The fight against corruption has become a priority issue, in both Romania and other European states. The underlying elements of this policy are the social and economic values that the law must protect.
A simple analysis of the information supplied daily by media channels reveals that the most frequent corruption offences are bribe taking, bribery and influence peddling.
Organisations’ liability for combating bribery
The OECD Convention on combating bribery, United Nations Convention against corruption, ratified by the Romanian Parliament through Law No. 365/2004, the Criminal Code, Law No. 78/2000 on preventing, discovering and sanctioning acts of corruption, as well as the establishment of certain structures for the fight against corruption, are ways of approaching the issue with a view to eradicating this scourge and grounding criminal liability.
Along with the adoption of the new Criminal Code, which came into force on 1 February 2014, the legislature established in Title IV the applicable criminal rules in the case of a legal entity’s criminal liability.
Under these provisions, a legal entity, except for the State and public authorities, shall be criminally liable for offences perpetrated in conducting its business or in the interest or on behalf of the legal entity. At the same time, a legal entity’s criminal liability does not exclude the criminal liability of an individual that contributed to the perpetration of the said act.
As a preventative measure within organisations, as of the end of 2016, International Standard ISO/DIS 37001 – Anti-bribery management systems is available. This standard comes in addition to other standards on management systems, such as ISO 9001, ISO 14001, ISO 22000, ISO 26000, ISO 31000 and ISO 19600.
The introduction of the draft International Standard ISO/DIS 37001 – Anti-bribery management systems reveals that the law alone is not sufficient to solve this problem, and liability, in terms of proactive contribution, lies with organisations, through the leadership’s commitment to establishing a culture of integrity, transparency, openness and compliance. The culture promoted within organisations is critical to the success or failure of an anti-bribery management system.
Applicability of the Anti-bribery management system
The standard is applicable in any jurisdiction, to any organisation, irrespective of its size, scope or sector, reflecting international best practices in anti-corruption matters.
However, limitation is set in terms of the type of offence, as the standard addresses solely bribe taking and bribery offences, thereby helping the organisation to prevent, find and combat bribery.
A major issue is that the concept of “bribery and bribe taking” used in the standard involves the offering or receiving of any advantages, with or without financial value, in an attempt to reduce as much as possible the applicability of criminal rules to the activities carried out in the organisation’s line of business.
A potential proven guarantee
Despite the fact that no international standard can guarantee that, following implementation, no acts of corruption shall occur within an organisation, the implementation may serve as a guarantee of good faith from the organisation’s management, in terms of their anti-corruption policy.
As Kofi Annan said, “Corruption divert[s] funds intended for development, undermining a government's ability to provide basic services, feeding inequality and injustice, and discouraging foreign investment and aid.” The role of defender therefore lies with each and every person who has the possibility – or even the duty – to develop and secure the organisation in which he or she carries out their activity.
Mircea TEIS, Senior Associate Specialising in Criminal Law with Țuca Zbârcea & Asociații