Anti-Corruption Committee - anti-bribery conventions and legislation

Below are links to the texts of international anti-bribery conventions as well as the anti-bribery legislation of a number of countries. This information was accurate as of 1 December 2014 or as indicated. It is provided as a convenience and should not be relied on as legal advice.

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Conventions by organisation

National anti-bribery legislation

Argentina

Overview of Argentina's domestic and foreign anti-corruption legal framework

The Argentine Criminal Code (ACC) is the main regulation that governs and punishes behaviors related to bribery and corruption.

Section 256 of the ACC sets forth that any public official who, personally or by means of an intermediary, receives money or any other gift or, directly or indirectly accepts promise of such benefit in order to carry out, delay, or not to do something in relation to his or her duties shall be punished with imprisonment of one to six years and disqualification from public office for life.

Section 256bis of the ACC sets forth that any public official who, personally or through an intermediary, requests or receives money or any other gift or directly or indirectly accepts promise of such in order to make unlawful use of his or her influence before a public official, with the purpose of having such official do, delay, or not do something in relation to his or her duties, shall be punished with imprisonment of one to six years and special disqualification from holding public office for life.

The second paragraph of this Section 256bis sets forth that if this conduct is intended to make unlawful use of any influence before a magistrate of the Judicial Branch or the State Attorney’s Office, with the purpose of having such magistrate issue, decree, delay, or omit any resolution, sentence, or judgment concerning any matter under his or her jurisdiction, the maximum term of imprisonment shall be increased to twelve years.

Section 258 of the ACC sets forth that any person who personally or through an intermediary gives or offers any gift for the purpose of obtaining any of the conducts punished by Sections 256 and 256bis shall be punished with a prison sentence ranging from one to six years.

If the gift is given or offered with the purpose of obtaining any of the conduct described in Sections 256bis second paragraph and 257, the punishment shall be prison of two to six years. If the perpetrator is a public official, special disqualification from public office lasting two to six years shall also be imposed in the first case and lasting three to ten years in the second case.

Section 257 of the ACC sets forth a punishment to any magistrate from the Judicial Branch or the State Attorney’s Office who personally or through an intermediary, receives money or any other gift, or directly or indirectly accepts promise of such in order to issue, decree, delay, or omit any resolution, sentence or judgment concerning any matters under his or her jurisdiction. In such case, the defendant shall be punished with imprisonment of four to twelve years and total disqualification from public office for life.

The offence of bribery of foreign public officials was introduced by means of Law No. 25,188 in Section 258-bis ACC, which was also amended by Law No. 25,825 in order to cover the bribery of officials of international organisations. Section 258-bis ACC sets forth that any person is punished with imprisonment from one two six years and special disqualification for life from the exercise of any public office if that person offers or gives a public official from a foreign state or from an international public organisation, personally or through an intermediary, money or any object of pecuniary value or other benefits such as gifts, favour, promises or benefits, for: (i) that person's own benefit or for the benefit of a third party or (ii) the purpose of having that official do or not do an act related to his office or to use the influence derived from the office he holds in an economic, financial or commercial transaction.

Additionally, a fine of up to ARS 90,000 (approximately USD $5,625) can be imposed where an offence is committed ‘with the aim of monetary gain’ (Section 22bis of the ACC).

In addition, there are civil and administrative liabilities regarding breaches of foreign and domestic bribery laws.

It is important to point out that Argentina does not provide for corporate criminal offences regarding corruption. However, on October 20, 2016, the Government presented a Bill on Corporate Criminal Liability for Cases of Corruption. Additionally, it was recently enacted Law No. 27,304, the so-called “Repentance Law” – ley del arrepentido –, which amended the ACC. While Argentina already allowed plea bargaining for certain offences, the new law is primarily intended to cover corruption investigations.

On the other hand, Law No. 25,188 on Ethics in Public Office and its implementing legislation sets forth ethics and anticorruption duties for all public officials, and Decree No. 41/1999 sets forth the Code of Ethics for Public Officials of the National Executive Branch.

Pursuant to the Law No. 25,188, public officers are forbidden from receiving presents, gifts, donations, benefits or gratuities, of things, services or goods “as a result of their work or in the performance of their public duties”. However, the prohibition does not apply in cases of "courtesy gifts" and "gifts offered as diplomatic practice".

Decree Nº 1179/16 sets forth a registry for those gifts and the applicable proceedings. Moreover, according to the General Regime for Public Procurement and its Regulation (approved by means of Decree 1023/2001 and Decree 1030/2016, respectively) the following persons cannot enter into contracts with the public administration, among others: (i) bidders who have been convicted for the commission of intentional crimes are disqualified for a period equal to twice the length of the sentence imposed for their crimes; (ii) companies that have been convicted abroad of bribery or transnational bribery practices under the terms of the OECD Convention will not be eligible for a period equal to twice the sentence; (iii) individuals or legal entities that were included in the lists of debarred persons of the World Bank or the Inter-American Development Bank, as a result of corrupt practices referred to in the OECD Convention will not be eligible while such condition continues to exist.

Overview of Argentina's international anti-corruption framework

Argentina is signatory of the following international anti-corruption conventions:

  • The Inter-American Convention against Corruption (IACAC) in 1997 (approved by Law No. 24,759
  • The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Convention) in 2000 (approved by Law No. 25,319)
  • The United Nations Convention against Transnational Organized Crime, in 2002 (approved by Law No. 25,632)
  • The United Nations Convention against Corruption (UNCAC) in 2006 (approved by Law No. 26,097)

Key provisions of the law

Maximiliano N. D’Auro partner at Estudio Beccar Varela, Buenos Aires, September 2017

Australia

Overview of Australia's domestic anti-corruption legal framework

Domestic laws in Australia can be classified as laws prohibiting bribery involving:

-        Commonwealth public officials;

-        State Government public officials;

-        Commercial corruption (governed by State laws); and

-        Local Government public officials.

Sections 141 and 142 of the Criminal Code Act 1995 (Cth) Criminal Code) create offences concerning the domestic bribery of a Commonwealth public official including the giving or receiving of a bribe or corrupting benefit and abuse of public office. Offences have penalties of between 5 and 10 years imprisonment and substantial fines.

Each of the five Australian States and two Territories in Australia has statutory criminal acts or codes (for example, the Crimes Act 1900 (NSW) and the Crimes Act 1958 (Vic) as two examples) and local government legislation that regulates the conduct of State and Local Government public officials. Again, significant penalties by way of imprisonment and fines exist.

Overview of Australia's foreign anti-corruption legal framework

The primary source of criminal liability for foreign bribery is set out in section 70.2 of the Criminal Code.

A person is guilty of bribing a foreign public official if the person:

-        provides or causes to be provided, a benefit to another person; or

-        offers or promises to provide a benefit to another person; or

-        causes an offer or a promise to provide a benefit to be made to another person; and

-        the benefit is not legitimately due to the other person; and

-        the person does so with the intention of influencing a foreign public official in the exercise of the official’s duties as a foreign public official to obtain or retain business or a business advantage that is not legitimately due to the recipient or intended recipient.

Statutory defences exist if:

-        the payment or conduct at issue is justified or permitted by a written law of the country where it occurred (section 70.3, Criminal Code); and

-        is properly to be characterised as a facilitation payment (section 70.4, Criminal Code).

Criminal liability can be imposed on a corporation by reason of the direct or indirect conduct of the corporation’s Board of Directors or a “high managerial agent” (sections 12.1 to 12.6, Criminal Code).

Secondary grounds of liability are founded in the Criminal Code (for Commonwealth offences) and on domestic Australian law in circumstances where some conduct occurs within Australia or there exists a jurisdictional basis to prosecute an individual or corporation in Australia.

Potential secondary (criminal and civil) liability arises in connection with the dealing in proceeds or instruments of crime, obstruction of justice, improperly dealing with public money, breach of directors’ duties, failing to comply with record keeping rules, false accounting and misstatement of income tax or other revenue laws.

Key provisions of the law

Last updated by Robert Wyld and Jasmine Forde, Johnson, Winter & Slattery, February 2017

Belgium

Overview of Belgium's anti-corruption legal framework

Corruption of public officials is subject to criminal sanctions under Belgian law. Both active and passive corruption can be punished. Under Belgian law, the notion of a public official is very broad. There is no minimum threshold regarding corruption. Facilitation payments are not permitted under Belgian law. Both legal entities and persons can be convicted for corruption. Companies that have been convicted for corruption will be excluded from public procurement contracts, including ongoing contracts. Apart from criminal law, public officials can be subject to a code of conduct (depending on the public authority they belong to). In general, it is advisable to refrain from giving or offering anything to public officials, especially public servants and judges.

Key provisions of the law

Art. 246-253 of the Belgian Criminal Code:

Last updated by William Timmermans, ALTIUS, Brussels, Belgium, January 2017

Bolivia

Overview of Bolivia's domestic and foreign anti-corruption legal framework

Since the entry into force of its new Constitution in 2009, Bolivia has implemented various reforms related to anti-corruption. The Bolivian Constitution itself regards the principles and values that support the country’s anticorruption structure, also addressing issues such as civic control, public accountability and the civic duty to denounce corrupt acts.  Bolivia enacted an Anticorruption National Policy in 2009, concentrating on civic participation, transparency of public management, elimination of corruption and institutional strengthening and coordination.

Law 004 on the Fight against Corruption, Illicit Enrichment and Investigation of Wealth (“Law 004”) and the Criminal Code criminalize acts such as: (1) money laundering; (2) active and passive bribery; (3) transnational bribery; (4) embezzlement; (5) influence peddling; and (6) illicit enrichment.  Elements of abuse of public functions are also criminalized.   Institutional strengthening and coordination is established through Law 004. The Ministry for Institutional Transparency and the Fight against Corruption, the Comptroller-General’s Office, the State Prosecutor’s Office, the Bolivian Police, the Attorney General’s Office and the Financial Investigation Unit are formally established as the entities related to the fight against corruption.  Law 004 also created the National Counsel against Corruption, Illicit Enrichment and Legitimation of Illicit Proceeds, as well as an integrated system for the centralization and exchange of information.

Civic participation and control and transparency of management of state resources are developed by Law 341 and Supreme Decree 28168, respectively. 

On the international level, Bolivia is signatory to both the United Nations Convention against Corruption and the Inter-American ConventionAgainst Corruption. The Conventions are an integral part of the national legal system and have the status of law.

Key provisions of the law

Last updated by Lindsay Sykes & Estefania Paz, Ferrere Abogados, Bolivia January 2017

Bosnia and Herzegovina

Overview of Bosnia and Herzegovina's domestic and foreign anti-corruption legal framework

Bosnia and Herzegovina’s (hereinafter: BiH) domestic anti-corruption legal framework is primarily based on the provisions of the Criminal Code which criminalizes attempted corruption, extortion, active and passive bribery, accepting or demanding gifts, the bribery of foreign officials, embezzlement and abuse of office. Gifts of a symbolic nature are acceptable, yet must not exceed the value of EUR 102. The Code also contains provisions on liability of legal persons for criminal offences. Money laundering is criminalized under the Law on Prevention of Money Laundering and Financing of Terrorism. Government officials are subject to the Law on civil service in the institutions of Bosnia and Herzegovina and codes of conduct for civil servants and rules on incompatibility of office. The government has adopted a new anti-corruption strategy and action plan for the years 2015-2019. Law in BiH provide for the protection of whistleblowers.

Other relevant laws are the Law on conflict of interest in the governmental institutions of BiH, and the Law on political party financing.

Bosnia & Herzegovina has signed and ratified the UN Convention against Corruption and is party to the OECD Anti-Bribery Convention.

Key provisions of the law

Last updated by Law office of Tomislav Šunjka, Novi Sad, Serbia, January 2017

Brazil

Overview of Brazil's domestic and international anti-corruption legal framework

In Brazil, bribing government officials can result in criminal, civil and administrative enforcement. Therefore, one single act may lead to different enforcement actions brought by different authorities.

At the criminal level (which in Brazil applies exclusively to individuals, not legal entities, regardless of their form of incorporation), the Brazilian Criminal Code sanctions bribery of national and foreign public officials with jail time and pecuniary fines. At the civil/administrative level, The Public Probity Act sets forth civil liability for those engaging in corrupt practices to the detriment of the Brazilian public entities.

However, it was the recent Clean Company Act, enacted in 2013 and regulated in federal sphere in 2015, which introduced a strict liability for corporations engaging in corrupt practices with domestic or foreign public officials. Additionally, in cases of companies contracting with public entities, other statutes may be applicable, such as the Public Tender Act.

It is also relevant to note that Brazil is a signatory of the main international anti-corruption Conventions (OAS Inter-American Convention, OECD Convention and UN Convention).

Key provisions of the law

Domestic
International

Last updated by Fabiola C L Cammarota de Abreu, Souza, Cescon, Barrieu & Flesch Advogados, Brazil 2017

Cambodia

Overview of Cambodia's domestic and international anti-corruption legal framework

Cambodia's Anti-Corruption Law defines corruption as including specific corruption-related criminal offences found in the Criminal Code, which holds the main body of offences, and provides a few additional offenses.

The Cambodian Criminal Code states that offering, accepting, or soliciting a bribe is punishable. Offering, accepting, or soliciting any gift, present, or promise of a benefit to a government official or corporate recipient, or providing this recipient with any other benefit to induce that person to perform or abstain from performing his or her duty, is seen as a corruption offence. This is the general definition, with aggravating circumstances depending on the positions of the intended bribe receiver or solicitor.

The Criminal Code also criminalizes improper biddings, money laundering, embezzlement, favouritism, extortion, and facilitation payments.

The additional corruption offences prescribed in the Anti-Corruption Law are abuse of power by public servants or citizens that hold public office through election, illicit enrichment, corruption-proceeds offences, and petty corruption offences.

All corruption-related offences require a benefit for the intended receiver or solicitor of the bribe. Benefits are defined differently per applicable law, but in general, they include monetary and non-monetary benefits, for example giving or promising jobs, contracts, payments, gifts, services, and opting not to perform services.

Cambodia’s anti-corruption regulations cover both the public and private sector, and therefore include commercial bribery between private entities. Corrupting any private employee or public official is considered an offence and is punishable. The position of the intended receiver or solicitor of the bribe determines the applicable punishment regime. For example, corrupting a judge or a company’s director leads to higher minimum punishment.

The main bodies tasked with the implementation and prosecution of anti-corruption law in Cambodia are the national Anti-Corruption Unit and regional police forces. Although enforcement of anti-corruption law is slowly improving, enforcement remains a rarity and corruption is widespread. 

Key provisions of the law plus links

Last updated by John E King, Tilleke & Gibbins (Cambodia), Phnom Penh, Cambodia, October 2017

 

Canada

Overview of Canada's domestic anti-corruption legal framework

In Canada, domestic bribery is prohibited by the Criminal Code. The core offence is contained in section 121(1)(a), which makes it an offence for a person to, directly or indirectly, give, offer or agree to give to an official or to a member of his family, or to anyone for the benefit of the official, or for an official to demand accept or offer or agree to accept, a loan, reward advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with any matter of business with the government. In addition to the core offence, there are a variety of offences that depend on the office held by the official Criminal Code of Canada, s. 119 (Corruption and Disobedience), 120 (bribery of officers), 121 (fraud on the government), 123 (municipal corruption), 124 (selling or purchasing office), 125 (influencing or negotiating appointments or dealing in offices) & 426 (secret commissions)

Thanks to its wide scope, Section 426 can cover any act not covered by sections 119 to 125. There is no mention of the office held and the article is aimed at any employee who accepts or solicits a reward, advantage or benefit of any kind for doing or not doing or having done or not done any act relating to the affairs of his employer. This acceptation or solicitation must be done corruptly, i.e. in secret and without knowledge by the employer.

Key provisions of the law

Overview of Canada's foreign anti-corruption legal framework

Foreign bribery is prohibited by the Corruption of Foreign Public Officials Act (S.C. 1998, c. 34) (CFPOA), which came into force in February 1999. Under the CFPOA, “every person commits an offence who, in order to obtain or retain an advantage in the course of business, directly or indirectly gives, offers or agrees to give or offer a loan, reward, advantage or benefit of any kind to a foreign public official or to any person for the benefit of a foreign public official

(a) as consideration for an act or omission by the official in connection with the performance of the official’s duties or functions; or

(b) to induce the official to use his or her position to influence any acts or decisions of the foreign state or public international organization for which the official performs duties or functions.”

Key provisions of the law

Last updated by Elisabeth Danon, Senior Adviser at KPMG, Canada

Cayman Islands

Overview of the Cayman Islands' domestic and foreign anti-corruption legal framework

The Cayman Islands’ Anti-Corruption Law (2016 Revision) (the “Law”) came into force on 1 January 2010 with the intent of giving effect to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the United Nations Convention Against Corruption. 

The Law establishes an independent Anti-Corruption Commission (the “Commission”) appointed by the Governor (in turn appointed by the United Kingdom) that is responsible for investigating suspected offences under the Law. Commission investigators have powers broadly similar to those of the police. Actual prosecutions are conducted by the Director of Public Prosecutions.

The Law replaces the more limited provisions relating to corruption and bribery which previously existed under the Penal Code. It provides for a broad range of corruption offences by individuals and companies including bribery (of both domestic and foreign officials); fraud on the government; breach of trust; abuses of public or elected office; undisclosed conflicts of interest; and secret commissions.  There is a limited exception for overseas facilitation payments. There are also the usual inchoate offences (conspiracy, aiding and abetting, etc.) and ancillary offences for failure to report an offence. Protections are included for informants and agent provocateurs.

Offences are extraditable. Offences fall under the Law if committed outside the Cayman Islands by Caymanians, residents of the Cayman Islands and Cayman Islands companies, or on board Cayman registered planes or vessels.

Punishment on conviction ranges from 2 to 14 years imprisonment depending on the offence.

The Commission may assist overseas anti-corruption agencies in the investigation of corruption, including (with the court’s approval) the temporary freezing of assets.

With one limited exception (contractors subscribing to election funds to secure government contracts), election offences fall under the Elections Law (2013 Revision) and are handled by the police.

Although not a matter of Cayman Islands law, it is noted that certain provisions of the United Kingdom Bribery Act 2010, which came into force in July 2011, have extraterritorial effect in so far as they apply to citizens of British Overseas Territories, including the Cayman Islands.

More information about the Anti-Corruption Commission can be accessed on its website at www.anticorruptioncommission.ky.

Last updated by Cayman Islands Anti-Corruption Commission, September 2017.

Chile

Overview of Chile's domestic and foreign anti-corruption legal framework

Bribery in connection with domestic and foreign government officials is considered a criminal offence under Chilean law and is regulated in the Criminal Code.

Such conducts are also prohibited under laws which regulate the activity of domestic public officials and are considered infringements of the probity and impartiality principles to which public officials are subject, which provide administrative sanctions for such conducts.

In general, corporations cannot be criminally liable for offenses under the Criminal Code in Chile.  However, the Law on Criminal Liability of Corporations includes an exception in the case of corruption, and allows corporations to be liable for the bribery of local or foreign public officials if the act was done in the corporation’s own interest by the corporation’s owners, representatives, executives or employees who have proper authority in carrying out the business. 

Commercial bribery is not considered a crime under Chilean law.  However, there is currently a bill being discussed in Congress which aims to regulate and punish such conduct.

Key provisions of the law

Last updated by Daniel Praetorius, partner, Bofill Escobar Abogados, Santiago de Chile, Chile

 

China

Overview of China's domestic and foreign anti-corruption legal framework

Under PRC law, prescriptions concerning anticorruption can be found in different laws and relevant interpretations or regulations, among which the PRC Criminal Law and the PRC Anti-Unfair Competition Law are two major statutes in the field of anticorruption. In addition, China has acceded to United Nations Convention against Corruption in 2005 and declared that the PRC is not bound by Paragraph 2 of Article 66 of the United Nations Convention against Corruption. Such convention entered into force in China during 2006. Moreover, on April 18 2016, the Supreme Court and the Supreme Procuratorate published the Interpretation on Several Issues concerning the Application of Law in the Handling of Criminal Cases of Embezzlement and Bribery. According to this regulation, a more detailed conviction and sentencing standard for embezzlement, bribery, and related crimes was established.

Criminal law

Criminal sanctions against corruption and bribery are prescribed by thePRC Criminal Law. According to the different capacity of the counterpart of bribery, the crime of corruption under the PRC Criminal Law can be broadly classified into two different categories, State functionary corruption and non-State functionary corruption.The conviction and sentencing of the two categories are different.

The Criminal sanctions against State functionary corruption

The crimes concerning State functionary (including State-owned entities)1 corruption include the crimes of offering bribes to a State functionary and the crimes of acceptance of bribes by a State functionary. In such kinds of crimes, the party accepting bribes is a State functionary.

Pursuant to Article 93 of the PRC Criminal Law,State functionaries refer to persons who perform public service in State organs, including (i) persons who perform public service in State-owned companies, enterprises, or institutions or people's organizations; (ii) persons who are assigned to perform public service by State organs such as State-owned companies, enterprises, or institutions to companies, enterprises, or institutions that are not owned by the State or people's organizations; and (iii) other persons who perform public service according to law shall all be regarded as State functionaries. Since the definition of a State functionary is relatively broad, any individual or company shall pay full attention to their conduct in the association with the managers of a State-own company.

According to the severity of the corruption circumstances, the criminal sanctions vary. For the crimes of accepting or offering bribes, the sanctions for individuals include criminal detention, fixed-term imprisonment, life imprisonment, and the death penalty. Regarding the illegally obtained property, it shall be recovered, and at the same time, a fine shall be imposed. For the crime of introducing a bribe to a State functionary, the sanctions include criminal detention or a fixed-term imprisonment of not more than three years. The sanctions concerning the property are the same as the crimes of accepting or offering the bribes.

Relevant laws and regulations

Article 163 of the PRC Criminal Law: Where an employee of a company or enterprise who, taking advantage of his or her position, demands money or property from another person or illegally accepts another person's money or property in return for the benefits he or she seeks for such person, if the amount involved is relatively large, he or she shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; if the amount is huge, he or she shall be sentenced to fixed-term imprisonment of not less than five years and may also be sentenced to confiscation of property.

Any employee of a company or enterprise who, violating State regulations in economic activities, accepts rebates or service charges of various descriptions and takes them into his or her own possession shall be punished in accordance with the provisions in the preceding paragraph.

Any employee of a State-owned company or enterprise who, being engaged in public service or who is assigned by a State-owned company or enterprises to engage in public service in a company or enterprise that is not owned by the State, commits any of the acts mentioned in the preceding two paragraphs shall be convicted and punished according to the provisions in Articles 385 and 386 of this Law.

Article 164 of the PRC Criminal Law: Whoever, for the purpose of seeking illegitimate benefits, gives money or property to any employee of a company or enterprise, if the amount involved is relatively large, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the amount involved is huge, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years and shall also be fined.

Whoever, for the purpose of seeking illegitimate commercial benefits, gives money or property to a functionary of a foreign country or an official of an international public organization, he or she shall be punished according to the provisions in the preceding paragraph.

Where a unit commits the crime as mentioned in the preceding paragraph, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be punished according to the provisions in the preceding paragraph.

Any briber who confesses the bribery voluntarily prior to prosecution may be given a mitigated punishment or be exempted from punishment.

Article 184 of the PRC Criminal Law: Any employee of a bank or of any other banking institution who in financial activities demands money or property from another person or illegally accepts money or property from another person in return for the benefits secured for such person or, in violation of State regulations, accepts rebates or service charges of various descriptions and takes them into his or her own possession shall be convicted and punished according to the provisions in Article 163 of this Law.

Any employee of a State-owned banking institution or any person assigned by a State-owned banking institution to a banking institution that is not owned by the State to engage in public service who commits the act mentioned in the preceding paragraph shall be convicted and punished according to the provisions in Articles 385 and 386 of this Law.

Related Crimes Committed by a Unit

Under the PRC Criminal Law, any company, enterprise, institution, State organ, or organization that commits an act that endangers society, which is prescribed by law as a crime committed by a unit, shall bear criminal responsibility. In general, where a unit commits a crime, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be criminally punished.

Relevant laws and regulations

Article 164 of the PRC Criminal Law: Whoever, for the purpose of seeking illegitimate benefits, gives money or property to any employee of a company or enterprise, if the amount involved is relatively large, such person shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the amount involved is large, he or she shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years and shall also be fined.

