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Punitive damages for the non-property
damage derived from the crime of corruption:
Constitutional and efficient?
Daños punitivos para el daño no patrimonial derivado
del delito de corrupción: ¿constitucional y eficiente?
Oscar Sumar Albujar
Dean of the Faculty of Law of the Universidad Científica del Sur
City:
Lima
Country:
Peru
Julio Orellana Presentación
Law School at the Universidad Científica del Sur
City:
Lima
Country:
Peru
Original article (research)
RFJ, No. 13, 2023, pp. 205 - 221, ISSN 2588-0837
RESUMEN:
Este artículo analiza la constitucionalidad y
justificación económica sanción del supuesto daño no
patrimonial a favor del Estado en los casos de delitos de
corrupción. Los autores llegan a la conclusión de que los daños
punitivos tienen muchos problemas en general que resultan en
su inconstitucionalidad e ineficiencia, especialmente cuando es
derivada de un proceso penal.
PALABRAS CLAVE:
Daños punitivos, responsabilidad civil,
daño moral, daño no patrimonial, delitos de corrupción,
justificación económica.
ABSTRACT:
This research analyzes the constitutionality and
economic justification of the use of punitive damages for the
sanction of the supposed non-patrimonial damage in favor
DOI 10.26807/rfj.vi.464
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of the State in the cases of crimes of corruption. The authors
conclude that punitive damages have many problems that result
in their unconstitutionality and inefficiency, especially when it
is derived from a criminal proceeding.
KEYWORDS:
punitive damages, tort law, moral damage, non-
patrimonial damage, corruption crimes, economic justification.
JEL CODE:
K14, D63.
INTRODUCTION
On September 21, 2020, the ad hoc prosecutor’s office
of the famous LavaJato case identified more than $394,400.00
US dollars as patrimonial damage to the State in the main process
where the irregularities of the Interoceánica Sur highway,
sections 2 and 3, are being investigated. What the Attorney
General’s Office did, in a manner compatible with the doctrinal
and jurisprudential criteria currently prevailing in Peru, is to use
punitive damages to punish the alleged violation of the right to
the image of the Peruvian State. We consider this to be of great
academic interest or even from a public policy perspective, not
only because of its economic and social implications but also
because it is a relatively virgin topic.
The relationship between punitive damages and other
systems such as administrative and criminal law has received
little attention in the civil and economic literature (Sustein
& Schkade, 1997, p. 57). Specifically, we have not found any
work that addresses the problem concerning civil liability for
non-pecuniary damages derived from criminal proceedings for
corruption offenses.
The use of punitive damages for these cases, as is
obvious, is intended to punish the perpetrators; but also, to deter
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them from committing acts of corruption in the future. In this
brief essay, we will address the problem of the use of punitive
damages to sanction non-pecuniary damages, especially those
derived from crimes of corruption, where the State is the
victim. As we will see, in this case, it is not possible to achieve
an adequate balance, since the reparation of non-pecuniary
damages in these circumstances ends up being redundant and
arbitrary, which has constitutional and economic implications.
The research has the following structure: first, we will
briefly discuss the functions of civil liability, noting that there is
no consensus on a single function, but there is usually a consensus
on its use for sanction and deterrence, beyond the mere repair
of damages. Then, we will deal with the assimilation of liability
for non-pecuniary damage to punitive damages that have
operated not only in international but also in Peruvian doctrine.
This assimilation is justified, to a large extent, by the difficulty
in determining non-pecuniary damages and the supposed need
to have an extra tool to reinforce, precisely, the dissuasive and
punitive function that it has. Thirdly, we will address the issue
of the use of punitive damages in civil proceedings arising from
corruption offenses. We will see that, at first, no distinction was
made between types of damages - pecuniary or non-pecuniary -
but then - since the approval of the criteria - it has become the
norm and has been applied to the most relevant cases. Finally,
we will analyze this policy, explaining the reasons why this type
of reparation -assimilated to the concept of punitive damages-
turns out to be unconstitutional and at odds with economic
efficiency.
1. FUNCTIONS OF CIVIL LIABILITY
There is no consensus on what are all the functions that
a civil liability system should fulfill, although we must admit
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that there is agreement on the main functions. There is also
an arduous debate as to which of these functions should be
prioritized.
