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asic primer to<br />
white collar crime in cee<br />
schoenherr white collar crime<br />
a basic primer to white collar crime
www.schoenherr.eu
schoenherr white collar crime<br />
a basic primer to white collar crime
Po<br />
Brussels<br />
Prague<br />
Vienna<br />
Ljubljana<br />
Za<br />
All rights reserved.<br />
Schönherr Rechtsanwälte GmbH<br />
Tuchlauben 17<br />
1010 Wien<br />
Tel: +43 1 534 37 0<br />
Fax: +43 1 534 37 6100<br />
E-mail: office@schoenherr.eu<br />
Internet: www.schoenherr.eu<br />
© Schönherr Rechtsanwälte GmbH (2011)<br />
Druck: novographic, Wien<br />
E-mail: novographic@utanet.at
Warsaw<br />
Kyiv<br />
Bratislava<br />
Chisinau<br />
Budapest<br />
greb<br />
Bucharest<br />
Belgrade<br />
Sarajevo<br />
Sofia<br />
dgorica<br />
Skopje<br />
Istanbul<br />
Tirana<br />
Ankara
preface<br />
In all areas of business companies are facing mounting levels of<br />
risk and criminal law is playing an ever increasing role. As businesses<br />
become larger, more complex and more international,<br />
new threats may appear, often in unfamiliar areas. Consequently,<br />
for companies preventive measures, corporate criminal proceedings<br />
and investigations have markedly gained in importance.<br />
In response to this, and to better service the needs of our clients,<br />
<strong>Schoenherr</strong> has established a dedicated criminal compliance<br />
and white collar crime team dealing particularly with corruption.<br />
The team’s substantive legal expertise in this area means it is well<br />
equipped to handle all aspects of compliance and white collar<br />
criminal matters. And, with our extensive local presence in CEE/<br />
SEE, we can cover the entire region via our offices and country<br />
desks.<br />
This very first primer to white collar crime is intended to provide<br />
companies in the region a comprehensive overview of the main<br />
issues and challenges in the field of bribery and criminal law aspects.<br />
The primer covers: Austria, Albania, Bosnia & Herzegovina,<br />
Bulgaria, Croatia, Czech Republic, Hungary, Kosovo, Macedonia,<br />
Moldova, Montenegro, Poland, Romania, Serbia, Slovakia, Slovenia<br />
and Ukraine, as well as Turkey. Additionally, the US-Foreign<br />
Corrupt Practices Act and the UK Bribery Act (the later entering<br />
into force on 1 July 2011) are covered.<br />
Each country contribution deals with a series of important questions<br />
and answers, which are of relevance for practitioners in anti-corruption<br />
compliance, and is concluded by a comprehensive summary on<br />
the main issues.<br />
We would like to thank the contributing members of the compliance<br />
& white collar crime team for their commitment and effort<br />
towards the elaboration of this publication. The respective team<br />
members are happy to answer any further questions you might<br />
have after reading this primer.<br />
Heidemarie Paulitsch / Wolfgang Höller<br />
reface<br />
www.schoenherr.eu
albania 3<br />
austria 11<br />
bosnia & herzegovina 19<br />
bulgaria 27<br />
croatia 35<br />
czech republic 43<br />
hungary 51<br />
kosovo 59<br />
macedonia 67<br />
moldova 75<br />
montenegro 83<br />
poland 91<br />
romania 99
Table of Contents<br />
serbia 107<br />
slovakia 115<br />
slovenia 123<br />
turkey 131<br />
ukraine 139<br />
united kingdom 147<br />
usa 155
albania<br />
Jonida Cepani<br />
A-1010 Vienna, Tuchlauben 17<br />
T: +43 1 534 37 278<br />
E: j.cepani@schoenherr.eu<br />
Endrit Mema<br />
A-1010 Vienna, Tuchlauben 17<br />
T: +43 1 534 37 319<br />
E: e.mema@schoenherr.eu
albania<br />
1. Bribery in the public sector<br />
Definition of a public official as receiver of gifts and benefits in bribery<br />
related offences<br />
Public officials are defined as individuals who hold high state positions,<br />
locally elected officials and all officials holding any public position in institutions<br />
of central or local public administration (e.g., civil servants,<br />
directors, judges, prosecutors, police and military personnel, etc.)<br />
and directors of state-owned companies as well as foreign citizens<br />
holding public functions on behalf of a foreign country in Albania.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act contrary to their duties?<br />
Yes.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act in accordance with their duties?<br />
Yes, the accepting of an irregular benefit or promise of such a benefit<br />
by public officials in order to act or not to act in accordance with their<br />
duties constitutes a bribe.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to public officials without being held criminally liable?<br />
(e.g., gifts below EUR 100 will not be considered an advantage)<br />
(Geringfügigkeitsgrenze)<br />
Yes, public officials can maintain gifts below the threshold of<br />
ALL 10,000 (approx. EUR 70) offered by foreign governments or<br />
international organisations as part of the hospitality, courtesy,<br />
protocol and traditions of that country which do not create any<br />
suspicion of its purpose and damage the image of the Republic of<br />
Albania. Monetary gifts are prohibited, regardless of their value.<br />
Is it a criminal offence to offer gifts or advantages to public officials<br />
even though there is no connection to a specific action or<br />
omission of the public official (e.g., Christmas gifts, etc)?<br />
No.<br />
Can the donor of the benefit show active repentance in order to<br />
abandon the offence and go without punishment? (e.g., if they<br />
report themselves to the authorities and prevent the anticipated<br />
act of the official) (Tätige Reue)<br />
Yes, the perpetrator may benefit from active repentance if he or she<br />
4 www.schoenherr.eu
albania<br />
discloses the relevant action to the authorities and cooperates during<br />
the criminal investigation. The extent of these benefits (e.g., exception<br />
or reduction of the sentence) is assessed on an individual basis and<br />
generally depends on the time of the denunciation as well as on the<br />
consequences of the committed crime. Ideally, the offence should be<br />
denounced before the authorities became aware of the crime.<br />
What are the maximum sanctions for bribery in the public sector?<br />
The giver of the bribe is punishable by imprisonment of up to five<br />
years and a monetary fine of ALL 500,000 to 2,000,000 (approx.<br />
EUR 3,500 to 14,000). The receiver of the bribe is punishable by imprisonment<br />
of up to 12 years and a fine of ALL 1,000,000 to 5,000,000<br />
(approx. EUR 7,000 to 35,000).<br />
2. Bribery in the private sector<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act contrary to their duties?<br />
Yes, active bribery in the private sector constitutes an offence in relation<br />
to (i) all employees and (ii) agents. Active bribery of (iii) shareholders/owners<br />
does not constitute an offence; however, they may<br />
be liable if they perform any duty in the company.<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act in accordance with their duties?<br />
Yes, regarding category (i) and (ii) if it is provided for by their duties<br />
and position. In relation to (iii) shareholders/owners, it constitutes an<br />
offence only if they fall under category (i).<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act contrary<br />
to their duties?<br />
Yes, regarding category (i) and (ii). In relation to (iii) shareholders/<br />
owners, it constitutes an offence only if they fall under category (i).<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act in accordance<br />
with their duties?<br />
Yes, regarding category (i) and (ii) if it is provided in their duties and<br />
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5
albania<br />
position. In relation to (iii) shareholders/owners, it constitutes an offence<br />
only if they fall under category (i).<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to (i) employees, (ii) agents, or (iii) shareholders/owners<br />
without being held criminally liable? (e.g., gifts below EUR 100<br />
will not be considered an advantage) (Geringfügigkeitsgrenze)<br />
No.<br />
Can the donor of the benefit show active repentance in order<br />
to abandon the offence and go without punishment? (e.g., if he<br />
informs the authorities and prevents the anticipated act of the<br />
bribe receiver) (Tätige Reue)<br />
Yes, the perpetrator may benefit from active repentance if he or<br />
she discloses the relevant action to the authorities and cooperates<br />
during the criminal investigation. The extent of these benefits (e.g.,<br />
exception or reduction of the sentence) is assessed on an individual<br />
basis and generally depends on the time of the denunciation as well<br />
as on the consequences of the committed crime. Ideally, the offence<br />
should be denounced before the authorities became aware<br />
of the crime.<br />
What are the maximum sanctions for bribery in the private sector?<br />
The giver of the bribe is punishable by up to two years of imprisonment<br />
and a fine of up to ALL 1,000,000 (EUR 7,000). The receiver of<br />
the bribe is punishable by imprisonment of up to three years and a<br />
fine of up to 3,000,000 (EUR 20,000).<br />
3. Criminal liability of corporations (Unternehmensstrafrecht)<br />
Can private corporations be held criminally liable for offences<br />
committed by (i) management and (ii) employees?<br />
Yes, both.<br />
Is the criminal liability of the corporation fault-based or a strict<br />
liability offence?<br />
Strict liability, unless the corporation can prove that it had adequate<br />
supervision and controlling measures in place.<br />
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albania<br />
Is a levy of enrichment (disgorgement) of the corporation’s<br />
profits of the offence possible (e.g., the profit obtained from a<br />
contract, which was won through bribery)? (Verfall)<br />
Yes.<br />
Can a compliance programme (i) reduce the fine or (ii) permit the<br />
corporation to avoid prosecution/conviction or lead to impunity?<br />
Yes.<br />
What is the maximum fine which can be imposed on a corporation<br />
for a bribery offence?<br />
Approx. EUR 35,000.<br />
4. Statutes of Limitation (Verjährung)<br />
What is the period of limitation in criminal proceedings for corruption<br />
related offences until the end of investigation or the initiation<br />
of prosecution?<br />
Maximum ten years for offences punishable with imprisonment between<br />
five and ten years.<br />
Maximum five years for offences punishable with up to five years of<br />
imprisonment.<br />
Maximum three years for offences punishable with up to two years<br />
of imprisonment.<br />
What is the period of limitation in civil proceedings resulting<br />
from criminal offences?<br />
Civil claims related to the criminal offence may be <strong>file</strong>d prior to the<br />
closing of the criminal investigation and the commencement of the<br />
trial, i.e., the maximum term foreseen for the closing of the investigations<br />
is two years plus one year in special cases.<br />
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albania<br />
5. Miscellaneous<br />
Is management obliged to report offences committed within<br />
the corporation to the authorities?<br />
No, but such a report may serve to reduce the sanctions. Under<br />
Albanian legislation, the failure to report to the public authorities a<br />
crime that is in the process of being committed or which has been<br />
committed constitutes a crime.<br />
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albania<br />
Summary Albania<br />
Is it an offence to bribe individuals in connection with<br />
business activities (active or passive commercial bribery)?<br />
Yes.<br />
Is there a monetary limit for commercial bribery of<br />
private individuals?<br />
No. Any amount may be considered as a bribe offence.<br />
Is there a monetary limit for active bribery of public<br />
officials?<br />
No, but only under special circumstances is applicable the<br />
limit of EUR 70.<br />
Can private corporations be held criminally liable for<br />
offences?<br />
Yes.<br />
What is the maximum fine for corporations for bribery<br />
related offences?<br />
Approx. EUR 350,000<br />
www.schoenherr.eu<br />
9
austria<br />
Wolfgang Höller<br />
A-1010 Vienna, Tuchlauben 17<br />
T: +43 1 534 37 281<br />
E: w.hoeller@schoenherr.eu<br />
Heidemarie Paulitsch<br />
A-1010 Vienna, Tuchlauben 17<br />
T: +43 1 534 37 4005<br />
E: h.paulitsch@schoenherr.eu<br />
Klara Laura Jaroš<br />
A-1010 Vienna, Tuchlauben 17<br />
T: +43 1 534 37 4026<br />
E: k.jaros@schoenherr.eu
austria<br />
1. Bribery in the public sector<br />
Definition of a public official as receiver of gifts and benefits in bribery<br />
related offences<br />
Public officials are defined as individuals who are appointed or elected,<br />
perform public functions in any branch of foreign, national, local<br />
or municipal government and/or an international organisation. This<br />
includes officials holding legislative, administrative or judicial positions.<br />
Employees of companies that are controlled by the European<br />
Court of Auditors or comparable national or international institutions<br />
and which provide services predominantly to foreign countries’ legislative<br />
administration or judicial administration will be considered<br />
“foreign officials”. National, foreign and international arbitrators and<br />
court experts are considered public officials.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act contrary to their duties?<br />
Yes.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act in accordance with their duties?<br />
Yes, if the acceptance of the advantage contradicted the official’s<br />
service code or if the official explicitly demanded the bribe in violation<br />
of his or her service code.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to public officials without being held criminally liable?<br />
(e.g., gifts below EUR 100 will not be considered an advantage)<br />
(Geringfügigkeitsgrenze)<br />
No, there is no specific monetary limit expressed in EUR.<br />
Is it a criminal offence to offer gifts or advantages to public officials<br />
even though there is no connection to a specific action or<br />
omission of the public official (e.g., Christmas gifts, etc)?<br />
No.<br />
Can the donor of the benefit show active repentance in order<br />
to abandon the offence and go without punishment? (e.g., if<br />
they report themselves to the authorities and prevent the anticipated<br />
act of the official) (Tätige Reue)<br />
Yes. Whoever voluntarily and earnestly endeavours to abandon the<br />
offence or avert its success (e.g., the anticipated act or omission of<br />
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austria<br />
the public official) before the authorities gain knowledge of it goes<br />
without punishment.<br />
What are the maximum sanctions for bribery in the public sector?<br />
Up to ten years of imprisonment or a corresponding monetary fine.<br />
2. Bribery in the private sector<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act contrary to their duties?<br />
Yes, regarding (i) and (ii), but it may be prosecuted only if a third<br />
party (e.g., a competitor) demands prosecution. Active bribery of<br />
shareholders/owners (iii) is not an offence.<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act in accordance with their duties?<br />
No.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act contrary<br />
to their duties?<br />
Yes regarding (i) and (ii). However, it may be prosecuted only if<br />
a third party (e.g., a competitor) demands prosecution or if the<br />
advantage exceeds EUR 3,000. Passive bribery of shareholders/<br />
owners (iii) is not an offence.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act in accordance<br />
with their duties?<br />
No.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to (i) employees, (ii) agents, or (iii) shareholders/owners<br />
without being held criminally liable? (e.g., gifts below EUR 100<br />
will not be considered an advantage) (Geringfügigkeitsgrenze)<br />
No monetary limit is expressed by law in EUR. However, according<br />
to the Austrian Supreme Court jurisdiction, a benefit of up to EUR 100<br />
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13
austria<br />
of value is considered to be customary in the case of active bribery.<br />
Passive bribery has no monetary limit.<br />
Can the donor of the benefit show active repentance in order<br />
to abandon the offence and go without punishment? (e.g., if he<br />
informs the authorities and prevents the anticipated act of the<br />
bribe receiver) (Tätige Reue)<br />
No.<br />
What are the maximum sanctions for bribery in the private sector?<br />
Up to three years of imprisonment or a corresponding monetary<br />
fine.<br />
3. Criminal liability of corporations (Unternehmensstrafrecht)<br />
Can private corporations be held criminally liable for offences<br />
committed by (i) management and (ii) employees?<br />
Yes, (i) if decision-makers (i.e., management board members, proxies,<br />
supervisory board members) have culpably committed an offence<br />
or (ii) if employees committed an unlawful act and a decisionmaker<br />
has culpably violated their duty to supervise or control the<br />
employee, e.g., by not implementing preventive measures.<br />
Is the criminal liability of the corporation fault-based or a strict<br />
liability offence?<br />
Fault-based liability.<br />
Is a levy of enrichment (disgorgement) of the corporation’s<br />
profits of the offence possible (e.g., the profit obtained from a<br />
contract, which was won through bribery)? (Verfall)<br />
Yes.<br />
Can a compliance programme (i) reduce the fine or (ii) permit the<br />
corporation to avoid prosecution/conviction or lead to impunity?<br />
Yes.<br />
14<br />
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austria<br />
What is the maximum fine which can be imposed on a corporation<br />
for a bribery offence?<br />
In general, up to EUR 1.8 million. In case of bribery, serious fraud or<br />
breach of trust up to EUR 1.3 million.<br />
4. Statutes of Limitation (Verjährung)<br />
What is the period of limitation in criminal proceedings for corruption<br />
related offences until the end of investigation or the initiation<br />
of prosecution?<br />
Maximum ten years for bribery offences.<br />
What is the period of limitation in civil proceedings resulting<br />
from criminal offences?<br />
In general, three years from the day the injured party learned of the<br />
damage and the liable party. If the offence could be sanctioned with<br />
a sentence of one year or more of imprisonment, the injured party<br />
can claim damages within 30 years from the day when the damage<br />
occurred, even if the damage and the wrongdoer were known from<br />
the beginning.<br />
5. Miscellaneous<br />
Is management obliged to report offences committed within<br />
the corporation to the authorities?<br />
No, but such a report would substantially reduce/mitigate the penalty.<br />
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Statute of Limitation (SoL) in Austria under the Austrian Criminal Code (ACC)<br />
concrete periods of SoL for corruption related offences<br />
Anti-corruption offences<br />
Maximum<br />
prison<br />
sentence<br />
SoL until end<br />
of investigation<br />
or<br />
prosecution<br />
Maximum<br />
fine for<br />
corporations<br />
in EUR<br />
Active and passive commercial<br />
bribery (Sec. 10 Austrian<br />
Unfair Competition Act)<br />
3 months<br />
or monetary<br />
fine<br />
1 year 400,000<br />
• Granting of benefits for officials<br />
up to EUR 3,000 (Sec.<br />
307a para. 1 of the ACC)<br />
• Preparation of bribery of officials<br />
up to EUR 3,000 (Sec.<br />
307b para. 1 of the ACC)<br />
• Active commercial bribery<br />
up to EUR 3,000 (Sec.<br />
168c para. 1 of the ACC)<br />
• Passive commercial bribery<br />
(Sec. 186d of the ACC)<br />
• Bribery of officials up<br />
to EUR 3,000 (Sec. 307<br />
para. 2 of the ACC)<br />
• Granting of benefits for<br />
officials from EUR3,000<br />
up to EUR 50,000 (Sec.<br />
307a para. 2 of the ACC)<br />
• Preparation of bribery of<br />
officials from EUR 3,000<br />
up to EUR 50,000 (Sec.<br />
307b para. 2 of the ACC)<br />
• Prohibited intervention from<br />
EUR 3,000 up to EUR50,000<br />
(Sec. 308 of the ACC)<br />
• Active commercial bribery<br />
exceeding EUR3,000 (Sec.<br />
168c para 1 of the ACC)<br />
• Bribery of officials from EUR<br />
3,000 up to EUR 50,000<br />
(Sec. 307 of the ACC)<br />
• Granting of benefits for officials<br />
exceeding EUR50,000<br />
(Sec. 307a of the ACC)<br />
• Preparation of bribery of officials<br />
exceeding EUR 50,000<br />
(Sec. 307b of the ACC)<br />
• Prohibited intervention<br />
exceeding EUR50,000<br />
(Sec. 308 of the ACC)<br />
• Bribery of officials exceeding<br />
EUR 50,000<br />
(Sec. 307 of the ACC)<br />
• Serious fraud or Breach<br />
of Trust exceeding damage<br />
of EUR 50,000 (Sec.<br />
146ff, 153ff of the ACC)<br />
2 years 5 years 700,000<br />
3 years 5 years 850,000<br />
5 years 5 years 1,000,000<br />
10 years 10 years 1,300,000<br />
16<br />
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austria<br />
Summary Austria<br />
Is it an offence to bribe individuals in connection with<br />
business activities (active or passive commercial bribery)?<br />
Yes.<br />
Is there a monetary limit for commercial bribery of<br />
private individuals?<br />
Yes, approx. EUR 100, but only with respect to active bribery.<br />
Is there a monetary limit for active bribery of public<br />
officials?<br />
No.<br />
Can private corporations be held criminally liable for<br />
offences?<br />
Yes.<br />
What is the maximum fine for corporations for bribery<br />
related offences?<br />
EUR 1,300,000.<br />
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17
osnia & herzegovina*<br />
Srđana Petronijević<br />
SRB-11000 Belgrade, Francuska 27<br />
T: +381 11 3202 600<br />
E: s.petronijevic@schoenherr.rs<br />
Nataša Lalatović<br />
SRB-11000 Belgrade, Francuska 27<br />
T: +381 11 3202 600<br />
E: n.lalatovic@schoenherr.rs
