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Ministry of Interior of the Slovak republic   Today is 23. April 2024, Tuesday
 

5. National legal norms for the prosecution of foreign bribery

Defining offenses for foreign public officials within the criminal law is a practical implementation of the OECD Convention, whose strategic goal is to create national conditions guaranteeing that bribery of foreign public officials in international business transactions is a criminal offense.

 Corruption of foreign public officials in international business transactions is legally defined as a wider phenomenon than in the title of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, which only refers to bribing foreign public officials in international business transactions. Corruption of foreign public officials must be seen in all its forms; in the form of receiving bribes, bribery itself and indirect corruption.

 In connection with the implementation of anti-corruption measures provided for in the OECD Convention, all the recommended legislative instruments to fight the corruption offenses of foreign public officials in international trade transactions have been gradually incorporated into the legal order of the Slovak Republic. The Slovak Republic has shown that it is capable of adhering to the world's most demanding anti-corruption standards and is ready to be an equal partner of the most economically advanced countries in the world.

 Who is a foreign public official under the Criminal Code?

 According to § 128 par. 2 of the Criminal Code, a foreign public official is a person:

a) acting in a legislative body, executive body, court or arbitration body or in another public administration body of a foreign state, including the head of state,

b) employed or working in an international organization or a supranational organization established by States or other bodies of international public law in its organ or institution, or empowered to act on their behalf,

c) employed or working in an international judicial body or empowered to act on his behalf, or

d) acting in a legal person in which a foreign State has a decisive influence if the exercise of such a function is connected with the power to contract public procurement and the offense is connected with that jurisdiction or through the use of its position.

 General features characterizing a foreign public official in accordance with § 128 par. 2 are:

  • holding a specific public function,
  • the exercise of delegated authority resulting from a specific public function,
  • committing an offense in connection with that jurisdiction.

  How are the offenses of corruption of a foreign public official sanctioned?

 The Slovak criminal law on corruption offenses of a foreign public official distinguishes between passive corruption (offenses of accepting a bribe), active corruption (paying a bribe) and indirect corruption.

a)      Criminal offenses of accepting a bribe from a foreign public official

According to § 330 par. 1 of the Criminal Code, any person who as a foreign public official receives, requests or accepts the promise of a bribe for himself or another in connection with his official duties, either directly or through an intermediary, with the intention of obtaining or maintaining an undue advantage in an international business transaction, shall be liable to a term of imprisonment of 2 to 12 years (for a crime committed to a large extent, the Criminal Code sets a penalty from 10 to 15 years).

For a given criminal offense, a connection must be established between the offender's conduct and his or her action, which is expressed by the words "intending to gain or preserve an inappropriate advantage" in the conduct of international business transactions. From the point of view of the subjective aspect of the offense of this crime, deliberate fault is required unless the Criminal Code expressly provides that a negligence is sufficient. Intentional accusation must relate to the acquisition or maintenance of an undue advantage, which implies an undue advantage of material or non-material nature, which the perpetrator intends to acquire or maintain in the conduct of international business transactions. 

To characterise the facts of the offense, it is necessary to prove the connection between bribery and the performance of official duties or the performance of a foreign public official who acts in any of the statutory bodies, international organizations or legal person. For that reason, the accepted, requested or promised bribe must be related to the activity of a public official performing official duties.

b)      Offenses for bribing a foreign public official

According to § 334 par. 1 of the Criminal Code, any person who, either directly or through an intermediary, gives, offers or promises a bribe to a foreign public official or to another person, in connection with the official duties of the foreign public official, with the intention of obtaining or maintaining a disproportionate advantage in an international business transaction, shall be liable to a term of imprisonment of 2 to 5 years (for a crime committed to a large extent, the Criminal Code sets a penalty of 5 to 12 years).

 The offense of bribing a foreign public official mirrors the offense of receiving a bribe from a foreign public official (§ 330 CC). In terms of mens rea (the mental element), the provision requires a deliberate fault with a specific intention to obtain or maintain a disproportionate advantage, unless the law expressly provides that negligence is sufficient.

 
A perpetrator must intend to bribe, promise a bribe, or offer an inalienable advantage to a foreign public official, in the performance of his or her official duties,  directly or through a third person, in order to obtain or maintain a disproportionate advantage in international business transaction.

