Section 3: Corruption and Remedies against it

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During a research recently carried out by TRANSCRIME on corruption in the 15 European Union countries, six main patterns of corruption and different patterns of criminal responses to corruption were outlined:

· systematic corruption (Italy, France, Spain and Belgium);

· emerging systematic corruption (Germany and Greece);

· sporadic corruption (Ireland, Austria and Portugal);

· casual corruption (the Netherlands, Finland, Denmark and Swe­den);

· English corruption (United Kingdom);

· managing others' corruption (Luxembourg).

With reference to legal responses the main criteria used for this analysis were:

a)the definition of the crime of corruption;

b)the distinction between passive and active corruption;

c) the definition of passive and active subjects involved in the crime of corruption; and

d)sanctions.

The results show that there is less homogeneity with respect to the definition of the crime of corruption. The differences in definition are related to the fact that corruption takes on different forms in the various European countries, depending on each cultural and social context. It is important to study the cultural background of the various countries in order to discover the constant elements of corruption and thus to adopt the most effective preventive measures. For instance, when referring to «corruption prone environment» in Italy, we are talking about a phenomenon that is deeply rooted in the cultural tra­dition of Italian society, in the sense that corrupt activities are practiced and accepted by normal citizens. The penal codes of the United Kingdom and Germany envisage various levels of corruption crimes (misdemeanors or felonies), according to the position held by the actor. Another distinction is related to the nature of the corruption act, in that it may be linked with, or contrary to the functional role of the actor. In the case of the passive receipt of a bribe by a public offi­cial in order to speed up a service for which he/she is competent, the penalty of a fine is envisaged. On the other hand, a public official who authorizes the issuance of a license although this is not under his/her competence, is committing an offence. In Austria (Article 304, paragraph 1), Denmark (Article 144), Finland (Article 40), Ger­many (paragraph 332), the Netherlands (Article 363) passive corrup­tion involving abuse of the public function is punished with a higher penalty than in the case of corruption that does not involve the abuse of a public function.

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Italy has also adopted this line of action as is shown in Article 319 (Corruption for an Act that is Contrary to Official Duties) which is cited below: «The public official who omits or delays, or who has omitted or delayed an act of his/her office, or who has committed an act that is contrary to his/her official duty... is pun­ishable with two to five years of imprisonment».

In accordance with Article 318, corruption in relation to official duty is punishable with between two months and three years of im­prisonment. In several cases, the criminalisation of active corrup­tion depends on the nature of the act carried out by the passive ac­tor. The Netherlands and Denmark do not punish active corruption if this does not induce the public official to abuse his duties. On the other hand, Germany punishes this type of active corruption, although it envisages a lighter sanction (maximum two years of im­prisonment) than that applied for corruption involving abuse of of­ficial duties (3 months to 5 years of imprisonment). In Portugal, the above-mentioned corruption was criminalised on 1 October 1995. The other states have not made any distinction in this respect. From an analysis of legislation in the various countries of the European Union, it is impossible to identify a distinction between active and passive corruption in all of them.

These two criminal acts represent the two faces of the same coin since corruption crimes involve more than one actor and pre­suppose at least one person offering or promising an advantage and another person accepting or receiving the advantage. However, in most cases it appears that the corrupter cannot be prosecuted for having participated in the transgression of the corrupted person, and vice versa. As far as the definition of the passive actor is concerned, numerous countries including Denmark, Sweden, Holland, the United Kingdom and Italy, have adopted a wide definition that cov­ers public functionaries, judges, members of Parliament, political figures, members of the Armed Forces, functionaries of the Central Bank, and legal and economic consultants, in order to guarantee greater correctness in the public services.

Other countries like Finland and Portugal, have opted for a more limited extension of the above-mentioned concept, so as to cover only certain categories of public functionaries and elected of­fices. Austria, for example, does not extend the law related to cor­ruption to members of an autonomous economic authority. Greece and Germany deal with corrupti6n of judges and referees in a spe­cific separate article. In fact, the most significant differences be­tween the legislation of the various states relate to the definition of the passive actor. This represents one of the main obstacles in the international fight against corruption, and it is hoped that all states will decide on a single definition of the public official. There is no problem regarding the definition in the case of the active party. Since active corruption is not a crime belonging to a certain cate­gory it can be perpetrated by anyone, whereas in the case of pas­sive corruption, the actor can only be a very qualified person.

