Corruption crimes are the oldest and most common crimes in the world. They threaten democracy, the rule of law, human rights, good governance, violate the principles of equality and social justice, deter economic and social development of a state. Bribery is the most spread and dangerous corruption crime which undermines the foundations and authority of state power in the eyes of population [2]. Although a lot of legislative acts and other measures are used in order to combat bribery in Azerbaijan, it manifests itself in more sophisticated forms. The basic documents aimed at prevention and combat of bribery in Azerbaijan are the following: articles 311 and 312 of the Criminal Code of 1999 and the law “On combating corruption” of 2004. It should be noted that the law “On combating corruption” itself failed to give a precise and comprehensive definition of what the corruption is in itself, which in its turn hinders not only the prevention of corruption but also bribery.

Firstly, we have to define what is bribery? According to United Nations Convention Against Corruption (hereinafter referred to as Convention) there are: bribery of public officials, bribery of foreign public officials (publique function) and officials of public international organizations (acting on behalf of it) [5]. Article 15 of the Convention defines bribery as:

(a) 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;

(b) 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 [5].

The concept of bribery includes: accepting of bribe (or passive bribery), giving of bribe (or active bribery) and mediation in bribery [6]. We will build our discussion basing on the main characteristics of bribery according to its four elements: subject of bribery, subjective aspect of bribery, object of bribery and objective aspect of bribery.

Subject matter of the bribery is a bribe (undue advantage). “Undue advantage” is a concept which is formed in common law. It is something that is obtained by an official as a result of bribery. Most people understand under the “bribe” accepting or giving only money, but “undue advantage” has a more broad scope, as it is not only in the form of money but also something of value [4].

The bribe (undue advantage) can be in the following forms:

  1. Objects of material nature (such as money, securities, other property);
  2. Objects of property nature (illegal provision of services of a property nature, granting of property rights). It also involves providing the official with any property benefits as a bribe, including exemption him/her from property obligations (granting a loan with a lower interest rate for using it, repairing an apartment, transferring property for temporary use, performance of obligations to other persons) [4].

Subject of bribery crime is always special [2]. According to the Convention “public official” shall mean: (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 a State Party [5]. Similarly, note section of article 308 of the Criminal Code, as well as the decision of Constitutional Court of Azerbaijan of 2013 on interpretation of the “public official” term, specifies who is considered as a public official.

Objects of bribery – the procedure established by law for the activities of state bodies and institutions, as well as bodies and institutions of local self-government, the interests of service in these bodies and institutions. Additional objects are public morality, material interests of the victim [1].

Subjective aspect of bribery crime (giving, accepting and mediation in bribery) is in the form of direct intention [1]. The official realizes the public danger of his actions to accept a bribe and wishes to accept it. In order to qualify his deed as bribery it does not matter whether the public official intended to perform the act for which the bribe was given at the time of receiving the bribe. The decisive factor is that the bribe-taker wishes to accept a bribe and realizes that he accepts a bribe. It is sufficient to establish that the guilty person gave a bribe for committing an act or for inaction, patronage or connivance in service, and the public official understood that he accepted a bribe for this, nevertheless they wished to do so. As a rule, bribery is usually committed for mercenary motives. However, there may be a different personal interest of the person giving the bribe.

Objective aspect of bribery crime is determined, in accordance with its form (active, passive or mediation), as following:

  • The objective aspect of accepting a bribe is expressed in the solicitation, acceptance, or acceptance of promise or offer by the official of a bribe personally or through an intermediary for actions (inaction) in favor of the bribe-giver or the persons represented by him, if such actions (inaction) are included in the official powers of the official or, by virtue of his official position, can facilitate such actions (inaction), as well as for general patronage or connivance in the service.
  • The objective aspect of giving a bribe is expressed in the form of an offer, promise or giving bribe to an official in person or through an intermediary for actions (inaction) in favor of the bribe-giver, if such actions (inaction) are included in the official powers of the official or, by virtue of his official position, can facilitate such actions (inaction) as well as for general patronage or connivance in the service.
  • The objective aspect of mediation in bribery is expressed in the form of an indirect transfer of a bribe from a bribe-giver to a bribe-taker through an intermediary [4].

The acceptance of a property benefit by a public official in itself does not mean taking a bribe. An important sign of this crime is the conditionality of a bribe by the subsequent actions of a public official. This means that the bribe-giver does not simply present a gift to the public official, but transfers material values or provides a service of property nature for the fact that the public official will or will not perform certain actions in his favor. If a public official accepts a bribe without the intention to carry out a certain conduct in favor of the bribe-giver or another person represented by him (and with the purpose of appropriating material objects), since such behavior is not within his competence and he can not make influence on this behavior, then the act of giving a bribe should be qualified as an attempt to give a bribe, and the acceptance of a bribe – as a fraud [2].

The corpus delicti of a bribery is formal, so this crime should be considered completed at the time of acceptance of at least part of the alleged bribe by the official.

Martin T. Biegelman distinguishes the following features of bribery:

  1. Property nature of the provided benefit;
  2. Illegality of its provision;
  3. Provision of such benefit for the commission of actions (inaction) related to the use of the official position of a public official;
  4. Receiving it by a public official [3].

 

BIBLIOGRAPHY

  1. Isfandiyar Aghayev. Criminal law: The General part. Leipzig University Press, 2015, 360 p.
  2. Brian P. LoughmanRichard A. Sibery. Bribery and Corruption: Navigating the Global Risks. Wiley, 1 edition, 2011, 432 p.
  3. Martin T. Biegelman, Daniel R. Biegelman. Foreign Corrupt Practices Act Compliance Guidebook.Wiley, 1 edition, 2010, 384 p.
  4. OECD Glossaries. Corruption: A glossary of international standards in criminal law, 2008. Available at: http://www.oecd.org/daf/anti-bribery/41194428.pdf
  5. United Nations Convention Against Corruption, 2003. Available at: https://www.unodc.org/unodc/en/corruption/tools_and_publications/UN-convention-against-corruption.html
  6. Technical Guide to the United Nations Convention Against Corruption, 2009. Available at: https://www.unodc.org/documents/corruption/Technical_Guide_UNCAC.pdf

The articles on this blog are not, nor are they intended to be, legal advice. You should consult a lawyer for individual advice or assessment regarding your own situation.