COHECHO

The crime of bribery is regulated in arts. 419 to 427 bis of the Penal Code and are intended to prevent private interests from influencing the exercise of public functions, thus guaranteeing the impartiality of the Administration.

Passive bribery

On the one hand, Article 419 of the Penal Code punishes the authority or public official who receives or requests a favor or retribution or accepts its offer to perform in the exercise of his office an act contrary to his duties or to omit or delay an act that he has the duty to perform. This behavior carries a prison sentence of 3 to 6 years, a fine of 12 to 24 months, and special disqualification from public employment or office and from the exercise of the right to passive suffrage for a period of 9 to 12 years.

For example, a policeman who charges 300 euros in exchange for not reporting a traffic violation of which he has become aware in the exercise of his duties commits a crime of passive bribery. We are dealing with a crime of mere activity that is consummated with the solicitation or acceptance of the remuneration, without it being necessary for the other party to accept the solicitation or offer.

On the other hand, Article 420 of the Penal Code punishes, with a lesser penalty (imprisonment of 2 to 4 years, a fine of 12 to 24 months and special disqualification for public employment or office and for the exercise of the right to passive suffrage for a period of 5 to 9 years), the authority or public official who receives or requests a retribution or favor or accepts its offer to perform an act proper to his office. This behavior is called improper passive bribery, because the behavior performed by the official or authority in exchange for retribution is an act proper to the position, an act that in itself is not illegal.

One of the most problematic cases is the acceptance of courtesy gifts by officials and authorities. In this regard, the Supreme Court has admitted the possibility of not considering the acceptance of courtesy gifts as a crime, as long as it is a socially appropriate conduct, which must be assessed on a case-by-case basis.

Finally, art. 421 of the Penal Code punishes the authority or public official who accepts a retribution or favor as a reward for having performed any of the previously described conducts (i.e., both for having performed an act proper to his office and an act contrary to the duties that such office entails). In these cases, which are known as subsequent passive bribery, the official receives or requests the retribution or gift after the decision has been taken, and they carry a penalty of imprisonment from 6 months to 1 year and suspension from public employment and office from 1 to 3 years.

Active bribery

The Penal Code also punishes the private individual who offers or delivers retribution or gift to an authority or public official to perform an act contrary to the duties of his office or an act proper to his office, to omit or delay the act that he has the duty to perform or in attention to his office or function. The penalties of imprisonment and fine to be imposed are the same as those applicable to the corrupt authority, official or person.

The same penalties apply to the private individual who delivers the retribution in response to the request of the authority or public official.

In addition, if the action intended by the authority or official is related to a contracting procedure, subsidies or auctions called by public administrations, the individual or the company he/she represents will be sanctioned with the penalty of disqualification from obtaining public subsidies and aid, from contracting with public bodies and from enjoying tax and Social Security benefits for a period of 5 to 10 years.

Sentence reduction

The penalty to be imposed is lesser, imprisonment from 6 months to 1 year, if the bribery is carried out in a criminal case in favor of the defendant by his close relatives (art. 425 of the Criminal Code).

Penalty waiver

Finally, art. 426 provides for exemption from punishment for the individual who, having occasionally acceded to the request for a gift or retribution made by an authority or public official, reports the fact to the authority having the duty to investigate it, provided that no more than 2 months have elapsed since the date of the facts. This exemption from penalty is only applicable in cases where it is the authority or official who requests the payment or gift and the individual agrees to such request, but not when the individual, on his own initiative, delivers or offers the payment to the authority or official.

Criminal liability of legal persons

Article 427 bis of the Penal Code allows for the criminal sanctioning of legal persons for the commission of a bribery offense, in which case the following penalties shall be imposed:

1. A fine of 2 to 5 years or three to five times the profit obtained, if the crime committed by the natural person is punishable by imprisonment for more than 5 years.
2. A fine of 1 to 3 years or double to quadruple the benefit obtained, if the offense committed by the natural person is punishable by imprisonment for a term of 2 to 5 years.
3. Fine of 6 months to 2 years or double to triple the profit obtained, in all other cases.

Likewise, the Judge may impose penalties of dissolution, suspension of activities, closure of premises, prohibition to carry out activities in the future, special disqualification to obtain subsidies and public aid and judicial intervention.