventions ratified by Argentina, relating to anti-bribery and anti-corruption, are the following:

• the Inter-American Convention Against Corruption (Law No. 24,759/27,430);
• the United Nations Convention Against Corruption (Law No. 26,097);
• the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (Law No. 25,319);
• the Mutual Assistance Collaboration Protocol in Criminal Affairs for MERCOSUR (Laws No. 25,095 and 26,004); and
• the Inter-American Convention on Mutual Assistance in Criminal Affairs (Law No. 26,139).

The relevant national legislation includes the following:

• the Penal Code of Argentina (Law No. 11,179);
• Law on Ethics in the Exercise of Public Office (Law No. 25,188);
• Law No. 25,233 - Anti-Corruption Office;
• Law No. 27,401 - Criminal responsibility;
• Law No. 26,857 - Ethics in the exercise of public functions;
• Law No. 26,683 - Financial Information Unit;
• the Inter-American Convention Against Corruption (Law No. 24,759/27,430);
• all the signed conventions.

The guidelines developed on the interpretation and application of the national anti-corruption legislation are as follows:

• National Integrity Strategy (ex National Anti-Corruption Plan 2019-2023);
• guidance for the creation and strengthening of integrity and transparency areas in transparency in national, provincial and municipal jurisdictions;
• the Guide for the Ethical Exercise of the Civil Service Public Service;
• Guidelines on Corruption and Integrity: Towards a New Preventive Approach;
• guidelines for the development of integrity policies in state-owned companies.

There have been no key amendments to national legislation over the past year in Argentina.

According to the Argentine legislation, bribery is defined as the offer, promise, giving, acceptance or solicitation of an undue advantage of any value (which may be of a financial or non-financial nature), directly or indirectly, and regardless of its location, in violation of the law, as an inducement or reward to a person to act or refrain from acting in connection with the performance of a person's duties. The receipt of a bribe is an offence.

All persons exercising public functions are prohibited from receiving gifts, presents, donations, benefits, or gratuities, of services or goods, including the gratuitous transfer of the use thereof, on the occasion or in connection with the performance of their functions. It is understood that the gifts, presents, donations, benefits or gratuities have been received on the occasion of the performance of their duties which they would not have been offered if the recipient did not hold the position which he or she holds, except for gifts of courtesy or diplomatic custom (see Decree No. 1,179/2016 and Decree No. 5,013/72).

The term "public official" designates anyone who participates accidentally or permanently in the exercise of public functions, whether by popular election or by appointment by a competent authority. 

Finally, bribing of foreign public officials is also criminalised in Argentina, in the same manner described. On the other hand, bribing between private parties in a commercial transaction is not covered by the law in our jurisdiction.

Influence-peddling is a crime punishable in Argentina that foresees the conduct of the person who, by themselves or through an intermediary, requests or receives money or any other gift or accepts a direct or indirect promise, to unduly assert their influence before a public official, so that the latter delays or fails to do something related to their functions.

As stipulated in Article 256 bis of the Penal Code, the penalty is increased if such conduct is intended to unduly influence a magistrate of the judiciary or the Public Prosecutor's Office.

An individual is also punishable who, directly or indirectly, unduly offers, promises or grants to a public official of another state or of a public international organisation, whether for their own benefit or that of a third party, sums of money or any other object of pecuniary value or other compensation such as gifts, favours, promises or advantages, in exchange for such official performing or omitting to perform an act in connection with the exercise of his or her public functions, or in order to use the influence derived from his or her position in a matter related to a transaction of an economic, financial or commercial nature (see Article 258 bis of the Criminal Code).

Argentine law recognises different types of conduct related to the inaccuracy of corporate books and records and the dissemination of false information - specifically, falsification or adulteration of documents and false balances sheets. In this regard, Argentine courts penalise the representative, administrator or controller of a commercial company that is obliged to establish private control bodies when he/she informs the partners or shareholders by hiding or falsifying facts that are important to assess the economic situation of the company or when he/she includes false or incomplete data in the balance sheets, annual reports or other accounting documents (see Article 309(2) of the Criminal Code). The law also punishes whoever makes in whole or in part a false document or adulterates a true one, in such a way that it may result in damage (see Article 292 of the Criminal Code).

The founder, director, administrator, liquidator or trustee of a corporation, co-operative or other collective person, who knowingly publishes, certifies or authorises a false or incomplete inventory, balance sheet, profit and loss account or the corresponding reports, minutes or memoirs, or falsely informs the assembly or meeting of partners about important facts to assess the economic situation of the company, whatever the purpose of the verification may have been, is also punishable by law (see Article 300 Section 2 of the Criminal Code).

The dissemination of false information is not a crime unless it is used for the purpose of instilling public fear or inciting riot or disorder (see Article 211 of the Criminal Code).

Argentine law punishes various crimes committed by public officials such as misappropriation of public funds, illicit enrichment, embezzlement of funds, incompatible negotiation, illegal appointment, or acceptance of office, according to the Criminal Code of Argentina. 

The public official must not appoint relatives or friends to serve in his or her department, in line with the Public Official Ethic Code, sanctioned by Decree No. 41/99.

