Bribery: Definition, Nature, and Types in Criminal Law

Bribery: Definition, Nature, and Types

1. Concept

Bribery can be defined as soliciting or receiving a benefit for oneself or a third party, gifts, presents, or offers made by an authority, public officer, juror, arbitrator, expert, or any other person involved in the exercise of public functions, with the aim of inducing a wrongful act in the exercise of their office. This act may or may not be a crime and may not even be legally prohibited.

2. Nature

There is discussion in legal doctrine about whether bribery is a bilateral crime or two separate offenses. In this sense, Luzón Cuesta states that although case law has sometimes considered it a crime of bilateral nature (STS 19 September 1986), requiring a pactum sceleris between the two persons involved, it should be considered a unilateral offense. Each individual is responsible for their own crime (active or passive bribery), but the rules applicable to criminal partnerships apply. Thus, the crime of bribery is configured as a simple formal activity, and it is not required for its consummation that the Administration be affected by the illegal activities. The mere request, receipt, or acceptance of the gift, present, promise, or offer is sufficient to fulfill the elements of the crime, although the time of completion will vary depending on the specific circumstances.

3. Classes

Passive Bribery

Within passive bribery, a distinction can be made between proper and improper bribery. Proper bribery is regulated in articles 419 to 421 of the Criminal Code (CP), and may also include the first case of paragraph 1 of article 425. The most serious case is governed by article 419, which punishes the authority or official who, for themselves or a third party, requests or receives, either directly or through intermediaries, a gift or present, or accepts an offer or promise to perform in the exercise of their office an act or omission constituting a crime. It should be emphasized that the act need not necessarily be an offense against public administration; it only needs to be a criminal activity in the exercise of office.

On the other hand, legal doctrine discusses whether the gift, present, or promise must have an economic aspect. Rodriguez Mourullo understands that the answer must necessarily be affirmative, as conduct without financial content could be redirected to other types of crimes, such as influence peddling. Consummation occurs with the simple request, even if the recipient does not accept it.

Article 420, in turn, regulates an attenuated form of passive bribery related to an unjust act not constituting a crime. The basis for the penalty depends on whether or not this unjust act is executed. An "unjust act" must be understood as "any action that is contrary to law, including administrative offenses and civil offenses in their broadest sense" (STS 709/94 of 28 March). An even more attenuated form is presented in article 421, which criminalizes negligent conduct, namely, refraining from an act that should be performed in the exercise of their office. In any case, the omission cannot constitute a crime, thus excluding obligations arising from criminal law.

Passive bribery must also be understood in reference to article 425.1, first paragraph, which punishes conduct aimed at performing an act proper to one's office. Luzón understands that this is a residual type for articles 419 and 420, and not easily differentiated.

Improper Passive Bribery

The second form of passive bribery, improper bribery, is regulated in article 425, second paragraph of paragraphs 1 and 2, as well as in article 426 of the CP. Under this latter provision, it is noteworthy that the typical behavior is to accept gifts or presents offered in consideration of one's function or for the achievement of an act that is not legally prohibited. The reference in article 425 must be understood as not leaving unpunished the milder forms of bribery, "performed as a reward for" an act, with an aggravated sentence in paragraph 2 if the act was criminal.