Are there any defences available?
Bribery & Corruption (2nd edition)
In a commercial context, the criteria commonly used by the administrative enforcement agencies for substantiating commercial bribery mainly focus on (1) the existence of inducement for illegitimate interests, and (2) the purpose of obtaining business opportunities or competition advantages. The key for differentiating legitimate interests exchange and inducement for illegitimate interests lies in whether the interests exchanged has potential influence on the fair competition in the market, or the interest and benefits of the consumers. Notably, the Anti-Unfair Competition Law which was amended in 2017, adopts the new method of listing all the possible scenarios of the statutory bribery-receiving parties, including; (1) “any employee of the counterparty to a transaction”, (2) “any entity or individual entrusted by the counterparty to a transaction to handle relevant affairs”, and 3) “any entity or individual that is likely to take advantage of powers or influence to affect a transaction”, and that in its literal meaning excludes the counterparty itself as the bribery-receiving party.
Therefore, considering the abovementioned, the corresponding defences for the company could be composed from the nature of the bribery-receiving party, the non-existence of the exchange of illegitimate interests, and the lack of potential influence on the fair competition or consumer’s benefits. In addition, another possible defence for the company could be sustained in the Anti-Unfair Competition Law if a company has evidence to prove that such acts of the employee are irrelevant to seeking transaction opportunities, or competitive advantages for the company.
Under the French system, there is no specific defence to the offence of bribery, except those derived from general legal principles, such as disputing the material facts (actus reus) or the intent to commit the crime (mens rea).
Due to a lack of specific bribery defences in business transactions under German law, the general defences of the Criminal Code, such as self-defence will apply, even though none of them seem really suitable.
A specific defence only exists in case of bribery of public officials or servants with the exception of judges. According to sections 331 (3) and 333 (3) of the Criminal Code the offence shall not be punishable if the perpetrator acts with the consent of the competent public authority, unless the official act constitutes a breach of duty or another illegal act.
Under Greek Law it is the prosecuting authorities that collect evidence and prove their case but there is no system of evidence testing. Depending on the phase of the procedure (preliminary inquiry, investigation, pre-indictment) the prosecuting authorities need to satisfy general standards to enable further process of a case-file (usually the existence of enough evidence to justify further investigation or recommendation to open a formal investigation or recommendation for trial referral). The defendant is entitled to challenge the prosecuting authorities case even at the earliest stages (during the preliminary inquiry and the investigation) on all points, i.e. points of law and on the merits.
In view of this, the defendant is entitled to request from the authorities carrying out specific investigating actions, file documents, request examination of specific witnesses, request expert opinions etc. The investigating procedure (preliminary and official) is always reviewed by a Council of Judges (three judges), which is competent to examine any procedural objections raised by the defendant.
Pursuant to Section 18(2) of the 2018 Act, it shall be a defence for a company against which proceedings are brought to prove that it took ‘all reasonable steps and exercised all due diligence’ to avoid the commission of the offence.
The private person who is accused of having bribed might try to affirm that the crime which has taken place was not that of bribery but that of ‘extortion by a public official or a person in charge of a public service’, for sometimes there is a very thin line between the two offences (and, of course, the offence of extortion cannot result in the punishment of the private person who has been forced to provide the undue money or benefit).
No specific type of defence in case of corruption or bribery exists; the defence will depend on the factual context of the case.
A defendant facing bribery charges under the Penal Code, the APPOPEI or the UCPA does not have many defences available.
A defendant can contend that all the elements constituting the offence of bribery have not been sufficiently proved. For example, in 1994, a court acquitted a politician in the Recruit bribery case, ruling that the prosecutor failed to prove that the payments from Recruit Company were made directly in return for favours from the defendant.
A person who gives a bribe cannot claim coercion as defence. A defence of averting present danger stipulated in Article 37 of the Penal Code is considered to be available, at least theoretically, in a foreign bribery case where, for example, a foreign government official carrying a gun demanded a bribe in return for leaving the defendant’s office without making a groundless arrest against the defendant.
The Proceeds of Crimes and Anti-Money Laundering (Amendment) Act affords protection where actions are exercised in good faith. A suit, prosecution or other legal proceedings is not to be brought against any reporting institution or Government entity, or any officer, partner or employee or any other person in respect of anything done by or on behalf of that person with due diligence and in good faith, in the exercise of any power or the performance of any function or the exercise of any obligation under the Act.
The FCPA sets forth two affirmative defences:
- The Local Law Defence: ‘the payment, gift, offer, or promise of anything of value that was made, was lawful under the written laws and regulations of the foreign official’s, political party’s, party official’s, or candidate’s country’. 15 USC section 78dd-1(c)(1).
- Reasonable and Bona Fide Expenditures: ‘the payment, gift, offer, or promise of anything of value that was made, was a reasonable and bona fide expenditure, such as travel and lodging expenses, incurred by or on behalf of a foreign official, party, party official, or candidate and was directly related to—(A) the promotion, demonstration, or explanation of products or services; or (B) the execution or performance of a contract with a foreign government or agency thereof’. 15 USC section 78dd-1(c)(2).