Whoever, for the purpose of seeking illegitimate commercial benefits, gives money or property to a functionary of a foreign country or an official of an international public organization, he or she shall be punished according to the provisions in the preceding paragraph.

Where a unit commits the crime as mentioned in the preceding paragraph, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be punished according to the provisions in the preceding paragraph.

Any briber who confesses to bribery voluntarily prior to prosecution may be given a mitigated punishment or be exempted from punishment.

Article 387 of the PRC Criminal Law: Where a State organ, State-owned company, enterprise, institution or people's organization extorts from another person or illegally accepts another person's money or property in return for securing benefits for the person, if the circumstances are serious, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the offence shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention.

Any of the units mentioned in the preceding paragraph that, in economic activities, secretly accept off-the-book rebates or service charges, of various title, shall be regarded as guilty of acceptance of bribes and punished in accordance with the provisions of the preceding paragraph.

Article 390A of the PRC Criminal Law: Whoever, for the purpose of seeking illicit benefits, offers a bribe to any close relative of an employee of a state functionary or any other person who has a close relationship with the said employee of the state authority, or any dismissed employee of a state authority or any of his or her close relatives or any other person who has a close relationship with the said employee, such person shall be sentenced to imprisonment of not more than three years or criminal detention in addition to a fine; if there is any serious circumstance or any serious loss has been caused to the national interest, such person shall be sentenced to imprisonment of not less than three years but not more than seven years in addition to a fine; or if there is any other especially serious circumstance or any especially serious loss has been caused to the national interest, such person shall be sentenced to imprisonment of not less than seven years but not more than ten years in addition to a fine.

Where a unit commits any crime as provided for in the preceding paragraph, the unit shall be sentenced to a fine, and its directly responsible person in charge and other directly liable persons shall be sentenced to imprisonment of not more than three years or criminal detention in addition to a fine.

Article 391 of the PRC Criminal Law: Whoever, for the purpose of securing illegitimate benefits, gives money or property to a State organ, State-owned company, enterprise, institution or people's organization or, in economic activities, violates State regulations by giving rebates or service charges, of various title, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention.

Where a unit commits the crime mentioned in the preceding paragraph, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the offence shall be punished in accordance with the provisions of the preceding paragraph.

Article 393 the PRC Criminal Law: Where a unit offers bribes for the purpose of securing illegitimate benefits or, in violation of State regulations, gives rebates or service charges to a State functionary, if the circumstances are serious, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the offence shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention. Any person who takes into his own possession the illegal gains derived from bribing shall be convicted and punished in accordance with the provisions of Articles 389 and 390 of this Law.

The exceptions and grounds of defense

According to Paragraph 3 of Article 389 of thePRC Criminal Law, whoever gives articles of property to state functionaries due to extortion but receives no illegitimate gain shall not be considered as committing the crime of offering bribes. Moreover, pursuant to Paragraph 2 of Article 390 of the PRC Criminal Law, before prosecution, offenders in offering bribes who take the initiative to admit their crime may receive a lighter punishment or be exempted from punishment. In addition, the provisions concerning the voluntary surrender and meritorious service apply to corruption crimes as well.

Relevant laws and regulations

Article 67 of the PRC Criminal Law: Voluntary surrender refers to the act of voluntarily delivering oneself up to justice and truthfully confessing one's crime after one has committed the crime. Any criminal who voluntarily surrenders may be given a lighter or mitigated punishment. The ones whose crimes are relatively minor may be exempted from punishment.

If a criminal suspect, a defendant under compulsory measures, or a criminal serving a sentence truthfully confesses his or her other crimes that the judicial organ does not know, this act of such person shall be regarded as a voluntary surrender.

Article 68 of the PRC Criminal Law: Any criminal who performs such meritorious services as exposing an offence committed by another, which is verified through investigation, or producing important clues for solving other cases may be given a lighter or mitigated punishment. Any criminal who performs major meritorious services may be given a mitigated punishment or be exempted from punishment.

Any criminal who not only voluntarily surrenders after committing the crime but also performs major meritorious services shall be given a mitigated punishment or be exempted from punishment.

Article 389 of the PRC Criminal Law: Whoever, for the purpose of securing illegitimate benefits, gives money or property to a State functionary shall be guilty of offering bribes.

Whoever, in economic activities, violates State regulations by giving a relatively large amount of money or property to a State functionary or by giving him or her rebates or service charges of various descriptions shall be regarded as guilty of offering bribes and punished for it.

Any person who offers money or property to a State functionary through extortion but gains no illegitimate benefits shall not be regarded as offering bribes.

Article 390 of the PRC Criminal Law: Whoever commits the crime of offering bribes shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; whoever offers bribes to secure illegitimate benefits, if the circumstances are serious or if heavy losses are caused to the interests of the State, shall be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years; if the circumstances are especially serious, he or she shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment and may also be sentenced to confiscation of property.

Any briber who, before he or she is investigated for criminal responsibility, voluntarily confesses his or her act of offering bribes may be given a mitigated punishment or exempted from punishment.

Administrative law

In the field of commercial bribery, if a wrongdoing is not criminally punishable, the PRC Anti-unfair Competition Law may apply.

Administrative penalty

Pursuant to Article 8 of the PRC Anti-unfair Competition Law, “Managers shall not use money or properties or other methods to bribe others in order to sell or purchase commodities. Managers shall be guilty of giving a bribe if the managers give a secret commission to the other organizations or individuals without normal accounting records. If the organizations or individuals accept the secret discount without normal accounting records, they shall be guilty of taking a bribe. Managers may offer a discount to others in public, or may pay commissions to a middle man in selling or purchasing commodities. However, managers who give discounts to others or pay commissions to a middle man, or others who take discounts or commissions, shall make an accounting strictly according to the facts.”

According to Article 22 of the PRC Anti-unfair Competition Law, “Where a manager bribes by giving money or properties or using any other method in order to sell or purchase commodities and violates the PRC Criminal Law, such manager shall be investigated in accordance with the PRC Criminal Law; if the acts as first mentioned do not violate the PRC Criminal Law, the manager may be fined an amount from more than RMB 10,000 to less than RMB 200,000 in accordance with the facts, and the illegal income shall be confiscated.”

The exceptions and grounds of defense

According to Article 8 of the Interim Provisions on Banning Commercial Bribery, “A business operator shall not give any cash or material objects as gifts to another entity or individual during a commodity transaction, except an advertising gift of a small value which is offered as a common commercial practice. Whoever violates the precedingparagraph shall be regarded as committing commercial bribery.”

Civil compensation in commercial bribery

Pursuant to Article 20 of the PRC Anti-unfair Competition Law, “A manager shall bear the responsibility for compensating the damages of the harmed party due to  a violation of the provision of this Law. The amount of compensation shall be equivalent to the profit during the course of the relevant violation if it is difficult to measure the amount of damages. And the manager shall also compensate the harmed party for reasonable costs where the harmed party has paid costs to investigate the activities of unfair competition made by the manager.The damaged party may bring a lawsuit in the People's Court when its legal interests and rights are damaged.”

In addition, according to Article 2 of the PRC Tort Law, “those who infringe upon civil rights and interests shall be subject to the tort liability according to this Law. ‘Civil rights and interests’ used in this Law shall include the right to life, the right to health, the right to name, the right to reputation, the right to honor, the right to self-image, the right of privacy, marital autonomy, guardianship, ownership, usufruct, security interest, copyright, patent right, exclusive right to use a trademark, right to discovery, equities, right of succession, and other personal and property rights and interests.”


1 Under PRC Law, a unit, such as a State-owned company or institution can be regarded as the subject of a crime.

Link to applicable local legislation

Last updated by Leanne Zheng, partner, JunHe, Beijing, China, February 2017

 

Colombia

Overview of Colombia's domestic and foreign anti-corruption legal framework

Colombia has ratified the following international treaties related with these matters: (i) Inter-American Convention Against Corruption; (ii) the United Nations Convention Against Corruption; and (iii) the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

The main regulation related with corruption is included in: (i) the Colombian Criminal Code (Law 599 of 2000); (ii) the disciplinary regulation, regarding obligations and sanctions applicable to public servants and privates with public functions; (iii) public policies adopted in mandatory provisions; (iv) independent statues, such as the Anti-Corruption Statute (Law 1474 of 2011) and some specific rules applicable to some sectors of the economy (e.g. provisions applicable to health services); and (v) Law 1778 of 2016, which includes the administrative responsibility of legal entities for transnational bribery.

Corruption-related crimes protect the Public Administration and may differ on the subjects of the criminal responsibility, depending on whether they are public servants or not. For example, one of the crimes is bribery, which may adopt one of three different modalities, depending on the liable subject:

  • Proper bribery: sanctions the public servant that receives or accepts promise of remuneration, directly or indirectly, for delaying or omitting certain activities or performing an act that is contrary to his/her public duties.

  • Improper bribery: sanctions the public servant that receives or accepts promise of remuneration, directly or indirectly, for the performance of activities that are within his/her duties.

  • Apparent bribery: sanctions the public servant that receives money or other benefit from a person with interest in any matter that is subject to his/her knowledge.

  • Bribery for giving or offering: sanctions the private agent that gives or offers money or other benefit to a public servant, in any of the cases described above.

Additionally, when the bribery is committed against a foreign public servant, transnational bribery occurs. According with the Anti-Corruption Statute, transnational bribery takes place when a foreign public officer is given, offered or promised to give sums of money, any object of monetary value or any other kind of benefit or value in exchange of performance, omission or delay regarding any act related with their duties and in connection with a business or an international transaction.

Finally, private bribery takes place when the conduct is undertaken between two private parties. This criminal offense sanctions directors, managers, employees and advisors of local companies for offering, receiving, requesting or accepting any unjustified benefit.

Furthermore, Law 1778 of 2016 has established an administrative responsibility of legal entities when they are used as a mechanism to commit acts of bribery. Sanctions may include fines that amount up to 200.000 minimum monthly wages (COP$147.543.400.000 for 2017, approximately USD$50.000.000) and publicity of the sanction in newspapers of national coverage and in the company’s webpage.

Relevant anti-corruption authorities are: (i) Congress, which enacts legislation, (ii) the Transparency Observatory, the National Commission of Moralization and the Regional Commissions of Moralization, which audit and control the progress and implementation of anti-corruption legislation, (iii) Transparency Secretary, which enforces the government initiatives and efforts in the fight against corruption, and (iv) Superintendence of Companies, General Controller of the Republic, Public Ministry, Attorney General Office and Judges, which investigate and sanctions criminal and administrative offenses regarding anti-corruption in Colombia.

Key provisions of the law

Last updated by Carlos Fradique Mendez, partner, and Juan Eduardo Gómez Londoño, associate, Brigard & Urrutia Abogados, Bogota, May 2017

Costa Rica

Overview of Costa Rica's domestic and foreign anti-corruption legal framework

According to the Corruption Perceptions Index by Transparency International, the Central American region is classified as an area of high corruption risk.

While Costa Rica has the best evaluation among the countries in the region, the other neighboring countries show a very worrying situation. Our legislation has been developed to identify the problems of corruption, and to try to address them in a specialized way. So far, it has been a slow development, but government efforts have increased in recent years along with a greater legislative work.

As part of the legislative efforts in the fight against corruption and promoting integrity and transparency in the functioning of the public administration, in 2004 the Law Against Corruption and Illicit Enrichment in Public Service was enacted, with the aim, as stated in Article 1, of "preventing, detecting and punishing corruption in the exercise of public administration." That Law Against Corruption and Illicit Enrichment in Public Service introduced a number of limitations, prohibitions, penalties and control mechanisms, specifically in response to international agreements signed by the country. It is mainly focused on demands of bribes government officials and not on the payment of bribes by private parties.

We expect new legislation relating directly to anti-corruption issues (domestic and cross-border) to be adopted soon. That would help meet the requirements of the Organization for Economic Cooperation and Development (OECD) in order of Costa Rica to be part of the Convention on Combating Corruption. In fact, on July 21, 2016, a Reform Bill was approved to the amend the “Crime of Transnational Bribery”, which is codified in article 55 of the Law Against Corruption and Illicit Enrichment in Public Service. This was done in order to punish international bribery consistent with the highest international standards. Through this reform, some cases and behaviors that were not in the prior law are now included, specifically including the action of “promising” a benefit and acts performed through third party intermediaries – essential according to the international requirements in this subject.

There is no obligation for private parties to have anti-corruption programs, nor are companies required to hire anti-corruption compliance officers. The obligations under the law and international conventions are summarized in the prohibition against giving anything of value to public officials in order to obtain an undue advantage. Furthermore, providing gratuities or gifts of any kind to Government Officials under Costa Rican Laws is absolutely prohibited regardless of their value. Moreover, granting food, travel, entertainment or accommodation to Government Officials is also forbidden, since the standard to be applied is absolutely strict. Finally, “facilitation payments” are not authorized under Costa Rican law. Gratuities to private parties are not regulated in Costa Rica, and, private/commercial bribery is not punished under Costa Rican Laws.

Key provisions of the law

Last updated by Juan Carlos Tristán, BLP Abogados, San José, Costa Rica, February 2017

Croatia

Overview of Croatia's domestic and foreign anti-corruption legal framework

Croatia’s domestic anti-corruption legal framework is primarily based on the provisions of the Criminal Code related to criminalisation of public and private sector corruption, extortion, abuse of office, money laundering, trade of influence, active and passive bribery etc.

Other than the Criminal Code, the scope of laws that have relevant anti-corruption provisions are Law on preventing conflict of interests, for implementation of which the Commission for Conflict of Interest was formed. The Commission may impose a public official a fine, warning and public announcement of the decision. Except as otherwise required by law, the procedure before the Commission, except for the procedure of voting, is open to the public.  The Law on Financing of Political Activities and Election Campaigns ensures transparency of funding sources and expenses of political parties. Political parties are required to manage their finances in accordance with applicable regulations of the financial operations of non-profit organizations, the origin and manner of expenditures, and for the first time, limits the amount of donations and prohibits anonymous donations. The Law on Freedom of Information, Law on Civil Servants and Code of Ethics for Civil Servants are also relevant. Protection of persons who in good faith report corruption in Croatia is prescribed in the following areas of law: Article 131 of the Criminal Code, Art. 109 and 131 of the Labour Law, Article 32. Law on Civil Servants and Employees in Local and Regional Self-Government,  Article 25. Law on Data Confidentiality,  Art. 36 of the system of internal financial controls in the public sector,  Art. 57. Trade Act, Art. 14. Law on Civil Servants.

Croatia ratified relevant international conventions such as UN Convention against corruption, Criminal Law Convention on Corruption and its Protocol and Civil Law Convention on Corruption, Memorandum of Understanding relating to cooperation in combating corruption through the Anticorruption Initiative of South Eastern Europe, Agreement on the Establishment of the International Anti-Corruption Academy as an international organization.

Key provisions of the law

Last updated by Law office of Tomislav Šunjka, Novi Sad, Serbia, January 2017

Czech Republic

Overview of The Czech Republic's domestic anti-corruption legal framework

Domestic bribery laws in the Czech Republic consist of Act No. 40/2009 Coll., the Criminal Code; Act No. 418/2011 Coll., on Criminal Liability of Legal Entities; and Act No. 141/1961, on criminal proceedings.

Major offences distinguished by the Criminal Code are (a) acceptance of a bribe, (b) active bribery and (c) indirect bribery. The Criminal Code defines a bribe as “offering, giving, requesting or accepting (directly or indirectly) in the public or private sector, an unauthorised benefit consisting in a direct material enrichment or other advantage which is obtained or is intended to be obtained by the bribed person or another person with his/her agreement, and to which s/he has no right.” Other special offences apply in relation to public tenders and public auctions.

Regarding acts performed outside the Czech Republic, such types of bribery can be caught if (a) an offence is committed abroad by a Czech or a person without Czech citizenship but permanently residing in the Czech Republic (section 6 of the Criminal Code); or (b) a person (regardless of his/her citizenship) commits an offence abroad with the intention to have an impact in the Czech Republic (section 4 of the Criminal Code). The act also needs to be illegal in the foreign country of performance if the offence is committed abroad by a foreigner or a person without Czech citizenship and not permanently residing (domiciled) in the Czech Republic and this person was caught in the Czech Republic and was not extradited for criminal proceedings in the foreign country (section 8 of the Criminal Code).

Those liable for the crime can be a (a) Czech national; (b) Czech partnership; (c) director of a Czech company; (d) Czech company (the Czech Republic and self-governing territorial units in the exercise of public power are excluded); if the bribe is committed abroad by its foreign subsidiary, the company would be liable only if it would have actually benefited from the conduct of its foreign subsidiary or if the company would be an accessory to the crime of its subsidiary; (e) foreign subsidiary if the bribe is committed abroad by a foreign subsidiary of a Czech company for the benefit of that Czech company; (f) foreign national/company/partnership if the bribe is committed in the Czech Republic; (g) foreign national domiciled or ordinarily residing in the Czech Republic if the bribe is committed outside the Czech Republic; and also (h) foreign company/partnership if the bribe is committed abroad.

Penalties include, for individuals, imprisonment for up to 12 years, forfeiture of property, monetary penalties, house arrest, community service, prohibition of entry to sporting, cultural and other social events, deportation and prohibition of residence; and for companies monetary penalty, forfeiture of property, forfeiture of a possessed item, publication of judgment, punishment by disqualification from participating in public tenders and applying for subsidies and grants.

On 1 July 2016 Act No. 340/2015 Coll., the Contract Register Act, came into force in Czech Republic, it establishes a register for contracts (an online electronic database of information) wherein, as of the effective date, contracts are published regarding the disposition of public resources and property. The aim of the Contract Register is to ensure that details regarding publicly related contracts are in the public domain to ensure openness and reduce the risk of corruption in their award and/or performance.

Overview of the Czech Republic's foreign anti-corruption legal framework

The Czech Republic is a signatory to the following European and international anti-corruption conventions.

Council of Europe:

  • The Civil Law Convention on Corruption, Strasbourg, 4 November 1999, in force in the Czech Republic since 1 January 2004
  • The Criminal Law Convention on Corruption, Strasbourg, 27 January 1999, in force in the Czech Republic since 1 July 2002
  • The Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities' financial interests, 27 November 1995
  • The Convention drawn up on the basis of Article K.3 (2) (c) of the Treaty on European Union on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union, 25 June 1997
  • The Council Framework Decision 2003/568/JHA, 22 July 2003, on combating corruption in the private sector, ratified by the Czech Republic on 31 July 2003

International:

  • The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, Paris, 17 December 1997, in force in the Czech Republic since 21 March 2000 (the Convention on Combating Bribery)
  • The United Nations Convention against Corruption, 31 September 2003, ratified by the Czech Republic on 29 November 2013
  • The United Nations Convention against Transnational Organized Crime; 15 November 2000, ratified by the Czech Republic on 24 September 2013

Key provisions of the law

Last updated by Jitka Logesová, attorney-at-law and partner at Kinstellar, Prague, 16 December 2016

Denmark

Overview of Denmark's domestic and foreign anti-corruption legal framework

The primary legislation relating to anti-corruption in Denmark is the Criminal Code (Act no. 1052/2016), The Criminal Code is supported by the Danish Bookkeeping Act (Act no. 648/2006), the Annual Report Act (Act no. 1580/2015), and the Anti-Money Laundering Act (Act no. 1022/2013).

The legislation regarding anti-corruption primarily seeks to prevent bribery of individuals employed by the state but also to prevent bribery of individuals employed in the private sector. Furthermore supporting legislation seeks to enhance the transparency in the bookkeeping and annual reports of private companies and to prevent money-laundering.

The Criminal Code distinguishes between "public active bribery", "public passive bribery" and "private bribery".

Section 122 of the Criminal Code concerns "public active bribery" by prohibition of the unduly granting, promising or offering of a gift or another privilege to a person exercising a Danish, foreign or international public office or function in order to induce him or her to do or fail to do anything related to his or her official duties. The wording "exercising a Danish, foreign or international public office or function" is to be interpreted broadly in accordance with the guidelines from the OECD and the Council of Europe, and as such any individual employed, elected to or acting on behalf of the Danish judicial system, the Danish state or any Danish municipality as well as any person employed, elected to or acting on behalf of a foreign government or international public organisations (such as the OECD, NATO, UN and the EU) is subject to the provision.

Next, Section 144 of the Criminal Code concerns "public passive bribery" by prohibiting any person exercising a Danish, foreign or international public office or function from unduly receiving, demanding or accepting the promise of a gift or other privilege.

Finally, Section 299(2) of the Criminal Code regulates bribery in the private sector, i.e. "private bribery" (both active and passive), whereby a person who is entrusted with handling matters of financial nature for another person receives, demands or accepts the promise of, for the benefit of himself or herself or of others, a pecuniary advantage, as well as any person who grants, promises or offers such advantage, including in the form of kickbacks.

Key provisions of the law

Please note that the applicable local legislation is only publicly available in Danish.)

  • Criminal Code - Article 122: Any person who unduly gives, promises or offers to someone performing a public function or office with a Danish, foreign or international public organisation a gift or another benefit to make the relevant person perform or fail to perform such function or office is sentenced to a fine or imprisonment for a term not exceeding six years.
    Article 144: Any person who unduly receives, demands or agrees to receive a gift or another benefit in the exercise of a Danish, foreign or international public function or office is sentenced to a fine or imprisonment for a term not exceeding six years.
    Article 299: A fine or imprisonment for a term not exceeding one year and six months is imposed on any person who, in cases which do not fall within section 280, neglects his duty in relation to property entrusted to him by another person, thereby inflicting on such other person a considerable property loss not compensated before the first-instance judgment is issued […]
    (2) A fine or imprisonment for a term not exceeding four years is imposed on any person who receives, demands or agrees to receive a gift or another benefit for himself or others in a manner contrary to his duty of managing the property entrusted to him by another person, and on any person who grants, promises or offers such gift or other benefit.
  • Danish Bookkeeping Act - The Bookkeeping Act (Act no. 55/2015) contains the general requirements for bookkeeping and record keeping for companies incorporated in Denmark and foreign companies conducting business in Denmark. Although the Bookkeeping Act does not have any sections specifically dealing with anti-corruption or bribery, cases of anti-corruption and bribery regarding issues with respect to bookkeeping typically involve violations of Section 6, which concerns a general obligation to organise and carry out bookkeeping in accordance with generally acceptable bookkeeping practices and an obligation not to destroy, dispose of or distort accounting material, and to safeguard accounting material against errors and abuse, and Section 7 which concerns general requirements for registration and documentation of company transactions.
  • Annual Report Act
  • Anti-Money Laundering Act

Last updated by Hans Fogtdal, Attorney-at-Law, Plesner, Copenhagen, Denmark, June 2017

Dominican Republic

Overview of the Dominican Republic's domestic and foreign anti-corruption legal framework

In the Dominican Republic, the relevant regulations regarding bribery and corruption are: (i) Article 146 of the Dominican Constitution, (ii) the Criminal Code, (iii) the Criminal Procedure Code, (iv) Law No. 448-06 on Bribery in Trade and Investment, (v) Law No. 311-14 of the Sworn Statements of Income and Assets of public servants and officials, and (vi) Law No. 41-08 on Public Service.

Article 312 of the Criminal Code stipulates that: “The individual who directly or indirectly, offers or promises a civil or public servant commissions, donations or any other type of benefit, for his benefit or that of a third party, so that that said official or public servant executes or refrains from performing an act in the person's favor, shall be punished with four (4) to ten (10) years of imprisonment and a fine in an amount which, if the amount involved in the infraction is specified, shall be between four (4) and ten (10) times that amount, and if it cannot be specified, will be from four (4) to ten (10) times the public sector minimum wage received by the official or public servant at the time of the commission of the infraction.”

The Criminal Procedure Code provides in article 85 that any person may initiate criminal action for acts committed by public officials in the exercise of their functions, notwithstanding the obligations of the Public Prosecutor’s Office. In practice, this means that the Criminal Procedure Code assumes that public corruption makes all citizens a victim, and in that regard, provides for the possibility of anyone to initiate the criminal process.

In accordance with article 146 of the Dominican Republic Constitution and Law No. 311-14, public officials and servants must provide an affidavit describing their property, before and after completion of their duties or at the request of a competent authority. These public officials and servants must always prove the origin of their property.

The Criminal Code (Article 314) establishes corporate criminal liability for corruption and trafficking in influence. Additionally, Law No. 448-06 imposes criminal sanctions to companies for bribery with respect to local or foreign public officials. Companies may be subject to fines and temporary shutdown or intervention of the company or its commercial operations, if found guilty of the offences established in articles 312 and 313 of the Criminal Code and articles 3 and 4 of Law 448-06. Owners, employees and officers of the aforesaid companies shall also be liable for these acts.

