v. reports on enforcement in oecd convention countries - Begroting

Legal framework and enforcement system regarding subsidiaries, agents and other intermediaries: In general
the framework in this area is inadequate. Article 337-B of the Brazilian Criminal Code expressly covers foreign
bribery via an intermediary but this does not include liability for subsidiaries. There can be obstacles depending on
the complexity of the business structure. The diffi culty in proving the link between the various participants in the
chain may hinder enforcement.
Recent developments: Bill 6826, put forward by the previous administration in February 2010, would improve
the framework for subsidiaries, agents and other intermediaries, including by extending the responsibility for acts
of corruption to entities that are part of an economic group. Under this legislation, legal entities would be held
responsible for acts of corruption, independent of the organisation or corporate structure. The bill would also
provide for civil and administrative (not criminal) liability of legal persons for foreign bribery of public offi cials.
Further, Resolution 62 was approved in August 2010 by the Council of Ministers of the Foreign Trade Chamber.
This was an important accomplishment in Brazil. The resolution requires exporters to sign the Declaration of
Commitment to the Exporter, stating that the exporter is aware that Brazil has joined the OECD Convention; the
exporter acknowledges that the Brazilian Criminal Code criminalises offences against foreign governments; the
exporter will implement, if not yet existent, practices and internal control systems, including standards of conduct
to combat the crime of bribery and infl uence-peddling in international business transactions. The exporter must
also declare that it is aware that if it or any person representing it is found guilty of foreign bribery, the exporter
will lose access to the export fi nancing facility of the Brazilian fi nancing bank (BNDES), the Export Financing
Programme – PROEX, operated by Banco do Brasil.
Recommendations: The government should promptly approve the aforementioned Bill 6826 to extend responsibility
for acts of corruption to entities that are part of an economic group. Pass Bill 5228 of 2009 to allow for greater
protection for whistle-blowers. Pass Bill 3443 of 2008 to extend anti-money-laundering reporting obligations to
the legal and accounting professions.
BULGARIA
LITTLE OR NO ENFORCEMENT: Four cases and no investigations. Share of world exports is 0.1 per cent.
Foreign bribery cases or investigations: There is one pending case in Bulgaria, and three cases have been concluded.
The pending case concerns alleged bribery by a Bulgarian legal person in connection with the UN Oil-for-Food
Programme. In 2010 the pre-trial proceedings were terminated by the Sofi a Prosecution Offi ce on the grounds that
their request to the relevant UN committee for additional information had gone unanswered. 74 An investigation of
a Bulgarian for alleged bribery of a permanent secretary in the Zambian Ministry of Health advanced to pre-trial
proceedings but was dropped in 2010 due to the death of the defendant. 75
Domestic bribery by foreign companies: None known.
Inadequacies in legal framework: There are numerous inadequacies, including insuffi cient defi nition of the
offence; lack of criminal liability for companies; complicated, over-formalised procedures; low sanctions; a
potentially inadequate statute of limitations; and the availability of the defence of “effective regret”, which can
be invoked in cases of extortion. 76 With regard to sanctions, the Group of States against Corruption (GRECO) Third
Evaluation Report on Bulgaria found that active and passive bribery of a foreign public offi cial are punishable with
imprisonment for up to six years and a fi ne of up to 5000 Leva (US $3,600). 77 The OECD’s Phase 3 Report of October
2010 noted that administrative sanctions and penalties for false accounting are too low. 78 The statute of limitations
is insuffi cient in consideration of signifi cant delays in court proceedings in Bulgaria. The period of limitation is ten
years and runs to the end of prosecution or sentencing, during which time it can be extended up to 15 years due to
suspension or interruption. 79 An additional weakness is that under Bulgarian law bribery entails the granting of a
74 Consultation between TI Bulgaria and the Supreme Prosecution Offi ce of Cassation
75 OECD Working Group on Bribery, Phase 3 Report on Bulgaria, March 2011, http://www.oecd.org/dataoecd/16/20/47468296.pdf
76 GRECO Third Round Evaluation of Bulgaria, October 2010,
http://www.coe.int/t/dghl/monitoring/greco/evaluations/round3/GrecoEval3%282009%297_Bulgaria_One_EN.pdf
77 Ibid.
78 OECD Working Group on Bribery, Phase 3 Report on Bulgaria, March 2011, http://www.oecd.org/dataoecd/16/20/47468296.pdf
79 Transparency International “Timed Out: Statutes of Limitations and Prosecuting Corruption in EU Countries”,
http://www.transparency.org/regional_pages/europe_central_asia/projects_and_activities/statutes_limitations
Progress Report 2011: Enforcement of the OECD Anti-Bribery Convention
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