EIRP Proceedings, Vol 15, No 1 (2020)

The Crime of Bribery

Paula Nastase¹

Abstract: The study analyzes corruption offenses from a dual perspective - both synchronic and diachronic, based on the regulations of the Criminal Law Convention on Corruption. Thus, the crime of bribery is subject to discussion, emphasizing the novelty aspects regulated by the new Criminal Code, especially regarding the non-incrimination in the form of a crime distinct from bribery of receiving undue benefits and non-criminalization of bribery by non-rejection of the proposal from the old Criminal Code. Preventing and combating corruption as a whole, especially bribery, are not only desired, they are more than that, an urgent, first-rate necessity of human society.

Keywords: murder; bribery; preliminary requirements; the content of constituents; forms of crime; punishments

Motto:

“Nothing is more dangerous for the conscience of a people

than the sight of corruption and rewarded nullity.”

(Eminescu, 1985, p. 124)

During its development, the company gained a certain experience, which led to the formation of rules to ensure its development. Any social activity is carried out based on rules.

The necessity of these rules is imposed in the interpersonal relations, due to the fact that in the accomplishment of an activity, several categories of people participate, each of them having different roles in the good development of the respective action.

The society is for each individual, for each of its members, the framework that ensures its existence and development, in that each has its own statute which sums up all the rights and obligations that the society grants or claims from each. (Diaconescu, 2004, p. 1)

Within the relationship life, the social life, the conduct (action) of each member is assessed, evaluated by the other members of the society and considered convenient or unsuitable for them or the social group built as it harmonizes or comes into conflict with them. (Dongoroz, 2000, p. 7)^.

Among those inappropriate actions of members of contemporary society there is corruption, which in general terms means deviation from morality, duty and within it, bribery is the most serious and dangerous act of corruption, which underestimates, dynamites, even destroys the very existence of organized society, of the state.

The Legal Content of the Crime

In the new Criminal Code, the crime of bribery is provided in art. 289 Criminal Code, in two standard variants. In the first variant type [art. 289 para. (1) Criminal Code], the crime of bribery consists in the act of the civil servant who, directly or indirectly, for himself or for another, claims or receives money or other benefits that are not due to him, or accepts the promise of such benefits, about

the fulfillment, non-fulfillment, urgency or delay of the fulfillment of an act that enters into his duties or in connection with the fulfillment of an act contrary to these duties².

In the second variant type [art. 289 para. (2) Criminal Code], the crime of bribery consists in the deed provided in par. (1), committed by one of the persons provided in art. 175 para. (2), respectively by an assimilated civil servant. In this variant, the deed constitutes a crime only if it is committed in connection with the non-fulfillment, delay of the fulfillment of an act regarding their legal duties or in connection with the performance of an act contrary to these duties.

In addition to the two standard variants, the crime of bribery also has an attenuated variant and an aggravated variant, which are stipulated separately.

The attenuated variant is provided in art. 308 para. (1) Criminal Code and may be retained, if the deed is committed by a person who exercises, permanently or temporarily, with or without remuneration, a task in the service of a natural person from those provided in art. 175 para. (2) or within any legal person. In this case, according to art. 308 para. (2), the special limits of the punishment are reduced by one third.

L. Lambert observes in this respect that the act of a dishonest official to ask himself for a gift or a benefit to an individual, who would never have thought to corrupt him or would never have dared to do so, is with certainly a much more active way of being corrupt than simply accepting a corrupting offer or promise, or this request of the official who thus takes the initiative of his own corruption is still considered “passive” corruption, while the act of the individual who yielded to the demands of the former is considered “active corruption”. (Lambert, 1968, p. 670; Dobrinoiu, 1995, p. 105).

The aggravated variant is provided in art. 7 of Law no. 78/20005³ and can be retained, if the deed is committed by a person who:

a) exercises a public function;

b) is a judge or a prosecutor;

c) it is a criminal investigation body or it has attributions of ascertaining or sanctioning contraventions;

d) is one of the persons shown in art. 293 Criminal Code, respectively a member of an arbitration court. In this case, according to art. 7 of Law no. 78/2000, the special limits of the punishment are increased by one third.

According to an opinion, which is currently dominant, the crime of bribery and corruption in general have no material object. (Bribery, p. 130; Diaconescu, 2004, p. 11; Pascu & Lazar, p. 347).

