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«The CleanGovBiz Initiative supports governments, business and civil society in their efforts to build integrity and fight corruption. The initiative ...»

-- [ Page 1 ] --

Criminalising bribery

and ensuring

enforcement

July 2012

The CleanGovBiz Initiative supports governments,

business and civil society in their efforts to build integrity

and fight corruption. The initiative draws together

existing instruments, reinforces their implementation,

improves co-ordination among relevant players and

monitors progress towards integrity.

The CleanGovBiz toolkit provides guidance on how

corruption can best be tackled in different policy areas

and offers access to relevant standards and instruments.

www.cleangovbiz.org This work is published on the responsibility of the Secretary-General of the OECD. The opinions expressed and arguments employed herein do not necessarily reflect the official views of the Organisation or of the governments of its member countries.

This document and any map included herein are without prejudice to the status of or sovereignty over any territory, to the delimitation of international frontiers and boundaries and to the name of any territory, city or area.

© OECD 2012 OECD freely authorises the use of this material for non-commercial purposes. Requests for commercial use or translation of this material should be submitted to contact@cleangovbiz.org.

CRIMINALISING BRIBERY

Criminalising bribery and ensuring enforcement The criminalisation of the bribery of public officials—both domestic and foreign— and the enforcement of these anti-bribery laws are a key component of a comprehensive anti-corruption framework and complements parallel efforts to prevent and detect corrupt behaviour.

This chapter provides suggested steps for the criminalisation of the bribery of domestic and foreign public officials. It does not cover other forms of corruption, such as embezzlement, trading in influence, or illicit enrichment. Nor does it cover the bribery of private individuals. It also focuses on ‘active bribery’ (the offering, promising or giving of a bribe) as opposed to ‘passive bribery’ (the asking or receiving of a bribe).

Priority checklist Organised around 8 questions, this handbook is neither a technical manual nor a list of ready-made prescriptions. It is designed to help policymakers who are interested in promoting a corruption-free environment to focus on the essential elements crucial to the effective criminalisation of domestic and foreign bribery in an accessible format.

1. The bribery offence: Does your legislation consider the crime of bribery of a public official as a clear and unambiguous offence?

2. Corporate liability: Do national legislations hold companies responsible – either criminally or civilly/administratively – for the offences of domestic and foreign bribery?

3. Sanctions: Is bribery punishable by effective, proportionate, and dissuasive penalties and are bribes and the proceeds of bribes subject to confiscation?

–  –  –

4. Jurisdiction: When combating the bribery of domestic and foreign officials, can the offence of bribery be punished wherever it has been committed?

5. Investigative and prosecutorial independence: Are investigations and prosecutions of bribery cases independent from considerations of national economic interest, the potential effect upon relations with another State, and the identity of the individuals or companies involved?

6. Statutes of limitations: Do investigators and prosecutors have a reasonable amount of time to follow a bribery case?

7. Investigative techniques: Do law enforcement authorities have access to the tools they need to effectively investigate the often complex cases of bribery of foreign and domestic public officials?

8. International co-operation: Does effective international co-operation support the investigation and prosecution of bribery cases, especially cases of transnational bribery?

–  –  –

Implementation guidance Policy framework for criminalising active bribery of public officials and effective enforcement of these laws This handbook illustrates the questions from the priority checklist with examples from many different countries, ranging from OECD countries to non-OECD countries. It also draws on the experience and expertise of the OECD Working Group on Bribery in International Business Transactions, which is made up of representatives from the 38 Parties to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (AntiBribery Convention)1. It also draws on Articles 15, 16 and 21 of the UN Convention against Corruption (UNCAC)2, which requires its Parties to criminalise both domestic and foreign bribery.

1. Establishing the bribery offence: Does your legislation consider the crime of bribery of a public official as a clear and unambiguous offence?

For a successful fight against corruption, there must be a clear and unambiguous offence of bribery of public officials. A key challenge is to ensure that all the key components that constitute the offence are covered. Corrupt behaviour can only be effectively prohibited and punished if these elements are included in the offence. Thus, governments must not only criminalise the giving of a bribe, but also the offering, and promising of a bribe. This is consistent with international anti-bribery standards, which recognise the corrosive effect this behaviour has on governments, business, and citizens.





1.1 Does the national criminal legislation of your country establish “giving”, “offering” and “promising” a bribe in the bribery offence? Does the offence consider it a crime if a bribe was given, offered or promised, even where the official did not accept the bribe?

Available online at www.oecd.org/daf/nocorruption/convention Available online at www.unodc.org/unodc/en/treaties/CAC/index.html

–  –  –

1.2 Does the definition of an undue advantage in the criminal legislation of your country expressly include non-pecuniary and intangible advantages?