For his part, Monateri, Pier & Schkade (1998, pp. 19-
27), conceives the three main functions of civil liability the
compensatory function, the punitive function and the preventive
function. It is worth saying, briefly, that this function arises in
Anglo-Saxon Law because of
punitive damages
, through which
- in certain cases - compensations higher than those necessary
to compensate the damages suffered by the victims are granted.
However, this function is alien to our legal tradition, since in our
system the calculation of compensation is always made based on
the damage caused. This is not diminished by how compensation
for extra-patrimonial damages is calculated, although in these
cases -certainly- the judge has greater discretion.
Notwithstanding the foregoing, we must point out that
it does not seem convenient to qualify the punitive function
autonomously. This is because, even in common law, the figure
of
punitive damages
seeks to generate a greater disincentive
rather than to punish.
Punitive damages
are not awarded in
all cases but, on the contrary, only in those situations where
there is a special desire to discourage. In this way, in any case,
the alleged
sanction
is a means to an end, namely, the greater
disincentive of certain conducts. Consequently, we believe that
rather than qualifying it as an autonomous function, it should
be recognized as a means that contributes to
deterrence
.
Fernández (2001, pp. 393-445) has classified the
functions of civil liability from a dyadic “or micro-systemic”
perspective and a systemic “or macro-systemic” perspective.
Thus, from the dyadic perspective, he points out that civil
liability fulfills a satisfactory, equivalence, and distributive
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function, while from the systemic perspective it would fulfill
a function of incentivizing or discouraging activities and a
preventive function.
On the other hand, Calabresi, in formulating his
theory on accidents and describing the costs derived from
those events, distinguishes - as we explain in detail below -
primary costs (derived directly from the accident and which
can be reduced through general, specific, or mixed prevention),
secondary costs (sums of money to be paid as compensation
to those who suffered damages, which can be reduced through
fractionation and the Social Diffusion of Risk Theory) and
tertiary costs (those derived from setting in motion the legal
apparatus so that, among others, the victims can enforce their
rights and obtain the compensation due, which can be reduced
in various ways) (Trazegnies, 2005, p. 88). The purpose of a
tort liability system is to prioritize these costs and implement
measures aimed at their reduction.
2. ROLE OF NON-PECUNIARY DAMAGES: ASSIMILATION
TO “PUNITIVE DAMAGES”
In principle, non-pecuniary damages follow a scheme
like pecuniary damages; however, given the difficulty of
calculating them, some authors have emphasized their “punitive”
function, arguing that these damages should be used to show
social reproach for conduct and to deter its occurrence in the
future. In this way, non-pecuniary damages are assimilated into
punitive damages (Sustein & Schkade, 1997, p.57).
For authors such as Massino Franzoni (1999):
[...] the tendency to assimilate non-pecuniary damage
with non-pecuniary damage results in the fact that its
pre-eminent function is actually to punish the person
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responsible for the antisociality of the act, satisfying
the victim, at the same time. (pp. 68-87)
For his part, Diez-Picasso (1999) pointed out that:
Nor can the idea of a sanction be found in the rules
that fulfill a compensatory function, unless by sanction
is understood, in a very generic way, the attachment
to the behavior of certain consequences that may be
unfavorable for someone. The rules on civil liability
cannot go beyond the economic scope of the damage
effectively produced and cannot come into operation if
the damage has not existed, no matter how reproachable
the conduct of the defendant or accused may have
been. (p. 46)
In the Peruvian case, we see that both positions have
also been accepted, but the consideration of moral damages as
punitive damages has prevailed. According to Morales Godo
(2009):
[...] we think that if there are extra-monetary ways to
compensate the victim of a personal injury, good time;
but this is not an obstacle to dispense with reparation in
pecuniary terms, understanding it as a way to produce
a compensatory satisfaction to the victim. (p. 466)
The same criterion has been shared by Liñán, Morales
Hervías, Fernández Cruz and Fernando de Trazegnies. So, we
can say that there is a certain consensus that -in general- the
reparation of moral damages fulfills the justiciary function
(satisfaction of the victim), but also a social function, which is
associated with the punishment of the act. But why punish the
act? As we have seen, the aim is to punish an act not only for
the sake of justice, but also to discourage it, and this, in turn, is
associated with the economic function of civil liability.
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From this perspective, moral damages fulfill a dissuasive
function of conduct that we consider especially reprehensible,
with which the mere economic compensation of the damage
would not be enough -as pointed out by Diez-Picasso-, but it is
necessary to go beyond it, by sanctioning the offender.
