Accusation of bribery: what the offence of bribery is and how to defend yourself

Bribery (cohecho), known in everyday language as a bribe, is one of the most direct and prosecuted forms of corruption. It affects two parties: the official or authority who accepts or solicits an advantage in exchange for the exercise of their functions, and whoever offers or gives that advantage to obtain a benefit. What makes it especially delicate is that it can reach both public officials and private individuals, and that even conduct that appears to be acts of courtesy can be interpreted as bribery in the wrong context.

Bribery is a corruption offence that affects the proper functioning of the Administration and citizens’ confidence that officials’ decisions are taken according to criteria of objectivity and legality. The Criminal Code regulates it in Articles 419 to 427 bis. Its basic structure always involves two parties: the official who accepts or solicits the advantage and the private individual who offers or gives it; both commit an offence, although their criminal treatment may differ.

There are several forms. Improper passive bribery, the most serious, occurs when the official solicits or accepts advantages in exchange for an act contrary to their duties, such as an illegal or arbitrary decision. Proper passive bribery occurs when the official accepts an advantage in exchange for an act that falls within their competences and is legitimate, but which they perform because they are paid. Passive bribery by the official’s request applies when it is the official themselves who requests the advantage. Active bribery is that committed by the private individual who offers or gives the advantage. And, since the 2010 reform, there is also private-sector bribery, regulated in Article 286 bis, which punishes similar conduct in the business sphere.

An important element is that the advantage does not have to be cash: any benefit that the official would not have obtained in the normal exercise of their functions may be relevant, such as valuable gifts, invitations, trips or a job for a relative. That breadth means that the line between courtesy and bribery is not always clear.

The penalties are severe. For improper passive bribery they can reach six years’ imprisonment, plus special disqualification from public employment or office of nine to twelve years. In addition, judges may order a fine, the confiscation of the assets obtained and the prohibition from contracting with the Public Administrations. For active bribery, the penalties are usually lower, except when the initiative came from the private individual.

The accused retains all their procedural rights. The right to silence is especially important in these investigations, which are prolonged and gather evidence gradually. The most frequent lines of defence are to question the causal link between the advantage and the exercise of the functions, to establish that the advantage did not exceed the thresholds of usual courtesy, or to argue that the official’s action was regulated and not discretionary, so that there was no function on which the payment could influence.

It is worth knowing that the Criminal Code provides for a reduction of penalty for those who collaborate with the investigation by providing evidence about other responsible parties, and that Article 426 establishes the exemption from penalty for the private individual who paid the bribe as a result of a request by the official, provided that they report it within the ten days following the events.