Are there any defences available?
Bribery & Corruption
In relation to bribery of foreign public officials, there are two defences available:
- the facilitation payments defence described above in response to question 9; and
- the existence of a written law governing the foreign public official which expressly permits or requires the benefit to be given.
In the case of individuals, in some situations custom may constitute a defence against criminal liability for bribery in the public sector (see: answer to Question 7). There is also a quasi-defence with respect to active bribery (offering a bribe), active corruption in the private sector and peddling influence in exchange for a benefit. The person offering a bribe will not be subject to criminal prosecution provided that (i) the bribe was accepted, (ii) it was reported to the authorities before they learned about it, and (iii) the offender disclosed all the relevant circumstances of the offence. The form in which the offender reports the offence to the authorities is of no importance.
In the case of corporate entities, an effective compliance system may constitute a mitigating factor that the court could take into account (see: answer to Question 11).
There are currently no defences available.
See Q18 for possible developments in this regard.
No. The Brazilian Anticorruption Law provides for the strict liability of legal entities. It means that the Brazilian Anticorruption Law does not require any element of a “corrupt” or “improper” intent in relation to the practice of a wrongful act. Also, the Brazilian Anticorruption Law does not require that the potential (or intended) results are achieved to determine the liability of the legal entity. Therefore, once the occurrence of the wrongful act is verified, the liability would apply.
Although no defences would be available, the existence of certain elements, such as a compliance program, or collaboration with the authorities, could be considered mitigating factors in the determination of the applicable penalties.
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.
When you consider Article 234 and article 237, you can see that there is no defence to bribery. Article 234 goes further and specially states the following, “Any person who commits or omits an act included in his duties even if he has intended not to commit or omit such act.” Even if the accepter of the bribe has no intention of committing or omitting the act in question, it is irrelevant. With such a strenuous onus placed on the population, whether public or private, there are clearly no defences to the act of bribery and corruption.
There are no formal defences available under the PCA or Penal Code. In particular, as discussed above, there is no equivalent to the facilitation payment exemption found under the FCPA or the "adequate procedures" defence under the UK Bribery Act 2010.
Further, 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 (section 23).
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 recently 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.
No, under Mexican law there are no defences nor exceptions that excuse or legitimate facilitation payments.
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.
There is no defence to an act of corruption in India. No exceptions or protections are provided under the Indian law for ‘grease’ or facilitation payments as well. So long as money is paid, with the criminal intent of bribing a public servant, prosecution follows irrespective of the quantum of money paid. However, under the PCA the ‘bribe giver’ may be granted immunity from prosecution for deposing against the public servant.
Article 43 of LCMLO provides certain defenses in the form of cases of dismissal or reduction of the sentence.
The sentence is dismissed when:
a) The agent has reported the crime within 90 days following the act and always before the opening of the correspondent legal procedure;
b) Before the act is committed, the agent voluntarily refuses the offer or promise that he / she had previously accepted, or restore the undue advantage received or, in case the thing is fungible, its value; or
c) Before the act is committed, withdraw the promise or refuse the offering of an advantage or request its restitution.
The sentence is especially reduced when the agent:
a) Until the closing of the trial hearing in the first instance, concretely aids in obtaining or producing decisive proofs for the identification or the capture of other responsible parties; or
b) Has committed the act at the request of the civil servant, directly or through a third person.
Both natural and legal persons under investigation for the alleged commission of a crime of corruption have the same general rights of defence provided in the Criminal Procedure Code for any accused in criminal proceedings such as the right to appoint a lawyer or to request the appointment of legal defence, the right to be heard by the judge in charge of preliminary enquiries whenever the latter has to take any decision that personally affects the person under investigation, or the right to be informed of the facts imputed to them before making any statements before any entity.
Pursuant to Law no. 36/94 pertaining to the measures to combat corruption and economic and financial crime, the person accused of an active corruption crime is also entitled to request the provisional stay of proceedings provided that the Public Prosecution Service and the judge in charge of the preliminary enquiries agree that the requirements have been met for discovering the truth and for complying with injunctions and the rules of conduct on which their application by the judge is contingent. The possibility of a provisional stay of proceedings is also regulated in Article 281 Criminal Procedure Code in respect of crimes punishable by a prison sentence of less than five years.
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.
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.
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 is forced to provide the undue money or benefit).
Article 6 of Law no. 10/2014, December 31st 2014, provides that there may be cases in which there may be a special reduction or dismissal of the sentence. This may occur when the agent concretely aids in obtaining decisive proofs for the identification or capture of other responsible parties or in any way provides decisive information for the discovery of truth.
Furthermore, any person under investigation for the alleged commission of a corruption crime may count on the same general defence right provided in the Criminal Procedure Code for any subject of a criminal case, such as:
- he right to appoint a lawyer or to request the appointment of a public defender;.
- the right to be heard by the judge whenever the latter may have to take a decision that will personally affect the person under investigation;.
- the right not to answer questions made by any entity regarding the allegations made against him/her and about the contents of the declarations that he/she may make thereon;.
- the right to be assisted by an attorney in all proceedings in which he/she takes part and, when detained, to communicate privately with said attorney.
HRA: As a general rule, the person being investigated for a crime of bribery or corruption can defend himself with both procedural and substantive arguments. The person also enjoys, in particular, at any stage of the process, and subject to exceptions provided for in the law, the rights of:
- being present in proceedings that directly concern him;
- being heard by the court or the investigating judge whenever these may have to take a decision that will personally affect him;
- being informed of the allegations made against him prior to making any declarations before any entity;
- not answering questions made by any entity regarding the allegations made against him and about the contents of the declarations that he may makes thereon;
- appointing a lawyer or requesting the appointment of a public defender.
- being assisted by an attorney in all proceedings in which he takes part and, when detained, and to communicate privately with said attorney;
- intervening in the inquiry and in the finding of facts by providing evidence and requesting the evidence-obtaining measures that he may deem necessary; and
- being informed by the judicial authority or by the criminal police body before which he may be required to appear of his rights, as well as to appeal against unfavourable decisions.
There are no local affirmative defences aside from the defences admitted in the FCPA.
The French civil law system strictly differs from the British system on that issue, as there are no defences available, except for the traditional exemptions from criminal responsibility. However the above-mentioned CJIP introduced by the Sapin II Act is an alternate remedy to litigation and a judicial sentence.
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.
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.