What are the criminal consequences of bribery in your jurisdiction?
Bribery & Corruption (2nd edition)
There are ten different crimes regarding commercial bribery stipulated in the Criminal Law with corresponding criminal penalties for each one.
In summary, the criminal consequences include the punishment of liberty, and property deprivation. For individuals, the consequences include criminal detention or fix-term imprisonment, ranging from criminal detention to life-time imprisonment, as well as a fine, or confiscation of property. Similarly, for unit crimes, a fine would be charged against the entity itself, and the responsible person(s) of the entity would be put into criminal detention or imprisonment.
Individuals who are found guilty of bribery face:
- For all corruption offences, except private corruption, and for influence peddling of domestic public officials: a maximum of 10 years’ imprisonment and a maximum fine of 1 million euros, or up to twice the proceeds of the crime;
- For private corruption and all types of influence peddling, except that of domestic public officials: a maximum of 5 years’ imprisonment and a maximum fine of 500,000 euros, or up to twice the proceeds.
It is worth noting that except for private corruption, when the defendant reported the offence to competent authorities, thus making it stop, or enabling the identification of other perpetrators or accomplices, imprisonment may be reduced by half.
Individuals may also incur additional penalties such as:
- A ban on the exercise of civil, civic and family rights;
- A ban on the exercise of a public office or managerial functions;
- Publishing of the judicial decision;
- Seizure of the proceeds of the crime, or of the assets which were used to commit the crime.
Legal persons found guilty of bribery are liable to a maximum fine of up to 5 times the amount of the fine specified for individuals.
Additional sanctions imposed on companies may include:
- A prohibition to carry out the activity in the course of which the crime was committed;
- Judicial supervision imposed on the company;
- Closing of business establishments;
- Exclusion from public procurement;
- A ban on writing cheques;
- Implementation of a compliance program, under the supervision of the AFA;
- Publishing of the judicial decision;
- Seizure of assets.
A person shall be liable to a fine or imprisonment not exceeding three years. In aggravated cases where a person is convicted of bribery offences in business transactions, the accused can face up to five years’ imprisonment.
Offering or receiving a bribe in relation to a public official, a European official or a person entrusted with special public service functions, may lead to a fine or imprisonment of up to five years. In aggravated cases, it may lead to imprisonment of up to ten years.
A person convicted of bribing delegates shall be liable to a fine or imprisonment not exceeding five years.
Sections 30 (1), 130 of the Administrative Offences Act (Ordnungswidrigkeitengesetz), allow the imposition of a fine to a corporate entity, if the owners and management did not take appropriate measures to prevent criminal offences. The maximum fine is EUR 5 or 10 million for each criminal offence, depending on whether it was committed as a result of negligence or intentionally. However, if the company gained a financial advantage related to the criminal offence, the penalty can exceed those amounts without limitation.
Passive Bribery (applicable to individuals):
The basic sanction for individuals in respect to passive bribery (the public officials) is imprisonment (maximum five years) and a fine ranging from €5,000 to €50,000. If the perpetrator is committing such acts by profession or repeatedly or the gift or benefit is of a high value, the act is a felony punishable with imprisonment for up to 10 years (minimum sentence five years) and a fine ranging from €10,000 to €100,000.
If the act is committed contrary to one’s duties, there is provision for a prison sentence up to 10 years and a fine ranging from €15,000 to €150,000 and if such acts are committed by profession or repeatedly or the gift or benefit is of a high value, the prison sentence is up 15 years and the fine ranges from €15,000 to €150,000.
Active Bribery (applicable to individuals):
The basic sanction is imprisonment (maximum five years) and a fine ranging from €5,000 to €50,000. If the bribed official acted contrary to his or her duties the perpetration is the act is a felony punishable with imprisonment for up to 10 years (minimum sentence five years) and a fine ranging from €15,000 to €150,000.
All assets and financial gains deriving from the punishable act are seized.
Liability of entities:
Entities are not prosecuted and may not be held criminally liable. Instead there are provisions for fines and other restrictions as follows:
a) a fine ranging from €50,000 to €10 million;
b) permanent suspension of business activities or temporary suspension of such for a time period of one month to two years;
c) prohibition of specific business activities (eg, establishing new branches) for a time period of one month to two years;
d) permanent or temporary ban (one month to two years) from public tenders or state funding.