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As far as the actual moment of the commission of the corrup­tion crime is concerned, there are no major differences. What mat­ters is the collusive agreement, in the sense that the corruption is perfectioned when the passive actor does not expressly refuse the advantage offered to him. The fact that the promise is really main­tained is not relevant for the purposes of the commitment of the of­fence. According to German, Austrian, Greek and Danish legisla­tion, the legal interest that is protected by the corruption law is violated by the simple collusive agreement. The legal authority has only to prove the abstract relationship between the illegitimate ad­vantage and the performance or violation of the public function. Passive corruption involves the commission or omission of an act on the part of the passive actor.

With respect to an analysis of the sanctions, it can be noted that almost all countries envisage more severe sanctions for passive corruption since the beneficiary of the bribe holds a public office and therefore represents the state institutions. On the other hand, the same sanctions are envisaged for both the corrupter and the cor­rupted person in Italy, Portugal, Finland, Greece and Sweden. The penalties that are traditionally envisaged by all the countries studied are pecuniary sanctions and incarceration, the minimum and maxi­mum duration of which vary noticeably from one country to the other. The Netherlands and Portugal inflict the mildest sanctions for corruption crimes, with three and six months of imprisonment re­spectively. In addition to the traditional sanctions, several countries envisage additional sanctions. In Finland, Sweden and Greece the authorities can confiscate illicit proceeds and, in some cases, inflict disciplinary measures such as dismissal from work. If the profits gained from corruption cannot be found, the Romanian penal law imposes the payment of a sum equivalent to the benefit received on behalf of the corrupted person.

In the Russian Federation and Ukraine alongside the confisca­tion of illicit proceeds, conspicuous parts of the condemned per­son's patrimony are requisitioned. Austria, Finland, also envisage more severe penalties in the case of aggravating circumstances. In Austria, a circumstance is aggravated if the bribe exceeds 25,000 Austrian shillings, while in Finland an «outstanding» amount of money must be involved. In the remaining four countries mentioned above, recidivist behaviour, the involvement of con­spicuous sums of money, the corruption of experts, provocation, extortion and the particular role held by the passive actor, are con­sidered aggravating circumstances. Several countries also envisage exceptional circumstances in addition to the aggravating circum­stances. Austria and Denmark, for example, tolerate the payment of small sums for anniversaries.

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The corrupted person who reports the payment of a bribe to the legal authorities before being investigated is not punishable ac­cording to Article 236 of the Greek penal code. This is also the case in Germany which, in addition, allows for the acceptance of bene­fits that have been authorised beforehand. In Sweden, when sums amounting to less than 500 SK. are involved, the act is not consid­ered a corruption crime. According to British legislation, a passive actor who is in good faith and unaware of the illicit nature of the payment is not punishable for corruption. In Romania, the party that has been forced to pay the bribe has the right to be reimbursed the amount paid. A large number of states punish attempted corruption as well as accomplished corruption. Consequently, not only the concession or acceptance of benefit of a predominantly economic nature are punishable as a major offence, but also the mere promise to give or receive. The same penalties are applied for attempted cor­ruption that are envisaged for committed corruption.

On the contrary, Germany envisages milder sanctions for at­tempted active or passive corruption. According to the laws of nu­merous states, the benefits resulting from corruption need not nec­essarily be of an economic nature, but can also be of an abstract nature, such as improved career prospects, speeding up of paper work, etc. The important thing is that the beneficiary, the corrupted person or his/her family can improve their position with respect to the previously held one. The states that have adopted the wider definition of the concept of «advantage» are Germany, Greece, the UK and the Netherlands, while there are of course countries like Austria, Denmark, Finland, etc. that prefer a more material defini­tion.

Only Denmark and Sweden have laws that expressly prohibit corruption in the private sector. This is positive and should be imitated by the other states in order to encourage a greater sense of morality and correctness among the economic operators.

Date: 2014-12-21; view: 1286