osnia & herzegovina<br />
1. Bribery in the public sector<br />
Definition of a public official as receiver of gifts and benefits in bribery<br />
related offences<br />
Public officials are defined as all persons elected or appointed to a<br />
legislative, executive or judicial office within BiH and other national<br />
and administrative institutions or services which perform particular<br />
administrative, expert and other duties, within the rights and liabilities<br />
of the authority that has founded them; a person who continuously<br />
or occasionally executes an official duty in the aforementioned<br />
administrative bodies or institutions, an authorised person in a business<br />
enterprise or another legal entity that has been entrusted with<br />
the execution of public authorities by law or other regulations based<br />
on the law, who performs certain duties within the framework of the<br />
given authority; and other persons who are performing specific official<br />
duties, with or without remuneration, as stipulated by law or other<br />
regulations based on the law.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act contrary to their duties?<br />
Yes.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act in accordance with their duties?<br />
Yes.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to public officials without being held criminally liable?<br />
(e.g., gifts below EUR 100 will not be considered an advantage)<br />
(Geringfügigkeitsgrenze)<br />
No, there is no monetary limit under the Criminal Code. However,<br />
under laws on conflict of interest, elected officials, executive officeholders<br />
and advisors may keep gifts worth less than BAM 200 (approx.<br />
EUR 100) without reporting it. In the Republic of Srpska, this<br />
threshold is set at BAM 300 (approx. EUR 150). These laws contain<br />
the following definitions: “Elected officials” include: members of the<br />
Presidency of BiH; delegates and members of the Parliamentary<br />
Assembly of BiH; secretaries of both houses of the Parliamentary<br />
Assembly of BiH; and the Secretary of the Common Service of the<br />
Parliamentary Assembly of BiH.<br />
“Executive office holders” include ministers and deputy ministers in<br />
the Council of Ministers of BiH; directors; deputy directors and assistant<br />
directors of State Administration authorities; agencies and<br />
directorates; institutes appointed by the Council of Ministers of BiH<br />
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osnia & herzegovina<br />
or the Parliamentary Assembly of BiH and/or the Presidency of BiH,<br />
who are not covered by the Law on Civil Service in Governmental Institutions<br />
of BiH. “Advisors” include advisors to elected officials and<br />
to executive officeholders.<br />
Is it a criminal offence to offer gifts or advantages to public officials<br />
even though there is no connection to a specific action or<br />
omission of the public official (e.g., Christmas gifts, etc)?<br />
No.<br />
Can the donor of the benefit show active repentance in order to<br />
abandon the offence and go without punishment? (e.g., if they<br />
report themselves to the authorities and prevent the anticipated<br />
act of the official) (Tätige Reue)<br />
Yes. The donor of the gift who gave a bribe at the request of an official<br />
or responsible person and reported the offence before it was<br />
discovered or before knowing that the offence was discovered, may<br />
be released from punishment.<br />
What are the maximum sanctions for bribery in the public sector?<br />
Up to five years of imprisonment or a corresponding monetary fine.<br />
2. Bribery in the private sector<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act contrary to their duties?<br />
Yes. It is a criminal offence to bribe a “responsible person”, which is<br />
defined as a person in a business enterprise or another legal entity<br />
who, in the line of duty or on the basis of specific authorisation, has<br />
been entrusted with a portfolio related to the implementation of law<br />
or regulations based on law or general acts of a business enterprise<br />
or other legal entities in managing and administrating the property,<br />
or is related to managing a productive or some other business process<br />
or supervision of such processes.<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act in accordance with their duties?<br />
Yes.<br />
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21
osnia & herzegovina<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act contrary<br />
to their duties?<br />
Yes.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act in accordance<br />
with their duties?<br />
No.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to (i) employees, (ii) agents, or (iii) shareholders/owners<br />
without being held criminally liable? (e.g., gifts below EUR 100<br />
will not be considered an advantage) (Geringfügigkeitsgrenze)<br />
No.<br />
Can the donor of the benefit show active repentance in order<br />
to abandon the offence and go without punishment? (e.g., if he<br />
informs the authorities and prevents the anticipated act of the<br />
bribe receiver) (Tätige Reue)<br />
Yes. The donor of the gift who gave a bribe at the request of an official<br />
or responsible person and reported the offence before it was<br />
discovered or before knowing that the offence was discovered, may<br />
be released from punishment.<br />
What are the maximum sanctions for bribery in the private sector?<br />
Up to five years of imprisonment for active bribery and up to ten<br />
years of imprisonment for passive bribery.<br />
3. Criminal liability of corporations (Unternehmensstrafrecht)<br />
Can private corporations be held criminally liable for offences<br />
committed by (i) management and (ii) employees?<br />
Yes, a corporation is criminally liable for offences committed by a<br />
person on its behalf, for its account or in its interest when (i) an element<br />
of the criminal offence stems from a decision, instruction or<br />
approval of a managerial or supervisory body of the corporation; (ii)<br />
when the managerial or supervisory authority of the corporation has<br />
influenced a person to commit a criminal offence or made it possible<br />
22<br />
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osnia & herzegovina<br />
to commit the criminal act; (iii) when the corporation disposes of<br />
the unlawfully acquired financial gain or uses objects which are the<br />
product of a criminal offence; (iv) when the managerial or supervisory<br />
body of the corporation failed to duly supervise the lawfulness<br />
of the employees’ work.<br />
Is the criminal liability of the corporation fault-based or a strict<br />
liability offence?<br />
It is a strict liability offence. However, in cases where there is no<br />
person or body in the corporation other than the offender that could<br />
direct or supervise the offender, the legal entity shall be liable for the<br />
criminal act within the limits of the offender’s liability.<br />
Is a levy of enrichment (disgorgement) of the corporation’s<br />
profits of the offence possible (e.g., the profit obtained from a<br />
contract, which was won through bribery)? (Verfall)<br />
Yes.<br />
Can a compliance programme (i) reduce the fine or (ii) permit the<br />
corporation to avoid prosecution/conviction or lead to impunity?<br />
Yes.<br />
What is the maximum fine which can be imposed on a corporation<br />
for a bribery offence?<br />
Up to BAM 5 million (approx. EUR 2.5 million). In cases where property<br />
was damaged or unlawful financial gain was acquired through<br />
the criminal act of a legal entity, the maximum possible fine may be<br />
double the amount of the damage incurred or gain acquired.<br />
4. Statutes of Limitation (Verjährung)<br />
What is the period of limitation in criminal proceedings for corruption<br />
related offences until the end of investigation or the initiation<br />
of prosecution?<br />
From the moment of committing the offence: Fifteen years for an<br />
offence punishable with imprisonment of more than five years and<br />
up to ten years. Ten years for an offence punishable with imprisonment<br />
of more than three years and up to five years. Five years for<br />
an offence punishable with imprisonment of more than one year and<br />
up to three years.<br />
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osnia & herzegovina<br />
What is the period of limitation in civil proceedings resulting<br />
from criminal offences?<br />
The period of limitation is three years from the moment an injured<br />
party learned of the damage or the liable party. In any case, the period<br />
of limitation ends five years after the day the damage occurred.<br />
However, if the period of limitation in criminal proceedings is longer<br />
than the period of limitation in civil proceedings, then the period of<br />
limitation in civil proceedings shall expire upon the expiration of the<br />
limitation period in the criminal proceedings.<br />
5. Miscellaneous<br />
Is management obliged to report offences committed within<br />
the corporation to the authorities?<br />
No, but such a report would be legal grounds for reducing the fine.<br />
24 www.schoenherr.eu
osnia & herzegovina<br />
Summary Bosnia & Herzegovina<br />
Is it an offence to bribe individuals in connection with<br />
business activities (active or passive commercial bribery)?<br />
Yes.<br />
Is there a monetary limit for commercial bribery of<br />
private individuals?<br />
No.<br />
Is there a monetary limit for active bribery of public<br />
officials?<br />
No.<br />
Can private corporations be held criminally liable for<br />
offences?<br />
Yes.<br />
What is the maximum fine for corporations for bribery<br />
related offences?<br />
approx. EUR 2,500,000<br />
* Moravčević Vojnović Zdravković in cooperation with <strong>Schoenherr</strong> covers<br />
Bosnia and Herzegovina via its country desk and in cooperation with local<br />
counsel.<br />
www.schoenherr.eu<br />
25
ulgaria<br />
Anton Andreev<br />
BG-1000 Sofia, Alabin 56<br />
T: +359 2 933 10 81<br />
E: a.andreev@schoenherr.eu
ulgaria<br />
1. Bribery in the public sector<br />
Definition of a public official as receiver of gifts and benefits in bribery<br />
related offences<br />
The term “public official” is defined as any person: holding an office<br />
assigned with public responsibilities in a state institution or carrying<br />
out managerial functions or being responsible for the management of<br />
a third person’s property at any state enterprise, social organisations<br />
(including political parties), juridical persons (state-owned or private),<br />
sole proprietorship and some specified private officials such as a notary<br />
public.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act contrary to their duties?<br />
Yes.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act in accordance with their duties?<br />
Yes.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to public officials without being held criminally liable?<br />
(e.g., gifts below EUR 100 will not be considered an advantage)<br />
(Geringfügigkeitsgrenze)<br />
No, there is no express legal provision.<br />
Is it a criminal offence to offer gifts or advantages to public officials<br />
even though there is no connection to a specific action or<br />
omission of the public official (e.g., Christmas gifts, etc)?<br />
No.<br />
Can the donor of the benefit show active repentance in order to<br />
abandon the offence and go without punishment? (e.g., if they<br />
report themselves to the authorities and prevent the anticipated<br />
act of the official) (Tätige Reue)<br />
Yes, but only if the donor has been blackmailed by the official to propose,<br />
promise or give the bribe and has immediately and voluntarily<br />
disclosed the act of bribery to the authorities. Mere disclosure without<br />
having been blackmailed is not sufficient to avoid the penalty.<br />
28 www.schoenherr.eu
ulgaria<br />
What are the maximum sanctions for bribery in the public sector?<br />
The sanction for very large amounts representing a particularly grave<br />
case is ten to 30 years of imprisonment and a monetary fine of up to<br />
BGN 30,000 (approx. EUR 15,300) as well as the confiscation of all<br />
or parts of the perpetrator’s property.<br />
2. Bribery in the private sector<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act contrary to their duties?<br />
Yes, regarding (i) and (ii). Active bribery of shareholders/owners (iii)<br />
is not an offence.<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act in accordance with their duties?<br />
No.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act contrary<br />
to their duties?<br />
Yes regarding (i) and (ii). Passive bribery of persons in their specific<br />
capacity as share-holders/owners (iii) is not an offence. Bribery is<br />
generally incriminated where any person, without regard to their<br />
capacity, receives an undue material benefit for any work done or<br />
service rendered.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act in accordance<br />
with their duties?<br />
Passive bribery is generally incriminated where any person, without<br />
regard to their capacity, receives an undue material benefit for any<br />
work done or service rendered. This qualification would apply, for<br />
example, to a physician or a shareholder if the act or omission does<br />
not meet the qualification of a more aggravated crime.<br />
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29
ulgaria<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to (i) employees, (ii) agents, or (iii) shareholders/owners<br />
without being held criminally liable? (e.g., gifts below EUR 100<br />
will not be considered an advantage) (Geringfügigkeitsgrenze)<br />
No.<br />
Can the donor of the benefit show active repentance in order<br />
to abandon the offence and go without punishment? (e.g., if he<br />
informs the authorities and prevents the anticipated act of the<br />
bribe receiver) (Tätige Reue)<br />
No.<br />
What are the maximum sanctions for bribery in the private sector?<br />
The maximum sanction is up to five years of imprisonment or a fine<br />
of up to BGN 20,000 (approx. EUR 10,200).<br />
3. Criminal liability of corporations (Unternehmensstrafrecht)<br />
Can private corporations be held criminally liable for offences<br />
committed by (i) management and (ii) employees?<br />
Not in the strict sense. Bulgaria has a regime in place whereby fines<br />
may be imposed on corporations for certain criminal acts committed<br />
by (i) management, (ii) representatives and (iii) employees when<br />
carrying out their duties where the corporation has benefited or<br />
would have benefited as a result of the crime.<br />
Is the criminal liability of the corporation fault-based or a strict<br />
liability offence?<br />
There is no definite answer to this question in Bulgarian law and<br />
practice. The law does not require that the corporation’s officer<br />
should have acted with intent to benefit the corporation in order for<br />
a fine to be imposed on the corporation. It requires only that the<br />
corporation has benefited or would have benefited as result of the<br />
crime. Therefore, we tend to believe that corporations would be liable<br />
on a strict liability basis.<br />
Is a levy of enrichment (disgorgement) of the corporation’s<br />
profits of the offence possible (e.g., the profit obtained from a<br />
contract, which was won through bribery)? (Verfall)<br />
Yes.<br />
30<br />
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ulgaria<br />
Can a compliance programme (i) reduce the fine or (ii) permit the<br />
corporation to avoid prosecution/conviction or lead to impunity?<br />
There is no legal provision to the effect that the fine is reduced or<br />
abolished if the corporation has taken measures to implement policies<br />
and practices to avoid committing the offence. Nevertheless,<br />
under the general principles of criminal law the courts may adopt the<br />
view that an implemented compliance programme may reduce the<br />
risk of imposing a sanction upon the corporation.<br />
What is the maximum fine which can be imposed on a corporation<br />
for a bribery offence?<br />
BGN 1,000,000 (approx. EUR 511,000).<br />
4. Miscellaneous<br />
Is management obliged to report offences committed within<br />
the corporation to the authorities?<br />
No.<br />
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ulgaria<br />
Summary Bulgaria<br />
Is it an offence to bribe individuals in connection with<br />
business activities (active or passive commercial bribery)?<br />
Yes.<br />
Is there a monetary limit for commercial bribery of<br />
private individuals?<br />
No.<br />
Is there a monetary limit for active bribery of public<br />
officials?<br />
No.<br />
Can private corporations be held criminally liable for<br />
offences?<br />
Not in the strict sense.<br />
What is the maximum fine for corporations for bribery<br />
related offences?<br />
approx. EUR 511,000<br />
32<br />
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ulgaria<br />
www.schoenherr.eu 33
croatia<br />
Matthias Wahl<br />
HR-10000 Zagreb, Ul. kneza Branimira 29<br />
T: +385 1 4576 492<br />
E: m.wahl@schoenherr.eu<br />
Neven Marić<br />
HR-10000 Zagreb, Ul. kneza Branimira 29<br />
T: +385 148 38 791<br />
E: n.maric@pc-lawfirm.com<br />
Dina Vlahov<br />
HR-10000 Zagreb, Ul. kneza Branimira 29<br />
T: +385 1 48 52 521<br />
E:d.vlahov@pc-lawfirm.com
croatia<br />
1. Bribery in the public sector<br />
Definition of a public official as receiver of gifts and benefits in bribery<br />
related offences<br />
Public officials are defined as all persons elected or nominated to a<br />
representative body, officials or persons performing official duties in<br />
bodies of the state administration, local self-government and administration,<br />
a unit of local self-government, the judiciary, the Constitutional<br />
Court of the Republic of Croatia, the State Attorney’s Office, the<br />
Ombudsman’s Office, the Ombudsman’s Office for Children, the Office<br />
of the President of the Republic, or a body, an office or an expert<br />
agency of the Government of the Republic of Croatia and the Croatian<br />
Parliament, a judicial official, a judge of the Constitutional Court of the<br />
Republic of Croatia, the State Attorney of the Republic of Croatia and<br />
his deputies, the Ombudsman of the Republic of Croatia and his deputies<br />
and the Ombudsman for Children and his deputies or a notary<br />
public. An official person is also a foreign lay judge, a domestic or a<br />
foreign arbitrator, a foreign civil servant, a representative or an official<br />
of a foreign representative body, an official of an international organisation<br />
of which the Republic of Croatia is a member, a representative<br />
or an official of an international assembly of which the Republic of<br />
Croatia is a member, and a judge or an official of an international court<br />
whose judicial competence the Republic of Croatia has recognised.<br />
Croatian criminal law also defines a responsible person as someone<br />
entrusted with particular tasks from the field of activities of a legal<br />
entity (state-owned or private company).<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act contrary to their duties?<br />
Yes.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act in accordance with their duties?<br />
Yes.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to public officials without being held criminally liable?<br />
(e.g., gifts below EUR 100 will not be considered an advantage)<br />
(Geringfügigkeitsgrenze)<br />
No, there is no specific monetary limit.<br />
However, officials are entitled to keep gifts with symbolic value up<br />
to HRK 500 (approx. EUR 68). In case of a breach of the provisions,<br />
the official may be punished.<br />
36 www.schoenherr.eu
croatia<br />
Is it a criminal offence to offer gifts or advantages to public officials<br />
even though there is no connection to a specific action or<br />
omission of the public official (e.g., Christmas gifts, etc)?<br />
If the gift/advantage is given with a corrupt intention (the bribers<br />
display corrupt intention as soon as they are aware that their activity<br />
might influence the official’s/responsible person’s decision and is<br />
willing to accept the possible outcome), this is considered a criminal<br />
offence. Therefore, even the giving of a symbolic gift/advantage<br />
may be deemed as a criminal offence if any counter-favour may be<br />
expected in return.<br />
Can the donor of the benefit show active repentance in order to<br />
abandon the offence and go without punishment? (e.g., if they<br />
report themselves to the authorities and prevent the anticipated<br />
act of the official) (Tätige Reue)<br />
Yes. The court shall remit the punishment of the perpetrator of the<br />
criminal offence provided that he gave the bribe at the request of an<br />
official/responsible person and reported the offence before it was discovered<br />
or before he learned that the offence was discovered.<br />
What are the maximum sanctions for bribery in the public sector?<br />
Up to eight years of imprisonment or a corresponding monetary fine.<br />
2. Bribery in the private sector<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act contrary to their duties?<br />
Yes, the provision of “public bribery” also covers responsible persons<br />
of a legal entity. However, it is not specifically stipulated whether<br />
a responsible person is deemed to be an employee or the agent<br />
of the company. In addition, Croatian law explicitly prohibits commercial<br />
bribery. Pursuant to these provisions, a responsible person<br />
is prohibited from asking for a deal or rendering services that are<br />
advantageous for one party but detrimental for the party that they<br />
represent in return for the bribe as well as in case of making a deal<br />
or rendering services as a counter-favour for a received bribe.<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act in accordance with their duties?<br />