In this opinion, it is considered that the money or goods received by the official constitute goods acquired by committing the deed, and not its material object. In another opinion, it is considered that the material object of the crime of bribery is “bribery”, ie money or other benefits claimed or received by the official⁴ (Stoica, 1976, p. 247; Moldovan, 1970, p. 88; Vasiu, p. 347). It is considered that this opinion is in accordance with the definition of bribery as “undue remuneration”.

There is an older controversy about the wording “other benefits”: one part of the doctrine considers that it is mandatory for the benefit to be material, assessable in money, while another part of the doctrine considers that the use can be both material (patrimonial) and moral (non-patrimonial) (Pastion & Papadopolu, 1922, p. 273) for example, the award of a university degree, a military rank, etc.

In judicial practice, it has been decided that there is bribery, if the official has requested a sum of money, as a loan, because the loan also constitutes, “a benefit”⁵.

A civil servant is also a person who exercises “a position of public dignity” (for example: minister, secretary of state) or “a public office of any kind” (for example: party president, trade union, employers' organization, etc. ), as well as the person who exercises, alone or together with other persons, within an autonomous utility, another economic operator or a legal person with full or majority state capital or of a legal person declared of public utility, related attributions of accomplishing the object of activity “(in the same sense, there is also art. 3 of Law no. 78/2000) (Dorin, 2017).

In the second type variant, the directly active subject must have the quality of assimilated civil servant, in the sense of art. 175 para. (2) Criminal Code (Dobrinoiu & Neagu, 2014, p. 476).

In the attenuated version, provided in art. 308 para. (1) Criminal Code, direct active subject is the person who exercises, permanently or temporarily, with or without remuneration, a task in the service of a natural person from those provided in art. 175 para. (2) or within any legal entity (Tudorel, 2014, p. 300).

To claim means to make a request (for money or other benefits). In this way, the initiative belongs to the official. The crime persists, even if the official's claim is not heeded or if the benefit was claimed as a loan.

To receive means to take possession, in possession (money or other benefits). In this way, the initiative belongs to the bribe-taker (he gives a bribe, and the clerk receives it).

Accepting the promise means expressing agreement on the promise made by the bribe-giver.

Este suficient ca funtionarul sa accepte promisiunea facuta de catre acesta, indiferent daca, ulterior, mituitorul nu-si respecta promisiunea⁶.

Apparently, attempted bribery is not punishable. In reality, however, the crime of bribery is a crime with anticipated consumption (Udroiu, 2015, p. 367), which means that the attempt is assimilated to the consumed form (according to the text, there is a consumed crime of bribery, even if the official did not receive anything, but limited himself to claiming or accepting the promise of money or other benefits).

Patrimonial or non-patrimonial benefits must be legally undue; if the benefits are claimed, but not as an improper use, but with any other destination, the commission of the crime of abuse of office will be retained, and not that of bribery (Bodoroncea, et al., 214, p. 623).

Aspects of comparative law (presentation of regulations from other states on bribery offenses, compared to Romania

Corruption is a global phenomenon that is found at all levels of society and in all areas of activity. But it has a rather relative character from a social point of view: what in one society is an act of corruption, in another it can be accepted and allowed. Therefore, acts of corruption are not universally valid, but they differ from one society to another. However, in recent years this phenomenon has become increasingly worrying and difficult to control, as it is constantly developing and specializing. There is almost no field of activity in which there is no corruption, whether it is small corruption or large corruption.

As a whole, corruption affects the economic and social development of the country, violates people's rights to equal treatment and opportunities, encourages a lack of professionalism. Basically, “corruption benefits some to the detriment of the majority” (Johnston & Michael, 2007).

In Romania, the notion of corruption is used to incriminate various acts aimed at obtaining benefits through illicit means. In the legal literature of criminal law, in the sphere of the notion of corruption, in the strict sense, there are included only four crimes from the category of those of service or in connection with the service. The National Anticorruption Strategy for 2005-2019 defined corruption as being represented by the steps that harm the universal and equitable distribution of goods, in order to bring unjustified profit to some individuals or groups.

In relation to the international legal framework, the Criminal Law Convention on Corruption was adopted in Strasbourg in 1999.

The monitoring of the implementation stage of the Convention is the responsibility of GRECO, the Group of States against Corruption.

