eu grant agreement number: 290529 project acronym...

1

This project is co-funded by

the Seventh Framework

Programme for Research and

Technological Development of

the European Union

EU Grant Agreement number: 290529

Project acronym: ANTICORRP

Project title: Anti-Corruption Policies Revisited

Work Package: WP10. Monitoring anti-corruption legislation and enforcement in Europe

Title of deliverable: D10.6 Policy paper for the EU

Due date of deliverable: 28 February, 2017

Actual submission date: 28 February, 2017

Contributors: Pedro Gomes Pereira

Organization name of lead beneficiary for this deliverable: BUDAPESTI CORVINUS EGYETEM

The information and views set out in this publication are those of the author(s) only and do not

reflect any collective opinion of the ANTICORRP consortium, nor do they reflect the official opinion of

the European Commission. Neither the European Commission nor any person acting on behalf of the

European Commission is responsible for the use which might be made of the following information.

Project co-funded by the European Commission within the Seventh Framework Programme

Dissemination Level

PU Public X

PP Restricted to other programme participants (including the Commission Services)

RE Restricted to a group specified by the consortium (including the Commission Services)

Co

Confidential, only for members of the consortium (including the Commission Services)

Basel Institute on Governance Steinenring 60 | 4051 Basel, Switzerland | +41 61 205 55 11 [email protected] | www.baselgovernance.org

Policy Report regarding contribution that EU

and CoE can make to develop and strengthen

of anti-corruption regulatory regimes at the

national level.

Policy Report.

BASEL INSTITUTE ON GOVERNANCE

Table of contents

List of abbreviations 1

List of tables 3

1 Executive summary 6

1.1 Background 6

1.2 Aim 6

1.3 Key findings 6

2 Introduction 7

2.1 Methodology and structure of the Report 7

2.2 Definitions 8

3 Development and scope of the anti-corruption initiatives 10

3.1 United Nations 10

3.1.1 The United Nations Convention against Transnational Organised Crime 11

3.1.2 The United Nations Convention Against Corruption 12

3.1.3 Bribery of national public officials 13

3.1.3.1 Active bribery of a (national) public official 13

3.1.3.2 Passive bribery of a (national) public official 14

3.1.4 Active bribery of foreign public officials and officials of public international

organisations 15

3.1.5 Embezzlement, misappropriation or other diversion of property by a public official 16

3.1.6 Trading in influence 17

3.1.6.1 Active trading in influence 17

3.1.6.2 Passive trading in influence 18

3.1.7 Money laundering 19

3.1.8 Liability of legal persons 22

3.1.9 Sanctions 23

3.1.10 Mutual legal assistance 23

3.1.11 The Implementation Review Group of the UNCAC 24

3.2 Council of Europe 25

3.2.1 Conventions 26

3.2.1.1 European Convention on Mutual Assistance in Criminal Matters and its

additional protocols 26


3.2.1.2 Convention on Laundering, Search, Seizure and Confiscation of the Proceeds

from Crime and Convention on Laundering, Search, Seizure and Confiscation of

the Proceeds from Crime and on the Financing of Terrorism 26

3.2.1.3 Criminal Law Convention on Corruption and its additional protocol 26

3.2.1.4 Civil Law Convention on Corruption 28

3.2.2 Review mechanisms 28

3.2.2.1 GRECO 28

3.2.2.2 MONEYVAL 29

3.3 European Union 29

3.3.1 Convention on Protection of the European Communities’ Financial Interests,

Protocol to the Convention on the Protection of the European Communities’ Financial

Interests and Second Protocol to the Convention on the Protection of the European

Communities’ Financial Interests 30

3.3.2 Convention on the Fight against Corruption involving Officials of the European

Communities or Officials of Member States of the European Union 31

3.4 OECD 31

3.4.1 Convention on Combating Bribery of Foreign Public Officials in International

Business Transactions 31

3.5 FATF 34

4 National legislation overview 35

4.1 Romania 35

4.1.1 Summary 35

4.1.2 Instruments acceded 35

4.1.3 Compliance and implementation 36

4.1.3.1 Bribery of public officials 37

4.1.3.1.1 Active bribery of (national) public officials 37

4.1.3.1.2 Passive bribery of (national) public officials 38

4.1.3.1.3 Bribery of foreign public officials and officials of public international

organisations 39

4.1.3.2 Embezzlement, misappropriation or other diversion of property by a public

official 40

4.1.3.3 Trading in influence 41

4.1.3.3.1 Active trading in influence 41

4.1.3.3.2 Passive trading in influence 42

4.1.3.4 Money laundering 42

4.1.3.5 Obstruction of justice 44

4.1.3.6 Liability of legal persons 47

4.1.3.7 Statutes of limitation 48

4.1.3.8 Sanctions 48

4.1.3.9 Mutual legal assistance 48

4.2 Slovenia 48


4.2.1 Summary 48


4.2.3 Compliance with international standards 49




4.2.3.1.3 Active bribery of foreign public officials and officials of public

international organisations 54


official 54










4.3 Spain 63

4.3.1 Summary 63


4.3.3 Compliance and implementation with international standards 64





organisations 68


official copy 69










4.4 Sweden 77

4.4.1 Summary 77



4.4.3 Compliance with international instruments 78




4.4.3.1.3 Active bribery of foreign public officials and officials of public

international organisations 81


official 82










4.5 United Kingdom 96

4.5.1 Summary 96


4.5.3 Compliance and implementation of international standards 97





organisations 101


official 103








5 Conclusions and recommendations 116

5.1 EU level Error! Bookmark not defined.

6 Bibliography 118

6.1 International instruments 120


1

List of abbreviations

1996 Protocol Protocol to the Convention on the protection of the European

Communities' financial interests

1997 Second Protocol Second Protocol of the Convention on the protection of the

European Communities' financial interests

CoE Council of Europe

CoSP Conference of the States Parties of the UNCAC

CPCTO Congress on the Prevention of Crime and the Treatment of

Offenders

Doc. Document

ECOSOC United Nations Economic and Security Council

EU European Union

EUR Euro

GRECO CoE Group of States against Corruption

IRG Implementation Review Group of the UNCAC

LLPCO Liability of Legal Persons for Criminal Offences Act of Slovenia

MLA Mutual legal assistance

MONEYVAL Committee of Experts on the Evaluation of Anti-Money

Laundering Measures and the Financing of Terrorism

OECD Anti-Bribery

Convention

OECD Convention on Combating Bribery of Foreign Public

Officials in International Business Transactions

POCA 2002 Proceeds of Crime Act 2002.

Protection Convention Convention on the Protection of the European Communities’

Financial Interests

Res. Resolution


2

SEK Swedish Kroner

UK United Kingdom

UN United Nations

UNCAC United Nations Convention Against Corruption

UNGA United Nations General Assembly

UNTOC United Nations Convention against Transnational Organised

Crime


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List of tables

Elements of the offence for art. 15(a) UNCAC (active bribery of a public official). ......................... 13

Elements of the offence for art. 15(b) UNCAC (passive bribery of a public official). ....................... 14

Elements of the offence for art. 16(a) UNCAC (active bribery of foreign public officials and officials

of public international organisations). ................................................................................................. 16

Elements of the offence for art. 17 UNCAC (embezzlement, misappropriation or other diversion of

property). ............................................................................................................................................. 17

Elements of the offence for art. 18(a) UNCAC (active trading in influence). .................................... 18

Elements of the offence for art. 17(b) UNCAC (passive trading in influence). .................................. 19

Table x. Elements of the offence for art. 23 UNCAC (money laundering). ....................................... 20

Elements of the offence for art. 25 UNCAC (obstruction of justice). ................................................. 21

Art. 26 UNCAC (Liability of legal persons) ....................................................................................... 22

Art. 29 UNCAC (Statutes of Limitation) ............................................................................................ 23

Elements of the offence for art. 1 OECD Anti-Bribery Convention (bribery of foreign public

officials). ............................................................................................................................................. 33

Elements of the offence for art. 290 Criminal Code of Romania (active bribery of national public

officials). ............................................................................................................................................. 38

Elements for the offence under asset art. 289 Criminal Code of Romania (passive bribery of a

national public official). ...................................................................................................................... 39

Elements of the offence for art. 295 Criminal Code of Romania. ....................................................... 40



Elements of the offence for art. 29, Law No. 656/2002 (money laundering).. ................................... 44

Elements of the offence for art. 271 Criminal Code of Romania (obstruction of justice). ................. 45



Elements of the offence under art. 262 Criminal Code of Slovenia (active bribery of national public

officials). ............................................................................................................................................. 52

Elements of the offence under article 261 Criminal Code of Slovenia (passive bribery of national

public officials). .................................................................................................................................. 53

Elements of the offence under art. 209 Criminal Code of Slovenia (embezzlement, misappropriation

or other diversion of property). ........................................................................................................... 55

Elements of the offence under art. 264 Criminal Code of Slovenia (active trading in influence). ..... 56

Elements of the offence for art. 263 Criminal Code of Slovenia (passive trading in influence)......... 57

Elements of the offence for art. 245 Criminal Code of Slovenia (money laundering). ....................... 58

Elements of the offence for art. 286 Criminal Code of Slovenia (obstruction of justice). .................. 60

Elements of the offence for art. 424 Criminal Code of Spain (active bribery of national public

officials). ............................................................................................................................................. 65

Elements of the offence for art. 419 Criminal Code of Spain (passive bribery of national public

officials). ............................................................................................................................................. 67


4

Elements of the offence for art. 420 Criminal Code of Spain (passive bribery of national public

officials). ............................................................................................................................................. 67

Elements of the offence for art. 286ter Criminal Code of Spain (bribery of foreign public officials

and officials of public international organisations). ............................................................................ 68

Elements of the offence for art. 252 Criminal Code of Spain (embezzlement, misappropriation or

other diversion of property)................................................................................................................. 69





Elements of the offence for art. 428 Criminal Code of Spain (active trading in influence). ............... 71

Elements of the offence for art. 429 Criminal Code of Spain (passive trading in influence). ............ 72

Elements of the offence for art. 430 Criminal Code of Spain (passive trading in influence). ............ 73

Elements of the offence for art. 301 Criminal Code Spain (money laundering). ................................ 75

Elements of the offence for art. 464 Criminal Code of Spain (obstruction of justice). ....................... 75

Elements of the offence for Chapter 10, Section 5b Criminal Code of Sweden (active bribery of

national public officials)...................................................................................................................... 80

Elements of the offence for Chapter 10 Section 5a (passive bribery of a national public official)..... 81

Elements of the offence for Chapter 10, Section 1 (embezzlement, misappropriation or other

diversion of property). ......................................................................................................................... 82





Elements of the offence for Chapter 10, Section 5d, para. 2 Criminal Code of Sweden (active trading

in influence). ....................................................................................................................................... 84

Elements of the offence for Chapter 10, Section 5d, para. 1 Criminal Code of Sweden (passive

trading in influence). ........................................................................................................................... 85

Elements of the offence Chapter 9, Sections 6, 6a, 7 and 7a Criminal Code of Sweden (money

laundering). ......................................................................................................................................... 87

Elements of the offence for Chapter 15, Section 1 Criminal Code of Sweden (obstruction of justice).

............................................................................................................................................................. 89


............................................................................................................................................................. 89


............................................................................................................................................................. 90


............................................................................................................................................................. 90


............................................................................................................................................................. 91


............................................................................................................................................................. 92


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............................................................................................................................................................. 92


............................................................................................................................................................. 93

Elements of the offence for Section 1 of the Bribery Act 2010 (active bribery of national public

officials). ............................................................................................................................................. 98

Elements of the offence for Section 2 of the Bribery Act 2010 (passive bribery of a national public

official). ............................................................................................................................................. 101

Elements of the offence for Section 6 of the UK Anti-Bribery Act 2010. ........................................ 103

Elements of the offence for section 1-5 of the Fraud Act 2006 (embezzlement, misappropriation or

other diversion of property)............................................................................................................... 105

Table x. Elements of the offence Section 1-7 of the Theft Act 1968 (embezzlement, misappropriation

or other diversion of property). ......................................................................................................... 108

Elements of the offence for Sections 327-329 and 334 under the POCA 2002 (money laundering).111

Elements of the offence for Section 51 Criminal Justice and Public Order Act 1994 (obstruction of

justice). .............................................................................................................................................. 114


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1 Executive summary

1.1 Background

ANTICORRP is a large-scale research project funded by the European Commission’s Seventh

Framework Programme. The full name of the project is “Anti-corruption Policies Revisited: Global

Trends and European Responses to the Challenge of Corruption”. The project started in March 2012

and will last for five years. The research is conducted by 20 research groups in fifteen countries.

The fundamental purpose of ANTICORRP is to investigate and explain the factors that promote or

hinder the development of effective anti-corruption policies and impartial government institutions. A

central issue is how policy responses can be tailored to deal effectively with various forms of

corruption. Through this approach ANTICORRP seeks to advance the knowledge on how corruption

can be curbed in Europe and elsewhere. Special emphasis is laid on the agency of different state and

non-state actors to contribute to building good governance.

1.2 Aim

The aim of the present policy report is to:

To measure state compliance and implementation of international anti-corruption norms across

EU28 Member States;

To identify patterns of variation of state compliance and implementation, whether cross-national,

or across sectors and issue areas.

To present the strength and shortcomings based on the patterns identified.

To present conclusions and recommendations based on the patterns identified.

1.3 Key findings

Sweden and Romania only recognise bribery of officials of international organisations where

they recognise it as such (i.e., they are a member to the international organisation);

Self-laundering has become a standard provision in the legislation of EU Member States.

Dual criminality continues to be the standard among EU Member States in relation to coercive

measures.

Liability of legal persons is now more widely used, particularly in criminal liability of legal

persons.


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2 Introduction

2.1 Methodology and structure of the Report

The methodology applied to the present report was drawn through the following:

A desktop analysis of the applicable international standards in relation to anti-corruption

regulatory regimes;

A literature review of the mentioned international standards;

A desktop analysis of the legal instruments and organisational structures of the EU28 Member

States in relation to their anti-corruption regulatory regimes;

Benchmarking of the applicable international standards with the national legal instruments to

identify compliance of the national legal instruments;

Review of the mutual evaluation reports, peer reviews and questionnaires prepared by EU28

Member States in relation to the compliance of their national legal instruments, organisational

structure and practice with the international standards;

Identification of strengths and shortcomings at the EU and Member States levels;

Conclusion with recommendations.

The data and information collected to undertake the above-mentioned methodology includes the use

of primary (laws, regulations, etc.) and secondary (reports, etc.) sources that refer to the European

and EU28 Member States contexts.

Basic concepts established under European and international anti-corruption standards have been

used as a basis for comparison with national law of selected EU28 member states. This allows to

determine their compliance with the standards, and to verify any potential implementation gaps. The

policy paper focuses on compliance and implementation of the following corruption-related offences:

Active and passive bribery of national public officials;

Active bribery foreign public officials and officials of public international organisations;

Embezzlement, misappropriation or other diversion of property;

Active and passive trading in influence;

Money laundering;

Obstruction of justice.

Furthermore, this section will additionally review the compliance with and implementation of the

following elements:

Liability of legal persons;

Statute of limitations;

Sanctions;


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Mutual legal assistance.

This policy paper shall not focus on elements concerning with the identification, seizure and

confiscation of proceeds and instrumentalities of crime, as this has been the focus of another policy

paper.

This policy paper is structured as follows:

Section 1 provides an executive summary of the report, presenting the key findings and

recommendations resulting from it;

Section 2 provides the methodology used as well as the common definitions which will be used

throughout the report;

Section 3 details the main European and international standards which will be reviewed. Focus

has been given to common elements identified in the different European and international

standards relating to the enforcement of anti-corruption regulation;

Section 4 contains the revision of national legislation of selected EU28 member states which

have been compared with the European and international standards to assess the status of

implementation and compliance;

Section 5 concludes the report by providing the main findings from the country review and

indicating the strengths and shortcomings which have been identified. Section 5 additionally

provides recommendations.

2.2 Definitions

The definitions below are drawn from the existing European and international standards, and provide

an integrated understanding of the key terms used in the study. Where diverging definitions or

interpretations are found between European regulations and international standards or where none are

provided by either the one, these shall be indicated.

“Passive bribery of public official” is defined as the promise, offering or giving, to a public official,

directly or indirectly, of an undue advantage, for the official himself or herself or another person or

entity, in order that the official act or refrain from acting in the exercise of his or her official duties.

“Active bribery of public official” is defined as the solicitation or acceptance by a public official,

directly or indirectly, of an undue advantage, for the official himself or herself or another person or

entity, in order that the official act or refrain from acting in the exercise of his or her official duties.

“Active bribery of foreign public officials and officials of public international organisations” is

defined as the promise, offering or giving to a foreign public official or an official of a public

international organisation, directly or indirectly, of an undue advantage, for the official himself or

herself or another person or entity, in order that the official act or refrain from acting in the exercise

of his or her official duties, in order to obtain or retain business or other undue advantage in relation

to the conduct of international business.


9

“Embezzlement” is the embezzlement, misappropriation or other diversion by a public official for his

or her benefit or for the benefit of another person or entity, of any property, public or private funds or

securities or any other thing of value entrusted to the public official by virtue of his or her position.

“Obstruction of justice” is either (i) the use of physical force, threats or intimidation or the promise,

offering or giving of an undue advantage to induce false testimony or to interfere in the giving of

testimony or the production of evidence in a proceeding in relation to a corruption-related offence; or

(ii) the use of physical force, threats or intimidation to interfere with the exercise of official duties by

a justice or law enforcement official in relation to the commission or a corruption-related offence.

“Proceeds” is any property derived from or obtained, directly or indirectly, through the commission

of an offence. Para. 21 of the Commentaries on the OECD Anti-Bribery Convention indicate that

‘proceeds’ are the profits or other benefits derived by the briber from the transaction or other

improper advantage obtained or retained through bribery.

“Public official” encompasses (i) any person holding a legislative, executive, administrative or

judicial office of a State Party, whether appointed or elected, whether permanent or temporary,

whether paid or unpaid, irrespective of that person’s seniority; (ii) any other person who performs a

public function, including for a public agency or public enterprise, or provides a public service, as

defined in the domestic law of the State Party and as applied in the pertinent area of law of that State

Party; (iii) any other person defined as a “public official” in the domestic law of the contracting state.

Art. 8(4) UNTOC defines “public official” as that defined in the domestic law and as applied in the

criminal law of the State Party in which the person in question performs that function.

“Foreign public official” shall mean any person holding a legislative, executive, administrative or

judicial office of a foreign country, whether appointed or elected; and any person exercising a public

function for a foreign country, including for a public agency or public enterprise.

“Official of a public international organisation” shall mean an international civil servant or any

person who is authorised by such an organisation to act on behalf of that organisation.


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3 Development and scope of the anti-

corruption initiatives

The relevant anti-corruption provisions for EU28 Member States are found in international

instruments from the European Union (EU); Council of Europe (CoE); United Nations (UN); the

Organisation for Economic Co-operation and Development (OECD); and the Financial Action Task

Force (FATF). International instruments do not generally define the term “corruption”1 – they instead

establish a set of conducts to be criminalised as corruption-related at the national level.

This section of the report provides a brief overview of the main instruments at the European and

international levels providing anti-corruption standards. The standards set by the international

instruments that form the basis of the definitions used in the previous section and allow to test the

compliance of the legislation of EU28 Member States.

To ensure consistency and coherence in the revision of the international standards on anti-corruption,

the report focuses on corruption-related offences which are either mandatory under the international

standards, or those offences which may not be mandatory in at least one convention, but which are

found in more than one international instrument.

3.1 United Nations

The United Nations (UN) has developed several international standards on combating corruption

since the 1970s.2 However, these earlier efforts did not yield concrete results (Sauvant 2015, 12;

Webb 2005, 192) and did not form the basis for international law.

Efforts were renewed in the in the 1990s with the establishment of regional and international

standards to prevent and combat corruption. The starting point, noted by Vlassis (2005, 127), was a

resolution stemming from the 8th Congress on the Prevention of Crime and the Treatment of

Offenders (CPCTO) in 1990 calling for the preparation of a draft international code of conduct for

public officials and the finalisation and publication of the manual on practical measures against

corruption. This resolution3 noted, among others, the problem of corruption in public administration

1 An exception to this is the European Civil Law Convention against Corruption (ETS 174), which equates corruption to

active and passive bribery. 2 UNGA Res. 3514(XXX), Measures against corrupt practices of transnational and other corporations their

intermediaries and others involved, UN Doc. A/RES/3514(XXX) (15 December 1975); ECOSOC Res. 2041, Corrupt

practices, particularly illicit payments, in international commercial transactions, UN Doc. E/RES/2041 (5 August 1976);

ECOSOC, Report of the Ad Hoc Intergovernmental Working Group on the Problem of Corrupt Practices on its First,

Second, Third and Resumed Sessions, UN Doc. E/6006 (5 July 1977); ECOSOC Res. 2122(LXIII), Corrupt Practices,

particularly illicit payments, in international commercial transactions, UN Doc. A/RES/2122(LXIII) (4 August 1977). 3 CPCTO Doc. A/CONF.144/28/Rev.1, Eighth United Nations Congress on the Prevention of Crime and the Treatment

of Offenders – Report prepared by the Secretariat. Res. 7 “Corruption in Government”.


11

and expressed concern about the links of corruption to other forms of crime (economic, including

money laundering, organised and drug trafficking). However, the term “corruption” was not defined.

During the negotiation of the United Nations Convention against Transnational Organised Crime

(UNTOC),4 the question of corruption once again resurfaced (127). During the negotiations of the

UNTOC, The United Nations General Assembly (UNGA) requested the negotiators5 to explore the

desirability of an international instrument against corruption, either as part of or independent to the

UNTOC. While the final text of the UNTOC would include a mention to bribery – given the inherent

links between corruption and organised crime – the conclusion at the time was that “corruption was

too complex and broad an issue to be covered exhaustively by a convention dealing with

transnational organised crime” (127). The UNTOC was adopted by the UNGA in 2000.6

Following the conclusion of the negotiations of the UNTOC, the UNGA adopted a resolution which

established an Ad Hoc Committee on the elaboration of a convention against corruption (Webb 2005,

204).7 Adopted in 2003,

8 the United Nations Convention against Corruption (UNCAC) is the first

legally binding, global anti-corruption instrument. The UNCAC covers a broad range of activities in

the four main areas of the Convention: prevention, criminalisation and law enforcement, international

co-operation, and asset recovery. Under UNCAC, effective criminalisation and law enforcement

must be put in place by States Parties in their domestic systems.

3.1.1 The United Nations Convention against Transnational Organised Crime

The United Nations Convention against Transnational Organised Crime (UNTOC) is the first UN

treaty to deal with corruption – criminalising active and passive bribery of a national or foreign

public official, and of international civil servants9

(art. 8 UNTOC).10

The convention also

criminalises money laundering (art. 6 UNTOC). UNTOC creates a legally binding obligation for

States Parties (Webb 2005, 203) to criminalise them.11

All EU28 Member States have ratified

UNTOC.

There are, however, a few constraints of the attempt of UNTOC to combat corruption. The definition

of public official under art. 8(4) UNTOC, deferring the definition of the term “public official” to the

one found under the domestic law of the State Party, does not enhance the co-ordination between

jurisdiction, as it leaves room for interpretation of the meaning itself. Another constraint of UNTOC

4 UNGA Res. 53/111, Transnational organised crime, UN Doc. A/RES/53/111 (20 January 1999). 5 UNGA Res. 54/128, Action against corruption, UN Doc. A/RES/54/128 (28 January 2000). 6 UNGA Res. 55/25, United Nations Convention against Transnational Organised Crime, UN Doc. A/RES/55/25 (8

January 2001). 7 UNGA Res. 55/61, An effective international legal instrument against corruption, UN Doc. A/RES/55/61 (22 January

2001). 8 UNGA Res. 58/4, United Nations Convention against Corruption, UN Doc. A/RES/58/4 (21 November 2003). 9 The offence under art. 8(2) UNTOC, relating to the bribery of foreign public official and of international civil servants,

is non-mandatory. While States Parties are encouraged to implement the provision, there is not obligation in doing

so. 10 The UNTOC does not define the meaning of “foreign public official” and “international civil servant”. This lack of

clarity is also expressed in the Legislative Guide to the UNTOC(2004, para 175). 11 Articles 8(1) and (2) and 6 UNTOC have the same definition as those under UNCAC. For this reason, the subsection

dealing with the UNCAC will review the elements of the offence of these criminal offences in more detail.


12

in combating corruption is that its corruption-related offences can only be applied where there is an

involvement of an organised criminal group12

. Moreover, when seeking to combat proceeds of crime

generated from bribery, UNTOC requires two conditions to be met: (i) that the offence was carried

out by an organised criminal group; and (ii) that bribery is the predicate offence to money laundering.

3.1.2 The United Nations Convention Against Corruption

The United Nations Convention Against Corruption (UNCAC) was not the first international

instrument to combat corruption.13

It is, however, the first legally binding, global anti-corruption

instrument. All EU28 Member States have ratified UNCAC.

UNCAC is divided into four main areas: (i) prevention, (ii) criminalisation and law enforcement; (iii)

international co-operation; and (iv) asset recovery. This policy paper focuses on the mandatory

corruption-related offences contained in UNCAC, as well as elements needed to establish their level

of implementation by Member States.

The five mandatory offences under UNCAC are:14

(active and passive) bribery of national public

officials (art. 15 UNCAC), (active) bribery of foreign public officials and officials of public

international organisations (art. 16 UNCAC), embezzlement (art. 17 UNCAC), money laundering

(art. 23 UNCAC) and obstruction of justice (art. 25 UNCAC).

Under UNCAC, States Parties must also: (i) adopt measures to establish the liability of legal persons

(whether criminal, civil or administrative) which must be independent from the criminal liability of

natural persons (art. 26 UNCAC); (ii) ensure that there are long statutes of limitation in place, or

provide for the its suspension when the alleged offender has evaded the administration of justice (art.

29 UNCAC); (iii) sanctions which take into account the gravity of the offence (art. 30(1) UNCAC);

and (iv) the provision of the widest measure of mutual legal assistance (MLA) (art. 46 UNCAC).

12 Art. 2(a) UNTOC defines an organised criminal group as, ‘(…) a structured group of three or more persons, existing

for a period of time and acting in concert with the aim of committing one or more serious crimes or offences

established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material

benefit.’ Art. 2(c) UNTOC further clarifies the term ‘structured group’ indicating that it ‘is not randomly formed for the

immediate commission of an offence and that does not need to have formally defined roles for its members,

continuity of its membership or a developed structure.’ 13 Prior to the UNCAC the following international instruments were adopted:

Inter-American Convention against Corruption, Caracas, 29 March 1996, in force 6 March 1997, ILM, 35

(1996);

OECD Convention on Combating Bribery of Foreign Public Officials, Paris, 17 December 1997, in force 15

February 1999, ILM, 37 (1998);

Criminal Law Convention on Corruption, Strasbourg, 27 January 1999, in force 1 July 2002, ETS 173;

Civil Law Convention on Corruption, Strasbourg, 4 November 1999, in force 1 November 2003, ETS 174;

UNTOC: United Nations Convention against Transnational Organized Crime, New York, 15 November

2000, in force 19 September 2003. 14 The UNCAC criminalises a total of 11 corruption-related offences. However, these offences are divided into

mandatory offences, which States Parties must criminalise, and non-mandatory offences, which States must consider

criminalising.