Yes, if the offender is a “responsible person.” In addition Croatian<br />
law prohibits a responsible person from asking for a deal or rendering<br />
services that are advantageous for one party but detrimental for<br />
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37
croatia<br />
the party that they represent in return for a bribe as well as in case<br />
of making a deal or rendering services as a counter-favour for a<br />
received bribe.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act contrary<br />
to their duties?<br />
Yes, if the offender is a “responsible person.” In addition Croatian<br />
law prohibits a responsible person from asking for a deal or to render<br />
services that are advantageous for one party but detrimental<br />
for the party he/she represents in return for a bribe as well as in<br />
case of making a deal or rendering services as a counter favour for<br />
a received bribe.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act in accordance<br />
with their duties?<br />
Yes, if the offender is a “responsible person.” In addition Croatian<br />
law prohibits a responsible person from asking for a deal or rendering<br />
services that are advantageous for one party but detrimental for<br />
the party that they represent in return for a bribe as well as in case<br />
of making a deal or rendering services as a counter-favour for a<br />
received bribe.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to (i) employees, (ii) agents, or (iii) shareholders/owners<br />
without being held criminally liable? (e.g., gifts below EUR 100<br />
will not be considered an advantage) (Geringfügigkeitsgrenze)<br />
No.<br />
Can the donor of the benefit show active repentance in order<br />
to abandon the offence and go without punishment? (e.g., if he<br />
informs the authorities and prevents the anticipated act of the<br />
bribe receiver) (Tätige Reue)<br />
Yes. The court shall remit the punishment of the perpetrator of the<br />
criminal offence provided that he gave the bribe at the request of an<br />
official/responsible person and reported the offence before it was<br />
discovered or before he learned that the offence was discovered.<br />
38<br />
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croatia<br />
What are the maximum sanctions for bribery in the private sector?<br />
Up to eight years of imprisonment or a corresponding monetary fine.<br />
3. Criminal liability of corporations (Unternehmensstrafrecht)<br />
Can private corporations be held criminally liable for offences<br />
committed by (i) management and (ii) employees?<br />
Yes. According to the law any legal entity shall be punished for the<br />
criminal offence of its responsible person if the offence violates any<br />
of the duties of the legal entity or if the legal entity has derived or<br />
would have derived illegal gain for itself or a third party. The legal entities<br />
include foreign entities which are considered legal entities (persons)<br />
under Croatian law. Responsible person is defined as a natural<br />
person in charge of the operations of the legal entity or a person<br />
entrusted with tasks concerning the operation of the legal entity.<br />
Is the criminal liability of the corporation fault-based or a strict<br />
liability offence?<br />
Fault-based liability.<br />
Is a levy of enrichment (disgorgement) of the corporation’s<br />
profits of the offence possible (e.g., the profit obtained from a<br />
contract, which was won through bribery)? (Verfall)<br />
Yes.<br />
Can a compliance programmeme (i) reduce the fine or (ii) permit<br />
the corporation to avoid prosecution/conviction or lead to impunity?<br />
There are no such rules under Croatian law. However, the implemented<br />
compliance programmeme may be taken into account as a<br />
mitigating circumstance when assessing the amount of the fine to<br />
be imposed on the legal entity.<br />
What is the maximum fine which can be imposed on a corporation<br />
for a bribery offence?<br />
Up to HRK 6,000,000 (approx. EUR 810,810).<br />
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croatia<br />
4. Statutes of Limitation (Verjährung)<br />
What is the period of limitation in criminal proceedings for corruption<br />
related offences until the end of investigation or the initiation<br />
of prosecution?<br />
(i) Three years for active bribery and active commercial bribery.<br />
(ii) Ten years for passive bribery of a public official/responsible person<br />
to act contrary to his duties and passive commercial bribery to<br />
act advantageously for another, but detrimentally for the party that<br />
they represent.<br />
(iii) Five years for passive bribery of a public official/responsible person<br />
to act in accordance with his duties and passive commercial<br />
bribery to act as a favour for a given bribe.<br />
What is the period of limitation in civil proceedings resulting<br />
from criminal offences?<br />
In general, three years from the day when the injured party learned<br />
of the damage and the liable party. In any case, five years from the<br />
moment the damage was caused.<br />
Where damage has been caused by a criminal offence and a longer<br />
limitation period is provided for criminal prosecution, such limitation<br />
period also applies for a claim for compensation of damage from a<br />
responsible person.<br />
5. Miscellaneous<br />
Is management obliged to report offences committed within<br />
the corporation to the authorities?<br />
Yes. Under the Croatian Criminal Procedure Act Zakon o kaznenom<br />
postupku, all state authorities and all other legal entities are bound<br />
to report criminal offences subject to public prosecution about which<br />
they have learned themselves or have learned from other sources. It<br />
is also prescribed that citizens shall report criminal offences subject<br />
to public prosecution.<br />
40 www.schoenherr.eu
croatia<br />
Summary Croatia<br />
Is it an offence to bribe individuals in connection with<br />
business activities (active or passive commercial bribery)?<br />
Yes.<br />
Is there a monetary limit for commercial bribery of<br />
private individuals?<br />
No.<br />
Is there a monetary limit for active bribery of public<br />
officials?<br />
No.<br />
Can private corporations be held criminally liable for<br />
offences?<br />
Yes.<br />
What is the maximum fine for corporations for bribery<br />
related offences?<br />
HRK 6,000,000 (approx. EUR 810,810)<br />
www.schoenherr.eu<br />
41
czech republic<br />
Martin Grácz<br />
CZ-110 00 Prague 1, nám. Republiky 1079/1a<br />
T: +420 225 996 526<br />
E: m.gracz@schoenherr.eu<br />
Natalie Petrovska<br />
CZ-110 00 Prague 1, nám. Republiky 1079/1a<br />
T: +420 225 996 527<br />
E: n.petrovska@schoenherr.eu<br />
zech re
czech republic<br />
1. Bribery in the public sector<br />
Definition of a public official as receiver of gifts and benefits in bribery<br />
related offences<br />
Public officials are defined as judges, state prosecutors, the president<br />
of the Czech Republic, members of the Czech Parliament, members<br />
of the Czech executive cabinet or other persons holding a public office;<br />
members or responsible clerks of the regional representation,<br />
public administration or other public administration office; members<br />
of the armed forces or communal police; court executors in the performance<br />
of their office, public notaries acting in inheritance proceedings,<br />
financial ombudsmen and their substitutes; individuals who have<br />
been appointed to guard woods, countryside, hunting grounds or<br />
fishing areas; members of the legislative office, judicial office or other<br />
public office of a foreign country; individuals representing, engaged<br />
by or working for an international judicial office; individuals representing,<br />
engaged by or working for an international office established by a<br />
foreign country or other subjects of international law; and individuals<br />
representing a business entity in which the Czech Republic or another<br />
foreign country has decisive influence.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act contrary to their duties?<br />
Yes.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act in accordance with their duties?<br />
Yes.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to public officials without being held criminally liable?<br />
(e.g., gifts below EUR 100 will not be considered an advantage)<br />
(Geringfügigkeitsgrenze)<br />
No.<br />
Is it a criminal offence to offer gifts or advantages to public officials<br />
even though there is no connection to a specific action or<br />
omission of the public official (e.g., Christmas gifts, etc)?<br />
Yes. Pursuant to the prevailing interpretation of the Czech Criminal<br />
Code the giving of gifts or other benefits to public officials is not<br />
tolerated.<br />
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czech republic<br />
Can the donor of the benefit show active repentance in order to<br />
abandon the offence and go without punishment? (e.g., if they<br />
report themselves to the authorities and prevent the anticipated<br />
act of the official) (Tätige Reue)<br />
No.<br />
What are the maximum sanctions for bribery in the public sector?<br />
Up to 12 years of imprisonment, forfeiture of property or monetary<br />
fine, and prohibition of the acting person to continue the performance<br />
of their activities.<br />
2. Bribery in the private sector<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act contrary to their duties?<br />
Yes.<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act in accordance with their duties?<br />
Yes.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act contrary<br />
to their duties?<br />
Yes.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act in accordance<br />
with their duties?<br />
Yes.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to (i) employees, (ii) agents, or (iii) shareholders/owners<br />
without being held criminally liable? (e.g., gifts below EUR 100<br />
will not be considered an advantage) (Geringfügigkeitsgrenze)<br />
No.<br />
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czech republic<br />
Can the donor of the benefit show active repentance in order<br />
to abandon the offence and go without punishment? (e.g., if he<br />
informs the authorities and prevents the anticipated act of the<br />
bribe receiver) (Tätige Reue)<br />
No.<br />
What are the maximum sanctions for bribery in the private sector?<br />
Up to 12 years of imprisonment, forfeiture of property or monetary<br />
fine, and prohibition of the acting person to continue the performance<br />
of their activities.<br />
3. Criminal liability of corporations (Unternehmensstrafrecht)<br />
Can private corporations be held criminally liable for offences<br />
committed by (i) management and (ii) employees?<br />
No. Legal entities cannot be held criminally liable.<br />
Is the criminal liability of the corporation fault-based or a strict<br />
liability offence?<br />
N/A<br />
Is a levy of enrichment (disgorgement) of the corporation’s<br />
profits of the offence possible (e.g., the profit obtained from a<br />
contract, which was won through bribery)? (Verfall)<br />
Legal entities cannot be held criminally liable.<br />
Can a compliance programme (i) reduce the fine or (ii) permit the<br />
corporation to avoid prosecution/conviction or lead to impunity?<br />
N/A<br />
What is the maximum fine which can be imposed on a corporation<br />
for a bribery offence?<br />
N/A<br />
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czech republic<br />
4. Statutes of Limitation (Verjährung)<br />
What is the period of limitation in criminal proceedings for corruption<br />
related offences until the end of investigation or the initiation<br />
of prosecution?<br />
Maximum 15 years for bribery offences.<br />
What is the period of limitation in civil proceedings resulting<br />
from criminal offences?<br />
The injured party is entitled to enforce its claim within three years<br />
from the date it learned of the damage and the liable party; nevertheless,<br />
the injured party’s right ceases to exist after ten years at<br />
the latest.<br />
5. Miscellaneous<br />
Is management obliged to report offences committed within<br />
the corporation to the authorities?<br />
Yes.<br />
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czech republic<br />
Summary Czech Republic<br />
Is it an offence to bribe individuals in connection with<br />
business activities (active or passive commercial bribery)?<br />
Yes.<br />
Is there a monetary limit for commercial bribery of<br />
private individuals?<br />
No.<br />
Is there a monetary limit for active bribery of public<br />
officials?<br />
No.<br />
Can private corporations be held criminally liable for<br />
offences?<br />
No.<br />
What is the maximum fine for corporations for bribery<br />
related offences?<br />
None.<br />
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49
hungary<br />
Sándor Habóczky<br />
H-1024 Budapest, Buday László utca 12<br />
T: +36 1 345 87 35<br />
E: s.haboczky@schoenherr.eu<br />
Janos Juhasz<br />
H-1024 Budapest, Buday László utca 12<br />
T: +36 1 345 87 42<br />
E: j.juhasz@schoenherr.eu<br />
David Adamov<br />
H-1024 Budapest, Buday László utca 12<br />
T: +36 1 345 4552<br />
E: d.adamov@schoenherr.eu
hungary<br />
1. Bribery in the public sector<br />
Definition of a public official as receiver of gifts and benefits in bribery<br />
related offences<br />
Public officials are defined as office holders who are members of parliament,<br />
the President of the Republic, the Prime Minister, a member<br />
of the Government, a state secretary, a state secretary for public administration,<br />
a deputy state secretary, a constitutional judge, a judge,<br />
a prosecutor, an ombudsman, a member of a local government body,<br />
a notary public, an assistant notary public, an independent court bailiff,<br />
an assistant court bailiff, a person serving at the constitutional<br />
court, a probation officer working for the national parole board under<br />
an employment relationship in the judicial system, or a person exercising<br />
executive and administrative powers at the appropriate bodies<br />
in accordance with legal regulations. Furthermore, a person qualifies<br />
as a public official if their activities form part of the proper functioning<br />
of any of the following agencies: the courts, prosecutor offices,<br />
administrative agencies, local government administrative bodies, the<br />
State Audit Office, the Office of the President of the Republic, and the<br />
Office of Parliament.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act contrary to their duties?<br />
Yes.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act in accordance with their duties?<br />
Yes.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to public officials without being held criminally liable?<br />
(e.g., gifts below EUR 100 will not be considered an advantage)<br />
(Geringfügigkeitsgrenze)<br />
No. There is no specific monetary limit; courts will evaluate whether<br />
a gift shall be considered as a bribe on a case-by-case basis.<br />
Is it a criminal offence to offer gifts or advantages to public officials<br />
even though there is no connection to a specific action or<br />
omission of the public official (e.g., Christmas gifts, etc)?<br />
Gifts are permitted if: (i) they are customary given the official’s position<br />
and country; and (ii) there is no intent to influence the official in<br />
the fulfilment of their professional duties.<br />
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hungary<br />
Can the donor of the benefit show active repentance in order to<br />
abandon the offence and go without punishment? (e.g., if they<br />
report themselves to the authorities and prevent the anticipated<br />
act of the official) (Tätige Reue)<br />
The perpetrator of a criminal offence shall be exonerated from punishment<br />
if they (i) confess the offence to the authorities before the<br />
authorities become aware of the offence; (ii) surrender the obtained<br />
unlawful benefit to the authorities; and (iii) cooperate during the investigation.<br />
What are the maximum sanctions for bribery in the public sector?<br />
Up to ten years of imprisonment.<br />
2. Bribery in the private sector<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act contrary to their duties?<br />
Yes, this offence may be committed by anyone who grants benefits<br />
to the employee or a member of a budgetary agency, business association<br />
or non-governmental organisation.<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act in accordance with their duties?<br />
No.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act contrary<br />
to their duties?<br />
Yes.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act in accordance<br />
with their duties?<br />
Yes, if the employees, agents, or shareholders/owners of private<br />
companies request the advantage. No, if they only accept an advantage.<br />
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hungary<br />
Can the donor of the benefit show active repentance in order<br />
to abandon the offence and go without punishment? (e.g., if he<br />
informs the authorities and prevents the anticipated act of the<br />
bribe receiver) (Tätige Reue)<br />
Yes.<br />
What are the maximum sanctions for bribery in the private sector?<br />
Up to ten years of imprisonment.<br />
3. Criminal liability of corporations (Unternehmensstrafrecht)<br />
Can private corporations be held criminally liable for offences<br />
committed by (i) management and (ii) employees?<br />
Yes. A legal entity may be subject to corporate criminal liability if an<br />
executive officer, member or employee intentionally commits an offence<br />
and the legal entity benefits from that. The perpetrator may<br />
be punished and the legal entity sanctioned. The legal entity can be<br />
sanctioned by (i) deregistering it from the commercial registry; (ii)<br />
limiting its scope of activities; or (iii) imposition of a fine.<br />
Is the criminal liability of the corporation fault-based or a strict<br />
liability offence?<br />
Strict liability offence.<br />
Is a levy of enrichment (disgorgement) of the corporation’s<br />
profits of the offence possible (e.g., the profit obtained from a<br />
contract, which was won through bribery)? (Verfall)<br />
No.<br />
Can a compliance programme (i) reduce the fine or (ii) permit the<br />
corporation to avoid prosecution/conviction or lead to impunity?<br />
No.<br />
What is the maximum fine which can be imposed on a corporation<br />
for a bribery offence?<br />
The legal entity can be fined up to three times the amount the company<br />
received as a benefit from the crime, but at least HUF 500,000<br />
(approx. EUR 1,800).<br />
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hungary<br />
4. Statutes of Limitation (Verjährung)<br />
What is the period of limitation in criminal proceedings for corruption<br />
related offences until the end of investigation or the initiation<br />
of prosecution?<br />
Maximum ten years for bribery offences.<br />
What is the period of limitation in civil proceedings resulting<br />
from criminal offences?<br />
Same as the limitation period for criminal offences.<br />
5. Miscellaneous<br />
Is management obliged to report offences committed within<br />
the corporation to the authorities?<br />
Some limited sections of the Hungarian Criminal Code involve a<br />
reporting obligation in case of getting knowledge about a criminal<br />
conduct. However, most of these cases (e.g., bribery, or bribery in<br />
international relations) contain reporting obligation only of a public<br />
official, who has positive knowledge of such undetected acts (failing<br />
to promptly report to authorities qualifies as a felony of misprision of<br />
bribery).<br />
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hungary<br />
Summary Hungary<br />
Is it an offence to bribe individuals in connection with<br />
business activities (active or passive commercial bribery)?<br />
Yes, both.<br />
Is there a monetary limit for commercial bribery of<br />
private individuals?<br />
No. There is no specific monetary limit.<br />
Is there a monetary limit for active bribery of public<br />
officials?<br />
No.<br />
Can private corporations be held criminally liable for<br />
offences?<br />
Yes.<br />
What is the maximum fine for corporations for bribery<br />
related offences?<br />
The legal entity can be fined up to three times the amount the<br />
company received as a benefit from the given crime, but at<br />
least HUF 500,000 (approx. EUR 1,800)<br />
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www.schoenherr.eu<br />
57
kosovo<br />
Endrit Mema<br />
A-1010 Vienna, Tuchlauben 17<br />
T: +43 1 534 37 319<br />
E: e.mema@schoenherr.eu
kosovo<br />
1. Bribery in the public sector<br />
Definition of a public official as receiver of gifts and benefits in bribery<br />
related offences<br />
Public officials are defined as persons elected or appointed to a public<br />
entity; authorised persons in a business organisation or other legal<br />
entity, who by law or by other provision issued in accordance with the<br />
law, exercises public authority, and who within this authority exercise<br />
specific duties; persons who exercise specific official duties, based<br />
on authorisation provided for by law; persons who are members of<br />
UNMIK personnel or KFOR, without prejudice to the applicable privileges<br />
and immunities accorded to such persons; members of a personnel<br />
of liaison offices in Kosovo; a person in a public international<br />
or supranational organisation who is recognised as an official or other<br />
contracted employee within the meaning of the staff regulations of<br />
such organisations; a judge, prosecutor or other official in an international<br />
tribunal that exercises jurisdiction over Kosovo.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act contrary to their duties?<br />
Yes.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act in accordance with their duties?<br />
Yes.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to public officials without being held criminally liable?<br />