The Public Procurement Law No. 340-06 sets out sanctions for civil servants convicted of corruption in respect to public biddings and contracts.

The Special Prosecutor’s Office for the Prosecution of Administrative Corruption (PEPCA), created by Decree No. 324-07, is the authority in charge of undertaking all necessary legal actions and is responsible for the investigation, prosecution, and initiation of criminal proceedings in cases of public corruption before the domestic courts in the Dominican Republic. This Specialized Prosecutor’s Office is under the responsibility of the Dominican Republic Attorney General’s Office who will act as national director and coordinate with other public agencies in the investigation and prosecution of administrative corruption.

Article 4 of Law No. 448-06 provides for criminal liability (individuals or companies) for bribery of foreign officials. Foreign authorities can require mutual legal assistance and international cooperation to the Dominican Republic for the crimes committed by public official and their proceeds, in virtue of international conventions ratified by the Dominican Republic. The Dominican Republic is not party to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

Overview of the Dominican Republic's international anti-corruption legal framework

The Dominican Republic is signatory of the following international anti-corruption conventions:

  • The Inter-American Convention against Corruption (IACAC) in 1997 (ratified in 1999)
  • The United Nations Convention against Transnational Organized Crime in 2002 (ratified in 2006)
  • The United Nations Convention against Transnational Organized Crime in 2002 (ratified in 2006)
  • The United Nations Convention against Corruption (UNCAC) in 2006 (ratified in 2006)
  • Dominican Republic–Central America Free Trade Agreement (DR-CAFTA) with the United States of America (Article 18.8, section B, Chapter 18) (ratified in 2005)

Key provisions of the law

Last updated by Aimée Prieto, Prieto Cabrera & Asociados, October 2017

Ecuador

Overview of Ecuador's domestic and foreign anti-corruption legal framework

Ecuador acknowledges anticorruption as state policy in its 2008 Constitution. The Ecuadorian anticorruption legal framework is led by the Criminal Code, which covers passive and active bribery, extortion, influence peddling, abuse of office, unlawful enrichment, embezzlement and money laundering. There is no corporate liability for corruption-related crimes and there are no regulations on foreign bribery. The Organic Law on Public Service establishes administrative sanctions for corruption among public officials. Money laundering is further regulated by the Law for the Prevention of Money Laundering and the Financing of Crimes. Ecuador has ratified the United Nations Convention Against Corruption, the United Nations Convention against Transnational Organized Crime, the Inter-American Convention Against Corruption and the Andean Plan of Action Against Corruption, enacted by way of Andean Community.

The Transparency and Social Control Branch was created by the Constitution to prevent and fight corruption in the public and private sectors. It is known as the fifth power and is constituted by the Council for Citizen Participation and Social Control, the Ombudsman office, the State Comptroller’s Office and superintendences. The Council stimulates public participation in the fight against corruption, establishing mechanisms for public accountability, investigating reports of corruption and issuing reports. Its guidelines are contained on the “National Plan for the Prevention and Combat of Corruption” for the period 2013-2017.

Public funds audit, overseeing and control over public entities, officials, as well as private entities handling public money are tasks for the State Comptroller’s Office. Which is entitled to impose sanctions that include economic penalties, public officials removals from office and the obligation to report the State Prosecutor’s Office about initial evidence of wrongdoings that may lead to a criminal investigations and prosecutions.

Key provisions of the law

Last updated by Lindsay Sykes and Ernesto Velasco, Ferrere Abogados, Santa Cruz, Bolivia, February 2017

El Salvador

Overview of El Salvador's domestic and foreign anti-corruption legal framework

El Salvador’s anti-corruption legal framework consists of domestic laws and foreign international agreements, aimed to prevent and punish corruption of public servants and individuals. Following is a brief explanation of how such regulations prevent corruption and attain justice in the Republic of El Salvador:

  • Constitution of the Republic of El Salvador (1983) - Article 1 of the Constitution of the Republic of El Salvador provides that El Salvador recognizes the individual as the origin and purpose of State activities, organized for the attainment of justice, security under the law, and the common welfare. As a result, it is duty of the State to ensure its citizens' liberty, health, culture, economic well-being, and social justice.

  • Government Ethics Law - (Issued through Legislative Decree 873 on October 10, 2011, and published in the Official Gazette 220, Tome 393, on December 7, 2011.) The Government Ethics Law was issued with the objective of promoting the ethical performance of the duties of Public Servants of Government and Municipalities, preventing and detecting corrupt practices, and sanctioning acts that are contrary to public officials' duties or constitute ethical prohibitions provided for in the law.

  • Probity Law - (Issued through Legislative Decree 225 on December 16, 2015, and published in the Official Gazette 237, Tome 409, on December 23, 2015.) El Salvador's Probity Law aims to combat corruption by containing measures designed to create, maintain and strengthen the systems for the declaration of income, assets and liabilities, to avoid conflicts of interest of public servants and to publicize them when appropriate.

  • Access to Public Information Law - (Issued through Legislative Decree 534 on December 2, 2010, and published in the Official Gazette 70, Tome 391, on April 8, 2011.) The access to Public Information Law promotes the participation of individuals, the efficiency of public administration, the fight against corruption and the generation of a culture of transparency.

  • Criminal Code - (Issued through Legislative Decree 1030 on April 26, 1997, and published in the Official Gazette 105, Tome 335, on June 10, 1997.) The Criminal Code provides in title XVI, chapter II and III, a series of offences related with corruption, which include embezzlement, embezzlement by fault, extortion, prohibited transactions, exaction, proper bribery, improper bribery, diversion or misuse of public funds   , illegal enrichment, breach of the duty of care for official documents, active bribery, transnational bribery, resistance, aggressive resistance and civil disobedience.

  • Court of Audit Law - (Issued through Legislative Decree 438 on August 31, 1995, and published in the Official Gazette 176, Tome 328, on September 25, 2016.) The Court of Audit Law regulates the organization and function of the entity that supervises public entities and officers, regarding the administrative and judicial aspects of finance and budget performance and management.

  • OAS Inter-American Convention Against Corruption - (Signed by El Salvador on March 29. 1996, ratified on October 26, 1998 and deposited on March 18, 1999.) The OAS Inter-American Convention Against Corruption requires States Party to promote and strengthen mechanisms designed to prevent, detect, punish and eradicate corruption; and to promote, facilitate and regulate cooperation among States Party to ensure the effectiveness of measures and actions designed to prevent, detect, punish and eradicate corruption in the performance of public functions.

  • OAS Treaty on Democratic Security in Central America - (Signed in San Pedro Sula, Honduras on December 15, 1995.) The purpose of the OAS Treaty on Democratic Security in Central America is to achieve the strengthening of institutions and the rule of law, and the ensure that governments are elected by universal, free and secret votes, and to ensure the unconditional respect for human rights in the countries of the Central American region. The Central American Democratic Security Model is based on the goal of strengthening civil power, political pluralism, economic freedom, the elimination of poverty and extreme poverty, the promotion of sustainable development, the protection of the consumer, the environment and the cultural heritage; the elimination of violence, corruption, impunity, terrorism, drug trafficking, and arms trafficking; the establishment of a reasonable balance of forces that will take into consideration the domestic situation of each country and the need for cooperation among all Central American countries to ensure their security.

  • United Nations Convention against Corruption - (Signed by El Salvador on December 10, 2003 and ratified on July 1, 2004.) The purpose of the United Nations Convention against Corruption is to promote and strengthen measures to prevent and combat corruption more efficiently and effectively, to promote, facilitate and support international cooperation and technical assistance in the prevention of and fight against corruption, including in asset recovery and to promote integrity, accountability and the proper management of public affairs and public property.

  • Guatemala Declaration for a Region Free of Corruption - (Signed in Guatemala on November 15, 2006.) The Guatemala Declaration for a Region Free of Corruption establishes an agreement at the highest political level to give priority to fighting corruption and recognizes corruption as a regional and transnational problem.

Key provisions of the law

  • Constitution of the Republic of El Salvador - Articles: 1, 195, 207 and 240.

  • Government Ethics Law - Articles: 1 to 9, 29, 30 to 50, 51 to 56.

  • Probity Law - Articles: 1, 2, 3, 15, 21, 28 to 45.

  • Access to Public Information Law - Articles: 1, 2, 3, 61 to 102.

  • Criminal Code - Articles: 325 to 329A.

  • Court of Audit Law - Articles: 1 and 101.

  • OAS Inter-American Convention Against Corruption - All the provisions of this Convention are relevant for the anti-corruption legal framework.

  • OAS Treaty on Democratic Security in Central America - All the provisions of this Treaty are relevant for the anti-corruption legal framework.

  • United Nations Convention against Corruption - All the provisions of this Convention are relevant for the anti-corruption legal framework.

  • Guatemala Declaration for a Region Free of Corruption - All the provisions of this Declaration are relevant for the anti-corruption legal framework.

Last updated by David Claros, associate, García & Bodán, Republic of El Salvador, February 2017

Estonia

Penal Code Passed 6 June 2001 entered into force 1 September 2002 as amended

  • Section 164 – Bribery of an electorate
  • Section 294 – Accepting a bribe
  • Section 296 – Arranging a bribe
  • Section 298 – Giving a bribe

Finland

Criminal Code of Finland (39/1889, amendments up to 927/2012 included)

  • Chapter 14
    • Section 2 – Electoral Bribery
  • Chapter 16
    • Section 13 – Giving of Bribes
    • Section 14 – Aggravated giving of bribes
    • Section 14a – giving of bribes to a member of parliament
    • Section 14b aggravated giving of bribers to a member of parliament
  • Chapter 30
    • Section 7 – giving a bribe in business
    • Section 7a - aggravated giving of a bribe in business
    • Section 8 – acceptance of a bribe in business
    • Section 8a – aggravated giving of a bribe in business
  • Chapter 40 - offences in office
    • Section 1 – Acceptance of a Bribe
    • Section 2 - Aggravated acceptance of a bribe
    • Section 3 – Bribery Violation
    • Section 4 – Acceptance of a bribe as a member of Parliament
    • Section 4a – Aggravated acceptance of a bribe as a member of Parliament

France

Overview of France's domestic anti-corruption legal framework

France’s domestic anti-corruption legal framework sets out 2 major types of offences, namely corruption and influence peddling. Both of these offences can be committed actively or passively, i.e. by soliciting or accepting a bribe, in relation with a foreign public official, a domestic public official, or a private commercial party. The mere solicitation or acceptance of a bribe constitutes an act of corruption or influence peddling, irrespective of whether the bribe is actually paid.

The difference between the offences of corruption and influence peddling under French law lies in the nature of the advantage to be drawn from the bribe. Whereas the offence of corruption is characterised by the carrying out, or the omission to carry out, an act related to or facilitated by the recipient’s position, the offence of influence peddling involves the misuse of the recipient’s real or assumed influence in order to obtain a favourable decision from a third party. 

A new statute, known as “Sapin II”, dated 9 December 2016, extends the reach of French law in cases of alleged bribery or influence peddling by removing the previous extraterritorial requirements that the victim be a French citizen, or that the alleged offender be a French citizen and the conduct at issue be an offence in both France and the territory in which the conduct allegedly took place.

As such, and in addition to the key competence criteria on territoriality, the French authorities will be able to prosecute: (i) French citizens who commit acts of bribery or influence peddling abroad, irrespective of whether a complaint is filed by the alleged victims or an official denunciation is made by the State where the offence was allegedly committed; as well as (ii) foreign citizens who usually reside in France for acts of bribery and influence peddling committed abroad, including foreign directors of companies subject to French law.

Both individuals and legal persons may be held criminally liable for acts of bribery or influence peddling. Penalties vary, depending on the nature of the perpetrator of the offence:

  • For individuals: In terms of main penalties, individuals incur up to 10 years’ imprisonment and a €1 million fine for violating domestic bribery laws or foreign bribery laws, apart from international influence peddling which is punishable by 5 years’ imprisonment and a €500,000 fine. Concerning commercial bribery, individuals who offer or accept bribes incur up to 5 years’ imprisonment and a €500,000 fine. More importantly, the fine can be raised to up to twice the proceeds of the offence and the proceeds of the offence may be confiscated.

    For legal persons: In terms of main penalties, legal persons incur five times the fine incurred by individuals, i.e. €5 million euros, or €2.5 million euros. Once again, the fine can be raised to up to twice the proceeds of the offence. The proceeds of the offense may be confiscated. In terms of additional penalties, it is worth noting that companies that are found guilty of the offences of corruption or influence peddling are automatically debarred from public markets for 5 years.

Overview of France's foreign anti-corruption legal framework

France has signed a number of European and international anti-corruption conventions:

  • The European Union Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union, dated 26 May 1997;

  • The Council of Europe Criminal Law Convention on Corruption, signed by France on 9 January 1999 (accompanied by an agreement establishing the Group of States against Corruption (GRECO)) and ratified on 25 April 2008;

  • The Council of Europe Civil Law Convention on Corruption, signed by France on 26 November 1999 and ratified on 25 April 2008;

  • The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions dated 17 December 1997, ratified by France on 31 July 2000; and

  • The United Nations Convention against Corruption dated 31 October 2003, ratified by France on 11 July 2005.

Key legal provisions

  • The “Sapin II” Law No 2016-1691, targeting transparency, anti-corruption and the modernisation of the economy, dated 9 December 2016;

  • The Law N° 2013-1117 on the fight against tax fraud and complex financial crime, dated 6 December 2013;

  • Articles 432-11 et seq., 433-1 et seq., 435-1 et seq., and 445-1 et seq. of the French Criminal Code.

Last updated by Stephane Bonifassi, France, July 2017

Germany

Criminal Code in the version promulgated on 13 November 1998, Federal Law Gazette [Bundesgesetzblatt]

  • Section 299 - Taking and giving bribes in commercial practice
  • Section 300 - Aggravated cases of taking and giving bribes in commercial practice
  • Section 331 - Taking bribes (offences in the public office)
  • Section 332 - Taking bribes meant as an incentive to violating one’s official duties (offences in the public office)
  • Section 333 - Giving bribes (offences in the public office)
  • Section 334 - Giving bribes as an incentive to the recipient’s violating his official duties (offences in the public office)

Greece

Criminal Code in the version promulgated on 13 November 1998, Federal Law Gazette [Bundesgesetzblatt]

  • Law 2656/1998
  • Law 2802/2000
  • Law 3560/2007
  • Law 3666/2008
  • Law 4022/2011
  • Greek Criminal Code

Guatemala

Overview of Guatemala's domestic anti-corruption legal framework

Before 2010, Guatemalan anti-corruption laws contained relatively low penalties for bribery, embezzlement and other forms of criminal activities by public officials.

Over the past six years, Guatemala has overhauled such laws. The laws were first revised between 2010 and 2012, and the again after public protests resulted in the incarceration of the country's former President, former Vice President and several former Ministers. Guatemala Decree no. 31-2012 amended Guatemalan criminal law (Decree no. 17-73 of Guatemalan congress) and Guatemala's law against organized crime (Decree no. 21-2006 of Guatemalan congress) introducing new crimes to Guatemalan legislation, and increasing, and in some cases, doubling the penalties of existing crimes.

A law allowing the forfeiture of ownership of assets obtained as a result of criminal activity, including corruption felonies was enacted in 2010, and modified in 2012 (Decree no. 55-2010 of Guatemalan congress).

In 2015 the Public Procurement Law was overhauled by introducing more stringent requirements for public contracting of goods and services for government, modifying and reducing the possibilities to extend and amend contracts, using a reverse bidding process and introducing criminal liabilities for collusion among participants.

Also in December of 2015, the laws for public servants was amended to better control the contracting and conditions of service of public employees.

In addition, Guatemala´s Criminal Code has incorporated provisions against corruption and bribery since 1973. Under the criminal code, the active bribery felony exists for any private individual who offers or promises payment of any object of value or any other benefit as favor, present or economic advantage to a public official or to any other person in exchange for any action of such public official to execute or prevent the execution of any action within its duties. Until 2012, this was the only bribery felony to which nonpublic officials could be charged. Felonies attributable to public officials include embezzlement of public funds (“Peculado”), diversion of public funds or misuse of public funds (“Malversación”), fraud (the purchasing of non-existing goods or services), the collection of illicit payments or commissions, obtaining benefits by public officials of contracts executed in which they have an interest (“Concusión”).

In 2012, the prosecution capabilities of the authorities were greatly expanded through the addition of felonies such as illicit enrichment, by public and private individuals, active and passive bribery of foreign officials, embezzlement by use or extraction of public assets by private and public officials.

In addition, changes were made to the law that made it more difficult or impossible for prison terms for felonies to be reduced to fines or substitution of penalties typical of criminal procedures. The attempt to influence through friendship, position, or hierarchy decisions made by public officials by any other party was also criminalized, and the same is true of the creation of shell entities or participation through third parties in any felonies committed by private or public individuals related to corruption matters.

The 2012 Amendments also expanded criminal liability to corporates and other legal persons to all cases in which the corporate body should have known of the felony in cases in which the legal person obtained economic benefits from such criminal actions, over the traditional view in which only specific individual person which executed it were criminally liable. The corporation is also subject to fines and eventual cancellation as a legal entity in such cases.

Administrative penalties and rules relating to the debarment from public procurement were amended for individuals convicted of criminal felonies in amendments to the Government Procurement Law enacted in December of 2015. A new felony was created whereby collusive behavior by participants in public bidding process was criminalized with a prison term exceeding five years.

Overview of Guatemala's international anti-corruption legal framework

  • The Inter-American Anti-Corruption Convention, Caracas Venezuela, OEA, 1996, ratified on June12, 2001.
  • The United Nations Convention against Corruption, Yucatán, México, ratified on January 4, 2006.
  • The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, under discussion by the Guatemalan Congress.

Key provisions of the law

Last updated by María Mercedes Castro Guerra, Associate, García Bodan, and Ignacio Andrade Aycinena, Managing Partner, Asensio Andrade Flores LAW, July 2017

Honduras

Overview of Honduras' domestic and foreign anti-corruption legal framework

Honduras counts with an anti-corruption framework, which is enforced through the Criminal Code and other relevant laws such as the National Anti-Corruption Council Law, the Organic Law of the Superior Court of Auditors and the Organic Law of the Republics' Attorney General.

The Criminal Code penalizes bribery, abuse of authority, fraud, extortion, misappropriation of public funds and regulates the different activities that are incompatible with the public functions. Honduran regulations also prohibit government and public officials from soliciting bribes.

The laws that regulate procedures and create obligations are the Criminal Code, the Code of Ethic for Public Officers, the Law Against Illicit Enrichment of Public Officers, the Transparency and Access to Public Information Law, and the State Procurement Law.

Multiple Honduran government entities, including the Public Ministry, the Anti-Corruption Council and the Superior Court of Auditors (TSC), share responsibility in the fight against corruption.

In addition to the aforementioned local legal dispositions, Honduras has ratified international conventions, such as the UN Anti-Corruption Convention, and is a member of the Inter-American Convention against Corruption.

Key provisions of the law

  • National Anti-Corruption Council Law (2005) - The National Anti-Corruption Council Law creates the National Anti-Corruption Council, an independent body that has nationwide jurisdiction. This Council has direct communication with the presidents of the executive, legislative, and judicial powers. The National Anti-Corruption Council is in charge of proposing politics, strategies and plans of action to prevent and fight corruption in Honduras; promote the implementation of pro-transparency and anticorruption strategic alliances between public, private, national and foreign institutions; and among others to promote a national culture against corruption, through permanent campaigns for awareness in all sectors of society.
  • Code of Ethics for Public Officers - Conflicts of interest, post-public employment verifications, and gifts received by public officers are regulated under the Code of Ethics.
  • Law Against Illicit Enrichment of Public Officers - The Law Against Illicit Enrichment of Public Officers aims to establish the necessary conditions for the ethical performance of the public function, as well as safeguarding the state heritage, sanctioning public servants, and removing and penalizing them for illicit enrichment.
    One important disposition contained in the law, is the obligation for public officials to submit a sworn declaration of personal assets before taking their office; the public official who fails to comply will be removed from the position, and may be subject to legal proceedings.
  • Criminal Code of 1906 - Honduras's Criminal Code prohibits:

    • ·         Bribery (articles  361-369)

    • ·         Abuse of Authority (articles 349-357)

    • ·         Fraud and Extortion (articles 376-382)

    • ·         Misappropriation of Public Funds and Incompatible Activities with Public Functions (articles 370-373)

  • Transparency and Access to Public Information Law - The Law of Transparency and Access to Public Information develops and implements the national transparency policy and the right to access public information to help strength democracy through citizen participation. All institutions are obliged to publish information regarding the management of public information or to provide all information concerning use of public funds, in order to prevent through this way all forms of corruption.
  • Law for the Promotion of Public-Private Alliances - The Law for the Promotion of Public-Private Alliances regulates all processes that comprise public-private participations including its execution, development, and management of public works and services. A Commission that acts as a regulatory body and looks after the interests of both parties, was created through this Law. Transparency, protection of the parties’ interests, and the fight against corruption and intellectual property rights violations are guaranteed.
  • Organic Law of the Republic's Attorney General - The Organic Law of the General Attorney of the Republic, contains several dispositions aimed to avoid that people related within fourth degree of consanguinity and second degree of affinity with Republic´s General Attorney, occupy any public office.
  • Organic Law of the Superior Court of Auditors - The Superior Court of Auditors has the constitutional function of monitoring all funds, goods and resources administered by the Republic and its institutions, including Central Bank, mixed banks, the National Banks and Insurance Commission, municipalities and any other public or private entity that receives or manages public funds. As part of their duties, they shall carry out the financial control and results based on effectiveness, efficiency, economy, equity, truthfulness and legality of the activities.  They also have to establish a transparency system in the management of public officials, the determination of illicit enrichment and control of assets, liabilities, and public property.
  • State Procurement Law - The State Procurement Law regulates all procedures of procurement. The Law contains dispositions regarding transparency in all transactions and the possibility for interested parties to receive timely notice of the initiation of a proceeding. Public officials who intervene directly or indirectly in the procurement process may not participate in tenders.

Last updated by Garcia and Boden, February 2017

Hungary

Overview of Hungary's domestic anti-corruption legal framework

The Hungarian regulations on bribery are set out in Act No. 100 of 2012 on the Criminal Code, Act No. 104 of 2001 on the Criminal Liability of Legal Entities; and Act No.19 of 1998 on Criminal Proceedings (please note that there is currently a new bill on criminal proceedings which is expected to be adopted in 2017). The criminal offences related to acts of corruption are as follows: (a) bribery; (b) acceptance of a bribe; (c) indirect corruption; and (d) abuse of office.

The Hungarian jurisdiction takes a rather wide approach when it comes to establishing what is deemed to constitute a 'bribe'. Any unlawful advantage whether monetary or moral in nature can be considered as a bribe if such advantage is given by way of the bribed person violating his/her obligations. Other acts such as bribery committed in court or administrative proceedings, concerning public officials and failure to report acts of corruption are also punishable criminal offences.

With regard to such acts committed abroad, Hungary has jurisdiction if (a) the offence was committed abroad by a Hungarian citizen; (b) the offence was committed by a non-Hungarian citizen and the offence is punishable by both the foreign and Hungarian criminal codes; or (c) the offence which is punishable under Hungarian law was committed by a non-Hungarian citizen abroad against a Hungarian national or against a legal person or unincorporated business association established under Hungarian law.

Criminal liability for the above-mentioned acts may be established in the case of (a) a Hungarian national; or (b) a Hungarian legal entity, if the crime was committed for the benefit of the company by its managing director, executive officer, company secretary, supervisory board member or other representative or it was committed by its member or employee in the scope of activities of the company and the managing director, company secretary, or supervisory board member could have prevented such act by exercising his/her supervisory or inspection powers. Penalties for private individuals include imprisonment for up to 8 years.

However, if a criminal offence committed carries a maximum sentence of three years of imprisonment, the term of imprisonment may be substituted by one or more of the following: custodial arrest, community service, a fine, prohibition from exercising particular professional activities, driving ban, prohibition from residing in a particular area, ban from visiting sporting events or expulsion, or by any combination of these. There are rules and ethics codes set out in various other regulations concerning public officials (for example, judges, private lawyers, prosecutors, government officials) which also deal with the administrative sanctions of such acts.