13

A brief overview of the above mentioned criminal offences shall be made below, analysing the

elements of the corruption-related offences, to further verify the compliance of the national

legislation of selected the EU28 Member States with them.

3.1.3 Bribery of national public officials

The offence of bribery of (national) public officials is subdivided into two different categories under

UNCAC:

Active bribery, in which a person (whether natural or legal) promises, offers or gives an undue

advantage to a public official, directly or indirectly; and

Passive bribery, in which the (national) public official solicits or accepts an undue advantage

from a person (whether natural or legal).

Active and passive bribery are parallel offences: while one criminalises the actions of the person

offering the undue advantage – active bribery – the other criminalises the actions of the public

official that solicits or accepts an undue advantage – passive bribery. They occur when there is an

intention to corrupt a public official, or for a public official to be corrupted.

3.1.3.1 Active bribery of a (national) public official

The elements of the offence of active bribery of a (national) public official are defined under art.

15(a) UNCAC:

Definition The promise, offering or giving, to a public official, directly or indirectly, of an

undue advantage, for the official himself or herself or another person or entity, in

order that the official act or refrain from acting in the exercise of his or her official

duties.

Subject Any natural or legal person.

Conduct To promise;

To offer;

To give.

Object An undue advantage for the official himself or herself or another person or entity.

Purpose That the official act or refrain from acting in the exercise of his or her official

duties.

Elements of the offence for art. 15(a) UNCAC (active bribery of a public official).

The definition of active bribery under article 15(a) UNCAC requires States Parties to criminalise

three actions: promising, offering or giving of an undue advantage to a public official. These three

actions differ from one another (OECD 2008, 26):

“Promising” is the action of a person agreeing to provide the public official with an undue

advantage.


14

“Offering” occurs when a person indicates that he or she is ready to provide an undue advantage

to the public official.

“Giving” is when the transfer of an undue advantage to the public official actually takes place.

The offence of active bribery criminalises the conduct of any person that has the intention to promise,

offer or give an undue advantage to the public official or to a third person (whether natural or legal).

The promising, offering or giving of an undue advantage to a public official may be done either

directly or indirectly. The undue advantage which is promised, offered or given to a public official

may benefit either the public official himself or herself or a third person (whether natural or legal).

Active bribery does not target the public official; it focusses on the intention to corrupt a public

official. Therefore, active bribery is committed regardless of the success of the transaction. The

purpose of the undue advantage is to persuade the public official to perform an official act in a

specific manner, or to have the public official refrain from acting altogether. UNCAC does not

require that the commission or omission of the act by the public official be carried out in the

performance of his duties (or contrary to them).

The offence will only take place where there is an intention by the person wishing to corrupt a public

official. Thus, the crime will only be committed when a person has the intention to promise, offer or

give an undue advantage to the public official. The offering or giving an undue advantage does not

require there to be an agreement between the person offering or giving the undue advantage and the

public official. The public official does not have to have accepted or even be aware of the undue

advantage that is being offered, promised or given to him or her.

3.1.3.2 Passive bribery of a (national) public official

The elements of the offence of passive bribery of a (national) public official are defined under art.

15(b) UNCAC:

Definition The solicitation or acceptance by a public official, directly or indirectly, of an

undue advantage, for the official himself or herself or another person or entity, in

order that the official act or refrain from acting in the exercise of his or her official

duties.

Subject Any public official, directly or indirectly.

Conduct To solicit;

To accept.

Object An undue advantage.

Purpose That the official act or refrain from acting in the exercise of his or her official

duties.

Elements of the offence for art. 15(b) UNCAC (passive bribery of a public official).


15

The definition of passive bribery under article 15(b) UNCAC requires States Parties to criminalise

two actions: soliciting or accepting. These two actions differ from one another (27):

“Solicitation” occurs when a public official indicates to another person that the latter must pay an

undue advantage in order that the official act or refrain from acting.

“Acceptance” occurs when the public official takes the undue advantage.

The subject of passive bribery can only be the public official. A public official includes, as defined in

art. 2(a) UNCAC, anyone holding a legislative, executive, administrative or judicial office, whether

appointed or elected, whether permanent or temporary, whether paid or unpaid, irrespective of that

person’s seniority (UNODC 2006, para. 25), or any other person who performs a public function or

provides a public service, as defined by the law of the State Party.

The offence of passive bribery criminalises the conduct of the public official that has the intention to

solicit or accept an undue advantage from any person (whether natural or legal). The solicitation or

acceptance can be done either directly or indirectly. The undue advantage which is solicited or

accepted may benefit either the public official himself or herself or a third person (whether natural or

legal).

Passive bribery is committed regardless of the success of the transaction. The purpose of the undue

advantage is for the public official to perform an official act in a specific manner, or to have the

public official refrain from acting altogether. UNCAC does not require that the commission or

omission of the act by the public official be carried out in the performance of his duties (or contrary

to them).

The offence will only take place whether there is an intention by the public official to solicit or

accept an undue advantage. The solicitation or acceptance does not require there be an agreement

between the public official and the person being solicited the undue advantage. The person does not

have to have accepted or even be aware that the due advantage is being solicited to him or her.

3.1.4 Active bribery of foreign public officials and officials of public international organisations

The elements of the offence of active bribery of foreign public officials and officials of public

international organisations are defined under art. 16(a) UNCAC:

Definition The promise, offering or giving to a foreign public official or an official of a

public international organisation, directly or indirectly, of an undue advantage, for

the official himself or herself or another person or entity, in order that the official

act or refrain from acting in the exercise of his or her official duties, in order to

obtain or retain business or other undue advantage in relation to the conduct of

international business.


Conduct To promise;

To offer;


16

To give.

Object An undue advantage to a foreign public official or an official of a public

international organisation.

Purpose That the foreign public official or official of public international organisations act

or refrain from acting in the exercise of his or her official duties, in order to obtain

or retain business or other undue advantage in relation to the conduct of


Elements of the offence for art. 16(a) UNCAC (active bribery of foreign public officials and officials of public international organisations).

Active bribery of foreign public officials or officials of public international organisations criminalise

the same three conducts as active bribery of a (national) public official (see subsection above).

The offence of active bribery of foreign public officials or officials of public international

organisations criminalises the conduct of any person that has the intention to promise, offer or give

an undue advantage to a foreign public official or officials of a public international organisation or a

third person (whether natural or legal).

Similarly to active bribery of national public officials, the offence is committed regardless of the

success of the transaction. The purpose of the undue advantage is to persuade the foreign public

official or officials of public international organisations to act in the exercise of his or her official

duties, to obtain or retain business or other undue advantage in relation to the conduct of international

business (as opposed to a more broadly defined undue advantage in the offence of active bribery of

national public officials). UNCAC does not require that the commission or omission of the act by the

public official be carried out in the performance of his duties (or contrary to them).

It does not matter whether an undue advantage was in fact given, or if the transaction occurred. There

is no need to be an agreement between the person offering or giving of an undue advantage and the

public official. Furthermore, the criminal conduct does not require that the foreign public official or

official of public international organisations to accept or be aware of the undue advantage.

3.1.5 Embezzlement, misappropriation or other diversion of property by a public official

The elements of the offence of embezzlement, misappropriation or other diversion of property are

defined under art. 17 UNCAC:

Definition The intentional embezzlement, misappropriation or other diversion by a public

official for his or her benefit or for the benefit of another person or entity, of any

property, public or private funds or securities or any other thing of value entrusted

to the public official by virtue of his or her position.

Subject A public official.

Conduct To embezzle;

To misappropriate.


17

Object Funds which are either public, or which are not public, but entrusted to the public

official.

Purpose To convert or misuse funds entrusted to the public official.

Elements of the offence for art. 17 UNCAC (embezzlement, misappropriation or other diversion of property).

The definition of embezzlement, misappropriation or other diversion of property by a

public official under art. 17 UNCAC requires States Parties to criminalise two actions:

“Embezzling” is the action whereby a public official fraudulently appropriates assets which have

been entrusted to him or her. In this case, the embezzled assets are converted, in an attempt to

transfer their ownership to the public official;

“Misappropriating” is the intentional and illegal act of using property or funds belonging to

another (natural or legal) person for an unauthorised purpose. In this case, there is no conversion

of property but rather the misuse of the property.

The subject of embezzlement, misappropriation or other diversion of property can only be the public

official (as defined in art. 2(a) UNCAC).

The offence of embezzlement, misappropriation or other diversion of property criminalises the

conduct of the public official that has the intention of transferring the ownership or misusing public

of private property which has been entrusted to the public official, for himself or herself or a third

party.

Embezzlement or misappropriation differ from (active and passive) bribery as it is not related to

obtaining an undue advantage from another person or entity (or offering an undue advantage), but

rather transferring the ownership or misusing funds which are either public, or which are not public,

but entrusted to the public official.

3.1.6 Trading in influence

Active and passive trading in influence differs from (active and passive) bribery in the sense that

trading in influence must be linked to the official’s influence, whether real or supposed, over an

administration or public authority (NO CITED PAGES FOR REPEATED CITATION, para. 281).

Other than this difference, the elements of the offence (subject, intent, object and purpose) for trading

in influence are the same as those for active and passive bribery.

3.1.6.1 Active trading in influence

The elements of the offence of active trading in influence of a public official are defined

under art. 18(a) UNCAC:

Definition The promise, offering or giving to a public official or any other person, directly or

indirectly, of an undue advantage in order that the public official or the person


18

abuse his or her real or supposed influence with a view to obtaining from an

administration or public authority of the State Party an undue advantage for the

original instigator of the act or for any other person

Subject A public official or a natural or legal person.

Conduct To promise;

To offer;

To give.


Purpose The public official or the person to abuse his or her real or supposed influence

with a view to obtaining from an administration or public authority an undue

advantage for the original instigator or for any other person.

Elements of the offence for art. 18(a) UNCAC (active trading in influence).

Similarly to the offence of active bribery, active trading in influence criminalises the same three

conducts as active bribery (see subsection above).

The offence of active trading in influence criminalises the conduct of a public official or any other

person that has the intention of promising, offering or giving an undue advantage for this public

official or person to abuse his or her real or supposed influence with a view to obtaining from an

administration or public authority an undue advantage for the original instigator or for any other

person. The promising, offering or giving of an undue advantage to a public official or any other

person may be done either directly or indirectly. The undue advantage which is promised, offered or

given to a public official may benefit either the public official or any other person themselves or a

third person (whether natural or legal).

Active trading in influence is committed regardless of the success of the transaction. The purpose of

the undue advantage is to persuade the public official or any other person to perform an official act in

a specific manner, or to have the public official refrain from acting altogether. The crime will only be

committed when a person has the intention to promise, offer or give an undue advantage to the public

official or any person, and this is linked with the public official’s or person’s real or supposed

influence over an administration or a another public official.

3.1.6.2 Passive trading in influence

The elements of the offence of passive trading in influence of a public official are defined under art.

17(b) UNCAC:

Definition The solicitation or acceptance by a public official or any other person, directly or

indirectly, of an undue advantage for himself or herself or for another person in

order that the public official or the person abuse his or her real or supposed

influence with a view to obtaining from an administration or public authority of

the State Party an undue advantage.


19

Subject A public official or any other person

Conduct To solicit;

To accept.

Object An undue advantage for the official himself or herself or another person or entity.

Purpose The public official or the person to abuse his or her real or supposed influence

with a view to obtaining from an administration or public authority an undue

advantage for the original instigator or for any other person.

Elements of the offence for art. 17(b) UNCAC (passive trading in influence).

Similarly to the offence of passive bribery, passive trading in influence criminalises same two

conducts as passive bribery (see subsection above):

The subject of passive trading in influence can either be the public official or any other person who

solicits or accepts an undue advantage from any person (whether natural or legal).

The office of passive trading in influence criminalises the conduct of the public official or any other

person that has the intention to solicit or accept an undue advantage from any person (whether

natural or legal). The solicitation or acceptance can be done either directly or indirectly. The undue

advantage which is solicited or accepted may benefit either the public official himself or herself or a

third person (whether natural or legal). There must however be link between the offer or advantage

and the act of inducing the official to abuse his or her influence in order to obtain from an

administration or public authority an undue advantage for the instigator of the act or a third party.

Passive trading in influence is committed regardless of the success of the transaction. The purpose of

the undue advantage is for the public official or the person abuse his or her real or supposed

influence with a view to obtaining from an administration or public authority of the State Party an

undue advantage.

3.1.7 Money laundering

The elements of the offence of money laundering are under art. 23 UNCAC:

Definition The conversion or transfer of property, knowing that such property is the proceeds

of crime, for the purpose of concealing or disguising the illicit origin of the

property or of helping any person who is involved in the commission of the

predicate offence to evade the legal consequences of his or her action.

The concealment or disguise of the true nature, source, location, disposition,

movement or ownership of or rights with respect to property, knowing that such

property is the proceeds of crime.

The acquisition, possession or use of property, knowing, at the time of receipt, that

such property is the proceeds of crime.

Participation in, association with or conspiracy to commit, attempts to commit and


20

aiding, abetting, facilitating and counselling the commission of money laundering.

Subject Any person.

Conduct To convert;

To transfer;

To conceal;

To disguise;

To acquire;

To possess;

To use.

Object The proceeds of crime.

Purpose To conceal or to disguise the true nature, ownership or illicit origin of proceeds of

crime

Table x. Elements of the offence for art. 23 UNCAC (money laundering).

Money laundering and corruption are intrinsically linked. While corruption offences are generally

committed to obtain an undue advantage, money laundering is the process through which the

proceeds of crime15

are concealed (FATF 2010, 8).

Money laundering is dependent on two factors. If, on the one hand, a person is seeking to hide the

true origin, nature and ownership of their proceeds of crime, on the other, there has to be an

underlying offence which determines that the assets have a criminal origin and are, in fact, proceeds

of crime. This underlying offence (also know as this predicate offence) must be established as such in

legislation. There are three ways of doing so:

Through a threshold test, in which a range of offences are deemed to be predicate offences to

money laundering — sometimes known as serious offences.

Through a list of predicate offences, in which the legislation prescribes a list of offences which

are deemed to be predicate offences to money laundering.

Through a comprehensive approach, in which any offence can be considered a predicate offence

to money laundering — even if the predicate offence itself has happened out of the country.

The subject of the criminal offence is any person (whether a public official, or whether a natural or

legal person who is not a public official). The person must seek to convert, transfer, conceal,

disguise, acquire, possess or use the proceeds of crime. The person laundering the proceeds of crime

must have the intention to conceal or to disguise their true nature, ownership or illicit origin of those

proceeds of crime. Money laundering therefore criminalises the 7 conducts:

“Conversion” is an act whereby a person changes the form, character or function of something of

the proceeds of crime.

15 Proceeds of crime is any property, benefit or advantage derived directly or indirectly from the commission of an

offence.


21

“Transfer” is an act whereby a person moves the proceeds of crime from one place to another.

“Concealment” is an act whereby a person does not allow the proceeds of crime to be seen.

“Disguise” is an act whereby a person gives the proceeds of crime a different appearance in order

to conceal its identity.

“Acquisition” is the act of knowingly buying or obtaining proceeds of crime.

“Possession” is the act of owning proceeds of crime.

“Use” is the act of taking, holding, or deploying proceeds of crime as a means of achieving

something.

Obstruction of justice

The elements of the offence of obstruction of justice are defined under art. 25 UNCAC:

Definition (a) The use of physical force, threats or intimidation or the promise, offering or

giving of an undue advantage to induce false testimony or to interfere in the giving

of testimony or the production of evidence in a proceeding;

(b) The use of physical force, threats or intimidation to interfere with the exercise

of official duties by a justice or law enforcement official in relation to the

commission of offences.

Subject Any person.

Conduct To induce false testimony;

To interfere in giving testimony;

To interfere with the exercise of official duties.

Object Production of false testimony,

Interfering in the giving of testimony or the production of evidence in a

proceeding,

Interfering with the exercise of official duties

Purpose To obstruct justice.

Elements of the offence for art. 25 UNCAC (obstruction of justice).

The definition of obstruction of justice under art. 25 UNCAC requires states parties to criminalise

three actions:

Inducing false testimony through the use of physical force, threat or intimidation, or through the

promise, offering or giving of an undue advantage;

Interfering in giving of testimony or the production of evidence in a proceeding through the use

of physical force, threat or intimidation;

Interfering with the exercise of official duties by a justice or law enforcement official.


22

The offence of obstruction of justice criminalises the conduct of any person that has the intention to

induce false testimony or to interfere in the giving of testimony or the production of evidence in a

proceeding, or interfering with the exercise of official duties by a justice or law enforcement official.

The use of force, threats, intimidation and inducements for false testimony or for the interference

with the exercise of official duties by the courts, prosecutors and law enforcement can happen at any

time prior, regardless of whether formal proceedings are or not in progress (UNODC 2006, para.

257).

The intention is to induce another in false testimony, interfere in the giving of testimony of another,

or interfere in the exercise of the official duties of a justice or law enforcement official. Whether the

intended result is achieved (e.g., the witness provides false testimony) is not important for the

criminal offence of obstruction of justice.

The purpose of the criminal offence is to obstruct justice. A person seeks to in any way not allow the

real facts to reach the investigation, prosecutorial of adjudicating authority with a view ensure

impunity for the criminal actions carried out. No serious crimes can be detected and punished if the

evidence is prevented from reaching investigators, prosecutors and the court (NO CITED PAGES

FOR REPEATED CITATION, para. 252).

3.1.8 Liability of legal persons

The provision for liability of legal persons is contained in art. 26 UNCAC:

1. Each State Party shall adopt such measures as may be necessary, consistent with its legal

principles, to establish the liability of legal persons for participation in the offences established

in accordance with this Convention.

2. Subject to the legal principles of the State Party, the liability of legal persons may be criminal,

civil or administrative.

3. Such liability shall be without prejudice to the criminal liability of the natural persons who

have committed the offences.

4. Each State Party shall, in particular, ensure that legal persons held liable in accordance with

this article are subject to effective, proportionate and dissuasive criminal or non-criminal

sanctions, including monetary sanctions.

Art. 26 UNCAC (Liability of legal persons)

Corruption-related offences have shifted from almost solely individual perpetrators to also include

legal persons. Serious and sophisticated crime is frequently committed by, through or under the cover

of legal entities, e.g., companies, corporations or charitable organisations (NO CITED PAGES FOR

REPEATED CITATION, para 315). These reasons, and the fact that corporate structures can

effectively hide the true ownership or specific transactions related to corruption-related offences and

other serious crime, have re-sparked the international debate on whether legal persons can bear

criminal, civil or administrative responsibility.

More and more it has been seen that legal persons which have corrupted public officials, whether at

home or abroad, should bear responsibility for their actions. This becomes particularly relevant


23

because in complex corruption-related cases it is difficult to identify who, within a a legal person had

the authority and gave the order to corrupt a public official, especially when the corrupt practices

take place over a long period of time. The decision-making processes in particular in large companies

are increasingly sophisticated, making it difficult to interpret the responsible natural person.

In accordance to article 26(2) UNCAC, this liability can be criminal, civil or administrative in order

to be consistent with the legal principles of the State Party (article 26(1) UNCAC), and is to be

without prejudice to the criminal liability of the natural persons who have committed the offences

(article 26(3) of the UNCAC). Finally, the UNCAC requires that the liability of the legal persons are

subject to effective, proportionate and dissuasive criminal or non-criminal sanctions, including

monetary sanctions (article 26(4) of the UNCAC).

3.1.9 Sanctions

The provision for sanctions is contained in art. 29 UNCAC.

Each State Party shall, where appropriate, establish under its domestic law a long statute of

limitations period in which to commence proceedings for any offence established in accordance

with this Convention and establish a longer statute of limitations period or provide for the

suspension of the statute of limitations where the alleged offender has evaded the administration

of justice.

Art. 29 UNCAC (Statutes of Limitation)

Statutes of limitation set time limits on the institution of proceedings against an alleged offender.

This provision in UNCAC seeks to strike a balance between the interests of justice and fairness to

victims and alleged offenders (NO CITED PAGES FOR REPEATED CITATION, para. 370).

Art. 29 UNCAC requires States Parties to, where appropriate, establish in their domestic legislation

long statute of limitations in which to commence proceedings established according to UNCAC, and

establish either a longer statute of limitations or provide for its suspension where the alleged offender

has evaded the administration of justice.

Article 29 does not require States parties without statutes of limitation to introduce them (NO CITED

PAGES FOR REPEATED CITATION, para. 374).

3.1.10 Mutual legal assistance

The increased mobility or capital, persons and goods throughout the 20th century has led to an

increased trans-nationalisation of crime. As a result, law enforcement and judicial authorities require

the tools to collaborate and to assist each other in cross-border investigations, prosecutions and

judicial proceedings (, 2009, 163).

States have established in their national legislation mechanisms which enable their law enforcement

and judicial authorities to communicate across borders and enable them to furnish evidence to one

another or to take coercive measures. MLA can be defined as the manner a State assists anotherin

order to comply with its jurisdictional obligations (Gomes Pereira 2013, 29). MLA is based on the


24

premise that a State will request another, through channels agreed upon bilaterally or internationally,

which determine the rules concerning the requests for MLA. It is not just a form of communication

between States: it is assistance provided by one State to another in order to co-ordinate legal systems

with a view to satisfying evidentiary requirements relating to the investigations in the requesting

State, or to safeguarding assets which may be at risk of loss or that are the fruits derived from

criminal activity, and which are found in the requested State (28).

Article 46 UNCAC therefore seeks to establish the minimum requirements for States to co-operate

and coordinate with each other. Apart from containing rules on the form and content of requests for

MLA, it furthermore contains provisions which seek to limit the scope under which a request for

MLA can be denied. The most notable of these is the dual criminality requirement (art. 46(9)

UNCAC). Dual criminality conveys the fact that the offence under investigation in the requesting

State must correlate to an offence in the requested State (34). This does not mean that the offence

under investigation has to be identical in both the requesting and requested state: it means that the

core elements of the offence and the protected good must be similar in nature.

Under art. 46(9) UNCAC, States Parties are encouraged to respond to requests for MLA in the

absence of dual criminality. However, where dual criminality is required, States parties are

encouraged to render assistance that does not involve coercive action.

3.1.11 The Implementation Review Group of the UNCAC

The impact of UNCAC is potentially weakened by the fact that it is not a self-executing international

instrument (Joutsen and Graycar 2012, 426). Each State Party must take domestic action to

implement several provisions of UNCAC.

Art. 63 UNCAC mandates the Conference of the States Parties (CoSP) to the UNCAC to establish

and improve the capacity of, and co-operation between States parties, with a view to achieving the

objectives of UNCAC, promoting and reviewing its implementation.

On its 3rd session, the CoSP established through its Resolution 3/116

a review mechanism to UNCAC.

The Implementation Review Group (IRG) was tasked with conducting the review during the first

cycle (2011-2015) of Chapters III (criminalisation and law enforcement) and IV (international co-

operation) UNCAC. The second cycle (2016-2020) would be responsible for reviewing chapters II

(preventive measures) and V (asset recovery) UNCAC.

For this policy paper, the executive summaries17

and country review reports18

which have been made

public have been reviewed to assess the implementation of the national legislation of EU28 Member

States to the mandatory provisions of UNCAC.

16 CAC/CoSP Res. 3/1, Review mechanism, UN Doc. CAC/COSP/2009/15 (1 December 2009). 17 The executive summaries are prima facie not public, as para. 36 of the Terms of reference of the Mechanism for the

Review of Implementation of the United Nations Convention against Corruption informs that the executive


25

3.2 Council of Europe

The Council of Europe (CoE) is Europe’s oldest political organisation, founded in 1949. All EU28

Member States are also Member States to the CoE.

Its aim is to “achieve a greater unity between its members for the purpose of safeguarding and

realising the ideals and principles which are their common heritage and facilitating their economic

and social progress” (art. 1(a) ETS 1). This aim is pursued through “discussion of questions of

common concern and by agreements and common action in economic, social, cultural, scientific,

legal and administrative matters and in the maintenance and further realisation of human rights and

fundamental freedoms” (art. 1(b) ETS 119

). The CoE is particularly focused on promoting human

rights, democracy and the rule of law in Europe.

The CoE has established several international instruments for the prevention and the combating of

corruption which are of interest to the this policy paper. These are:

The European Convention on Mutual Assistance in Criminal Matters and its additional protocols

(ETS 3020

, 9921

and 18222

);

The European Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from

Crime (ETS 14123

);

The European Criminal Law Convention on Corruption (ETS 17324

) and its additional protocol

(ETS 19125

);

The European Civil Law Convention on Corruption (ETS 17426

);

The CoE Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from

Crime and on the Financing of Terrorism (CETS 19827

).

summaries are made available to the IRG for information purposes only. Notwithstanding, para. 38 of the Terms of

Reference encourages states to publish the executive summaries. 18 Country review reports are confidential, in accordance with para. 37 of the Terms of Reference. Notwithstanding,

para. 38 of the Terms of Reference encourages states to publish the country review reports. 19 Statute of the Council of Europe, 05 May 1949, in force 03 August 1949, ETS 1. 20 European Convention on Mutual Assistance in Criminal Matters, 20 April 1959, in force 12 June 1962, ETS 30. 21 Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters, 13 March 1978, in force

12 April 1982, ETS 99. 22 Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters, 8 November

2001, in force 1 February 2004, ETS 182. 23 Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, 8 November 1992, in force

1 May 1997, ETS 141. 24 Criminal Law Convention on Corruption, 27 January 1999, in force 1 July 2002, ETS 173. 25 Additional Protocol to the Criminal Law Convention on Corruption, 15 March 2003, in force 1 February 2005, ETS 191 26 Civil Law Convention on Corruption, Strasbourg, 4 November 1999, in force 1 November 2003, ETS 174 27 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on

the Financing of Terrorism, 16 May 2005, in force 01 May 2008, CETS 198.


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3.2.1 Conventions

3.2.1.1 European Convention on Mutual Assistance in Criminal Matters and its additional protocols

ETS 30 is the oldest international convention that provides for MLA. It sets minimum standards for

the co-operation of its members in the examination of witnesses or experts, service of official

documents and judicial verdicts, summoning of witnesses, experts or persons in custody, and

transmission of information from judicial records. All EU28 Member States have ratified ETS 30.

ETS 30 was complemented by its first additional protocol (ETS 99), which extended the material and

procedural scope of ETS 30. States are required not to refuse assistance if it is solely on the grounds

of a fiscal offence (art. 1 ETS 99). The first additional protocol additionally limits the scope of

refusal of assistance limiting the scope of dual criminality requirements. Finally, it widens the scope

of assistance which can be provided, including the execution of requests which contain coercive

measures (art. 3 ETS 99). All EU28 member states have ratified ETS 99.

Finally, the second additional protocol to ETS 30 (ETS 182). It seeks to modernise the provisions of

MLA between members, extending the range of circumstances under which assistance may be sought

(CoE 2001, para. 7). While ETS 182 retains the possibility of transmission of requests for MLA via

central authorities (art. 4 ETS 182, amending art. 15(2) to ETS 30), it also introduces the possibility

of direct transmission of requests for MLA between judicial authorities (art. 4 ETS 182, amending

art. 15(3) to ETS 30).