 
The more qualified form of committing the offense of receiving a bribe by a foreign public official and bribing of a foreign public official may be based on the fact that the offense was committed to a large extent (amounting to at least 133,000 euros).

 c)       The offenses of indirect corruption

 According to § 336 par. 1 of the Criminal Code, any person who, either directly or through an intermediary, receives, requests or accepts the promise of a bribe for using or having used his influence on the execution of duties by persons referred to in § 328, § 329 and§ 330, or for doing so, shall be liable to a term of imprisonment of up to three years (the provision also includes the perpetrator of the offense of accepting a bribe pursuant to § 330, which is a foreign public official).

 The offender exercises the influence of his person or status on a person referred to in § 328, § 329 or § 330 without giving him the benefit of a bribe.

 According to § 336 par. 2 of the Criminal Code, any person who, either directly or through an intermediary, promises, offers or gives a bribe to another person in order to make that person use his influence on the execution of duties by persons referred to in § 332, § 333 and § 334 or for having used that influence, or gives, offers or promises a bribe to a third party for the same reason, shall be liable to a term of imprisonment of up to two years (the provision also includes the perpetrator of the offense of accepting a bribe pursuant to § 334, which is a foreign public official).

The recipient of the bribe exercises the influence of his person or status on the person referred to in § 332, § 333 or § 334 without giving it the benefit of a bribe.

Both offenses of indirect corruption may be committed either directly or through an intermediary, and as with criminal offenses of bribery and bribery, criminal liability can be deduced not only for receiving and giving bribes, but also for requesting, offering, promising and enforcing bribes.

According to § 3 of the Act No. 91/2016 Z. z. on Criminal Liability of Legal Entities and on Amendments to Certain Laws as amended, the offense of receiving a bribe by a foreign public official, the offense of bribery of a foreign public official, as well as offenses of indirect corruption, are among the offenses in which the criminal liability of legal persons can be deduced.

Is failure to report a crime of corruption or failure to inhibit the crime a criminal offense?

The obligation to report corruption, including the corruption of foreign public officials, results from the provision of § 340 par. 1 of the Criminal Code. The condition is that the citizen who is aware in a credible way that a corruption offense has been committed should immediately notify it to a law enforcement body or police. Provisions of § 341 par. 1 of the Criminal Code imposes an obligation to inhibit personally or through another competent person or competent authority committing and preparing some of the corruption offenses.

Failure to comply with the obligations set out in § 340 and § 341 of the Criminal Code may result in an unconditional sentence of imprisonment for up to three years. Criminal offenses of non-notification of a criminal offense under § 340 of the Criminal Code and failure to inhibit a crime under § 341 of the Criminal Code are omissions, which means that the offender deliberately and intentionally neglects the duty imposed on him by the Criminal Code. This means he does not act, even though he was obliged to do so in compliance with the law.

Who is competent for the detection and investigation of corruption offenses?

For the detection and investigation of all corruption offenses, including corruption of foreign public officials in international business transactions, the competent body is the National Crime Agency of the Presidium of the Police Force, with the exception of corruption offences committed by members of the armed security forces and, with effect from 1 January 2020, criminal offenses of customs officers, which fall within the substantive jurisdiction of the Office of the Inspection Service.

The scope and contact details of the National Crime Agency of the Presidium of the Police Force are published on the website of the Ministry of the Interior of the Slovak Republic: http://www.minv.sk/?NAKA

Remember

A foreign public official holds a legislative, judicial or administrative function in a foreign country, including the head of state, or in an international organization, or in a legal entity with a predominant influence of a foreign state.

  • In connection with the implementation of the OECD Convention, the law of the Slovak Republic included offenses for accepting bribery of a foreign public official, offenses of bribing a foreign public official and offenses of indirect corruption of a foreign public official.
  • For the crime of accepting the bribe of a foreign public official in large measure, a maximum penalty of imprisonment ranging from 10 to 15 years can be imposed.
  • In the case of corruption offenses, criminal liability can be deduced not only for receiving and granting a bribe, but also for requesting, offering, promising and enforcing the bribe promise.
  • Failure to report the crime of corruption, including corruption of a foreign public official, or the failure to such a crime is a criminal offense.

 

 

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