The fine is always imposed. As regards the rest of the sanctions, the competent Authorities may impose all of them or some of them depending on the degree of liability of the entity, the value of the unlawful gain, the financial status of the entity and the damages caused to third parties.
The above sanctions are independent of any other sanctions that may be imposed against the entity from the competent regulatory authorities in other proceedings (e.g. administrative/disciplinary proceedings).
On summary conviction, penalties range from a fine of up to €5000, a term of imprisonment of up to 12 months and/or forfeiture of property of the value of the gift or benefit obtained in connection with the offence.
On conviction on indictment, penalties range from an unlimited fine, a term of imprisonment of up to 10 years and/or forfeiture of property of the value of the gift or benefit obtained in connection with the offence. In certain circumstances, the Court may also order an Irish official to forfeit their office and prohibit them from holding office for up to 10 years.
Breach of the Criminal Code provisions regarding corrupting behaviours may result in the imprisonment of the defendant. With regard to the duration of the sentence that the judge may impose, the Criminal Code lays down a range between two and twenty years of imprisonment (in the most serious cases of judicial corruption), based on the seriousness of the committed crime. In case of conviction for one of the corruption offences (even in case of plea bargaining), the judge might also order: the confiscation of the goods that constitute the price, the product or the profit of the crime, unless they belong to a person extraneous to the crime; or (in case the confiscation of the goods described above is not possible) the confiscation of goods of the offender for an amount equal to the profit of the crime.
The law also provides that the offender may incur in ancillary penalties, such as the provisional or permanent disqualification of the defendant from holding public office.
The violation of the provisions of the Civil Code regarding private bribery is punished with imprisonment from eight months to three years and might result in the provisional disqualification of the defendant from holding directive functions within companies.
Following the entry into force of the recent Law no. 3, dated 9th January 2019, which has modified the private bribery regulation, also private bribery crimes are now prosecutable ex officio.
Depending on the purpose of the bribery and the accompanying circumstances, the penalties in case of passive or active bribery of persons who execute a public office, constitute a fine ranging between 100 EUR and 100,000 EUR and/or an imprisonment of 6 months – 5 years.
If the passive or active bribery concerns a police officer, a person with the capacity of officer of judicial police or a member of the public prosecution, the maximum sanction is twice as high.
If the passive or active bribery concerns an arbitrator and relates to an act belonging to his judicial office, the penalties constitute a fine ranging between 100 EUR and 100,000 EUR and an imprisonment of 1 year - 5 years.
If the passive or active bribery concerns a judge assessor or a member of a jury and concerns an act belonging to their judicial office, the penalties constitute a fine ranging between 500 EUR and 100,000 EUR and an imprisonment of 2 years - 10 years.
If the passive or active bribery concerns a judge and relates to an act that belongs to his judicial office, the penalties constitute a fine ranging between 500 EUR and 100,000 EUR and an imprisonment of 5 years - 15 years.
Where the bribery provided for in articles 246 - 249 of the Criminal Code concerns a person exercising a public office in a foreign State or in a public international organisation, the minimum fines shall be tripled and the maximum fines shall be multiplied by five.
For offences or crimes committed as from 1 January 2017, the multiplication factor of the fines is eight, meaning that all abovementioned fines should be multiplied by eight.
In addition, the convicted person may also be deprived of certain rights, the special confiscation may be ordered as well as the dispossession of civil and political rights for a certain period of time and an occupational ban can be imposed (see Royal Decree No. 22 of 24 October 1934).
Depending on the circumstances the penalty for individuals for private bribery constitute a fine ranging between 100 EUR and 100,000 EUR and/or an imprisonment of 6 months – 3 years.
For offences or crimes committed as from 1 January 2017, the multiplication factor of the fines is eight, meaning that all abovementioned fines should be multiplied by eight.
In addition, the special confiscation may be ordered and an occupational ban can be imposed (see Royal Decree No. 22 of 24 October 1934).
In the event a legal entity is subject to conviction, Belgian law provides a conversion mechanism in order to convert the penalties defined in the Criminal Code into penalties applicable to legal entities. The conversion mechanism is defined in article 41bis of the Criminal Code and must be applied separately to each penalty according to the following method:
Given that the law provides for an imprisonment and/or a fine (for natural persons) in the event of corruption or bribery, the minimum fine for a legal entity will amount to 500 EUR multiplied by the number of months of the minimum imprisonment, which cannot be lower than the minimum fine for corruption or bribery for natural persons. The maximum fine for a legal entity will amount to 2,000 EUR multiplied by the number of the months of the maximum imprisonment which cannot be lower than twice the maximum fine for corruption or bribery for natural person.