(e.g., gifts below EUR 100 will not be considered an advantage)<br />
(Geringfügigkeitsgrenze)<br />
Yes, public officials can receive (i) formal gifts presented by the representatives<br />
of foreign countries and international organisations during<br />
visits and other opportunities; and (ii) occasional gifts presented<br />
at various working and personal jubilees, holidays and similar occasions.<br />
Category (i) has no monetary limit; category (ii) should not<br />
exceed EUR 50 in value and EUR 100 in a single year if they are<br />
presented by the same person. Public officials may not accept more<br />
than ten occasional gifts within a year. Monetary gifts are prohibited,<br />
irrespective of their value.<br />
Is it a criminal offence to offer gifts or advantages to public officials<br />
even though there is no connection to a specific action or<br />
omission of the public official (e.g., Christmas gifts, etc)?<br />
No.<br />
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kosovo<br />
Can the donor of the benefit show active repentance in order to<br />
abandon the offence and go without punishment? (e.g., if they<br />
report themselves to the authorities and prevent the anticipated<br />
act of the official) (Tätige Reue)<br />
Yes, the court may waive the punishment when the giver had given<br />
the benefit upon request of a public official and they report the offence<br />
before it was discovered or before knowing that the offence was discovered.<br />
What are the maximum sanctions for bribery in the public sector?<br />
The acceptance of a bribe is punished by imprisonment of up to five<br />
years. The giving of a bribe is punished by imprisonment of up to<br />
three years. The gifts or other benefits received shall be confiscated.<br />
2. Bribery in the private sector<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act contrary to their duties?<br />
Whoever gives, attempts to give or promises a disproportionate reward,<br />
gift or any other benefit to a person engaging in an economic<br />
activity in order to neglect the interests of their business organisation<br />
or legal entity or to cause damage to such business organisation<br />
or legal entity when concluding a contract or performing a service<br />
shall be punished.<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act in accordance with their duties?<br />
Yes. Whoever gives, attempts to give or promises a disproportionate<br />
reward, gift or any other benefit to a person engaging in an economic<br />
activity in order to acquire any unjustified advantage for concluding<br />
a contract or performing a service shall be punished.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act contrary<br />
to their duties?<br />
Yes. Whoever, in the course of engaging in an economic activity,<br />
requests or accepts a disproportionate reward, gift or any other<br />
benefit in order to neglect the interests of their business organisation<br />
or legal entity or to cause damage to the same when concluding<br />
a contract or agreeing to performing a service shall be punished.<br />
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kosovo<br />
In addition, it is a criminal offence to enter into harmful contracts<br />
(i.e., a representative or an authorised person of a business organisation<br />
or legal entity which engages in an economic activity who<br />
enters into a contract that they know to be harmful for the business<br />
organisation or legal entity, or enters into a contract contrary<br />
to their authorisations and thereby causes damage to the business<br />
organisation or legal entity shall be punished) and this offence is<br />
punished more severely if the offender accepted a bribe.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act in accordance<br />
with their duties?<br />
Yes. Whoever, in committing the previous offence described above,<br />
requests or accepts a disproportionate reward, gift or other benefit<br />
for himself or any third person in exchange for concluding a contract<br />
or agreeing to perform a service shall be punished.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to (i) employees, (ii) agents, or (iii) shareholders/owners<br />
without being held criminally liable? (e.g., gifts below EUR 100<br />
will not be considered an advantage) (Geringfügigkeitsgrenze)<br />
No.<br />
Can the donor of the benefit show active repentance in order<br />
to abandon the offence and go without punishment? (e.g., if he<br />
informs the authorities and prevents the anticipated act of the<br />
bribe receiver) (Tätige Reue)<br />
Yes, the court may waive the punishment when the giver had given<br />
the benefit at the request of a public official and they report the offence<br />
before it was discovered or before knowing that the offence<br />
was discovered.<br />
What are the maximum sanctions for bribery in the private sector?<br />
Up to EUR 500,000 or up to three years of imprisonment for bribery<br />
and up to ten years for the acceptance of a bribe in exchange for the<br />
conclusion of a harmful contract.<br />
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kosovo<br />
3. Criminal liability of corporations (Unternehmensstrafrecht)<br />
Can private corporations be held criminally liable for offences<br />
committed by (i) management and (ii) employees?<br />
Not yet. The criminal offences for which a legal entity may be criminally<br />
liable shall be regulated under a separate new law. To this date<br />
we are not aware of the adoption of such a law.<br />
Is the criminal liability of the corporation fault-based or a strict<br />
liability offence?<br />
N/A<br />
Is a levy of enrichment (disgorgement) of the corporation’s<br />
profits of the offence possible (e.g., the profit obtained from a<br />
contract, which was won through bribery)? (Verfall)<br />
Yes.<br />
Can a compliance programme (i) reduce the fine or (ii) permit the<br />
corporation to avoid prosecution/conviction or lead to impunity?<br />
N/A.<br />
What is the maximum fine which can be imposed on a corporation<br />
for a bribery offence?<br />
N/A<br />
4. Statutes of Limitation (Verjährung)<br />
What is the period of limitation in criminal proceedings for corruption<br />
related offences until the end of investigation or the initiation<br />
of prosecution?<br />
The period of limitation in criminal proceedings: (i) for an offence<br />
punishable by imprisonment of more than five years and up to ten<br />
years is ten years from the moment of committing the offence; (ii)<br />
for an offence punishable by imprisonment of more than three years<br />
and up to five years is five years from the moment of committing the<br />
offence; (iii) for an offence punishable by imprisonment of more than<br />
one year and up to three years is three years from the moment of<br />
committing the offence.<br />
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kosovo<br />
What is the period of limitation in civil proceedings resulting<br />
from criminal offences?<br />
The period of limitation is three years from the moment the injured<br />
party gained knowledge of the damage or the liable party. In any<br />
case, the period of limitation ends five years after the day when<br />
the damage occurred. However, if the period of limitation in criminal<br />
proceedings is longer than the period of limitation in civil proceedings,<br />
the period of limitation in civil proceedings shall expire upon the<br />
expiration of the limitation period in the criminal proceedings.<br />
5. Miscellaneous<br />
Is management obliged to report offences committed within<br />
the corporation to the authorities?<br />
Under Article 304 of the Criminal Code, an official person or a responsible<br />
person who fails to report a criminal offence that they<br />
have discovered in the exercise of their duties shall be punished<br />
by imprisonment of up to three years, if such offence is punishable<br />
by imprisonment of at least three years and is prosecuted ex officio.<br />
The term “responsible person” means an individual in a business<br />
organisation or legal entity who because of their function or<br />
special authorisation is entrusted with duties that are related to the<br />
implementation of the law or other provisions issued on the basis<br />
of the law or the general rules of business organisations or other<br />
legal entities in managing or administering property, or are related<br />
to the management of production or other economic process or supervision<br />
of such process.<br />
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kosovo<br />
Summary Kosovo<br />
Is it an offence to bribe individuals in connection with<br />
business activities (active or passive commercial bribery)?<br />
Yes.<br />
Is there a monetary limit for commercial bribery of<br />
private individuals?<br />
No.<br />
Is there a monetary limit for active bribery of public<br />
officials?<br />
No.<br />
Can private corporations be held criminally liable for<br />
offences?<br />
Not yet.<br />
What is the maximum fine for corporations for bribery<br />
related offences?<br />
N/A<br />
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65
macedonia<br />
Srđana Petronijević<br />
SRB-11000 Belgrade, Francuska 27<br />
T: +381 11 3202 600<br />
E: s.petronijevic@schoenherr.rs<br />
Nataša Lalatović<br />
SRB-11000 Belgrade, Francuska 27<br />
T: +381 11 3202 600<br />
E: n.lalatovic@schoenherr.rs
macedonia<br />
1. Bribery in the public sector<br />
Definition of a public official as receiver of gifts and benefits in bribery<br />
related offences<br />
Public officials are defined as:<br />
The President of the Republic of Macedonia (“RM”), the appointed<br />
ambassadors and other representatives of the RM abroad and persons<br />
appointed by the President of the RM, an elected or appointed<br />
official in and from the Parliament, in the Government of the RM, in<br />
the state administration bodies, in the courts, in the Public Prosecutor’s<br />
Office, the Judicial Council of the RM, the Council of Public Prosecutors<br />
of the RM and in other bodies and organisations which perform<br />
certain professional, administrative or other activities within the<br />
framework of the rights and duties of the Republic, in the local selfgovernment<br />
units, as well as persons who permanently or temporarily<br />
perform an official duty in these bodies and organisations;<br />
a civil servant performing professional, normative, executive, administrative-supervisory<br />
activities and administrative activities in accordance<br />
with the Constitution and the law;<br />
an authorised person within a legal entity which by law or by some<br />
other enacted regulation based on law is entrusted with performing<br />
public duties, when the duty is performed within the framework of<br />
those authorities;<br />
a person performing certain official duties, based on the authorisation<br />
given by law or by some other enacted regulations based on law;<br />
a military person, when considering crimes in which an official person<br />
is pointed out as the offender; and<br />
a representative of a foreign country or an international organisation<br />
in the Republic of Macedonia.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act contrary to their duties?<br />
Yes.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act in accordance with their duties?<br />
Yes.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to public officials without being held criminally liable?<br />
(e.g., gifts below EUR 100 will not be considered an advantage)<br />
(Geringfügigkeitsgrenze)<br />
No, there is no specific monetary limit under the Criminal Code. The<br />
representatives of the state bodies can receive occasional personal<br />
gift whose value does not exceed EUR 200 in Denar countervalue<br />
(MKD 12,200), from a donor of a foreign state, a foreign body, a<br />
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macedonia<br />
foreign institution and/or an international organisation, if it is given<br />
as a sign of remembrance or as a sign of international cooperation<br />
or solidarity.<br />
Is it a criminal offence to offer gifts or advantages to public officials<br />
even though there is no connection to a specific action or<br />
omission of the public official (e.g., Christmas gifts, etc)?<br />
No.<br />
Can the donor of the benefit show active repentance in order to<br />
abandon the offence and go without punishment? (e.g., if they<br />
report themselves to the authorities and prevent the anticipated<br />
act of the official) (Tätige Reue)<br />
The donor of a benefit who gave or promised a bribe upon request<br />
of the official person, and who reports this before the crime was discovered<br />
or before they learn that it was discovered shall not be sentenced.<br />
What are the maximum sanctions for bribery in the public sector?<br />
Up to five years of imprisonment for active bribery and up to ten<br />
years for passive bribery.<br />
2. Bribery in the private sector<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act contrary to their duties?<br />
Yes. It is a criminal offence to bribe a “responsible person”: a person<br />
within the legal entity, who considering their function or based upon<br />
special authorisation in the legal entity, is entrusted with a certain<br />
scope of matters which concern the execution of laws, regulations<br />
adopted on the basis of the laws or a general act of the legal entity,<br />
the management, use and disposition of property, the management<br />
of the production or some other business venture, or other economic<br />
process and their supervision.<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act in accordance with their duties?<br />
Yes.<br />
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macedonia<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act contrary<br />
to their duties?<br />
Yes, for the responsible person in a foreign legal entity. A “foreign<br />
legal entity” is a public enterprise, institution, fund, bank, trade<br />
company or any other form of organisation in accordance with the<br />
laws of a foreign country pertaining to the performance of economic,<br />
financial, banking, trade, service or other activities, with headquarters<br />
in another country or a branch office in the Republic of<br />
Macedonia or founded as an international association, fund, bank<br />
or institution.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act in accordance<br />
with their duties?<br />
Yes, for the responsible person in a foreign legal entity. A “foreign<br />
legal entity” is a public enterprise, institution, fund, bank, trade company<br />
or any other form of organisation in accordance with the laws<br />
of a foreign country pertaining to the performance of economic, financial,<br />
banking, trade, service or other activities, with headquarters<br />
in another country or a branch office in the Republic of Macedonia<br />
or founded as an international association, fund, bank or institution.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to (i) employees, (ii) agents, or (iii) shareholders/owners<br />
without being held criminally liable? (e.g., gifts below EUR 100<br />
will not be considered an advantage) (Geringfügigkeitsgrenze)<br />
No.<br />
Can the donor of the benefit show active repentance in order<br />
to abandon the offence and go without punishment? (e.g., if he<br />
informs the authorities and prevents the anticipated act of the<br />
bribe receiver) (Tätige Reue)<br />
The donor of the benefit who gave or promised a bribe at the request<br />
of an official person and who reports this before they find out<br />
that the crime was discovered shall not be sentenced.<br />
What are the maximum sanctions for bribery in the private sector?<br />
Up to five years of imprisonment for active bribery and up to ten<br />
years of imprisonment for passive bribery.<br />
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3. Criminal liability of corporations (Unternehmensstrafrecht)<br />
Can private corporations be held criminally liable for offences<br />
committed by (i) management and (ii) employees?<br />
Yes, the legal entity shall be liable for the crime committed by a responsible<br />
person within the legal entity on behalf, for the account or<br />
for the benefit of the legal entity. The legal entity shall be liable for<br />
crimes committed by its employees as well as for crimes committed<br />
by its representative, by which a significant property benefit has<br />
been acquired or significant damage has been caused to another, if:<br />
1) the execution of a conclusion, order or other decision or approval<br />
of a governing body, managing body or supervising body is considered<br />
commission of a crime; or 2) the commission of the crime<br />
resulted from omitting the obligatory supervision of the governing<br />
body, managing body or supervising body; or 3) the governing body,<br />
managing body or supervising body has not prevented the crime,<br />
or has concealed it or has not reported it before initiating a criminal<br />
procedure against the offender.<br />
Foreign legal entities shall be criminally liable under the same conditions<br />
as above if the crime was committed on the territory of Macedonia,<br />
regardless of whether the foreign legal entity has its representative<br />
office or branch office performing any activities on the<br />
territory of Macedonia.<br />
Is the criminal liability of the corporation fault-based or a strict<br />
liability offence?<br />
Strict liability offence.<br />
Is a levy of enrichment (disgorgement) of the corporation’s<br />
profits of the offence possible (e.g., the profit obtained from a<br />
contract, which was won through bribery)? (Verfall)<br />
Yes.<br />
Can a compliance programme (i) reduce the fine or (ii) permit the<br />
corporation to avoid prosecution/conviction or lead to impunity?<br />
No.<br />
What is the maximum fine which can be imposed on a corporation<br />
for a bribery offence?<br />
Up to EUR 490,000. In cases where the crime was committed out<br />
of covetousness or caused serious damage, up to ten times the<br />
amount of the caused damage or acquired benefit.<br />
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macedonia<br />
4. Statutes of Limitation (Verjährung)<br />
What is the period of limitation in criminal proceedings for corruption<br />
related offences until the end of investigation or the initiation<br />
of prosecution?<br />
From the moment of committing the offence: Ten years for an offence<br />
punishable with imprisonment of more than five years and up<br />
to ten years. Five years for an offence punishable with imprisonment<br />
of more than three years and up to five years. Three years for an<br />
offence punishable with imprisonment of more than one year and up<br />
to three years.<br />
What is the period of limitation in civil proceedings resulting<br />
from criminal offences?<br />
The period of limitation is three years from the moment the injured<br />
party learned of the damage or the liable party. In any case, the period<br />
of limitation ends five years after the day the damage occurred.<br />
However, if the period of limitation in criminal proceedings is longer<br />
than the period of limitation in civil proceedings, then the period of<br />
limitation in civil proceedings shall expire upon the expiration of the<br />
limitation period in the criminal proceedings.<br />
5. Miscellaneous<br />
Is management obliged to report offences committed within<br />
the corporation to the authorities?<br />
No. However, the legal entity can be exempted from a fine if the responsible<br />
person within the legal entity, the governing, managing or<br />
supervising body, voluntarily reported the offender of the crime after<br />
it was committed.<br />
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Summary Macedonia<br />
Is it an offence to bribe individuals in connection with<br />
business activities (active or passive commercial bribery)?<br />
Yes.<br />
Is there a monetary limit for commercial bribery of<br />
private individuals?<br />
No.<br />
Is there a monetary limit for active bribery of public<br />
officials?<br />
No.<br />
Can private corporations be held criminally liable for<br />
offences?<br />
Yes.<br />
What is the maximum fine for corporations for bribery<br />
related offences?<br />
approx. EUR 490,000<br />
* Moravčević Vojnović Zdravković in cooperation with <strong>Schoenherr</strong> covers<br />
Macedonia via its country desk and in cooperation with local counsel.<br />
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73
moldova<br />
Andrian Guzun<br />
MD-2012, Chisinau Municipality<br />
Str. Vlaicu-Parcalab no. 63<br />
9th floor, office “A”, Central District<br />
T: + 37 32 224 03 00<br />
E: a.guzun@schoenherr.eu
moldova<br />
1. Bribery in the public sector<br />
Definition of a public official as receiver of gifts and benefits in bribery<br />
related offences<br />
A public official is defined as an individual who holds certain rights and<br />
obligations in order to fulfil the functions of the public authority or administrative<br />
acts of a dispositional or economic-organisational character<br />
on a permanent or provisory basis, pursuant to the law, either<br />
by being appointed, elected or assigned thereto, in a state company,<br />
state institution, state organisation or local public authority or a subdivision<br />
thereof. Moldovan legislation contains the notion of a “public<br />
official with high responsibility”, defined as (i) a public official whose<br />
appointment or election is regulated by the Moldovan Constitution<br />
and organic laws, and as (ii) an individual to whom the public official<br />
with high responsibility delegated their duties.”<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act contrary to their duties?<br />
Yes.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act in accordance with their duties?<br />
Yes.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to public officials without being held criminally liable?<br />
(e.g., gifts below EUR 100 will not be considered an advantage)<br />