For this reason, it is not surprising that, in the case of
liability derived from the crime, moral damages have been used
in Peru as a form of economic sanction.
3. NON-PECUNIARY DAMAGE DERIVED FROM THE CRIME
OF CORRUPTION
Initially, no distinction was made as to the type of
damage - pecuniary or non-pecuniary - but it was imposed
jointly
1
.
1
It is important to mention four Peruvian cases in which civil liability was
imposed in cases of public officials who committed crimes against the
State.
The First Transitory Criminal Chamber of the Supreme Court of Justice
with resolution N° 05-02-2008 Lima, May 2009, imposed jointly and
severally to four former parliamentarians the payment of S/. 1’000,000.00
for civil reparation derived from improper passive bribery and receiving.
Context: paid defectors subsidized by Vladimiro Montesinos with public
funds.
The Permanent Criminal Chamber of the Supreme Court of Justice, with
resolution No. 984-2005 Junín, dated June 7, 2005, ordered a former
director of a juvenile school who stole US$ 1,900.00 that was to be used
for the purchase of computers, to pay S/. 1,000.00 for civil reparation
derived from the crime against public administration to the detriment of
the State and the school, paying S/. 500.00 to each one.
The Permanent Criminal Chamber of the Supreme Court of Justice,
with resolution No. 07-2007, dated 07.10.2009 imposed to a former
parliamentarian for the crime of illegal appointment to public office the
payment of S/. 30,000.00 in favor of the State.
The Special Criminal Chamber of the Supreme Court of Justice, in case
AV-23-2001, with the resolution of July 20, 2009, imposed a former
president, for the crimes against public administration - fraudulent
misconduct against the State and public faith - ideological falsehood
against the State, the payment of S/. 3’000,000.00 jointly and severally
with three other defendants.
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The Manual of criteria for the determination of the
amount of civil reparation in corruption crimes (Ministerio
de Justicia y Derechos Humanos, 2018), has begun to
distinguish non-pecuniary damages from pecuniary damages,
for corruption cases. As can be inferred from the STC of the
Transitory Criminal Court Cassation No. 189-2019 Lima Norte,
the State is considered a victim of non-pecuniary damages, in
cases derived from the corruption of public officials.
In these cases, it is formally considered that the image
of the State has been damaged, but -in reality- what is applied
are punitive damages, which do not depend on the value of the
damage, but on the seriousness of the crime and independent
criteria of the non-pecuniary damage. Thus, the reparation
has a form of calculation that is associated with deterrence,
considering the following criteria:
a)
The seriousness of the wrongful act: Associated with
the nature of the legal interests affected and the
importance of the duties breached.
b)
The circumstances of the commission of the unlawful
conduct: The place, context, and manner of the
commission of the unlawful act shall be considered.
c)
The advantage obtained by the responsible parties:
The degree of advantage obtained will be a factor to be
considered, the greater the advantage, the greater the
amount of compensation.
d)
The level of public dissemination of the unlawful act:
This refers to the transcendence and social extension
or public knowledge of the unlawful conduct.
e)
The affectation or social impact of the illicit act: The
influence on the living conditions of the population.
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f)
The nature and functional role of the harmed public
entity: Following the previous criterion, the public
function of the state entity within which the unlawful
act was committed must be identified.
g)
The scope of competence of the aggrieved public entity:
It is essential to consider whether the aggrieved public
institution has a local, regional, or national scope.
h)
The position or position of public officials: Consider
the hierarchy of the position held by the public official.
As can be seen, being associated with the illicit benefit
(seriousness of the crime), the non-pecuniary damage serves
specifically to discourage its realization in the future, while at
the same time it can satisfy - in the case of damage to the State
- the population. We see, however, some problems associated
with the consideration of the disincentive as a justification for
non-pecuniary damages.
These criteria, as mentioned in the introduction, have
been used in cases of major relevance, such as the LavaJato
mega-corruption case. Concerning the compensation claim, the
attorney general’s office postulates the amount:
i)
For the crime of collusion (Fact 1): USD 403’354,688.35,
for pecuniary damage and S/ 1,292’476,500.00, for
non-pecuniary damage.
j)
For the crime of money laundering (Fact 2): USD
60’436,772.00 for non-pecuniary damage; and
k)
For the crime of money laundering (Fact 3): S/.
