Fighting Transnational Bribery in Croatia

Annex B. Excerpts of relevant legislation

Criminal Act

Chapter VII Meaning of terms in this law

Article 87

(3) An official is a state official or civil servant, an official or clerk in a unit of local and regional self-government, a holder of judicial office, a lay judge, a member of the State Judicial Council or the State Attorney's Council, an arbitrator, a notary public and a professional worker performing tasks of social work, education and training activities. An official is also a person who in the European Union, a foreign state, an international organisation of which the Republic of Croatia is a member, an international court or arbitration tribunal whose jurisdiction the Republic of Croatia accepts, performs duties entrusted to persons referred to in the previous sentence.

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(6) A responsible person is a natural person who manages the affairs of a legal person or is explicitly or actually entrusted with the performance of activities in the field of activity of a legal person or state bodies or bodies of a local and regional self-government unit.

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(22) The property gain from a criminal offence shall be deemed to be the direct property gain from a criminal offence, the assets into which the property gain has been changed or converted, as well as any other proceeds of direct proceeds of crime or property in which has changed or converted the direct property gain from the criminal offence, regardless of whether it is located in the territory of the Republic of Croatia or outside it.

(23) Property is considered to be property of any kind, regardless of whether it is tangible or intangible, movable or immovable, or legal documents or instruments proving the right to or interest in such property.

(24) A bribe is any undue reward, gift or other property or non-property benefit, regardless of value.

Article 294 - Giving bribes

(1) Whoever offers, gives or promises a bribe intended to that or another person to an official or responsible person to perform within or outside the limits of his authority an official or other action which he should not perform or not to perform an official or other action which he should perform, or whoever mediates in such bribery of an official or responsible person shall be punished by imprisonment for a term between one and eight years.

(2) Whoever offers, gives or promises a bribe intended to that or another person to an official or responsible person to perform an official or other action that he should perform, or not to perform an official or other action that he should not perform, within or outside the limits of his authority, or whoever mediates in such bribery of an official or responsible person shall be punished by imprisonment for a term between six months and five years.

(3) The perpetrator of the criminal offence referred to in paragraphs 1 and 2 of this Article who gave a bribe at the request of an official or responsible person and reported the offence before its discovery or before learning that the offence was discovered, may be released from punishment.

Article 296 - Giving bribes for trading in influence

(1) Whoever offers, promises or gives to another a bribe, intended for that or another person, to use his official or social position or influence to mediate the performance of an official or other action that should not be performed or not to perform an official or other action which should be performed shall be punished by imprisonment from one to eight years.

(2) Whoever offers, promises or gives to another a bribe, intended for that or another person, to use his official or social position or influence to mediate the performance of an official or other action that should be performed, or not to perform an official or other action which should not be performed shall be punished by imprisonment for a term between six months and five years.

(3) The perpetrator of the criminal offence referred to in paragraphs 1 and 2 of this Article who gave a bribe at the request of the person referred to in Article 295 of this Act and reported the offence before its discovery or before learning that the offence was discovered, may be released from punishment.

Provisions on sanctions and confiscation in the Criminal Act

Article 5

No one may retain the proceeds of an illegal act.

Article 40 - Types of penalties

1. Penalties are a fine, imprisonment and long-term imprisonment.

2. A fine may be imposed as a principal and as an ancillary penalty.

3. Imprisonment and long-term imprisonment may be imposed only as principal punishments.

4. When the law prescribes a prison sentence of up to three years for a certain criminal offence, the court may impose a fine as the main punishment.

5. For criminal offences committed out of greed, a fine may be imposed as an ancillary punishment even when it is not prescribed by law or when the law prescribes that the perpetrator shall be punished by imprisonment or a fine, and the court shall impose imprisonment as the main punishment.