(Geringfügigkeitsgrenze)<br />
No. However, certain categories of public officials (e.g., functionaries<br />
from the administration of the President, State Chancellery) are<br />
permitted to accept small souvenirs/attentions if their value does<br />
not exceed MDL 1,100 (approx. EUR 66) and if they are offered out<br />
of politeness.<br />
Is it a criminal offence to offer gifts or advantages to public officials<br />
even though there is no connection to a specific action or<br />
omission of the public official (e.g., Christmas gifts, etc)?<br />
No.<br />
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Can the donor of the benefit show active repentance in order to<br />
abandon the offence and go without punishment? (e.g., if they<br />
report themselves to the authorities and prevent the anticipated<br />
act of the official) (Tätige Reue)<br />
Yes. The donor shall not be criminally liable if: (a) (i) they willingly and<br />
definitively abandon the offence; and (ii) the crime has not yet been<br />
committed; or (b) if the bribe was extorted; or (c) they willingly reported<br />
the crime to the authorities without knowing that the authorities<br />
are aware of the crime.<br />
What are the maximum sanctions for bribery in the public sector?<br />
Up to 15 years of imprisonment. Monetary fines and deprivation of<br />
the right to hold a specific function or to carry out certain commercial<br />
activities for a period of five years.<br />
2. Bribery in the private sector<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act contrary to their duties?<br />
Yes, regarding (i) and (ii) if the bribed person holds disposition powers/managing<br />
rights or the right to make economic-organisational<br />
decisions for a company or a public association. The bribe is passed<br />
with the intent that the person acts or omits to act in the bribe payer’s<br />
interest and such action is contrary to their duties. Regarding<br />
(iii), the situation would have to be assessed on a case-by-case<br />
basis.<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act in accordance with their duties?<br />
Yes, regarding (i) and (ii) if the bribed person holds disposition powers/managing<br />
rights or the right to make economic-organisational<br />
decisions for a company or a public association. The bribe is passed<br />
with the intent that the person acts or omits to act in the bribe payer’s<br />
interest and such action is in accordance with their duties. Regarding<br />
(iii), the situation would have to be assessed on a case-bycase<br />
basis.<br />
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moldova<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act contrary<br />
to their duties?<br />
Yes, regarding (i) and (ii) if the person holds disposition powers/<br />
managing rights or the right to make economic-organisational decisions<br />
and the offence is committed in the briber’s interest. Regarding<br />
(iii), the situations have to be assessed on case-by-case<br />
basis.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act in accordance<br />
with their duties?<br />
Yes, regarding (i) and (ii) if the person holds disposition powers/<br />
managing rights or the right to make economic-organisational decisions<br />
and the offence is committed in the briber’s interest. Regarding<br />
(iii), the situations have to be reviewed on case-by-case basis.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to (i) employees, (ii) agents, or (iii) shareholders/owners<br />
without being held criminally liable? (e.g., gifts below EUR 100<br />
will not be considered an advantage) (Geringfügigkeitsgrenze)<br />
No.<br />
Can the donor of the benefit show active repentance in order<br />
to abandon the offence and go without punishment? (e.g., if he<br />
informs the authorities and prevents the anticipated act of the<br />
bribe receiver) (Tätige Reue)<br />
Yes. The donor shall not be criminally liable if: (a) (i) they willingly and<br />
definitively abandon the offence; and (ii) the crime has not yet been<br />
committed; or (b) if the bribe was extorted; or (c) they willingly reported<br />
the crime to the authorities without knowing that the authorities<br />
are aware of the crime.<br />
What are the maximum sanctions for bribery in the private sector?<br />
Up to seven years for active bribery and up to ten years for passive<br />
bribery.<br />
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3. Criminal liability of corporations (Unternehmensstrafrecht)<br />
Can private corporations be held criminally liable for offences<br />
committed by (i) management and (ii) employees?<br />
No.<br />
Is the criminal liability of the corporation fault-based or a strict<br />
liability offence?<br />
N/A<br />
Is a levy of enrichment (disgorgement) of the corporation’s<br />
profits of the offence possible (e.g., the profit obtained from a<br />
contract, which was won through bribery)? (Verfall)<br />
Restitutio in integro other actions regarding the obtained profit are<br />
dealt by civil cases (nullification of the agreement, etc.).<br />
Can a compliance programme (i) reduce the fine or (ii) permit the<br />
corporation to avoid prosecution/conviction or lead to impunity?<br />
N/A<br />
What is the maximum fine which can be imposed on a corporation<br />
for a bribery offence?<br />
N/A<br />
4. Statutes of Limitation (Verjährung)<br />
What is the period of limitation in criminal proceedings for corruption<br />
related offences until the end of investigation or the initiation<br />
of prosecution?<br />
Minimum two years and maximum 20 years, depending on the type<br />
of offence.<br />
What is the period of limitation in civil proceedings resulting<br />
from criminal offences?<br />
From two years to maximum 20 years depending on the type of offence<br />
(i.e., statute of limitation in criminal proceedings) plus three<br />
years (i.e., statute of limitation in civil proceedings).<br />
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moldova<br />
5. Miscellaneous<br />
Is management obliged to report offences committed within<br />
the corporation to the authorities?<br />
There is no such obligation. However, this step is recommended<br />
where/when appropriate.<br />
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Summary Moldova<br />
Is it an offence to bribe individuals in connection with<br />
business activities (active or passive commercial bribery)?<br />
Yes.<br />
Is there a monetary limit for commercial bribery of<br />
private individuals?<br />
No.<br />
Is there a monetary limit for active bribery of public<br />
officials?<br />
No. However in respect of certain categories of public<br />
officials (e.g., functionaries from the administration of<br />
the President, State Chancellery, etc.) souvenirs / attention<br />
signs in value under MDL 1,100 (approx. EUR<br />
66) and only if such are received pursuant to the<br />
rules of politeness / hospitality may be permitted.<br />
Can private corporations be held criminally liable for<br />
offences?<br />
No, for corruption offences.<br />
What is the maximum fine for corporations for bribery<br />
related offences?<br />
N/A<br />
www.schoenherr.eu<br />
81
montenegro<br />
Srđana Petronijević<br />
SRB-11000 Belgrade, Francuska 27<br />
T: +381 11 3202 600<br />
E: s.petronijevic@schoenherr.rs<br />
Nataša Lalatović<br />
SRB-11000 Belgrade, Francuska 27<br />
T: +381 11 3202 600<br />
E: n.lalatovic@schoenherr.rs
montenegro<br />
1. Bribery in the public sector<br />
Definition of a public official as receiver of gifts and benefits in bribery<br />
related offences<br />
A public official is defined as a person exercising official powers in a<br />
state authority; an elected, appointed or assigned person in a state<br />
authority or local self-government or a person permanently or occasionally<br />
exercising official powers in such bodies; a person in an establishment,<br />
company or other entity charged with exercising public<br />
authority and decision-making on the rights, obligations and interests<br />
of natural persons and legal entities and on the public interest; any<br />
other person who is carrying out official duties in accordance with the<br />
law, by-laws, contracts or arbitration agreements, and a person effectively<br />
charged with carrying out specific official duties and tasks; a<br />
military person in a foreign state who is carrying out legislative, executive,<br />
judiciary or any other public functions for a foreign state, a person<br />
who is carrying out official duties in an international public organisation<br />
and a person who is carrying out judiciary, prosecutorial or any other<br />
function in an international court.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act contrary to their duties?<br />
Yes.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act in accordance with their duties?<br />
Yes.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to public officials without being held criminally liable?<br />
(e.g., gifts below EUR 100 will not be considered an advantage)<br />
(Geringfügigkeitsgrenze)<br />
No, the Criminal Code does not provide for a specific monetary limit.<br />
But under the law on civil servants and the conflict of interest, a public<br />
official can accept a protocol gift or a holiday gift, if its value does<br />
not exceed EUR 50.<br />
Is it a criminal offence to offer gifts or advantages to public officials<br />
even though there is no connection to a specific action or<br />
omission of the public official (e.g., Christmas gifts, etc)?<br />
No.<br />
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montenegro<br />
Can the donor of the benefit show active repentance in order to<br />
abandon the offence and go without punishment? (e.g., if they<br />
report themselves to the authorities and prevent the anticipated<br />
act of the official) (Tätige Reue)<br />
Yes. The donor of the gift or benefit who reported the offence prior<br />
to becoming aware that it had been uncovered may be exempt from<br />
punishment.<br />
What are the maximum sanctions for bribery in the public sector?<br />
Up to five years of imprisonment or a corresponding monetary fine.<br />
2. Bribery in the private sector<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act contrary to their duties?<br />
Yes. It is a criminal offence to bribe a “responsible person”, i.e., the<br />
owner of a company or another entity or a person in a company,<br />
establishment or other entity who has been charged, based on his<br />
function, invested assets or authorities, with specific tasks concerning<br />
the management of assets, production or other activity, or<br />
supervision thereof, or has been effectively charged with carrying<br />
out specific tasks.<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act in accordance with their duties?<br />
Yes.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act contrary<br />
to their duties?<br />
Yes.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act in accordance<br />
with their duties?<br />
Yes.<br />
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85
montenegro<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to (i) employees, (ii) agents, or (iii) shareholders/owners<br />
without being held criminally liable? (e.g., gifts below EUR 100<br />
will not be considered an advantage) (Geringfügigkeitsgrenze)<br />
No.<br />
Can the donor of the benefit show active repentance in order<br />
to abandon the offence and go without punishment? (e.g., if he<br />
informs the authorities and prevents the anticipated act of the<br />
bribe receiver) (Tätige Reue)<br />
Yes. The donor of the gift or benefit who reported the offence prior<br />
to becoming aware that it had been uncovered may be exempt from<br />
punishment.<br />
What are the maximum sanctions for bribery in the private sector?<br />
Up to five years of imprisonment for active bribery and up to 12 years<br />
of imprisonment for passive bribery.<br />
3. Criminal liability of corporations (Unternehmensstrafrecht)<br />
Can private corporations be held criminally liable for offences<br />
committed by (i) management and (ii) employees?<br />
Yes, if a responsible person, acting within their authority, committed<br />
a criminal offence with the intent to obtain benefits for the company.<br />
The corporation is criminally liable even if a decision-maker was acting<br />
contrary to the corporation’s business policies or contrary to its<br />
instructions.<br />
Is the criminal liability of the corporation fault-based or a strict<br />
liability offence?<br />
Fault-based liability offence. However, conviction of a natural person<br />
is not a precondition for conviction of a legal entity.<br />
Is a levy of enrichment (disgorgement) of the corporation’s<br />
profits of the offence possible (e.g., the profit obtained from a<br />
contract, which was won through bribery)? (Verfall)<br />
Yes.<br />
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Can a compliance programme (i) reduce the fine or (ii) permit the<br />
corporation to avoid prosecution/conviction or lead to impunity?<br />
Yes.<br />
What is the maximum fine which can be imposed on a corporation<br />
for a bribery offence?<br />
Up to 20 times the amount of the damage caused or of the acquired<br />
benefit or up to EUR 100,000 in cases where the acquired benefit or<br />
the damage caused cannot be determined.<br />
4. Statutes of Limitation (Verjährung)<br />
What is the period of limitation in criminal proceedings for corruption<br />
related offences until the end of investigation or the initiation<br />
of prosecution?<br />
From the moment of committing the offence: 15 years for an offence<br />
punishable with imprisonment of more than ten years. Ten<br />
years for an offence punishable with imprisonment of more than five<br />
years and up to ten years. Five years for an offence punishable with<br />
imprisonment of more than three years and up to five years. Three<br />
years for an offence punishable with imprisonment of more than one<br />
year and up to three years.<br />
What is the period of limitation in civil proceedings resulting<br />
from criminal offences?<br />
The period of limitation is three years from the moment an injured<br />
party learns of the damage or the liable party. In any case, the period<br />
of limitation ends five years after the day when the damage<br />
occurred. However, if the period of limitation in criminal proceedings<br />
is longer than the period of limitation in civil proceedings, than the<br />
period of limitation in civil proceedings shall expire upon the expiration<br />
of the limitation period in the criminal proceedings.<br />
5. Miscellaneous<br />
Is management obliged to report offences committed within<br />
the corporation to the authorities?<br />
No. However, such behaviour by the corporation’s management<br />
can constitute legal grounds for (i) reduction of a fine (ii) or exemption<br />
from punishment.<br />
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montenegro<br />
Summary Montenegro<br />
Is it an offence to bribe individuals in connection with<br />
business activities (active or passive commercial bribery)?<br />
Yes.<br />
Is there a monetary limit for commercial bribery of<br />
private individuals?<br />
No.<br />
Is there a monetary limit for active bribery of public<br />
officials?<br />
No.<br />
Can private corporations be held criminally liable for<br />
offences?<br />
Yes.<br />
What is the maximum fine for corporations for bribery<br />
related offences?<br />
EUR 5,000,000<br />
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89
poland<br />
Michał Gruca<br />
PL-00-120 Warsaw, ul. Złota 59<br />
T: +48 22 222 42 24<br />
E: m.gruca@schoenherr.eu
poland<br />
1. Bribery in the public sector<br />
Definition of a public official as receiver of gifts and benefits in bribery<br />
related offences<br />
The following persons are considered public officials: the President of<br />
the Republic of Poland; a deputy to the Sejm (the lower house of the<br />
Polish parliament), a senator, a councillor; a deputy to the European<br />
Parliament; a judge, a lay-judge, a state prosecutor, a notary public,<br />
a court executive officer (komornik), a professional court probation<br />
officer, a person adjudicating in cases of contraventions or in disciplinary<br />
authorities operating in pursuance of a law; a person who is<br />
an employee in a state administration, other state authority or local<br />
administration, except when he performs solely servicing activities<br />
(i.e., sanitary, administrative of auxiliary nature), and other persons<br />
to the extent to which they are authorised to render administrative<br />
decisions; a person who is an employee of a state auditing and inspection<br />
authority or of a local government auditing and inspection<br />
authority, except when he performs only service-type work; a person<br />
who occupies a managerial post in another state institution; an official<br />
of an authority responsible for the protection of public security or an<br />
official of the State Prison Service; a person performing active military<br />
service.<br />
Criminal liability for passive bribery in the public sector is not limited<br />
only to public officials, but also covers persons who have a connection<br />
with the performance of a public function. Such performance is exercised<br />
by persons who are defined as “holding public office”. Persons<br />
holding public office, except for public officials, include members of a<br />
local administration agency, persons employed at the organisational<br />
unit administering public funds, unless such person solely performs<br />
servicing activities (i.e., sanitary, administrative of auxiliary nature), as<br />
well as persons whose rights and obligations within public activity are<br />
defined or acknowledged by law or international treaty binding on the<br />
Republic of Poland.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act contrary to their duties?<br />
Yes. Bribing a person holding public office with the intention that they<br />
act or omit to act contrary to their duties constitutes a qualified form<br />
of active bribery.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act in accordance with their duties?<br />
Yes.<br />
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Is there a specific monetary limit up to which a person can offer<br />
gifts to public officials without being held criminally liable?<br />
(e.g., gifts below EUR 100 will not be considered an advantage)<br />
(Geringfügigkeitsgrenze)<br />
There is no specific monetary limit expressed in any currency.<br />
Is it a criminal offence to offer gifts or advantages to public officials<br />
even though there is no connection to a specific action or<br />
omission of the public official (e.g., Christmas gifts, etc)?<br />
No.<br />
Can the donor of the benefit show active repentance in order to<br />
abandon the offence and go without punishment? (e.g., if they<br />
report themselves to the authorities and prevent the anticipated<br />
act of the official) (Tätige Reue)<br />
Yes. The perpetrator of active bribery is not subject to a penalty if their<br />
financial or personal benefit or promise to give such benefit was accepted<br />
by the person holding public office and the perpetrator notified<br />
a prosecuting agency of this fact and disclosed all relevant circumstances<br />
of the crime before the agency learned about the crime itself.<br />
What are the maximum sanctions for bribery in the public sector?<br />
Up to 12 years of imprisonment or a corresponding monetary fine.<br />
2. Bribery in the private sector<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act contrary to their duties?<br />
Yes regarding (i) and (ii). Active bribery of shareholders/owners (iii)<br />
is not an offence.<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act in accordance with their duties?<br />
No.<br />
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poland<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act contrary<br />
to their duties?<br />
Yes regarding (i) and (ii). Passive bribery of shareholders/owners<br />
(iii) is not an offence.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act in accordance<br />
with their duties?<br />
No.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to (i) employees, (ii) agents, or (iii) shareholders/owners<br />
without being held criminally liable? (e.g., gifts below EUR 100<br />
will not be considered an advantage) (Geringfügigkeitsgrenze)<br />
No.<br />
Can the donor of the benefit show active repentance in order<br />
to abandon the offence and go without punishment? (e.g., if he<br />
informs the authorities and prevents the anticipated act of the<br />
bribe receiver) (Tätige Reue)<br />
Yes. The perpetrator of active bribery is not subject to a penalty if<br />
their financial or personal benefit or promise to give such benefit was<br />
accepted by the person holding public office and the perpetrator<br />
notified a prosecuting agency of this fact and disclosed all relevant<br />
circumstances of the crime before the agency learned about the<br />
crime itself.<br />
What are the maximum sanctions for bribery in the private sector?<br />
The perpetrator can be punished by imprisonment of up to five<br />
years; however, the penalty for passive bribery may be increased to<br />
eight years in especially aggravated cases).<br />
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3. Criminal liability of corporations (Unternehmensstrafrecht)<br />
Can private corporations be held criminally liable for offences<br />
committed by (i) management and (ii) employees?<br />
Yes, if an offence is committed by:<br />
a) a person acting on behalf of or in the interest of a corporation<br />
within that person’s right or obligation to represent that entity, taking<br />
decisions or carrying out an internal control on its behalf, or when<br />
exceeding such right or failing to fulfil such obligation;<br />
b) a person admitted to act as a result of exceeding one’s rights or<br />
failing to fulfil obligations by a person mentioned in point a;<br />
c) a person acting on behalf of or in the interest of a corporation,<br />