3.2.1.2 Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and

Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime

and on the Financing of Terrorism

The purpose for the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds

from Crime (ETS 141) is twofold: (i) to facilitate international co-operation concerning search,

seizure and confiscation from all types of criminality (, 1990, para. 8); and (ii) to complement

existing instruments from the CoE, particularly ETS 30, which did not encompass the search and

seizure of property with a view to its confiscation (NO CITED PAGES FOR REPEATED

CITATION, para. 9).

On the other hand, the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds

from Crime and on the Financing of Terrorism (ETS 198) sought to close the gap on several matters

which had not been addressed by ETS 141, such as measures related to the prevention of money

laundering (, 2005, para. 20) and the combating of financing of terrorism (NO CITED PAGES FOR

REPEATED CITATION, para. 23).

3.2.1.3 Criminal Law Convention on Corruption and its additional protocol

The European Criminal Law Convention on Corruption (ETS 173) of CoE seeks to pursue a common

criminal policy against corruption among its contracting states through the adoption of adequate

legislation to enhance the criminalisation of many corrupt practices and to provide mechanisms for


27

international co-operation in criminal matters. All EU28 Member States except Germany have

ratified ETS 173.

In turn, the Additional Protocol to the Criminal Law Convention on Corruption (ETS 191) extends

the criminalisation of active and passive bribery to national and foreign arbitrators in civil,

commercial and other matters. All EU28 Member States except Czech Republic, Estonia, Germany

and Italy have ratified ETS 191.

ETS 173 applies to the public and private sectors, as well as in transnational cases involving bribery

of foreign public officials, members of foreign public assemblies, officials of international

organisations, and judges and officials of international courts (Webb 2005, 199).

The range of offences criminalised under the Criminal Law Convention and which are of interest to

the present policy paper are the following:

Active and passive bribery of national public officials (art. 2-4 ETS 173), foreign public officials

(art. 5-6 ETS 173) and officials of international organisations (art. 9-10 ETS 173);

Trading in influence (art. 12 ETS 173);

Money laundering (art. 13 ETS 173).

ETS 173 further contains provisions on the liability of legal persons (art. 18 ETS 173) and on MLA

(art. 26 ETS 173).

The elements of the offence for active and passive bribery, trading in influence and money

laundering are identical to the one contained in UNCAC. The notable difference between the

provisions of ETS 173 and UNCAC refer to the enumeration of public officials done through

different articles in ETS 173 (e.g., bribery of public officials, bribery of members of domestic public

assemblies) (CoE 1999c, para. 33), and the reference to ETS 141 when indicating that the corruption-

related offences should be considered predicate offences to money laundering. This report therefore

refers to the description of the elements of the offence which is contained in the respective

subsections above.

The provisions for liability of legal persons in ETS 173 are similar to those in UNCAC and the

OECD Anti-Bribery Convention. ETS 173 does not stipulate the type of liability required for legal

persons (, 1999b, para. 86). Similarly to UNCAC and the OECD Anti-Bribery convention, requires

that legal persons be held liable criminally, civilly or administratively. Criminal and non-criminal

sanctions are suitable, insofar as they are effective, proportionate and dissuasive (art. 19(2) ETS

173).

Liability of legal persons under ETS 173 needs to meet three conditions: (i) the legal person has

committed one of the offences established under ETS 173; (ii) the offence has been committed for

the benefit or on behalf of the legal person; and (iii) has the involvement of "any person who has a

leading position, based on a power of representation of the legal person; an authority to take

decisions on behalf of the legal person; or an authority to exercise control within the legal person”

(NO CITED PAGES FOR REPEATED CITATION, para. 86). UNCAC and the OECD Anti-Bribery


28

Convention, on the other hand do not have the requirement of involvement of a person who has a

leading position in the legal person. Therefore, the scope of liability of legal persons is more

restrictive in ETS 173, when compared with UNCAC and the OECD Anti-Bribery Convention.

Similar to the OECD Anti-Bribery Convention and art. 43 UNCAC, ETS 173 has a general provision

for states to afford one another the widest range of MLA. It does not contain detailed standards on

MLA due to the fact that this matter has been extensively regulated by the CoE through ETS 30, 99

and 182 (see above).

3.2.1.4 Civil Law Convention on Corruption

The Civil Law Convention on Corruption (ETS 174) provides the possibility of tackling corruption

utilising civil law remedies (, 1999a, para. 11 and 16). It defines common international rules for civil

litigation and corruption. Member States are required to, “provide effective remedies for persons who

have suffered damage as a result of acts of corruption, to enable them to defend their rights and

interests, including the possibility of obtaining compensation for damage” (art. 1 ETS 174). ETS

therefore requires its members to have in their domestic legislation effective solutions for persons

damaged by corruption to defend their rights and interests (Fard and Hassanpour 2016, 56).

All EU28 Member States except Denmark, Germany, Ireland, Luxembourg, Portugal, and the the UK

have ratified ETS 174.

ETS 174 has a much narrower scope than ETS 173, as its art. 2 defines corruption as active and

passive bribery. Liability under ETS 174 requires three conditions (art. 4 ETS 174): (i) the defendant

has committed or authorised the act of corruption or failed to take reasonable steps to prevent

corruption; (ii) the plaintiff has suffered a damage resulting from the act of corruption; and (iii) there

is a causal link between the act of corruption and the damage suffered.

The compensation for damages incurred (art. 3 ETS 174) must not be limited to a standard payment;

it must be determined based on the loss sustained in a particular case (CoE 1999a, para. 36). The

compensation should cover material loss, loss of profit and other non-pecuniary loss.

3.2.2 Review mechanisms

3.2.2.1 GRECO

The Committee of Ministers for the CoE Twenty Guiding Principles for the Fight Against

Corruption28

instructed it to establish an appropriate monitoring mechanism to monitor the

implementation of the international instruments which were to be adopted. The Group of States

against Corruption (GRECO) was established in 199929

and has as members all EU28 member states.

28 Res. (97)24, on the Twenty Guiding Principles for the Fight against Corruption, adopted by the CoE Committee of

Ministers on 6 November 1997. 29 Res. (99)5, establishing the "Group of States against Corruption – GRECO”, adopted by the CoE Committee of

Ministers on 1 May 1999.


29

GRECO has the mandate to monitor anti-corruption instruments of the CoE, which include ETS 173,

ETS 174 and ETS 191.

GRECO is responsible for enhancing the capacity of its members to fight corruption, monitoring

their compliance with the Council of Europe anti-corruption standards (Rau 2011, 19). The GRECO

evaluation procedure comprises both an evaluation procedure of all its members, and assessment of

the implementation measures, resulting in recommendations (19-20). Different from the other review

mechanisms found in UNCAC and the OECD Anti-Bribery Convention, GRECO evaluates its

members through thematic rounds:

The first evaluation round (2000-2002) dealt with the independence, specialisation and means of

national bodies engaged in the prevention and fight against corruption;

The second evaluation round (2003-2006) focused on the identification, seizure and confiscation

of proceeds of crime, the prevention and detection of corruption in public administration and the

prevention of legal persons from being used to shield corruption.

The third evaluation round (2007-2014) addressed the criminal offences contained in ETS 173, as

well as transparency of political party funding.

The fourth evaluation round (initiated in 2012) focuses on the prevention of corruption in respect

of members of parliament, judges and prosecutors.

The fifth evaluation round, to be launched in March 2017, will focus on preventing corruption

and promoting integrity in central governments (top executive functions) and law enforcement

agencies.

This policy paper will focus on the outcomes derived from the applicable outcomes of the mutual

evaluations contained in the second and third evaluation rounds.

3.2.2.2 MONEYVAL

The Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing

of Terrorism (MONEYVAL) is a monitoring body from the CoE tasked with assessing compliance

with the principal international standards to counter money laundering and the financing of terrorism

and the effectiveness of their implementation. MONEYVAL was established in 1997 and has 13 of

the 28 EU Member States as members.

As a FATF-style regional body (FSRB), it adheres to the methodology for mutual evaluation of its

members utilising the FATF methodology.

3.3 European Union

The EU has regulated anti-corruption through different international instruments which are narrowly

confined to acts which are harmful to the economic interests of the EU.


30

3.3.1 Convention on Protection of the European Communities’ Financial Interests, Protocol to the

Convention on the Protection of the European Communities’ Financial Interests and Second Protocol

to the Convention on the Protection of the European Communities’ Financial Interests

The 1995 Convention on the Protection of the European Communities’ Financial Interests30

(Protection Convention) and its two Protocols – the 1996 Protocol to the Convention on the

protection of the European Communities' financial interests31

(1996 Protocol) and the 1997 Second

Protocol of the Convention on the protection of the European Communities' financial interests32

(1997 Second Protocol) – aim to combat fraud affecting expenditure and revenue on the European

Union’s financial interests using criminal law.

While the Convention itself deals with combating fraud affecting expenditure and revenue of the

EU’s financial interests using criminal law, the 1996 Protocol deals with active and passive bribery

in relation to the EU’s financial interests. Its 1997 Second Protocol deals with liability of legal

persons and money laundering in relation to the EU’s financial interests.

The definition of active and passive bribery contained in the 1996 Protocol is approximate to the

definition contained in art. 15(a) UNCAC. It differentiates from UNCAC in the sense that it does not

contain the action of “offering”. Differently from the UNCAC however, the 1996 Protocol

establishes that the purpose of active corruption is for the official33

“to act or refrain from acting in

accordance with his duty or in the exercise of his functions in breach of his official duties in a way

which damages or is likely to damage the European Communities’ financial interests” (art. 3(1) 1996

Protocol). Unlike both the UNCAC and ETS 173, there is a specific mention in the 1996 Protocol

that the official with either act in accordance with his or her duty, or in breach of it. While this does

not impact on the outcome, this need to define active corruption to include either acting in

accordance or in breach of the officials duty has generated some confusion in Member States which

feel they need to address (and provide different sanctions) these two conditions as separate active

bribery offences in their national legislation.

The definition of passive bribery contained in art. 2 1996 Protocol is similar to those contained in

UNCAC and ETS 173. However, the comment above in relation to the definition that the official

either act in accordance with his or her duty, or in breach of it may lead to confusion in its

implementation at the national level.

30 Council Act (EC) No. 95/C 316/03 of 26 July 1995 drawing up the Convention on the Protection of the European

Communities' Financial Interests (OJ C 316, 27.11.1995, pp. 48-57) 31 Council Act (EC) No. 96/C 313/01 drawing up a Protocol to the Convention on the protection of the European

Communities' financial interests (OJ C 313, 23.10.1996, pp. 1–10). 32 Council Act (EC) No. 97/C 221/02 drawing up the Second Protocol of the Convention on the protection of the

European Communities' financial interests (OJ C 221, 19.7.1997, p. 11–22) 33 Official is defined in the 1996 Protocol as either:

Any person who is an official or other contracted employee within the meaning of the Staff Regulations of

officials of the European Communities or the Conditions of employment of other servants of the European

Communities; or

Any person seconded to the European Communities by the Member States or by any public or private

body, who carries out functions equivalent to those performed by European Community officials or other

servants.


31

The definition legal persons34

in the 1997 Second Protocol excludes states and other public bodies in

the exercise of state authority and for public international organisations. This is an important

exclusion which is not contained in any other anti-corruption convention. The definition of liability

of legal persons in the 1997 is identical to the one contain in ETS 173. Thus, the comments made to

ETS are applicable to the 1997 Second Protocol.

3.3.2 Convention on the Fight against Corruption involving Officials of the European Communities

or Officials of Member States of the European Union

The Convention on the Fight Against Corruption involving Officials of the European Communities

or Officials of Member States of the EU35

(EU Anti-Corruption Treaty).

The scope of application of the EU Anti-Corruption Treaty is narrower than the Protection

Convention and its additional Protocols, as it deals only with the conduct of active and passive

bribery of officials, but does not address fraud or money laundering (Webb 2005, 201; Fard and

Hassanpour 2016, 51). The definition of officials covers both EU officials and Member States

officials.

The definition of active and passive bribery under the EU Anti-Corruption Treaty is identical to that

of the Protection Convention, and thus the same comments apply. Notwithstanding, art. 6 EU Anti-

Corruption Treaty includes a provision to ensure the criminal liability of heads of businesses or any

persons having power to take decisions or exercise control within a business. This definition is

narrower than the criminal liability which is to be ensured under both the UNCAC and the OECD

Anti-Bribery Convention. The latter two conventions do not make such a distinction between regular

staff and staff which exercises any type of control within a business. As a result, this has led to

confusion at the national level of EU28 member states in the implementation of these conventions

vis-à-vis the EU Anti-Corruption Treaty.

3.4 OECD

3.4.1 Convention on Combating Bribery of Foreign Public Officials in International Business

Transactions

The OECD Convention on Combating Bribery of Foreign Public Officials in International Business

Transactions36

(OECD Anti-Bribery Convention) entered into force in 1999 and addresses solely the

bribery of foreign public officials in international business transactions. It is the most specialised

treaty as it only covers the liability of the persons who offer undue advantage to foreign public

34 Art. 1(d) 'legal person' shall mean any entity having such status under the applicable national law, except for States

or other public bodies in the exercise of State authority and for public international organisations 35 Council Act (EC) No. 97/C 195/01 drawing up, on the basis of Article K.3 (2) (c) of the Treaty on European Union, the

Convention on the fight against corruption involving officials of the European Communities or officials of Member

States of the European Union (OJ C 195, 25.6.1997, pp. 1–11). 36 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and Related Documents.

OECD Document DAFFE/IME/BR(97)20, p. 12


32

officials (active bribery) but not foreign public officials who solicit or receive an undue advantage

(passive bribery).

The elements of the offence of active bribery of a (national) public official are defined under art.

15(a) UNCAC:

According to paragraph 5 of the commentaries to the OECD Anti-Bribery Convention, “Other

improper advantage” refers to something to which the company concerned was not clearly entitled,

for example, an operating permit for a factory which fails to meet the statutory requirements (OECD

2011, para 5).

The elements of the offence of bribery of foreign public official are defined under art. 1 OECD Anti-

Bribery Convention:

Definition Article 1

1. Each Party shall take such measures as may be necessary to establish that it is a

criminal offence under its law for any person intentionally to offer, promise or

give any undue pecuniary or other advantage, whether directly or through

intermediaries, to a foreign public official, for that official or for a third party, in

order that the official act or refrain from acting in relation to the performance of

official duties, in order to obtain or retain business or other improper advantage in

the conduct of international business.

2. Each Party shall take any measures necessary to establish that complicity in,

including incitement, aiding and abetting, or authorisation of an act of bribery of a

foreign public official shall be a criminal offence. Attempt and conspiracy to bribe

a foreign public official shall be criminal offences to the same extent as attempt

and conspiracy to bribe a public official of that Party.

3. The offences set out in paragraphs 1 and 2 above are hereinafter referred to as

“bribery of a foreign public official”.

4. For the purpose of this Convention:

a) “foreign public official” means any person holding a legislative, administrative

or judicial office of a foreign country, whether appointed or elected; any person

exercising a public function for a foreign country, including for a public agency or

public enterprise; and any official or agent of a public international organisation;

b) “foreign country” includes all levels and subdivisions of government, from

national to local;

c) “act or refrain from acting in relation to the performance of official duties”

includes any use of the public official’s position, whether or not within the

official’s authorised competence.

Subject Any natural or legal person

Conduct To promise;

To offer;

To give.


33

Object Undue pecuniary or other advantage, directly or through intermediaries to a

foreign public official

Purpose To act or refrain from acting in relation to the performance of official duties, in

order to obtain or retain business or other improper advantage in the conduct of


Elements of the offence for art. 1 OECD Anti-Bribery Convention (bribery of foreign public officials).

The definition of bribery of foreign public officials under art. 1(1) OECD Anti-Bribery Convention

requires States Parties to criminalise three actions: promising, offering or giving any pecuniary or

other advantage to a foreign public official37

.

The offence of bribery of foreign public officials criminalises the conduct of any person that has the

intention to promise, offer or give an undue pecuniary or other advantage to the foreign public

official or a third party (whether natural or legal). The promising, offering or giving of an undue

advantage to a foreign public official may be done either directly or indirectly. The undue advantage

which is promised, offered or given to a foreign public official may benefit either the public official

himself or herself or a third person (whether natural or legal).

The offence of bribery of foreign public officials is committed regardless of the success of the

transaction. The purpose of the undue advantage is to persuade the foreign public official to act or

refrain from acting in relation to the performance of official duties, in order to obtain or retain

business or other improper advantage in the conduct of international business. Art. 1(4)(c) OECD

Anti-Bribery Convention does not require that the commission or omission of the act by the public

official be carried out in the performance of his duties (or contrary to them).

It does not matter whether an undue advantage was in fact given, or if the transaction occurred. There

is no need to be an agreement between the person offering or giving of an undue advantage and the

public official. Furthermore, the criminal conduct does not require that the foreign public official or

official of public international organisations to accept or be aware of the undue advantage.

Art. 2 OECD Anti-Bribery Convention further requires States Parties to establish the liability of legal

persons for the offence of bribery of a foreign public official. This liability need not be criminal and

can be either civil or administrative; however, the sanction afforded to the legal person must be

effective, proportionate and dissuasive, comparable to that applicable to the bribery of national public

officials of the State Party (art. 3(1) OECD Anti-Bribery Convention).

Finally, the OECD Anti-Bribery Convention also contains general rules on MLA, whereby States

Parties should afford one another the widest range of assistance (art. 9(1)), and that dual criminality

requirements will be deemed to have been met when assistance is sought within the scope of the

OECD Anti-Bribery Convention (art. 9(2)).

37 Art. 1(4)(a) OECD Anti-Bribery Convention defines foreign public official as any person holding a legislative,

administrative or judicial office of a foreign country, whether appointed or elected; any person exercising a public

function for a foreign country, including for a public agency or public enterprise; and any official or agent of a public

international organisation.


34

3.5 FATF

The Financial Action Task Force (FATF) is a policy-making intergovernmental body responsible for

setting standards and promoting effective implementation of legal, regulatory and operational

measures for, among other issues, preventing and combating money laundering.38

FATF is the

international standard setter for combating money laundering, forming the basis for a co-ordinated

response to money laundering, ensuring the integrity of national and the international financial

systems. The FATF published its 40 recommendations to combat money laundering in 1990, then

revised in 2003 to include special recommendations to prevent and combat the financing of terrorism.

The latest revision to the FATF recommendations occurred in 2012, ensuring these recommendations

remain up-to-date and relevant.

At the structural level, FATF is comprised of 36 country members and 8 associate members.39

These

associate members are the FATF Regional Style Bodies (FRSBs), which include MONEYVAL. Out

of the EU28 member states, 15 are FATF country members and 13 and members of MONEYVAL.

While FATF does not directly set standards in the prevention and combatting of corruption,

it is nevertheless important to review given its role of evaluating country members directly

(and other countries indirectly through the FSRBs) regarding their compliance with money

laundering standards.

For the purposes of the present paper, Recommendations 3 (money laundering offence) and

37 (mutual legal assistance) will be of particular interest.

38 http://www.fatf-gafi.org/pages/aboutus/ 39 The list of the 36 members and 8 associate members of FATF can be found at: http://www.fatf-

gafi.org/pages/aboutus/membersandobservers/

http://www.fatf-gafi.org/pages/aboutus/

http://www.fatf-gafi.org/pages/aboutus/membersandobservers/

http://www.fatf-gafi.org/pages/aboutus/membersandobservers/


35

4 National legislation overview

For the purposes of the present section, focus is given to the compliance of national legislation to the

text of a regulation or treaty. Focus will be given to the following offences:

Active and passive Bribery (national, foreign and international public officials)

Trading in influence

Embezzlement, misappropriation or other diversion of property

Obstruction of Justice

Concealment

Abuse of functions

Money laundering

Conflict of interest

Liability of legal persons (criminal, civil or administrative)

Mutual legal assistance

One the compliance of national legislation with the international standards has been carried out,

attention will be given to the implementation of the anti-corruption provisions, focusing on the

enforcement of the anti-corruption rules locally.

4.1 Romania

4.1.1 Summary

The provisions for bribery of public officials in the Criminal Code of Romania, not

distinguishing between a bribe and an undue advantage, enable the bribe giver to enjoy immunity

from prosecution if he informs the authorities before an investigation commences;

Bribery of officials of public international organisations only occur where Romania is party to

the international organisation.

4.1.2 Instruments acceded

Treaties ratified by Romania are part of the domestic law and can be applied directly. The following

treaties, relevant to the present policy paper, have been ratified by Romania:

The United Nations Convention against Transnational Organised Crime (UNTOC), ratified on 4

December 2002;

The United Nations Convention Against Corruption (UNCAC), ratified on 2 November 2004;

European Convention on Mutual Assistance in Criminal Matters (ETS 30), ratified on 17 March

1999;


36

Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters (ETS

99), ratified on 17 March 1999;

Second Additional Protocol to the European Convention on Mutual Assistance in Criminal

Matters (ETS 182), ratified on 29 November 2004;

The Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime

(ETS 141), ratified on 06 August 2002;


Crime and on the Financing of Terrorism (CETS 198), ratified on 21 February 2007;

Criminal Law Convention on Corruption (ETS 173), ratified on 11 July 2002;

Additional Protocol to the Criminal Law Convention on Corruption (ETS 191), ratified on 29

November 2004;

Civil Law Convention on Corruption (ETS 174), ratified on 23 April 2002;

Romania has not ratified the following international instruments:

OECD Anti-Bribery Convention.

Moreover, Romania is a member of the EU and the Council of Europe’s GRECO and MONEYVAL.

4.1.3 Compliance and implementation

Prior to reviewing the elements of the offence for the corruption-related offences, one must first

establish the definition of the following basic concepts: “public official”; “foreign public official”,

“officials of public international organisations” and “undue advantage”.

The definition of national public officials is contained in art. 175 Criminal Code of Romania. The

definition complies with the international standards:

Art. 175 – Public servant

(1) For the purposes of criminal law, public servant is the person who, on a permanent or temporary

basis, with or without remuneration:

a) shall exercise the duties and responsibilities, set under the law, to implement the prerogatives of the

legislative, executive or judiciary branches;

b) shall exercise a function of public dignity or a public office irrespective of its nature;

c) shall exercise, alone or jointly with other persons, within a public utility company, or another

economic operator or a legal entity owned by the state alone or whose majority shareholder the state is,

responsibilities needed to carry out the activity of the entity.

(2) At the same time, for the purposes of criminal law, the following shall be deemed a public servant:

the person who supplies a public-interest service, which they have been vested with by the public

authorities or who shall be subject to the latter’s control or supervision with respect to carrying out

such public service.


37

The definition of foreign public officials and of officials of public international organisations is

contained in art. 81 Law No. 78/2000. The definition also complies with the international

instruments:

Art. 81

The provisions of art. 254-257 of the Criminal Code40

(taking bribe, giving bribe, receiving of undue

advantages, trading in influence) and of art. 61 (buying of influence) and 8

2 (bribing a foreign or

international official within international economic operations) of the current law, shall be applied

accordingly to the following persons too:

a) officials or persons who carry out their activity based on a labour contract or other persons who

have similar attributions within an international public organization to which Romania is a party

b) members of parliamentary assemblies of the international organizations to which Romania is a

party;

c) officials or persons who carry out their activity based on a labour contract or other persons who

have similar attributions within the European Communities;

d) persons with judicial positions within the international courts which have their competence accepted

by Romania, as well as clerks working for such courts;

e) officials of a foreign state;

f) members of parliamentary or administrative assemblies of a foreign state.

The Criminal Code of Romania and Law No. 78/2000 do not have a definition for undue advantage.

However, Romania has informed that the expression used in the Criminal Code and in Law No.

78/2000, “money or other advantage,” refers to both material and non-material advantages, which

includes a moral or material gain, an advantage or a profit (GRECO 2010, para. 21).

4.1.3.1 Bribery of public officials

4.1.3.1.1 Active bribery of (national) public officials

The elements of the offence of active bribery of (national) public officials are defined under art. 290

Criminal Code of Romania:

Definition Art. 290 – Giving a bribe

(1) The promise, the giving or the offering of money or other benefits in the

conditions provided under Article 289 shall be punishable by no less than 2 and no

more than 7 years of imprisonment.

40 The provisions referred to in art. 81 Law 78/2000 refer to the 1968 Criminal Code of Romania, which has been

superseded by the 2009 Criminal Code. The articles for the offences mentioned in art. 81 are: art. 289 (taking a bribe);

art. 290 (giving a bribe); and art. 291 and 292 (trading in influence).


38

(2) The action provided under par. (1) shall not constitute an offence when the

bribe giver was constrained by any means by the bribe taker.

(3) The bribe giver shall not be punishable if they report the action prior to the

criminal investigation bodies be notified thereupon.

(4) The money, valuables or any other assets given shall be given back to the

person who gave them in the case provided under para. (2) or given following the

denunciation provided under para. (3).

(5) The money, valuables or any other benefits offered or given shall be subject to

forfeiture, and when such cannot be located anymore, the forfeiture of the

equivalent shall be ordered.

Subject Any person, whether natural or legal

Conduct To promise;

To offer;

To give.

Object Money or other benefits.

Purpose In exchange for performing, not performing, speeding up or delaying the

performance of an action which falls under purview of the professional duties of

the public servant or with respect to the performance of an action contrary to the

professional duties of the public servant.

Sanction No less than 2 and no more than 7 years of imprisonment.

Elements of the offence for art. 290 Criminal Code of Romania (active bribery of national public officials).

The definition contained in art. 290 Criminal Code of Romania largely complies with international

instruments. The active and passive bribery offences under Romanian law are prosecuted separately

and do not depend on whether or not the public official has reacted to the attempt to offer, promise or

give money or other benefits to him (GRECO 2010, para. 18).

4.1.3.1.2 Passive bribery of (national) public officials

The elements of the offence of passive bribery of (national) public officials are defined under art. 289


Definition Art. 289 – Taking a bribe

(1) The action of the public servant who, directly or indirectly, for themselves or

on behalf of others, solicits or receives money or other undue benefits or accepts a

promise of money or benefits, in exchange for performing, not performing,

speeding up or delaying the performance of an action which falls under purview of

their professional duties or with respect to the performance of an action contrary to

their professional duties, constitutes a violation of the law and shall be punishable

by no less that 3 and no more than 10 years of imprisonment and the ban from


39

exercising the right to hold a public office or to exercise the profession or the

activity in relation to which they committed the violation.

(2) The action provided under para. (1), committed by one of the persons provided

under Article 175 par. (2), shall constitute a criminal offence only when committed

in relation with the performance or delaying the performance of an action related

to their legal duties or related to the performance of an action contrary to such

duties.

(3) The money, valuables or any other benefits received shall be subject to

forfeiture , and when such can no longer be located, the forfeiture of the equivalent

shall be ordered.

Subject A public servant, directly or indirectly, for himself or herself or on behalf of

others.

Conduct To solicit;

To receive;

To accept.

Object Money or other undue benefits

Purpose In exchange for performing, not performing, speeding up or delaying the

performance of an action which falls under purview of the professional duties of

the public servant or with respect to the performance of an action contrary to the

professional duties of the public servant.

Sanction No less that 3 and no more than 10 years of imprisonment and 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.

Elements for the offence under asset art. 289 Criminal Code of Romania (passive bribery of a national public official).

The definition contained in art. 289 Criminal Code of Romania complies with international

instruments and not apparent implementation gaps exist. However, the provisions for bribery of

public officials in the Criminal Code of Romania do not distinguish between taking a bribe and

receiving an undue advantage. In those instances where the person offering the bribe informs the

authorities before the investigation bodies know of the offence, he will enjoy immunity from

prosecution, and will have the bribe returned.