6. Work for the common good shall be pronounced as a substitute for imprisonment or a fine.

Article 42 - Monetary fine

1. A fine shall be imposed in daily units. It may not be less than thirty or more than three hundred and sixty daily units, except for criminal offences committed out of greed, when up to five hundred daily units may be imposed or when a fine of five hundred daily units is expressly prescribed by this Act.

2. The judgment shall indicate the number of daily units and the amount of the daily amount and their product.

3. The number of daily units shall be determined on the basis of the circumstances specified in Article 47 of this Act, except for those relating to the property circumstances of the perpetrator.

4. The amount of the daily unit shall be determined taking into account the perpetrator's income and property and the average expenses necessary for the maintenance of the perpetrator and his family. The daily amount cannot be less than twenty kunas or more than ten thousand kunas.

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Article 47 - Sentencing

1. When choosing the type and measure of punishment, the court shall, starting from the degree of guilt and the purpose of punishment, assess all circumstances that affect the punishment by type and measure to be lighter or heavier (mitigating and aggravating circumstances), and especially the severity of endangerment or violation of a legally protected good, the motives for the crime, the degree of violation of the perpetrator's duties, the manner of commission and the consequences of the crime, the perpetrator's previous life, his personal and financial circumstances and his behaviour after the crime, the relationship with the victim and the efforts to compensate.

2. The amount of the penalty may not exceed the degree of guilt.

Article 48 - Mitigation of punishment

1. The court may impose a sentence less severe than that prescribed for a certain criminal offence when the law explicitly prescribes it.

2. The court may also impose a milder punishment than prescribed for a certain criminal offence when there are special mitigating circumstances, especially if the perpetrator reconciled with the victim, if he fully or largely compensated the damage caused by the criminal offence or seriously tried to compensate that damage, and the purpose of punishment can be achieved by such a milder punishment.

3. The court may also impose a milder sentence than prescribed for a certain criminal offence when the state attorney and the defendant have agreed on it.

Article 50 - Exemption from punishment

1. The court may release the perpetrator from punishment:

a. where such authority is based on an express statutory provision,

b. when the consequences of a criminal offence committed through negligence affect him so severely that his punishment is unnecessary in order to achieve the purpose of punishment,

c. when the perpetrator sought to eliminate or reduce the consequences of the criminal offence committed through negligence and compensated for the damage caused by it,

d. when the perpetrator of the criminal offence for which only a fine or imprisonment of up to one year is prescribed has reconciled with the victim and compensated the damage.

2. When the court is authorized to release the perpetrator from punishment, it may also punish him more leniently, whereby it is not obliged to adhere to the limits prescribed in Article 49, paragraph 1 of this Act.

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Article 77 – Conditions and manners of confiscation of the property gain

1. The property gain shall be confiscated by a court decision which has determined that an illegal action has been committed. Property gain will also be forfeited from the person to whom it is transferred if it is not acquired in good faith.

2. If the injured party has been awarded a property claim which, by its nature and content, corresponds to the obtained property gain, the part of the property gain that exceeds the awarded property claim shall be confiscated.

3. The court shall also confiscate the pecuniary benefit if it instructs the injured party that he may realize the property claim in litigation.

4. When it is determined that it is impossible to confiscate things or rights realized as property gain in whole or in part, the court shall order the perpetrator to pay the appropriate equivalent in the amount of money. Payment can be determined in instalments.

5. Confiscated property gain shall not be reduced by the amount of funds invested in criminal activity.

6. The court may decide that the property gain shall not be confiscated if it is insignificant.

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Article 79 – Confiscation of items

1. Objects and assets created by the commission of a criminal offence shall be confiscated.

2. Objects and means that were intended or used for the commission of a criminal offence may be confiscated by the court.

3. The objects and means referred to in paragraphs 1 and 2 of this Article may also be confiscated by the court when the perpetrator of the unlawful act is not guilty.