545’484,102.30 for non-patrimonial damage, the
corresponding legal interests should be considered in
all cases.
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As can be seen, in recent cases, starting with the
Manual of Criteria, pecuniary damage has begun to be separated
from non-pecuniary damage, which has been applied with a
punitive criterion, with the aim of deterrence. However, as can
also be seen, these damages have been imposed or requested
in conjunction with prison sentences, which leads us to think
that there is redundancy or over-penalization that may lead to
a level of deterrence above the optimum or create inadequate
incentives for other actors -including the State- that could be in
a better position to reduce the costs of corruption in the future.
4. CRITICISM OF THE CONSIDERATION OF NON-
PECUNIARY DAMAGES AS PUNITIVE DAMAGES
4.1. Unconstitutionality
Punitive damages arising from criminal proceedings
have several problems that not only make it an inconvenient
policy but possibly unconstitutional. We start from the
assumption that punitive damages must meet the same criteria
as criminal law (Jeffries, 1986., pp. 139-158). If this is so,
several criteria are not met by punitive damages in general, and
some are specifically affected when used in the framework of a
criminal proceeding.
Beyond the formal criteria, the application of punitive
damages can lead to an erosion of the rule of law, being arbitrary
and inherently unfair.
4.1.1. Arbitrariness and inconsistency
There is extensive literature documenting how punitive
damages are erratic and arbitrary. There are no clear criteria on
how they are awarded, and the applicable evidentiary standards
do not meet the standards of punitive law. In the Peruvian case,
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it has been applied under the guise of damage to the image
of the State, damage that has been assumed without even
the minimum intent of proof. The lack of predictability also
affects the principle of legality of the penalty. Penalties, fines,
or sanctions in general, must be pre-established to be applied
legitimately.
In the Peruvian case, although there is a manual of
criteria for the determination of the amount of civil reparation
in corruption offenses and it contains criteria for its application,
these criteria are divorced from effective damage, but rather
respond to characteristics of the case that - in turn - do not give
us lighter on how the damage could be quantified. The alleged
“damage to the image of the State” derived from corruption cases
has been used with such a loose and discretionary criterion that
it ends up being arbitrary.
On the other hand, if this type of punitive damage is
only used in cases where there is non-pecuniary damage, this
leads to two potential problems, depending on the orientation
of the jurisprudence with the proof of the existence of moral
damages. If the judiciary adopts a flexible criterion, non-
pecuniary damage is presumed in all cases, which generates
the problem of the standard that we will see below. If, on the
contrary, the judiciary assumes a more restrictive criterion, this
leads to the problem of the differentiated treatment that cases
with and without non-pecuniary damage will receive.
In other words, based on this second criterion,
only some cases will have punitive damages, despite being
substantially the same as others, for the sole reason that moral
damages cannot be proven. This would create an incongruity
in the system that would be difficult to overcome by making
punitive damages dependent on a different criterion, which
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does not depend on the seriousness of the damage or the
reachability of the conduct.
4.1.2. Illegality
Additionally, the use of non-pecuniary damages for
the imposition of punitive damages has been the result - as
we have seen in section 3 - of a doctrinal criterion but has
not been supported by any law. Can a sanction be created via
jurisprudence, or must it be included in the law? We consider
that the creation of a complete penalty item must be provided
for in the law.
In the Peruvian case, the Civil Code -applicable even to
liability arising from criminal proceedings- speaks of reparation
and compensation, but never of a sanctioning function of civil
liability that can be operationalized beyond the recognition
of actual damages, and even less of the application of punitive
damages (1984).
4.1.3. Disproportionate
The successive application of fines, penalties, and civil
sanctions for the same act, although it does not formally violate
the ne bis in idem principle, is inconsistent and disproportionate.
Beyond formalities, we are faced with a single act that receives
triple sanction by the system. All these sanctions, at the end of
the day, are intended to dissuade those who cause damage or
crimes and are therefore redundant.
In principle, an administrative or criminal sanction
should seek to complement a civil system that only compensates
-but does not sanction- the tortfeasor. But if the civil system
does sanction the tortfeasor, what is the need to use a system
that is considered an ultima ratio? In other words, there would
be no need to use Criminal Law when there are other sanctions
that already fulfill the sanctioning purpose.