Overview of Hungary's foreign anti-corruption legal framework

Hungary is a signatory to the following European and international anti-corruption conventions.

 

Council of Europe (and EU):

-        the Civil Law Convention on Corruption, Strasbourg, 4 November 1999, in force in Hungary since 1 January 2004;

-        the Criminal Law Convention on Corruption, Strasbourg, 27 January 1999, in force in Hungary since 1 July 2002;

-        the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities' financial interests, 27 November 1995;

-        the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union, 26 May 1997; in force in Hungary since 8 October 2005; and

-        the Additional Protocol to the Criminal Law Convention on Corruption, 15 May 2003, in force in Hungary since 25 November 2014.

International:

-        the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, Paris, 17 December 1997, in force in Hungary since 25 May 2000 (the Convention on Combating Bribery);  

-        the United Nations Convention against Corruption, 31 September 2003, ratified by Hungary since 14 December 2005;

-        the United Nations Convention against Transnational Organized Crime, 15 November 2000, ratified by Hungary since 22 December 2006.

Useful links:

Act No. 100 of 2012 on the Criminal Code

Act No. 104 of 2001 on the Criminal Liability of Legal Entities

Act No.19 of 1998 on the Criminal Proceedings

Last updated by Ákos Nagy, attorney-at-law, counsel at Andrékó Kinstellar Law Firm, Budapest, Hungary, January 2017

India

Overview of India's domestic and foreign anti-corruption legal framework

The principal anti corruption legislation in India is the Prevention of Corruption Act, 1988 (“PCA”). The PCA focusses on public bribery i.e, the bribery of a government official, who is referreed to as a ‘public servant’. The definition of “public servant” under the PCA is extremely broad and includes government officials at all levels, local authorities, judicial officers, and employees of government-owned or government-controlled entities.

Bribery under the PCA includes any “gratification” that a public servant receives other than his/her legal remuneration. Gratification constituting a bribe would include anything intended to motivate, influence, or reward a public servant for performing (or forbearing performance of) an official act, or for showing “favour or disfavour” to any person, or for rendering any service or disservice to a public servant. To this end, several additional observations are worth noting:

  • Gratification is interpreted broadly and, in addition to monetary benefits, includes providing “soft bribes,” such as gifts, lavish corporate hospitality, or anything else of value to a public servant without adequate consideration.
  • The PCA prohibits a public servant from accepting gratification from any person who is likely to be engaged in business before him/her. 
  • The PCA covers attempts to exercise personal influence on a public servant, mandating that companies that use lobbyists or other third party agents may not use such third parties with the intent of benefitting from the influence that the third party might hold over the public servant.
  • Gratification is illegal whether the underlining action performed by the public servant is lawful or unlawful. Under Indian law, there is no exception for so-called facilitation or “grease” payments – i.e., payments to prompt a public servant to take official action that he or she is required to perform.  All such payments constitute a bribe.
  • The fact that a public servant did not provide (or was unable to provide) the intended benefit is irrelevant under Indian law; the mere offer of gratification to a public servant is a violation.
  • The PCA does not include a provision for resolving an enforcement action or prosecution with law enforcement authorities through a settlement.

Violations of the PCA may result in imprisonment for a term ranging from six months to seven years, as well as a fine.

Key provisions of the law

 Last updated by Sherbir Panag, New Delhi, February 2017

Israel

Overview of Israel's domestic and foreign anti-corruption legal framework

On February 2009 and March 2009, respectively, Israel acceded to the UN Convention against Corruption and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. 

The following is a summary of the current legal framework in Israel that is consistent with its obligations under the conventions. 

Israeli legislation sets out a comprehensive legal framework for the criminalization, prevention and eradication of corrupt practices. Israel’s legal framework against corruption is primarily embodied in the Israeli Penal Law.

Israeli Penal Law No. 5737-1977, Article 5, sections 290-297 criminalizes bribery offences regarding domestic and foreign public officials.  The Law states that a public official who takes a bribe for an action that is related to his role, is subject to up to ten years' imprisonment or a fine.  The term "public official" includes employees of a corporation who provide services to the public. The Penal Law also states that a person who gives bribe to a public official for an action that is related to his or her role is liable to up to seven years' imprisonment or a fine.

The Israeli Penal Law also states that a person who gives a bribe to a foreign public official for an action that is related to his or her role, in order to obtain, to assure or to promote business activity, or in order to achieve another advantage in relation to a business activity, shall be treated in the same manner as a person who gives bribe to a domestic public official.  No indictment shall be issued related to an offence relating to a bribe to a foreign public official unless the Attorney General gives written consent.

A person who gives or takes bribe can now be fined, under Israeli Penal Law, up to about 1.13 million ILS (approximately 221,000 EUR), or up to four times the benefit intended or obtained - whichever is higher. If the bribe was given or taken by a corporate, the fine can be two times higher: up to about 2.26 million ILS (approximately 443,000 EUR); or up to four times the benefit intended or obtained - whichever is higher.

The Israeli Penal Law also states that giving a bribe or accepting a bribe with the intention to influencea sports contest or some other contest in which the public has an interest is a criminal offence, and the bribe payer and/or the recipient of the bribe may be subject to up to 3 years imprisonment.

In addition, the Israeli Penal Law sets directives regarding prohibited acts for a person with significant influence. If a person with significant influence on the election of a candidate for the position of Prime Minister, Minister, Deputy Minister, a Member of the Knesset (the Israeli Parliament) or head of a local authority accepts money, a cash equivalent, a service or other benefit in order to influence a candidate to perform an act connected to his position, then he or she shall be subject to three years imprisonment; if he or she received any of the aforementioned in order to influence a candidate to give undue preference or to discriminate, then he or she shall be treated as if he or she accepted a bribe.

In addition, the Israeli Protection of Employees Law sets forth a legal framework to protect employees who are exposed to offenses relating to integrity in the workplace or proper administration. The Israeli Encouragement of Ethical Conduct in Public Service Law determines the procedure – substantive and procedural – regarding complaints filed by government employees. 

Last updated by Rona Zamshteigman and Yael Lange, M. Firon & Co. Advocates, Tel-Aviv, Israel, October 2017.

Italy

Overview of Italy's domestic and foreign anti-corruption legal framework

In Italy, corruption crimes are mainly stipulated for in the Italian Criminal Code ('ICC'), which criminalizes the conduct of any public official and person in charge of a public service entering into a pactum sceleris with a private citizen. Both giving and receiving bribes are criminally relevant.

Specifically Italian law sanctions the public official who: i) compels someone to unduly give or promise money or other benefits, by abusing of his quality or powers (section 317 ICC); ii) unduly receives or accepts the promise of money or other benefits for himself/herself or for others, in order to exercise his/her functions or powers (section 318 ICC) or to omit or postpone an act of his/her office, or to execute an act that is contrary to the duty of his/her office (section 319 ICC). Sections 318 and 319 are also relevant if the crime is committed to facilitate or to damage a party in a civil, criminal or administrative proceeding.

Even if the bribe is not accepted, the offer or promise of money or other benefits to a public official for the exercise of his/her functions or powers is in any case sanctioned (section 322 ICC).

Due to a recent reform of the corruption law it is also punished the payment or promise of money or other economic benefits as a compensation for the illicit mediation with a public official (section 346 bis ICC) .

Italian law (section 322 bis ICC) both extends the scope of domestic bribery offenses to include bribery of EU public officials and criminalizes the bribery of non-EU foreign public officials as well. It has to be noted, however, that with respect to non-EU foreign public officials, only active bribery is punished, if the crime is committed:

  1. in order to obtain an undue advantage in an international business transaction; or 
  2. for the purpose of obtaining or maintaining a business or financial activity

In the end, it is worth pointing out that Italian Decree 231/01 (section 25) provides for corporate criminal liability in connection with bribery offences committed by managers/employees/representatives of the companies.

Links to applicable regulations

Last updated by Ilaria Curti, Attorney-at-law, DLA Piper, Rome, Italy, January 2017

Japan

Overview of Japan's domestic anti-corruption legal framework

Bribery

If a person (only natural person) gives, or offers or promises to give a bribe to a domestic public official. in connection with the public official’s duties, both the person and the public official are criminally liable under the Penal Code

Overview of Japan's foreign anti-corruption legal framework

Bribery

If a person (both natural person and legal person) gives, or offers or promises to give a bribe to a foreign public official, in order to have the public official act or refrain from acting in connection with the public official’s duties, for the purpose to obtain a wrongful gain in business with regard to international commercial transactions, the person is criminally liable under the Unfair Competition Prevention Act.

Links to applicable regulations and relevant provisions

  • Penal Code (Act No. 45 of 1907)
    Article 197 (Acceptance of Bribes; Acceptance upon Request; Acceptance in Advance of Assumption of Office)
    Article 197-2 (Passing of Bribes to a Third Party)
    Article 197-3 (Aggravated Acceptance; Acceptance after Resignation of Office)
    Article 197-4 (Acceptance for Exertion of Influence)
    Article 197-5 (Confiscation and Collection of a Sum of Equivalent Value)
    Article 198 (Giving of Bribes)
  • Unfair Competition Prevention Act (Act No. 47 of May 19, 1993)
    Article 18 (Prohibition against Provision of Wrongful Gain to Foreign Public Officials)
    Article 21(2)(vii) (Penal Provision)
    Article 22(1)(iii) (Penal Provision)

Last updated by Yoshihiro Kai, Anderson Mori & Tomotsune, Tokyo, Japan, January 2017

Kenya

Overview of Kenya's anti-corruption legal framework

In Kenya, there are 2 primary pieces of anti-corruption legislation - the Bribery Act, No. 47 of 2016 (the “Bribery Act”) and the Anti-Corruption and Economic Crimes Act No. 3 of 2003 (“ACECA”).

The Bribery Act

This came into force on 13 January 2017 with the objective of providing a framework for the prevention, investigation and punishment of bribery and related offences in Kenya.

The Act applies to all individuals and entities in the private and public sectors. Previously, the law did not impose significant responsibilities on the private sector and individuals in the fight against corruption.

Key provisions of the Bribery Act

  • Sections 5 and 6 provide a broad definition of the terms  ‘giving’ and ‘receiving a bribe’ which include offering, promising or giving a financial or other advantage to another person, who knows or believes the acceptance of the financial or other advantage would itself constitute the improper performance of relevant function or activity; and receiving or agreeing to receive a bribe with the intention of improperly performing an activity or function.
  • Section 15 – The extra-territorial Application of the Act: Persons covered include Kenyan citizens, public or private entities, as well as persons associated with these entities whether as employees, agents or otherwise.  Accordingly, all acts of bribery committed by a Kenyan citizen, a public or private entity or a person associated with such a private entity outside Kenya is treated as if the act of bribery took place in Kenya.
  • Section 14 - Duty to Report Bribery: All persons holding a position of authority in a public or private entity must report to the Ethics and Anti-Corruption Commission established under the Ethics and Anti-Corruption Commission Act (“EACC”) any knowledge or suspicion of instances of bribery.  Failure to report the bribery within a period of 24 hours constitutes an offence.
  • Sections 9 to 13 - Requirements for procedures for the prevention of bribery: Public and private entities are now required to put in place procedures for the prevention of bribery and corruption appropriate to their size and scale and the nature of their operations.  Failure of private entities to put in place such procedures is an offence on the part of the director or senior officer.
  • Section 21 - Protection of Whistleblowers and Witnesses: mandates law enforcement agencies to establish mechanisms to protect the identity of informants and witnesses.  Additionally, the EACC is charged with the responsibility to assist any entity and interested persons to develop and put in place procedures to protect whistleblowers.  This would be in addition to the protection under the Witness Protection Act. It is an offence to harass, intimidate or disclose any information regarding informants, whistleblowers or witnesses.
  • Section 18 – Penalties : imposes heavy penalties for bribery related offences including:
    • against natural persons: Imprisonment (maximum of ten years); Imposition of a fine (not exceeding KES 5,000,000/- equivalent to USD 50,000/-); Where the person received a quantifiable benefit or any other person suffered a quantifiable loss, imposition of additional mandatory fine (five times the amount of the benefit and/or loss); An order to pay the benefit received to the Government; Confiscation of property; Disqualification of a politician; Disqualification from serving as a director or partner in a firm in Kenya; or being barred from holding public office.
    • against corporates: companies are criminally liable for the acts and omissions of directors or senior officer (section 13(2)).  Penalties include: Imposition of a fine; An order to pay the benefit received to the Government; Confiscation of company property; Disqualificationfrom transacting business with the national or county government for period of ten years after such conviction.

ACECA

This Act provides for the prevention, investigation and punishment of corruption, economic crime and related offences in Kenya. It was the main legislation in Kenya prior to the enactment of the Bribery Act and several of its provisions have been subsequently amended to be in line with the Bribery Act.

Key provisions of the ACECA

  • Section 2 now defines  “Corruption” to  also include bribery; 
  • Section 47(1) criminalizes dealing with property that a person believes, or has reason to believe, was acquired by corrupt conduct, including “entering into a transaction in relation to the property or causes such a transaction to be entered into”.
  • Section 48 – Convictions under the ACECA are punishable by a fine up to one million shillings and/or imprisonment of up to 10 years. An additional mandatory fine applies to conduct that results in a quantifiable benefit or loss to another person. Such mandatory fine will be equal to twice the amount of the relevant benefit gained or loss suffered.
  • Sections 49-50 - Custom, impossibility, no intent and non-occurrence of a corrupt act are not available defences to any offences under the ACECA.
  • Section 56 - Preserving suspect property - On an ex parte application by the EACC, the High Court may make an order prohibiting the transfer or disposal of or other dealing with property if it is satisfied that there are reasonable grounds to suspect that the property was acquired as a result of corrupt conduct.

Other relevant domestic laws

  • Constitution of Kenya - Article 76(2) (b) - State Officers are prohibited from seeking or accepting a personal loan or benefit in circumstances that compromise the integrity of the State Officer.
  • Ethics and Anti-Corruption Commission Act, No. 22 of 2011- establishes the EACC which is the body charged with conducting investigations and recommending the prosecution of any acts of corruption, bribery or economic crimes or violation of codes of ethics.
  • Proceeds of Crime and Anti-money Laundering Act No. 9 of 2009 – makes it an offence to acquire, use or possess property which a person has reason to believe forms part of the proceeds of crime.
  • Leadership and Integrity Act No. 19 of 2012- Sections 12(2), 13(1) (d) and 14(3)(a) prohibit a state officer from accepting a personal loan or benefit which may compromise him from carrying out his duties; engaging in wrongful conduct in furtherance of personal benefit; accepting  or soliciting gifts hospitality or other benefits from persons who have an interest that may be achieved by the carrying out or not carrying out of the State officer’s duties.
  • Public Officer Ethics Act No. 4 of 2013 - Sections 11(1) and 11(3) prohibits a public officer from using his office to improperly enrich himself or others and deems certain gifts given to a public officer in his official capacity as a gift to the public officer’s organization.
  • Public Procurement and Disposal Act No. 3 2005 - Section 55(1)(g) -  a person is eligible to bid on a tender only if they have not been convicted of corrupt or fraudulent practices; Section 63: Asset disposal  or procurement proceedings may be cancelled or terminated by the procuring entity upon  receiving subsequent evidence of engagement in fraudulent or corrupt practices by the tenderer.
  • Penal Code Cap 63 Laws of Kenya- sections 312 and 313 criminalizes obtaining of money by false presence or with intent to defraud or by inducing a person to steal on behalf of someone. The Criminal Procedure Code Cap. 75 Laws of Kenya regulates all proceedings relating to criminal conduct.

International anti-corruption conventions ratified by Kenya

  • African Union Convention on Preventing and Combating Corruption.
  • United Nations Convention against Corruption.
  • Organization for Economic Cooperation and Development Convention against Bribery of Foreign Public Officials in International Business Transactions.
  • United Nations Convention against Transnational Organized Crime.
  • The East African Community Protocol on Preventing and Combating Corruption is under negotiations and is expected to be finalized in the near future. Kenya is a member of the EAC.

Last updated in January 2018 by Effie Omondi, an associate at Bowmans in Nairobi, Kenya

Korea

Overview of Korea's anti-corruption legal framework

In Korea, the Criminal Code sets out general provisions that prohibit domestic corrupt practices including official bribery (ie, bribery to public officials) and commercial bribery (ie, bribery among private parties).

Alongside the Criminal Code, the Act on the Aggravated Punishment of Specific Crimes (Specific Crimes Act) and the Act on the Aggravated Punishment of Specific Economic Crimes (Specific Economic Crimes Act) operate to deal specifically with certain types of criminal conduct. Among others, the Specific Crimes Act expands the scope of public officials to encompass officials of government-owned or controlled entities, and the Specific Economic Crimes Act prohibits the bribery to employees of certain financial institutions.

In addition, the Framework Act on the Construction Industry and the Special Act on the Prevention of Insurance Fraud make anti-corruption provisions specifically for the respective industries concerned.

Bribery to a foreign public official is covered under the Act on Combatting Bribery of Foreign Public Officials in International Business Transactions.

Recently, the Improper Solicitation and Graft Act (also known as Kim Young Ran Act) came into force as of September 28, 2016. This law significantly expands the scope of prohibited corrupt practices mainly in the following three ways:

First, it includes in the scope of illegal conduct a new concept known as “improper solicitation”, which makes it illegal to solicit public officials on certain matters of public concern even though no giving or taking of material or economic benefit (i.e., bribery) is involved.

Second, the definition of a public official is broadened to include those who are commonly known to owe a duty of integrity to the general public such as media representatives or journalists, school teachers and other persons performing duties of public nature under a law (e.g., surveyors).

Third, and most notably, companies can now be vicariously liable for the corrupt practices of its employees and agents.

Links to applicable regulations and relevant provisions

  • Korean Criminal Code
  • The Act on the Aggravated Punishment of Specific Crimes
  • The Act on Aggravated Punishment of Specific Economic Crimes
  • The Act on Combating Bribery of Foreign Public Officials in International Business Transactions
  • The Improper Solicitation and Graft Act
  • The Framework Act on the Construction Industry
  • The Act on the Prevention of Corruption and the Establishment and Management of the Anti-Corruption and Civil Rights Commission
  • Special Act on the Prevention of Insurance Fraud

Last updated by Jeena Kim, Bae, Kim & Lee LLC, Seoul, South Korea, February 2017

Luxembourg

Pasicrisie Luxembourgeoise T. 34, 474

  • Articles 233 - 268

Macedonia

Overview of Macedonia's domestic and foreign anti-corruption legal framework

The primary legal framework regulating corruption and bribery in Macedonia is contained in the Criminal Code, both for physical persons and for legal entities and it criminalizes active and passive bribery, extortion, bribing of a foreign public official, attempted corruption, trading in influence and money laundering. One of the most relevant laws, in addition to the Criminal Code is the Law on Prevention of Corruption. Law on Prevention of Corruption and the Criminal Code provisions apply to all individuals in public or private sectors, and companies can be held criminally liable for corruption offences committed by their representatives. Facilitation payments are prohibited, and gifts may be considered illegal depending on their value, intent or benefit. While there is no specific whistleblower law, the Law on Prevention of Corruption allows informants who collaborate with law enforcement agencies to be either given immunity from criminal prosecution, to receive lesser sentences, or to be placed in witness protection. The Law on Public Procurement contains criminal penalties, including imprisonment for violations of tender procedures, and exclusion from future procurement for abuses including bribery and corruption. Other relevant laws include the Law on Prevention of Conflict of Interest, which requires public officials to disclose their income and assets, the Electoral Code, which regulates electoral campaign funding, the Law on Financing Political Parties, the Law on Civil Servants, the Law on Public Servants, the Law on Free Access to Public Information and the Law on Financial Inspection of the public sector . Macedonia has ratified the United Nations Convention against Corruption (UNCAC) and the Council of Europe’s Criminal and Civil Law Conventions against Corruption.

Key provisions of the law

Last updated by Law office of Tomislav Šunjka, Novi Sad, Serbia, January 2017

Mexico

Overview of Mexico’s domestic and foreign anti-corruption legal framework

Mexico’s current anti-corruption legislation is organized under the National Anticorruption System (Spanish acronym SNA), a coordinating platform between different government and citizen bodies, tasked with the prevention and detection of corrupt acts.

The legal framework can be divided into organizational laws and laws establishing substantive obligations on public officials and individuals. The first category consists of the General Law on the National Anticorruption System, the Organic Law of the Federal Public Administration, the Organic Law of the Federal Administrative Court, and the Organic Law of the General Attorney’s Office, in relevant parts.

The substantive category, in turn, can be divided into administrative and criminal law sub-categories, respectively centered around the General Law on Administrative Responsibilities and Titles X and XI of the Federal Criminal Code. The former establishes general obligations on public officials and sanctions applicable to public officials and individuals in relation to administrative infractions, including bribery, and is enforced by the Ministry of Public Administration and the Federal Administrative Court. The latter establishes federal crimes related to corruption, including bribery of domestic and foreign public officials, and crimes against the administration of justice. The criminal provisions are enforced by the General Attorney’s Office, including a to-be-nominated special prosecutor for corruption related crimes.

Useful links

The up-to-date versions of all federal laws can be consulted at: http://www.diputados.gob.mx/LeyesBiblio/index.htm

General Law on the National Anticorruption System

Article 5 (General principles to guide public service)

Title II (Organization of the SNA)

 

Organic Law of the Federal Public Administration

Article 37 (Responsibilities of the Ministry of Public Administration with regard to matters related to corruption and internal control)

 

Organic Law of the Federal Administrative Court

Articles 1 and 54 (Establish the participation of the Court in the SNA)

 

Organic Law of the General Attorney’s Office

Article 10-bis (Organization of the Special Prosecutor’s Office for corruption-related crimes)

Article 10-ter (Powers of the Special Prosecutor for corruption-related crimes)

 

General Law on Administrative Responsibilities

Article 7 (General principles to be observed by public officials)

Articles 24-25 (Corporate social responsibility)

Chapter 3 (Accountability mechanism, including declarations of assets and interest by public officials)

Articles 49-50 (Minor administrative offences by public officials)

Articles 51-64 (Serious administrative offences by public officials)

Articles 65-72 (Acts related to serious administrative offences by individuals)

Articles 75-76 (Sanctions for minor administrative offences)

Articles 78-79 (Sanctions for serious administrative offences)

Articles 81-82 (Sanctions for offences by individuals)

 

Federal Criminal Code

Title X (Corruption-related crimes)

Article 212 (Definition of a public official for purposes of the Title, special sanctions)

Article 214 (Unlawful exercise of public functions)

Article 215 (Abuse of authority)

Article 215-bis (Forced disappearance)

Article 216 (Illegal coalition of public officials)

Article 217 (Unlawful use of powers and authority)

Article 218 (Extortion)

Article 219 (Intimidation)

Article 220 (Abusive exercise of functions)

Article 221 (Influence peddling)

Article 222 (Bribery)

Article 222-bis (Bribery of foreign public officials)

Article 223 (Graft)

Article 224 (Illegal enrichment)

 

Title XI (Crimes against the administration of justice)

Article 225 (Crimes committed by public officials)

 

Last updated by Diego Sierra, Partner, Von Wobeser y Sierra, Mexico City, January 2017

Montenegro

Overview of Montenegro's domestic and foreign anti-corruption legal framework

Montenegro’s domestic anti-corruption legal framework is primarily based on the provisions of the Criminal Code related to criminalisation of public and private sector corruption, extortion, abuse of office, money laundering, trade of influence, active and passive bribery etc. The Code does not provide a definition of corruption itself, though through particular criminal acts the corruption is widely defined and in accordance with the Code, prosecuted.

In 2014, Montenegro adopted the Law on prevention of corruption, which required the government to set up the independent Anti-Corruption Agency, in order to unite and strengthen the competences of all existing institutions combating corruption in Montenegro.  The agency has jurisdiction over preventing conflict of interest, restricting the exercise of public functions, checking asset cards and the receipt of gifts, donations and sponsorships. A significant part of the regulations relate to the performance and protection of whistleblowers.  Other than the Criminal Code and aforementioned Law on prevention on corruption, the scope of laws that have relevant anti-corruption provisions are Law on prevention of conflict of interest, Law on liability of legal persons for criminal offenses, Law on prevention of Money Laundering and terrorist financing etc.

Concerning relevant foreign legislation, Montenegro ratified the UN Convention on combating corruption,Convention on criminal law and corruption and Civil Law Convention on Corruption.