4.1.3.1.3 Bribery of foreign public officials and officials of public international organisations

Romania has chosen to define foreign public officials and officials of public international

organisations in art. 81 Law No. 78/2000, which in turn refers to the applicable provisions under the

Criminal Code of Romania. Therefore, the element of the offence under Romanian legislation does

not require that the undue advantage be given for the purposes of obtaining or retaining business or

other undue advantage in relation to the conduct of international business


40

Therefore, Romania legislation complies with the international instruments it has ratified. There is

however an implementation gap due to the fact that bribery of officials of public international

organisations is limited to those belonging to international organizations and international courts to

which Romania is a party.

4.1.3.2 Embezzlement, misappropriation or other diversion of property by a public official


defined under art. 295 Criminal Code of Romania:

Definition Art. 295 – Embezzlement

(1) Acceptance, use or traffic of money, valuables or any other assets managed or

administrated by a public servant, on their or on another person’s behalf, shall be

punishable by no less than 2 and no more than 7 years of imprisonment and the

ban from exercising the right of holding public office.

(2) The attempt thereof shall be punishable.

Subject A public official by himself or herself, or through another person

Conduct • To accept;

• To use.

Object Any undue advantage whether of economic nature or not, or its promise.

Purpose Money, valuables or any other assets managed or administrated by a public

servant, on their or on another person’s behalf.

Sanction No less than 2 and no more than 7 years of imprisonment and the ban from

exercising the right of holding public office.

Elements of the offence for art. 295 Criminal Code of Romania.

The Criminal Code sanctions the misappropriation, use or traffic, by an official (directly or indirect),

in his interest or of a third party, of money, values or assets managed or administered by the public

official. The intentional or reckless damage caused by a person called upon to manage or preserve the

assets of an institution to such property is also sanctioned. Diversion of funds or resources, if a public

authority, institution or other legal person suffered damage, is also punished. The new Criminal Code

clarifies the distinction between the first two offences, limiting the applicability of “embezzlement”

to the acts committed by a public official (and not by an employee of any legal person) (UNODC

2013a, 3).


41

4.1.3.3 Trading in influence

4.1.3.3.1 Active trading in influence

The elements of the offence of active trading in influence are defined under art. 292 Criminal Code

of Romania:

Definition Art. 292 – Buying influence

(1) The promise, the supply or the giving of money or other benefits, for oneself or

for another, directly or indirectly, to a person who has influence or who alleges

they have influence over a public servant to persuade the latter perform, fail to

perform, speed up or delay the performance of an act that falls under the latter’s

professional duties or to perform an act contrary to such duties, shall be punishable

by no less than 2 and no more than 7 years of imprisonment and the prohibition to

exercise certain rights.

(2) The perpetrator shall not be punishable if they report the action prior to the

criminal investigation bodies be notified thereupon.

(3) The money, valuables or any other assets shall be given back to the person who

gave them if they were given following the denunciation provided under para. (2).

(4) The money, valuables or any other benefits given or supplied shall be subject

to forfeiture, and when such cannot be located anymore, the forfeiture of the

equivalent shall be ordered.

Subject Any person, whether natural or legal (?), directly or indirectly.

Conduct • To promise;

• To supply;

• To give.


Purpose To a person who has influence or who alleges they have influence over a public

servant, to persuade the public servant to perform, fail to perform, speed up or

delay the performance of an act that falls under his or her professional duties or to

perform an act contrary to such duties.

Sanction No less than 2 and no more than 7 years of imprisonment and the prohibition to

exercise certain rights.


42


4.1.3.3.2 Passive trading in influence

The elements of the offence of passive trading in influence are defined under art. 291 Criminal Code

of Romania:

Definition Art. 291 – Influence peddling

(1) Soliciting, receiving or accepting the promise of money or other benefits,

directly or indirectly, for oneself or for another, committed by a person who has

influence or who alleges that they have influence over a public servant and who

promises they will persuade the latter perform, fail to perform, speed up or delay

the performance of an act that falls under the latter’s professional duties or to

perform an act contrary to such duties, shall be punishable by no less than 2 and no

more than 7 years of imprisonment.

(2) The money, valuables or any other assets received shall be subject to forfeiture

and when such cannot be located anymore, the forfeiture of the equivalent shall be

ordered.

Subject Any person, whether natural or legal (?), who has influence or alleges that they

have influence over a public servant.

Conduct • To solicit;

• To receive;

• To accept.


Purpose To persuade the public servant to perform, fail to perform, speed up or delay the

performance of an act that falls under the professional duties of the public servant

or to perform an act contrary to such duties.

Sanction No less than 2 and no more than 7 years of imprisonment


4.1.3.4 Money laundering

The elements of the offence of money laundering are defined under art. 29, Law 656/2002:


43

Definition Art. 29

(1) The following deeds represent offence of money laundering and it is punished

with prison from 3 to 12 years:

a) the conversion or transfer of property, knowing that such property is derived

from criminal activity, for the purpose of concealing or disguising the illicit origin

of property or of assisting any person who is involved in the committing of such

activity to evade the prosecution, trial and punishment execution;

b) the concealment or disguise of the true nature, source, location, disposition,

movement, rights with respect to, or ownership of property, knowing that such

property is derived from criminal activity;

c) the acquisition, possession or use of property, knowing, that such property is

derived from any criminal activity;

(2) The attempt is punished.

(3) If the deed was committed by a legal person, in addition to the fine penalty, the

court shall apply, as appropriate, one or more of complementary penalties

provided for in article 53 1 , para (3) let. (a) –(c) of the Penal Code.

(4) Knowledge, intent or purpose required as an element of the activities

mentioned in paragraphs (1) may be inferred from objective factual circumstances.

Subject Any person, whether natural or legal.

Conduct • To convert;

• To transfer;

• To conceal;

• To disguise;

• To acquire;

• To possess;

• To use.

Object Property derived from criminal activity

Purpose To conceal the illicit origin of the proceeds of crime.


44

Sanction Imprisonment from 3 to 12 years.

Elements of the offence for art. 29, Law No. 656/2002 (money laundering)..

The Law No. 656/2002 makes it a crime for any person, being aware of its illicit origin, to convert or

transfer property for the purpose of concealing or disguising the illicit origin or of assisting any

person who is involved to avoid prosecution. Similarly, the acquisition, possession, use, concealment

or disguise of the true nature, source, location, or ownership of rights with respect to property,

knowing it is derived from a criminal activity, is an offence. Any offence can be considered as a

predicate offence to money-laundering. The jurisprudence considers money-laundering as a stand-

alone offence. The perpetrator of the predicate offence can also be subject to money-laundering

charges. Intent and knowledge can be inferred from factual circumstances. The receipt, acquisition,

or transformation of a good, or the facilitation of its use, while being aware of its illicit origin, is

sanctioned by the Criminal Code, as long as the purpose was to obtain, directly or for somebody else,

a material advantage (GRECO 2010, 3). While the offence of money laundering is subordinate to a

predicate offence, the Romanian authorities clarified that sentencing of the predicate offence is not

required (MONEYVAL 2014, para. 143).

4.1.3.5 Obstruction of justice

The elements of the offence of obstruction of justice are defined under art. 271, 272 and 273


Definition Art. 271 – Obstruction of justice

(1) The individual who, being warned of the consequences of their actions:

a) unlawfully prevents the criminal prosecution body or the court to conduct a

procedural act as under the law;

b) refuses to provide the criminal prosecution body, the court or the bankruptcy

judge, in whole or in part, any data, information, documents or assets they hold

and which have been explicitly requested, under the law, in order to settle a case,

shall be punishable by no less than 3 months and no more than 1 year of

imprisonment or by a fine.

(2) Para. (1) does not apply to an individual who is prosecuted or on trial for

offences that are the subject of the criminal trial.

Subject Any person

Conduct • To prevent;

• To refuse to provide.


45

Object The prosecution body or the court to conduct procedural acts under the law;

The criminal prosecution body, the court or the bankruptcy judge, in whole or in

part, any data, information, documents or assets they hold and which have been

explicitly requested.

Purpose To settle a case.

Sanction No less than 3 months and no more than 1 year of imprisonment or by a fine.

Elements of the offence for art. 271 Criminal Code of Romania (obstruction of justice).

Definition Art. 272 – Tampering with testimony

(1) The attempt to determine, or determining an individual, regardless of their

capacity, by coercion, corruption, or by another act of intimidation, committed on

said individual or on one of their family members, to refrain from notifying the

criminal investigation authorities, to refrain from giving statements, to withdraw

their statements, to give false statements or to refrain from submitting evidence in

a criminal or civil case or in any other judicial proceedings, shall be punishable by

no less than 1 and no more than 5 years of imprisonment. If the intimidation or

corruption act is in itself an offense, the rules for multiple offenses shall apply.

(2) A material settlement between the perpetrator and the victim, occurring in the

case of offenses for which criminal action is to be initiated based on prior

complaint by the victim or for which reconciliation occurs, does not constitute an

offense.

Subject Any person.

Conduct • To determine.

Object To refrain from notifying the criminal investigation authorities, to refrain from

giving statements, to withdraw their statements, to give false statements or to

refrain from submitting evidence in a criminal or civil case or in any other judicial

proceedings.

Purpose By coercion, corruption, or by another act of intimidation to another or one of their

family members.

Sanction No less than 1 and no more than 5 years of imprisonment.



46

Definition Art. 273 – False testimony

(1) The act of a witness who, in a criminal, civil or other proceeding in which

witnesses are heard, gives false statements, or does not tell everything they know

regarding the essential acts or circumstances in relation to which they are heard,

shall be punishable by no less than 6 months and no more than 3 years of

imprisonment or by a fine.

(2) The false testimony committed:

a) by a witness whose identity is protected or who is included in the witness

protection program;

b) an investigator working undercover;

c) a person who prepares an expert report or an interpreter;

d) in relation to an offense for which the law provides life imprisonment or a term

of imprisonment of 10 years or more

shall be punishable by no less than 1 and no more than 5 years of imprisonment.

(3) The witness shall not be punishable if they withdraw their testimony, in

criminal cases, before the defendant’s detention or arrest, or before the

commencement of the criminal action or in other cases before a decision or

another solution is given, following the false testimony given.

Subject A witness

Conduct • To give false statements in a criminal, civil or other proceeding.

• To not tell everything the witness knows regarding the essential acts or

circumstances in relation to which they are heard.

Object To produce false testimony.

Purpose

Sanction No less than 6 months and no more than 3 years of imprisonment or by a fine.


The Criminal Code punishes acts that deter the participation in a criminal, civil or administrative case

of any witness, expert, interpreter or defender by the use of violence, threat or any other means of

constraint against them, their spouses or close relatives. The attempt to constrain testimony or cause


47

individuals to give false testimony is also penalized. Specifically criminalized are the intimidation of,

and use of violence or physical injury performed against, a public official. The penalty is increased

by half when the subjects of the offence are judges, prosecutors, investigators, experts, judicial

executors, police officers and gendarmes or military personnel. The new Criminal Code criminalizes

the act of a person preventing the court from carrying out a criminal investigation or refusing to make

available existing information requested (UNODC 2013a, 4).

4.1.3.6 Liability of legal persons

Liability of legal persons is contained in art. 135 and 136 Criminal Code of Romania.

Article 135

Conditions for the criminal liability of legal entities

(1) Legal entities, except for state and public authorities, shall have criminal liability for offenses

committed in the performance of the object of activity of legal entities or in their interest or behalf.

(2) Public institutions shall not be held criminally liable for offenses committed in the performance of

activities that cannot be the object of the private domain.

(3) Criminal liability of legal entities does not exclude the criminal liability of the individual

participating in the commission of the same act.

Article 136.

Penalties applicable to legal entities

(1) The penalties applicable to legal entities include main penalties and ancillary penalties.

(2) The main penalty is represented by fines.

(3) The ancillary penalties are:

a) winding-up of legal entities;

b) suspension of the activity or of one of the activities performed by the legal entity, for a term

between three months and three years;

c) closure of working points of the legal entity for a term between three months and three years;

d) prohibition to participate in public procurement procedures for a term between one and three years;

e) placement under judicial supervision;

f) display or publication of the conviction sentence.

The Criminal Code or Romania establishes that legal persons, with the exception of public

authorities, institutions and the State, are subject to criminal liability. The liability of legal persons

does not exclude the criminal responsibility of the natural person who contributed in any way to


48

committing the same offence as the legal person. The Criminal Code of Romania establishes a series

of penalties that range from fine, dissolution of the legal person or suspension of its activities, and

closure of specific working centres, to interdiction of participation in public procurement and public

announcement of the sentence (UNODC 2013a, 4).

4.1.3.7 Statutes of limitation

Article 122 of the Criminal Code establishes statutes of limitations for crimes committed by natural

and legal persons, which were deemed long enough to preserve the interest of the administration of

justice. The terms of prescription are interrupted by the completion of any action in accordance with

the law and thus, a new prescription term would be initiated. However, the interruptions cannot

exceed the double of the statute of limitation prescribed. The statute can be suspended for the period

during which a legal provision or an unforeseen circumstance hinders the commencement or

continuation of a criminal proceeding (UNODC 2013a, 6).

4.1.3.8 Sanctions

Sanctions against corruption-related offences were found to be adequate and dissuasive according to

the mutual evaluators. Aggravating circumstances are regulated in cases of particular gravity if there

is damage to the public institution (UNODC 2013a, 4-5).

4.1.3.9 Mutual legal assistance

International mutual legal assistance, including in matters of interim measures and confiscation, is

governed by Law No. 302/2004 on international co-operation in criminal law matters (GRECO

2005b, para. 13). Romania requires fulfilment of dual criminality for application of coercive

measures.

4.2 Slovenia

4.2.1 Summary

Definition of public official does not include persons providing services in public agencies or

enterprises.

Definition of foreign public officials seems to exclude from liability bribes to lower level foreign

public officials.

The waiver of punishment for effective regret contained in the offence of active bribery does not

comply with international standards.

The offence of embezzlement, misappropriation or other diversion of property does not specify

that the appropriation is for the benefit of a public official or a third party.

The offence of money laundering does not contain all the elements required by the international

standards.

The administrative liability of legal persons in Slovenia should be widened and not only

procurement procedures


49

The criminal liability of legal persons foreseen in Slovenian law appear to exclude its application

to foreign bribery offences, despite safeguards being put to prevent this under Slovenian Law.


Treaties ratified by Slovenia are part of the domestic law and can be applied directly. The following

treaties, relevant to the present policy paper, have been ratified by Slovenia:


May 2004;

The United Nations Convention Against Corruption (UNCAC), ratified on 1 April 2008;

European Convention on Mutual Assistance in Criminal Matters (ETS 30), ratified on 19 July

2001;


99), ratified on 17 October 2001;


Matters (ETS 182), signed on 26 March 2013


(ETS 141), ratified on 26 April 1998;


Crime and on the Financing of Terrorism (CETS 198), ratified on 26 april 2010;

Criminal Law Convention on Corruption (ETS 173), ratified on 1 July 2002;


October 2004;

Civil Law Convention on Corruption (ETS 174), ratified on 1 November 2003;

OECD Anti-Bribery Convention, ratified on 06 September 2001.

Slovenia is a member of the EU, the OECD, and the Council of Europe’s GRECO and

MONEYVAL.

4.2.3 Compliance with international standards





The definition of national and foreign public officials, and officials of public international

organisations is defined in art. 99 Criminal Code of Slovenia, as well as art. 1 of the Civil Servants

Act.

Article 99


50

(1) For the purpose of this Criminal Code the term official shall mean:

1) a member of the National Assembly, a member of the National Council, and a member of a local or

regional representative body;

2) a Constitutional Court judge, a judge, a lay judge, state prosecutor, or state defender;

3) a person carrying out official duties or exercising a public function with management powers and

responsibilities within a state authority or an authority of a self-governing local community or any

other entity governed by public law;

4) any other person exercising official duties by authorization of the law, of by-law (public authority)

or of the contract on arbitration concluded on the basis of the law;

5) military person designated as a such with special regulations in instances, when the act is not

already criminalized as a criminal offence against military duty;

6) a person in a foreign country carrying out legislative, executive or judicial function, or any other

official duty at any level, providing that he/she meets the substantive criteria under points 1, 2, or 3 of

this paragraph;

7) a person recognized as an official within a public international organization providing that he/she

meets the substantive criteria under points 1, 2, or 3 of this paragraph;

8) a person carrying out judicial, prosecutorial or other official function or duty with the international

court or tribunal.

Article 1

1) Civil servants shall be individuals employed in the public sector

2) For the purposes of this Act, the public sector shall be comprised of:

- state bodies and the administrations of self-governing local communities,

- public agencies, public funds, public institutions, and public commercial institutions

- other entities of public law that indirectly use state or local budgetary funds.

3) Public companies and commercial companies, where the state or local communities are controlling

shareholders or have prevailing influence, shall not be a part of the public sector under this Act.

4) Functionaries in state bodies and local community bodies shall not be deemed as civil servants.

5) The terms "official", "servant", "principal" and other terms written in masculine grammatical form

are used neutrally for both, men and women. The term “public officer or civil servant” was considered

broader than the term “public official”.

These definitions largely comply with the international instruments, although it does not include

persons providing services in public agencies or enterprises (UNODC 2013b, 17). Furthermore, in

relation to foreign public officials, it was noted that the definition only applies to persons carrying


51

out “public functions” and not to persons carrying out “official duties”, and requires that this person

carrying out public functions have “management powers and responsibilities”. This definition

therefore falls short of those contained in international instruments, specifically art. 1 of the OECD

Anti-Bribery Convention (OECD 2014a, para. 20).

The Code also defines “economic activity” and “commercial operation” (which will be used under

the bribery provisions, see below art. 15 and 16):

(10) For the purpose of this Code, "economic activity" means:

1) any activity that is performed on the market for payment;

2)any activity performed as part of profession for an agreed or prescribed payment or any organised

activity performed for an agreed or prescribed payment.

(11) Pursuant to this Code, economic activity or commercial operation shall include:

1)implementation, governance, decision-making, representation, management and supervision within

the framework of the activity referred to in paragraph 10 of this Article;

2) management of immovable and movable property, funds, income, claims, capital assets, other forms

of financial assets, and other assets of legal entities governed by public or private law, the use of these

assets and control over them.


The elements of the offence of active bribery of a (national) public official are defined under art. 262

Criminal Code of Slovenia:


(1) Whoever promises, offers or gives an award, gift or other benefit to an official

or a public officer for him or any third person in order for him either to perform an

official act within the scope of his official duties which should not be performed,

or not to perform an official act which should or could be performed, or makes

other abuse of his position, or whoever serves as an intermediary for the purpose

of bribing an official, shall be sentenced to imprisonment for not less than one and

not more than five years and punished by a fine.

(2) Whoever promises, offers or gives an award, gift or other benefit to an official

or a public officer for him or any third person in order for him either to perform an

official act within the scope of his official duties which should or could be

performed, or not to perform an official act which should not be performed, or

makes other use of his position, shall be sentenced to imprisonment for not less

than six months and not more than three years.

(3) If the perpetrator under the preceding paragraphs who gave the award, gift or

other benefit on request of an official or public officer, had declared such an

offence before it was detected or he knew it had been detected, his punishment

may be remitted, provided this is not in contravention of the rules of international

law.


52

Subject Any natural or legal person

Conduct • To promise;

• To offer;

• To give.

Object an award, gift or other benefit.

Purpose For an official or a public officer, for himself or herself or any third person, to

perform an official act within the scope of his or her official duties which should

not be performed, or not to perform an official act which should or could be

performed.

For an official or a public officer, for himself or herself or any third person, to

perform an official act within the scope of his official duties which should or could

be performed, or not to perform an official act which should not be performed, or

makes other use of his position.

Sanction Imprisonment for not less than one and not more than five years and punished by a

fine.

Imprisonment for not less than six months and not more than three years.

Elements of the offence under art. 262 Criminal Code of Slovenia (active bribery of national public officials).

The definition contained in art. 262 Criminal Code of Slovenia complies with the international

instruments. Art. 262(1) refers to cases in which the act performed by the public official was against

his or her duties; art. 262(2) refers to the cases in which the act was in line with the duties of the

public official. Further, the word “could” refers to discretionary acts or powers of the official, where

he or she is not obliged to act or refrain from acting, but obliged to make an informed and objective

decision (UNODC 2013b, 18).

While not explicitly contained in the text of art. 262, the indirect promise, offer or giving of undue

advantage is covered implicitly as indirect bribery is criminalised in the person of the intermediary

(art. 20 Criminal Code of Slovenia41

) (UNODC 2013b, 19).


The elements of the offence passive bribery of (national) public officials are defined under art. 261



(1) An official or a public officer who requests or agrees to accept for himself or

any third person an award, gift or other benefit, or a promise or offer for such

41 Article 20 Any person, who commits it personally or by using and directing the actions of another person (indirect perpetrator)


53

benefit, in order to perform an official act within the scope of his official duties

which should not be performed, or not to perform an official act which should or

could be performed, or make other abuse of his position, or whoever serves as an

intermediary for the purpose of bribing an official, shall be sentenced to

imprisonment for not less than one and not more than eight years and punished by

a fine.

(2) An official or a public officer who requests or agrees to accept for himself or

any third person an award, gift or other property benefit, or a promise or offer for

such benefit, in order to perform an official act within the scope of his official

duties which should or could be performed, or not to perform an official act which

should not be performed, or make other use of his position, or whoever

intermediates in such a bribery of the official, shall be sentenced to imprisonment

for not less than one and not more than five years.

(3) An official or a public officer who requests or accepts an award, gift or other

favour with respect to the performance of the official act under preceding

paragraphs after the official act is actually performed or omitted, shall be punished

by a fine or sentenced to imprisonment for not more than three years.

(4) The accepted award, gift and other benefit shall be confiscated.

Subject An official or a public officer.

Conduct To request;

To agree to accept.

Object An award, gift or other benefit.

Purpose For the official or public officer to perform an official act within the scope of his

official duties which should not be performed, or not to perform an official act

which should or could be performed;

For the official or public officer not to perform an official act within the scope of

his official duties which should or could be performed, or not to perform an

official act which should not be performed,

Sanction Imprisonment for not less than one and not more than eight years and punished by

a fine.

Imprisonment for not less than one and not more than five years.

Elements of the offence under article 261 Criminal Code of Slovenia (passive bribery of national public officials).


54

The definition contained in art. 261 Criminal Code of Slovenia complies with the international

instruments. Similarly to the offence of active bribery of national public officials, there is no explicit

mention of indirect solicitation or acceptance of an undue advantage. However, Slovenian authorities

have noted that indirect bribery is criminalised in the person of the intermediary (art. 20 Criminal

Code of Slovenia) (UNODC 2013b, 22).

4.2.3.1.3 Active bribery of foreign public officials and officials of public international organisations

Given the definition of public official contained in art. 99 Criminal Code of Slovenia, active bribery

of foreign public officials and officials of public international organisations is contained in the

provision of art. 262 Criminal Code of Slovenia.

Therefore, Slovenia complies with the international instruments. It should be noted, however, that the

definition of active bribery of foreign public officials and officials of public international

organisations in the Criminal Code of Slovenia does not include the purpose of “obtaining or

retaining business or other undue advantage in relation to the conduct of international business”.

Notwithstanding, the current definition under Slovenian Law has a broader scope that the

international instruments, since the international requirement is a limiting factor vis-à-vis the

Criminal Code of Slovenia.

An implementation gap contained in art. 262(3) refers to the waiver of punishment for effective

regret in cases of solicitation by the public official, which the judge can discretionarily admit (OECD

2005a, para. 10). While the Slovenian authorities indicated that this provision plays an important role

in identifying domestic officials who have been bribery, when applying this provision to the bribery

of foreign public officials or officials of public international organisations, it comes in direct conflict

with the international instruments, in particular by the fact that the waiver is not contemplated in art.

1 OECD Anti-Bribery Convention (OECD 2014a, para. 10). Slovenia has noted that there is no

obligation to enforce this waiver and that the legal requirement must not be in contravention with

international instruments. However, as this would be left for the judiciary to interpret, it is

preferential to consider removing the waiver altogether or explicitly limiting it to bribery of national

public officials.



defined under art. 209 Criminal Code of Slovenia:


(1) Whoever unlawfully appropriates money, a movable object, or any other part

of another’s property entrusted to him by virtue of employment or the performance

of an economic, financial, or business activity, or while performing the obligations

of a guardian, or has been left these as an official on duty, shall be sentenced to

imprisonment for not more than three years.

(2) If an official commits the offence referred to in the preceding Article against

another’s property available to him during the search of a dwelling, premises or


55

persons, or in the course of judicial or administrative proceedings, or in relation to

the tasks of protection of persons or property, he shall be sentenced to

imprisonment for not more than five years.

(3) If the offence referred to in paragraph 1 of this Article involves property of low

value, and if the perpetrator intended to appropriate this property, he shall be

punished by a fine or sentenced to imprisonment for not more than one year.

(4) If the offence referred to in paragraphs 1 or 2 of this Article involves property

of high value and if the perpetrator intended to appropriate this property, he shall

be sentenced to imprisonment for not less than one and not more than eight years.

(5) If the perpetrator uses without authority trusted or accessible objects as referred

to in paragraphs 1 or 2 of this Article, he shall be punished by a fine or sentenced

to imprisonment for not more than three years.

Subject Any person, whether natural or legal (?)

Conduct To unlawfully appropriate;

Object A movable object, or any other part of another’s property

Purpose Entrusted to him or her by virtue of employment or the performance of an

economic, financial, or business activity, or while performing the obligations of a

guardian, or has been left these as an official on duty.

Sanction Imprisonment for not more than three years.

Elements of the offence under art. 209 Criminal Code of Slovenia (embezzlement, misappropriation or other diversion of property).

The definition contained in art. 209 Criminal Code of Slovenia largely complies with international

standards. While art. 209(1) contains a general offence which is applicable to the any person,

including public officials, art. 209(2) restricts the application of embezzlement to public officials in

specific functions, but not to public officials in general (UNODC 2013b, 25).

An implementation gap contained in the Slovenian law relates to the fact that the appropriation does

not specify that it is for the benefit of the public official or that of a third party (25). Therefore, it is

recommended that Slovenia specify such conditions to meet the requirements of international

instruments.



The elements of the offence of active trading in influence under art. 264 Criminal Code of Slovenia:


(1) Whoever promises, offers or gives an award, gift or any other favour to another

person for himself or any third person, in order to use his rank or real or


56

presumptive influence to intervene so that a certain official act be or not be

performed, shall be sentenced to imprisonment for not more than three years.

(2) Whoever promises, offers or gives an award, gift or any other favour to other

person for himself or any third person, in order to use his rank or real or

presumptive influence to intervene either for the performance of a certain official

act which should not be performed or for the non-performance of an official act

which should or could be performed, shall be sentenced to imprisonment for not

less than one and not more than five years.

(3) If the perpetrator under the preceding paragraphs who gave the award, gift or

other benefit on request of the illegal intermediary, had declared such an offence

before it was detected or he knew it had been detected, his punishment may be

remitted.

Subject Any person, whether natural or legal (?).

Conduct To promise;

To offer;

To give.

Object An award, gift or any other favour.

Purpose For another person, directly or indirectly, to use his rank or real or presumptive

influence to intervene so that a certain official act be or not be performed.