Given the fact that bribers often offer not money but non-pecuniary advantages, such as trips, memberships in private clubs, or educational opportunities for the official’s family members, an effective bribery offence must prohibit the giving, offering, or promising of both monetary and non-monetary advantages.

1.3 Does your national criminal legislation provide a broad definition of public official that covers all the distinct statutes a domestic official as well as a foreign official might have?

There is a need for a broad definition of the domestic or foreign official who is the direct or indirect recipient of the bribe. The definition must in any case cover (a) any person holding a legislative, executive (including the military), administrative or judicial (including a prosecutor) office, whether appointed or elected, permanent or temporary, paid or unpaid, irrespective of that person‘s seniority;

(b) any person exercising a public function, including for a public agency or public enterprise, or providing a public service, and any other person defined as a public official in the domestic law. The definition of a public official must further include (c) officials of all levels and subdivisions of government, from national to local, and including sub-national governmental units of a self-governing nature. It must also encompass (d) officials of any organised area or entity, such as an autonomous territory or a separate customs territory. The definition of foreign public officials also encompasses (e) officials of public international organisations.

Moreover, the definition of a foreign public official should be autonomous in domestic legislation, i.e. it can be proved that a person was a foreign public official without referring to the definition of a public official in the law of the foreign public official’s country.

1.4 Do the bribery offences in your country’s criminal legislation cover bribes given in order that an official act or omit to act in breach of the law or his/her duties? Do the bribery offences in your country cover the case where the purpose of the bribe was to obtain an impartial exercise of judgment or discretion by the official? Do the bribery offences in your country’s legislation require proof of a link between a bribe and an official’s actions or omissions?

CRIMINALISING BRIBERY

Clarifying the purpose of giving a bribe to a public official is also needed. Under international standards, bribery occurs when the purpose of giving, offering or promising a bribe is to induce the official to act or refrain from acting in the exercise or performance of his or her official duties. A key feature of this is the coverage of acts outside an official‘s competence. Hence, an effective bribery offence should cover a corporate employee who bribes an official, in order that this official uses his/her office - though acting outside his/her competence - to make another official award a contract to that company. International standards do not, however, require that the official’s act or omission be illegal or in breach of duties. In other words, it may still be an offence if an official accepts a bribe to perform an act or omission that does not contravene the law per se. For example, under the OECD Anti-Bribery Convention, an offence is committed whether or not the company concerned was the best qualified bidder. Inclusion of legal acts is important because tolerance of this kind of corruption would undermine the integrity of and public confidence in the civil service. In particular, a bribe for the purpose of obtaining an impartial exercise of judgment by a public official must be covered, regardless of whether this is considered an illegal act or in breach of duties.

1.5 Does your national criminal legislation expressly cover bribery though an intermediary? If no, how are these cases dealt with?

Given the fact that the use of intermediaries is an extremely prevalent modus operandi for bribing public officials, in particular foreign public officials, bribery through intermediaries should be covered expressly. In many cases, bribers hire fake consultants who do not provide any legitimate services. Instead, the consultants receive fees from the bribers and forward them to corrupt officials as bribes, less a charge for their assistance. Off-shore corporate vehicles are frequently used as intermediaries, since the opacity of these entities impedes detection and investigation. Intermediaries can be friends or family members of the briber or the official. They can also be related business entities, such as subsidiaries, members of a conglomerate or joint venture partners. To reduce the chances of detection even further, chains of intermediaries are used.

1.6 Does the bribery offence in your national criminal legislation cover bribes provided to third party beneficiaries, including legal persons?

Another common modus operandi for committing bribery is providing bribes to third parties instead of giving them directly to the official. The purpose of this

–  –  –

technique is to distance the official from the bribe in order to reduce the chances of detection. Frequently, the corrupt official will instruct the briber to transfer the bribe directly to the third party. In some cases, the official may receive the bribe from the briber before forwarding it to the third party. A third party may be the corrupt official‘s family member. It may be a company controlled by the official, often incorporated in offshore financial centres to increase secrecy. It may also be a political party or charity, with the bribe masked as a contribution or donation.

For these reasons, any bribery offence should cover expressly bribes that benefit third parties.

Criminalising the bribing of foreign public officials Extending the already existing offence of bribing a domestic public official to the bribery of a foreign public official, or establishing a separate foreign bribery offence Parties to the OECD Anti-bribery Convention have employed either one of the following two statutory techniques for the purpose of formulating the offence of bribing a foreign public official: 1. extending the already existing offence of bribing a domestic public official to the bribery of a foreign public official, or 2.



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