Key provisions of the law

  • Criminal Code

    Article 269 – Violation of equality in the conduct of business activities
    Article 270 – Abuse of monopolistic position
    Article 273 – Causing bankruptcy
    Article 274 – Causing false bankruptcy
    Article 276 – Abuse of business authorizations
    Article 278 – False balance
    Article 279 – Abuse of assessment
    Article 280 – Disclosure of business secrets
    Article 281 - Revealing and using stock-exchange secret
    Article 416 – Abuse of office
    Article 422 - Illegal Interceding
    Article 423 - Receiving bribery
    Article 424 - Giving bribery
    Article 425- Disclosure of official secret

  • Law on prevention of corruption
  • Law on prevention of conflict of interest
  • Law on liability of legal persons for criminal offences
  • Law on prevention of money laundering and terrorist financing

Last updated by Law office of Tomislav Šunjka, Novi Sad, Serbia, January 2017

Myanmar

Overview of Myanmar's domestic and foreign anti-corruption legal framework

The principal laws and regulations governing anti-corruption in Myanmar are the Penal Code of 1860, the Anti-Corruption Law 2013 and the Anti-Corruption Rules 2015, as well as the President’s Office Guidelines on Accepting Gifts.

The Penal Code of 1860 sets forth the general offence of bribery, stating that “whoever, being or expecting to be a public servant, accepts or obtains, or agrees to accept, or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or for bearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person with the Union Parliament or the Government or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” 

The Anti-Corruption Law 2013 defines corruption as “the direct or indirect abuse of one’s position as an authoritative person in order to perform an act, refrain from performing a lawful act, give someone his legitimate right, wrongfully prohibit a person from his legitimate right, such as by giving, accepting, receiving, attempting to receive, offering, pledging, or discussing by any means of a consideration from a person concerned for himself or any other or any organization”. The definition of an authoritative person covers public servants, foreign public servants, individuals holding political positions, senior officials, and administrators or representatives of public organizations. Secondary measures implemented under this legislation include the establishment of the Anti-Corruption Commission of the Republic of the Union of Myanmar in 2014, and the implementation of the 2015 Anti-Corruption Rules. 

The President’s Office's Guidelines on Accepting Gifts, issued in April 2016, explicitly ban civil servants from accepting gifts from anyone that would seek to benefit from the civil servant’s position, subject to a few exceptions. The term “gifts” is defined to include money, gold, silver, air tickets, hotel stays, meals and golf club membership fees. While not prohibiting civil servants from accepting gifts altogether, the value of each permissible individual gift must not exceed 25,000 kyat (c. USD 201), and the total value of gifts received from an individual or organization should not exceed 100,000 kyat (c. USD 83) in a single year. The guidelines prescribe a few exceptions: for example, where gifts are given during recognized religious holidays, such gifts must not exceed 100,000 kyat (c. USD 83) in value; and gifts provided on account of a familial or personal relationship are excluded. The guidelines also permit civil servants to accept gifts from foreign governments worth 400,000 kyat (c. USD 333) or less.

Links to local legislation and key provisions

  • Penal Code 1860
    • Section 161 - Public servant taking gratification other than legal remuneration in respect of an official act
    • Section 162 - Taking gratification in order, by corrupt or illegal means, to influence public servant
    • Section 163 - Taking gratification for exercise of personal influence with public servant
    • Section 164 - Punishment for abetment by public servant of offences defined in section 162 or 163
    • Section 165 - Public servant obtaining a valuable thing, without consideration, from person concerned in proceeding or business transacted by such public servant
    • Section 171B - Bribery relating to elections
    • Section 171E - Punishment for bribery relation to elections
    • Section 213 - Taking gift, etc, to screen an offender from punishment - if a capital offence; if punishable with transportation for life, or with imprisonment
    • Section 214 Offering gift or restoration of property in consideration of screening offender; if a capital offence; if punishable with transportation for life, or with imprisonment
    • Section 215 - Taking gift to help to recover stolen property, etc
  • Anti-Corruption Law 2013
    • See all provisions
  • Anti-Corruption Rules 2015
    • See all provisions
  • President's Office's Guidelines on Accepting Gifts - no official English version available, original posted on the President’s Office’s official social media page
    • See all provisions

Last updated by Sher Hann Chua, Tilleke & Gibbins Myanmar Ltd, Yangon, Myanmar, October 2017

1 At time of writing, but please note that the Kyat is an unusually volatile currency.

 

Netherlands

Overview of the Netherlands' domestic and foreign anti-corruption legal framework

In the Netherlands, the Dutch Penal Code ("DPC") criminalises the act of bribing and the act of money laundering. Both active bribery, i.e., providing, offering or promising a bribe, and passive bribery, i.e., accepting a bribe, are criminalised. Additionally, the DPC criminalises bribery in both the public sector, e.g., bribery relating to local or foreign government officials, and the private sector, e.g., bribery of an officer in a private commercial company.

The DPC anti-bribery and anti-money laundering provisions apply to both natural and legal persons. Where a criminal offence has been committed by a legal person, criminal proceedings may be instituted against (i) the legal person, and/or (ii) the natural person who instructed the bribery or money laundering (opdrachtgever) and/or (iii) the natural person who (a) could have – and reasonably should have – taken measures to prevent the bribery or money laundering and (b) knowingly accepted the risk of the bribery or money laundering (feitelijk leidinggevende).
 
It is important to note that the DPC includes other, more generic provisions that may be directly relevant in the assessment of potential bribery and money laundering offences, such as those determining Dutch criminal law jurisdiction, the penalty scheme, and corporate and personal liability.

Key provisions of the law

  • Prohibition of active bribery relating to a civil servant (Art. 177 DPC)
  • Prohibition of passive bribery relating to a government official (Art. 363 DPC)
  • Prohibition of active bribery relating to the private sector (Art. 328ter DPC)
  • Prohibition of passive bribery relating to the private sector (Art. 328ter DPC)
  • Prohibition of money laundering

Find more information on the Netherlands' anti-corruption framework here.

Last updated by Marnix Somsen, De Brauw Blackstone Westbroek, New York, January 2017

New Zealand

Overview of New Zealand's anti-corruption legal framework

New Zealand has criminal law provisions dealing with both public sector local/domestic bribery and bribery of foreign public officials, in Part 6 of the Crimes Act 1961 headed “Crimes affecting the administration of law and justice”. 

These provisions reflect long-standing criminal law principles, as well as more recent international treaty developments such as the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the United Nations Convention Against Corruption, and the Asia Pacific Economic Cooperation’s (APEC) Santiago Commitment to Fight Corruption and Ensure Transparency.

New Zealand also has a domestic bribery statute covering the private sector, the Secret Commissions Act 1910, although it is not as extensive in its compliance requirements as modern international standard-bearers such as the UK Bribery Act.

All of New Zealand’s bribery and corruption offences apply to individuals and companies, both domestically and extraterritorially. This means that the lead enforcement agency, the Serious Fraud Office, can prosecute New Zealand citizens, residents, and companies incorporated in New Zealand for acts of bribery and corruption that occur wholly outside of New Zealand.

Key provisions of the law

The Secret Commissions Act contains key private sector offences to criminalise the bribing of an agent (i.e. someone that works on behalf of a principal). Generally speaking, it is an offence to corruptly give, agree, or offer to give, an agent a gift or other consideration in order to induce or reward an agent’s actions so that they influence the affairs or business of their principal (e.g. their client).

Other offences include:

  • agents failing to disclose to their principal a financial interest in a contract;
  • giving agents a false receipt with intent to deceive a principal;
  • receiving a secret reward for giving advice or entering a contract.

Maximum penalties were increased in 2015, to 7 years’ imprisonment, or a potentially unlimited fine for individuals/corporations.

The Crimes Act 1961 focuses on the public sector. In broad terms, it criminalises conduct where a person corruptly gives, receives, accepts or obtains a bribe (whether directly or indirectly) for themselves or any other person, intending to influence that person to act or refrain from acting in their official capacity.

A bribe may involve money, valuable consideration, office, employment, or any other benefit, including: money, allowances, payments of expenses, employment or favours, offers, discounts, other preferential treatment, and corporate hospitality such as gifts, entertainment, travel.

Domestic public sector crimes include actual or attempted bribery and corruption of New Zealand judges, government ministers, Members of Parliament, police officers and a range f other public officials. It is also an offence to corruptly use official information or to trade in influence. Penalties for individuals convicted corrupting domestic public officials, or those officials as beneficiaries, range from a maximum of 7 to 14 years prison term, or a potentially unlimited fine.

Further sections in the Crimes Act criminalise bribery of foreign public officials during or in relation to trade, foreign aid, or international business transactions. The offence applies whether or not the bribe is for an act or omission, if made within the scope of the official’s authority.  It includes bribes made through agents and intermediaries.  A very limited exception for “facilitation payments” remains.

For foreign bribery, an Amendment Bill in 2015 significantly increased the maximum penalties to a term of imprisonment up to 7 years and/or a fine not exceeding the greater of:

  • NZ$5 million;
  • or if it can be readily ascertained and if a court is satisfied that the offence occurred in the course of producing a commercial gain, 3 times the value of any commercial gain resulting from the contravention.

This latter penalty formulation has been borrowed from other statutory contexts regarding provisions for commercial regulatory, financial crime, or cartel liability.

Links to legal and enforcement provisions

Updated by Gary Hughes, www.law-strategy.nz, Barrister, Auckland, 2017

Nicaragua

Overview of Nicaragua's domestic anti-corruption legal framework

As the world becomes increasingly globalized, the need for new regulations to combat bribery and corruption increases. Originally, anti-corruption legal frameworks were separate dispositions from their respective criminal codes, while always serving the purpose of protecting the State as well as its patrimony from corrupt practices. Currently, Nicaragua has a Criminal Code containing several anti-corruption provisions, including in the procurement law, the Law of Probity of Public Officials, the Code of Ethical Conduct for Public Officials of the Executive Branch, the Code of Ethical Conduct for Public Officials of the Judicial Branch and the Law of Civil Service and Administrative Career. There are also International Conventions to which Nicaragua is a signatory, such as the Inter-American Convention against Corruption (CICC), the United Nations Convention against Corruption (CNUCC) and the United Nations Convention Against Organized Transnational Crime. 
 
The Nicaraguan Criminal Code forbids bribery, which is defined as a crime that involves giving a bribe in order to corrupt someone in order to obtain a benefit from an individual, corporation, institution or public official. The Criminal Code also punishes corruption, which is defined by the Transparency International Organizations law as “the abuse of entrusted power for private gain.” 
 
The Public Officials Law gives an overview of what the Public Officials are obliged to do, as well as what they are forbidden from doing or receiving. It was created in order to regulate Public Officials in order to for them to always have the greater good when doing their job. Article 449 of the Criminal Code states that “any citizen, resident or foreigner who offers, promotes, awards an authority or public official in a direct or indirect manner so that  the he or she may or may not change his or her job in exchange for an economic or commercial benefit.” 
 
In order to further regulate and specify Public Officials based on their line of work two new codes were created. The first is the Code of Ethical Conduct for Public Officials of the Executive Branch. Under this Code, Articles 13 and 22 provide more detail on what is prohibited as well as two key values that they must always adhere to which are honesty and integrity. 
 
The Code of Ethical Conduct for Public Officials of the Judicial Branch is very clear that their respective Public Officials must always be impartial as well as honest. Article 35 of the Code states that Public Interest is above any personal interest. 
 
The Law of Civil Service and Administrative Career states in Article 38, Section 1 that public officials must “respect and follow the Constitution with loyalty”. As with many of the other laws and codes; the public good always has keep the best interest of the State in mind. Having said that, public officials must not receive in any way or manner something that could make him or her not fulfil his or her public duties. 

Overview of Nicaragua's foreign anti-corruption legal framework

The CICC, Nicaragua, along with the other member of this Convention are "convinced that corruption undermines the legitimacy of public institutions, moral order and justice, as well as the integral development of people”, as it appears quotes in the introduction of said convention. The purposes of this Convention are to:
 
1. Promote and strengthen the development, by each State, of mechanisms necessary to prevent, detect, punish, and erradicate corruption; and
2. Promote, facilitate and regulate cooperation among States in order to ensure the effectiveness of measures and actions to prevent, detect, punish, and eradicate acts of corruption in the exercise of public functions and specifically related acts of corrupcion with such exercise. 
 
The CNUCC, defines corruption as an "insidious plague that has a wide range of corrosive consequences for society. It undermines democracy and the rule of law, breaches human rights, distorts markets, impairs the quality of life and allows organized crime, terrorism and other threats to human security to flourish".  This convention's purpose, according to its first article, is to:
 
1. Promote and strengthen measures to prevent and combat corruption more effectively and efficiently;
2. Promote, facilitate and support international cooperation and technical assistance in the prevention and fight against corruption, including asset recovery; and
3. Promote integrity, accountability and proper management of public affairs and goods.
 
The purpose of the United Nations Convention against Organized Transnational Crime is to:
 
1. Promote, facilitate and support international cooperation and technical assistance in the prevention and fight against corruption, including asset recovery; and
2. Regulate cooperation among States in order to ensure the effectiveness of measures and actions to prevent, detect, punish, and eradicate acts of corruption in the exercise of public functions and specifically related acts of corrupcion with such exercise. 

Key provisions of the law

 

Last updated by Terencio Garcia, Regional Managing Partner, Alberto Balladares, Law Clerk, and Ana Garcia, Law Clerk, Garcia and Boden, Managua, Nicaragua, February 2017

Nigeria

Overview of Nigeria's domestic anti-corruption legal framework

The major domestic bribery and corruption laws in Nigeria consist of: 

Other statutes which contain provisions that prohibit acts of bribery and corruption include, but are not limited, to the following: (1) Penal Code Act (Chapter P3) LFN 2004; (2) Money Laundering Prohibition Act 2011 (Prohibition) (Amendment) Act 2012; (3) Advance Fee Fraud and Other Related Offences Act 2006; (4) Banks and Other Financial Institutions Act (Amendment) Act 1991; (5) Failed Banks (Recovery of Debts) and Financial Malpractices in Banks (Amendment) Act (Chapter F2) LFN 2004; (6) Advanced Fee Fraud and other Related Offences Act 2006; (7) Code of Conduct Bureau and Tribunal Act (Chapter C15) LFN 2004; (8) Nigerian Extractive Industries Transparency Initiative Act 2007; (9) Freedom of Information Act 2011; and (10) Fiscal Responsibilities Act 2007.

The Corrupt Practices Act

The Corrupt Practices Act applies to any person employed by or acting for another and includes any governmental official, member of a public body, any political party, any sub-contractor or any official, employee or agent of a public or private organisation and prohibits and criminalises any corrupt act by any of these persons.  “Corruption” is defined to include bribery, fraud and other related offences.

TheAct provides that any person who corruptly asks for or receives or attempts to receive or obtains any property of any kind for himself or for another either before or after he does or omits to do anything in his official capacity is guilty of an offence of official corruption and liable to imprisonment for seven years.  Payments, promises or the giving of anything of value to an official by a person holding or seeking to obtain a contract, license, permit, or anything whatsoever from a government department in which the official is employed is presumed to have been received corruptly.

There is a prohibition in connection with the offering of an advantage to a public official as an inducement to or reward for the public officer’s assistance or influence in the execution or procurement of any contract with any public body, the provision of services or supplies or the payment of any price or consideration in connection with any such contract.  The penalty for the commission of this offence is an imprisonment term of seven years or a fine of ?1,000,000.00 (one million Naira).

The same offences arise and the same penalty is imposed under the Corrupt Practices Act on a public officer that solicits or accepts any consideration from any person as an inducement to or reward for the public officer’s assistance or influence in the procurement of any contract or subcontract.  Furthermore, penalties, under the Corrupt Practices Act, vary based on the offence, however, Section 52 provides that if a person is convicted of an offence for which no penalty is specifically provided, such person would, upon conviction, be liable to a fine not exceeding ?10,000.00 or imprisonment for a term not exceeding 6 (six) months or both.

It is important to note that the Corrupt Practices Act applies to any actions taken outside Nigeria by citizens of Nigeria and persons that have been granted permanent residence in Nigeria, if such action is a violation of Nigerian law and the jurisdiction in the place where the action took place.

The Criminal Code Act

The Criminal Code Act establishes a code of criminal law applicable in all the states of the Federation other than the states comprising the former Northern region of Nigeria.  This Act imposes penalties for a range of offences characterised as “corruption and abuse of office”.

In relation to the offence of official corruption, the Criminal Code Act provides that any Public Official (defined as any person employed in the public service, including persons employed by any government department or any judicial officer) who corruptly asks for or receives or attempts to receive or obtain any property of any kind for himself or for another either before or after he does or omits to do anything in his official capacity is guilty of the felony of official corruption and liable to imprisonment for 7 (seven) years.

The Criminal Code Act contains anti-corruption and bribery provisions that are similar to the provisions of the Corrupt Practices Act.  Section 98A of the Criminal Code Act provides that any person, who corruptly gives, promises, offers, confers, procures or attempts to procure any property or benefit of any kind to, on or for a public officer or another party at the insistence of the public officer is guilty of an offence and liable to imprisonment for 7 (seven) years.  

The EFCC Act

The EFCC Act describes “economic and financial crimes” as the non-violent criminal and illicit activity committed with the objective of earning wealth illegally, either individually or in a group or organised manner and includes any form of fraud, money laundering, embezzlement, bribery and any form of corrupt malpractices, foreign exchange malpractices, including counterfeiting of currency, theft of intellectual property and piracy, etc.

The EFCC Act prohibits a person from, amongst others, acquiring, possessing or using property derived from an economic or financial crime.  If this offence is committed, then such person is liable, on conviction, to an imprisonment term of up to 3 (three) years.  Other sanctions imposed under the EFCC Act include the forfeiture of assets (both within and outside Nigeria) and the freezing of bank accounts maintained by a person accused by the Commission of committing a financial crime.

The Criminal Law of Lagos State 2011

The Criminal Law was established to regulate criminal activities within Lagos State of Nigeria and imposes penalties for a variety of offences characterised as “corruption and abuse of office”.

Similar to the Criminal Code Act, the Criminal Law provides that any public official who corruptly asks for, receives or attempts to receive or obtain any property of any kind for himself or for another either before or after he does or omits to do anything in his official capacity is guilty of the felony of official corruption and liable on conviction to imprisonment for seven years.

The Criminal Law criminalises bribery in the private sector and imposes a penalty of an imprisonment term of 7 (seven) years on any person who promises, offers or gives (directly or indirectly) an undue advantage to a person working in the private sector to act or refrain from acting.  This same penalty is imposed on a person in the private sector who solicits or accepts (directly or indirectly) any undue advantage from another person to act or refrain from acting.  The Criminal Law also states that any person who acts as an agent and accepts or gives any gift or consideration as inducement or reward for doing or refraining from doing any act in relation to his principal’s business commits a misdemeanour and is liable, upon conviction, to imprisonment for two years or a fine of ?360,000.00 or both.

Overview of Nigeria's foreign anti-corruption legal framework

Africa

  • African Union Convention on Preventing and Combating Corruption, 01 July 2003, ratified by Nigeria on 26 September 2006
  • ECOWAS Protocol on the Fight Against Corruption, 21 December 2001, ratified by Nigeria on 23 August 2002

International

  • The United Nations Convention Against Corruption, 31 October 2003, ratified by Nigeria on 14 December 2004
  • The United Nations Convention against Transnational Organized Crime and the Protocols Thereto, 15 November 2000, ratified by Nigeria on 28 June 2001

Last updated by Adeola Sunmola and Edidiong Ajayi, Lagos, Nigeria, July 2017

Paraguay

Overview of Paraguay's domestic and foreign anti-corruption legal framework

Paraguay's domestic anti-corruption provisions are primarily contained in: (1) Law 1,160/97, Criminal Code; Law 2,523/04, which “Prevents, Sanctions and Typifies Illicit Enrichment and Influence Trafficking within the Public Service”; (2) Law 1,626/00 “On Public Function (Civil Service)”; and Law 1,015/97, which “Prevents and Suppresses Illicit Acts Destined to Launder Money or Assets,” (as modified by Law 3,783/09).

Through this framework, Paraguay criminalizes acts such as (1) active and passive bribery; (2) influence peddling; (3) illicit enrichment; and (4) money laundering. Elements of embezzlement of property are also criminalized through provisions on “appropriation” and breach of trust in the Criminal Code. Moreover, Law 5,282/14, “Free Access to Public Information and Governmental Transparency” and its implementing regulations require public institutions and officials to provide information requested by citizens, such as salaries, official trips and contracts, among other data that are not defined as secret by law.

Moreover, Decree 4,900/16 approved a New National Anti-corruption Plan, aiming to: (1) reduce structural and systematic weaknesses within the public administration; (2) reduce opportunities of corruption; (3) foster a correct use of public funds; and (4) increase public trust.

At an international level, Paraguay ratified the Inter American Convention Against Corruption (through Law 977/96), and the United Nations Anticorruption Convention (through Law 2,535/05).

The competent authorities for detecting, preventing and combating corruption are (1) the Public Prosecution Office; (2) the National Anti-Corruption Secretariat; (3) the Office of the Comptroller-General; and (4) the Judiciary.

Key provisions of the law

Last updated by Federico Silva & Lindsay Sykes, Ferrere Abogados, Paraguay/Bolivia January 2017

Peru

Overview of Peru's domestic and foreign anti-corruption legal framework

Bribery of domestic and foreign public officials is criminalized under Peruvian laws. The main anti-bribery law is the  Peruvian Criminal Code, which prohibits acts of bribery, both from the side of the public official who receives the bribe (passive bribery) and from the side of the private citizen who offers the bribe (active bribery).  Penalties for active and passive bribery include imprisonment (up to 8 years depending of the type of bribery), prohibition from being elected or designated for a public office, and monetary fines.

Bribery is also prohibited by laws that regulate the activity of public officials (Law N° 27815, Code of Ethics in the Public Function), which prevent them from obtaining improper benefits or advantages by using their position, authority, influence or appearance of influence. Violations of this law can result in administrative or disciplinary liability.

Traditionally, only individuals -- not corporations  -- could  be held criminally liable for bribery. However, in 2016, Peru approved Law No. 30424 that allows for the criminal liability of corporations solely for the crime of active bribery of foreign public officials. In 2017, Legislative Decree N° 1352 amended Law N° 30424, extending such corporate criminal liability to other crimes, such as active bribery of Peruvian public officials, money laundering and financing of terrorism. These laws will enter into force on January 1, 2018.

Under such laws, corporations can be held criminally liable when the act of bribery is committed on their behalf or for their direct or indirect benefit by their partners, directors, managers, legal representatives and other individuals under the control and surveillance of the corporation. Corporations found liable of bribery may receive the following sanctions: fines of up six times the illegal benefit obtained or expected to be obtained with the commission of the crime, prohibition to conduct economic activities, cancellation of licenses and other authorizations, closure of premises, prohibition to contract with the government (debarment), and dissolution of the corporation.

Corporations may, however, receive certain benefits if they implement a compliance program that includes adequate monitoring and control measures to prevent crimes or to significantly reduce the risk of their commission. If the corporation implements a compliance program before the commission of a crime, it will be exempted from criminal liability. If the implementation occurs after the commission of the crime, the corporation can be awarded with a benefit of reduction of sanctions.

The Superintendence of Capital Markets of Peru is the entity tasked with evaluating compliance programs and giving an opinion on whether the program is sufficient in light of the corporation's nature, characteristics and risks.

Regulations of Law N° 30424, which will develop the minimum elements of compliance programs, are pending to be approved by Peruvian Government.  

Finally, under Peruvian laws, commercial or private bribery is not considered a crime.  However, the General Attorney's Office has passed a draft bill before the Peruvian Congress to criminalize such conduct, which is pending evaluation.

Key provisions of the law

International
  • Inter-American Convention Against Corruption (1996), approved by Peruvian Congress by Legislative Resolution N° 26757 and ratified by Peruvian Government by Supreme Decree N° 012-97-RE (March 1997)
  • United Nations Convention Against Corruption (2003), approved by Peruvian Congress by Legislative Resolution N° 28357 and ratified by Peruvian Government by Supreme Decree N° 075-2004-RE (October 2004).
  • OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (1997). Peru adhered to this Convention on October 2016.
Domestic
Last updated by Teresa Tovar, partner of Estudio Echecopar, member firm of Baker & McKenzie International, Lima, Peru, October 2017.

