4. Criminal aspects of corruption

Corruption and related terms

The basic legislative framework for prosecution of criminal offences of corruption in the Slovak Republic is represented by Act No. 300/2005 Coll., the Criminal Code, as amended (hereinafter only the “Criminal Code”), which came into force on 1 January 2006. The act provides the definition of a criminal offence, preconditions to criminal liability, bodies of criminal offences and penalties for criminal offences.

Pursuant to the Criminal Code, corruption occurs in form of a minor offence (Article 10) or in form of criminal offence (Article 11). There are several substantive and procedural differences between minor offences and criminal offences. The major substantive difference is that an action is classified as crime only if all elements constituting the body of the crime are present, while for a minor offence, besides formal elements of a criminal offence (with the upper limit of sentencing rate not exceeding five years) present is also another substantive element, marginal severity (Article 10 par. 2). Under the Criminal Code, subject to prosecution is both completed criminal offence as well as attempted criminal offence (Article 14). Punishable is also preparation for a crime (Article 13), excluding preparation for a minor offence.

The Criminal Code introduces a definition of a bribe, in Article 131 par. 3, under which a bribe, for the purpose of the law shall mean a thing or other supply of material or immaterial nature, to which there is no legal entitlement. The law does not define a value limit for bribes, a bribe can be of large value or a negligible amount. However, for criminal offence of corruption, a bribe must be received, requested or promise of a bribe must be solicited or a bribe must be promised or given. It is not relevant whether the purpose of the bribe was to obtain a privilege to which there is no legal entitlement. The fact itself that a person requests or receives an unjustified advantage in return for exercise of his/her duties is a breach of obligations.

A matter of general interest under Article 131 par. 1 of the Criminal Code shall mean an interest exceeding the scope of rights and interests of an individual, which is important from the view of the society’s interests. Matters of general interest refer to any activity related to performance of socially important responsibilities; it does not exclusively refer to decision-making authority of state authorities or self-government, it includes satisfaction of interests of individuals and legal entities in the area of material, health, social and other needs.

There must be a relationship between the bribe and the procurement of a matter of general interests, therefore any received, promised or requested bribe shall relate to an activity falling under procurement of matters of general interest, irrespective of whether the bribe is handed over to the offender or, through the offender’s assistance, to a third party.

Corruption-related criminal offences

The Criminal Code, in its separate section named “Criminal Offences Against Public Order”, defines bodies of corruption-related criminal offences including other bodies of offences defining corrupt behaviour. This includes criminal offences against property and economic criminal offences, which, as a rule, consist in illegal obtaining public funds for private purposes.

Criminal offences stated in the Criminal Code, which are closely related to corruption include, in particular criminal offences of abuse of power by a public official (Article 326), fraud (Article 221), legalization of proceeds from criminal activities (Article 233), breach of trust by maladministration of estates of another entity (Article 237), harm done to a creditor (Article 239), preferential treatment of a creditor (Article 240), deceitful practices in bankruptcy and composition proceedings (Article 241), breach of regulations governing the handling of controlled goods and technologies (Article 255 through 257), insider trading (Article 265), deceitful practices in public procurement and public auction (Article 266 through 268).

Failure to Report a Criminal Offence and Failure to Prevent a Criminal Offence

The statutory obligation to report corruption is imposed by provisions of Article 340 par. 1 of the Criminal Code, regulating, at the same time, criminal liability for a failure to report a criminal offence of corruption. The precondition to reporting a corruption is that any person who learns, from a trustworthy source, about commission of a criminal offence of corruption; then the information shall be reported, without an undue delay, to law enforcement authorities. Provisions of Article 341 par. 1 of the Criminal Code impose the obligation to also notify law enforcement authorities about preparation of any criminal offence of corruption.

Criminal offences of a failure to report a criminal offence under Article 340 of the Criminal Code and a failure to prevent a criminal offence under Article 341 of the Criminal Code are omissive criminal offences, it means that the offender knowingly and deliberately neglects an obligation imposed on him directly by the Criminal Code, i.e. does not acts although it is his legal obligation to act. Both the above-mentioned offences are classified as minor offences.