upon consent or knowledge of the person mentioned in point a;<br />
and if such conduct brought or could have brought a benefit to the<br />
collective entity, even if this is a non-material benefit.<br />
Is the criminal liability of the corporation fault-based or a strict<br />
liability offence?<br />
Fault-based liability offence. A corporation may be held accountable<br />
if a prohibited act was committed as a result of not exercising due<br />
diligence when choosing a natural person, or as a result of failure by<br />
the body or representative of the corporation to exercise due supervision<br />
over that person.<br />
Is a levy of enrichment (disgorgement) of the corporation’s<br />
profits of the offence possible (e.g., the profit obtained from a<br />
contract, which was won through bribery)? (Verfall)<br />
Yes.<br />
Can a compliance programme (i) reduce the fine or (ii) permit the<br />
corporation to avoid prosecution/conviction or lead to impunity?<br />
No.<br />
What is the maximum fine which can be imposed on a corporation<br />
for a bribery offence?<br />
PLN 20,000,000 (approx. EUR 5 million).<br />
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poland<br />
4. Miscellaneous<br />
Is management obliged to report offences committed within<br />
the corporation to the authorities?<br />
There is no such obligation for the management.<br />
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Summary Poland<br />
Is it an offence to bribe individuals in connection with<br />
business activities (active or passive commercial bribery)?<br />
Yes.<br />
Is there a monetary limit for commercial bribery of<br />
private individuals?<br />
No.<br />
Is there a monetary limit for active bribery of public<br />
officials?<br />
No.<br />
Can private corporations be held criminally liable for<br />
offences?<br />
Yes.<br />
What is the maximum fine for corporations for bribery<br />
related offences?<br />
approx. EUR 5 million<br />
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omania<br />
Matei Victor Florea<br />
RO-010413 Bucharest, Blvd. Dacia Nr. 30, Sector 1<br />
T: +40 21 206 47 99<br />
E: m.florea@schoenherr.eu<br />
Bogdan Ionita<br />
RO-010413 Bucharest, Blvd. Dacia Nr. 30, Sector 1<br />
T: +40 21 319 67 90<br />
E: b.ionita@schoenherr.eu<br />
Nicolae Mihu<br />
RO-010413 Bucharest, Blvd. Dacia Nr. 30, Sector 1<br />
T: +40 21 319 6790<br />
E: n.mihu@schoenherr.eu
omania<br />
1. Bribery in the public sector<br />
Definition of a public official as receiver of gifts and benefits in bribery<br />
related offences<br />
A public official is defined as a person exercising an assignment of<br />
any kind, either permanently or temporarily, subject to any title, irrespective<br />
of the manner of its appointment, paid or not paid for, in the<br />
service of public authorities, public institutions or other legal entities<br />
of public interest or within the service of public interest. The definition<br />
includes the employees or the agents of the public international organisations<br />
or the officials of a foreign state.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act contrary to their duties?<br />
Yes.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act in accordance with their duties?<br />
Yes.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to public officials without being held criminally liable?<br />
(e.g., gifts below EUR 100 will not be considered an advantage)<br />
(Geringfügigkeitsgrenze)<br />
No, there is no specific monetary limit expressed in RON (lei).<br />
Is it a criminal offence to offer gifts or advantages to public officials<br />
even though there is no connection to a specific action or<br />
omission of the public official (e.g., Christmas gifts, etc)?<br />
No.<br />
Can the donor of the benefit show active repentance in order to<br />
abandon the offence and go without punishment? (e.g., if they<br />
report themselves to the authorities and prevent the anticipated<br />
act of the official) (Tätige Reue)<br />
Yes. The donor of the benefit is not punished when reporting the deed<br />
to the authorities before the prosecution body is notified about the<br />
offence.<br />
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omania<br />
What are the maximum sanctions for bribery in the public sector?<br />
Imprisonment of up to five years. This maximum could be increased<br />
by a third, by two years or by five years if provided by the law (e.g.,<br />
due to the special quality of the public official, aggravating circumstances<br />
in which the offence was committed).<br />
2. Bribery in the private sector<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act contrary to their duties?<br />
Yes regarding (i) and (ii). As concerns active bribery of shareholders/owners<br />
(iii) the case law and the legal writings are not settled;<br />
however, there are strong arguments that active bribery of shareholders/owners<br />
(iii) is not an offence.<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act in accordance with their duties?<br />
Yes regarding (i) and (ii). As concerns active bribery of shareholders/owners<br />
(iii) the case law and the legal writings are not settled;<br />
however, there are strong arguments that active bribery of shareholders/<br />
owners (iii) is not an offence.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act contrary<br />
to their duties?<br />
Yes regarding (i) and (ii). As concerns passive bribery of shareholders/owners<br />
(iii) the case law and the legal writings are not settled;<br />
however, there are strong arguments that passive bribery of shareholders/owners<br />
(iii) is not an offence.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act in accordance<br />
with their duties?<br />
Yes regarding (i) and (ii). As concerns passive bribery of shareholders/owners<br />
(iii) the case law and the legal writings are not settled;<br />
however, there are strong arguments that passive bribery of shareholders/<br />
owners (iii) is not an offence.<br />
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Is there a specific monetary limit up to which a person can offer<br />
gifts to (i) employees, (ii) agents, or (iii) shareholders/owners<br />
without being held criminally liable? (e.g., gifts below EUR 100<br />
will not be considered an advantage) (Geringfügigkeitsgrenze)<br />
No, there is no specific monetary limit expressed in RON (lei).<br />
Can the donor of the benefit show active repentance in order<br />
to abandon the offence and go without punishment? (e.g., if he<br />
informs the authorities and prevents the anticipated act of the<br />
bribe receiver) (Tätige Reue)<br />
Yes. The donor of the benefit is not punished when reporting the<br />
deed to the authorities before the prosecution body is notified about<br />
the offence.<br />
What are the maximum sanctions for bribery in the private sector?<br />
The maximum sanctions for active bribery are five years of imprisonment.<br />
This maximum could be increased by a third, by two or by five<br />
years if provided by the law (e.g., due to the special quality of the<br />
official). The maximum sanction for passive bribery is imprisonment<br />
of 12 to 15 years, if committed by an official with control duties. The<br />
maximum could be increased by a third or by five years if provided<br />
by the law).<br />
3. Criminal liability of corporations (Unternehmensstrafrecht)<br />
Can private corporations be held criminally liable for offences<br />
committed by (i) management and (ii) employees?<br />
Yes, both.<br />
Is the criminal liability of the corporation fault-based or a strict<br />
liability offence?<br />
Fault-based liability.<br />
Is a levy of enrichment (disgorgement) of the corporation’s<br />
profits of the offence possible (e.g., the profit obtained from a<br />
contract, which was won through bribery)? (Verfall)<br />
Although the case law and the legal writings are not settled, there<br />
are arguments that in addition to monetary fines, the profit obtained<br />
through corruption practices might be confiscated under the current<br />
legislation.<br />
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Can a compliance programme (i) reduce the fine or (ii) permit the<br />
corporation to avoid prosecution/conviction or lead to impunity?<br />
This will have to be assessed on a case-by-case basis. Depending<br />
on whether the court views the existing programme as effective it<br />
may lead to (i), or (ii).<br />
What is the maximum fine which can be imposed on a corporation<br />
for a bribery offence?<br />
RON 600,000 (approx. EUR 140,000). In the presence of aggravating<br />
circumstances, the special maximum (i.e., RON 600,000) could<br />
be increased by a quarter.<br />
4. Statutes of Limitation (Verjährung)<br />
What is the period of limitation in criminal proceedings for corruption<br />
related offences until the end of investigation or the initiation<br />
of prosecution?<br />
For the standard forms (no mitigating or aggravating circumstances)<br />
of the most relevant corruption offences under Romanian law, the<br />
following periods of limitation in criminal proceedings are applicable:<br />
(i) Active bribery: maximum five years (natural and legal entities);<br />
(ii) Passive bribery: maximum ten years (natural and legal entities);<br />
(iii) Receipt of undue advantages: maximum five years (natural and<br />
legal entities);<br />
(iv) Influence peddling: maximum eight years (natural persons), five<br />
years (legal entities);<br />
(v) Influence trafficking: maximum eight years (natural persons), five<br />
years (legal entities);<br />
(vi) Active bribery of foreign officials: eight years (natural persons),<br />
five years (legal entities);<br />
(vii) Non-disclosure of corruption offences: five years (natural and<br />
legal entities). The periods of limitation in criminal proceedings will<br />
be interrupted by the performance of any act that pursuant to the<br />
law must be communicated to the indicted person during the criminal<br />
proceedings (e.g., the presentation of the prosecution material).<br />
After each interruption, a new period of limitation of criminal proceedings<br />
begins. But irrespective of the number of interruptions of<br />
the periods of limitation of the criminal proceedings, criminal liability<br />
is excluded when the period of limitation provided by the law has<br />
elapsed one time and a half.<br />
What is the period of limitation in civil proceedings resulting<br />
from criminal offences?<br />
Three years from the day the injured party knew or should have<br />
known the damage and the liable party.<br />
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5. Miscellaneous<br />
Is management obliged to report offences committed within<br />
the corporation to the authorities?<br />
The law provides for a reporting obligation for offences committed<br />
within the corporation (it needs to be analysed on a case-by-case<br />
basis).<br />
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Summary Romania<br />
Is it an offence to bribe individuals in connection with<br />
business activities (active or passive commercial bribery)?<br />
Yes.<br />
Is there a monetary limit for commercial bribery of<br />
private individuals?<br />
No.<br />
Is there a monetary limit for active bribery of public<br />
officials?<br />
No.<br />
Can private corporations be held criminally liable for<br />
offences?<br />
Yes.<br />
What is the maximum fine for corporations for bribery<br />
related offences?<br />
Approx. EUR 210,000 (RON 900,000)<br />
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serbia<br />
Srđana Petronijević<br />
SRB-11000 Belgrade, Francuska 27<br />
T: +381 11 3202 600<br />
E: s.petronijevic@schoenherr.rs<br />
Nataša Lalatović<br />
SRB-11000 Belgrade, Francuska 27<br />
T: +381 11 3202 600<br />
E: n.lalatovic@schoenherr.rs<br />
Vladimir Hrle<br />
SRB-11000 Belgrade, Francuska 27<br />
T: +381 11 3202 600<br />
E: v.hrle@schoenherr.rs
serbia<br />
1. Bribery in the public sector<br />
Definition of a public official as receiver of gifts and benefits in bribery<br />
related offences<br />
A public official is defined as: a person exercising official powers in a<br />
state authority; an elected, appointed or assigned person in a state<br />
authority or local self-government or a person permanently or occasionally<br />
exercising official powers in such bodies; a person in an establishment,<br />
company or other entity charged with exercising public<br />
authority and decision-making on the rights, obligations and interests<br />
of natural persons and legal entities and on the public interest; a person<br />
effectively charged with carrying out specific official duties and<br />
tasks; a military person.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act contrary to their duties?<br />
Yes.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act in accordance with their duties?<br />
Yes.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to public officials without being held criminally liable?<br />
(e.g., gifts below EUR 100 will not be considered an advantage)<br />
(Geringfügigkeitsgrenze)<br />
No, there is no specific monetary limit under the Serbian Criminal<br />
Code. Under the laws on civil servants and public officials, the official<br />
can accept a protocol or holiday gift if its value does not exceed 5%<br />
(approx. EUR 15) of the value of the average monthly net salary in<br />
Serbia. Not included as protocol or holiday gifts, irrespective of their<br />
value, are gifts: i) the presentation, or acceptance of which would<br />
constitute a crime; ii) the presentation or acceptance of which is<br />
prohibited by law; iii) presented in the form of money or a security;<br />
and iv) the acceptance of which would be contrary to the ethical<br />
standards in force for individual categories of officials.<br />
Is it a criminal offence to offer gifts or advantages to public officials<br />
even though there is no connection to a specific action or<br />
omission of the public official (e.g., Christmas gifts, etc)?<br />
No.<br />
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serbia<br />
Can the donor of the benefit show active repentance in order to<br />
abandon the offence and go without punishment? (e.g., if they<br />
report themselves to the authorities and prevent the anticipated<br />
act of the official) (Tätige Reue)<br />
Yes. The donor of the benefit who reported the offence prior to becoming<br />
aware that it had been uncovered may be exempt from punishment.<br />
What are the maximum sanctions for bribery in the public sector?<br />
Up to five years of imprisonment for acting/omitting to act contrary<br />
to their duties; up to three years of imprisonment for acting/omitting<br />
to act in accordance with their duties.<br />
2. Bribery in the private sector<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act contrary to their duties?<br />
Yes. It is a criminal offence to bribe a “responsible person”, i.e., the<br />
owner of a company or other commercial entity or a person in a<br />
company, establishment or another entity who has been charged,<br />
based on his function, invested assets or authorities, with specific<br />
tasks concerning the management of assets, production or other<br />
activity, or supervision thereof, or has been effectively charged with<br />
carrying out specific tasks.<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act in accordance with their duties?<br />
Yes.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act contrary<br />
to their duties?<br />
Yes.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act in accordance<br />
with their duties?<br />
Yes.<br />
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serbia<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to (i) employees, (ii) agents, or (iii) shareholders/owners<br />
without being held criminally liable? (e.g., gifts below EUR 100<br />
will not be considered an advantage) (Geringfügigkeitsgrenze)<br />
No, there is no specific monetary limit expressed in RSD.<br />
Can the donor of the benefit show active repentance in order<br />
to abandon the offence and go without punishment? (e.g., if he<br />
informs the authorities and prevents the anticipated act of the<br />
bribe receiver) (Tätige Reue)<br />
Yes. The donor of the benefit who reported the offence prior to becoming<br />
aware that it had been uncovered may be exempt from punishment.<br />
What are the maximum sanctions for bribery in the private sector?<br />
Up to five years of imprisonment for active bribery and up to 12 years<br />
of imprisonment for passive bribery.<br />
3. Criminal liability of corporations (Unternehmensstrafrecht)<br />
Can private corporations be held criminally liable for offences<br />
committed by (i) management and (ii) employees?<br />
Yes, (i) if the responsible person, acting within their authority, culpably<br />
committed a criminal offence with the intention of obtaining<br />
benefits for the company, or (ii) if the person acting under the control<br />
or supervision of the responsible person was enabled to commit<br />
a criminal offence due to the lack of supervision or control of the<br />
decision-maker.<br />
Is the criminal liability of the corporation fault-based or a strict<br />
liability offence?<br />
Fault-based liability. However, conviction of a natural person is not a<br />
precondition for conviction of the legal entity.<br />
Is a levy of enrichment (disgorgement) of the corporation’s<br />
profits of the offence possible (e.g., the profit obtained from a<br />
contract, which was won through bribery)? (Verfall)<br />
Yes.<br />
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serbia<br />
Can a compliance programme (i) reduce the fine or (ii) permit the<br />
corporation to avoid prosecution/conviction or lead to impunity?<br />
No. Measures taken by the company in order to prevent and discover<br />
criminal offences are considered when determining the punishment<br />
within the statutory limits for the particular offence (not for<br />
reduction of the punishment). A private company can be exempt<br />
from the punishment if it voluntary and immediately takes necessary<br />
actions to remove harmful effects or returns unlawfully obtained<br />
property.<br />
What is the maximum fine which can be imposed on a corporation<br />
for a bribery offence?<br />
Up to RSD 5 million (approx. EUR 48,000) for active bribery and up to<br />
RSD 500 million (approx. EUR 4.8 million) for passive bribery.<br />
4. Statutes of Limitation (Verjährung)<br />
What is the period of limitation in criminal proceedings for corruption<br />
related offences until the end of investigation or the initiation<br />
of prosecution?<br />
From the moment of committing the offence: Fifteen years for an<br />
offence punishable with imprisonment of more than ten years. Ten<br />
years for an offence punishable with imprisonment of more than five<br />
years and up to ten years. Five years for an offence punishable with<br />
imprisonment of more than three years and up to five years. Three<br />
years for an offence punishable with imprisonment of more than one<br />
year and up to three years.<br />
What is the period of limitation in civil proceedings resulting<br />
from criminal offences?<br />
The period of limitation is three years from the moment the injured<br />
party learned of the damage or the liable party. In any case, the<br />
period of limitation ends five years after the day when the damage<br />
occurred. However, if the period of limitation in criminal proceedings<br />
is longer than the period of limitation in civil proceedings, then the<br />
period of limitation in civil proceedings shall expire upon the expiration<br />
of the limitation period in the criminal proceedings.<br />
5. Miscellaneous<br />
Is management obliged to report offences committed within<br />
the corporation to the authorities?<br />
No, but reporting the offence can lead to exemption from punishment.<br />
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Summary Serbia<br />
Is it an offence to bribe individuals in connection with<br />
business activities (active or passive commercial bribery)?<br />
Yes.<br />
Is there a monetary limit for commercial bribery of<br />
private individuals?<br />
No.<br />
Is there a monetary limit for active bribery of public<br />
officials?<br />
No.<br />
Can private corporations be held criminally liable for<br />
offences?<br />
Yes.<br />
What is the maximum fine for corporations for bribery<br />
related offences?<br />
approx. EUR 4,800,000<br />
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serbia<br />
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slovakia<br />
Šimon Gmiterko<br />
SK-811 06 Bratislava, Nám. 1. mája 18 (Park One)<br />
T: +421 2571 007 22<br />
E: s.gmiterko@schoenherr.eu<br />
Monika Kormošová<br />
SK-811 06 Bratislava, Nám. 1. mája 18 (Park One)<br />
T: +421 2 571 007 38<br />
E: m.kormosova@schoenherr.eu
slovakia<br />
1. Bribery in the public sector<br />
Definition of a public official as receiver of gifts and benefits in bribery<br />
related offences<br />
Public officials are defined as persons holding an office in a body of<br />
public authority (e.g., judges, prosecutors), members of the armed<br />
forces, persons in a service relationship, mayors, heads of self-governing<br />
regional authorities, members of local or regional self-governing<br />
authorities, civil servants and employees of state administration<br />
authorities, of local or regional self-governing authorities or of other<br />
state authorities, persons exercising the competencies of legal entities<br />
that have a statutory authority to make decisions in the area of<br />
public administration, notaries, court executors, members of forest<br />
guard, water guard, fishery guard, hunting guard, nature guard or<br />
persons authorised to act as nature guard, when they participate in<br />
the fulfilment of the duties of the society and of the state exercising<br />
the competencies they have been granted with a view to the responsible<br />
fulfilment of such duties. The offence has to be committed in<br />
connection with the exercise of the public official’s powers and responsibilities.<br />