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4.2. Inefficiency
As we shall see below, the constitutional problems
encountered in the application of punitive damages arising
from criminal proceedings also generate problems from the
economic point of view. That is, they not only undermine the
rule of law but also - predictably - generate social costs.
4.2.1. Disincentive beyond the optimum
The lack of certainty about the sanction imposed for
committing a crime generates that people who are not risk-
averse perform more of such activity than is socially optimal
and that risk-averse people perform it in a lower proportion
(Sustein & Schkade, 1997, pp. 17-18). Applied to the case of
corruption in public works, the unpredictable system will tend
to attract bad players and drive away those with more corporate
locks. For example, compliance systems.
Moreover, a system that doubly penalizes the offender
will tend to deter above the optimum. Although it may seem
counter-intuitive, there is an optimal level of corruption (Tanzi,
2002, pp. 19-58), just as there is an optimal level of car accidents
or other social ills. Just as it would be highly questionable to
advocate the total elimination of cars to eliminate car accidents,
it is unrealistic to eliminate corruption, for example, from major
public works. Eliminating them may have the undesirable effect
of decreasing the number of public works done in a country,
with the economic and social effects that this would entail.
Specifically, in the case of large public works in Peru,
many companies have received up to three sanctions for the
same infraction: fines, penalties, and civil sanctions. This not
only represents a disincentive beyond the optimum but can
have the practical effect of bankrupting many of the companies
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currently in the market, benefiting the larger ones, with greater
financial backing.
4.2.2. Perverse incentives
As Fernández Cruz has already pointed out (Rosas, s.
f., p. 1049), compensating the victim beyond the actual damage
can have the perverse effect of encouraging socially inefficient
behavior (reducing the level of care below the optimum). In
cases of corruption linked to public works tenders, for example,
the State itself bears a large part of the responsibility for the
collision that may exist, by not designing more efficient or
transparent bidding procedures. If the State itself is compensated
for the damages suffered in processes that lend themselves to
collusion, it will lack incentives to improve the process itself.
CONCLUSIONS
We can conclude that one way to approach the same
point is through the “rule of the hand”, linked to the concept of
“cheapest cost avoider”. Who is the most economically able to
avoid collusion in bidding processes? Certainly, the State.
From the economic point of view, public policies must
respond to rational criteria and be aimed at reducing social
costs. Opening the door to punitive damages for non-pecuniary
damage creates an incentive for populism. This, in turn, gives
rise to the problems already pointed out in the previous sections:
arbitrariness, inconsistency, and excessive penalization.
Punitive damages have serious issues that result in their
unconstitutionality and ineffectiveness, especially when they
arise from a criminal proceeding, since. As we have mentioned
before, punitive damages must meet the same criteria as
criminal law; however, despite the existence of these criteria
for determining the amount of civil compensation in crimes of
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corruption, these are far from effective damage. but it is only
limited to the characteristics of each case. The “damage to the
image of the State” is criticized, it would be arbitrary to apply
this last concept as a basis for civil compensation since it is
the same that can efficiently avoid crimes such as collusion in
bidding processes. We repeat the fact that the State he oversees
designs which processes he intervenes, processes in which
there is room for the practice of collusion.
Moreover, after practices like this, the State is rewarded
by situations where it receives economic compensation because
of damage to the image of the State because it would not make
sense to change the processes, improve efficiency that prevents
crimes such as collusion or push transparency much further.
There would be no incentives for the State itself to apply these
changes, it is more convenient for these events to occur.
We do not conclude the fact that the State not only
does not assume the consequences of events that are in its
control but even financially compensates itself for the damage
suffered. Public policies must respond to rational criteria and
be aimed at reducing social costs, we are facing a scenario
where the instigator of these “mega crimes” is not punished,
which gives way to the sanctions no longer being applied based
on objectives and begin to apply based on a matter of populism,
where public opinion is valued more.
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Received:
02/06/2021
Approved:
02/07/2022
Oscar Sumar Albujar:
Dean of the Faculty of Law,
Universidad Científica del Sur
City:
Lima
Country:
Peru
Email:
osumar@cientifica.edu.pe
ORCID:
https://orcid.org/0000-0001-7658-9606
Julio Orellana Presentación:
Law student at Universidad
Científica del Sur.
City:
Lima
Country:
Peru
Email:
jorellana@ cientifica.edu.pe
ORCID:
https://orcid.org/0000-0002-6916-4893