The signatory states to the Convention agreed that the text needs to be amended, so that on 15 May 2003 they met in Strasbourg to adopt the Additional Protocol to the Criminal Law Convention on Corruption.

At national level, the Protocol was ratified by Romania by Law no. 260 of June 16, 2004, published in the Official Gazette no. 612 of 7 July 2004⁷.

The fight against the great corruption has started to make its presence felt since 2014, through the efforts made by DNA in this field (Uvat, 2010, p. 156). From the beginning, until now, the internal regulatory framework has undergone various changes, but we believe that, at present, corruption is well defined and has a strong legal basis, represented by Law 78/2000 and the Criminal Code (Uvat, 2010, p. 156).

In Czech criminal law (Uvat, 2010, p. 156), the term “corruption” is not defined. Usually “bribery” is known as the act of corruption, as it appears in section 3, Chapter III, of the Czech Criminal Code, a chapter that defines crimes that affect public order.

According to Article 160 of the Czech Criminal Code, the crime of “bribery” is attributed to the crime which, in connection with the fulfillment of public order duties, accepts bribes or encourages the promise of bribes.

This deed is punishable by up to 2 (two) years in prison and the prohibition of the right to exercise the profession. Art.162 Czech Criminal Code, introduces the regulation of the crime of “indirect bribery” and which is “bribery” that influences a civil servant in the use of his power and which is punishable by imprisonment up to 2 (two) years. In Article 163 of the Czech Criminal Code, a case of impunity appears, in case the civil servant who is promised a “bribe”, denounces the deed, without delay, to the prosecutor or the police.

In France (Uvat, 2010, p. 156), with the adoption of the Criminal Code of 1810, acts of corruption, those committed in connection with the performance of official acts by civil servants and for the performance of contrary acts by them were severely sanctioned.

According to the Criminal Code, art. 435-1 regulates the crime of corruption of officials of the European Communities, or of the officials of the member states of the European Union signed in Brussels on May 26, 1997 and punishable by 10 (ten) years imprisonment and a fine of 150,000 euros, the deed of a Community official or an official of a Member State of the European Union or of the Commission of the European Communities, of the European Parliament, of the Court of Justice or of the Court of Auditors of the European Community, to request or approve tenders, without right, at any time, directly or indirectly.

In Germany (Uvat, 2010, p. 156), there is a strict regulation of the phenomenon of corruption, especially with regard to judges, arbitrators and the military in the German Armed Forces. It is forbidden to simply accept an unjustified benefit if it meets the conditions of the crime of “bribery”, even when it is not followed by illicit conduct.

In Austria (Uvat, 2010, p. 156), apart from the crime of “bribery”, “prohibited intervention” is regulated, so it is considered inadmissible for an official to try to intervene, in any way, in matters that are not related to his duties, or that are exercised in a way forbidden by law.

In Sweden (Uvat, 2010, p. 156), Starting with the 1974 Constitution, the circle of people referred to in Swedish law includes corruption, including the administrators and caretakers of state museums and historical monuments. If the whistleblower is an employee or, through the complaint made by the whistleblower, the prosecutor may order the criminal action against the perpetrator.

Under the heading “Corruption of Public Servants” in the United Kingdom of Great Britain and Northern Ireland (Uvat, 2010, p. 156), a wide range of crimes is regulated.

The law of 1889, which deals with corrupt practices in government bodies, classifies as a criminal act, the conduct of any member, officer or employee of a local administrative body, to solicit or accept gifts as an incentive or a reward for carrying out any activity in connection with its public tasks.

In Switzerland (Uvat, 2010, p. 156), according to the legislation in force, “bribery” and “offering bribe” are sanctioned only in those cases where the person who was bribed, or who asks for a bribe, is an official employed in a public organization, a person appointed in a legal position, magistrate, sworn expert, translator, interpreter, or member of the Armed Forces. The measures applied in cases of “bribery” and less severe sanctions for accepting “bribe” are particularly strict, when the case has not been resolved illegally.

In Slovakia (Uvat, 2010, p. 156), in 1995, The government approved the anti-corruption program “Clean Hands” and thus increased the penalties for “bribery” crimes, so they introduced in the Slovak Criminal Code, art.160-for the crime of “taking bribes”, art.162-for the crime of “bribery” and art. 168 paragraph 1 - for the crime of “indirect bribery”.

