Inflicting Punishment for Bribery in the Context of Criminal Policy
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Abstract
The article offers the analysis of inflicting punishment for bribery. Problems related to the punishment are topical issues; however, they are given little attention in the criminal law theory. The problem of the punishment for bribery assumed a new character after the new Criminal Code had entered into force on 1st of May 2003.
The new Criminal Code (further – CC) bears a different approach to the problems of punishment by foreseeing a new system of criminal punishments, as well as a system of measures of criminal action. Bribery crimes take a small part in the context of the overall criminality; however, as an element of corruption, they have a big impact on the social sphere by damaging public and private interests of the society. Accordingly, a lawmaker is faced with a challenge to draft appropriate measures of criminal effect. As a result, both the corpuses, bribery crimes and sanctions for them have changed substantially in the Criminal Code during the reform. Accordingly, the court practice should follow the changes thus offering a new criminal policy in this field.
The author raises the following issues related to the punishment of bribery: available modern trends in the penalization arena and their determinant factors; to what extent the sanctions provided for in the Criminal Code meet the social damage caused and danger of the crimes indicated; how the Criminal Code provisions are implemented in the everyday court practice. The article does not deal with the sanctions related to legal persons.
While analyzing the structure of the CC sanctions for the last decade, an increasing scale of differentiation becomes evident, as well as the fact that punishments are becoming milder. Although these trends are not always unambiguous, it should be stated that the lawmaker is eager to empower courts to inflict less severe punishment.
The reform changes in the CC of the last four years were without doubt determined by the requirements to harmonize Lithuanian legal regulations with the regulations of the European Union. In 1999, Lithuania signed the EU Criminal Law Convention on Corruption, thus undertaking the responsibility to approximate the national law with provisions of the Convention. The Convention was ratified by the Seimas of the Republic of Lithuania, but the changes to the Criminal Code had been made beforehand. The Convention does not provide for specific punishments for bribery, however, the Article 19 stated that „each Party shall provide, in respect of those criminal offences (...) effective, proportionate and dissuasive sanctions and measures, including, when committed by natural persons, penalties involving deprivation of liberty which can give rise to extradition. (…)”, as well as, „adopt such legislative and other measures as may be necessary to enable it to confiscate or otherwise deprive the instrumentalities and proceeds of criminal offences established in accordance with this Convention, or property the value of which corresponds to such proceeds”.
The author presents a scientific study of 34 criminal cases of bribery and judgments given by different courts in Lithuania during 1995-2002. The cases were examined according to the provisions of the Criminal Code of 1961. The analysis leads to the following results: the imprisonment was imposed in 19 cases (56%), correctional works without imprisonment - in 7 cases (21%), a fine, as a major punishment, – 8 cases (23%). Milder punishment (Article 45 of the CC) than prescribed by the law was administered in 6 cases (18%).
The changes in the CC go well with the results of the empirical research stating that courts impose imprisonment only in well-justified cases and as a last instance measure. Still, a very sensitive issue is a problem of property confiscation. The author supports the opinion that this measure of criminal action should have a wider application. It should be noticed, however, that some of the novelties in the CC do not meet the requirements and, therefore, are inadequate, e.g., inflicting a mere punishment of deprivation of the right to hold a certain position in the public service, which alone could not have a proper impact on the offender.
The new Criminal Code (further – CC) bears a different approach to the problems of punishment by foreseeing a new system of criminal punishments, as well as a system of measures of criminal action. Bribery crimes take a small part in the context of the overall criminality; however, as an element of corruption, they have a big impact on the social sphere by damaging public and private interests of the society. Accordingly, a lawmaker is faced with a challenge to draft appropriate measures of criminal effect. As a result, both the corpuses, bribery crimes and sanctions for them have changed substantially in the Criminal Code during the reform. Accordingly, the court practice should follow the changes thus offering a new criminal policy in this field.
The author raises the following issues related to the punishment of bribery: available modern trends in the penalization arena and their determinant factors; to what extent the sanctions provided for in the Criminal Code meet the social damage caused and danger of the crimes indicated; how the Criminal Code provisions are implemented in the everyday court practice. The article does not deal with the sanctions related to legal persons.
While analyzing the structure of the CC sanctions for the last decade, an increasing scale of differentiation becomes evident, as well as the fact that punishments are becoming milder. Although these trends are not always unambiguous, it should be stated that the lawmaker is eager to empower courts to inflict less severe punishment.
The reform changes in the CC of the last four years were without doubt determined by the requirements to harmonize Lithuanian legal regulations with the regulations of the European Union. In 1999, Lithuania signed the EU Criminal Law Convention on Corruption, thus undertaking the responsibility to approximate the national law with provisions of the Convention. The Convention was ratified by the Seimas of the Republic of Lithuania, but the changes to the Criminal Code had been made beforehand. The Convention does not provide for specific punishments for bribery, however, the Article 19 stated that „each Party shall provide, in respect of those criminal offences (...) effective, proportionate and dissuasive sanctions and measures, including, when committed by natural persons, penalties involving deprivation of liberty which can give rise to extradition. (…)”, as well as, „adopt such legislative and other measures as may be necessary to enable it to confiscate or otherwise deprive the instrumentalities and proceeds of criminal offences established in accordance with this Convention, or property the value of which corresponds to such proceeds”.
The author presents a scientific study of 34 criminal cases of bribery and judgments given by different courts in Lithuania during 1995-2002. The cases were examined according to the provisions of the Criminal Code of 1961. The analysis leads to the following results: the imprisonment was imposed in 19 cases (56%), correctional works without imprisonment - in 7 cases (21%), a fine, as a major punishment, – 8 cases (23%). Milder punishment (Article 45 of the CC) than prescribed by the law was administered in 6 cases (18%).
The changes in the CC go well with the results of the empirical research stating that courts impose imprisonment only in well-justified cases and as a last instance measure. Still, a very sensitive issue is a problem of property confiscation. The author supports the opinion that this measure of criminal action should have a wider application. It should be noticed, however, that some of the novelties in the CC do not meet the requirements and, therefore, are inadequate, e.g., inflicting a mere punishment of deprivation of the right to hold a certain position in the public service, which alone could not have a proper impact on the offender.
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Please see Copyright and Licence Agreement for further details.