Romania

Overview of Romania's domestic anti-corruption legal framework

The Romanian anti-corruption legal framework includes mainly the Romanian Criminal Code, Law no. 78/2000 regarding the prevention, the discovery and the sanctioning of corruption criminal offences (“Law no. 78/2000”) and the Romanian Criminal Procedure Code. This legislation is applicable to both natural and legal persons. The Romanian Criminal Code provides the following main corruption related criminal offences: taking bribe, giving bribe, influence peddling and buying influence. Law no. 78/2000 comprises three categories of criminal offences: (i) the criminal offences of corruption (the same as those provided by the Romanian Criminal Code, but having some particularities related to the capacity of the perpetrator), (ii) the criminal offences assimilated to those of corruption and (iii) the criminal offences perpetrated against the financial interests of the European Union. Legal entities may also be held criminally liable as regards corruption related offences, as perpetrators, accomplices or instigators.

Sanctions

With respect to the sanctions for such criminal offences, the Romanian Criminal Code provides different sanctions, depending on the types of criminal offence and on the capacity of the perpetrator, respectively natural person or legal person. If the perpetrator is a natural person, the main punishment consists of imprisonment up to maximum ten years (with certain higher levels depending on certain factual circumstances). If the perpetrator is a legal entity, the main punishment that shall be applied is a criminal fine of up to EUR 700,000. Ancillary or supplemental sanctions may be applied, including, for example, for legal persons, prohibition for participation in tender procedures.

Overview of Romania's foreign anti-corruption legal framework

The Romanian State is a party of the following international conventions:

(a)         the Criminal Law Convention on Corruption adopted at Strasbourg on 27 January 1999 and ratified through Law no. 27 of 16 January 2002 for the ratification of the Criminal Law Convention on Corruption[1], (entered into force in respect of Romania on 1 November 2002);

(b)         the Additional Protocol of the Criminal Law Convention on Corruption adopted at Strasbourg on 15 May 2003 and ratified through Law no. 260 of 16 June 2004 for the ratification of the Additional Protocol to the Criminal Law Convention on Corruption,[2] (entered into force in respect of Romania on 1 March 2005);

(c)         the Civil Law Convention on Corruption adopted at Strasbourg on 4 November 1999 and ratified by Romania on 23 April 2002 through Law no. 147 of 1 April 2001 for the ratification of the Civil Law Convention on Corruption[3];

(d)         the Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector;

(e)         the United Nations Convention against Corruption (UNCAC) adopted at New York on 31 October 2003and ratified by Romania through Law no. 365 of 15 September 2004 for the ratification of the United Nations Convention against Corruption[4];

(f)          the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests, dated 27 November 1995;

(g)         the Convention drawn up on the basis of Article K.3 (2) (c) of the Treaty on European Union on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union, 25 June 1997; and

(h) the United Nations Convention against Transnational Organized Crime adopted at New York on 15 November 2000 and ratified by Romania through Law no. 565 of 16 October 2002 for the ratification of the United Nations Convention against Transnational Organized Crime[5].


[1] Published in the Romanian Official Gazette, Part I, no. 65 of 30 January 2002.

[2] Published in the Romanian Official Gazette, Part I, no. 612 of 7 July 2004.

[3] Published in the Romanian Official Gazette, Part I, no. 260 of 18 April 2002.

[4] Published in the Romanian Official Gazette, Part I, no. 903 of 5 October 2004.

[5] Published in the Romanian Official Gazette, Part I, no. 813 of 8 November 2002. 

Useful links (potentially versions not up-to-date and prepared by the Romanian Ministry of Justice):

Romanian Criminal Code

Romanian Criminal Procedure Code

Last updated by Bogdan Bibicu, partner at Kinstellar SPARL, Bucharest, December 2016

Russian Federation

Overview of the Russian Federation's domestic anti-corruption legal framework

Russia’s domestic anti-corruption legal framework is primarily based on Federal Law No. 273-FZ on Combatting Corruption and on the provisions of the Criminal Code of the Russian Federation.

Federal Law No. 273-FZ on Combatting Corruption provides the legal definition of corruption and primarily sets out the legal and organizational framework for the prevention and combatting of corruption and the mitigation and remediation of the consequences of corruption.

The Criminal Code of the Russian Federation criminalizes in particular giving and receiving bribes, minor corruption and mediation in bribery. The definition of bribery is quite broad and includes money, securities, other property, or the illegal provision of services, property rights or the provision of other property benefits to a Russian public official. A Russian public official is a person who:

  • discharges the functions of a representative of government on a permanent or temporary basis, or by special authority, or
  • performs organizing and regulative, administrative, and economic functions in state bodies, local government bodies, governmental and municipal institutions, state corporations, state companies, state and municipal unitary enterprises, joint-stock companies in which controlling portion of the stock belongs to the Russian Federation, constituent entities of the Russian Federation or municipal formations, and the Armed Forces of the Russian Federation, other troops, and military entities of the Russian Federation.

The Criminal Code applies not only to payments to Russian state and municipal officials, but also to foreign officials and the officials of international organizations.

The Criminal Code also criminalizes commercial bribery. In the case of commercial bribery, the payment is a crime if the recipient is a person performing management functions in a commercial or other corporate entity (e.g. General Director, member of the Board of Directors).

Corruption in Russia is also regulated by a number of specific laws, such as the Russian Civil Code prohibition on state officials accepting gifts with a value exceeding RUB 3,000 (approx. $50 USD), and the Federal Law No. 79-FZ on the State Civil Service, which establishes rules for the acceptance of gifts by state civil servants. Federal Law No. 115-FZ on anti-money laundering sets forth obligatory state control over: certain types of transactions; banking operations; tax and legal advisors. The Code of the Russian Federation on the Administrative Offences sets out administrative liability for failure to comply with anti-bribery and anti-money laundering rules. The Russian Labour Code provides for dismissal for employees who fail to take measures to prevent or resolve conflicts of interest.

On May 19, 2008, the Russian President issued an anti-corruption-related Decree. This Decree provided for the establishment of Anti-Corruption Council and defined its main objectives. The Russian President also defines State policy in the area of anti-corruption once every two years, including through the elaboration of national anti-corruption plans.

Overview of the Russian Federation's foreign anti-corruption legal framework

Russia is a member of a number of international treaties devoted to the fight against corruption. For example, on February 1, 2012, Russia ratified the Organization for Economic Co-operation and Development Anti-Bribery Convention.

Russia is also a member of the United Nations Convention against corruption, Criminal Convention on Corruption, and it takes part in the Group of states against corruption and the Financial Action Task Force (on Money Laundering).

Implementation of these international conventions resulted in significant changes in Russian legislation and its adaptation under modern international standards.

Key provisions of the law

The Criminal Code of the Russian Federation

  • Article 141.1. Breaking the Procedure for Financing the Election Campaign of a Candidate, of an Election Association, for the Activities of a Referendum Initiative Group, of Other Group of Referendum Participants
  • Article 184. Exerting Unlawful Influence upon the Results of an Official Sports Tournament or of an Entertainment Profit-Making Competition
  • Article 204. Commercial Bribery
  • Article 204.1. Mediation in the Commercial Bribery
  • Article 204.2. Minor Commercial Bribery
  • Article 289. Illegal Participation in Business Activity
  • Article 290. Receipt of a Bribe
  • Article 291. Giving a Bribe
  • Article 291.1. Mediation in Bribery
  • Article 291.2. Minor Corruption
  • Article 309. Bribery or Compulsion to Give Testimony or for Evade Giving Testimony, or for Mistranslating
    • The Federal Law No. 273-FZ on Combatting Corruption dtd. December 25, 2008;
    • The Federal Law No. 79-FZ on prohibition for certain persons to open and maintain accounts (deposits), store cash and other values in foreign banks located outside the Russian Federation and to hold/use foreign financial instruments May 7, 2013;
    • The Federal Law No. 115-FZ on counteracting the legalization of illegal earnings (money laundering) and the financing of terrorism dtd. August 7, 2001;
    • Articles 13 to 20.1 of the Federal Law No. 79-FZ on the State Civil Service of the Russian Federation dtd. July 27, 2004;
    • Articles 15.27 and 19.28 of the Code of the Russian Federation on the Administrative Offences;
    • Article 575 of the Civil Code of the Russian Federation;
    • Article 81 of the Labour Code of the Russian Federation.

Last updated by Vassily Rudomino, Senior Partner, ALRUD law firm, Russia, January 2018

Additions

1.1          Article 141.1. Breaking the Procedure for Financing the Election Campaign of a Candidate, of an Election Association, for the Activities of a Referendum Initiative Group, of Other Group of Referendum Participants

1. The transfer of large amounts of money to a candidate or an electoral association for the purpose of achieving a certain result in an election as bypassing the relevant electoral fund or the spending of large amounts of money not remitted to electoral funds for the purpose of achieving a certain result in an election or the transfer of material valuables in large amounts to a candidate or an electoral association for the purpose of achieving a certain result in an election without a compensation with monies from the relevant electoral fund, or the performance of paid work, sale of goods, provision of paid services, which are directly or indirectly relating to an election and which have been allocated for achieving a certain result in an election, effected in large amounts without payment from the relevant electoral fund or with payment from the relevant electoral fund at understated rates or the transfer to an referendum initiative group or to another group of participants in a referendum for the purpose of achieving a certain result in a referendum of large amounts of money as bypassing the relevant fund of the referendum or the spending of large amounts of money which have not been remitted into referendum funds, for the purpose of achieving a certain result in a referendum or the transfer to a referendum initiative group or to another group of participants in a referendum for the purpose of achieving a certain result in a referendum of material valuables in large amounts without a compensation with monies from the relevant referendum fund or the performance of paid work, sale of goods, provision of paid services, which are directly or indirectly related to a referendum and which have been allocated for putting forward an initiative of conducting a referendum, achieving a certain result in a referendum, as effected in large amounts without payment from the relevant referendum fund or with payment from the relevant referendum fund at understated rates, and also the making of large donations to an electoral fund, referendum fund via figure-heads -

shall be punishable with a fine in the amount of from 200 thousand roubles to 500 thousand roubles or in the amount of a wage/salary, or other incomes of the convicted person for a period of one year to three years, or by obligatory labour for a term of up to three hundred and sixty hours, or by corrective labour for a term of up to one year, or by compulsory labour for a term of up to one year, or by deprivation of freedom for the same term.

2. Large-scale use, in addition to the assets of an appropriate election fund, of financial (material) support for waging the election campaign of a candidate, election association by the candidate, his authorized representative in charge of financial matters, by an authorized representative in charge of financial matters of the election association or the election block, the large-scale use, in addition to the assets of an appropriate referendum fund, of the financial (material) support for initiating the conduct of the referendum or for obtaining certain results of the referendum by an authorized representative in charge of financial matters of the referendum initiative group, of another group of referendum participants, as well as large-scale spending of donations prohibited by the laws on elections and referendums and remitted to a special election account or a special account of the referendum fund -

shall be punishable with a fine in the amount of from 200 thousand roubles to 500 thousand roubles, or in the amount of a wage/salary, or other income of the convicted person for a period of one year to three years, or by deprivation of the right to hold specified posts or to exercise specified activities for a term of one to five years, or by obligatory labour for a term of up to four hundred and eighty hours, or by corrective labour for a term of up to two years, or by compulsory work for a term of up to two years, or by deprivation of liberty for the same term.

Note: As large-scale shall be deemed in this article the amount of money, the value of property or of property benefits which exceed one tenth of the maximum amount of expenditure of the election fund of a candidate, election association, referendum fund, established by the laws on elections and referendums, as at the time of committing the deed provided for by this Article, but which is equal to at least one million roubles.

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2              Article 184. Exerting an Unlawful Influence upon the Results of an Official Sports Tournament or of an Entertainment Profit-Making Competition

1. Handing over to a sportsman, to a referee, to the trainer or to the head of a sports team or to a different participant or organiser of an official sports competition (including to their worker) the same as to a member of the jury, to a participant in or to the organiser of an entertainment commercial contest money, securities or a different property as well as rendering to him services of a property character and granting to him the other property rights (including when at such person's suggestion the property is handed over or the property-character services are rendered or the property rights are handed over to a different natural person or legal entity) for the purposes of exerting an illegal impact upon the result of an official sports competition or of an entertainment commercial contest, or the coercion or compulsion of such persons to exerting such impact or a preliminary collusion with such persons for the same purposes -

are punished by a fine of from 300,000 to 700,000 roubles or in the amount of the convict's wages or a different income for a period of from four months to one year or by forced labour for a time term of up to four years with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to three years or without such or by the deprivation of freedom for a time term of up to five years with a fine in the amount of up to 100,000 roubles or in the amount of the convict's wages or a different income for a period of up to five months or without such and with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to three years or without such.

2. The deeds provided for by Part One of this article which are made by an organised group -

shall be punishable by a fine in the amount of five hundred thousand to one million roubles or in the amount of a wage/salary or other income of the convict for a period from two years to five years, or by compulsory labour for a term up to five years accompanied by deprivation of the right to hold definite posts or engage in definite activities for a term up to three years or without such, or by deprivation of liberty for a term up to seven years accompanied by deprivation of the right to hold definite posts or engage in definite activities for a term up to three years or without such.

3. Receipt by a sportsman or by a trainer or by the head of a sports team or by a different participant in an official sports competition the same as by a participant in an entertainment commercial contest of money, securities or a different property as well as his making use of the property-character services or of the other property rights (including when on such person's orders the property is handed over or the property-character services are rendered or the property rights are granted to a different natural person or legal entity) or a preliminary collusion of such persons for the purposes of exerting an illegal influence upon the result of an official sports competition or of an entertainment commercial contest -

are punished by a fine in the amount of from 300,000 to 700,000 roubles or in the amount of the convict's wages or a different income for a period of from four months to one year or by forced labour for a time term of up to four years with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to three years or without such or by the deprivation of freedom for a time term of up to five years with a fine in the amount of up to 100,000 roubles or in the amount of the convict's wages or a different income for a period of up to five months or without such and with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to three years or without such.

4. The deeds provided for by Part Three of this article and made by a referee or by the organiser of an official sports tournament, as well as by a jury member or the organiser of an entertainment -

shall be punishable by a fine in the amount of five hundred thousand to one million roubles or in the amount of a wage/salary or other income of the convict for a period from two years to five years, or by compulsory labour for a term up to five years accompanied by deprivation of the right to hold definite posts or to engage in definite activities for a term up to three years or without such, or by deprivation of liberty for a term up to seven years accompanied by deprivation of the right to hold definite posts or engage in specific activities for a term up to three years or without such.

5. The mediation in committing acts stipulated in the first - the fourth parts of this Article in a considerable amount -

is punished by a fine in the amount of up to 500,000 roubles or in the amount of the convict's wages or a different income for a period of up to six months or by corrective works for a time term of up to two years with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to three years or without such or by forced labour for a time term of up to four years with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to three years or without such or by the deprivation of freedom for a time term of up to four years with a fine in the amount of up to 50,000 roubles or in the amount of the convict's wages or a different income for a period of up to three months or without such and with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to three years or without such.

Notes: 

1. As a considerable size is recognised in the fifth part of the present Article the sum of money, the cost of securities or of a different property, of the property-character services or of the other property rights exceeding 25,000 rubles.

2. The person who has committed a crime envisaged in the first, in the second or in the fifth part of this Article is relieved of criminal liability if he has actively assisted in the exposure and (or) in the investigation of the crime or if the extortion was applied towards him or if this person has voluntarily informed about the committed crime the body possessing the right to institute a criminal case.

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3              Article 204. Commercial Bribery

1. An illegal handing over to the person fulfilling managereal functions in a commercial or in a different organisation of money, securities or of a different property as well as an illegal rendering to him property-character services or granting to him other property rights (including when on such person's orders the property is handed over or the property-character services are rendered or the property rights are granted to a different natural person or legal entity) for committing actions (for inaction) in the interests of the giver or of the other persons if the said actions (inaction) are (is) incorporated into the official powers of such person or if by force of his official position he may facilitate the said actions (inaction) -

is punished by a fine in the amount of up to 400,000 roubles or in the amount of the convict's wages or of a different income for a period of up to six months or in the amount of from the five-fold to the 20-fold sum of the commercial bribery or by the deprivation of freedom for a time term of up to two years or by corrective labour for a time term of up to two years or by the deprivation of freedom for the same time term with a fine in the amount of up to the five-fold sum of the commercial bribery or without such.

2. The acts stipulated in the first part of this Article committed in a considerable amount -

are punished by a fine in the amount of up to 800,000 roubles or in the amount of the convict's wages or a different income for a period of up to nine months or in the amount of from the ten-fold to the 30-fold sum of the commercial bribery with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to two years or without such or by the restriction of freedom for a time term of from one year to two years with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to three years or without such or by forced labour for a time term of from one year to two years with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to three years or without such or by the deprivation of freedom for a time term of up to three years with a fine in the amount of up to the ten-fold sum of the commercial bribery or without such and with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to three years or without such.

3. The acts envisaged in the first part of this Article if they are committed:

a) by a group of persons with a preliminary collusion or by an organised group;

b) for the deliberately illegal actions (inaction);

c) in a large amount -

are punished by a fine in the amount of up to 1,500,000 roubles or in the amount of the convict's wages or a different income for a period of up to one year or in the amount of from the 20-fold to the 50-fold sum of the commercial bribery with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to three years or without such or by the deprivation of freedom for a time term of from three to seven years with a fine in the amount of up to the 30-fold sum of the commercial bribery or without such and with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to three years or without such.

4. The acts envisaged in the first part and in items (a) and (b) of the third part of this Article committed in a particularly large amount -

are punished by a fine in the amount of from 1,000,000 to 2,500,000 roubles or in the amount of the convict's wages or a different income for a period of from one year to two years and six months or in the amount of from the 40-fold to the 70-fold sum of the commercial bribery with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to five years or without such or by the deprivation of freedom for a time term of from four to eight years with a fine in the amount of up to the 40-fold sum of the commercial bribery or without such and with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to five years or without such.

5. An illegal receipt by the person fulfilling managerial functions in a commercial or in a different organisation of money, securities and a different property as well as an illegal making use by him of property-character services or other property rights (including when on such person's orders the property is handed over or property-character services are rendered or the property rights are granted to a different natural person or legal entity) for committing actions (for inaction) in the interests of the giver or of the other persons if the said actions (inaction) are (is) included into the official powers of such person or if by force of his official position he may facilitate the said actions (inaction) -

is punished by a fine in the amount of up to 700,000 roubles or in the amount of the convict's wages or a different income for a period of up to nine months or in the amount of from the ten-fold to the 30-fold sum of the commercial bribery or by the deprivation of freedom for a time term of up to three years with a fine in the amount of up to the 15-fold sum of the commercial bribery or without such.

6. The acts envisaged in the fifth part of this Article committed in a considerable size -

 are punished by a fine in the amount of from 200,000 to 1,000,000 roubles or in the amount of the convict's wages or a different income for a period of from three months to one year or in the amount of from the 20-fold to the 40-fold sum of the commercial bribery with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to three years or by the deprivation of freedom for a time term of up to five years with a fine in the amount of up to the 20-fold sum of the commercial bribery or without such and with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to three years or without such.

7. The acts stipulated in the fifth part of this Article if they:

a) are committed by a group of persons with a preliminary collusion or by an organised group;

b) are connected with the extortion of the object of bribery;

c) are committed for illegal actions (inaction);

d) are committed in a large amount -

are punished by a fine in the amount of from 1,000,000 to 3,000,000 roubles or in the amount of the convict's wages or a different income for a period of from one year to three years or in the amount of from the 30-fold to the 60-fold sum of the commercial bribery with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to five years or by the deprivation of freedom for a time term of from five to nine years with a fine in the amount of up to the 40-fold sum of the commercial bribery or without such and with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to five years or without such.

8.The acts stipulated in the fifth part by  items (a) - (c) of the seventh part of this Article committed in a particularly large amount -

are punished by a fine in the amount of from 2,000,000 to 5,000,000 roubles or in the amount of the convict's wages or a different income for a period of from two to five years or in the amount of from the 50-fold to the 90-fold sum of the commercial bribery with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to six years or by the deprivation of freedom for a time term of from seven to 12 years with a fine in the amount of up to the 50-fold sum of the commercial bribery or without such and with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to six years or without such.

Notes

1. As a considerable size of the commercial bribery are recognised in the present Article and in Article 204.1 of this Code the sum of money, the cost of securities and other property, property-character services and other property rights exceeding 25,000 roubles, as a large size of the commercial bribery - those exceeding 150,000 roubles and as a particularly large size of the commercial bribery - those exceeding 1,000,000 roubles.

2. The person who has committed a crime envisaged in the first - the fourth parts of this Article is relieved of criminal liability if he has actively assisted in the exposure and (or) in the investigation of the crime or if with respect to him has taken place the extortion of the object of bribery or if this person has of his own free will informed about the committed crime the body endowed with the right to institute a criminal case.

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4              Article 204.1. Mediation in the Commercial Bribery

1. Mediation in the commercial bribery that is a direct handing over of the commercial bribery (of an illegal reward) on the orders of the person who is giving the commercial bribery object or of the person receiving the commercial bribery object or a different facilitation to these persons in the achievement or in the implementation of an agreement between them for handing over and for receiving the commercial bribery object in a considerable amount -

is punished by a fine in the amount of up to 400,000 roubles or in the amount of the convict's wages or a different income for a period of up to six months or in the amount of from the five-fold to the 20-fold sum of the commercial bribery or by the restriction of freedom for a time term of up to two years or by corrective works for a time term of up to two years or by the deprivation of freedom for the same time term with a fine in the amount of up to the five-fold sum of the commercial bribery or without such.

2. The mediation in the commercial bribery committed:

a) by a group of persons with a preliminary collusion or by an organised group;

b) for the deliberately illegal actions (inaction);

c) in a large amount -

is punished by a fine in the amount of up to 800,000 roubles or in the amount of the convict's wages or a different income for a period of up to six months or in the amount of from the ten-fold to the 30-fold sum of the commercial bribery with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to five years or without such or by the deprivation of freedom for a time term of up to five years with a fine in the amount of up to the 30-fold sum of the commercial bribery or without such and with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to five years or without such.

3. The mediation in the commercial bribery committed in a particularly large amount -

is punished by a fine in the amount of up to 1,500,000 roubles or in the amount of the convict's wages or a different income for a period of up to one year and six months or in the amount of from the 40-fold to the 70-fold sum of the commercial bribery with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to six years or without such or by the deprivation of freedom for a time term of from three to seven years with a fine in the amount of up to the 40-fold sum of the commercial bribery or without such and with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to six years or without such;

4. The promise or the suggestion of mediation in the commercial bribery -

is punished by a fine in the amount of up to 1,000,000 roubles or in the amount of the convict's wages or a different income for a period of up to one year or in the amount of from the ten-fold to the 20-fold sum of the commercial bribery with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to three years or without such or by the restriction of freedom for a time term of from one year to two years with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to three years or without such or by the deprivation of freedom for a time term of up to four years with a fine in the amount of up to the 15-fold sum of the commercial bribery or without such and with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to three years or without such.

Note: The person who has committed a crime envisaged in this Article is relieved of criminal liability if he has actively facilitated the exposure and (or) the investigation of the crime and if he has voluntarily informed about the committed crime the body which has the right to institute a criminal case.

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5              Article 204.2. Minor Commercial Bribery

1. The commercial bribery for a sum not exceeding 10,000 roubles -

is punished by a fine in the amount of up to 150,000 roubles or in the amount of the convict's wages or a different income for a period of up to three months or by obligatory works for a time term of up to 200 hours or by corrective works for a time term of up to one year or by the deprivation of freedom for a time term of up to one year.

2. The same act perpetrated by a person who has a criminal record for committing crimes stipulated in Articles 204, 204.1 of this Code or in the present Article

is punished by a fine in the amount of up to 500,000 roubles or in the amount of the convict's wages or a different income for a period of up to six months or by corrective works for a time term of up to one year or by the restriction of freedom for a time term of up to one year.

Note: The person who has handed over the object of a minor commercial bribery is relieved of criminal liability if he has actively assisted in the exposure and (or) in the investigation of the crime and if with respect to him has taken place the extortion of the object of bribery or if this person after committing the crime has of his own free will; informed the body possessing the right to institute a criminal case about handing over the object of bribery.