For another person, directly or indirectly, to use his rank or real or presumptive

influence to intervene either for the performance of a certain official act which

should not be performed or for the non-performance of an official act which

should or could be performed.

Sanction Imprisonment for not more than three years.

Imprisonment for not less than one and not more than five years.

Elements of the offence under art. 264 Criminal Code of Slovenia (active trading in influence).

The definition contained in art. 264 Criminal Code of Slovenia largely complies with the

international instruments. The provision of active trading in influence in Slovenian law, however,

does not mention explicitly an undue advantage. This however, is considered to be a limiting element

of the international instruments, and therefore the Slovenian law goes beyond such requirement.

An implementation gap, however, relates to the element of direct or indirect offer, promising or

giving. Even though the indirect active trading in influence could be criminalised in the person of the

intermediary (art. 20 Criminal Code of Slovenia). Thus, evaluators have recommended Slovenia to

ensure that the legislation is applied in this sense (UNODC 2013b, 26).



of Slovenia:


57

Definition 263

(1) Whoever accepts an award, gift or any other favour or promise or offer for

such a favour for himself or any third person, in order to use his rank or real or

presumptive influence to intervene so that a certain official act be or not be

performed, shall be sentenced to imprisonment for not more than three years.

(2) Whoever uses his rank or his real or presumptive influence to intervene either

for the performance of a certain official act which should not be performed or for

the non-performance of an official act which should or could be performed, shall

be punished to the same extent.

(3) If the perpetrator, prior to or after the intervention, accepts any award, gift or

other favour for himself or any third person in exchange for his intervention

referred to in the preceding paragraph, he shall be sentenced to imprisonment for

not less than one and not more than five years.

(4) The accepted award, gift and other benefit shall be confiscated.

Subject Any person

Conduct To accept.

Object An award, gift or any other favour or promise or offer for such a favour.

Purpose For the person to use his rank or real or presumptive influence to intervene so that

a certain official act be or not be performed, shall be sentenced to imprisonment

for not more than three years.

Sanction imprisonment for not more than three years.

Elements of the offence for art. 263 Criminal Code of Slovenia (passive trading in influence).

The definition contained in art. 263 Criminal Code of Slovenia largely complies with international

instruments.

The implementation gap relates to the criminalisation of the solicitation of an undue advantage,

which is not contained in Slovenian law. The Slovenian law does not criminalise the solicitation,

only the acceptance (UNODC 2013b, 27). It is therefore recommended that Slovenia take measures

to fully implement the international requirements in national law.

Finally, as with active trading in influence, there is no mention to indirect passive trading in

influence. Even though the indirect active trading in influence could be criminalised in the person of

the intermediary (art. 20 Criminal Code of Slovenia). Thus, evaluators have recommended Slovenia

to ensure that the legislation is applied in this sense (UNODC 2013b, 28).


The elements of the offence of money laundering are defined under art. 245 Criminal Code of

Slovenia:


58


(1) Whoever accepts, exchanges, stores, disposes, uses in an economic activity or

in any other manner determined by the act governing the prevention of money

laundering, conceals or attempts to conceal by laundering the origin of money or

property that was, to his knowledge, acquired through the commission of a

criminal offence, shall be punished by imprisonment of up to five years.

(2) Whoever commits the offence under the preceding paragraph, and is

simultaneously the perpetrator of or participate in the criminal offence with which

the money or property under the preceding paragraph were acquired, shall be

punished to the same extent.

(3) If the money or property under paragraphs 1 or 2 of this Article is of high

value, the perpetrator shall be punished by imprisonment of up to eight years and

by a fine.

(4) If an offence referred to in the above paragraphs was committed within a

criminal association for the commission of such criminal offences, the perpetrator

shall be punished by imprisonment of one up to ten years and by a fine.

(5) Whoever should and could have known that the money or property had been

acquired through a criminal offence, and who commits the offences from

paragraphs 1 or 3 of this Article, shall be punished by imprisonment of up to two

years.

(6) The money and property referred to in the preceding paragraphs shall be

confiscated.


Conduct To accept,

To exchange,

To store,

To dispose,

To use.

Object Proceeds of crime.

Purpose Conceals or attempts to conceal by laundering the origin of money or property that

was, to his knowledge, acquired through the commission of a criminal offence.

Sanction imprisonment of up to eight years and by a fine.

Elements of the offence for art. 245 Criminal Code of Slovenia (money laundering).

The definition contained in art. 245 Criminal Code of Slovenia does adequately comply with

international instruments. Slovenia has adopted an all crimes approach to money laundering, which

includes all mandatory corruption-related offences mentioned in international instruments. It is an

autonomous offence, which does not require the conviction of the predicate offence(s) (40; OECD

2014a, para. 101). Money laundering will occur regardless of whether the predicate offence took


59

place in Slovenia or abroad. Self-laundering is also foreseen in art. 245(2) Criminal Code of

Slovenia.

“Acquisition” is covered by the verb “accepts” and the “possession” by the verb “stores”. The verb

“use” is covered in cases in which it refers to an economic activity or any other manner determined

by the act governing the prevention of money laundering” (UNODC 2013b, 38). Transferring,

concealing and disguising are not contained in the in the definition under Slovenian law. During

mutual evaluations, Slovenian authorities noted that the verb “to exchange” in art. 245(1) covers the

term “to convert” contained in UNCAC (UNODC 2013b, 37-38).

Another implementation gap refers to the forms of participation in money laundering. All forms of

participation are covered, with the exception of conspiracy. Evaluators have recommended Slovenia

to criminalise conspiracy (UNODC 2013b, 39).

The offence of money laundering is also committed when a person supports another in the

commission of a criminal offence (art. 38 Criminal Code of Slovenia). However, the “criminal

support” does not take place when the person collects or provides money or property for the

commission of a criminal offence (MONEYVAL 2013, para 30).


The elements of the offence of obstruction of justice are defined under art. 286 Criminal Code of

Slovenia:


(1) Whoever, with the intention of influencing testimony or production of evidence

in a trial before the court or in an administrative procedure or during the procedure

before the Commission for the Prevention of Corruption, or whoever, with the

intention of influencing the collection of information in pre-trial proceedings,

applies force, threat or intimidation against any third person, offers or gives him

illegal benefits, shall be sentenced to imprisonment for not more than five years.

(2) The same sentence shall be imposed on whoever, with the intention of

influencing the performance of the official duties of officials in the administration

of justice, law enforcement authorities in relation to criminal proceedings, applies

force, threat or intimidation against an official.


Conduct To influence

Object Testimony or production of evidence in a trial before the court or in an

administrative procedure or during the procedure before the Commission for the

Prevention of Corruption.

The collection of information in pre-trial proceedings.


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Purpose To obstruct justice

Sanction Imprisonment of not more than 5 years.

Elements of the offence for art. 286 Criminal Code of Slovenia (obstruction of justice).

The definition contained in art. 286 Criminal Code of Slovenia largely implements the international

requirements. The main implementation gap relates to the fact that the promise of an undue

advantage is not contained in art. 286 (UNODC 2013b, 42).


Liability of legal persons is provided for in art. 42 Criminal Code of Slovenia:

Article 42

(1) Criminal liability shall be imposed on a legal person for criminal offences, which the perpetrator

commits in its name, on its behalf or in its favour, providing that the statute, which regulates liability

of legal persons for criminal offences, determines that the legal person is liable for the criminal offence

in question.

(2) Criminal liability of legal persons shall not exclude liability of natural persons as perpetrators,

instigators or aides in the same criminal offence.

(3) The law, which regulates liability of legal persons for criminal offences, shall determine the

conditions for criminal liability of legal persons, sentences, admonitory sanctions or safety measures,

and legal consequences of the conviction for legal persons.

Slovenia has established criminal, civil and, for procurement procedures, administrative liability of

legal persons. It thus largely complies with international standards.

However, there are some implementation gaps in the applicability of the legal liability of legal

persons. The first relates to the administrative liability, which should be expanded to include not only

procurement procedures (UNODC 2013b, 47).

Moreover, the Liability of Legal Persons for Criminal Offences Act (LLPCO), in its art. 11(2),42

excludes the application of the offence to foreign bribery offences, although a safeguard was put in

place in art. 11(1) LLPCO43

indicating that the waiver to apply liability of legal persons to foreign

42 Art. 11 (…)

2. If after the committing of a criminal offence, for which there is grounds for the liability of the legal person

pursuant to point four, article four of this law, the management or supervisory body voluntarily reports the

perpetrator, before the offence was uncovered and immediately orders the restitution of unlawfully obtained

property benefits or provides indemnification for damages caused through the offence or reports information on the

grounds for liability for other legal persons, the legal person's punishment may be withdrawn. 43 Art. 11


61

bribery offences could only be enforced only if the criminal offence was reported by the legal

person’s management or supervisory board before it was detected (OECD 2014a, para. 29).

Therefore, concerns exist about the implementation of liability of legal persons in relation to foreign

bribery cases in Slovenia.


Statute of Limitations is defined under art. 90 Criminal Code of Slovenia:

Limitation of Criminal Prosecution Article 90

(1) Except where otherwise determine in this Criminal Code, criminal prosecution is barred from

taking place:

1) fifty years from the committing of a criminal offence, for which a prison sentence of thirty years

may be imposed under the statute unless non-applicability of statute of limitations applies to the

offence;

2) thirty years from the committing of a criminal offence, for which a prison sentence of over ten years

may be imposed under the statute;

3) twenty years from the committing of a criminal offence, for which a prison sentence of over five

years may be imposed under the statute;

4) ten years from the committing of a criminal offence, for which a prison sentence of over one year

may be imposed under the statute;

5) six years from the committing of a criminal offence, for which a prison sentence of up to one year or

a fine may be imposed under the statute.

(2) If more than one sentence is prescribed for a criminal offence, the time limit referring to the most

severe sentence shall apply to the offence in question.

(3) Irrespective of paragraph 1 of this Article, the time limit for statute of limitations in criminal

offences against sexual inviolability and criminal offences against marriage, family or youth,

committed against a minor, shall begin when the injured person becomes an adult.

Taking into consideration the corruption-related offences under review in this policy paper, the

statute of limitations are between 10-20 years. These have been deemed sufficient in mutual

evaluations and therefore Slovenia complies with the international requirements.

Slovenia furthermore provides for rules for the interruption of statute of limitations in art. 91


Article 91

1. If after the committing of a criminal offence, for which there is grounds for the liability of the legal person

pursuant to point four, article four of this law, the management or supervisory body voluntarily reports the

perpetrator, before the offence was uncovered, the legal person may be given a reduced punishment.


62

(1) The period of the limitation of criminal prosecution shall start on the day the criminal offence was

committed.

(2) If the final judgement in the proceeding for extraordinary legal remedy is annulled, the statute of

limitations in the new trial shall be two years from the annulment of the final judgement.

(3) The statute of limitation shall be suspended for the time when the prosecution may not be initiated

or continued, or when the perpetrator is unreachable for state authorities.

(4) The statute of limitation shall be interrupted if the perpetrator commits a further criminal offence of

the same or greater seriousness before such a period has ended; after an interruption a new period of

limitation shall start.

The statute of limitation is suspended for the time when the prosecution may not be initiated or

continued, or when the perpetrator evades justice (art. 91(3) Criminal Code of Slovenia).

4.2.3.8 Sanctions

Slovenia has established (i) sanctions for corruption offences which consider the gravity of the

offence; and (ii) sentencing rules in its Criminal Code that aim to ensure that the gravity of the

offence be considered. Art. 15 to 25 show that serious sanctions are enforced in practice in corruption

cases (UNODC 2013b, 58), which range from 3 to 10 years.

Fines imposed are set out in the judgment as day-fines. These amount to minimum of ten and a

maximum of three hundred and sixty. If the criminal offence was committed for one’s “own benefit,”

a maximum sanction of one thousand five hundred day-fines may be imposed. Thus, the maximum

fine established foreseen under Criminal Code of Slovenia is EUR 360 000 for an “improper” act or

omission of the public official and EUR 1 500 000 if the criminal act had been committed “out of

greed” (OECD 2014a, para. 44).

The OECD concluded in its mutual evaluation that the low levels of monetary sanctions against

natural persons and the low levels of sanctions imposed in practice on legal persons for economic

crimes appear to be insufficiently effective, proportionate or dissuasive (OECD 2014a, para. 50).

There is therefore a need to ensure appropriate implementation by Slovenia on this matter.


The main element to be reviewed in relation to MLA relates to the requirement of affording

assistance in vis-à-vis dual criminality requirements.

Mutual legal assistance has been regulated through national law in Slovenia and apply unless an

international instrument is applicable, or if the provisions of the international instrument do not

regulate specific issues (UNODC 2013b, 166).

In principle, Slovenian authorities have stated that dual criminality is not required to afford assistance

to a requesting jurisdiction. However, the request must not conflict with the internal legal order of


63

Slovakia (UNODC 2013b, 174). However, GRECO’s mutual evaluation has stated that Slovenia

requires dual criminality for search and seizure (UNODC 2013b, 174).

Moreover, the Slovenian authorities will require a court order from the requesting jurisdiction to

execute a request which contains coercive measures (UNODC 2013b, 174).

4.3 Spain

4.3.1 Summary

Spain largely complies and has internalised the provisions required under the international

instruments it has ratified.

In relation to the active bribery offence, the elements of the offence do not explicitly require the

promising of an undue advantage.

The provisions of bribery of foreign public officials and officials of international organisations

use a different formulation to express undue advantage (“an improper benefit or advantage”),

when considered bribery of national public officials (“gift or compensation of any kind”).

Also in relation to the provisions of bribery of foreign public officials and officials of

international organisations, the mental requirement “to corrupt or attempt to corrupt” is not

defined in Spanish legislation.

The Spanish legislation requires obtaining a financial benefit in the elements of the offence for

trading in influence, which is not contained in international instruments.

The money laundering offence in Spain enables self-laundering.

The liability of legal persons requires either its legal representatives or administrators (de iure or

de facto) to have carried out the criminal actions on their behalf, which seems to contradict the

requirements of international instruments.

Spain requires requesting states to fulfil the requirement of dual criminality when requesting

assistance on coercive measures.


Treaties ratified by Spain are part of the domestic law and can be applied directly. The following

treaties, relevant to the present policy paper, have been ratified by Spain:


March 2002;

The United Nations Convention Against Corruption (UNCAC), ratified on 19 June 2006;

European Convention on Mutual Assistance in Criminal Matters (ETS 30), ratified on 18 August

1982;


99), ratified on 13 June 1991;


(ETS 141), ratified on 06 August 1998;


64


Crime and on the Financing of Terrorism (CETS 198), ratified on 26 March 2010;

Criminal Law Convention on Corruption (ETS 173), ratified on 28 April 2010;


January 2011;

Civil Law Convention on Corruption (ETS 174), ratified on 1 April 2010;

OECD Anti-Bribery Convention, ratified on 14 January 2000.

Spain has not ratified the following international instruments:


Matters (ETS 182), signed on 09 October 2015;

Spain is a member of the EU, the OECD, the Council of Europe’s GRECO, and FATF.

4.3.3 Compliance and implementation with international standards


Prior to reviewing the elements of the offence for the corruption-related offences, one

must first establish the definition of the following basic concepts: “public official”; “foreign

public official”, “officials of public international organisations” and “undue advantage”.

The definition of national and foreign public officials, and officials of public

international organisations is contained in art. 24 and 427 Criminal Code of Spain comply

with international instruments. These articles state:

Article 24.

1. For the purposes of criminal law, an authority shall be deemed to be a person who, by oneself or as a

member of any legal entity, court, or collegiate body, has control over or exercises its own jurisdiction.

In any case, members of the Congress of Deputies, the Senate, the Legislative Assemblies of the

Autonomous Communities and the European Parliament shall have the status of authority. The officers

of the Public Prosecutor's Office are also be deemed to be authorities.

2. Any public official who participates in the exercise of public functions shall be considered as a

public official who, by immediate provision of the Act or by election or by appointment of competent

authority.

Article 427

The provisions of the preceding articles shall also apply when the facts are ascribed or affect:

a) Any person holding a legislative, administrative or judicial position or employment in a country of

the European Union or in any other foreign country, both by appointment and by election.


65

b) Any person exercising a public function for a country of the European Union or any other foreign

country, including a public body or a public enterprise, for the European Union or for another public

international organization.

c) Any official or agent of the European Union or of a public international organization.

The Spanish law does not define the meaning of the term “gift or compensation of any other kind”,

although it is intended to mean any material or immaterial benefit given to a public official.


The elements of the offence active bribery of (national) public officials are defined under art. 424

Criminal Code of Spain:

Definition 1. The individual who offers or gives a gift or compensation of any other kind to

an authority, public official or person who participates in the exercise of a public

function to carry out an act contrary to the duties inherent to his or her position or

an act of his or her office, in order to not carry out or to delay the one that he or

she should practice, or in consideration of his or her position or function, the

individual will be punished in his or her respective case with the same prison

sentences and fine as the corrupt authority, official or person.

2. When an individual gives the gift or payment according to the request of an

authority, public official or person who participates in the exercise of a public

function, the same prison sentence and fine corresponding to both will be imposed.

3. If the obtained or intended action of the authority or official is related to a

procurement process, subsidies or auctions summoned by the public

administrations or entities, the individual and, as the case may be, the company,

association or organisation which the individual represents, the penalty of

disqualification to obtain subsidies and public aids, to contract with entities,

agencies or entities that are part of the public sector and to enjoy benefits or fiscal

incentives and from the social security for a time of five to ten years.


Conduct To offer;

To give.

Object Gift or compensation of any other kind.

Purpose For the public official or person who participates in the exercise of a public

function to carry out an act contrary to the duties inherent to his or her position or

an act of his or her office, in order to not carry out or to delay the one that he or

she should practice, or in consideration of his or her position or function.

Sanction Imprisonment for three to six years, a fine of twelve to twenty-four months and

special disqualification for employment or public office and for the exercise of an

elected office for a period of nine to twelve years (art. 419).

Elements of the offence for art. 424 Criminal Code of Spain (active bribery of national public officials).


66

The definition contained in art. 424 Criminal Code of Spain largely complies with the international

instruments. Before assessing its implementation, it is worth noting that active bribery under art. 424

can be committed directly or indirectly by a natural or legal person when read in conjunction with

art. 28 Criminal Code of Spain44

.

There however are some elements which should be taken into consideration:

The action of “promising” a gift or compensation of any kind is not explicitly covered in art. 424.

While the Spanish authorities have clarified in different mutual evaluations (in particular, see:

UNODC, 2011, 12) that Spanish case law does not require an agreement between the person and

the public official for the commission of the offence of active bribery. According to the Spanish

authorities, the promise of a gift or compensation of any other kind would furthermore be

subsumed in the notion of offering. Notwithstanding, an implementation gap exists to the extent

that a court may interpret “offering” narrowly, excluding the promise of the undue advantage to a

public official.

Another implementation gap found in art. 424 Criminal Code of Spain relates to the fact that only

natural and legal persons, but not public officials, can commit active bribery (UNODC, 2011, 12).

Therefore, Spain should strive to widen the scope of the subjects which may commit active bribery to

include a public official bribing another public official (UNODC, 2011, 12).


The elements of the offence of passive bribery of (national) public officials are defined under art. 419

and 420 Criminal Code of Spain:

Definition Article 419.

The authority or public official who, for his or her own benefit or that of a third

party, receives or solicits, by himself or herself or through another person, gift,

favour or remuneration of any kind, or accepts an offer or a promise, to perform in

the exercise of his or her office an act contrary to the duties inherent to it, or to not

unreasonably carry out or to delay the one to be practiced, shall be liable to

imprisonment for three to six years, a fine of twelve to twenty-four months and


elected office for a period of nine to twelve years, without prejudice to the penalty

corresponding to the act performed, omitted or delayed by reason of the

remuneration or promise, if it constituted a crime.


44 Art. 28 Authors are those who commit the action by themselves, jointly or through another which serve as

instrument. Authors are also considered those: a) Those that directly induce another or others to execute it.

b) Those who cooperate with its execution with an act without which it would not have been carried out.


67

Conduct To receive;

To solicit.

Object A gift, favour or remuneration of any kind.

Purpose To perform in the exercise of his or her office an act contrary to the duties inherent

to it;

To not unreasonably carry out an act;

To delay an act to be practiced.

Sanction Imprisonment for three to six years, a fine of twelve to twenty-four months and


elected office for a period of nine to twelve years, without prejudice to the penalty

corresponding to the act performed, omitted or delayed by reason of the

remuneration or promise, if it constituted a crime.

Elements of the offence for art. 419 Criminal Code of Spain (passive bribery of national public officials).


The authority or public official who, for his or her own benefit or that of a third

party, receives or solicits, by himself or herself or another person, gift, favour or

compensation of any kind, or accepts an offer or promise, to perform an act of his

or her office, shall incur in imprisonment of two to four years, a fine of twelve to

twenty-four months and special disqualification for employment or public office

for a period of five to nine years.


Conduct To demand;

To accept.

Object A gift, favour or remuneration of any kind.

Purpose To perform an act of his or her office

Sanction Imprisonment of two to four years, a fine of twelve to twenty-four months and

special disqualification for employment or public office for a period of five to nine

years.

Elements of the offence for art. 420 Criminal Code of Spain (passive bribery of national public officials).

The definitions contained in art. 419 and 420 Criminal Code of Spain complies with the international

instruments. Art. 419 deals with acts contrary to the duties of the public official while art. 420 deals

with the acts in compliance with the duties of the public official.


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The elements of the offence of bribery of foreign public officials and officials of public international

organisations are defined under art. 286ter Criminal Code of Spain:

Definition Article 286ter.

1. Those who, by offering, promising or giving any improper benefit or advantage,

corrupt or attempt to corrupt, by themselves or by another person, an authority or

public official for their benefit or of a third party, accept their requests, to act or

refrain from acting in relation to the exercise of their public functions to obtain or

retain a contract, business or any other competitive advantage in the performance

of international economic activities, shall be punished, except those who were

already subject to a more serious penalty in another provision of this Code, with

imprisonment of between three and six years, a fine of twelve to twenty-four

months, unless the benefit obtained was greater than the resulting amount, in

which If the fine will be equal to three times the amount of said benefit.

In addition to the penalties indicated, in any case, the offender shall be liable for

the prohibition of contracting with the public sector, as well as the loss of the

possibility of obtaining public subsidies or aid and of the right to enjoy tax benefits

or incentives and social security, and the prohibition of intervening in commercial

transactions of public importance for a period of seven to twelve years.

2. For the purposes of this article, public officials shall be those determined by

articles 24 and 427.


Conduct To promise;

To offer;

To give.

Object Any improper benefit or advantage.

Purpose To act or refrain from acting in relation to the exercise of their public functions to

obtain or retain a contract, business or any other competitive advantage in the

performance of international economic activities.

Sanction Imprisonment of between three and six years, a fine of twelve to twenty-four

months, unless the benefit obtained was greater than the resulting amount, in

which If the fine will be equal to three times the amount of said benefit.

Elements of the offence for art. 286ter Criminal Code of Spain (bribery of foreign public officials and officials of public international

organisations).

This article has been recently introduced in the Criminal Code of Spain and has not undergone

review by its peers. Notwithstanding, art. 286ter seems to largely comply with the international

standards.

Some elements regarding the implementation of the article are worth mentioning. While other

corruption-related offences contained in the Criminal Code of Spain refer to undue advantage as “gift


69

or compensation of any kind”, art. 286ter mentions “an improper benefit or advantage.” It is unclear

at this stage whether both terms will be used synonymously or whether there is an underlying reason

to have chosen a different term to express an “undue advantage” under the offence of active bribery

of a foreign public official.

Another new terminology used in art. 286ter Criminal Code of Spain relates to “corrupt or attempt to

corrupt”. The Criminal Code of Spain does not define what is meant by the action “to corrupt”.

While practice will ultimately dictate how courts will interpret the term, the Spanish authorities could

benefit from clarifying such a term.

4.3.3.2 Embezzlement, misappropriation or other diversion of property by a public official copy


defined under articles 252, 253 and 432 Criminal Code of Spain:


1. Those who, having authority to administer the patrimony of others, emanated

from the law, entrusted by the authority or assumed by a legal transaction, shall be

punishable by penalties under article 249 or, where applicable, those of article 250

when they infringe them exceeding in the exercise of the same and, in that way,

cause damage to the managed estate.

2. If the amount of the property damage does not exceed 400 euros, a fine of one

to three months will be imposed.


Conduct To infringe the authority of administering.

Object Funds which have been entrusted to a person.

Purpose Causing damage to the managed estate.

Sanction A fine of one to three months (when the damage does not exceed EUR 400)

Imprisonment from six months to 3 years (art. 249 Criminal Code of Spain).

Imprisonment of one to six years and a fine of six to twelve months (article 250

Criminal Code of Spain, when the conditions from that article are met).

Elements of the offence for art. 252 Criminal Code of Spain (embezzlement, misappropriation or other diversion of property).


Those who, to the detriment of another, appropriate for themselves or for a third

party, money, effects, securities or any other movable thing, which they would

have received in deposit, commission, or custody, or which would have been

entrusted to them by virtue of any other title giving rise to the obligation to deliver

or return them, or deny having received them, shall be punished with the penalties

of article 249 or, as the case may be, of article 250, except those who were already


70

subject to a more serious penalty in another provision of this Code.

2. If the amount of the appropriate does not exceed 400 euros, a fine of one to

three months will be imposed.


Conduct To misappropriate;

Object Movable property.

Purpose To the detriment of another.

Sanction A fine of one to three months (when the damage does not exceed EUR 400)

Imprisonment from six months to 3 years (art. 249 Criminal Code of Spain).

Imprisonment of one to six years and a fine of six to twelve months (article 250

Criminal Code of Spain, when the conditions from that article are met).



1. The public authority or official who commits the offence of article 252 on the

public patrimony shall be punished by imprisonment of two to six years, special

disqualification for public office or employment and for the exercise of an elected

office for six to ten years.

2. The same penalty shall be imposed on the authority or public official who

commits the offence of article 253 on public patrimony.

Subject A public official

Conduct To infringe the authority of administering;

To misappropriate.

Object Funds or movable property which have been entrusted to the public official or

authority.

Purpose Causing damage to the public patrimony.

Sanction Imprisonment of two to six years, special disqualification for public office or

employment and for the exercise of an elected office for six to ten years.


Art. 252, 253 and 432 Criminal Code of Spain cover all the elements of the offence contained in

international instruments in relation to embezzlement, misappropriation or other diversion of

property. Therefore, Spanish legislation complies with them.


71

In relation to its implementation, it should be noted, however, that while art. 253 deals only with

movable property, misappropriated funds are dealt with art. 252, which carries an equivalent

sanction.



The elements of the offence of active trading in influence are defined under articles 428 and 429

Criminal Code of Spain:


The public official or authority that influences another public official or authority

by exercising the powers of his office or any other situation arising from his

personal or hierarchical relationship with him or another official or authority to

achieve a resolution that can generate directly or indirectly an economic benefit for

himself or for a third party, will incur in imprisonment from six months to two

years, fine from the amount to the double of the benefit sought or obtained and

special disqualification for employment or public office for the exercise of an

elected office for a period of five to nine years. If he or she obtains the desired

benefit, these penalties will be imposed on their upper half.

Subject A public official or authority

Conduct To influence;

Object Another public official or authority by exercising the powers of his office or any

other situation arising from his personal or hierarchical relationship with him.