4. Confiscated items and assets shall become the property of the Republic of Croatia. This does not affect the right of third parties to compensation from the perpetrator for the seized object or asset. The owner of a seized object or asset who is not the perpetrator has the right to return the object and asset or compensation of their market value from the state budget, unless he has at least through negligence contributed to the object or asset intended or used to commit a criminal offence, or if he has acquired the object or means knowing of the circumstances which enable its confiscation.

5. When the confiscation of an object or means is prescribed by law for a certain criminal offence, the owner shall not be entitled to compensation from the state budget, unless otherwise determined by a special law.

6. The court may order the destruction of the seized object or means.

Act on the Responsibility of Legal Persons for Criminal Offences

I. Basic provisions

Article 1

1. This Act determines the preconditions of liability, penalties, security measures, confiscation of property gain, confiscation of objects, public announcement of a judgment, statute of limitations and criminal proceedings for criminal offences of legal persons.

2. Legal persons within the meaning of this Act are also foreign persons who are considered legal persons under Croatian law.

Article 1a

This Act contains provisions that are in line with the following acts of the European Union:

• Council Framework Decision 2005/667 JHA, of 12 June 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution (OJ L 255, 30. 9. 2005)

• Second Protocol of 19 June 1997, which was adopted on the basis of Article K.3 of the Treaty on European Union, to the Convention on the protection of the European Communities' financial interests (OJ C 221, 19. 7. 1997, p. 12).

Article 2 - Application of criminal law

Unless otherwise prescribed by this Act, the provisions of the Criminal Act, the Criminal Procedure Act and the Act on the Office for the Suppression of Corruption and Organized Crime shall apply to legal persons.

II. Conditions of liability

Article 3 - The basis of liability of legal persons

1. A legal person shall be punished for the criminal offence of a responsible person if it violates a duty of a legal person or with which the legal person has achieved or should have achieved an illegal property gain for itself or another.

2. Under the conditions referred to in paragraph 1 of this Article, a legal person shall be punished for criminal offences prescribed by the Criminal Act and other laws in which criminal offences are prescribed.

Article 4 - Responsible person

The responsible person in the sense of this Act is a natural person who manages the affairs of a legal person or is entrusted with the performance of activities in the field of activity of a legal person.

Article 5 – Attributing the fault of the responsible person to the legal person

1. The liability of a legal person shall be based on the fault of the responsible person.

2. A legal person shall also be punished for the criminal offence of a responsible person even in the case when the existence of legal or actual obstacles to determining the responsibility of the responsible person is established.

Article 6 - Exclusion and limitation of liability of legal persons

1. The Republic of Croatia, as a legal person, may not be punished for a criminal offence.

2. Units of local and regional self-government can be punished only for crimes that were not committed in the exercise of public authority.

Article 7 - Liability in case of change of legal person status

1. If a legal person ceases to exist before the criminal proceedings have ended, fines, security measures, public announcement of the judgment, confiscation of property gain and confiscation of items may be imposed on the legal person that is its general legal successor.

2. if a legal person ceases to exist after the final completion of the criminal proceedings, fines, security measures, public announcement of the judgment, confiscation of property gain and confiscation of items shall be executed in accordance with paragraph 1 of this Article.

3. A legal person in bankruptcy shall be punished for criminal offences committed before initiation or during the bankruptcy proceedings.

III. Penalties

Article 8 - Types of penalties

Penalties are a fine and termination of the legal person.

Article 9

Deleted.

Article 10 - Amount of the fine

1. If a fine or imprisonment with a special maximum term of one year is prescribed for a criminal offence, a legal person may be fined from HRK 5 000.00 to 8 000 000.00.

2. If the criminal offence is punishable by imprisonment with a special maximum term of five years, a legal person may be fined from HRK 15 000.00 to 10 000 000.00.

3. If the criminal offence is punishable by imprisonment with a special maximum termof ten years, the legal person may be fined from HRK 30 000.00 to HRK 12 000 000.00.