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6              Article 289. Illegal Participation in Business Activity

The establishment of an organisation carrying out business activity, by a functionary, or participation in the management of such an organisation in person or through a confidant contrary to the ban established by the law, if these deeds are connected with the granting to such an organisation of benefits and advantages, or with patronage in a different form -

shall be punishable by a fine in the amount of up to three hundred thousand roubles or in the amount of a wage/salary or other income of the convicted person for a period of up to two years, or by deprivation of the right to hold specified offices or to engage in specified activities for a term of up to five years with a fine in the amount up to 80 thousand roubles, or in the amount of a wage/salary or any other income of the convicted person for a period of up to six months, or by obligatory labour for a term of up to 480 hours, or by compulsory labour for a term of up to two years, or by an arrest for a term of up to six months, or by deprivation of liberty for a term of up to two years.

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7              Article 290. Receipt of a Bribe

1. Receipt by an official, by a foreign official or by an official of an international organisation in person or through a mediator of a bribe in the form of money, of securities or of a different property or in the form of illegally rendering to him property-character services or of granting the other property rights (including when the bribe is handed over on the official's orders to a different natural person or legal entity) for the performance of actions (for inaction) in favour of the bribe giver or of the persons he represents if these actions (inaction) are (is) incorporated into the official powers of the official or if by force of his official position he may facilitate the said actions (inaction) the same as for the general protection or for the connivance at the service -

is punished by a fine in the amount of up to 1,000,000 roubles or in the amount of the convict's wages or a different income for a period of up to two years or in the amount of from the ten-fold to the 50-fold sum of the bribe with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to three years or by corrective works for a time term of from one to two years with the deprivation of the right to occupy certain posts and to engage in a certain activity for a time term of up to three years or by forced labour for a time term of up to five years with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to three years or by the deprivation of freedom for a time term of up to three years with a fine in the amount of from the ten-fold to the 20-fold sum of the bribe or without such.

2. The receipt by an official, by a foreign official or by an official of a public international organisation of a bribe in a considerable size -

is punished by a fine in the amount of from 200,000 to 1,500,000 roubles or in the amount of the convict's wages or a different income for a period of from six months to two years or in the amount of from the 30-fold to the 60-fold sum of the bribe with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to three years or by the deprivation of freedom for a time term of up to six years with a fine in the amount of up to the 30-fold sum of the bribe or without such and with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to three years or without such.

3. The receipt by an official, by a foreign official or by an official of a public international organisation of a bribe for illegal actions (for inaction) -

is punished by a fine in the amount of from 500,000 to 2,000,000 roubles or in the amount of the convict's wages or a different income for a period of from six months to two years or in the amount of from the 40-fold to the 70-fold sum of the bribe with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to five years or by the deprivation of freedom for a time term of from three to eight years with a fine in the amount of up to 40-fold sum of the bribe or without such and with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to five years or without such.

4. The acts envisaged in the first - the third parts of this Article committed by a person occupying a state post of the Russian Federation or a state post of a subject of the Russian Federation the same as by the head of a local government body -

are punished by a fine in the amount of from 1,000,000 to 3,000,000 roubles or in the amount of the convict's wages or a different income for a period of from one year to three years or in the amount of from the 60-fold to the 80-fold sum of the bribe with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to seven years or by the deprivation of freedom for a time term of from five to ten years with a fine in the amount of up to the 50-fold sum of the bribe or without such and with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to seven years or without such.

5. The acts stipulated in the first, in the third and in the fourth parts of this Article if they are committed:

a) by a group of persons with a preliminary collusion or by an organised group;

b) with the extortion of a bribe;

c) in a large amount -

are punished by a fine in the amount of from 2,000,000 to 4,000,000 roubles or in the amount of the convict's wages or a different income for a period of from two to four years or in the amount of from the 70-fold to the 90-fold sum of the bribe with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to ten years or by the deprivation of freedom for a time term of from seven to 12 years with a fine in the amount of up to the 60-fold sum of the bribe or without such and with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to ten years or without such.

6. The acts envisaged in the first, the third and the fourth parts and in items (a) and (b) of the fifth part of this Article committed in a particularly large size -

are punished by a fine in the amount of from 3,000,000 to 5,000,000 roubles or in the amount of the convict's wages or a different income for a period from three to five years or in the amount of from the 80-fold to the 100-fold sum of the bribe with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to 15 years or by the deprivation of freedom for a time term of from eight to 15 years with a fine in the amount of up to the 70-fold sum of the bribe or without such and with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to 15 years or without such.

Notes:

1. As a considerable size of the bribe are recognised in this Article and in Articles 291 and 291.1 of the present Code the sum of money, the cost of securities and of the other property, of the property-character services and of the other property rights exceeding 25,000 roubles, as a large size of the bribe - that over 150,000 roubles and as a particularly large size of a bribe - that exceeding 1,000,000 roubles.

2. As a foreign official is implied in this Article and in Articles 291, 291.1 and 304 of this Code any appointed or elected person occupying some post in the legislative, executive, administrative or judicial body of a foreign state and any person fulfilling some public function for a foreign state including for a public department or for a public enterprise; as an official of a public international organisation is understood an international civil employee or any person authorised by such organisation to act on its behalf.

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8              Article 291. Giving a Bribe

1. Giving a bribe to an official, to a foreign official or to an official of a public international organisation in person or through a mediator (including when a bribe is handed over on the official's orders to a different natural person or legal entity) -

is punished by a fine in the amount of up to 500,000 roubles or in the amount of the convict's wages or a different income for a period of up to one year or in the amount of from the five-fold to the 30-fold sum of the bribe or by corrective works for a time term of up to two years with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to three years or without such or by forced labour for a time term of up the three years or by the deprivation of freedom for a time term of up to two years with a fine in the amount of from the five-fold to the ten-fold sum of the bribe or without such.

2. Giving a bribe to an official, to a foreign official or to an official of a public international organisation in person or through a mediator (including when a bribe is handed over on the official's orders to a different natural person or legal entity) in a considerable amount -

is punished by a fine in the amount of up to 1,000,000 roubles or in the amount of the convict's wages or a different income for a period of up to two years or in the amount of from the ten-fold to the 40-fold sum of the bribe or by corrective works for a time term of from one year to two years with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of from one year to three years or without such or by the deprivation of freedom for a time term of up to five years with a fine in the amount of from the five-fold to the 15-fold sum of the bribe or without such.

3. Giving a bribe to an official, to a foreign official or to an official of a public international organisation in person or through a mediator (including when a bribe is handed over on the official's orders to a different natural person or legal entity) for committing deliberately illegal actions (inaction) -

is punished by a fine in the amount of up to 1,500,000 roubles or in the amount of the convict's wages or a different income for a period of up to two years or in the amount of from the 30-fold to the 60-fold sum of the bribe with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to five years or without such or by the deprivation of freedom for a time term of up to eight years with a fine in the amount of up to the 30-fold sum of the bribe or without such and with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to five years or without such.

4. The acts envisaged in the first - the third parts of this Article if they have been committed:

a) by a group of persons with a preliminary collusion or by an organised group;

b) in a large size -

are punished by a fine in the amount of from 1,000,000 to 3,000,000 roubles or in the amount of the convict's wages or a different income for a period of from one year to three years or in the amount of from the 60-fold to the 80-fold sum of the bribe with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to seven years or without such or by the deprivation of freedom for a time term of from seven to 12 years with a fine in the amount of up to the 60-fold sum of the bribe or without such and with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to seven years or without such.

5. The acts envisaged in the first - the fourth parts of this chapter committed in a particularly large size -

are punished by a fine in the amount of from 2,000,000 to 4,000,000 roubles or in the amount of the convict's wages or a different income for a period of from two to four years or in the amount of from the 70-fold to the 90-fold sum of the bribe with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to ten years or without such or by the deprivation of freedom for a time term of from eight to 15 years with a fine in the amount of up to the 70-fold sum of the bribe or without such and with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to ten years or without such.

Note: The person who has given a bribe is relieved of criminal liability if he has actively facilitated the exposure and (or) the investigation of the crime or if with respect to him has taken place the extortion of the bribe on the part of an official of if after committing the crime the person has voluntarily informed on giving the bribe the body having the right to institute a criminal case on giving the bribe.

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9              Article 291.1. Mediation in the Bribery

1. The mediation in the bribery that is a direct handing over of a bribe on the bribe-giver's or the bribe-receiver's orders or a different facilitation to the bribe giver and (or) to the bribe-receiver in the achievement or in the implementation of an agreement between them on the receipt and on the giving of a bribe in a considerable size

is punished by a fine in the amount of up to 700,000 roubles or in the amount of the convict's wages or a different income for a period of up to one year or in the amount of from the 20-fold to the 40-fold sum of the bribe with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to three years or without such or by the deprivation of freedom for a time term of up to four years with a fine in the amount of up to the 20-fold sum of the bribe or without such.

2. The mediation in the bribery for deliberately committing illegal actions (inaction) or committing such by a person with the use of his official position -

is punished by a fine in the amount of up to 1,000,000 roubles or in the amount of the convict's wages or a different income for a period of up to one year or in the amount of from the 20-fold to the 50-fold sum of the bribe with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to three years or without such or by the deprivation of freedom for a time term of from three to seven years with a fine in the amount of up to the 30-fold sum of the bribe or without such and with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to three years or without such.

3. The mediation in the bribery committed:

a) by a group of persons with a preliminary collusion or by an organised group;

b) in a large size -

is punished by a fine in the amount of from 1,000,000 to 2,000,000 roubles or in the amount of the convict's wages or a different income for a period of from one year to two years or in the amount of from the 50-fold to the 70-fold sum of the bribe with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to five years or without such or by the deprivation of freedom for a time term of from five to ten years with a fine in the amount of up to the 60-fold sum of the bribe or without such and with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to five years or without such.

4. The mediation in the corruption committed in a particularly large size -

 is punished by a fine in the amount of from 1,500,000 to 3,000,000 roubles or in the amount of the convict's wages or a different income for a period of from two to three years or in the amount of from the 60-fold to the 80-fold sum of the bribe with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to seven years or without such or by the deprivation of freedom for a time term of from seven to 12 years with a fine in the amount of up to the 70-fold sum of the bribe or without such and with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to seven years or without such.

5. The promise or an offer of the mediation in bribery -

is punished by a fine in the amount of up to 3,000,000 roubles or in the amount of the convict's wages or a different income for a period of up to three years or in the amount of from the 60-fold sum of the bribe with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to five years or without such or by the deprivation of freedom for a time term of up to seven years with a fine in the amount of up to the 30-fold sum of the bribe or without such and with the deprivation of the right to occupy certain posts or to engage in a certain activity for a time term of up to five years or without such.

Note: The person who has committed a crime envisaged in this Article is relieved of criminal liability if he has actively assisted in the exposure and (or) in the restriction of the crime and has voluntarily informed about the committed crime the body having the right to institute a criminal case.

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10           Article 291.2. Minor Corruption

1. The receipt of a bribe in person or through a mediator in an amount not exceeding 10,000 roubles -

is punished by a fine in the amount of up to 200,000 roubles or in the amount of the convict's wages or a different income for a period of up to three months or by corrective works for a time term of up to one year or by the restriction of freedom for a time term of up to two years or by the deprivation of freedom for a time term of up to one year.

2. The same acts committed by a person who has a criminal record for committing crimes stipulated in Articles 290, 291, 291.1 of this Code or in this Article -

are punished by a fine in the amount of up to 1,000,000 roubles or in the amount of the convict's wages or a different income for a period of up to one year or by corrective works for a time term of up to three years or by the restriction of freedom for a time term of up to four years or by the deprivation of freedom for a time term of up to three years.

Note: The person who has given a bribe in the amount pointed out in this Article is relieved of criminal liability if he has actively assisted in the exposure and (or) in the investigation of the crime and if in respect of him has taken place the extortion of a bribe or if after committing the crime this person has voluntarily informed the body endowed with the right to institute a criminal case on giving the bribe.

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11           Article 309. Bribery or Compulsion to Give Testimony or for Evade Giving Testimony, or for Mistranslating

 

1. Bribery of a witness or victim to give false testimony, or of an expert or specialist to give a false opinion or false testimony, or of a translator to make a mistranslation,

Shall be punishable with a fine in an amount of up to 80 thousand roubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of up to six months, or by compulsory works for a term of up to 480 hours, or by corrective labour for a term of up to two years, or by arrest for a term of up to three months.

2. Compulsion of a witness or victim to give false testimony, or of an expert or specialist to give a false opinions, or of a translator to make a mistranslation, and also compulsion of said persons to evade giving testimony, joined with blackmail or threat of murder, infliction of injury to human health, or destruction or damage of the property of these persons or of their relatives,

shall be punishable with a fine in the amount of up to 200 thousand roubles, or in the amount of a wage/salary or any other income of the convicted person for a period of up to 18 months, or with compulsory labour for a term of up to three years, or with an arrest for a term of three to six months, or with deprivation of liberty for a term of up to three years.

3. Acts provided for in the second part of this Article, and committed by an organised group, with the use of violence that does not endanger the lives of health of said persons,

shall be punishable by compulsory labour for a term of up to five years, or by deprivation of liberty for the same term.

4. Acts stipulated in the first or second part of this Article, and committed by an organised group, or with the use of violence that endangers the lives and health of said persons,

Shall be punishable by deprivation of liberty for a term of three to seven years.

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Serbia

Overview of Serbia's domestic and foreign anti-corruption legal framework

Serbia’s domestic anti-corruption legal framework is primarily based on the provisions of the Criminal Code related to criminalisation of public and private sector corruption, extortion, abuse of office, money laundering, trade of influence and active and passive bribery.The National assembly adopted amendments of the Criminal Code, which will start to apply on June 1st 2017. Amendments, among other, prescribe new criminal acts connected with fraud in performing different business activities and performance of duties.  Receiving and offering bribe in business is introduced for the first time in sense of private companies. The penal policy is tightened, by stipulating stricter prison sentences.

Other than the Criminal Code, the scope of laws that have relevant anti-corruption provisions are Law on Whistle Blowers, Law on the Criminal Liability of Legal Entities for Criminal Offences, Law on prevention of Money Laundering and financing of terrorism, Law on misdemeanours, Law on Anti-Corruption Agency etc. Ministry of Justice of the Republic of Serbia adopted the National strategy for combating corruption and, in June 2016, negotiation chapters for joining the European Union were open. Battle against corruption is treated in the chapter No.23. Serbia ratified relevant international conventions such as UN Convention against corruption, Criminal Law Convention on Corruption and its Protocol and Civil Law Convention on Corruption.

Anti-corruption compliance is relatively new field in Serbia and Serbia is yet to harmonize its legal system with well-known norms and legal systems in other fields, and in the field of anti-corruption.

Key provisions of the law

 Last updated by Law office of Tomislav Šunjka, Novi Sad, Serbia, January 2017

Slovenia

Overview of Slovenia's domestic and foreign anti-corruption legal framework

Slovenia's Criminal Code criminalizes attempted corruption, extortion, blackmail, active and passive bribery (including of foreign officials), facilitation payments and money laundering. If the offender is an individual, penalties for giving or receiving unjustified gifts and bribery are punishable by up to five years in prison and forfeiture of the bribe value. Legal entities - companies may be fined up to 200 times the value of the damage caused or benefit obtained, confiscation, winding up of the company, debarment from participating in public procurement for up to ten years and prohibition on trading in financial instruments for up to eight years. The Integrity and Prevention of Corruption Act prohibits the receipt of gifts, bribes and facilitation payments by public officials as well as the supply of gifts, bribes or facilitation payments to government and local bodies and holders of public authorization. The penalties for breaching the provisions include financial fines and imprisonment of up to eight years.Slovenia also has established a Commission for the Prevention of Corruption of the Republic of Slovenia in 2013.

Slovenia has ratified a number of international conventions, such as the Council of Europe Civil Law Convention on Corruption, Criminal Law Convention on Corruption and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the United Nations Convention against Corruption.

Key provisions of the law

 Last updated by Law office of Tomislav Šunjka, Novi Sad, Serbia, January 2017

South Africa

Overview of South Africa's domestic and international anti-corruption legal framework

South Africa has enacted a comprehensive legislative framework dealing with corruption and the principal piece of anti-corruption legislation is the Prevention and Combating of Corruption Act, No 12 of 2004 ('PACCA'), providing a legislative mechanism to combat corruption and corrupt activities in both the public and private sector. PACCA creates the general offence of corruption (which includes bribery, although PACCA refers to the terms 'gratification' and 'corruption' rather than 'bribe' and 'bribery') as well numerous statutory corruption offences and also contains far-reaching extraterritorial, reporting and disclosure requirements.

PACCA makes it a criminal offence to give or offer to give any other person any gratification in order to personally act or influence another to act in a dishonest, illegal or unauthorized manner, resulting in an abuse of authority, breach of trust or an unjustified result in terms of PACCA. Conversely, it is a criminal offence to accept or agree to accept any gratification from any person in order to act or influence another to act in a dishonest, illegal or unauthorised manner, resulting in an abuse of authority, breach of trust or an unjustified result.

Key provisions of the PACCA

  • The definition of “gratification” in PACCA is very broad and gratification may be something other than money, such as gifts, entertainment, loans, employment and other types of benefits. There is no minimum threshold stipulating what constitutes gratification. Furthermore, unlike other major international corruption legislation such as the FCPA, PACCA does not make provision for the allowance of facilitation payments (section 3);
  •  Penalties under PACCA include both imprisonment and fines and a person convicted of an offence under PACCA may be imprisoned for life or fined an unlimited amount (section 26).PACCA makes provision for extraterritorial prosecution of the offence of corruption that has taken place outside of South Africa (section 35).
  •  If it becomes apparent that any person who holds a position of authority (including within a private corporation) knew, suspected, or ought to have known or suspected that bribery or corruption has taken place within their organisation involving an amount of R100, 000.00 or more, that person has a duty to report such knowledge or suspicion to the South Africa Police Services.  A failure to report may lead to a fine or imprisonment of up to 10 years (section 34).
  •  Under South African law, a company can be held criminally liable for bribes paid by an agent or employee if senior company personnel instructed or permitted the corruption to take place
  • (section 3 of PACCA read with the Companies Act and the Criminal Procedure Act). 

In addition to PACCA the following Acts form part of South Africa’s legislative corruption framework:

  • The Companies Act, 71 of 2008 generally governs corporate liability under South African law which treats the acts or states of mind of those who represent or control the company as the acts and states of mind of the company itself.
  • The Criminal Procedure Act, 51 of 1997 regulates all proceedings relating to criminal conduct.
  • The Financial Intelligence Centre Act, 2001 requires persons to report suspicious and unusual transactions and imposes extensive “know your client” requirements on “accountable institutions” as defined in the act.
  • The Prevention of Organised Crime Act 121 of 1998 (“POCA”). POCA criminalises racketeering, bribery, money laundering and gang related offences.
  • The Public Protector Act 23 of 1994. The Constitution of the Republic of South Africa provides for the establishment of the office of the Public Protector. The Public Protector is empowered by national legislation to investigate any conduct in state affairs or in public administration, in any sphere of government.
  • The Protected Disclosures Act 26 of 2000 addressed whistleblowing in South Africa and is primarily designed to protect whistleblowers from retribution sought by their employers and to provide remedies if they do suffer occupational detriment as a result of ‘blowing the whistle’.

International Anti-corruption Conventions

  • Southern African Development Community Protocol against Corruption.
  • African Union Convention on Preventing and Combating Corruption.
  •  United Nations Convention against Corruption.
  • Organisation for Economic Cooperation and Development Convention against Bribery of Foreign Public Officials in International Business Transactions.
  • United Nations Convention against Transnational Organised Crime.

Last updated by Cameron Dunstan-Smith, attorney-at-law and Senior Associate at Bowmans Law Firm, Johannesburg, South Africa, June 2017

Sweden

Overview of Sweden's domestic and international anti-corruption legal framework

Swedish provisions on anti-corruption are primarily to be found in Chapter 10, Sections 5a to 5e of the Swedish Penal Code (the “Penal Code”). Updated provisions on anti-bribery came into force 2012. The provisions mainly provide as follows:

  1. 1. an employee or contractor may not receive, accept a promise of or request an improper benefit for the carrying out of the employment or assignment (passive bribery);
  2. 2. it is not permitted to provide, promise or offer an improper benefit to an employee or contractor for the carrying out of the employment or assignment (active bribery);
  3. 3. it is not permitted to receive, accept a promise of or request an improper benefit in order to influence a person who exercises public authority or decides on public procurements, or to provide, promise or offer an improper benefit in order for the recipient to influence the decision maker when exercising public authority or deciding on a public procurement (trading in influence); and
  4. 4. a businessman (typically a person with a leading position in a company or business enterprise) must act with care when providing cash or other assets to its representatives, agents, cooperation partners and other representatives to ensure that the funds are not used for bribes (negligent financing of bribery).

There is no definition of “Public Officials” or “Foreign Public Officials” in the Penal Code. The provisions on passive and active bribery and negligent financing of bribery are applicable within both the public and the private sector (whereas the trading in influence offence is limited to the public sector). All of the bribery provisions are applicable also on acts of bribery committed abroad (provided that the acts of bribery are subject to the jurisdiction of Swedish courts, which inter alia means that the requirement of double criminality normally must be met).

There is no definition of gifts in the Penal Code. Instead the wording “improper benefit” is used. The assessment of whether a benefit is improper or not is to be made through an evaluation of the gift in its whole.

The Swedish anti-bribery provisions do not make an exception for facilitating payments, nor is there any de minimis rule. However, the fact that the benefit has to be considered improper serves as a limitation to the scope of the provisions.

The penalty for passive and active bribery is fines or imprisonment up to a maximum of two years. Should the criminal offence (passive or active bribery) be considered gross, the penalty is imprisonment ranging between six months and a maximum of six years. The penalty for trading in influence and negligent financing of bribery is fines or imprisonment up to a maximum of two years.

The provisions on complicity are to be found in Chapter 23, Sections 4 and 5 of the Penal Code.

According to established legal principles of Swedish law, only physical persons can be held liable for criminal offences. Nevertheless, pursuant to Chapter 36, Sections 7 to 10a of the Penal Code, legal entities can be subject to corporate fines if certain criteria are met. The maximum corporate fine is currently SEK 10 million (a significant increase of the maximum fine is being discussed, however.)

In addition to the provisions in the Penal Code, Chapter 9, Section 10 of the Swedish Income Tax Act (which is applicable on both individuals and legal entities) explicitly provides that bribes and other improper rewards are non-deductible expenses.

Links to applicable legislation/relevant provisions of the law

Last updated by David Ackebo, Hannes Snellman Attorneys Ltd, Stockholm, Sweden, July 2017

 

Switzerland

Overview of Switzerland's domestic anti-corruption legal framework

The Swiss Criminal Code (SCC) has five provisions prohibiting acts of bribery.

The SCC first prohibits active and passive corruption of domestic officials under articles 322-ter and 322-quater, respectively. These provisions prohibit the offering, promising or giving of an undue advantage (respectively soliciting, receiving a promise of or accepting such an advantage) to a member of a judicial or other authority, a public official, an officially-appointed expert, translator or interpreter, an arbitrator or a member of the armed forces, for that persons’ benefit or for anyone else’s benefit, in order to cause him to carry out or to fail to carry out an act in connection with his official activity, which is contrary to his duty or dependent on his discretion.

Articles 322-quinquies and 322-sexies SCC further prohibit the granting of an advantage to a public official as well as the acceptance by public officials of an advantage, which is not due to them in order to carry out their official duties (facilitating or “grease” payments). Contrary to articles 322-ter and 322-quarter SCC, in this scenario the public official has a legal obligation to carry out the act in connection with his official activity and has no discretion in the decision to make. This is typically the case of a bribe paid to a public official in order to accelerate the issuance of a legally sound building permit.

Active and passive corruption of foreign public officials are prohibited under article 322-septies SCC. This provision prohibits the same conduct as articles 322-ter and 322-quarter SCC, but with respect to a person acting for a foreign State or an international organisation. The assessment of whether the “advantage” given represents an “undue advantage” for the foreign official has to be made based on the terms of the legislation of the country concerned. It is important to specify that facilitating or “grease” payments are not prohibited under this provision or any other Swiss provision relating to foreign public officials. Therefore, one cannot be held criminally liable for a facilitating payment made to a foreign public official.

Active and passive private commercial bribery are also prohibited. Articles 322-octies and 322-novies SCC prohibit the same conduct as articles 322-ter and 322-quarter SCC or article 322-septies SCC, but with respect to an employee, a partner, a proxy or an auxiliary working in the private sector, who carries out or fails to carry out an act in connection with his professional or commercial activity. Facilitating or “grease” payments are again not prohibited under this provision.