Purpose To obtain a resolution that can generate directly or indirectly an economic benefit

for himself or for a third party.

Sanction imprisonment from six months to two years, fine from the amount to the double of

the benefit sought or obtained and special disqualification for employment or

public office for the exercise of an elected office for a period of five to nine years.

If he or she obtains the desired benefit, these penalties will be imposed on their

upper half.

Elements of the offence for art. 428 Criminal Code of Spain (active trading in influence).


The individual who influences a public official or authority by taking advantage of

any situation arising from his personal relationship with him or another public

official or authority to obtain a resolution that can directly or indirectly generate an

economic benefit for himself or for a third party, will be punishable by

imprisonment from six months to two years, fine from the amount to the double of

the benefit sought or obtained, and prohibition of contracting with the public

sector, as well as the loss of the possibility of obtaining subsidies or public aid and

the right to Enjoy tax or social security benefits or incentives for a period of six to


72

ten years. If he obtains the desired benefit, these penalties will be imposed on his

superior half.

Subject Any person

Conduct To influence;

Object A public official or authority by taking advantage of any situation arising from his

personal relationship with him or another public official or authority.

Purpose To obtain a resolution that can directly or indirectly generate an economic benefit


Sanction Imprisonment from six months to two years, fine from the amount to the double of

the benefit sought or obtained, and prohibition of contracting with the public

sector, as well as the loss of the possibility of obtaining subsidies or public aid and

the right to Enjoy tax or social security benefits or incentives for a period of six to

ten years. If he obtains the desired benefit, these penalties will be imposed on his

superior half.

Elements of the offence for art. 429 Criminal Code of Spain (passive trading in influence).

Art. 428 and 429 Criminal Code of Spain are in compliance with the international instruments. While

both articles mention only public officials, the participation of any other person can be presumed

when these articles are read in conjunction with art. 28 Criminal Code of Spain.

It should furthermore be noted that the Spanish legislation goes beyond the international instruments

in relation to active trading in influence as it does not require the promising, offering or giving of an

undue influence. Rather, it requires only the intention of influencing a public official.

In terms of implementation, however, the Spanish law requires that the conduct seeks to obtain

financial benefits, while the international instruments (in particular art. 18(a) UNCAC) does not

require such conduct (20).



of Spain:


Those who, offering to perform the conduct described in the two previous articles,

request from third parties handouts, gifts or any other remuneration, or accept an

offer or promise, will be punished with imprisonment from six months to a year. If

the offence is committed by a public authority or official, the penalty shall

furthermore impose a special disqualification for public office or employment and

the exercise of an elected office for a period of one to four years.

When a legal person is responsible for the crimes set forth in this Chapter,

according to what is established in article 31 bis, a fine of six months to two years


73

shall be imposed.

Pursuant to the rules laid down in Article 66a, judges and courts may also impose

the penalties set out in Article 33 (7) (b) to (g).


Conduct To offer;

To request;

To accept

Object Handouts, gifts or any other remuneration.

Purpose To obtain a resolution that can generate directly or indirectly an economic benefit


Sanction Imprisonment from six months to a year (any person)

Imprisonment from six months to a year and a special disqualification for public

office or employment and the exercise of an elected office for a period of one to

four years.

Elements of the offence for art. 430 Criminal Code of Spain (passive trading in influence).

Art. 430 Criminal Code of Spain is in compliance with the international instruments. Similarly to

active trading in influence, art. 430 mentions only the public official. Notwithstanding, the

participation of any person is presumed when the article is read in conjunction with art. 24 Criminal

Code of Spain.

In terms of implementation, the same comment made in relation active trading in influence, where

Spanish law requires that the conduct of passive trading in influence requires a direct or indirect

financial benefit. This conduct is not required under art. 18(b) UNCAC.


The elements of the offence of money laundering are defined under art. 301 Criminal Code of Spain:


1. Any person who acquires, possesses, uses, converts, or transmits property,

knowing that they originate in a criminal activity committed by him or by any

third person, or perform any other act to conceal or disguise its illicit origin, or to

assist the person who has participated in the offence or infractions to evade the

legal consequences of their acts, shall be punished with imprisonment from six

months to six years and a fine of up to three times the value of the property. In

these cases, judges or courts, taking into account the seriousness of the fact and the

personal circumstances of the offender, may also impose on him the penalty of

special disqualification for the exercise of his profession or industry for one to

three years, and agree The measure of temporary or definitive closure of the

establishment or premises. If the closure is temporary, its duration may not exceed


74

five years.

The penalty shall be imposed in its upper half when the goods originate in any of

the offences related to the trafficking in toxic drugs, narcotic drugs or psychotropic

substances described in articles 368 to 372 of this Code. In these cases, the

provisions contained in article 374 of this Code shall apply.

The penalty shall also be imposed in its upper half when the property has its origin

in any of the crimes included in Chapters V, VI, VII, VIII, IX and X of Title XIX

or in any of the offences of Chapter I of Title XVI .

2. With the same penalties, the concealment or concealment of the true nature,

origin, location, destination, movement or rights over the property or property of

the same shall be sanctioned, as the case may be, knowing that they come from

one of the offences Expressed in the previous section or an act of participation in

them.

3. If the facts were carried out by serious imprudence, the penalty shall be

imprisonment of six months to two years and fine of both to triple.

4. The guilty party shall also be punished even if the offence from which the goods

or the acts punished in the preceding paragraphs were committed, in whole or in

part, abroad.

5. If the guilty party had obtained profits, they will be confiscated in accordance

with the rules of article 127 of this Code.


Conduct To acquire;

To possess;

To use;

To covert;

To transmit;

To conceal;

To disguise.

Object Property that originated from a criminal activity.

Purpose Knowing that such property originates from a criminal activity committed by him

or by any third person.

Sanction imprisonment from six months to six years and a fine of up to three times the value

of the property. In these cases, judges or courts, taking into account the seriousness

of the fact and the personal circumstances of the offender, may also impose on him

the penalty of special disqualification for the exercise of his profession or industry

for one to three years, and agree The measure of temporary or definitive closure of

the establishment or premises. If the closure is temporary, its duration may not

exceed five years.

The penalty shall also be imposed in its upper half when the property has its origin

in any of the crimes included in Chapters V (bribery), VI (trafficking in influence),


75

VII (embezzlement), VIII, IX and X of Title XIX (crimes against the public

administration) or in any of the offences of Chapter I of Title XVI.

Elements of the offence for art. 301 Criminal Code Spain (money laundering).

The definition of money laundering contained in art. 301 Criminal Code of Spain complies with the

international instruments. The elements referring to the participation in an offence of money

laundering are contained in art. 28 Criminal Code of Spain.

It should be noted that Spanish money laundering legislation has an all crimes approach to the

predicate offence to money laundering. Moreover, art. 301 also provides for self-laundering.

No further comments have been made in relation to the implementation of the criminal offence of

money laundering in mutual evaluation reports of Spain.


The elements of the offence of obstruction of justice are defined under art. 464 Criminal Code of

Spain:


1. Any person who, with violence or intimidation, intends to directly or indirectly

influence whoever is a complainant, party or defendant, lawyer, solicitor, expert,

interpreter or witness in a proceeding to modify his or her legal proceedings, shall

be punished with the penalty of imprisonment of one to four years and a fine of six

to twenty-four months.

If the perpetrator reaches his goal, the penalty will be imposed on its upper half.

2. The same penalties shall be imposed on anyone who carries out any act against

the life, integrity, liberty, sexual freedom or property, as a reprisal against the

persons mentioned in the preceding paragraph, for their performance in judicial

proceedings, without prejudice to the penalty corresponding to the infringement of

which such facts are constitutive.

Subject Any person.

Conduct To influence complainant, party or defendant, lawyer, solicitor, expert,

interpreter or witness;

To carry out any act against the life, integrity, liberty, sexual freedom or

property, as a reprisal against the persons mentioned above.

Object To modify his or her legal proceedings.

To retaliate against persons

Purpose To obstruct justice

Sanction Imprisonment of one to four years and a fine of six to twenty-four months.

Elements of the offence for art. 464 Criminal Code of Spain (obstruction of justice).


76

The definition contained in art. 464 Criminal Code of Spain complies with the international

instruments (UNODC, 2011, 29). No further comments have been made in relation to its

implementation in mutual evaluation reports of Spain.


Liability of legal persons under Spanish law is generally provided in art. 31bis Criminal Code of

Spain, which provides for criminal liability of legal persons as well as for civil liability for the

damages incurred (UNODC, 2011, 30).

The Criminal Code of Spain furthermore specifically ensures criminal liability for the following

offences:

Money laundering

Bribery

Trading in influence

Bribery of a foreign public official;

Organised criminal groups.

In relation to the implementation of the provision of liability of legal persons, it should be noted that

art. 31bis.1 requires that a legal person incurs in liability when its legal representatives or

administrators (de jure or de facto) have carried out such functions on their behalf. This appears to be

a limitation in relation to the international instruments, which requires that the level of authority of

the person whose conduct triggers the liability of the legal person is flexible and reflects the wide

variety of decision-making systems in legal persons. From the text contained in the Criminal Code of

Spain, however, it is unclear whether the terms “legal representatives or administrators (de jure or de

facto)” allow for such flexibility.

Another implementation gap under Spanish law is the exception made to state-owned companies,

which are not criminally liable. The international instruments require that no such exception be made

in relation to state-owned companies.


Statute of limitations under Spanish law is provided in art. 131.1 Criminal Code of Spain, which

establishes the following terms:

20 years, when the maximum penalty is imprisonment of 15 or more years;

15 years, when the maximum penalty is imprisonment of more than 10 years, but less than 15

years;

10 years, when the maximum penalty is imprisonment of more than 5 years, but less than 10

years.

5 years, for the remaining offences.


77

Thus, for corruption-related offences and money laundering in Spain, the statute of limitations is of

15 years, computed from the moment that the offence took place (art. 132 Criminal Code of Spain).

Spain does not have regulation on interruption of statute of limitations where the alleged offender has

evaded justice (UNODC, 2011, 35).

The mutual evaluation reports indicate that the statute of limitations provided in Spain are sufficient

and thus Spain has complied and implemented the requirement of international instruments.

4.3.3.8 Sanctions

The sanctions provided by the Spanish law provides concomitantly for several years of imprisonment

(on average 3 to 6 years), fines and disqualification for employment or public office. These changes

have been recently introduced (UNODC, 2011, 35) in the Criminal Code of Spain, making a full

evaluation of its implementation difficult.


The main element to be reviewed in relation to MLA relates to the requirement of affording

assistance in vis-à-vis dual criminality requirements. In the case of Spain, it is not possible for it to

afford assistance to another country when the dual criminality requirement has not been met for

coercive measures.

4.4 Sweden

4.4.1 Summary

Explicitly indicate in the legal definition of bribery that it may occur both directly or indirectly.

No definition of gross for the offence of bribery.

Recognition of foreign public officials which Sweden recognises the international organisation.

Consider widening the scope of application for the offence of trading in influence, so it does not

apply only to cases of exercise of public authority and public procurement.

Ensure that self-laundering is included in the new Act on Penalties for Money Laundering

Offences.

Review the regime of liability of legal persons and corporate fines.

No interruption of the statute of limitations when the alleged offender has evaded justice.


Treaties ratified by Sweden are not part of the domestic law upon ratification. They require until a

special law has made such an international instrument applicable. The following treaties, relevant to

the present policy paper, have been internalised by Sweden:


April 2004;


78

The United Nations Convention Against Corruption (UNCAC), ratified on 25 September 2007;

European Convention on Mutual Assistance in Criminal Matters (ETS 30), ratified on 01

February 1968;


99), ratified on 13 June 1979;


Matters (ETS 182), signed on 20 January 2014;


(ETS 141), ratified on 15 July 1996;


Crime and on the Financing of Terrorism (CETS 198), ratified on 23 June 2014;

Criminal Law Convention on Corruption (ETS 173), ratified on 25 June 2004;


June 2004;

Civil Law Convention on Corruption (ETS 174), ratified on 25 June 2004;

OECD Anti-Bribery Convention, ratified on 1 July 1999.

Moreover, Sweden is a member of the EU, the OECD, the Council of Europe’s GRECO, and FATF.

4.4.3 Compliance with international instruments





The definition of national and foreign public officials, and officials of public international

organisations is contained in the definition of “employee” found in Chapter 20, Section 2, para. 2

Criminal Code of Sweden:

(…)

The provisions of the first paragraph in respect of an employee shall also apply to:

1. a member of a directorate, administration, board, committee or other such agency belonging to the

State, a municipality, county council, association of local authorities, parish, religious society, or social

insurance office,

2. a person who exercises a assignment regulated by statute,

3. a member of the armed forces under the Act on Disciplinary Offences by Members of the Armed

Forces, etc. (1986:644), or other person performing an official duty prescribed by Law,

4. a person who, without holding an appointment or assignment as aforesaid, exercises public

authority, and


79

5. a person who, in a case other than stated in points 1-4, by reason of a position of trust has been given

the task of managing another's legal or financial affairs or independently handling an assignment

requiring qualified technical knowledge or exercising supervision over the management of such affairs

or assignment. (Law 1993:207)

6. a minister of a foreign state, member of the legislative assembly of a foreign state or a member of a

body of a foreign state which corresponds to those referred to in 1.

7. a person who, without holding an employment or assignment as aforesaid, exercises public authority

in a foreign state or a foreign assignment as arbitrator,

8. a member of supervisory body, governing body or parliamentary assembly of a public international

or supranational organisation of which Sweden is a member, and 9. a judge or official of an

international court whose jurisdiction is accepted by Sweden.

Moreover, the Swedish authorities have clarified that, “an ‘employee’ refers to a person who is an

employee as defined by civil law. No account should be taken of whether the employment is full-

time or part-time, open-ended or fixed-term. Nor does it have any significance whether the employer

is a legal or natural person.” (UNODC, 2013c, 32).

The definition of undue advantage is understood in Swedish law to include non-pecuniary rewards. It

can be of any kind; pecuniary, material or intellectual. While the definition is not contained in the

Criminal Code, it is contained in the preparatory works45

of the Criminal Code (UNODC, 2013c,

para. 28).


The elements of the offence of active bribery for a (national) public officials are defined under

Chapter 10, Section 5b Criminal Code of Sweden

Definition Anyone who gives, promises or offers an undue advantage to a person mentioned

in section 5a46

, and under circumstances described therein, shall be sentenced for

giving a bribe to a fine or imprisonment for at most two years.


Conduct To give;

To promise;

To offer.

Object Any undue advantage

45 Sweden clarified that, “according to established legal tradition, explanations in the preparatory works of a law are

regarded as a reliable source of clarification of legal texts, very much in the same way as case law.”(4) 46 Chapter 10 Section 5 a Criminal Code of Sweden deals with passive bribery (see section below). The subject of a

passive bribery under Swedish law is any natural or legal person who is employed or performs a function.


80

Purpose For the performance of employment or function of a person mentioned in section 5

a.

Sanction a fine or imprisonment for at most two years (Chapter 10, Section 5a).

Where an offence under sections 5a or 5b is to be considered gross, imprisonment

for at least six months and at most six years shall be imposed for gross taking of a

bribe or gross giving of a bribe (Chapter 10, Section 5c).

Elements of the offence for Chapter 10, Section 5b Criminal Code of Sweden (active bribery of national public officials).

The definition contained in Chapter 10, Section 5b Criminal Code of Sweden complies with the

international instruments. The comments made in relation to passive bribery of a national public

official under the Criminal Code of Sweden are also applicable to active bribery.


The elements of the offence of passive bribery of a (national) public official under UNCAC are

defined under in Chapter 10 Section 5a Criminal Code of Sweden:

Definition Anyone who is employed or performs a function and receives, agrees to receive or

requests an undue advantage for the performance of his or her employment or

function shall be sentenced for taking a bribe to a fine or imprisonment for at most

two years. The same applies to contestants and officials in a contest that is open to

public betting, provided that it is an undue advantage for the performance of his or

her function in the course of the contest.

The first subsection also applies if the offence was committed before the offender

gained a position mentioned therein or after that position was terminated.

The offence of taking a bribe under the first and second subsections is an offence

also if the advantage is received, agreed to be received or requested for a third

party.

Subject Any person, whether natural or legal47

, who is employed or performs a function.

Conduct To request;

To agree to receive.


Purpose For the performance of his or her employment or function.

Sanction A fine or imprisonment for at most two years (Chapter 10, Section 5b).

Where an offence under sections 5a or 5b is to be considered gross, imprisonment

for at least six months and at most six years shall be imposed for gross taking of a

47 The provision of passive bribery under the Criminal Code of Sweden applies to persons in both the private and

public sector, regardless of the nature of their function or their nationality (UNODC, 2013c, para. 26).


81

bribe or gross giving of a bribe (Chapter 10, Section 5c).

Elements of the offence for Chapter 10 Section 5a (passive bribery of a national public official).

The definition contained in Chapter 10 Section 5a Criminal Code of Sweden complies with

international instruments. Notwithstanding, some explanation is required to understand the

implementation of the provision:

Chapter 10 Section 5a Criminal Code of Sweden uses the term “function” which, while well known

in Swedish law, is not specifically defined in the Criminal Code. A function can be the result of an

agreement, a contract, an election, a duty or a mandate (UNODC, 2013c, para 26).

Although the words “directly or indirectly” are not contained in the text of Chapter 10, section 5a

Criminal Code of Sweden, it does not matter if the offence is committed directly or indirectly

(UNODC, 2013c, para. 29).

The offence includes undue advantages for third parties as well as for the official himself (UNODC,

2013c, para. 30).

With regards to implementation gaps, it should be noted that the offence of passive bribery in

Sweden (which includes national, foreign public officials and officials of public international

organisations) includes public authorities acting on behalf of a foreign state or a foreign assignment.

However, in relation to officials of public international organisations, these are only recognised as

such where Sweden recognises the authority of the international organisation, whether through

membership or jurisdiction. Therefore, Sweden should take efforts to broaden its definition of

officials of public international organisations, to include those which Sweden does not recognise the

authority.

Furthermore, Sweden should take steps to explicitly indicate in its legislation that passive bribery

may occur either directly or indirectly.

The Criminal Code of Sweden does not define or indicate the elements to consider when a case is to

be considered “gross”. While the notion of “gross” crime is not new in the Criminal Code of Sweden,

the particular offences which contain it normally indicate what constitutes as “gross”. This, however,

is not the case with active and passive bribery (OECD 2005b, para. 156). The preparatory works

indicates that circumstances would have to be taken into account, such as the amount of the bribery,

whether it was a systematic recourse and the size of the advantage received (UNODC, 2013c, para.

157). Swedish authorities should therefore take steps to clarify the distinction between bribery and

“gross” bribery.

4.4.3.1.3 Active bribery of foreign public officials and officials of public international organisations

The elements of the offence of active bribery of a foreign public official and officials of public

international organisations are defined under Chapter 10, Section 5b Criminal Code of Sweden.


82

Thus, this report refers to the comments made concerning the compliance and implementation of the

provision of active bribery of national public officials, with the following additional information:

Chapter 20, Section 2, para. 7 “a person who, without holding an employment or assignment as

aforesaid, exercises (…) a foreign assignment as arbitrator” implements the 2003 Additional

Protocol to the Criminal Law Convention on Corruption (UNODC, 2013c, para. 151).



defined Chapter 10, Section 1, 4 and 5 Criminal Code of Sweden:

Definition Section 1

A person who, through a contract or public or private service or a similar position,

has gained possession of property on behalf of another with the obligation to

deliver it or account for it, and appropriates the property or otherwise disregards

what he has to comply with in order to be able to comply with his obligation, shall,

if the act results in gain for him and loss for the owner, be sentenced for

embezzlement to imprisonment for at most two years.

Subject Any person, whether natural or legal, through a contract or public or private

service or a similar position

Conduct To embezzle.

To breach faith.

Object Gained possession of property on behalf of another who the person has the

obligation to deliver or account for it.

Purpose Disregards what he has to comply with in order to be able to comply with his

obligation.

Sanction A fine or imprisonment for at most two years.

Elements of the offence for Chapter 10, Section 1 (embezzlement, misappropriation or other diversion of property).


A person who, in a case other than one provided for earlier in this Chapter, takes

any step concerning property in his possession to which the right of ownership or

legal security is reserved for, guaranteed to or otherwise belongs to another and by

such step the latter is dispossessed of his property or otherwise deprived of his

right, shall be sentenced for unlawful disposal to a fine or imprisonment for at

most two years.

Subject Any person, whether natural or legal, through a contract or public or private

service or a similar position.

Conduct To unlawfully dispose


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Object Property in his possession to which the right of ownership or legal security is

reserved for, guaranteed to or otherwise belongs to another and by such step

Purpose Property or otherwise deprived of the other person’s right




A person who, by reason of a position of trust has been given the task of managing

another's financial affairs or independently handling an assignment requiring

qualified technical knowledge, or exercising supervision over the management of

such affairs or assignment, abuses his position of trust and thereby injures his

principal, shall be sentenced for breach of faith committed by an agent against his

principal to a fine or imprisonment for at most two years. The foregoing does not

apply if the crime is punishable under Sections 1-3.

Subject Any person, whether natural or legal, by reason of a position of trust.

Conduct To breach faith.

Object Given the task of managing another's financial affairs or independently handling

an assignment requiring qualified technical knowledge, or exercising supervision

over the management of such affairs or assignment.

Purpose Thereby injuring his principal.



The definition contained in Chapter 10, Section 1, 4 and 5 Criminal Code of Sweden complies with

the international instruments. It should be noted that embezzlement in Sweden covers both public and

private funds, as well as securities and other things of value (UNODC 2013c, para. 58).


The amendments to the Criminal Code of Sweden contain two new offences: trading in influence and

negligent financing of bribery. The trading in influence statute criminalises the receipt of an undue

advantage for the purpose of influencing a third person (e.g. a foreign public official) in connection

with the exercise of public authority or a public procurement. It also makes it an offence to bribe a

person to influence a third party (e.g., a foreign public official) in connection with public

procurement.

Although the new provision refers to “a commercial organisation”, Swedish officials explained that a

legal person could not be held criminally liable, and the criminal offence would apply only to its


84

employees or natural persons associated with the company. In order for corporate fines to be

imposed, it is necessary for someone within the commercial organisation to have acted grossly

negligently, although it is not necessary to convict the natural person According to Swedish officials,

the standard of gross negligence is used throughout Swedish criminal law, but the preparatory works

of the law would further elaborate on the standard. A company’s procedures and policies would also

be relevant in determining whether there was gross negligence (UNODC, 2013c, para. 25).


The elements of the offence of active trading of influence are defined under Chapter 10, Section 5d,

para. 2 Criminal Code of Sweden:

Definition A person shall be sentenced for trading in influence to a fine or imprisonment for

at most two years if he or she, in other cases than those covered by section 5 a and

5 b,

2. gives, promises or offers to a person an undue advantage for that person to

influence the decision or measure of a third person in connection with the exercise

of public authority or public procurement.


Conduct To give;

To promise;

To offer.


Purpose to influence the decision or measure of a third person in connection with the

exercise of public authority or public procurement.

Sanction A fine or imprisonment for at most two years

Elements of the offence for Chapter 10, Section 5d, para. 2 Criminal Code of Sweden (active trading in influence).

The definition contained in Chapter 10, Section 5b para. 2 Criminal Code of Sweden partially

complies with the international instruments.

In terms of implementation, the offence of active trading in influence in Sweden is only applicable in

relation to cases of exercise of public authority and public procurement (UNODC 2013c, para. 66).

Sweden has made a reservation in relation to the offence of active trading in influence in relation to

ETS 173. Sweden also noted in its mutual evaluation that no additional criminalization of trading in

influence is currently under consideration (UNODC, 2013c, para 65).


85


The elements of the offence of passive trading in influence are defined under Chapter 10 Section 5d,

para. 1 Criminal Code of Sweden:

Definition A person shall be sentenced for trading in influence to a fine or imprisonment for

at most two years if he or she, in other cases than those covered by section 5a and

5b,

1. receives, agrees to receive or requests an undue advantage for influencing the

decision or measure of a third person in connection with the exercise of public

authority or public procurement, or


Conduct To receive;

To agree to receive.

To request


Purpose To influence the decision or measure of a third person in connection with the

exercise of public authority or public procurement


Elements of the offence for Chapter 10, Section 5d, para. 1 Criminal Code of Sweden (passive trading in influence).


complies with the international instruments. The comments made in relation to active trading in

influence also apply to passive trading in influence.


The elements of the offence of money laundering are defined under Chapter 9, Sections 6, 6a, 7 and

7a Criminal Code of Sweden48

.

Definition Section 6 - Receiving

A person who

1. takes possession of something of which another has been dispossessed by a

crime, and does so in such a manner that the nature thereof renders its restitution

difficult,

48 Sweden has enacted a new law on Penalties for Money Laundering Offences which entered into force on 1 July 2014(NO

CITED PAGES FOR REPEATED CITATION, para. 107). Unfortunately, it was not possible to obtain an English version of

the new law in English, and thus this section has reviewed compliance and implementation with international

standards based on the previous law.


86

2. procures an improper gain from another’s proceeds of crime,

3. improperly promotes the opportunity for another to take advantage of property

emanating from the proceeds of crime, or the value of such property,

4. assists in the removal, transfer, or sale of property which is derived from the

proceeds of crime, or takes some similar measure, with the intention of concealing

the origin of property, or

5. by demand, transfer or other similar means asserts a claim arising from a crime,

Shall be sentenced for receiving to imprisonment for at most two years.

A person who, in business activities or as part of business activities which are

conducted habitually or otherwise on a large scale, acquires or receives something

which may reasonably be assumed to have been misappropriated from another

person by a crime, and does so in such a manner that the nature thereof renders its

restitution difficult, shall be similarly sentenced for receiving.

If the crime referred to in the first or second, paragraph is gross, imprisonment for

at least six months and at most six years shall be imposed.

Section 6 a - Money Receiving

A person who

1. improperly promotes the opportunity for another to take advantage of property

emanating from the proceeds of crime, or the value of such property,

2. assists in removal, transfer, or sale of property which is derived from the

proceeds of crime, or take some similar measure, with the intent of concealing the

origin of property shall be sentenced for money receiving to imprisonment for at

most two years.

A person who, in cases other than those mentioned in the first paragraph,

improperly participates in removing, transferring, conveying, or taking other

measures with property with the intention to conceal that another person has

enriched himself or herself through a criminal act, shall also be sentenced for

money receiving.

If the crime referred to in the first or second paragraph is gross, imprisonment for

at least six months and at most six years shall be imposed.

Section 7 - Petty Receiving

If a crime under Section 6 is considered to be petty, imprisonment for at most six

months or a fine shall be imposed for petty receiving. A sentence for petty

receiving shall also be imposed on a person who

1. in a case other than that provided for in Section 6, second paragraph, acquires or

receives something in such a manner that the nature thereof renders restitution

difficult which may reasonably be assumed to have been misappropriated from

another person by a crime,

2. in a case as provided for in Section 6, first, paragraph, did not realise, but had

reasonable cause to assume that a crime was involved, or

3. in a manner as provided for in Section 6, first, paragraph, point 1, participated in


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the crime whereby property was misappropriated from another and did not realise,

but had reasonable cause to assume, that a crime had been committed.