In the United States of America (Uvat, 2010, p. 156), it is prohibited by law for a civil servant of the Federal Government to request, offer, or allow a “bribe” to a civil servant.

Even from Ancient Greece (Uvat, 2010, p. 156), bribes being frequent, Plato proposed that officials, who receive gifts to do their duty, be punished with death. He said, “You must not receive gifts for good or for bad deeds”.

The above leads us to the conclusion that most modern states have adopted laws on the phenomenon of corruption, recognizing the high degree of social danger posed by such acts⁸. It is necessary to control and sanction by creating an adequate normative framework, of some anti-corruption bodies, efficient and effective at institutional level and the urgent taking of educational measures in the society, even from the smallest classes of the gymnasium education.

Case Study on the Crime of “Bribery”

In a case investigated by the National Anticorruption Directorate - Oradea Territorial Service, the defendants I.R. and B.A.S. were sent to court, the case being the subject of file no. 5256/111/2014⁹.

By the criminal sentence no. 49/18 April 2015, the Bihor Tribunal sentenced the defendants to 3 years imprisonment with suspension under supervision.

The conviction of the defendants was ordered for committing the crime of bribery provided by art. 289 para. (1) Criminal Code with the application of art. 6 and art. 7 para. (1) letter c) of Law no. 78/2000, consisting in the fact that in the exercise of the professional duties by the inspector and the coordinating inspector within the State Inspectorate for Control in Road Transport Bihor they claimed and received the amount of 1000 euros from the denouncing witness B.L.C. in connection with the non-fulfillment of the professional duties consisting in the inadequate performance of the expected control, the manifestation of indulgence in the finding and the contraventional sanctioning of the eventual deviations, which would have been discovered as well as for ensuring the future protection of the witness.

The solution of the conviction was given with a recognition agreement.

As to the quality of inspectors within the State Inspectorate for Road Transport Control (I.S.C.T.R.) Bihor, it will be noted that the defendants I.R. and B.A.S have the quality of civil servants within the meaning of art. 175 para. 1 Criminal Code.

I.S.C.T.R. was founded on the basis of the G.E.O. no. 26/2011 as a public institution with legal personality, subordinated to the Ministry of Transport and Infrastructure, and according to art. 8, I.S.C.T.R. are able to carry out control activities at the headquarters of companies, which operate in the field of road transport.

According to art. 5 point 3 of the Government Decision no. 1,088 / 2011, in the exercise of their duties, the inspectors, as ascertaining agents, control, ascertain and sanction the violations provided by the legislation in force.

Therefore, there was applied the cause of the aggravation provided by art. 7 para. (1) lit. c) of Law no. 78/2000 defendants I.R. and B.A.S. being civil servants who had attributions of ascertaining and sanctioning the contraventions. Being an instant crime, bribery was consumed when civil servants I.R. and B.A.S. subsequently claimed and received the amount of money for not fulfilling an act regarding the duties of service.

The tribunal finds that the conditions provided by art. 91 Criminal Code appreciating the punishment established by 3 years imprisonment, because:

• the defendants are not known to have a criminal record;

• they agreed to perform unpaid work for the benefit of the community;

• they did not evade criminal prosecution or trial;

• did not try to thwart the attempts to find out the truth or to identify and prosecute the participants;

• they opted for the abbreviated procedure of acknowledging the accusation;

• and considering that in relation to the person of each defendant who is no longer in employment relations with the I.S.C.T.R. Bihor;

• socially correct conduct prior to the commission of the crime, as well as;

• of the possibilities of correction for each of them, so that the court considers the application of the 3-year prison sentence, that it is sufficient and even without its execution, the defendants will not commit other crimes of the same nature, but it is necessary to supervise their conduct for a certain period.

Regarding the accessory punishment and the complementary one, the court will take into account the provisions of art. 289 para. 1 of the Criminal Code, according to which, in case of conviction for committing the crime of bribery, in addition to the application of the main punishment, it is mandatory to prohibit the exercise of the right to hold a public office or exercise the profession or activity in which he committed the act as additional punishment.

The tribunal notes that the amount of 1000 euro was made available to the criminal investigation bodies by the denouncing witness in order to carry out the probative procedure of finding the crime of corruption.

Consequently, the Court will find that the sum of EUR 1000 has been returned to the witness B.L.C. through the minutes of 11/21/2014.