Overview of Switzerland's foreign anti-corruption legal framework

Besides the national provisions mentioned above, Switzerland is a signatory to three international anti-corruption conventions.

Switzerland first ratified the 2003 United Nations Convention against Corruption on 24 September 2009, with no reservation.

Switzerland is also part of the 1998 Council of Europe Criminal Law Convention on Corruption and its 2003 Additional Protocol, both ratified on 31 March 2006. However, Switzerland made several reservations regarding this Convention. In particular, it reserved its right not to apply section 12 of the Convention (trading in influence) – to the extent that this offence is not punishable under Swiss law – as well as its right to apply section 17(1) (b) and (c) (applying to extraterritorial jurisdiction) only where an act is also punishable in the country where it was committed, the offender is in Switzerland and will not be extradited to a foreign state. Switzerland is also a member of the Council of Europe’s Group of States against Corruption.

Switzerland is finally a party to the 1997 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, ratified on 31 May 2000.

In addition to these conventions, on 31 May 2000, Switzerland ratified the 1990 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of Proceeds of Crime. In 2006, Switzerland added to its international legal framework, the 2000 United Nations Convention against Transnational Organized Crime. The Convention notably requires States to criminalize corruption and adopt effective legislative, administrative or other measures to promote integrity and prevent, detect and punish the corruption of public officials.

For the rest, Switzerland is a party to a number of bilateral treaties in matters of mutual legal assistance that facilitate the seizure, confiscation and repatriation of proceeds of crimes (which include corruption).

Key provisions of the law

Last updated by Marc Henzelin, Sonja Maeder Morvant and Anton Vallelian, Lalive, Geneva, Switzerland, February 2017

Turkey

Overview of Turkey's domestic and foreign anti-corruption legal framework

Turkey’s primary anti-bribery and anti-corruption legislation is contained in the Turkish Criminal Code ('TCC') No 5237, amended to its current version in 2012. This is complemented by various laws and regulations, amongst which The Law on Anti-Money Laundering No 5549 and The Law on Declaration of Property, Bribery and Anti-Corruption No 3628 stand out.

The TCC is the main legislation dealing with various forms of corruption including bribery, fraud, embezzlement and misconduct. The law provides a broad and contemporary definition of bribery. The provision goes beyond the classic definition of a public official to extend to individuals representing entities like companies established with public institution participation, public benefit associations, and open joint stock companies. The use of intermediaries for bribery is explicitly prohibited by the law. Bribing foreign officials in the course of conducting international business also constitutes a crime under the TCC.

The Anti-Money Laundering Law provides a system whereby suspicious financial transactions are scrutinized by the Financial Crimes Investigation Board (MASAK). The Law on Declaration of Property, Bribery and Anti-Corruption provides imperative measures for the public officials to prevent corrupt practices.

Key provisions of the law

Last updated by Ceren Aral Desnos, Counsel, Gun + Partner, 8 December 2016

 

Uganda

Overview of Uganda's domestic and foreign anti-corruption legal framework

In Uganda, the Anti-Corruption Act, 2009 (“ACA”) is the principal legislation governing anti-corruption. The ACA, which was enacted to prevent corruption in both the public and private sectors, provides for a host of dishonesty and corruption related offences.

Under Section 2 of the ACA, “corruption” is defined broadly and is committed when:

  • A public official solicits or accepts, directly or indirectly, any goods of monetary value, or benefits, such as a gift, favour, promise, advantage or any other form of gratification for himself or herself or for another person or entity, in exchange for any act or omission in the performance of his or her public functions;
  • A person offers or grants, directly or indirectly, to a public official, any goods of monetary value, or other benefit, such as a gift, favour, promise or advantage or any other form of gratification for himself or herself or for another person or entity, in exchange for any act or omission in the performance of his or her public functions;
  • A public official diverts or uses, for purposes unrelated to those for which they were intended, for his or her own benefit or that of a third party, of any movable or immovable property, monies or securities belonging to the State, to an independent agency, or to an individual, which that official has received by virtue of his or her position for purposes of administration, custody or for other reasons;
  • A person offers or gives, promises, solicits or accepts, directly or indirectly, any undue advantage to any person who directs or works for, in any capacity, a private sector entity, for himself or herself or for any other person, for him or her to act, or refrain from acting, in breach of his or her duties;
  • Any person offers, gives, solicits or accepts directly or indirectly, or promises any undue advantage to or by any person who asserts or confirms that he or she is able to exert any improper influence over the decision making of any person performing functions in the public or private sector in consideration of the undue advantage, whether the undue advantage is for himself or herself or for any other person, as well as the request, receipt or the acceptance of the offer or the promise of the advantage, in consideration of that influence, whether or not the supposed influence leads to the intended result;
  • There is fraudulent acquisition, use or concealment of property derived from any of the acts referred to above;
  • a principal, co-principal, agent, instigator, accomplice or accessory after the fact, participates in the commission or attempted commission of, or in any collaboration or conspiracy to commit, any of the acts referred to in this section; or
  • a public official commits any act or omission in the discharge of his or her duties by a public official for the purpose of illicitly obtaining benefits for himself or herself or for a third party.
The ACA expansively defines 'gratification' to include:
  • money or any gift, loan, fee, reward, commission, valuable security or other property or interest in property of any description, whether movable or immovable;
  • any office, employment or contract;
  • any payment, release, discharge or liquidation of any loan, obligation or other liability, whether in whole or in part;
  • any other service, favour, or advantage of any description, including protection from any penalty or disability incurred or apprehended or from any action or proceedings of a disciplinary or penal nature, whether or not already instituted, and includes the exercise or the forbearance from the exercise of any right or any official power or duty; and
  • any offer, undertaking or promise of any gratification.

Conviction for the offence of corruption is punishable by a term of imprisonment not exceeding ten years or by a fine not exceeding UGX. 4,800,000/=  (Four million eight hundred thousand Uganda shillings, approx. USD. $1,330) or both. However, where the offense involved a contract or a proposal for a contract with any public body or a subcontract to execute any work comprised in such contract, a conviction is punishable by a term of twelve years imprisonment or a fine of UGX. 5,760,000/= (Five million seven hundred sixty thousand Uganda shillings, approx. USD. $ 1,595). Furthermore, where a person is convicted for having accepted any gratification, then the convict may be ordered to pay as a penalty a sum equal to the value of that gratification in addition to the term of imprisonment or the fine. Under Section 63, Court is also empowered to make an order confiscating the property that is the subject of or derived directly or indirectly from the act of corruption in addition to other penalties.

At sentencing, judicial officers are guided by The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions (“the Sentencing Guidelines”). The Sentencing Guidelines provide specific sentencing recommendations for only a limited number of offenses which include corruption and related offenses. Depending on the aggravating or mitigating circumstances surrounding the commission of the offence of corruption, a term of imprisonment between 3 years to 12 years may be imposed.

Under Part IV of the ACA, the Court has the power to make restraining orders stopping the disposal of property in the possession of, or, under the control of a person charged or about to be charged with an offence under the ACA. 

Other associated offences under the ACA

  • Corruptly procuring tenders (section 3)
  • Bribery of a public official (section 5)
  • Diversion of public resources (section 6)
  • Influence peddling (section 8)
  • Nepotism (section 13)
  • Embezzlement (section 19)
  • Causing financial loss (section 20)
  • Fraudulent false accounting (section 23) 
The ACA empowers the Inspector General of Government and the Director of Public Prosecutions to investigate and prosecute offences under the Act. The ACA also provides for the protection of whistleblowers by making a complaint to an offence inadmissible in civil proceedings and prohibiting witnesses from disclosing the name or address of any informer or anything that might lead to the discovery of the witness.
 
Other statutes that form part of the anti-corruption legal framework include:
  • The Inspectorate of Government Act, 2002. This Act creates the office of the Inspectorate of Government whose function under Section 8 (b) is to eliminate and foster the elimination of corruption, abuse of authority and of public office.
  • The Public Finance Management Act, 2015. This Act was enacted to providemechanisms for the management of public finances such as providing for: the roles of Accounting Officers; the establishment of accounting standards and audit committees to provide for in-year reporting; the preparation of annual accounts and for the accounting for classified expenditure among other measures.
  • The Leadership Code Act, 2002. This Act empowers the Inspectorate of Government under Section 3 (b) to examine whether or not a leader has corrupt influence or has corruptly entered into a contract with a government or public body or foreign business organization contrary to the Act. Furthermore, anyone designated as a leader is required to submit to the Inspector-General a written declaration of the leader's income, assets and liabilities, the names, income, assets and liabilities of his or her spouse, child and dependant in the prescribed form, without prejudice to the rights of the leader's spouse, child and dependant to independently own property. This Act also prohibits leaders from; accepting gifts which are likely to influence their decisions, accepting gifts or benefits from companies controlled by foreign citizens, and, from seeking or accepting any contract with any government or public body controlled by the leader, his spouse or that leader’s agent.
  • The Whistleblowers Act, 2010. This Act provides for procedures by which individuals in both the private and public sector may in the public interest disclose information that relates to irregular, illegal or corrupt practices and for the protection against victimization of persons who make disclosures.
  • Parliament (Powers and Privileges Act), Cap. 258. Section 18 of this Actmakes any offer to any member or officer of Parliament of any bribe, fee, compensation, gift or reward in order to influence him or her in his or her conduct as such member or officer, or for or in respect of the promotion of or opposition to any bill, motion, matter, rules or thing submitted to or intended to be submitted to Parliament, or a committee by any person a criminal offence punishable on conviction by a fine not exceeding four thousand Uganda Shillings or to imprisonment for any term not exceeding two years or to both such fine and imprisonment.
  • The Anti-Money Laundering Act, 2013. This Act prohibits money laundering which is defined as the process of turning illegitimately obtained property into seemingly legitimate property. Money laundering is an extraditable offence and the Act goes ahead to impose numerous duties on institutions, businesses, professions and other persons who may be used for money laundering purposes which duties aid the fight against corruption.
  • The Public Service Standing Orders. Under F-m 1 of the Public Service Orders a public officer or a member of his or her family shall not receive valuable presents other than ordinary gifts from friends or relatives. Clause 4.11.2 of the Public Service Standing Orders provides that a member of the public who corruptly gives promises or offers any gift or present or reward or gratuity (tips) to any public officer as an inducement is guilty of a misdemeanour and shall be dealt with in accordance with the laws of Uganda. Conversely, a public officer who in his or her personal or official capacity, demands, accepts or gives any bribe or is an agent of any person who intends to influence him or her or another officer is in breach of this Code.

International Anti-corruption Conventions

  • United Nations Convention against Corruption.
  • The African Union Convention on Preventing and Combating Corruption.
  • United Nations Convention against Transnational Organized Crime.

Last updated by David F K Mpanga, Partner, Bowmans, Uganda, July 2017

Ukraine

Overview of Ukraine's domestic anti-corruption legal framework

The process of development of anti-corruption framework in Ukraine to large extent is divided into two periods – before and after the February 2014 Revolution of Dignity. Since collapse of the Soviet Union in 1991 and until 2014, Ukraine's anti-corruption system was very ineffective. The institutions, which were mandated to fight corruption were among the most corrupt.After 2014, new laws were adopted setting framework for new enforcement agencies and preventive institutions (the National Anti-Corruption Bureau, Specialized Anti-Corruption Prosecution Office, the Business Ombudsman Council, and the National Agency for Prevention of Corruption). Establishment of these new institutions revitalized Ukraine’s anti-corruption regime and activated enforcement.

The Ukrainian anti-corruption legal framework is primarily based on the provisions of the Law on the Prevention of Corruption, the Criminal Code and the Code of Administrative Offences of Ukraine.

Common forms of bribery were criminalized since Soviet Union time. Since independence, forms and types of criminalized corruption were gradually changing, but it had no significant effect on eradication of corruption, due to the lack of effective enforcement and political will. The key reform in this area after 2014 was the criminalization of acts with easier pattern of elements to prove the offence (such as “illicit enrichment” and “false information in declarations”). The list of corruption related offences punished under the Criminal Code of Ukraine is provided below.

The Code of Administrative Offences contains a set of administrative offences (a concept similar to that of a misdemeanour in common law) for violations of regulations related to corruption, such as conflict of interest and gifts regulation (see below).

Overview of Ukraine's foreign anti-corruption legal framework

On the international level, Ukraine has declared over the years its commitment to fight corruption with the help of international conventions (see below) and anti-corruption fora.

In 2011, to comply with recommendations of international partners, Ukraine updated the concept of public official in the Criminal Code to criminalize the bribery of foreign and international public officials. Although the laws were amended, but to the best of our knowledge there were no cases where companies or persons were held criminally liable in extraterritorial manner for bribery abroad. 

Compliance

Anti-corruption compliance is a new field in Ukraine. The requirement to implement anti-corruption programs was set forth by the “On Prevention of Corruption”law, which became effectivein 2015. Further, to elaborate on the above requirement, the minimum standard for compliance and anti-corruption efforts was adopted. Basically, it introduced the concepts and procedures corresponding to international standards of corporate compliance.

Key provisions of the law

Criminal Code of Ukraine

  • Article 159-1. Violation of regulations for financing a political party, election campaigning, campaigning for national or local referendum
  • Article 160. Bribing of voters or participant of referendum
  • Article 189. Extortion
  • Article 191 Misappropriation, embezzlement or conversion or property by abuse of office
  • Article 210 Misuse of budget funds, spending of budget funds or providing of loans from the budget funds without established budget allocations or above limits
  • Article 354 Bribing of employee (non officer) of enterprise, institution or organization
  • Article 364 Abuse of power or official position
  • Article 364-1 Abuse of power by officer of private legal entity irrespective of corporate form
  • Article 365-2 Abuse of power by persons providing public services
  • Article 366-1 Declaring false information (covers filing of deliberately false information in income and assets reporting process)
  • Article 368 Accepting of offer or promise, or receiving of undue advantage by official
  • Article 368-2 Illicit enrichment (covers inability of official to prove source of wealth);
  • Article 368-3 Bribery of officer of private legal entity irrespective of corporate form
  • Article 368-4 Bribery of persons providing public services
  • Article 369 Offer, promise or providing of undue advantage to official
  • Article 369-2 Abuse of influence
  • Article 369-3 Illegal influence on the results of official sports competitions
  • Section XIV-1. Criminal liability of legal entities (includes, inter alia, liability of companiesfor corrupt acts of their officials, agents, representatives).

Code of Administrative Offences of Ukraine, Chapter 13-A Administrative Offences related to corruption

  • Article 172-4. Violation of restrictions on combination of activities (covers restriction to officials to hold positions in private sector);
  • Article 172-5. Violation of legal restrictions on receiving of gifts;
  • Article 172-6. Violation of the requirements of financial control (covers violations related to income and assets reporting process);
  • Article 172-7. Violation of requirements to prevent and resolve conflicts of interest;
  • Article 172-8. Illegal use of information that has become known to a person   while exercising of official powers;
  • Article 172-9. Failure to undertake required anti-corruption measures (covers only officials in case of in case of detection of a corruption offense);
  • Article 172-9-1. Violations of ban on bets on sports, associated with manipulation of official sport competitions. 

Law on Prevention of Corruption

Includes provisions related to: restrictions on gifts, conflict of interest, ethical behavior, income and assets reporting system, transfer of corporate rights in companies for certain categories of officials, whistleblowing, anti-corruption programs of legal entities (mandatory for the state and municipal companies, exceeding certain thresholds; and for the private companies participating in public procurements, exceeding certain thresholds).

Sample Anticorruption Program of Legal Entity

Inter alia, requires implementation of such procedures as: anticorruption risks assessment; internal investigations; onboarding trainings; due diligence of counterparties; code of ethics; procedures on charitable and political contributions; gifts and hospitality procedures.

International conventions

Ukraine is a signatory of the following in this area:

  • The Council of Europe, Civil Law Convention on Corruption, Ratified: Sep 19, 2005;
  • The Council of Europe Criminal Law Convention on corruption, Ratified Nov 27, 2009;
  • United Nations Convention against Corruption, Ratified Dec 2, 2009.

Last updated by Orest Stasiuk (Senior Associate) & Sergiy Grebenyuk (Partner), Asters, Kyiv, Ukraine, August 2017

UK

Overview of the UK's domestic and foreign anti-corruption legal framework

The Bribery Act 2010 (the "2010 Act"), which came into force on 1 July 2011, governs the UK's anti-corruption regime by means of four principal offences:

  • giving, promising or offering a bribe to another person (section 1);
  • requesting, agreeing to receive or accepting a bribe (section 2);
  • directly or indirectly offering, promising or giving a bribe to a foreign public official ("FPO") in an attempt to influence the FPO in their official capacity (section 6); and
  • a strict liability corporate offence of failing to prevent bribery (section 7).

An offence is committed under sections 1, 2 or 6 if any act or omission which forms part of the offence takes place in the UK, or, irrespective or where the act or omission takes place, if the offence is committed by: a resident of the UK; a British citizen (or various other categories of British passport holder); or a body incorporated in any part of the UK. An individual guilty of an offence under sections 1, 2 or 6 is liable to a maximum penalty on indictment to imprisonment for 10 years and/or a fine.

The corporate offence under section 7 is committed when a commercial organisation fails to prevent persons acting on its behalf ("associated persons") from paying bribes in order to obtain or retain business or a business advantage for the commercial organisation. The offence is committed regardless of where it takes place, provided it is committed by a UK-incorporated company or partnership, or an overseas company or partnership which carries on part of its business in the UK. The 2010 Act does not however specify what "carrying on a business in the UK" entails. A commercial organisation guilty of a section 7 offence is liable on indictment to a fine.  The company has a defence if it can show that it had adequate procedures to prevent bribery.

The Serious Fraud Office (SFO) is the main prosecutor responsible for enforcing the 2010 Act.

Key provisions of the law

Bribery Act 2010

Last updated by Tony Woodcock and David Hamilton, Stephenson Harwood, London, UK.

Uruguay

Overview of Uruguay's domestic and foreign anti-corruption legal framework

The Uruguayan legal framework is primarily made up of the Criminal Code and Act No. 17.060, which regulates the unlawful use of public power and amends the relevant articles of the Criminal Code, along with Law 19.007. These anti-corruption provisions criminalize acts of passive and active bribery, transnational bribery, embezzlement, influence peddling, extortion and abuse of public functions. Money laundering is also prohibited and its prevention is regulated through Act No. 17.835 (modified by Acts 18.494, 18.914 and 19.355); and Decree 355/010. Decree 30/003 and Law 19.121 further regulate Public Officials’ acts.

At the international level, Uruguay has ratified the United Nations Convention against Corruption (through Law No. 18.056), and the Inter-American Convention Against Corruption (through Law 17.008).

Oversight functions are primarily exercised by the Transparency and Public Ethics Board and the Court of Accounts, however the country has several bodies that aim to curb corruption, such as the National Anti-money-laundering Secretariat, the Office of the Attorney General, and the Financial Information and Analysis Unit.

Key provisions of the law

Last updated by Carla Arellano & Lindsay Sykes, Ferrere Abogados, Uruguay/Bolivia, January 2017

USA

Overview of the US's domestic and foreign anti-corruption legal framework

In the United States, bribery of US officials is prosecuted under the domestic bribery statute at Title 18 of the US Code, whereas bribery of non-US (hereinafter, 'foreign') officials is prosecuted under the Foreign Corrupt Practices Act (FCPA). Separately, commercial bribery involving travel or interstate or foreign commerce is prosecuted under the Travel Act.

Domestic bribery

Domestic bribery, or the bribery of US government officials, is covered under Section 201 of Title 18 of the US Code, entitled 'Bribery of public officials and witnesses'. See 18 USC § 201.  The domestic bribery statute includes the traditional offence of bribery in Section 201(b) by prohibiting the giving or accepting of anything of value to or by a public official, if the thing is given 'with intent to influence' an official act, or if it is received by the official 'in return for being influenced'.  It also includes what is commonly referred to as the offence of 'gratuities', which prohibits the same conduct if the thing of value is given or accepted 'for or because of' any official act. A conviction under Section 201(b) is punishable by up to 15 years in prison, while a conviction under Section 201(c) is punishable by a maximum of two years in prison.

The Foreign Corrupt Practices Act

The bribery of foreign government officials is covered by the FCPA. The FCPA has two provisions, the anti-bribery provisions, which are enforced by the Department of Justice, and the accounting provisions, which are enforced primarily by the Securities and Exchange Commission.

The FCPA anti-bribery provisions make it illegal to corruptly offer or provide anything of value to foreign government officials, foreign political parties, candidates for foreign political office, or officials of public international organizations.  See 15 USC §§ 78dd-1, et seq.  Under the statute, a 'foreign official' includes any officer or employee of a foreign government or any department, agency, or instrumentality thereof, any person acting in an official capacity for or on behalf of any such entity, and any person acting for or on behalf of a public international organisation.  Courts in the United States have construed the term 'instrumentality of a foreign government' to include state-owned and state-controlled entities if they satisfy certain factors.  The anti-bribery provisions apply to 'issuers', 'domestic concerns', and 'agents' acting on behalf of issuers and domestic concerns, as well as to 'any person' who violates the FCPA while in the territory of the United States.

For companies, a criminal conviction under the anti-bribery provisions is punishable by a fine of up to $2 million per violation and/or restitution and collateral consequences including suspension, debarment, and/or loss of export privileges. For individuals, a criminal conviction is punishable by a fine of up to $250,000 per violation, five years in prison, restitution, and collateral consequences including extradition to the United States and/or asset seizure. Civil violations are subject to a penalty of up to $16,000 per violation.

The FCPA accounting provisions include the books-and-records provision and the internal controls provision. See 18 USC § 78m(b)(2)(A). The books-and-records provision requires issuers to make and keep accurate books, records, and accounts, that in reasonable detail, accurately and fairly reflect the issuer’s transactions and disposition of assets. The internal controls provision requires that issuers devise and maintain reasonable internal accounting controls aimed at preventing and detecting FCPA violations. The FCPA accounting provisions apply only to issuers and their agents.

For companies, a criminal conviction under the accounting provisions is punishable by a fine of up to $25 million per violation and/or restitution; a civil violation is subject to a penalty of either the gross amount of the pecuniary gain to the defendant or between $75,000 and $725,000. For individuals, a criminal conviction under the accounting provisions is punishable by a fine of up to $5 million per violation and imprisonment for up to 20 years; a civil violation is subject to a penalty of either the gross amount of the pecuniary gain to the defendant or between $7,500 and $150,000.

Travel Act

Commercial bribery that involves travel or interstate of foreign commerce is covered under the Travel Act. See 18 USC § 1952. The Travel Act prohibits travel in interstate or foreign commerce, or using the mail or any facility in interstate or foreign commerce, with the intent to distribute the proceeds of any unlawful activity or to promote, manage, establish, or carry on any unlawful activity.  'Unlawful activity' includes violations of state commercial bribery laws as well as violations of the FCPA and other federal statutes. A non-violent conviction under the Travel Act is punishable by the greater of a $250,000 fine or twice the pecuniary gain or loss and/or up to 5 years in prison.

Last updated by Lara Covington, partner, Holland & Knight, Washington, DC, US, January 2017

Vietnam

Overview of Vietnam's anti-corruption legal framework

Vietnam’s primary anti-corruption legislation is contained in the Law on Anti-Corruption No. 55/2005/QH13 dated 29 November 2005, as amended (“Anti-Corruption Law”) and the Penal Code No. 15/1999/QH10 dated 21 December 1999, as amended (“Penal Code”).

While the Anti-Corruption Law focuses on how to prevent corruption (i.e., how the governmental bodies will be structured, the principles and obligations applying to state authorities as well as private organizations and individuals to prevent corruption, etc.), the Penal Code focuses on the applicable criminal sanctions.

The Anti-Corruption Law governs the conduct of “persons with positions and/or powers.” Generally, such persons with positions and/or powers are prohibited from (a) conducting certain acts categorized as “corrupt acts” and (b) accepting an inappropriate gift (or, if they cannot refuse the gift, they must report and turn in the gift to the supervising agency).

The Penal Code governs corruption-related crimes, such as receiving bribes, giving bribes, and bribe brokerage (i.e., serving as a third-party intermediary for the payment of bribes).  

Key provisions of the law

Penal Code No. 15/1999/QH10

Law on Anti-Corruption No. 55/2005/QH13 and its amendments and guiding regulation

Last updated by Luu Hoang Ha, VILAF, Ho Chi Minh City, Vietnam, March 2017

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