Section 7 a - Petty Money Receiving

If a crime under Section 6 a) is considered to be petty, imprisonment for at most

six months or a fine shall be imposed for petty money receiving. A sentence for

petty money receiving shall also be imposed on a person who

1. in a case as provided for in Section 6 a, first paragraph, did not realise, but had

reasonable cause to assume that a crime was involved, or

2. in a case provided for in Section 6 a, second paragraph, did not realise, but had

reasonable cause to assume that another person had enriched himself or herself

through a criminal act.


Conduct To take possession;

To procure an improper gain;

To improperly promote;

To assist in the removal;

To transfer;

To sell property derived from proceeds of crime;

To improperly promote the opportunity for another to take advantage

To remove;

To sell;

To acquire;

To receive;

To participate;

Object Proceeds of crime.

Purpose Concealing the origin of property

Sanction Up to six months imprisonment or a fine if the crime is petty

Up to two years imprisonment;

Six months to six years imprisonment if the crime is gross

Elements of the offence Chapter 9, Sections 6, 6a, 7 and 7a Criminal Code of Sweden (money laundering).


complies with the international instruments. The following can be said in relation to the

implementation of the provision vis-à-vis the international requirements:


88

The elements of participation in, association with, or conspiracy to commit money laundering,

and aiding and abetting (art. 23(b)(ii) UNCAC) are contained in chapter 9, section 11 and chapter

23, sections 1-4 Criminal Code of Sweden (UNODC, 2013c, para. 117). Sweden has explained

that the preparatory stages of a crime (attempt, preparation and conspiracy) are criminalised in

relation to more severe form of offences, where the preparatory act is in itself a threat to society.

Given that conspiracy and preparation occur at earlier stages in a criminal plan, these are

criminalised to a lesser extent that preparation (UNODC, 2013c, para. 119).

The new Act on Penalties for Money Laundering Offences (in force as of 1 July 2014),

criminalises attempt, preparation and conspiracy to commit a money laundering offence (which is

not petty), as well as complicity (aiding, abetting, facilitating and counselling the commission of

the offence) (UNODC, 2013c, para. 121).

Sweden applies an “all crimes approach” in relation to predicate offences to a money laundering

offence. That is, any crime (including tax crimes) which by its design can generate proceeds, can

constitute predicate offences to receiving and money receiving. That means that e.g. theft, fraud,

embezzlement, all forms of bribery, illegal gambling and trafficking can constitute predicate

offences. Tax crimes cannot be a predicate offence to receiving but to money receiving if

committed to hide enrichment through criminal conduct (UNODC, 2013c, para. 125).

It does not matter if the predicate offence was committed within or outside Sweden.49

Regarding the implementation of self-laundering in Sweden the reviewed legislation for this policy

paper does not include self-laundering. However, the new Act on Penalties for Money Laundering

Offences includes the offence of “self-laundering” (UNODC, 2013c, para. 136).


The elements of the offence of obstruction of justice are criminalised in Chapter 15, Sections 1, 2, 3

and 8, and Chapter 17 Sections 1, 2, 10 and 11 Criminal Code of Sweden.

Definition Chapter 15

Section 1

A person who, under legal oath, gives untrue information or withholds the truth,

shall be sentenced for perjury to imprisonment for at most four years or, if the

crime is petty, to a fine or to imprisonment for at most six months. If the crime is

gross, imprisonment for at least two and at most eight years shall be imposed. In

assessing whether the crime is gross, special attention shall be paid to whether it

was done with the intent that an innocent person be convicted of a serious crime or

that very considerable harm was done to someone.

Subject Any person, whether natural or legal, under legal oath.

49 In this regard, Section 2, paragraph 2 of the new Act on Penalties for Money Laundering Offences, the Act covers a crime

under the law of another jurisdiction as long as the act corresponds to a crime under Swedish law(NO CITED PAGES

FOR REPEATED CITATION, para. 131-132).


89

Conduct To give;

To withhold.

Object Untrue information;

The truth.

Purpose To make a misrepresentation under oath (perjury).

Sanction Imprisonment for at most four years;

To a fine or to imprisonment for at most six months (if the crime is petty);

Imprisonment for at least two and at most eight years (if the crime is gross).



Section 2

A person who, during a hearing in court proceedings, after declaring that he will

tell the truth gives untrue information or withholds the truth, shall be sentenced for

untrue statement by a party to imprisonment for at most two years or, if the crime

is petty, to a fine or imprisonment for at most six months.

Subject A person during a hearing in court proceedings.

Conduct To give;

To withhold.


The truth.

Purpose To provide an untrue statement.

Sanction Imprisonment for at most two years;

To a fine or imprisonment for at most six months (if the crime is petty).



Section 3

A person who commits an act, as described in Section 1 or 2, through gross

negligence, shall be sentenced for careless statement, to a fine or imprisonment for

at most six months.

Subject Any person, whether natural or legal, under legal oath.

A person during a hearing in court proceedings.


90

Conduct To give;

To withhold.


The truth.

Purpose To make a misrepresentation under oath (perjury);

To provide an untrue statement.

Sanction A fine or imprisonment for at most six months.



Section 8

A person who tampers with or removes evidence with the intent that an innocent

person be convicted, or with such intent invokes false evidence, shall be sentenced

for tampering with evidence to imprisonment for at most two years or, if the crime

is petty, to a fine or imprisonment for at most six months.


Conduct To tamper;

To remove.

Object Evidence.

Purpose Intent that an innocent person be convicted;

Such intent invokes false evidence.

Sanction Imprisonment for at most two years

Imprisonment for at most six months (if the crime is petty).



Section 1

A person who, by violence or threat of violence, attacks anyone in his exercise of

public authority or compels him to perform or to prevent him from performing an

official act or for the purpose of taking revenge for such act, shall be sentenced for

violence or threat to public servant to imprisonment for at most four years or, if the

crime is petty, to a fine or imprisonment for at most six months. This also applies

if a person assaults someone who has previously exercised public authority for


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something the latter did or failed to do while in office.


Conduct To attack;

To compel;

To assault

Object Anyone in his exercise of public authority;

A person in his exercise of public authority to perform or to prevent him from

performing an official act;

Someone who has previously exercised public authority;

For something the latter did or failed to do while in office.

Purpose To take revenge for such act.

Sanction Imprisonment for at most four years;

To a fine or imprisonment for at most six months (if the crime is petty).



Section 2

A person who, otherwise than stated in Section 1, in order to compel or prevent

someone in his exercise of public authority or in order to take revenge for an

official action, wrongfully engages in an act which causes such person suffering,

injury or inconvenience, or threatens to have such consequence, shall be sentenced

for outrageous conduct toward a public servant to a fine or imprisonment for at

most six months. If the crime is gross, imprisonment for at most four years shall be

imposed.


Conduct To compel;

To prevent;

To take revenge.

Object Someone in his exercise of public authority;

For an official action.


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Purpose Wrongfully engages in an act which causes such person suffering, injury or

inconvenience, or threatens to have such consequence.

Sanction A fine or imprisonment for at most six months.

Imprisonment for at most four years (if the crime is gross).



Section 10

A person who, by violence or threat of violence, assaults someone because he has,

in court or before other authority, filed a complaint, pleaded a cause, testified, or

else made a statement at a hearing, or to prevent him from so doing, shall be

sentenced for interference in a judicial matter to a fine or to imprisonment for at

most two years. The same shall apply to a person who by some other act causes

suffering, injury or inconvenience, or by threat of such act, assaults someone

because the latter testified or made some other statement at an official hearing, or

does so to prevent the making of such a statement. If the crime is gross,

imprisonment for at least six months and at most six years shall be imposed.


Conduct To assault, by violence or threat of violence;

To assault, causing some other person an act of suffering, injury or

inconvenience, or by threat of such act.

Object Someone.

Purpose Because he has, in court or before other authority, filed a complaint, pleaded a

cause, testified, or else made a statement at a hearing, or to prevent him from so

doing.

Because he has testified or made some other statement at an official hearing, or

does so to prevent the making of such a statement.

Sanction Imprisonment for at least six months and at most six years (If the crime is gross).



Section 11

A person who hides someone who has committed a crime, helps him to escape,

destroys evidence concerning the crime, or on other like ways thwarts its

discovery or prosecution, shall be sentenced for protecting a criminal to a fine or

to imprisonment for at most one year. If the crime is gross, imprisonment for at

least six months and at most four years shall be imposed. A person who did not

realize but had reasonable grounds to assume that the other was a criminal, shall

be sentenced to pay a fine. No sentence shall be imposed if having regard to the

relationship of the accused to the criminal and other circumstances the crime is


93

considered to be petty.

Subject Any person.

Conduct To hide;

To help;

To destroy.

Object Someone who has committed a crime;

Someone escape;

Evidence concerning the crime.

Purpose Thwart the discovery or prosecution of a crime.

Sanction A fine or to imprisonment for at most one year;

A person who did not realize but had reasonable grounds to assume that the other

was a criminal, shall be sentenced to pay a fine;

To pay a fine (if a person did not realise but had reasonable grounds to assume that

the other was a criminal);

No sentence (if, having regard to the relationship of the accused to the criminal

and other circumstances, the crime is considered to be petty).


Although the definition of obstruction of justice under the Criminal Code of Sweden is not a

standalone offence, it is compliant with art. 25 UNCAC.

With regards to implementation, the requirements under Swedish law do not deal with the

requirement of “giving an undue advantage to induce false testimony” (art. 25(a) UNCAC).

However, the Swedish authorities explained that in such circumstances the person giving the undue

advantage would be considered an instigator under Chapter 23 (on attempt, preparation, conspiracy

and complicity) read together with Chapter 15, Section 2 Criminal Code of Sweden. Thus, Sweden

should take steps to criminalise the conduct referred in art. 25(a) UNCAC in a separate offence,

ensuring that the perpetrator can be punished as the author of the crime, and not merely as an

accessory to the perpetrator of the main offence (UNODC, 2013c, para. 147).


Legal persons cannot commit crimes under Swedish law. Chapter 36, Section 7(2) Criminal Code of

Sweden establishes that, if a crime has been committed in the course of business, the legal person is

liable to corporate fines under the following conditions (UNODC, 2013c, para. 153):

The legal person has not done what could reasonably be required of it for prevention of the

crime;


94

If the crime was committed by a person who has the leading position based on a power of

representation of the entrepreneur or an authority to take decisions on behalf of the legal person;

or

The crime was committed by a person who otherwise has had a special responsibility of

supervision or control of the business.

Corporate fines are considered to be a special legal consequence of a crime (other than punishment of

payment of damages). The action to pay corporate fines is handled in criminal proceedings, despite

the fact that Swedish Law does not regulate criminal liability of legal persons (UNODC, 2013c, para

154). Chapter 36, Section 8 Criminal Code of Sweden establishes the corporate fine ranging from

SEK 5.000 to SEK 10.000.000.

Corporate fines are triggered by a person in a position of authority. Despite this, a corporate fine may

be applied when the legal person has not done what reasonably could be required of it for the

prevention of the crime. Thus, corporate fines can be applied regardless of who has committed the

crime (UNODC, 2013c, para. 166). Sweden also noted that a conviction of the natural person who

perpetrated the offence is not needed to establish liability of the legal person (UNODC, 2013c, para.

167).

However, it should be noted that the corporate fines mechanism appears to allow corporations to

escape liability through the use of intermediaries, subsidiaries, or non-Swedish employees (OECD

2012a, para 43). Furthermore, it is not possible to aggregate the intent across several individuals

within the company to establish intent; the intent must be located within one individual within the

company (UNODC, 2013c, para 43).

The regime of liability of legal persons currently in place in Sweden, for the reasons set forth above,

do not seem to be very effective. The OECD, UNODC and GRECO are unequivocal on the need to

reform the regime of legal liability in Sweden to ensure effective sanctioning of legal persons

(UNODC 2013c, para. 169; Oecd 2005a; GRECO 2005a, para. 89)


Chapter 35, Section 1 Criminal Code of Sweden establishes statute of limitations. Given that the

punishment for corruption-related offences in Sweden is, with the exception of petty offences,

between 2 to 8 years, it thus means that the statute of limitations is of 10 years (Chapter 35, Section

1(3) Criminal Code of Sweden). The statute of limitation commences with the commission of the act,

irrespective of knowledge of the authorities (UNODC 2013c, para. 204).

A potential implementation gap refers to the fact that Swedish Law does not provide for suspension

of the Statute of Limitations when the alleged offender has evaded justice (UNODC, 2013c, para.

206). Therefore, Sweden should consider amending the legislation to provide for the suspension of

the statute of limitations period in cases where the alleged offender has evaded the administration of

justice (UNODC, 2013c, para. 207).


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4.4.3.8 Sanctions

The reviewing experts noted that the maximum amount of the corporate fines, even after the 2006

amendments, amount to little more than €1 million. They questioned the deterrent effect of such fines

for large companies. During the country visit, Sweden explained that a company convicted of

corruption would not only have to pay a fine but also suffer a reputational damage. In that respect,

the court can issue a press release with details of the case. Nevertheless, the reviewing experts

thought that arguments in favour of lower sanctions were less relevant in case of legal persons. In

order to ensure that legal persons held liable in accordance with this article are subject to effective,

proportionate and dissuasive fines, they recommend that such fines be expressed as a percentage of

the company’s turnover. The maximum fine could be set at 10% of the annual world-wide turnover

of the company (cf. e.g. the 10% ceiling in the EU competition Regulation 1/2003). In the alternative,

a much higher upper limit (e.g. SEK 100 million) is recommended (UNODC, 2013c, para. 177-178).

The reviewing experts conclude that Sweden’s legislation is fully in compliance with Art. 30(1)

UNCAC. (UNODC, 2013c, para. 212).

The rules concerning corporate fines have been changed through legislative amendments that came

into force on 1 July 2006. These changes are intended to make the system of corporate fines more

effective and increase the practical use of the sanction. The requirement that the crime must have

entailed a gross disregard of the obligations associated with the business activity or otherwise be of a

serious nature has been abolished. Furthermore, the maximum fine has been raised from SEK 3

million to SEK 10 million. In addition a simplified procedure has been prescribed for fines not

exceeding SEK 500 000. In such cases corporate fines may be imposed directly by a prosecutor

through summary imposition of a fine, which is expected to further encourage practical use being

made of the institution of corporate fines (OECD 2007, 15).

It is worth noting that the possibility to investigate and prosecute crimes committed by foreign public

official in practice is dependent on the other state’s willingness to take part and to assist inter alia in

resolving matters pertaining to secrecy laws. In practice, formal legal assistance is not always a

possible way forward (OECD 2007, 23).

Even though the level of sanctions has increased, it is still clearly far too low to be effective and

dissuasive, in the context of Sweden’s economy. Article 3 of the Convention provides that penalties

for foreign bribery must be “effective, proportionate, and dissuasive” (Article 3(2)). The available

fines are particularly low especially when considering that confiscation is rarely imposed on legal

persons in bribery cases. Swedish authorities repeatedly cited that reputational harm has a strong

deterrent effect within Swedish society that outweighs monetary sanctions (OECD, 2012a, para 57).


Sweden regulates MLA through internal legislation Act on International Legal Assistance in

Criminal Matters (2000:562). Sweden can furnish assistance to requesting jurisdictions based on its

legislation and without the need for a treaty to be in place (UNODC 2013c, para. 541). Dual


96

criminality is a requirement with regard to coercive measures (UNODC, 2013c, para. 641). Sweden

is largely compliant with the international instruments under review.

4.5 United Kingdom

4.5.1 Summary

Incomplete provisions for active trading in influence: the provisions do not contain the use of

private intermediaries to induce the decision maker;

Money laundering offence does not criminalise the predicate offence if it occurred out of the UK

and was not unlawful under the laws of the other jurisdiction at the time of the events.

Limited effectiveness of the criminal liability of legal persons with the use of the identification

theory.

The UK can give unlimited monetary sanctions to legal persons, to take into consideration the

gravity of the offence.

Dual criminality is a requirement under UK law to afford assistance in coercive measures in

MLA.


Treaties are not, upon ratification, automatically incorporated into UK law. In dualist states a treaty

which has been ratified does not alter the laws of the state until it is incorporated into national law by

legislation. Thus, the UK only ratifies international conventions once UK law is deemed compliant

(UNODC, 2013d, 2).

The following treaties, relevant to the present policy paper, have been ratified by the UK and are

applicable as internal law:


February 2006;

The United Nations Convention Against Corruption (UNCAC), ratified on 9 February 2006;

European Convention on Mutual Assistance in Criminal Matters (ETS 30), ratified on 29 August

1991;


99), ratified on 29 August 1991;


Matters (ETS 182), ratified on 30 June 2010;

Criminal Law Convention on Corruption (ETS 173), ratified on 09 December 2003;

OECD Anti-Bribery Convention, ratified on 14 December 1998.


97

4.5.3 Compliance and implementation of international standards





The UK legislation does not use the concept of public officials for bribery offences. It rather focuses

on the notion of a “relevant public function” (section 3 UK Anti-Bribery Act 2010). This notion

encompasses all persons performing a public function or providing a public service, including

members of Parliament, employees of public enterprises, soldiers and public servants serving abroad

(UNODC, 2012, para 18).

A public function is defined in Section 2 UK Bribery Act 2010, which establishes that it is any: (i)

function of a public nature; (ii) activity connected with a business; (iii) any activity performed in the

course of a person’s employment; or (iv) any activity performed by or on behalf or a legal person.

Section 3 also requires the person carrying out the public function: (i) to perform it in good faith; (ii)

to perform it impartially; and (iii) is in a position of trust by virtue of performing it.

The definitions for “foreign public official” and “officials of a public international organisation” in

the UK legislation (Section 6(5) UK Bribery Act 2010)50

reflect those contained in international

standards.


The elements of the offence of active bribery of (national) public officials are defined under Section

1 of the Bribery Act 2010:

Definition 1 Offences of bribing another person

(1) A person (“P”) is guilty of an offence if either of the following cases applies.

(2) Case 1 is where—

(a) P offers, promises or gives a financial or other advantage to another person,

and

(b) P intends the advantage—

(i) to induce a person to perform improperly a relevant function or activity, or

50 Section 6(5) “Foreign public official” means an individual who— (a)holds a legislative, administrative or judicial position of any kind, whether appointed or elected, of a country or

territory outside the United Kingdom (or any subdivision of such a country or territory),

(b)exercises a public function—

(i)for or on behalf of a country or territory outside the United Kingdom (or any subdivision of such a country or

territory), or

(ii)for any public agency or public enterprise of that country or territory (or subdivision), or

(c)is an official or agent of a public international organisation.


98

(ii) to reward a person for the improper performance of such a function or activity.


(a) P offers, promises or gives a financial or other advantage to another person,

and

(b) P knows or believes that the acceptance of the advantage would itself

constitute the improper performance of a relevant function or activity.

(4) In case 1 it does not matter whether the person to whom the advantage is

offered, promised or given is the same person as the person who is to perform, or

has performed, the function or activity concerned.

(5) In cases 1 and 2 it does not matter whether the advantage is offered, promised

or given by P directly or through a third party.

Subject Any person, whether natural or legal, directly or indirectly.

Conduct To offer;

To promise;

To give.

Object A financial or other advantage

Purpose To induce a person to perform improperly a relevant function or activity

To reward a person for the improper performance of such a function or activity.

Sanction 11 Penalties

(1) An individual guilty of an offence under section 1, 2 or 6 is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months,

or to a fine not exceeding the statutory maximum, or to both,

(b) on conviction on indictment, to imprisonment for a term not exceeding 10

years, or to a fine, or to both.

(2) Any other person guilty of an offence under section 1, 2 or 6 is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum,

(b) on conviction on indictment, to a fine.

(3) A person guilty of an offence under section 7 is liable on conviction on

indictment to a fine.

(4) The reference in subsection (1)(a) to 12 months is to be read—

(a) in its application to England and Wales in relation to an offence committed

before the commencement of section 154(1) of the Criminal Justice Act 2003, and

(b) in its application to Northern Ireland, as a reference to 6 months.

Elements of the offence for Section 1 of the Bribery Act 2010 (active bribery of national public officials).

The definition of active bribery of a national public official contained in Section 1 of the UK Bribery

Act 2010 is compliant with the international standards as:


99

It contains the actions of promising, offering or giving.

The notion of undue advantage is subsumed in the notion of a “financial or other advantage”, as

the UK Bribery Act 2010 criminalises the improper performance, which is determined as “what a

reasonable person in the United Kingdom would expect in relation to the performance of the type

of function or activity concerned” (Section 5(1) UK Bribery Act 2010). Furthermore, the notion

of “financial or other advantage” relates to pecuniary or non-pecuniary advantages.

The UK Bribery Act 2010 also includes cases where the financial or other advantage is given

through intermediaries (Section 1(5)).


The elements of the offence of passive bribery of (national) public officials are defined under Section

2 of the Bribery Act 2010.

Definition 2 Offences relating to being bribed

(1) A person (“R”) is guilty of an offence if any of the following cases applies.

(2) Case 3 is where R requests, agrees to receive or accepts a financial or other

advantage intending that, in consequence, a relevant function or activity should be

performed improperly (whether by R or another person).


(a) R requests, agrees to receive or accepts a financial or other advantage, and

(b) the request, agreement or acceptance itself constitutes the improper

performance by R of a relevant function or activity.

(4) Case 5 is where R requests, agrees to receive or accepts a financial or other

advantage as a reward for the improper performance (whether by R or another

person) of a relevant function or activity.

(5) Case 6 is where, in anticipation of or in consequence of R requesting, agreeing

to receive or accepting a financial or other advantage, a relevant function or

activity is performed improperly—

(a) by R, or

(b) by another person at R’s request or with R’s assent or acquiescence.

(6) In cases 3 to 6 it does not matter—

(a) whether R requests, agrees to receive or accepts (or is to request, agree to

receive or accept) the advantage directly or through a third party,


100

(b) whether the advantage is (or is to be) for the benefit of R or another person.

(7) In cases 4 to 6 it does not matter whether R knows or believes that the

performance of the function or activity is improper.

(8) In case 6, where a person other than R is performing the function or activity, it

also does not matter whether that person knows or believes that the performance of

the function or activity is improper.


Conduct To request;

To agrees to receive;

To accept.

Object A financial or other advantage

Purpose A relevant function or activity should be performed improperly, directly or

indirectly, by the person;

A reward for the improper performance;

The improper performance of a relevant function or activity.













101





Elements of the offence for Section 2 of the Bribery Act 2010 (passive bribery of a national public official).

The definition of passive bribery of a national public official contained in Section 2 of the UK

Bribery Act 2010 is compliant with the international standards as:

It contains the actions of requesting or accepting;

The notion of undue advantage is subsumed in the notion of a “financial or other advantage”.

The UK Bribery Act 2010 includes the solicitation or acceptance directly or through third parties.


The elements of the offence of bribery of foreign public officials and officials of public international

organisations are defined under Section 6 UK Bribery Act 2010:

Definition (1) A person (“P”) who bribes a foreign public official (“F”) is guilty of an offence

if P's intention is to influence F in F's capacity as a foreign public official.

(2) P must also intend to obtain or retain—

(a) business, or

(b) an advantage in the conduct of business.

(3) P bribes F if, and only if—

(a) directly or through a third party, P offers, promises or gives any financial or

other advantage—

(i) to F, or

(ii) to another person at F's request or with F's assent or acquiescence, and

(b) F is neither permitted nor required by the written law applicable to F to be

influenced in F's capacity as a foreign public official by the offer, promise or gift.

(4) References in this section to influencing F in F's capacity as a foreign public

official mean influencing F in the performance of F's functions as such an official,

which includes—

(a) any omission to exercise those functions, and

(b) any use of F's position as such an official, even if not within F's authority.

(5) “Foreign public official” means an individual who—

(a) holds a legislative, administrative or judicial position of any kind, whether

appointed or elected, of a country or territory outside the United Kingdom (or any

subdivision of such a country or territory),

(b) exercises a public function—


102

(i) for or on behalf of a country or territory outside the United Kingdom (or any

subdivision of such a country or territory), or

(ii) for any public agency or public enterprise of that country or territory (or

subdivision), or

(c) is an official or agent of a public international organisation.

(6) “Public international organisation” means an organisation whose members are

any of the following—

(a) countries or territories,

(b) governments of countries or territories,

(c) other public international organisations,

(d) a mixture of any of the above.

(7) For the purposes of subsection (3)(b), the written law applicable to F is—

(a) where the performance of the functions of F which P intends to influence

would be subject to the law of any part of the United Kingdom, the law of that part

of the United Kingdom,

(b) where paragraph (a) does not apply and F is an official or agent of a public

international organisation, the applicable written rules of that organisation,

(c) where paragraphs (a) and (b) do not apply, the law of the country or territory in

relation to which F is a foreign public official so far as that law is contained in—

(i) any written constitution, or provision made by or under legislation, applicable

to the country or territory concerned, or

(ii) any judicial decision which is so applicable and is evidenced in published

written sources.

(8) For the purposes of this section, a trade or profession is a business.

Subject Any person, whether natural or legal, directly or indirectly.

Conduct To offer;

To promise;

To give.

Object Any financial or other advantage

Purpose to obtain or retain—

(a)business, or

(b)an advantage in the conduct of business.






103












Elements of the offence for Section 6 of the UK Anti-Bribery Act 2010.

The definition of bribery of foreign public officials and officials of public international organisations

contained in Section 6 UK Bribery Act 2010 is compliant with the international standards as:

It contains the actions of promising, offering or giving.

The notion of undue advantage is subsumed in the notion of a “financial or other advantage”, as

the UK Bribery Act 2010 criminalises the improper performance, which is determined as “what a

reasonable person in the United Kingdom would expect in relation to the performance of the type

of function or activity concerned” (Section 5(1) UK Bribery Act 2010). Furthermore, the notion

of “financial or other advantage” relates to pecuniary or non-pecuniary advantages.

The financial or other advantage given to the foreign public official or to the official of a public

international organisation must intend to obtain or retain a business, or an advantage in the

conduct of business.

While the UK Bribery Act 2010 does not define the terms “public function”, “public agency” and

“public enterprise”, the UK authorities could rely on the definitions provided by the OECD Anti-

Bribery Convention and its commentaries to interpret these terms in the Bribery Act (OECD 2010,

para. 13).



defined under Sections 2, 3, and 4 of the Fraud Act 2006 and Sections 1, 17(1)(a) and (b) of the Theft

Act 1968:

Definition 1 Fraud

(1) A person is guilty of fraud if he is in breach of any of the sections listed in

subsection (2) (which provide for different ways of committing the offence).

(2) The sections are—

(a) section 2 (fraud by false representation),


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(b) section 3 (fraud by failing to disclose information), and

(c) section 4 (fraud by abuse of position).

(3) A person who is guilty of fraud is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months

or to a fine not exceeding the statutory maximum (or to both);


years or to a fine (or to both).

(4) Subsection (3)(a) applies in relation to Northern Ireland as if the reference to

12 months were a reference to 6 months.

2 Fraud by false representation

(1) A person is in breach of this section if he—

(a) dishonestly makes a false representation, and

(b) intends, by making the representation—

(i) to make a gain for himself or another, or

(ii) to cause loss to another or to expose another to a risk of loss.

(2) A representation is false if—

(a) it is untrue or misleading, and

(b) the person making it knows that it is, or might be, untrue or misleading.

(3) “Representation” means any representation as to fact or law, including a

representation as to the state of mind of—

(a) the person making the representation, or

(b) any other person.

(4) A representation may be express or implied.