4. If the criminal offence is punishable by imprisonment with a special maximum term of fifteen years or a heavier sentence, the legal person may be fined from HRK 50 000.00 to HRK 15 000 000.00.

Article 10a - Execution of fines

If the legal person does not pay the fine within the specified period, the fine will be enforced.

Article 11 - Imposition of a fine for concurring criminal offences

If the court has imposed fines on a legal person for two or more concurring criminal offences, the single fine may not exceed the sum of the individual fines or the maximum legal measure of the fine.

Article 12 – Termination of a legal person

1. The penalty of termination of a legal person may be imposed if the legal person was established for the purpose of committing criminal offences or has used its activity predominantly to commit criminal offences.

2. The penalty of termination of a legal person may not be imposed on local and regional self-government units and political parties.

3. In addition to the penalty of termination of a legal person, the court may also impose a fine.

4. After the judgment on the termination of a legal person becomes final, the liquidation of the legal person shall be carried out.

Article 12a - Exemption from punishment

A legal person who reported the criminal offence of a responsible person before its discovery or before learning that the offence has been discovered, may be released from punishment.

Article 13 - Probation

1. The court may pronounce a suspended sentence on the legal person instead of a fine and simultaneously determine that the fine shall not be collected if the legal person does not commit another criminal offence within the time specified by the court, which may not be shorter than one or longer than three years.

2. A suspended sentence may be imposed for criminal offences for which the court has sentenced a legal person to a fine of less than HRK 50,000.00.

3. A partial suspended sentence may not be applied to a legal person.

Article 14

Deleted.

III.a Security measures

Article 15 - Types of security measures

Apart from other penalties the court may impose one or more of the following security measures on the legal person: ban on performing certain activities or jobs, ban on obtaining licenses, authorizations, concessions or subsidies, ban on business with state and local budgets, and forfeiture.

Article 16 - Prohibition to perform certain activities or jobs

1. The prohibition of performing certain activities or jobs may be imposed in respect of one or more activities or jobs in the performance of which the offence was committed.

2. The court may impose a ban on performing certain activities or jobs on a legal person for a period of one to three years, counting from the finality of the judgment if further performance of certain activities or jobs would be dangerous to life, health or safety of people or property, or the economy, or if the legal person has already been convicted of the same or a similar criminal offence.

3. A ban on performing certain activities or jobs may not be imposed on local and regional self-government units and political parties.

Article 17 - Prohibition to obtain permits, authorizations, concessions or subsidies

1. The court may impose a ban on the acquisition of permits, authorizations, concessions or subsidies issued by state bodies or units of local and regional self-government to a legal person if there is a danger that such acquisition of permits, authorizations, concessions or subsidies could have an incentive effect on the commission of a new criminal offence.

2. The security measure referred to in paragraph 1 of this Article shall be pronounced for a period of one to three years, counting from the finality of the court judgment.

Article 18 – Prohibition from doing business with users of state and local budgets

1. A ban on doing business with users of the state and local budgets may be imposed on a legal person if there is a danger that such business could have an incentive effect on the commission of a new criminal offence.

2. The security measure referred to in paragraph 1 of this Article shall be pronounced for a period of one to three years, counting from the finality of the court judgment.

III.b Seizure of property, seizure of items and public announcement of judgment

Article 19 - Confiscation of property gains and confiscation of items

The provisions of the Criminal Act and special laws shall apply to confiscation of property gain and confiscation of objects.

Article 20

Deleted.

Article 21 - Public announcement of the judgment

1. The court may order the public announcement of a judgment when, given the significance of the criminal offence, it determines that there are justified reasons to inform the public about the final judgment.

2. The court shall order that the judgment be published in whole or in part, and the time limit within which it must be published. A publicly announced judgment may contain the name of the injured party but only with his/her consent.

3. The court shall determine in which media the judgment referred to in paragraph 1 of this Article shall be published. The media will publish the said judgment at the expense of the convicted legal persons.