20+ years of criminal law experience
more than 2000 criminal cases.
more than 2000 criminal cases.
The new Criminal Code groups all corruption-related offences into a single chapter of corruption offences. Without major substantive changes, the regulation is structurally reorganised.
While earlier corruption was regulated under one statutory definition, the new Code—according to consistent logic and with regard to the specific protected legal interest (economic sphere, official sphere, judicial or administrative proceedings)—divides the statutory definitions into three main groups.
For each specific form of corruption, the Code provides separate sub-sections and distinguishes between active corruption and passive corruption (acceptance of corruption).
As a further structural innovation, and for the purpose of simplification, international corruption is no longer regulated in separate sections. Instead, the new Code specifies within each relevant statutory definition whether the offence is punishable when committed in an international context, under international treaties or EU legal acts.
The main statutory forms include:
In economic corruption, the persons concerned are those acting for or on behalf of a business organisation. In official corruption, the person concerned is a public official. In corruption committed in judicial or administrative proceedings, the offence applies to persons who hold lawful rights and obligations in those proceedings (if they are not public officials).
Corruption is active when the perpetrator takes a positive act, such as giving or promising an unlawful advantage. In this case, the perpetrator is the one who corrupts.
Corruption is passive when it involves requesting, accepting, or agreeing to accept an unlawful advantage. In this case, the perpetrator is the one who is corrupted.
With the exception of economic corruption between private actors, the law imposes more severe punishment for passive corruption than for active corruption.
A person commits active economic corruption (the basic offence of corruption under the new Criminal Code) if they give or promise an unlawful advantage to a person acting for or on behalf of a business organisation, or to another person in connection with such activity, in order to induce a breach of duty.
The new Criminal Code also punishes acts of corruption involving persons employed by foreign business organisations.
A person commits active official corruption if they attempt to influence a public official in connection with their functions, by giving or promising an advantage to the official or to another person in relation to them. The same applies to a manager of a business organisation or a person authorised to exercise control or supervision on behalf of a business organisation if, in performing supervisory or controlling functions, they could have prevented a person acting for or on behalf of the organisation from engaging in corruption of a public official. These managers or supervisors may also be held criminally liable if they negligently fail to carry out their supervisory or controlling duties.
The new Criminal Code also extends the scope of official corruption to include foreign public officials, whose scope is defined in the interpretative provisions.
Furthermore, a person commits active corruption in judicial or administrative proceedings if they give or promise an advantage to another person (or in relation to another person) in order to induce them not to exercise their lawful rights or not to perform their lawful obligations in such proceedings. This also covers corruption committed in proceedings before international criminal courts established by law or by binding resolutions of the UN Security Council, as well as before the Court of Justice of the European Union.
The typical acts of commission are:
An advantage means any positive change compared to the previous situation, directly caused by the offence. The definition is consistent with what is applied in the context of passive corruption.
In corruption, the advantage must be unlawful, which follows from the nature of the offence. In other forms of corruption, the word “unlawful” does not explicitly appear, since by definition the advantage is always unlawful when it is intended to unlawfully influence activity.
The advantage must be given or promised to:
The “other person” may be anyone, but the perpetrator must assume that this person is capable of influencing the targeted decision-maker in the perpetrator’s interest. The offence is committed even if the “other person” has no real connection to the decision-maker, or if the decision-maker is unaware of the advantage or does not agree with it.
In general, anyone (including public officials) can commit the offence of active corruption. However, in the specific case of official corruption, only certain persons—such as the managers of business organisations or those authorised to exercise control or supervision—may be perpetrators.
While the basic form requires intent, managers and supervisors may also be criminally liable if they negligently fail to fulfil their supervisory or control duties.
Active economic corruption is considered aggravated if the unlawful advantage is given or promised to a person entitled to take independent decisions within the organisation.
Both in basic and aggravated cases, the corruption is considered even more serious if committed in criminal association or on a commercial scale.
In official corruption, the offence is aggravated if the unlawful advantage is given or promised to induce the public official to breach their duties, exceed their authority, or otherwise abuse their official position.
Where the corruption seeks to induce the public official to commit another offence (such as abuse of office), the offence is even more severely punishable.
The new Criminal Code no longer exempts from punishment those perpetrators who later change their mind and regret their conduct. If the perpetrator of active corruption reports the offence to the authorities and discloses the circumstances before it becomes known to them, criminal proceedings will still be initiated, and the case will go to trial.
However, the court has the discretion to reduce the punishment without limitation and, in particularly meritorious cases, even waive it altogether. This possibility does not apply to all offenders.
As part of the fight against corruption, the offence of failure to report corruption penalises public officials (but not private individuals or business actors) who, unless they are related to the perpetrator, credibly learn of corruption or acceptance of corruption before it has been uncovered, yet fail to report it to the authorities without delay.