For example, if the penalty (for natural persons) is an imprisonment between 6 months and a year and/or a fine between 100 EUR and 10,000 EUR, the penalty for legal entities will be a fine ranging between 3,000 EUR and 24,000 EUR (multiplied by eight – see above).
To date, the Belgian legislator is working on a new Belgian Criminal Code. The draft act provides for the abolition of the conversion mechanism and the introduction of specific fines for legal entities.
Since 30 July 2018, public legal entities can also be convicted for bribery or corruption. However, to some of them, the penalties for legal entities cannot be applied. Hence, with regard to the Federal State, the regions, the communities, the provinces, the assistance zones, the pre-zones, the Brussels agglomeration, the municipalities, the multi-municipal zones, the intra-municipal territorial bodies, the French Community Commission, the Flemish Community Commission, the Joint Community Commission and the public centres for social welfare, only a declaration of guilt can be pronounced, excluding any other penalty.
Under the Penal Code, bribery is punishable by imprisonment for a maximum term of seven years, together with forfeiture of such bribe or collection of an equivalent amount, depending on the circumstances. A person who gives, offers or promises to give a bribe shall be punished by imprisonment for not more than three years or a fine not exceeding JPY 2.5 million.
Under the UCPA, the crime of bribery of a foreign public official is punishable by (a) imprisonment for not more than five years or a fine not exceeding JPY 5 million (or both) for individuals involved; and (b) a fine not exceeding JPY 300 million for a legal entity (when an officer, etc. of a legal entity commits the crime in relation to the business of the entity).
Under the Bribery Act, an individual found guilty of giving or receiving a bribe or knowingly assisting a person or a private entity to give or receive a bribe is liable upon conviction for a term of imprisonment not exceeding ten years; or to a fine not exceeding five million kenya shillings or both; such person shall also be liable to an additional mandatory fine if, as a result of the conduct constituting the offence, the person received a quantifiable benefit or any other person suffered a quantifiable loss which fine shall be equal to five times the amount of benefit or loss.
Any other person found guilty of giving or receiving bribes or if the person performs services for or on behalf of that other person as an agent, employee, or in any other capacity which offence takes place outside Kenya shall be liable on conviction to a fine not exceeding five million shillings. A private entity that fails to prevent a bribery activity is liable on conviction to a fine. The fine payable shall be determined by the court and shall not only seek to mete out punishment for the offence committed but also seek to deter similar offences being committed by the same or other private entities.
Criminal consequences for FCPA violations include the imposition of a fine of up to $2 million per violation of the anti-bribery provisions for corporations and other business entities and up to $250,000 for officers, directors, stockholders, employees and agents of such entities. 15 USC section 78ff; 18 USC section 3571(b)(3). In practice, fines are often higher because the Alternative Fines Act, 18 USC section 3571(d), provides for imposition of fines at, among other levels, twice the amount of the gross pecuniary gain or loss associated with the criminal violation.
Individuals may face up to five years’ imprisonment per violation. 15 USC section 78ff.
A corporate violator of the FCPA may face collateral consequences of a criminal conviction, such as debarment. In addition, corporate entities are routinely required to improve and enhance their compliance programs, cooperate in on-going government investigations and disclose any additional credible allegations of bribery. In some cases, corporate entities are also required to retain an independent compliance monitor.
Corporate entities may be able to reduce their penalties or receive a declination by fully cooperating with the DOJ, which involves, among other things, self-disclosing the violation to the DOJ; engaging in timely and appropriate remediation; timely disclosing to the DOJ all relevant facts concerning the violation; timely preserving, collecting and disclosing relevant documents and making relevant individuals available for interviews by the DOJ. The DOJ formalized this approach to FCPA enforcement in the FCPA Corporate Enforcement Policy in November 2017, which began as a pilot program in April 2016.
Pursuant to Articles 222 and 222 BIS of the CPF, the penalties for both the public official or the private person involved in the bribery, as a consequence of the criminal conduct, are:
If the bribe does not exceed an amount equivalent to 500 UMA’s (currently around USD $ 2,132.00), penalties will range from 3 months to 2 years of imprisonment and a fine ranging between 30 and 100 UMA’s (currently around USD $128.00 up to USD $427.00).