Foreign public officials are also subject to bribery.<br />
Civil servants are defined in the Act on State Service as (i) employees<br />
of institutions enumerated in the Act, such as courts, ministries, other<br />
central and local state authorities, certain police officers, employees<br />
of the Public Prosecutor Offices or the Supreme Audit Office, etc.; (ii)<br />
persons appointed to function by the National Council of the Slovak<br />
Republic or its chairman, by the president, government or the chairman<br />
of the Constitutional Court; and (iii) certain other officials, such as<br />
consultants of the president or government members.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act contrary to their duties?<br />
Yes.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act in accordance with their duties?<br />
Yes.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to public officials without being held criminally liable?<br />
(e.g., gifts below EUR 100 will not be considered an advantage)<br />
(Geringfügigkeitsgrenze)<br />
No, there is no specific monetary limit.<br />
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slovakia<br />
Is it a criminal offence to offer gifts or advantages to public officials<br />
even though there is no connection to a specific action or<br />
omission of the public official (e.g., Christmas gifts, etc)?<br />
No.<br />
Can the donor of the benefit show active repentance in order to<br />
abandon the offence and go without punishment? (e.g., if they<br />
report themselves to the authorities and prevent the anticipated<br />
act of the official) (Tätige Reue)<br />
Yes, but only if the donor of the benefit provided or promised a bribe<br />
only because they were solicited and they voluntarily and immediately<br />
reported this fact to the competent authorities.<br />
What are the maximum sanctions for bribery in the public sector?<br />
Up to 15 years of imprisonment and monetary fines up to EUR<br />
331,930. In addition, a conviction may give rise to other sanctions,<br />
such as exclusion from the possibility of being employed by the<br />
state.<br />
2. Bribery in the private sector<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act contrary to their duties?<br />
Yes regarding (i) and (ii). Active bribery of shareholders/owners under<br />
(iii) depends on circumstances and would have to be assessed<br />
on a case-by-case basis.<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act in accordance with their duties?<br />
No.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act contrary<br />
to their duties?<br />
Yes regarding (i) and (ii). Active bribery of shareholders/owners<br />
under (iii) depends on circumstances.<br />
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slovakia<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act in accordance<br />
with their duties?<br />
No.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to (i) employees, (ii) agents, or (iii) shareholders/owners<br />
without being held criminally liable? (e.g., gifts below EUR 100<br />
will not be considered an advantage) (Geringfügigkeitsgrenze)<br />
No.<br />
Can the donor of the benefit show active repentance in order<br />
to abandon the offence and go without punishment? (e.g., if he<br />
informs the authorities and prevents the anticipated act of the<br />
bribe receiver) (Tätige Reue)<br />
Yes, but only if the donor of the benefit provided or promised a bribe<br />
only because they were solicited and they voluntarily and immediately<br />
reported this fact to the competent authorities.<br />
What are the maximum sanctions for bribery in the private sector?<br />
Up to ten years of imprisonment for active bribery and up to 12 years<br />
for passive bribery. In addition, a fine of up to EUR 331,930 may be<br />
imposed on the offender. A conviction may give rise to other sanctions,<br />
such as exclusion from the possibility of being employed by<br />
the state.<br />
3. Criminal liability of corporations (Unternehmensstrafrecht)<br />
Can private corporations be held criminally liable for offences<br />
committed by (i) management and (ii) employees?<br />
No. However, the Slovak Criminal Code foresees the possibility to<br />
impose certain sanctions on corporations as well.<br />
Is the criminal liability of the corporation fault-based or a strict<br />
liability offence?<br />
N/A<br />
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Is a levy of enrichment (disgorgement) of the corporation’s<br />
profits of the offence possible (e.g., the profit obtained from a<br />
contract, which was won through bribery)? (Verfall)<br />
Yes.<br />
Can a compliance programme (i) reduce the fine or (ii) permit the<br />
corporation to avoid prosecution/conviction or lead to impunity?<br />
N/A<br />
What is the maximum fine which can be imposed on a corporation<br />
for a bribery offence?<br />
The maximum sanction that can be imposed on a corporation is the<br />
confiscation of its entire property. This will have further consequences<br />
(bankruptcy proceeding).<br />
4. Statutes of Limitation (Verjährung)<br />
What is the period of limitation in criminal proceedings for corruption<br />
related offences until the end of investigation or the initiation<br />
of prosecution?<br />
Ten years or 20 years in case of more serious offences.<br />
What is the period of limitation in civil proceedings resulting<br />
from criminal offences?<br />
In case of business relationships, the claims resulting from the corruption<br />
related offences are statute barred after the lapse of four<br />
years as of the date when the harmed person learned or should<br />
have learned of the person obliged to recover the damage, but not<br />
later than after the lapse of ten years from the commitment of the<br />
offence. Otherwise, the limitation period for right to recovery of the<br />
damage caused by corruption related offences is three years as of<br />
the validity of the sentencing court decision, but not later than after<br />
the lapse of ten years from the commitment of the offence.<br />
5. Miscellaneous<br />
Is management obliged to report offences committed within<br />
the corporation to the authorities?<br />
Yes. However, nobody is obliged to report himself.<br />
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slovakia<br />
Summary Slovakia<br />
Is it an offence to bribe individuals in connection with<br />
business activities (active or passive commercial bribery)?<br />
Yes.<br />
Is there a monetary limit for commercial bribery of<br />
private individuals?<br />
No.<br />
Is there a monetary limit for active bribery of public<br />
officials?<br />
No.<br />
Can private corporations be held criminally liable for<br />
offences?<br />
No, however certain sanctions under the Criminal Code<br />
can be imposed.<br />
What is the maximum fine for corporations for bribery<br />
related offences?<br />
Confiscation of the amount up to EUR 1,660,000 or all the<br />
property of the corporation.<br />
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slovakia<br />
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121
slovenia<br />
Luka Fabiani<br />
SI-1000 Ljubljana, Tomšičeva 3<br />
T: +386 1 200 09 88<br />
E: l.fabiani@schoenherr.eu
slovenia<br />
1. Bribery in the public sector<br />
Definition of a public official as receiver of gifts and benefits in bribery<br />
related offences<br />
Public officials are defined as civil servants and functionaries. Civil<br />
servants are individuals employed in the public sector. Functionaries<br />
include members of the National Assembly, members of the National<br />
Council, President of the Republic, Prime Minister, ministers,<br />
state secretaries, judges of the Constitutional Court, judges, public<br />
prosecutors, functionaries in other government bodies and local authorities,<br />
members of the European Parliament from Slovenia, unless<br />
their rights and obligations are stipulated otherwise by regulations of<br />
the European Parliament, and other functionaries from Slovenia in European<br />
institutions and other international institutions, Secretary-General<br />
of the Government, former functionaries while receiving salary<br />
allowance in accordance with the law and functionaries of the Bank of<br />
Slovenia, unless their rights and obligations are stipulated otherwise<br />
by the act governing the Bank of Slovenia and other regulations concerning<br />
the Bank of Slovenia.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act contrary to their duties?<br />
Yes.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act in accordance with their duties?<br />
Yes.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to public officials without being held criminally liable?<br />
(e.g., gifts below EUR 100 will not be considered an advantage)<br />
(Geringfügigkeitsgrenze)<br />
A public official shall not accept gifts or other benefits (gifts) relating<br />
to the holding of the office, except for protocol gifts and occasional<br />
gifts of low value. Gifts given at special occasions not exceeding the<br />
value of EUR 75 or gifts whose total value in a year does not exceed<br />
EUR 150 if they are received from the same person, shall be regarded<br />
as occasional gifts of low value. In no case may cash, securities<br />
or precious metals be received as a gift of low value. Public officials<br />
shall not receive gifts, regardless of their value, that affect or may<br />
affect the objective and impartial holding of the office.<br />
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slovenia<br />
Is it a criminal offence to offer gifts or advantages to public officials<br />
even though there is no connection to a specific action or<br />
omission of the public official (e.g., Christmas gifts, etc)?<br />
No.<br />
Can the donor of the benefit show active repentance in order to<br />
abandon the offence and go without punishment? (e.g., if they<br />
report themselves to the authorities and prevent the anticipated<br />
act of the official) (Tätige Reue)<br />
If the perpetrator has attempted to commit a criminal offence but voluntarily<br />
desisted to go through with it, his sentence may be withdrawn.<br />
However, active repentance of a completed criminal offence may only<br />
constitute a mitigating circumstance in a criminal procedure against a<br />
perpetrator.<br />
What are the maximum sanctions for bribery in the public sector?<br />
Up to eight years of imprisonment and monetary fines.<br />
2. Bribery in the private sector<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act contrary to their duties?<br />
Yes, whoever promises, offers, or gives an unauthorised award, gift<br />
or any other property benefit to a person performing an economic<br />
activity, intended for such a person or any third person with a view<br />
to obtaining any unjustified benefit for himself or any third person<br />
when concluding or retaining a contract or other unauthorised benefit<br />
commits a criminal offence of the Unauthorised Giving of Gifts.<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act in accordance with their duties?<br />
Yes, whoever promises, offers, or gives an unauthorised award, gift<br />
or any other property benefit to a person performing an economic<br />
activity, intended for such a person or any third person with a view<br />
to obtaining any unjustified benefit for himself or any third person<br />
when concluding or retaining a contract or other unauthorised benefit<br />
commits a criminal offence.<br />
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slovenia<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act contrary<br />
to their duties?<br />
Yes, whoever, in the performance of an economic activity, requests<br />
or agrees to accept for himself or any third person an unauthorised<br />
award, gift or other property benefit, or a promise or offer for such<br />
benefit, in order to neglect the interests of his organisation or other<br />
natural person or to cause damage to the same when concluding<br />
or retaining a contract or other unauthorised benefit commits a<br />
criminal offence of the Unauthorised Acceptance of Gifts.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act in accordance<br />
with their duties?<br />
Yes, see previous answer.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to (i) employees, (ii) agents, or (iii) shareholders/owners<br />
without being held criminally liable? (e.g., gifts below EUR 100<br />
will not be considered an advantage) (Geringfügigkeitsgrenze)<br />
No.<br />
Can the donor of the benefit show active repentance in order<br />
to abandon the offence and go without punishment? (e.g., if he<br />
informs the authorities and prevents the anticipated act of the<br />
bribe receiver) (Tätige Reue)<br />
Yes, if the perpetrator has attempted to commit a criminal offence<br />
but voluntarily desisted to go through with it, his sentence may be<br />
withdrawn. However, active repentance of a completed criminal offence<br />
may only constitute a mitigating circumstance in a criminal<br />
procedure against a perpetrator.<br />
What are the maximum sanctions for bribery in the private sector?<br />
Up to five years of imprisonment.<br />
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slovenia<br />
3. Criminal liability of corporations (Unternehmensstrafrecht)<br />
Can private corporations be held criminally liable for offences<br />
committed by (i) management and (ii) employees?<br />
Yes. Private corporations can be held liable for offences that cover<br />
bribery related criminal offences. The basic rule regarding liability<br />
of legal entities for criminal offences, is the ancillary liability of legal<br />
entities (a legal entity is liable in addition to the perpetrator). In determining<br />
the liability of a legal entity for a criminal offence in a specific<br />
case one has to establish if the offence was committed on behalf of<br />
a legal entity or for the benefit of a legal entity or for the legal entity’s<br />
account.<br />
Is the criminal liability of the corporation fault-based or a strict<br />
liability offence?<br />
Strict liability.<br />
Is a levy of enrichment (disgorgement) of the corporation’s<br />
profits of the offence possible (e.g., the profit obtained from a<br />
contract, which was won through bribery)? (Verfall)<br />
Yes.<br />
Can a compliance programme (i) reduce the fine or (ii) permit the<br />
corporation to avoid prosecution/conviction or lead to impunity?<br />
A compliance programme could potentially be regarded as a mitigating<br />
circumstance.<br />
What is the maximum fine which can be imposed on a corporation<br />
for a bribery offence?<br />
EUR 1 million, but half or all of the legal entity’s property may be confiscated<br />
as a punishment as well.<br />
4. Miscellaneous<br />
Is management obliged to report offences committed within<br />
the corporation to the authorities?<br />
No.<br />
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slovenia<br />
Summary Slovenia<br />
Is it an offence to bribe individuals in connection with<br />
business activities (active or passive commercial bribery)?<br />
Yes.<br />
Is there a monetary limit for commercial bribery of<br />
private individuals?<br />
No.<br />
Is there a monetary limit for active bribery of public<br />
officials?<br />
EUR 75 if given at a special occasion.<br />
Can private corporations be held criminally liable for<br />
offences?<br />
Yes.<br />
What is the maximum fine for corporations for bribery<br />
related offences?<br />
EUR 1 million<br />
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turkey<br />
Markus Piuk<br />
A-1010 Vienna, Tuchlauben 17<br />
T: +43 1 534 37 175<br />
E: m.piuk@schoenherr.eu
turkey<br />
1. Bribery in the public sector<br />
Definition of a public official as receiver of gifts and benefits in bribery<br />
related offences<br />
Any officer, judicial authority (such as a judge or prosecutor), civil<br />
servant, notary, certified public accountant and arbitrator appointed<br />
by the public bodies in order to provide public services. Employees of<br />
state owned companies are not public officials.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act contrary to their duties?<br />
Yes.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act in accordance with their duties?<br />
Yes.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to public officials without being held criminally liable?<br />
(e.g., gifts below EUR 100 will not be considered an advantage)<br />
(Geringfügigkeitsgrenze)<br />
No, there is no specific monetary limit.<br />
Is it a criminal offence to offer gifts or advantages to public officials<br />
even though there is no connection to a specific action or<br />
omission of the public official (e.g., Christmas gifts, etc)?<br />
Offering gifts or advantages to public officials in connection with a<br />
specific action or omission (may) constitute a criminal offence. General<br />
and smaller gifts, such as those given on national or religious<br />
holidays, are accepted in Turkish practice. However, authorities<br />
(e.g., the Energy Market Regulatory Authority) may internally prohibit<br />
the acceptance of any gifts whatsoever on whatsoever occasion.<br />
Can the donor of the benefit show active repentance in order to<br />
abandon the offence and go without punishment? (e.g., if they<br />
report themselves to the authorities and prevent the anticipated<br />
act of the official) (Tätige Reue)<br />
Yes, the donor may benefit from active repentance if he discloses the<br />
relevant action to the authorities and abandons the action before the<br />
investigation starts.<br />
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turkey<br />
What are the maximum sanctions for bribery in the public sector?<br />
Up to 12 years of imprisonment. However, if the receiver of the bribe<br />
is a judicial authority, notary, arbitrator or certified public accountant,<br />
the maximum term of the prison sentence can be increased to<br />
16-18 years.<br />
2. Bribery in the private sector<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act contrary to their duties?<br />
No. According to Turkish legislation, one party involved in the bribery<br />
offence needs to be public official. A bribe payment that does not<br />
involve public officials might however constitute another criminal action<br />
such as tax fraud.<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act in accordance with their duties?<br />
No. According to Turkish legislation, one party involved in the bribery<br />
needs to be a public official.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act contrary<br />
to their duties?<br />
No. According to Turkish legislation, one party involved in the bribery<br />
needs to be a public official. A bribe payment that does not<br />
involve public officials might however constitute another criminal<br />
action such as tax fraud.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act in accordance<br />
with their duties?<br />
No. According to Turkish legislation, one party involved in the bribery<br />
needs to be a public official. Although not defined as bribery, actions<br />
which do not involve public officials also might be qualified as criminal<br />
action (e.g., tax fraud).<br />
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turkey<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to (i) employees, (ii) agents, or (iii) shareholders/owners<br />
without being held criminally liable? (e.g., gifts below EUR 100<br />
will not be considered an advantage) (Geringfügigkeitsgrenze)<br />
No.<br />
Can the donor of the benefit show active repentance in order<br />
to abandon the offence and go without punishment? (e.g., if he<br />
informs the authorities and prevents the anticipated act of the<br />
bribe receiver) (Tätige Reue)<br />
Yes, provided investigations have not yet been initiated.<br />
What are the maximum sanctions for bribery in the private sector?<br />
Active bribery in the private sector is not a criminal action; however,<br />
although not defined as bribery, actions which do not involve public<br />
officials also might be qualified as criminal action (e.g., tax fraud). In<br />
that case, a prison sentence of maximum three years may be applied.<br />
3. Criminal liability of corporations (Unternehmensstrafrecht)<br />
Can private corporations be held criminally liable for offences<br />
committed by (i) management and (ii) employees?<br />
No. There is no criminal liability for corporations. There may be certain<br />
security (administrative) measures, however, such as a confiscation<br />
or cancellation of licences provided by public bodies. The<br />
Misdemeanour Law however provides that certain administrative<br />
monetary fines may be imposed on corporations as well. Such monetary<br />
fines are not capped in amount.<br />
Is the criminal liability of the corporation fault-based or a strict<br />
liability offence?<br />
N/A<br />
Is a levy of enrichment (disgorgement) of the corporation’s<br />
profits of the offence possible (e.g., the profit obtained from a<br />
contract, which was won through bribery)? (Verfall)<br />
Yes, a levy of enrichment (disgorgement) of the corporation’s profits<br />
is possible pursuant to Turkish Law and would be imposed in addition<br />
to monetary fines, if any.<br />
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turkey<br />
Can a compliance programme (i) reduce the fine or (ii) permit the<br />
corporation to avoid prosecution/conviction or lead to impunity?<br />
N/A<br />
What is the maximum fine which can be imposed on a corporation<br />
for a bribery offence?<br />
Monetary fines depend on the underlying offence and are, in principle,<br />
uncapped in amount.<br />
4. Statutes of Limitation (Verjährung)<br />
What is the period of limitation in criminal proceedings for corruption<br />
related offences until the end of investigation or the initiation<br />
of prosecution?<br />
Maximum 15 years for bribery related offences and a maximum of<br />
five years for tax fraud.<br />
What is the period of limitation in civil proceedings resulting<br />
from criminal offences?<br />
In case of a tortuous act, the limitation is one year from the day the<br />
