Bribery, influence peddling and private corruption: three offences worth distinguishing

Corruption takes many forms, and Spanish criminal law has developed specific offences for each. Among the most frequent, three stand out that are often confused: bribery, influence peddling and corruption between private individuals. All three involve a perversion of the principles of objectivity and integrity, but each operates in a different context and requires different elements.

Bribery is the most direct form of public corruption: the exchange between the exercise of a public function and an advantage. It is regulated in Articles 419 to 427 bis of the Criminal Code. It is characterised by bilaterality: there is an official who accepts or solicits an advantage and a private individual who offers it. Its essential elements are the status of official or authority of the recipient, the advantage or gift, the link between that advantage and the exercise of the office and, in its most serious form, an act contrary to the duties of the office. Its penalties can reach six years’ imprisonment plus disqualification.

Influence peddling, regulated in Articles 428 to 431, is more sophisticated. There is no direct exchange between advantage and function: there is a person who exerts influence over an official, taking advantage of their personal or hierarchical relationship, to obtain a decision that benefits them or a third party. It may be exercised by an official over another official, or by a private individual over an official taking advantage of any relationship. An important peculiarity is that it punishes both the person who actually has influence and the person who pretends to have it without it being real.

Corruption between private individuals, regulated in Article 286 bis and introduced in 2010, operates in the private sphere, without the intervention of officials. It occurs when a manager or employee of a company solicits or accepts a benefit to favour another in their business relationships, without the knowledge and authorisation of their own company. Its penalties are six months to four years’ imprisonment plus disqualification from management positions.

The key differences are three. The subject: bribery is committed by officials and private individuals; influence peddling, by both, but always influencing a public decision; corruption between private individuals, exclusively by persons in the private sphere. The mechanism: in bribery the corruption is direct; in influence peddling, mediated; in private corruption, it operates within the company. And the legal interest: bribery and influence peddling protect the proper functioning of the Administration; corruption between private individuals, fair competition and the employee’s loyalty to their company.

It is worth knowing that these offences may concur in the same case: a manager who gives advantages to an official to obtain public contracts may simultaneously commit active bribery and corruption between private individuals, and the accumulation of offences may greatly increase the sentence.

Defence strategies focus on questioning whether the elements of the offence are present: in bribery, the link between the advantage and the function or the substance of the gift; in influence peddling, the real existence of the influence or of the economic benefit; and in corruption between private individuals, whether the advantage was known and authorised by the company.