In the event the bribe exceeds an amount equivalent to 500 UMA’s, the penalties will range from 2 to 14 years of imprisonment and a fine of between 100 to 150 UMA’s (currently around USD $427.00 up to USD $640.00).
Under Brazilian laws and regulations, criminal responsibility applies exclusively to individuals. Thus, with the exception pertaining to environmental crimes there is no corporate criminal liability.
Under the Crimes Act, offences for corruption in the public sector can include penalties such as terms of imprisonment of up to 14 years for the most serious cases. Foreign bribery offences can carry fines up to the greater of NZ$5 million or three times the value of the commercial gain obtained.
Under the Secret Commissions Act, penalties range from seven years’ imprisonment to unlimited fines for individuals and corporations, for offences in the private sector.
A fine or imprisonment. Prison sentences are limited to maximum 6 years for bribing public officials and 4 years for bribing private persons.
Bribery is sanctioned with imprisonment, the special limits of the penalty varying in accordance to the specific crime committed and the quality of the perpetrator. For instance, the Criminal Code establishes that taking a bribe shall be punishable by no less that 3 and no more than 10 years of imprisonment, while giving a bribe shall be punishable by no less that 2 and no more than 7 years of imprisonment. For certain public officials, such as judges and prosecutors, the special limits of the punishment stipulated in the Criminal Code shall increase by one third.
There are also ancillary and additional penalties that are applied, such as a ban on the exercise of one or several of the following rights:
a) right to be elected to the ranks of public authorities or any other public office;
b) right to take a position that involves exercise of State authority;
c) the right to take the position, exercise the profession or perform the activity they used in order to commit the offense;
d) the right to take a managerial position with a public legal entity;
The penalty consisting in the ban from exercising the right to hold a public office or to exercise the profession or the activity in relation to which they committed the violation is explicitly mentioned as a penalty for taking a bribe. Therefore, while generally the judge decides whether to apply any of the ancillary and additional penalties, in case the defendant is found guilty for taking a bribe, the judge must also apply this penalty.
Any person found guilty of an offence under the PCA may be subject to the following:
- A fine of up to S$ 100,000;
- Imprisonment of up to five years (for private sector offences); and/or
- Imprisonment of up to seven years (for public sector offences).
Further, under Section 13 of the PCA, any person found guilty of receiving a bribe may also be ordered to pay a penalty equal to the amount of the bribe itself.
Penalties for corruption offences under the Penal Code can be in the form of a fine and/or imprisonment of up to seven years.
In cases of bribery of (Swiss or foreign) public officials, individuals can be sentenced to a prison term of up to five years or a monetary penalty of up to CHF 540,000. For commercial bribery, the maximum sanctions are a prison term of up to three years or a monetary penalty of up to CHF 540,000. Companies may be sanctioned with a maximum fine of CHF 5 million.
Additionally, the law provides for the disgorgement of any profits generated in connection with the bribery offence.
An individual convicted of committing any of the general bribery offences may:
a) be imprisoned for a term of up to 10 years; and/or
b) be subject to an unlimited fine.
A company or partnership that commits any of the general bribery offences will be liable on conviction on indictment, to an unlimited fine, and to automatic and perpetual debarment from competing for public contracts.
Note that a conviction under Section 7 of the Bribery Act will attract discretionary rather than mandatory disbarment from competing for public contracts.
Where an organisation has been convicted of a bribery offence, senior officers of the organisation who have consented to or connived in the conduct can also be convicted of the offence concerned.
Specific punishments are prescribed for each anti-corruption offence under the Criminal Code, with maximum sentences ranging from five to fourteen years. For example, an individual who bribes a public official, or the public official who accepts said bribe, can face up to fourteen years imprisonment.
Under the CFPOA the potential sanctions are equally severe. Bribery of foreign officials carries a maximum term of imprisonment of fourteen years (CFPOA, Section 3(2)). Further, the offence carries a fine that is entirely in the discretion of the judge. The CFPOA does not stipulate any maximum amount.
To date Corporations held liable for breaches of the CFPOA have been fined up $10.35 million (R v Niko Resources Ltd., 2011 CarswellAlta 2521 (ABQB)).
Furthermore, corporations convicted under the CFPOA or the Criminal Code may also face debarment from doing business with: the federal government under the Integrity Regime; and other provincial governments.
As mentioned above by Portuguese legal framework there are different kinds of bribery, with different sanctions depending on the position of the “public official” in the state that commits the crime.