Conclusions

Starting from the need to eliminate or, at least, to diminish the phenomenon of corruption, I believe that, as in the case of any other social phenomenon, it is necessary both an analysis of its causes and effects. From another perspective, the phenomenon of corruption works according to the rule of communicating vessels, so that the advantages acquired through acts of corruption by certain people are based on disadvantages or losses for others. Corruption feeds on itself, because there can be no corrupt officials without certain people demanding illegal services from them. Without the support of members of society or in the absence of tacit acceptance from them, corruption could no longer exist, because it always involves two factors: the corrupting and the corrupt.

Corruption has no territorial or spiritual boundaries, nor can you say that if a civil servant has a higher education he is less corrupt or corruptible, or if he committed the deed for the first time, he is less corrupt than the one who committed more crimes. But that in the case described above, the civil servants were denounced, they were actually discovered. The intention and purpose of the legislator in incriminating the aggravated variant was to more severely sanction persons who, having duties of service that require a high level of trust from their recipients, divert the powers conferred on them in the opposite direction, to obtain undeserved goods. The aggravation of the criminal liability is, therefore, justified exclusively by the violation of the obligation of moral probity in fulfilling the legal attributions of finding / sanctioning the contraventions.

I consider that in the case analyzed above, for the crime of bribery, the magistrates started from the purpose of the legislator in incriminating the aggravated variant, but during the analysis of the case, taking into account the outcome of the crime, the conduct of the defendants before committing the crime, and during the criminal investigation, corroborated with everyone's option for the abbreviated procedure of acknowledging the accusation, they minimized the intention and purpose of the legislator in incriminating the aggravated variant regarding the violation of the obligation of moral probity in fulfilling the legal attributions, so that the sanctions regarding the main punishments were deemed in a manner which can lead to encourage, in the future, the phenomenon of corruption.

Analyzing this material corroborated with the multitude of examples of corruption that surround us, from different social backgrounds, in different institutions or public authorities, permanently related to the financial, socio-human, political and geographical state, we found that the phenomenon of corruption develops when there is:

• legislative instability, respectively relatively frequent changes of the legislation in the field of preventing and combating corruption;

• non-structuring of public institutions and authorities on well-determined criteria and focused on the needs and necessities of the citizen, as well as politicization of public institutions and authorities;

• lack of transparency in the functioning of public institutions and authorities;

• bureaucracy based on the lack of implementation of a simplified, correct and fast procedure,

• lack of culture of any kind,

• lack of education as a healthy product of democracy, subjective factors, because people are a product of the environment in which older generations live, grow, learn, copy or not, with inherited, transmitted, perceived and assimilated particularities depending on intelligence, geographical area, culture and traditions.

I believe that the consequences of maintaining the legislation governing corruption offenses should be analyzed, in relation to the current causes and effects, in relation to the specific legislation of other states that do not face an advanced corruption phenomenon.

We also consider reducing the politicization of institutions and public authorities, introducing civic education courses in education against corruption and, why not, to adopt the normative conduct of Germany, a state that emphasizes social involvement, the denunciation of these crimes by citizens.

At the end of the paper I pointed out some proposals de lege ferenda, thus, I considered it adequate to deepen and find criminal solutions in the following directions:

• elaboration of an efficient sanctioning system in case of committing acts of corruption;

In a jurisprudential context, the Constitutional Court holds that magistrates are not civil servants, within the meaning of Law no. 188/1999 on the Statute of civil servants, are considered civil servants within the meaning of the criminal law. This is explicitly stated in art. 6 lit. c) of Law no. 188/1999, according to which the provisions of this law are not applicable to the body of magistrates. Their status results from the special legislation, enacted in the concretion of the constitutional norms that grant magistrates a special position in the various categories of staff, characterized by guarantees to ensure their independence and impartiality, necessary for the administration of justice, as a fundamental activity in a lawful state.

Thus,

• I propose widening the scope of the civil servant institution, with the introduction of prosecutors in the field of the notion;

• creating a normative framework that provides for an accelerated procedure in the case of certain active subjects who enjoy certain immunities or privileges and who have committed acts of corruption.

This category includes judges, members of parliament, senators, as well as other people with important positions who benefit from some privileges offered by the state.

• finding solutions to raise awareness in society about the negative impact of corruption, as well as mechanisms for educating society in this field.

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