injured party learned of the damage and the liable party. In any case,<br />
ten years from the occurrence of the tortuous act.<br />
5. Miscellaneous<br />
Is management obliged to report offences committed within<br />
the corporation to the authorities?<br />
Yes. The Turkish Criminal Code stipulates that if the consequences/<br />
effects of a crime can still be reduced, the person who does not<br />
inform the respective authorities shall be punished.<br />
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Summary Turkey<br />
Is it an offence to bribe individuals in connection with<br />
business activities (active or passive commercial bribery)?<br />
No.<br />
Is there a monetary limit for commercial bribery of<br />
private individuals?<br />
N/A<br />
Is there a monetary limit for active bribery of public<br />
officials?<br />
N/A<br />
Can private corporations be held criminally liable for<br />
offences?<br />
No, private corporations cannot be held criminally liable for<br />
offences but monetary fines under the Misdemeanour Law<br />
may apply.<br />
What is the maximum fine for corporations for bribery<br />
related offences?<br />
Fines are theoretically unlimited.<br />
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ukraine<br />
Pavel Grushko<br />
UA-01033 Kyiv, 44 Shota Rustaveli Street<br />
T: +38 044 220 10 46<br />
E: p.grushko@schoenherr.eu
ukraine<br />
1. Bribery in the public sector<br />
Definition of a public official as receiver of gifts and benefits in bribery<br />
related offences<br />
Public officials are defined as persons who permanently or temporarily<br />
exercise functions of public authority or local self-government;<br />
permanently or temporarily hold a position in a state government<br />
authority, a self-government, a state-owned or utility unitary enterprise,<br />
an institutions or an organisation connected to the fulfilment<br />
of organisation-management or administrative and economic functions;<br />
perform such functions upon special authority, granted by the<br />
competent body of state government, self-government, central body<br />
of state government with a special status, authorised body or authorised<br />
individual of an enterprise, institution, organisation, by court<br />
order or by law.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act contrary to their duties?<br />
Yes.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act in accordance with their duties?<br />
Yes.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to public officials without being held criminally liable?<br />
(e.g., gifts below EUR 100 will not be considered an advantage)<br />
(Geringfügigkeitsgrenze)<br />
No, there is no specific monetary limit expressed in EUR.<br />
Is it a criminal offence to offer gifts or advantages to public officials<br />
even though there is no connection to a specific action or<br />
omission of the public official (e.g., Christmas gifts, etc)?<br />
No.<br />
Can the donor of the benefit show active repentance in order to<br />
abandon the offence and go without punishment? (e.g., if they<br />
report themselves to the authorities and prevent the anticipated<br />
act of the official) (Tätige Reue)<br />
An individual who proposed or offered a bribe may be exempted from<br />
criminal liability if the bribe was demanded (extorted) from the individual<br />
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ukraine<br />
or, if after giving a bribe, the individual voluntarily informed the state<br />
body entitled to initiate criminal cases about this fact before a criminal<br />
case was initiated against them.<br />
What are the maximum sanctions for bribery in the public sector?<br />
Up to 12 years of imprisonment, forfeiture as well as deprivation of<br />
the right to hold certain positions or conduct certain activities for up<br />
to three years.<br />
2. Bribery in the private sector<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act contrary to their duties?<br />
Yes, regarding (i) only, i.e., applies to staff of private companies.<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act in accordance with their duties?<br />
Yes, regarding (i) only, i.e., applies to staff of private companies.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act contrary<br />
to their duties?<br />
Yes, regarding (i) only, i.e., applies to staff of private companies.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act in accordance<br />
with their duties?<br />
Yes, regarding (i) only, i.e., applies to staff of private companies.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to (i) employees, (ii) agents, or (iii) shareholders/owners<br />
without being held criminally liable? (e.g., gifts below EUR 100<br />
will not be considered an advantage) (Geringfügigkeitsgrenze)<br />
No, there is no specific monetary limit expressed in EUR.<br />
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ukraine<br />
Can the donor of the benefit show active repentance in order<br />
to abandon the offence and go without punishment? (e.g., if he<br />
informs the authorities and prevents the anticipated act of the<br />
bribe receiver) (Tätige Reue)<br />
An individual who proposed or offered a bribe may be exempted<br />
from criminal liability if the bribe was demanded (extorted) from the<br />
individual or, if after giving a bribe, the individual voluntarily informed<br />
the state body entitled to initiate criminal cases about this fact before<br />
a criminal case was initiated against them.<br />
What are the maximum sanctions for bribery in the private sector?<br />
Up to seven years of imprisonment, forfeiture as well as deprivation<br />
of the right to hold certain positions or conduct certain activities for<br />
up to three years).<br />
3. Criminal liability of corporations (Unternehmensstrafrecht)<br />
Can private corporations be held criminally liable for offences<br />
committed by (i) management and (ii) employees?<br />
No, the Law of Ukraine “On Liability of Legal Entities for Acts of Corruption”<br />
was abolished on 21 December 2010. A new law should be<br />
adopted in future.<br />
Is the criminal liability of the corporation fault-based or a strict<br />
liability offence?<br />
N/A<br />
Is a levy of enrichment (disgorgement) of the corporation’s<br />
profits of the offence possible (e.g., the profit obtained from a<br />
contract, which was won through bribery)? (Verfall)<br />
N/A<br />
Can a compliance programme (i) reduce the fine or (ii) permit the<br />
corporation to avoid prosecution/conviction or lead to impunity?<br />
N/A<br />
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What is the maximum fine which can be imposed on a corporation<br />
for a bribery offence?<br />
N/A<br />
4. Miscellaneous<br />
Is management obliged to report offences committed within<br />
the corporation to the authorities?<br />
No. However, management may report upon its initiative unless otherwise<br />
provided by internal policies, bylaws, etc.<br />
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ukraine<br />
Summary Ukraine<br />
Is it an offence to bribe individuals in connection with<br />
business activities (active or passive commercial bribery)?<br />
Yes.<br />
Is there a monetary limit for commercial bribery of<br />
private individuals?<br />
N/A<br />
Is there a monetary limit for active bribery of public<br />
officials?<br />
No.<br />
Can private corporations be held criminally liable for<br />
offences?<br />
No.<br />
What is the maximum fine for corporations for bribery<br />
related offences?<br />
N/A<br />
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united kingdom<br />
(bribery act)
united kingdom (bribery act)<br />
1. Bribery in the public sector<br />
Definition of a public official as receiver of gifts and benefits in bribery<br />
related offences<br />
Within the UK the offering of a gift to any person is prohibited. There<br />
is no distinction between public and commercial bribery. Foreign officials<br />
are individuals who whether appointed or elected, perform<br />
public functions in any branch of foreign, national, local or municipal<br />
government. This includes officials holding a legislative, administrative<br />
or judicial position in a foreign country or territory, or who exercises a<br />
public function on behalf of a foreign country or territory, or on behalf<br />
of a public agency/enterprise of a foreign country. The definition includes<br />
officials or agents of a “public international organisation” (e.g.,<br />
the UN).<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act contrary to their duties?<br />
Yes.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act in accordance with their duties?<br />
No, unless the briber knows or believes that the acceptance of the<br />
benefit would itself constitute the improper performance of a relevant<br />
function or activity, e.g., the public official is prohibited from accepting<br />
the offered or promised benefit by their public service law.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to public officials without being held criminally liable?<br />
(e.g., gifts below EUR 100 will not be considered an advantage)<br />
(Geringfügigkeitsgrenze)<br />
No, there is no specific monetary limit expressed in GBP.<br />
Is it a criminal offence to offer gifts or advantages to public officials<br />
even though there is no connection to a specific action or<br />
omission of the public official (e.g., Christmas gifts, etc)?<br />
No, unless the briber knows or believes that the acceptance of the<br />
benefit would itself constitute the improper performance of a relevant<br />
function or activity, e.g., the public official is prohibited from<br />
accepting the offered or promised benefit by their public service law.<br />
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uk (bribery act)<br />
Can the donor of the benefit show active repentance in order to<br />
abandon the offence and go without punishment? (e.g., if they<br />
report themselves to the authorities and prevent the anticipated<br />
act of the official) (Tätige Reue)<br />
Repentance or self-reporting is not per se a defence to a corruption<br />
offence under UK law. However, the UK Serious Fraud Office (SFO)<br />
is encouraging self-reporting. Pursuant to one of its guidelines a<br />
company might be subject to a civil penalty (an agreed civil recovery<br />
order under Part 5 of the Proceeds of Crime Act 2002) rather than<br />
a criminal prosecution if they self-report and cooperate. However,<br />
this is not a guaranteed outcome and the SFO has said that in some<br />
circumstances (e.g. if board directors were involved in the corrupt<br />
conduct) it may prosecute even if a self-report is made. Therefore<br />
although companies are increasingly self-reporting it remains an important<br />
strategic decision to do so, as the consequences are not<br />
guaranteed.<br />
What are the maximum sanctions for bribery in the public sector?<br />
Ten years of imprisonment and/or unlimited monetary fines.<br />
2. Bribery in the private sector<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act contrary to their duties?<br />
Yes.<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act in accordance with their duties?<br />
No, unless the briber knows or believes that the acceptance of the<br />
benefit would itself constitute the improper performance of a relevant<br />
function or activity, e.g., the receiver is prohibited from accepting<br />
the offered or promised benefit by written law, code of conduct<br />
or guidelines.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act contrary<br />
to their duties?<br />
Yes.<br />
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149
uk (bribery act)<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act in accordance<br />
with their duties?<br />
Yes, if the request, agreement or acceptance itself would constitute<br />
the improper performance of a relevant function or activity.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to (i) employees, (ii) agents, or (iii) shareholders/owners<br />
without being held criminally liable? (e.g., gifts below EUR 100<br />
will not be considered an advantage) (Geringfügigkeitsgrenze)<br />
No, there is no specific monetary limit expressed in GBP.<br />
Can the donor of the benefit show active repentance in order<br />
to abandon the offence and go without punishment? (e.g., if he<br />
informs the authorities and prevents the anticipated act of the<br />
bribe receiver) (Tätige Reue)<br />
N/A<br />
What are the maximum sanctions for bribery in the private sector?<br />
Up to ten years of imprisonment and/or unlimited monetary fine.<br />
3. Criminal liability of corporations (Unternehmensstrafrecht)<br />
Can private corporations be held criminally liable for offences<br />
committed by (i) management and (ii) employees?<br />
Yes, both.<br />
Is the criminal liability of the corporation fault-based or a strict<br />
liability offence?<br />
Strict liability, unless the corporation can prove that it had adequate<br />
pre-emptive measures in place.<br />
Is a levy of enrichment (disgorgement) of the corporation’s<br />
profits of the offence possible (e.g., the profit obtained from a<br />
contract, which was won through bribery)? (Verfall)<br />
Yes.<br />
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uk (bribery act)<br />
Can a compliance programme (i) reduce the fine or (ii) permit the<br />
corporation to avoid prosecution/conviction or lead to impunity?<br />
In certain cases, an effective compliance programme can allow a<br />
corporation to avoid prosecution and lead to impunity.<br />
What is the maximum fine which can be imposed on a corporation<br />
for a bribery offence?<br />
Unlimited.<br />
4. Statutes of Limitation (Verjährung)<br />
What is the period of limitation in criminal proceedings for corruption<br />
related offences until the end of investigation or the initiation<br />
of prosecution?<br />
There is no applicable limitation period in criminal proceedings for<br />
corruption offences. However, an excessive delay in investigation/<br />
prosecution might found an argument based on abuse of process.<br />
5. Miscellaneous<br />
Is management obliged to report offences committed within<br />
the corporation to the authorities?<br />
There is no general requirement. However, such a step is recommended<br />
“where appropriate.”<br />
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uk (bribery act)<br />
Summary UK (Bribery Act)<br />
Is it an offence to bribe individuals in connection with<br />
business activities (active or passive commercial bribery)?<br />
Yes.<br />
Is there a monetary limit for commercial bribery of<br />
private individuals?<br />
No.<br />
Is there a monetary limit for active bribery of public<br />
officials expressed in GBP?<br />
No.<br />
Can private corporations be held criminally liable for<br />
offences?<br />
Yes.<br />
What is the maximum fine for corporations for bribery<br />
related offences?<br />
Unlimited.<br />
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usa (fcpa)
usa (fcpa)<br />
1. Bribery in the public sector<br />
Definition of a public official as receiver of gifts and benefits in bribery<br />
related offences<br />
Any officer or employee of (i) a foreign government, any department,<br />
agency, or instrumentality thereof (e.g., state controlled companies),<br />
(ii) a foreign political party or (iii) a public international organisation<br />
(e.g., EU, UN), or any person acting in an official capacity for or on<br />
behalf of the above-mentioned bodies.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act contrary to their duties?<br />
Yes.<br />
Is it an offence to bribe a public official with the intention that<br />
they act or omit to act in accordance with their duties?<br />
Yes (any influencing of the official is prohibited).<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to public officials without being held criminally liable?<br />
(e.g., gifts below EUR 100 will not be considered an advantage)<br />
(Geringfügigkeitsgrenze)<br />
No, there is no specific monetary limit expressed in USD.<br />
Is it a criminal offence to offer gifts or advantages to public officials<br />
even though there is no connection to a specific action or<br />
omission of the public official (e.g., Christmas gifts, etc)?<br />
No.<br />
Can the donor of the benefit show active repentance in order to<br />
abandon the offence and go without punishment? (e.g., if they<br />
report themselves to the authorities and prevent the anticipated<br />
act of the official) (Tätige Reue)<br />
No. However, it would be considered a mitigating factor when determining<br />
the fine of the offender.<br />
What are the maximum sanctions for bribery in the public sector?<br />
Unlimited prison sentence and monetary fines.<br />
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usa (fcpa)<br />
2. Bribery in the private sector<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act contrary to their duties?<br />
No. However, the US authorities construe the term public company<br />
(“instrumentality of a foreign government”) very broadly; if a company<br />
is considered a public body the provisions on public bribery apply.<br />
Active bribery: Is it an offence to bribe (i) employees, (ii) agents,<br />
or (iii) shareholders/owners of private companies with the intention<br />
that they act or omit to act in accordance with their duties?<br />
No.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act contrary<br />
to their duties?<br />
No.<br />
Passive bribery: Is it an offence if (i) employees, (ii) agents, or<br />
(iii) shareholders/owners of private companies accept advantages<br />
in exchange for an act or the omission of an act in accordance<br />
with their duties?<br />
No.<br />
Is there a specific monetary limit up to which a person can offer<br />
gifts to (i) employees, (ii) agents, or (iii) shareholders/owners<br />
without being held criminally liable? (e.g., gifts below EUR 100<br />
will not be considered an advantage) (Geringfügigkeitsgrenze)<br />
No.<br />
Can the donor of the benefit show active repentance in order<br />
to abandon the offence and go without punishment? (e.g., if he<br />
informs the authorities and prevents the anticipated act of the<br />
bribe receiver) (Tätige Reue)<br />
No.<br />
What are the maximum sanctions for bribery in the private sector?<br />
N/A<br />
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157
usa (fcpa)<br />
3. Criminal liability of corporations (Unternehmensstrafrecht)<br />
Can private corporations be held criminally liable for offences<br />
committed by (i) management and (ii) employees?<br />
Yes, both (strict liability).<br />
Is the criminal liability of the corporation fault-based or a strict<br />
liability offence?<br />
Strict liability.<br />
Is a levy of enrichment (disgorgement) of the corporation’s<br />
profits of the offence possible (e.g., the profit obtained from a<br />
contract, which was won through bribery)? (Verfall)<br />
Yes.<br />
Can a compliance programme (i) reduce the fine or (ii) permit the<br />
corporation to avoid prosecution/conviction or lead to impunity?<br />
An effective compliance programme can substantially reduce the<br />
fine.<br />
What is the maximum fine which can be imposed on a corporation<br />
for a bribery offence?<br />
Unlimited.<br />
4. Statutes of Limitation (Verjährung)<br />
What is the period of limitation in criminal proceedings for corruption<br />
related offences until the end of investigation or the initiation<br />
of prosecution?<br />
Five years.<br />
What is the period of limitation in civil proceedings resulting<br />
from criminal offences?<br />
Five years.<br />
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usa (fcpa)<br />
5. Miscellaneous<br />
Is management obliged to report offences committed within<br />
the corporation to the authorities?<br />
No, but such a report would substantially reduce the monetary fine.<br />
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usa (fcpa)<br />
Summary USA (FCPA)<br />
Is it an offence to bribe individuals in connection with<br />
business activities (active or passive commercial bribery)?<br />
No.<br />
Is there a monetary limit for commercial bribery of<br />
private individuals?<br />
N/A<br />
Is there a monetary limit for active bribery of public<br />
officials expressed in USD?<br />
No.<br />
Can private corporations be held criminally liable for<br />
offences?<br />
Yes.<br />
What is the maximum fine for corporations for bribery<br />
related offences?<br />
Unlimited.<br />
160<br />
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usa (fcpa)<br />
www.schoenherr.eu 161
Po<br />
Brussels<br />
Prague<br />
Vienna<br />
Ljubljana<br />
Za
Warsaw<br />
Kyiv<br />
Bratislava<br />
Chisinau<br />
Budapest<br />
greb<br />
Bucharest<br />
Belgrade<br />
Sarajevo<br />
Sofia<br />
dgorica<br />
Skopje<br />
Istanbul<br />
Tirana<br />
Ankara
www.schoenherr.eu
schoenherr white collar crime<br />
Wolfgang Höller > Heidemarie Paulitsch > Klara Jaros > Cepani Jonida > Endrit Mema<br />
> Srđana Petronijević > Anton Andreev > Neven Marić > Matthias Wahl > Dina Vlahov ><br />
Martin Grácz > Natalie Petrovska > Sándor Habóczky > Janos Juhasz > David Adamov<br />
> Endrit Mema > Srđana Petronijević > Andrian Guzun > Srđana Petronijević > Michal<br />
Gruca > Matei Victor Florea > Ionita Bogdan > Mihu Nicolae > Srđana Petronijević ><br />
Vladimir Hrle > Simon Gmiterko > Monika Kormošová > Luka Fabiani > Markus Piuk ><br />
Pavel Grushko<br />
“This compliance and white-collar crime practice was only recently established,<br />
but is already considered a serious player in the field due to its clear focus on the<br />
practice area and dedicated team of experienced lawyers. It acts for companies<br />
damaged by the criminal acts of employees or third parties, as well as those facing<br />
criminal charges. The emphasis lies on prevention and anti-corruption, but the<br />
team is also rated for its prowess in contentious matters.”<br />
Chambers Europe 2011<br />
Austria | Bulgaria | Croatia | CZECH REPUBLIC | EUROPEAN UNION<br />
Hungary | PoLAND | Romania | Serbia | SLOVAKIA | Slovenia | Ukraine