Answer ... As a matter of principle, reporting oneself or someone else to the authorities has no automatic impact on the penalty applied by a court down the road. There is no legal provision that specifically provides for leniency as a result of self-reporting to, or cooperation with, the authorities in corruption cases. However, the courts may take any factor they consider relevant into consideration to mitigate the sentence they impose on the defendant. Hence, although not guaranteed, courts may be inclined in practice to exercise greater leniency with cooperative and constructive defendants.
Answer ... See question 4.1 – demonstrating that an anti-corruption compliance programme is in place may support the argument that a company had no criminal intent to engage in a corruption scheme.
Answer ... At trial, the defence will generally argue that the constitutive elements of the criminal offence are not proven.
In addition, as a second line of defence, any circumstance of fact may be raised by a defendant to put forward mitigating factors, such as a clean criminal record, a sound compliance programme and a constructive approach (including self-reporting or cooperation). Exonerating circumstances, such as bona fide ignorance or error, are rarely accepted by the courts.
Answer ... Yes – both companies and individuals can negotiate and enter into a (pre-)trial plea bargaining or criminal settlement further to corruption charges.
However, the plea bargaining regime is little in practice although it has been an established feature of criminal procedure since 2016. This is due to a lack of interest of prosecutors in this mechanism, among other things.
Please see question 6 for further developments regarding (pre-)trial criminal settlements.
Answer ... In case of conviction for public corruption:
- individuals: imprisonment for between six months and 15 years and a fine of €800 to €800,000;
- companies: a fine of €24,000 to €1.6 million.
Where the corrupt person is a foreign public official or a member of an international public organisation, the above fines can be multiplied by five, and can hence reach up to €4 million for individuals and €8 million for companies.
In case of conviction for private corruption:
- individuals: imprisonment for between six months and three years and a fine of €800 to €400,000; and
- companies: a fine of €24,000 to €800,000.
The conviction of an offender for private or public corruption also includes:
- the confiscation (forfeiture) of the property constituting the object or instrumentalities of the offence where this belongs to the convicted person (mandatory);
- the product of the offence (mandatory); and
- the direct or indirect (gross) proceeds derived from the offence (discretionary).
In addition, the court may order ancillary penalties in case of conviction for public or private corruption, including:
- an exclusion from public procurement (which is mandatory and applies for a period of five years);
- a prohibition against exercising certain functions, activities or professions (eg, director of a company for three to 10 years);
- revocation of rights (eg, the right to hold a public function or eligibility for five to 10 years); and/or
- winding up of the company, but only where the company was purposely created to carry out the corruption offences or where its object was purposely diverted to carry out such offences.
Answer ... The statute of limitations generally applicable to corruption cases is five years. However, due to suspension and interruption rules, the limitation period can be extended in practice to a maximum of 10 years (although exceptions may apply).
The limitation period starts to run after the criminal conduct has ended. In cases where criminal conduct involves corruption acts and other criminal offences united by the same criminal intent, the case will be time barred when the limitation period relating to the last criminal act expires. This can result in certain corruption cases not being time barred before much longer than five or 10 years after the corruption acts. For instance, where corruption acts are mingled with acts of forgery and use of forged documents, the limitation period applicable to the criminal conduct as a whole starts to run only when the forged documents (eg, contracts, invoices, financial statements) cease to be used.