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Specific offences and restrictions
What are the key corruption and bribery offences in your jurisdiction?
Section 387 of the Criminal Code provides that any person who offers or demands an improper advantage in connection with a position, office or assignment will be liable to a penalty for corruption. Active and passive corruption both fall under the scope of this section.
‘Position, office or assignment’ can be widely interpreted and includes the private and public sector, paid and unpaid positions, persons with or without decision-making authority, directors and politicians.
The law does not require that the advantage benefits the person requesting it. It can be for anyone, including a company that the person works for or another person. No relation is required. Further, the advantage need not have material value and can include club memberships, school admissions or similar advantages.
The law applies once an offer is given or a request is made. Although the demand or offer must reach the other person, receiving an offer is not a criminal act – it must be accepted, explicitly or tacitly. Actions before this can be considered to be criminal attempts.
It is not a requirement that the person in position intended to give anything in return. Advantages in the form of rewards for previous actions or omissions also fall within the scope of the law.
An ‘improper’ advantage requires clear blameworthy action. The assessment of this is based on many factors, including:
- the economic value of the advantage;
- the area to which the arrangement is related (eg, the type of business or public service – the latter is generally more strictly considered);
- the intention of the arrangement (especially if the intent to influence the exercise of a position is proven);
- the positions of the involved persons;
- the transparency of the arrangement;
- whether internal regulation has been breached for the position, office or assignment; and
- the business’ moral administrative practice or custom in the country or area.
Are specific restrictions in place regarding the provision of hospitality (eg, gifts, travel expenses, meals and entertainment)? If so, what are the details?
There are no such restrictions in the law.
However, the preparatory work (Ot prp nr 78 (2002-2003)) states that gifts and other advantages of little value will fall outside the scope of the law, provided that such gifts are customary. The test for this is whether the advantage goes against that which is considered acceptable in the public opinion.
Critics argue that the law does not provide a sufficiently clear description of the criminal act (see Article 6 of the EU Convention on Human Rights) and that the discretionary powers in applying the law extend too far.
What are the rules relating to facilitation payments?
In principle, facilitation payments fall within the scope of the Criminal Code. In the preparatory works, the issue was considered in light of Article 5 of the European Council Anti-corruption Convention.
The Department of Justice explicitly refused to give a declaration that an intent to influence is a prerequisite for liability pursuant to Article 36 of the convention. The law is in line with this.
However, as part of the broader assessment of whether a payment was ‘undue’, the court will consider whether such intent was present and the extent to which the payment was connected to a service entitled under law. These factors will also be considered in the overall assessment. The amount paid will likely be of significant importance.
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