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

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establishing a separate offence of bribing a foreign public official. The majority of Parties has chosen to establish a separate foreign bribery offence (e.g. Australia, Canada, France, Germany, Greece, Hungary, Japan, Korea, Mexico, Switzerland and the United States). The rest has employed a variety of techniques to expand the domestic bribery offence to cover foreign bribery, too (e.g. Bulgaria, Finland, Iceland, Luxembourg, Italy, and Norway). For example, in Norway, active bribery of domestic or foreign public officials is covered under a single provision in the Penal Code, section 276a.

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

Efforts by companies to gain advantages through bribery should be given a high priority in terms of prosecutions through the justice system. Experience in many countries shows, that criminal prosecution of individuals does not sufficiently deter such practices. Liability of a corporation—or legal persons—can have a strong deterrent effect, partly because reputational damage and monetary sanctions can be very costly and partly because it may act as a catalyst for more effective management and supervisory structures to ensure compliance with the law. To implement effectively the liability of legal persons, convictions of legal persons should be made independently from the conviction of the natural person who has committed the bribery. Indeed, for a variety of reasons, it may be impossible to proceed against one individual for corruption offences: In increasingly large and complex structures, operations and decision-making are diffuse; in addition, it is often difficult to identify any particular decision maker within the management chain responsible for the corrupt transaction. Also, since legal persons can take a variety of forms, an effective scheme for imposing liability must cover a wide range of entities.

2.1 Does your national law or legal system include the responsibility of legal persons in relation to the bribery offence? If yes, how is the liability of legal persons applied? For example, are state-owned and statecontrolled companies covered? Does responsibility depend on a culpable act by a representative of the company and, if yes, which positions are defined as being representative of the company and thus entailing legal responsibility? Does the responsibility of the legal person depend on whether the individual perpetrator must have been identified, prosecuted or convicted?

2.2 Does your legislation ensure that a legal person cannot avoid responsibility by using intermediaries, including related legal persons such as subsidiaries, to offer, promise or give a bribe to a foreign public official on its behalf?

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Increasing recognition of corporate liability worldwide All but four (Argentina, Brazil, the Czech Republic, and Ireland) of the 39 Parties to the Anti-Bribery Convention have enacted corporate liability for foreign bribery, as per Article 2 of the Convention.

Elsewhere in the world, the attitude to corporate corruption is also hardening.

For example, most countries in Central and Eastern Europe that are not Parties to the Anti-Bribery Convention allow for the criminal liability of legal persons for the bribery of a domestic public official (e.g. Albania, Bosnia-Herzegovina, Croatia, FYR Macedonia, Latvia, Lithuania, Moldova, Montenegro, Romania, and Serbia). Seven of these countries also allow for the criminal liability of legal persons for active bribery of a foreign public official (FYR Macedonia, Latvia, Lithuania, Montenegro, Romania, and Serbia).

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

Sanctions for bribery should be effective and proportionate so that bribers are dissuaded from committing the offence.

Punitive actions should also capture the proceeds obtained by bribing. In fact, confiscation of the bribe and the proceeds of bribery (or the confiscation of equivalent value if the bribe and the proceeds of bribery are no longer available for confiscation), is an essential sanction for bribery, as it disgorges the profits of the crime. The ability to confiscate should cover both the direct and indirect proceeds of bribery. Direct proceeds are the immediate benefits of the crime, for example, the actual bribe money given to an official or a business license awarded to a briber. Indirect proceeds correspond, for example, to real estate purchased with bribe money. If confiscation does not extend to indirect proceeds, bribers and corrupt officials can easily retain the fruits of their crimes by transforming the direct proceeds of bribery.

CRIMINALISING BRIBERY

3.1 Does your national criminal legislation provide effective, proportionate and dissuasive sanctions for bribery offences? What type of sanctions may be applied to a legal person found guilty of bribery? Do these sanctions include exclusion from contracting with the Government (for example debarment from public procurement, aid procurement and export credit financing), or closing down of legal entities?





3.2. Does your national legislation contemplate the confiscation of the bribe and the proceeds of corruption, including when it is a company that has paid the bribe? Is confiscation mandatory? Does confiscation require a conviction for the offence that gave rise to the proceeds, thus allowing for confiscation only when the perpetrator of the crime giving rise to the proceeds is convicted, or does your legislation not contain such requirement, thus allowing confiscation even when the perpetrator has died or fled? Does confiscation also cover converted proceeds?

3.3 Does your national legislation provide for a confiscation of equivalent value if the bribe and the proceeds of bribery are no longer available for confiscation? Is confiscation from a third person possible, given the fact that the object of confiscation may often be in the possession of a third person rather than the briber or a corrupt official?