Cessation of punishability of a criminal offence of corruption

In the Criminal Code, the specific nature of criminal offences of corruption is emphasized by existence of a special provision on cessation of punishability of a criminal offence. Upon meeting the legal requirements under Article 86 par. 1 g) of the Criminal Code, discretionary defence of effective regret is applicable to criminal offences of bribery under Article 332 or Article 333 and trading in influence under Article 336 par. 2.

The culpability of bribery under Article 332 or Article 333 and trading in influence under Article 336 par. 2 ceases to exist if the offender gives or promises to give a bribe only because the offender was asked to do so and then deliberately and without an undue delay reports the same to law enforcement authorities or to a Police Force; members of the armed forces may give such information to their commanding officers or service body, and persons serving their imprisonment sentence or remanded in custody may also report such information to the officer of the Prison and Court Guard Service.

For citizens who have been asked to give a bribe and therefore they either gave or promised to give a bribe, the impunity guaranteed by the Criminal Code in form of special provision on defence of effective regret shall serve as a motivation to report the criminal offence, without an undue delay, to competent authorities. On the other hand, exclusion of defence of effective regret for criminal offences of passive bribery under Article 328, Article 329, Article 330 and Article 336 par. 1 ensures that after receiving a bribe and after being caught in the act, they cannot refer to the fact that they meant to report the bribe without an undue delay.

The provisions of Article 334 of the Criminal Code referring to corruption of a foreign public officer are excluded from applicability of conditions for impunity with reference to obligations to the Slovak Republic resulting from OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

Suspension of criminal prosecution of corruption or reduction of penalty

The Code of Criminal Procedure regulates the concept of suspension of criminal prosecution under Article 215 par. 3 of the Code of Criminal Procedure, which can be applied against the accused person in preparatory proceedings, if the person considerably contributed to clarification of the criminal offence of corruption. This optional procedure is applicable to a cooperating person who was involved in the corrupt practices, however, voluntarily decided to cooperate with law enforcement authorities.

The substance of the regulation is a formal agreement between the offence of the corruption and the state, that in return for information provided as a relevant proof to prove other co-offenders guilty, temporary impunity is granted to the cooperating offender, who otherwise would not be legally entitled to impunity. In such case the general interest of the state in clarification of criminal offences of corruption exceeds the interest in criminal prosecution of one specific accused person.

Another option which can motivate an offender of corruption to cooperation with law enforcement authorities is the possibility of extraordinary reduction of punishment under Article 39 par. 2 (e) of the Criminal Code, if the offender considerably contributed to clarification of the criminal offence of corruption.

Institutional support to combating criminal offences of corruption

Under Section Three, Chapter Eight of the special part of the Criminal Code, the sponsor for detection and investigation of criminal acts of passive bribery, active bribery, trading in influence, electoral corruption and corruption in sports, including related criminal offences, is the National Anti-Corruption Unit of the National Criminal Agency of the Presidium of the Police Force.

Exclusions are the above-mentioned criminal offences of corruption committed by members of the Police Force, falling under competence of Inspection Service Authority of the Section of Control and Inspection Service of the Ministry of Interior of the Slovak Republic. Investigation of criminal offences of corruption is supervised by the Special Prosecution Authority of the General Prosecutor’s Office of the Slovak Republic. In accordance with Article 14 of the Code of Criminal Procedure, criminal offences of corruption fall under the competence of the Specialised Criminal Court.

Please, remember that:

The Criminal Code defines a bribe as a thing or other supply of material or immaterial nature, to which there is no legal entitlement.
Under the Criminal Code, a matter of general interest shall mean an interest exceeding the scope of rights and interests of an individual, which is important from the view of the society’s interests.
The Criminal Code regulates the obligation to report criminal offences of corruption and the criminal liability for a failure to report such criminal offence.
Under the Criminal Code, punishability of therein defined criminal acts of active bribery and trading in influence becomes extinguished if the offender gives or promises to give the bribe only because of being asked to do so and then deliberately and without an undue delay reported the case to a law enforcement authority or to a Police Force.
The existing criminal codes enable suspension of criminal proceedings against the accused person during preparatory proceedings, or an extraordinary reduction of punishment is possible if the offender substantially contributed to clarification of the criminal offence of corruption.