Thematic Review on Criminalisation of Bribery
Conclusions and Recommendations
1. On the whole, the Initiative’s members have taken significant steps towards meeting international standards on the criminalisation of bribery, though notable gaps remain. Several region-wide trends may be observed:
(a) Domestic bribery offences: All of the Initiative’s members have criminal domestic bribery offences. The problem in many jurisdictions is actually too many offences. Multiple general and specific bribery offences with inconsistent definitions could result in uncertain application of the law.
Aside from duplication, the other deficiencies are generally more subtle, such as the failure to cover the different modes of committing bribery, certain categories of public officials, bribery through intermediaries and bribery for the benefit of third party beneficiaries, and bribery in order that an official act outside his/her official competence. Judicial interpretation may ultimately confirm coverage of these scenarios. Nevertheless, in the absence of confirmatory case law, the Initiative’s members should adopt legislation with clear, express language to ensure compliance with international standards.
(b) Foreign bribery offences: The problem with foreign bribery is the opposite of domestic bribery: instead of too much legislation, most members of the Initiative have none. This is understandable, since international standards require the criminalisation of foreign bribery only recently. Nevertheless, the absence of a foreign bribery offence is a pressing concern, given the dramatic increase in international economic activity in recent years. Some of the Initiative’s members have sought to reinterpret their existing bribery offences to cover foreign bribery. Having regard to the experience of OECD countries, these members should instead consider enacting a new, specific foreign bribery offence to ensure compliance with international standards.
(c) Liability of legal persons: The inability to punish legal persons for domestic and foreign bribery is another major deficiency. Only about half of the Initiative’s members have the ability to hold companies liable for bribery. More troublingly, corporate liability in these jurisdictions appears to exist only in theory. There have been no reported prosecution of companies for domestic bribery and only a handful of cases for foreign bribery. In most jurisdictions, it is unclear whether this is due to deficient legislation, a lack of expertise and capacity, or a deliberate prosecutorial policy. Regardless of the cause, this situation needs to be rectified.
(d) Jurisdiction to prosecute bribery: All members of the Initiative unsurprisingly have territorial jurisdiction to prosecute bribery. Few members, however, articulate whether it can prosecute bribery that takes place only partly in one’s territory. This issue may
have to be resolved by the courts. Nationality jurisdiction is relatively uncommon, which may have negative ramifications in transnational bribery cases.
(e) Sanctions for bribery: With a few exceptions, the maximum sanctions available against natural persons for bribery among the Initiative’s members largely meet international standards. Fines against legal persons in some jurisdictions are inadequate, however. Confiscation is generally available but could be improved by confiscating indirect proceeds of bribery and imposing a pecuniary penalty in lieu when confiscation is not possible. An underdeveloped area is administrative sanctions, particularly against a briber. Very few members of the Initiative ban bribers from seeking public procurement contracts or receiving state benefits and subsidies.
(f) Tools for investigating bribery: The Initiative’s members largely have a range of useful tools for gathering evidence in bribery cases. However, clearer and more explicit rules overriding bank and tax secrecy rules could be helpful. The freezing of assets is widely available but could be improved by streamlining the procedure in some jurisdictions. There are no major legal impediments to seeking extradition and MLA in bribery cases. Special investigative techniques could be made more readily available. To the extent possible under their legal systems, members could consider using plea bargaining and the assistance of co-operating offenders in bribery cases. Those that do so already should consider formalising the process in writing to enhance accountability.
(g) Enforcement of bribery offences: Most of the Initiative’s members did not provide statistics on the enforcement of their bribery offences. Members need to maintain detailed statistics in order to evaluate the effectiveness of their anti-bribery efforts. Statistics should cover investigations, prosecutions, convictions and sanctions for bribery, and should be broken down into active, passive, domestic and foreign bribery. It would also be helpful to maintain information on the use of particular investigative techniques, such as wiretaps and other types of electronic surveillance, the seeking of international assistance, undercover operations and controlled deliveries.
2. Finally, the Initiative could benefit from additional analysis of issues that are related to criminalisation but were beyond the scope of this study. Looking at other criminal corruption offences other than bribery, such as illicit enrichment, could be useful. On a more practical level, the Initiative could engage in a more in-depth examination of the actual application and enforcement of corruption laws by considering the experience of investigators, prosecutors, lawyers, companies and civil society. A proper, thorough study of this topic would require an on-site visit of a reviewed country by experts. Other potential issues of interest could include the availability of resources; training and expertise, e.g. in financial investigations, information technology and forensic accounting; political interference in investigations and prosecutions; interagency coordination; and detection of corruption, such as through anti-money laundering systems, tax authorities, accountants and auditors. As a multilateral body, the Initiative could also be an appropriate forum for considering issues such as transborder corruption cases and joint investigations.