In addition, payments to foreign public officials made under circumstances involving extortion or duress do not trigger liability under the FCPA. While this defence is not explicitly stated in the statute, courts and Congress have recognized that payments made in the face of threats to health and safety cannot be made with the requisite corrupt intent. DOJ and SEC, A Resource Guide to the US Foreign Corrupt Practices Act at 27 [2012, updated 2015]. However, economic coercion, such as a threat to restrict a company’s entrance to a marketplace, does not qualify under this defence. Id.
No, under Mexican law there are no defences nor exceptions that excuse or legitimate facilitation payments.
No. Under the Brazilian Clean Company Act companies can be strictly liable for prohibited acts committed in their interest or for their benefit. To establish a strict liability violation, authorities need only demonstrate that a prohibited act occurred. Proof of intent or knowledge from the company or any individual is not required. This particularity aims to incentivize the investigation and prosecution of acts of corruption.
Mitigation factors will be discussed in the following questions.
Yes. The New Zealand Supreme Court case of Field v R  NZSC 129 established the common law de minimus defence. In circumstances where ‘gifts of token value which are just part of the usual courtesies of life’ or some ‘unexceptional… other benefit’ are received, the transaction is ‘innocent’ and therefore not corrupt. The Courts have successfully applied this defence to certain gifts of a low cost or nominal value, although there has been criticism of the defence by the OECD.
The general defences in the Criminal Code, such as necessity and self-defence, are available in relation to bribery and corruption as they are in connection with any other criminal offence.
There are no special defences available, except perhaps in relation to small facilitation payments in foreign countries, see question 9 in relation to the legislative history of section 122 of the Criminal Code. As mentioned, such defence has never been tried before the courts.
On a general basis, the national regulation does not provide a remedy applicable in all the situations regarding the facilitation of payments.
However, defences may be focused on proving that: (i) the action in question does not exist; (ii) the action is not covered by the criminal law or was not committed with the guilt required by law; (iii) there is no evidence that a person committed the offense; (iv) there is a justifying or non-imputability cause; (v) the statute of limitations is applicable.
Mention should be made that the defences may be highly varied, based on the factual circumstances of the case and the complexity of the case, comprising one or more elements of the above.
There are no formal defences available under the PCA or Penal Code. In particular, there is no equivalent to the facilitation payment exemption found under the FCPA, or the “adequate procedures” defence under the United Kingdom Bribery Act 2010 that a company has put in place adequate procedures to prevent corruption.
Further, section 23 of the PCA explicitly states that the fact that the giving of gifts or other benefits is customary in any trade or profession is not a valid defence to a corruption offence.
Corporates have a compliance framework defence, see question no. 12 below. Additionally, advantages are by law not considered undue if they were allowed by staff regulations, of minor value or in line with social customs, see question no. 3 above.
The general defences to criminal liability, such as state of necessity, are in theory available, but of little relevance in practice.
It is a defence to the corporate offence under Section 7 of the Bribery Act for an organisation to prove, on the balance of probabilities, that it had “adequate procedures” in place to prevent persons associated with it from engaging in bribery.
As mentioned above, the CFPOA Section 3(3) provides an exemption from the bribery offence where the loan, reward, advantage or benefit:
- is permitted or required under the laws of the foreign state or public international organization for which the foreign public official performs duties or functions; or
- was made to pay the reasonable expenses incurred in good faith by or on behalf of the foreign public official that are directly related to promotion of the accused’s products and services or the execution or performance of a contract between the accused and the official.
Offences under the Criminal Code require proof of intent and knowledge. Therefore, an accused can defend them self by proving that they did not have the requisite knowledge to commit the offence.
Yes. Any person who is suspected of committing a crime – whether it is bribery or any other kind – has a set of rights arising from the Portuguese Code of Criminal Proceedings (PCCP).
Amongst the most fundamental rights of any defendant in criminal proceedings (common to democratic States) is the (i) in dubio pro reo principle, meaning that the Prosecution has the burden of proof of the facts concerning the crime. Other fundamental rights arrive form our laws such as: (ii) the privilege against self-incrimination (known as the right to remain silent); (iii) the right to be assisted by a lawyer (and even to be appointed a defendant if needed); (iv) the right to be informed of the facts relating to him/her before making any statement to any authority; (v) the right to intervene in the investigation, offering evidence and (v) the right to appeal against any unfavorable relevant decision. Allis protected also by the Constitution.
There are no bribery-specific defences for individuals, although those who are able to prove that the payment was a consequence of an extortive demand, or a deception from a public official, could claim that instead of being committing the offense of active bribery they had been victims of an “illegal exactions” offence (“exacciones ilegales”) under the ACC, article 266. This offense is committed by a public officer which, by abusing his or her office, requests, demands, asks or forces to pay an illegitimate contribution or higher rights than those that correspond.
Legal persons will be exempted from penalty and administrative liability under Law 27,401 when three (3) circumstances concur simultaneously:
- the legal person must spontaneously self-report the offense as a consequence of internal detection and investigation;
- the legal person must have established, before the facts under investigation occurred, a proper control and supervision system (i.e. compliance program, called “integrity program” by Argentine law), which must have required an effort from wrongdoers to breach it; and
- the legal person must have returned the undue benefit obtained through the crime (disgorgement).