There are general provisions that penalise the intermediary according to their degree of participation in the criminal act. Primary or secondary complicity is determined based on the essential nature of the contribution. However, their liability may be excluded in case it is proven that he or she acted as a mere instrument without the will to commit the crime.

In addition, specific regulations are provided for. In criminal tax matters there is the clause of "acting in the place of another" which is used to determine the liability of a person who, without being the taxpayer, commits a crime on behalf of, with the help or for the benefit of a person of ideal existence, a mere de facto association or an entity that, despite not having the status of a legal entity, the regulations attribute to it the status of a taxpayer.

Likewise, with respect to money laundering, smuggling and exchange crimes, the liability of the legal entity is established when the criminal acts have been carried out in its name, with its intervention, or for the benefit of the legal entity, in which case penalties are applied to the company. Finally, there is the figure of the "de facto administrator" for the cases in which it is demonstrated that there is a person operating behind the authorities formally designated in the companies.

The maximum time limit that applies to corruption offences is the maximum term of the anticipated sentence, which may not exceed 12 years. The term is suspended while the public official remains in a public position. It is established that the official's position must have the potential to hinder the investigation for the suspension of the statute of limitations to be applicable.

Argentine law assumes jurisdiction for crimes committed or whose effects must be produced in the territory of the Argentine nation, or in places subject to its jurisdiction. 

In addition, Argentina assumes jurisdiction for crimes committed abroad by agents or employees of the Argentine authorities in the performance of their duties, as well as for the crime of international bribery committed abroad by Argentine citizens or legal entities domiciled in the Argentine Republic (see Article 1 of the Criminal Code).

Argentina adopts the criminal liability of the legal person related to bribery and influence-peddling, national and transnational, negotiations incompatible with the exercise of public functions, illicit enrichment of officials and employees, aggravated false balance sheets and reports, according to Law No. 27,401, which regulates the responsibility of persons and corporate entities. Individuals and companies are also subject to criminal liability for the described offences.

Finally, in cases of transformation, merger, absorption, spin-off or any other corporate modification, the liability of the legal person is transferred to the resulting or absorbing legal person.

The main defence that a legal entity may use is the statute of limitations, which is computed in six years since the crime was committed. 

In relation to the directors, they can structure their defence around the delimitation of their specific competences and the delegation of tasks.

Consequently, the existence of a conflict of interest between the legal entity and the person appointed as representative is foreseen, which leads to the removal of the latter.

Finally, the legal person may allege to obtain an exemption from punishment that the human person who committed the crime acted for its exclusive benefit and without generating any benefit for the entity.

The legal entity cannot extinguish the criminal action by payment or by full reparation of the damage, which is allowed for the natural persons involved in the act.

In relation to the offences outlined previously, no minimis exceptions are contemplated in Argentina.

In relation to the offences described above, no sectors or industries are exempt. 

The legal person may be exempt from penalty if he or she has spontaneously denounced the crime, implemented an adequate control and supervision system whose violation would have required an effort for the commission of the crime and has returned the undue benefit obtained.

The penalties for the offences described above are as follows.

• Corruption: imprisonment between ten to 15 years.

• Bribery and influence peddling: imprisonment between one to six years.

• Negotiations incompatible with the exercise of public functions: imprisonment between one to six years.

• Illicit enrichment of officials and employees: imprisonment between two to six years.

• Aggravated false balance sheets and reports: imprisonment between six months to two years.

Judges must take into account the following:

• non-compliance with internal rules and procedures;
• the number and hierarchy of officials, employees and collaborators involved in the crime;
• the omission of vigilance over the activity of the perpetrators and participants;
• the extent of the damage caused;
• the amount of money involved in the commission of the crime;
• the size, nature and economic capacity of the legal person;
• the spontaneous reporting to the authorities by the legal person as a consequence of an internal detection or investigation activity;
• subsequent behaviour;
• the willingness to mitigate or repair the damage;
• the recidivism.

These guidelines, for the assessment of appropriate penalties, are in accordance with Law No. 27,401.

Employing the method of a compliance programme, Argentine legislation provides duties to prevent corruption. If the entity has relations with the public sector, those duties are obligations; in other scenarios recommendations are sufficient. The duties and recommendations, according to Articles 22 and 23 of Law No. 27,401, are the following. 

• National Integrity Strategy (ex National Anti-Corruption Plan 2019-2023).
• Integrity and Transparency Register for Companies and Entities (RITE) (from the Anti-Corruption Office).
• Adoption of a code of conduct, internal warning system, risk-mapping, training sessions, reporting cases.

The failure to prevent bribery is not an offence.

There is an administrative regulation on lobbying, which establishes the obligation to register and publicise all interest management hearings, understood as those whose purpose is to influence the exercise of any of the functions and/or decisions of agencies, entities, companies, corporations, companies, agencies and any other entity that operates under the jurisdiction of the National Executive Branch (Decree No. 1172/2003).

For the purposes hereof, Interest Management is understood as any activity carried out - in the form of a hearing - by individuals or legal entities, public or private, on their own or on behalf of third parties - for profit or not for profit - whose purpose is to influence the exercise of any of the functions and/or decisions of the agencies, entities, companies, corporations, companies, agencies and any other entity operating under the jurisdiction of the National Executive Branch.

