The Czech Government recently submitted a proposal to amend the Czech Penal Code (the "PC") and the Code of Criminal Procedure (the "CCP") in respect of, among others[1], the non-prosecution of bribery under certain circumstances. The proposal[2] was adopted within a month and will come into effect on 1 July 2016 (the "Amendment").
This article summarises the purpose and scope of the part of the Amendment pertaining to the non-prosecution of bribery.
Purpose
The purpose of the Amendment is to strengthen the motivation for offenders to report bribery[3].
Under the current legislation, active[4] and passive corruption[5] are both punishable, so offenders are not motivated to report such behaviour to law enforcement authorities. The Amendment should make up for the fact that the PC so far lacks any special effective remorse provision (in Czech: účinná lítost) for bribery and indirect corruption[6]. Offenders naturally have little reason to report their behaviour and to cooperate with law enforcement authorities, especially when someone else has asked or compelled them to commit bribery.
The Amendment should serve as a significant instrument in more effectively pursuing offenders of corruption, and dealing with corruption as a whole.
How it works
The Amendment allows for a diversion from the ordinary course in criminal proceedings. The police will decide on temporary deferral of criminal prosecution of a suspect under the following conditions:
- the suspect has made or promised to make a bribe only on request of another person (ie not voluntarily, at its sole discretion)
- the suspect reports the bribery to the police or the public prosecutor voluntarily without undue delay;
- the suspect reports all the facts that he knows about the criminal activities of the person who requested the bribe from him, to the police; and
- the suspect undertakes to testify in the preparation proceedings as well as before the court.
If the suspect fulfils his commitment to cooperate with the authorities, the public prosecutor can decide not to prosecute him. This means that if the suspect cooperates with law enforcement authorities, he will not be prosecuted, a final decision will be reached (shortening and simplifying the procedure) and in these cases, the suspect will have guaranteed impunity.
On the other hand, if the suspect does not fulfil his commitment to cooperate, the public prosecutor will decide on non-fulfilment of his commitments and criminal prosecution will be initiated against the suspect.
Summary
The promise of impunity under the Amendment should motivate offenders to report bribery in cases where someone else asked them to commit a bribe. Offenders who cooperate with the authorities will not be prosecuted and will have guaranteed impunity. This Amendment should serve as a significant instrument in more effectively pursuing offenders of corruption, and dealing with corruption as a whole.
Footnotes
[1] The other areas that have been modified are the limitation of criminal immunity of Members of Parliament, senators and Constitutional Court judges and the criminalisation of the preparation for a crime of Reduction of Taxes, Fees and other Similar Mandatory Payments.
[2] Act No. 163/2006 Coll.
[3] Sec. 332 of the Penal Code: Bribery is the provision, offering or promising of a bribe for another person in connection with the procurement of goods of general interest, or the provision, offering or promising of a bribe to another person in connection with their own or another's business.
[4] Meaning the provision of an unsolicited bribe.
[5] Meaning the provision of a solicited bribe.
[6] Sec. 333 of the Penal Code: Indirect bribery is the requesting, acceptance of the promise of or acceptance of a bribe, in order to gain influence over a public official or through a third party, or when they have already done so.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