Sanctions on bribery imposed in OECD Anti-Bribery Convention countries and beyond Among OECD Anti-Bribery Convention countries the average maximum available penalty for domestic bribery committed by natural persons is three to five years of imprisonment, and ten years in aggravated cases. The average maximum available penalty for foreign bribery is two to fifteen years.

The range of fines available under Parties to the OECD Convention’s laws for natural persons sanctioned for foreign bribery offences varies greatly between countries. France foresees potential fines of up to EUR 150 000 and Luxembourg may impose fines of up to EUR 187 500, while other countries do not place any upper limit on the fine (e.g. Canada, Norway and the United Kingdom).

A large majority of OECD Anti-Bribery Convention countries provide for the confiscation of the proceeds of the foreign bribery offence. In fact, a number of Parties consider the confiscation of proceeds the most important sanction, given that: (i) the bribe may often no longer be available for confiscation if it is already in possession of a foreign public official in a third country; and, more

CRIMINALISING BRIBERY

importantly; (ii) the proceeds may represent a very substantial pecuniary penalty for the briber, which may compensate for potentially low monetary sanctions, and thus have a much more important deterrent effect. For this reason, some OECD countries impose the mandatory confiscation of proceeds (e.g. Hungary, Italy, Luxembourg, Mexico, Norway, the Slovak Republic and Switzerland).

All 39 Parties to the Anti-Bribery Convention are required to impose effective, proportionate and dissuasive penalties against individuals and companies that bribe. The sanctions available to punish bribery of foreign public officials vary in their extent between countries but typically include one or more of the following: fines (the record fine to date concerns Siemens, in Germany, with EUR

1.24 billion in combined fines and possibly more to come); confiscation (e.g.

Hungary and Switzerland), exclusion (e.g. in Bulgaria and Slovenia), supervision (e.g. in the United States), publication of the conviction (e.g. Poland), and closure (e.g. Hungary and Slovenia).

Other countries in the world also punish corporations. In Malaysia, in 2011, a large multinational was banned from bidding on any new telecommunications contracts for a year. The exclusion stemmed from fallout over the company’s admission that it took part in bribery to win contracts with a Malaysian telecommunication company.

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

A sufficiently broad jurisdictional reach is important for prosecuting bribery offences effectively: it is essential that all parts of the bribery offence are punished wherever the offence has been committed.

4.1 Is your country able to assert jurisdiction over the bribery offences when these are committed in its territory? Is your country also able to assert jurisdiction over bribery offences committed abroad that are connected or inextricably linked to offences committed on your country’s territory?

4.2 Is your country able to assert jurisdiction over bribery offences committed outside the country’s territory by nationals? Is your country able to assert jurisdiction over offences committed by any person having his/her principal place of residence in your country (“extraterritorial” or “national” jurisdiction”)?

CRIMINALISING BRIBERY

Territorial and extraterritorial jurisdiction over bribery offences in Belgium At the time of the Phase 2 examination of Belgium under the OECD Anti-Bribery Convention, in late 2005, Belgian statute and case law conferred a broad territorial jurisdiction on the Belgian courts over bribery cases. However, the Working Group questioned whether extraterritorial jurisdiction over the foreign bribery offence was effective, because prosecution depended on the condition that the victim had filed a complaint or an official opinion and the requirement that the act is a punishable offence in the country where it is committed. Even where the conditions for the exercise of Belgian extraterritorial jurisdiction were met, it was not possible for an individual to file a civil claim to compel a prosecution if the prosecutors decided not to proceed. For these reasons, the Working Group recommended that the Belgium takes corrective measures in order to facilitate the exercise of jurisdiction with regard to offences of foreign bribery committed abroad. After this evaluation, Belgium amended its legal provisions governing extraterritorial jurisdiction in light of the Working Group’s recommendations.

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?

Whether or not laws and penal provisions deter corruption depends essentially on the effectiveness of law enforcement. The success or failure of law-enforcement agencies in enforcing anti-bribery legislation depends on various factors, such as adequate means and powers, independence and ability to resist undue interference and influence, skills of their staff, and the efficient co-operation of law enforcement agencies involved.

5.1 Do the competent authorities have adequate resources, political support and independence to implement effectively anti-bribery laws? In particular, can alleged acts of bribery be seriously investigated by your country’s competent authorities without political interferences or being influenced by considerations of national economic interest, the potential effect upon relations with another State, or the identity of the individuals or companies involved?

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5.2 What channels of communication have been established between agencies involved in enforcing bribery laws?



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