The obligation to report only applies to those who are public officials.

Likewise, those who are legally in a position of guarantor with respect to unlawful acts committed by a legal entity or by an individual under their supervision must report the offence to avoid being held individually liable.

However, the legal person has incentives to spontaneously report a crime that it knows of because of its own internal detection and investigation activity if it intends to obtain a penalty exemption.

If necessary, appropriate and special protective measures (eg, change of identity, police custody, relocation) must be taken to safeguard the life and physical integrity of the whistle-blower and his or her family, according to Law No. 27,319. 

To this end, the National Program for the Protection of Witnesses and Defendants was established to guarantee the physical and psychological integrity of all those persons who collaborate in federal cases.

In the same sense, the extent of protection is left to the discretion of the courts.

Such measures are applicable even after the case has concluded. It is also imperative in the law to keep the informant's identity confidential.

There are economic compensations for informants/whistle-blowers, according to Law No. 27,319.

The compensation regime establishes that, for the provision of information of relative relevance:

• a sum of money not exceeding the equivalent of 1.5 minimum vital and movable wages will be paid;
• a sum of money equivalent to the value between 1.5 minimum vital and movable wages, up to seven minimum vital and movable wages will be paid;
• a sum of money equivalent to the value between seven minimum vital and movable wages up to 23 minimum vital and movable wages will be paid; and
• a sum of money equivalent to the value between 23 minimum vital and movable wages up to 57 minimum vital and movable wages will be paid (see Resolution 917-E/2017).

All the relevant provisions regarding whistle-blowing are on a daily basis actualised by the Anti-Corruption Office, which publishes the provisions on its official webpage.

In criminal matters, there is the figure of forfeiture with respect to assets that are proven to be the proceeds of an illegal act.

Likewise, the regulations provide for the initiation of a patrimonial investigation at the beginning of the initiation of the case as a way of safeguarding the assets of presumed illicit origin (see Article 23 of the Penal Code).

In a similar vein, a special civil forfeiture of ownership regime was established in Decree No. 62/2019.

This process must be carried out before the federal, civil and commercial courts when the origin of the assets cannot be reliably demonstrated and they are suspected to be the result of a criminal action (see Law No. 26.994, Article 1907).

For the offences listed, the enforcement bodies are the Argentinian courts for criminal sanctions, and the Anti-Corruption Office for administrative sanctions; and these entail the prevention and investigation of those conducts that, within the scope established by the Argentine law, are considered as falling within the scope of the Inter-American Convention against Corruption (approved by Law No. 24,759), the United Nations Convention against Corruption (approved by Law No. 26,097), the Convention against Corruption (approved by Law No. 26,097), and the Convention on Combating Bribery of Foreign Public Officials in International Commercial Transactions (approved by Law 25.319). The scope of application covers the National Public Administration, both centralised and decentralised.

The report must deal with agencies of the centralised and decentralised National Public Administration, companies, corporations and any other public or private entity with State participation or whose main source of resources is the State contribution.

The legal person and the Public Prosecutor's Office may enter into an effective collaboration agreement, by means of which the former is obliged to co-operate through the disclosure of precise, useful, and verifiable information or data for the clarification of the facts, the identification of the perpetrators or participants or the recovery of the proceeds or profits of the crime, as well as compliance. Judicial approval is required for these to be accomplished.

The full territory of Argentina encompasses the judicial reach of the body.

The most relevant investigation into corruption in recent times was that of the “los cuadernos" case. This is a recognised case of corruption that was subdivided into several different cases, where different sections of the systematic manoeuvre of state corruption were investigated (in public works, in tenders, in the sale of land, etc). This investigation is still ongoing. Part of it was brought to trial, another is still being investigated. The corruption matrix discovered here was also related to other transnational cases of corruption such as that of "Odebrecht"; and that gave the Argentine investigation important international significance. Historic sentences are expected in this case against the main defendants, some of which have already been delivered.

The level of sanctions is broad: actual and preventive prison, and house detention in the majority of cases. The sanctions range from three years to 15 years of prison for individuals. For companies, the sanctions impose the dissolution of the company involved in the manoeuvre. 

Argentina has been formally assessed by the International Financial Action Task Force (GAFI), which indicates the importance of improving mechanisms to detect the final beneficiary hidden behind legal entities.

On the other hand, The Organisation for Economic Co-operation and Developments, based on the Punta del Este Declaration, highlights the efforts of Argentina in its use of advanced IT tools by the agencies to select cases for audit and the results obtained. 

Argentina has dropped in international anti-corruption rankings. Therefore it is unlikely that changes will be made to the current legislation or the enforcement body in the foreseeable future. However, the country has been gradually adapting its regulations to the international conventions on the matter, as a result of which certain modifications are foreseeable. Specifically, a bill to eliminate the statute of limitations related to corruption offences is currently in parliamentary debate. In addition, the creation of a specialised Prosecutor's Office for the Extinction of Ownership under the orbit of the Public Prosecutor's Office has been anticipated since 2019, but is yet to be fully realised.