(5) For the purposes of this section a representation may be regarded as made if it

(or anything implying it) is submitted in any form to any system or device

designed to receive, convey or respond to communications (with or without human

intervention).

3 Fraud by failing to disclose information

A person is in breach of this section if he—

(a) dishonestly fails to disclose to another person information which he is under a

legal duty to disclose, and

(b) intends, by failing to disclose the information—



4 Fraud by abuse of position


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(1) A person is in breach of this section if he—

(a) occupies a position in which he is expected to safeguard, or not to act against,

the financial interests of another person,

(b) dishonestly abuses that position, and

(c) intends, by means of the abuse of that position—



(2) A person may be regarded as having abused his position even though his

conduct consisted of an omission rather than an act.


Conduct To dishonestly make a false representation;

To dishonestly fail to disclose information;

To occupy a position.

Object A false representation;

He or she is under the legal duty to disclose;

He or she is expected to safeguard.

Purpose To make a gain for himself or herself or another;

To cause loss to another;

To expose another to a risk of loss.

Sanction On summary conviction, to imprisonment for a term not exceeding 12 months or

to a fine not exceeding the statutory maximum (or to both);

On conviction on indictment, to imprisonment for a term not exceeding 10 years or

to a fine (or to both).

Elements of the offence for section 1-5 of the Fraud Act 2006 (embezzlement, misappropriation or other diversion of property).

The elements of the offence of theft are defined under Sections 1 to 7 of the Theft Act 1968:

Definition 1 Basic definition of theft.

(1) A person is guilty of theft if he dishonestly appropriates property belonging to

another with the intention of permanently depriving the other of it; and “thief” and

“steal” shall be construed accordingly.

(2) It is immaterial whether the appropriation is made with a view to gain, or is

made for the thief’s own benefit.

(3) The five following sections of this Act shall have effect as regards the

interpretation and operation of this section (and, except as otherwise provided by

this Act, shall apply only for purposes of this section).

2 “Dishonestly”

(1) A person’s appropriation of property belonging to another is not to be regarded

as dis-honest—


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(a) if he appropriates the property in the belief that he has in law the right to

deprive the other of it, on behalf of himself or of a third person; or

(b) if he appropriates the property in the belief that he would have the other’s

consent if the other knew of the appropriation and the circumstances of it; or

(c) (except where the property came to him as trustee or personal representative) if

he appropriates the property in the belief that the person to whom the property

belongs cannot be discovered by taking reasonable steps.

(2) A person’s appropriation of property belonging to another may be dishonest

notwithstanding that he is willing to pay for the property.

3 “Appropriates”.

(1) Any assumption by a person of the rights of an owner amounts to an

appropriation, and this includes, where he has come by the property (innocently or

not) without stealing it, any later assumption of a right to it by keeping or dealing

with it as owner.

(2) Where property or a right or interest in property is or purports to be transferred

for value to a person acting in good faith, no later assumption by him of rights

which he believed himself to be acquiring shall, by reason of any defect in the

transferor’s title, amount to theft of the property.

4 “Property”.

(1) “Property” includes money and all other property, real or personal, including

things in action and other intangible property.

(2) A person cannot steal land, or things forming part of land and severed from it

by him or by his directions, except in the following cases, that it to say—

(a) when he is a trustee or personal representative, or is authorised by power of

attorney, or as liquidator of a company, or otherwise, to sell or dispose of land

belonging to another, and he appropriates the land or anything forming part of it

by dealing with it in breach of the confidence reposed in him; or (b) when he is not

in possession of the land and appropriates anything forming part of the land by

severing it or causing it to be severed, or after it has been severed; or

(c) when, being in possession of the land under a tenancy, he appropriates the

whole or part of any fixture or structure let to be used with the land. For purposes

of this subsection “land” does not include incorporeal hereditaments; “tenancy”

means a tenancy for years or any less period and includes an agreement for such a

tenancy, but a person who after the end of a tenancy remains in possession as

statutory tenant or otherwise is to be treated as having possession under the

tenancy, and “let” shall be construed accordingly.

(3) A person who picks mushrooms growing wild on any land, or who picks

flowers, fruit or foliage from a plant growing wild on any land, does not (although

not in possession of the land) steal what he picks, unless he does it for reward or

for sale or other commercial purpose. For purposes of this subsection

“mushroom” includes any fungus, and “plant” includes any shrub or tree.

(4) Wild creatures, tamed or untamed, shall be regarded as property; but a person

cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the

carcase of any such creature, unless either it has been reduced into possession by

or on behalf of another person and possession of it has not since been lost or

abandoned, or another person is in course of reducing it into possession.


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5 “Belonging to another”.

(1) Property shall be regarded as belonging to any person having possession or

control of it, or having in it any proprietary right or interest (not being an equitable

interest arising only from an agreement to transfer or grant an interest).

(2) Where property is subject to a trust, the persons to whom it belongs shall be

regarded as including any person having a right to enforce the trust, and an

intention to defeat the trust shall be regarded accordingly as an intention to deprive

of the property any person having that right.

(3) Where a person receives property from or on account of another, and is under

an obliga-tion to the other to retain and deal with that property or its proceeds in a

particular way, the property or proceeds shall be regarded (as against him) as

belonging to the other.

(4) Where a person gets property by another’s mistake, and is under an obligation

to make restoration (in whole or in part) of the property or its proceeds or of the

value thereof, then to the extent of that obligation the property or proceeds shall be

regarded (as against him) as belonging to the person entitled to restoration, and an

intention not to make restoration shall be regarded accordingly as an intention to

deprive that person of the property or proceeds.

(5) Property of a corporation sole shall be regarded as belonging to the corporation

not-withstanding a vacancy in the corporation.

6 “With the intention of permanently depriving the other of it”.

(1) A person appropriating property belonging to another without meaning the

other permanently to lose the thing itself is nevertheless to be regarded as having

the intention of permanently depriving the other of it if his intention is to treat the

thing as his own to dispose of regardless of the other’s rights; and a borrowing or

lending of it may amount to so treating it if, but only if, the borrowing or lending

is for a period and in circumstances making it equivalent to an outright taking or

disposal.

(2) Without prejudice to the generality of subsection (1) above, where a person,

having possession or control (lawfully or not) of property belonging to another,

parts with the property under a condition as to its return which he may not be able

to perform, this (if done for purposes of his own and without the other’s authority)

amounts to treating the property as his own to dispose of regardless of the other’s

rights.

7 Theft. A person guilty of theft shall on conviction on indictment be liable to

imprisonment for a term not exceeding [seven years].


Conduct To dishonestly appropriate;

To accept.

Object Property belonging to another.

Purpose Permanently deprive another person of their property


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Sanction imprisonment for a term not exceeding seven years.

Table x. Elements of the offence Section 1-7 of the Theft Act 1968 (embezzlement, misappropriation or other diversion of property).

The definition of embezzlement, misappropriation or other diversion of property contained in the

Fraud Act 2006 and the Theft Act 1968 are compliant with the international standards as:

Embezzlement is criminalised as a form of theft under the Theft Act 1968;

The factual elements of the offence (appropriation of property, assets or other things of value,

which are or have come in any way in the possession of the offender) are encompassed in Section

3 to 5 Theft Act 1968 and includes cases where property has been entrusted to a public official

(UNODC 2012, para. 125).

The concept of property in the Theft Act 1968 includes the definition of property contained in the

international standards.

The Fraud Act 2006 contains a wide provision with the notion of “dishonest abuse of position”

and is thus able to complement the Theft Act 1968 where the offences contained therein to not

fully encompass all the possibilities of embezzlement foreseen under the international standards.


The UK does not have a separate provision for the offence of trading in influence. UK legislation

does not, for private individuals, criminalise the offering, promising, giving, solicitation or

acceptance of advantages in relation to the exercise of influence generally (UNODC 2012, para.

129), as it would encompass legitimate lobbying and marketing.

Notwithstanding, the bribery offences under the UK Bribery Act 2010 address circumstances

whereby a person claiming to have influence with the intention that a person in public administration

or public authority be induced to perform the function improperly because of the advantage given to

or received by the person exerting the influence would encompass some of the aspects of active and

passive trading in influence (UNODC 2012, para. 130). In this case, there must be an intention that

the public official who is the decision maker is induced, directly or indirectly, to perform a relevant

function improperly.

Trading in influence is not a mandatory offence under UNCAC and, as such, UK legislation is

compliant with it. However, this offence is mandatory under ETS 173, where the UK has made a

reservation not to establish trading in influence as a criminal offence. Thus, due to the fact that not all

of the conduct (as UK law requires an agency relationship between the person who trades his

influence and the person he influences) is criminalised, the UK has not fully implemented the

provision or trading in influence under its national law.


The elements of the offence of money laundering are defined under sections 327-329, 334(1),

340(11)(b)(c) of the Proceeds of Crime Act 2002 (POCA 2002):


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Definition 327 Concealing etc

(1) A person commits an offence if he—

(a) conceals criminal property;

(b) disguises criminal property;

(c) converts criminal property;

(d) transfers criminal property;

(e) removes criminal property from England and Wales or from Scotland or from

Northern Ireland.

(2) But a person does not commit such an offence if—

(a) he makes an authorised disclosure under section 338 and (if the disclosure is

made before he does the act mentioned in subsection (1)) he has the appropriate

consent;

(b) he intended to make such a disclosure but had a reasonable excuse for not

doing so;

(c) the act he does is done in carrying out a function he has relating to the

enforcement of any provision of this Act or of any other enactment relating to

criminal conduct or benefit from criminal conduct.

(3) Concealing or disguising criminal property includes concealing or disguising

its nature, source, location, disposition, movement or ownership or any rights with

respect to it.

328 Arrangements

(1) A person commits an offence if he enters into or becomes concerned in an

arrangement which he knows or suspects facilitates (by whatever means) the

acquisition, retention, use or control of criminal property by or on behalf of

another person.




consent;


doing so;

(c) the act he does is done in carrying out a function he has relating to the



329 Acquisition, use and possession

(1) A person commits an offence if he—

(a) acquires criminal property;

(b) uses criminal property;

(c) has possession of criminal property.


110




consent;


doing so;

(c) he acquired or used or had possession of the property for adequate

consideration;

(d) the act he does is done in carrying out a function he has relating to the



(3) For the purposes of this section—

(a) a person acquires property for inadequate consideration if the value of the

consideration is significantly less than the value of the property;

(b) a person uses or has possession of property for inadequate consideration if the

value of the consideration is significantly less than the value of the use or

possession;

(c) the provision by a person of goods or services which he knows or suspects may

help another to carry out criminal conduct is not consideration.

334 Penalties

(1) A person guilty of an offence under section 327, 328 or 329 is liable—

(a) on summary conviction, to imprisonment for a term not exceeding six months

or to a fine not exceeding the statutory maximum or to both, or


years or to a fine or to both.

(2) A person guilty of an offence under section 330, 331, 332 or 333 is liable—



(b) on conviction on indictment, to imprisonment for a term not exceeding five



Conduct To conceal;

To disguise;

To convert;

To transfer;

To remove;

To acquire;

To use;


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To possess;

Object Criminal property

Purpose The nature, source, location, disposition, movement or ownership of any rights

with respect to criminal property.

Sanction (1) A person guilty of an offence under section 327, 328 or 329 is liable—





(2) A person guilty of an offence under section 330, 331, 332 or 333 is liable—



(b) on conviction on indictment, to imprisonment for a term not exceeding five


Elements of the offence for Sections 327-329 and 334 under the POCA 2002 (money laundering).

The definition of money laundering contained in POCA 2002 are compliant with international

standards as:

All conduct established under international standards are contained in POCA 2002;

Criminal property under POCA 2002 constitutes a person’s benefit from criminal conduct or it

represents such a benefit (in whole or part and whether directly or indirectly), and the alleged

offender knows or suspects that it constitutes or represents such a benefit. This definition is in

line with that of proceeds of crime.

POCA 2002 takes an all crime approach, meaning that any offence can be a predicate offence to

money laundering.

It should be noted that, in money laundering cases, UK law does not consider a person to have

committed a money laundering offence if the predicate offence occurred outside the UK and was not,

at the time of the events, unlawful under the laws of the other jurisdiction, even if it would have been

unlawful had it occurred in the UK (UNODC 2012, para. 154). Another exception to the money

laundering offence is contained in Section 329(2) POCA 2002, where a person does not commit an

offence if the person acted for “adequate consideration”, which covers persons who are paid for

ordinary consumable goods and services in money that may come from crime and, due to their

position, are not placed under any obligation to question the source of the money. In such

circumstances, this person will be accused for the offence of handing, but not for MLA (UNODC

2012, para. 154).


112


The elements of the offence of obstruction of justice are defined under Section 51 of the Criminal

Justice and Public Order Act 1994:

Definition 51 Intimidation, etc., of witnesses, jurors and others.

(1) A person commits an offence if—

(a) he does an act which intimidates, and is intended to intimidate, another person

(“the victim”),

(b) he does the act knowing or believing that the victim is assisting in the

investigation of an offence or is a witness or potential witness or a juror or

potential juror in proceedings for an offence, and

(c) he does it intending thereby to cause the investigation or the course of justice to

be obstructed, perverted or interfered with.

(2) A person commits an offence if—

(a) he does an act which harms, and is intended to harm, another person or,

intending to cause another person to fear harm, he threatens to do an act which

would harm that other person,

(b) he does or threatens to do the act knowing or believing that the person harmed

or threatened to be harmed (“the victim”), or some other person, has assisted in an

investigation into an offence or has given evidence or particular evidence in

proceedings for an offence, or has acted as a juror or concurred in a particular

verdict in proceedings for an offence, and

(c) he does or threatens to do it because of that knowledge or belief.

(3) For the purposes of subsections (1) and (2) it is immaterial that the act is or

would be done, or that the threat is made—

(a) otherwise than in the presence of the victim, or

(b) to a person other than the victim.]

(4) The harm that may be done or threatened may be financial as well as physical

(whether to the person or a person’s property) and similarly as respects an

intimidatory act which consists of threats.

(5) The intention required by subsection (1)(c) and the motive required by

subsection (2)(c) above need not be the only or the predominating intention or

motive with which the act is done or, in the case of subsection (2), threatened.

(6) A person guilty of an offence under this section shall be liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding five

years or a fine or both;

(b) on summary conviction, to imprisonment for a term not exceeding six months

or a fine not exceeding the statutory maximum or both.

(7) If, in proceedings against a person for an offence under subsection (1) above, it

is proved that he did an act falling within paragraph (a) with the knowledge or

belief required by paragraph (b), he shall be presumed, unless the contrary is

proved, to have done the act with the intention required by paragraph (c) of that

subsection.


113

(8) If, in proceedings against a person for an offence under subsection (2) above, it

is proved that within the relevant period—

(a) he did an act which harmed, and was intended to harm, another person, or

(b) intending to cause another person fear of harm, he threatened to do an act

which would harm that other person, and that he did the act, or (as the case may

be) threatened to do the act, with the knowledge or belief required by paragraph

(b), he shall be presumed, unless the contrary is proved, to have done the act or (as

the case may be) threatened to do the act] with the motive required by paragraph

(c) of that subsection.

(9) In this section—

“investigation into an offence” means such an investigation by the police or other

person charged with the duty of investigating offences or charging offenders;

“offence” includes an alleged or suspected offence;

“potential”, in relation to a juror, means a person who has been summoned for jury

service at the court at which proceedings for the offence are pending; and

“the relevant period”—

(a) in relation to a witness or juror in any proceedings for an offence, means the

period beginning with the institution of the proceedings and ending with the first

anniversary of the conclusion of the trial or, if there is an appeal or a reference

under section 9 or 11 of the Criminal Appeal Act 1995, of the conclusion of the

appeal;

(b) in relation to a person who has, or is believed by the accused to have, assisted

in an investigation into an offence, but was not also a witness in proceedings for an

offence, means the period of one year beginning with any act of his, or any act

believed by the accused to be an act of his, assisting in the investigation; and

(c) in relation to a person who both has, or is believed by the accused to have,

assisted in the investigation into an offence and was a witness in proceedings for

the offence, means the period beginning with any act of his, or any act believed by

the accused to be an act of his, assisting in the investigation and ending with the

anniversary mentioned in paragraph (a) above.

(10) For the purposes of the definition of the relevant period in subsection (9)

above—

(a) proceedings for an offence are instituted at the earliest of the following times—

(i) when a justice of the peace issues a summons or warrant under section 1 of the

Magistrates’ Courts Act 1980 in respect of the offence;

(ii) when a person is charged with the offence after being taken into custody

without a warrant;

(iii) when a bill of indictment is preferred by virtue of section 2(2)(b) [F5or (ba)]

of the M2Administration of Justice (Miscellaneous Provisions) Act 1933;

(b) proceedings at a trial of an offence are concluded with the occurrence of any of

the following, the discontinuance of the prosecution, the discharge of the jury

without a finding [F6otherwise than in circumstances where the proceedings are

continued without a jury], the acquittal of the accused or the sentencing of or other

dealing with the accused for the offence of which he was convicted; and


114

(c) proceedings on an appeal are concluded on the determination of the appeal or

the abandonment of the appeal.

(11) This section is in addition to, and not in derogation of, any offence subsisting

at common law.


Conduct To intimidate;

To harm.


Purpose To pervert the course of justice.

Sanction On conviction on indictment, to imprisonment for a term not exceeding five years

or a fine or both;

On summary conviction, to imprisonment for a term not exceeding six months or a

fine not exceeding the statutory maximum or both.

Elements of the offence for Section 51 Criminal Justice and Public Order Act 1994 (obstruction of justice).

The definition of obstruction of justice contained in the Criminal Justice and Public Order Act 1994

is compliant with the international standards.


While there is no obligation to establish criminal liability, the UK makes no distinction between

natural and legal persons in relation to criminal liability. The Interpretation Act 1978 defines the

word “person” in a statute to be construed as including “a body of persons corporate or

unincorporated” (UNODC 2012, para. 180). Therefore all of the corruption-related offences

mentioned in this policy paper encompasses criminal liability of legal persons in the UK.

The liability of a legal person under UK law is governed by the identification doctrine, whereby a

legal person will have imputed to it the acts and state of mind of those of its directors and managers

who represent its “directing mind and will”. The shortcoming of the identification doctrine is

twofold: (i) directing mind includes only members of the board of directors, a managing director, and

perhaps other superior officers, thus excluding a wide number of persons which may retain some

form of decision-making within a company; and (ii) establishing the mental requirement through the

identification theory cannot be done by aggregating the states of mind of different people in the

company; liability depends of proving the culpable act and intent by a single representative of the

company (OECD 2012b, para. 32-33).

Section 7 UK Bribery Act 2010 provides an alternative to the application of the identification

doctrine through the strict liability of a “relevant commercial organization” that fails to prevent

persons associated with it from bribing on its behalf in order to obtain or retain business or an

advantage in the conduct of business. The limitation of Section 7 UK Bribery Act 2010 relates to the


115

fact that it can only be applied to incorporated organisations and partnerships formed in the UK.

Excluded from it are the unincorporated such as trusts and charitable organisations


The State under review has stated that there is no statute of limitations in criminal law in the UK

(UNODC 2012, para. 198).

The prosecution of offences under the Bribery Act is not subject to any limitation periods. However,

a defendant has a right to a fair and public hearing within a reasonable time (Human Rights Act 1998

and the European Convention on Human Rights, Article 6(1)) (OECD 2010, para. 76).

4.5.3.8 Sanctions

Article 26 para. 4 of the Convention requires States parties to ensure that legal persons held liable are

subject to effective, proportionate and dissuasive sanctions, including monetary sanctions. The UK is

compliant with this provision. It should be noted in particular that a legal person may receive an

unlimited fine in relation to a conviction in any of the corruption-related offences mentioned in this

policy paper.


The UK can afford the widest measure of MLA and is compliant with the international requirements

for MLA. It should be noted, however, that dual criminality requirements apply in relation to

coercive measures.


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5 Conclusions

The EU has created several anti-corruption instruments which complement other regional

and international anti-corruption instruments. It has been taking steps to providing a coherent

policy against corruption. However, while the regional and international instruments

conform to a basic notion of corruption related offences, EU regulation has focused

primarily in protecting its financial interests. While the offences of bribery, money

laundering and embezzlement contained in the EU instruments reflect its need to protect its

financial interests, many of the basic concepts, such as the notion of the community official,

have been subsumed into more and more encompassing anti-corruption instruments, such as

UNCAC.

Early efforts from the EU and the CoE took great lengths to enumerate the different types of

public officials which would be encompassed in its definition. In fact, these provisions were

a replication of one another changing the class of public officials involved. More recent

standard setting has taken a more comprehensive, all-encompassing approach, without

having to enumerate the different types or classes of public officials. It has brought greater

coordination with simpler definitions.

Other areas discussed in this paper relate not only to the types of criminal offences covered

in the prevention of corruption at the EU and Member States levels. It has also discussed the

different legal tools needed to adequately implement the corruption-related offences. These

include the introduction of legal liability of legal persons. Some EU28 member states have

not yet introduced provisions to enable the adequate enforcement of anti-corruption

legislation against legal persons. This is an area which requires further discussion to ensure

greater harmony between international co-operation or transnational corruption.

Finally, a mention needs to be made in relation to MLA. The primary form of co-operation

between Member States in effectively combating corruption. While respecting the different

legal systems and traditions contained within the EU, these systems need to communicate

with one another to ensure adequate collection of evidence for successful conclusion of

proceedings. Most Member States note that MLA cannot be afforded in coercive measures

without meeting the dual criminality requirement. While great efforts have been taken over

the years to reduce the dual criminality requirement, little has been discussed in connection

with the definition of coercive measures, which is understood differently among Member

States, and which is further impacted if there is an absence of an international legal basis for

co-operation.


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118

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Sauvant, Karl P. 2015. The negotiations of the united nations code of conduct on transnational

corporations: Experience and lessons learned. The Journal of World Investment & Trade 16 (1): 11-

87.

UNODC. 2004. Legislative Guides for the Implementation of the United Nations Convention Against

Transnational Organized Crime and the Protocols Thereto. New York: United Nations.

———. 2006. Legislative Guide for the Implementation of the United Nations Convention Against

Corruption. New York: United Nations.


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———. 2009. Technical Guide to the United Nations Convention Against Corruption. Vienna.

———. 2011. Informe sobre el examen del país del Reino de España

———. 2012. Country Review Report of the United Kingdom

———. 2013a. Romania: Review of Implementation of the United Nations Convention Against

Corruption Executive Summary

———. 2013b. UNCAC Country Review Report of Slovenia

———. 2013c. UNCAC Country Review Report of Sweden

———. 2013d. United Kingdom of Great Britain and Northern Ireland: Review of Implementation

of the United Nations Convention Against Corruption Executive Summary

Vlassis, Dimitri. 2005. The united nations convention against corruption origins and negotiation

process. Resource Material Series Resource Material Series 66:126-131.

Webb, P. 2005. The united nations convention against corruption: Global achievement or missed

opportunity? Journal of International Economic Law 8 (1): 191-229.

6.1 International instruments

Additional Protocol to the Criminal Law Convention on Corruption, 15 March 2003, in force 1

February 2005, ETS 191.

Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters, ETS 99.

Civil Law Convention on Corruption, Strasbourg, 4 November 1999, in force 1 November 2003,

ETS 174.

Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, ETS 141.

Council Act (EC) No. 95/C 316/03 of 26 July 1995 drawing up the Convention on the Protection of

the European Communities' Financial Interests (OJ C 316, 27.11.1995, pp. 48-57).

Council Act (EC) No. 96/C 313/01 drawing up a Protocol to the Convention on the protection of the

European Communities' financial interests (OJ C 313, 23.10.1996, pp. 1-10).

Council Act (EC) No. 97/C 195/01 drawing up, on the basis of Article K.3(2)(c) of the Treaty on

European Union, the Convention on the fight against corruption involving officials of the European

Communities or officials of Member States of the European Union (OJ C 195, 25.6.1997, pp. 1–11).

Council Act (EC) No. 97/C 221/02 drawing up the Second Protocol of the Convention on the

protection of the European Communities' financial interests (OJ C 221, 19.7.1997, pp. 11-22).


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Council of Europe Civil Law Convention on Corruption, done at Strasbourg, 04 November 1999,

(entered into force 1 November 2003), ETS 174.

Council of Europe Criminal Law Convention on Corruption (COE Criminal Convention), done at

Strasbourg, 27 January 1999, (entered into force 1 July 2002), ETS. 173.

Council of Europe Resolution on the Twenty Guiding Principles for the Fight against Corruption,

adopted by the Committee of Ministers on 6 November 1997, Res. 97(24).

CPCTO Doc. A/CONF.144/28/Rev.1, Eighth United Nations Congress on the Prevention of Crime

and the Treatment of Offenders – Report prepared by the Secretariat. Res. 7 “Corruption in

Government”.

Criminal Law Convention on Corruption, 27 January 1999, in force 1 July 2002, ETS 173.

ECOSOC, Report of the Ad Hoc Intergovernmental Working Group on the Problem of Corrupt

Practices on its First, Second, Third and Resumed Sessions, UN Doc. E/6006 (5 July 1977);

ECOSOC Res. 2041, Corrupt practices, particularly illicit payments, in international commercial

transactions, UN Doc. E/RES/2041 (5 August 1976);

ECOSOC Res. 2122(LXIII), Corrupt Practices, particularly illicit payments, in international

commercial transactions, UN Doc. A/RES/2122(LXIII) (4 August 1977).

European Convention on Mutual Assistance in Criminal Matters, ETS 30.

Res. (99)5, establishing the "Group of States against Corruption – GRECO”, adopted by the CoE

Committee of Ministers on 1 May 1999.

Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters,

ETS 182.

Statute of the Council of Europe, 05 May 1949, in force 03 August 1949, ETS 1.

UNGA Res. 3514(XXX), Measures against corrupt practices of transnational and other corporations

their intermediaries and others involved, UN Doc. A/RES/3514(XXX) (15 December 1975);

UNGA Res. 53/111, Transnational organised crime, UN Doc. A/RES/53/111 (20 January 1999).

UNGA Res. 54/128, Action against corruption, UN Doc. A/RES/54/128 (28 January 2000).

UNGA Res. 55/61, An effective international legal instrument against corruption, UN Doc.

A/RES/55/61 (22 January 2001).

Project profile

ANTICORRP is a large-scale research project funded by the European Commission’s Seventh

Framework Programme. The full name of the project is “Anti-corruption Policies Revisited:

Global Trends and European Responses to the Challenge of Corruption”. The project started in

March 2012 and will last for five years. The research is conducted by 20 research groups in

fifteen countries.

The fundamental purpose of ANTICORRP is to investigate and explain the factors that

promote or hinder the development of effective anti-corruption policies and impartial

government institutions. A central issue is how policy responses can be tailored to deal

effectively with various forms of corruption. Through this approach ANTICORRP seeks to

advance the knowledge on how corruption can be curbed in Europe and elsewhere. Special

emphasis is laid on the agency of different state and non-state actors to contribute to building

good governance.

Project acronym: ANTICORRP

Project full title: Anti-corruption Policies Revisited: Global Trends and European Responses

to the Challenge of Corruption

Project duration: March 2012 – February 2017

EU funding: Approx. 8 million Euros

Theme: FP7-SSH.2011.5.1-1

Grant agreement number: 290529

Project website: http://anticorrp.eu/

This project is co-funded by the Seventh Framework Programme for Research and

Technological Development of the European Union

http://anticorrp.eu/