For instance, passive corruption is sanctioned with imprisonment between 1 to 8 years if the act is contrary to the bribed official’s duties – Article 373, paragraph 1 of the PCC – and 1 to 5 years, if not – Article 373, paragraph 2 of the PCC. If the agent is a holder of political office or senior public official, passive corruption is sanctioned with 2 to 8 years in prison if the act is contrary to the bribed duties and with 2 to 5 years in prison if not – Article 17 of Law No. 34/1987, of 16 July.
According to Article 8 of Law No. 20/2008, of 21 April, private sector workers can be sanctioned with up to 5 years in prison or a penalty of up to 600 days. If the act or omission is likely to cause a distortion of competition or damage of assets to third parties, the agent shall be punished with imprisonment from 1 to 8 years.
Sports agents can also be punished for passive corruption with imprisonment from 1 to 8 years, suspended from sport events for a period from 6 months to 3 years, denied public subsidies for 1 to 5 years, and prohibited from working as a sports agent.
Active corruption is sanctioned with imprisonment from 1 to 5 years if the intended act is contrary to the bribed party’s duties - Article 374, paragraph 1 of the PCC – and up to 3 years if not – Article 374, paragraph 2 of the PCC. If the agent is a holder of political office or senior public official, active corruption is sanctioned between 2 and 5 years in prison if the intended act is contrary to the bribed party’s duties and up to 5 years if not – Article 18 of the Law No. 34/1987, of 16 July. There can also be an ancillary penalty which can be the loss of office or prohibition from holding public office or working in the public sector.
According to Article 9 of Law No. 20/2008, of 21 April, private sector workers are sanctioned with imprisonment of up to 3 years in prison or a penalty. If the act or omission is likely to cause a distortion of competition or damage to assets of third parties, the agent shall be punished with imprisonment of up to 5 years or a penalty of 600 days.
Sports agents can also be punished under active corruption with imprisonment from 1 to 5 years, suspended from sport events for a period from 6 months to 3 years, denied public subsidies for 1 to 5 years, and prohibited from working as a sports agent.
All sanctions can be aggravated namely depending on the value of the bribe.
For individuals, criminal consequences might be:
- between 1 and 6 years for basic bribery and trading in influence, and transnational bribery,
- between 4 and 12 years when bribery and trading in influence are aggravated for involving a magistrate of the Judiciary or the Public Ministry (for him/her to issue, decree, delay or refrain from issuing any resolution, decision or judgment concerning a matter under his/her jurisdiction).
- between 1 month and 2 years for mere gift receiving
- between 1 month and 1 year for mere gift giving.
- Fine of between 2 to 5 times the amount of the illicit benefit;
- Disqualification from public service (life disqualification in the cases of passive bribery, trading in influence, and active transnational bribery);
For legal entities, criminal consequences might be:
- Fines between 2 and 5 times the amount of the illicit benefit;
- Debarment from government contracting and disqualification from professional practice/suspension of licence up to ten years;
- Partial or total suspension of activities up to ten years;
- Suspension from participating in state tenders of public works or services or in any other activity linked to the state, up to ten years;
- Dissolution or liquidation of the business when it has been created for the sole purpose of the commission of the offence, or when those acts constitute its main activity;
- Loss or suspension of state benefits;
- Publication of an excerpt of the conviction sentence;
Sanctions are only applicable by courts under a final judgement. Nevertheless, courts may order precautionary measures against defendants, including seizing and freezing of assets (embargo) to guarantee an eventual confiscation, and preventative detention in the case of individual defendants.
Passive corruption – if the acts are against the obligations that arise from the position occupied by the official, then the penalty varies from 1 up to 5 years of prison. If the acts are not against the obligations that arise from the position occupied by the official, then the penalty varies from 6 months up to 3 years.
Active corruption – if somebody, directly or through a third person, gives or promises to an official, a vantage, then the penalty varies from 1 up to 5 years. If the vantage is not due, then the penalty varies from 6 months up to 3 years of prison or the payment of a fine up to 360 days. If the vantage is higher than 100 million kwanzas, the infringer will be punished with 1 up to 5 years of prison but the penalty will be aggravated in 1/4 in its minimum and maximum limits. If the vantage is higher than 10 million kwanzas, then the penalty varies from 1 up to 5 years of prion and the penalty will be aggravated in 1/3 in its minimum and maximum limits.