Bribery crimes in Kuwaiti law

First: Definition of the crime of bribery:

Job trading requires the presence of two people, an employee or an employee who requests or accepts a job or a promise for it in exchange for performing an act or abstaining from a work of his job, and he is called a bribe and the owner of the stake is called a bribe if he accepts the performance of what the employee demands or submits the bid, then the employee accepts it. Therefore, the lesson in the crime of bribery is the behavior of the employee and not the behavior of the other party. The bribe by the employee occurs if he is offered a valid acceptance intending to tamper with his job work even if the other party is not serious about his offer. A bribe does not occur if the employee is not serious about accepting it. As if he pretended to accept in order to facilitate the arrest of those who tried to bribe him in flagrante delicto.

Based on that, bribery is an act committed by a public servant or a person of a public character when he trades in his job, or rather exploits the authorities delegated to him by virtue of this position, when he asks for himself or for others or accepts or takes a promise or gift to perform a work from his job or refrains from that work or For breaching job duties.

And there is an ever-recurring question, which is what is the promise or the gift?

This is what Article (38) explicitly defined (it is as a promise or a gift every benefit obtained by the bribe-taker or the person who appointed him for that, or who knew about it and agreed to it, whatever its name or type, whether this benefit is material or immaterial).

Therefore it becomes evident that it is not necessary for the promise or the gift to focus on cash or in-kind gifts, because every benefit that the employee obtains, whether material (cash) or non-material (services) is considered by the bribery that is legally punishable and criminal by virtue of the penal code - this is stipulated in the previous article The male is explicitly mentioned.

- A so-called beneficiary may be available in bribery, who is a person appointed by the bribe-taker or who agrees to appoint him to obtain the interest or gift that is the subject of the bribe. This beneficiary may contribute to the crime of bribery, by an act of participation in which he is considered a partner in it, and the crime of bribery for its occurrence requires the presence of a presumed condition that represents the quality that must be met by the perpetrator, and two pillars are a material element, which is the criminal activity by which, in the eyes of the law, the meaning of job trafficking and exploitation, and a moral element , Which is criminal intent.

The French jurists used to search for positive bribery and negative bribery, separately, according to the plan that the legislator followed for them.

Elements of the crime of bribery and the supposed condition:

A presumptive condition that relates to the private character of the bribe-taker, as he must be a public servant or those deemed to be in his position.

And the material element: which is the request, acceptance or taking.

And the moral element or criminal intent.

We will clarify the above:

Presumptive condition:

The Kuwaiti legislator assumed that for the crime of bribery to occur, the bribe-taker is a public employee or belongs to a certain sect that he considers under the ruling of public officials.

Jurisprudence in France has tended to define the public servant as whoever entrusts him with permanent work, who is included in the staff of a public service.

Some define a public servant as every person appointed by the public authority to perform service in a direct public facility for a period of time, whether this public authority is the central government or a public institution.

Others define a public servant broadly, seeing that it is every person who works in one of the state's institutions and practices public office through appointment or any other legal procedure.

We can point out in this regard that from the different definitions of jurisprudence we can say that the term public servant is given to every person who undertakes work in the service of a public utility that is directly managed and has occupied his position in a sound and permanent manner.

Since the law has made the assumption of the condition in the status of the perpetrator, not in the exercise of his job, it does not preclude the fulfillment of this condition for the employee to be on leave or suspended from work; As long as its public capacity remains. However, the crime does not occur if he lost this capacity at the time of its commission, unless he exercises his duties in a manner that makes him an actual employee, according to the jurisprudence of the Administrative Law.

A public position must be present at the time of committing a bribe. The crime does not take place if the perpetrator, at the time of performing the material act, was not a public servant or a person considered in his judgment in accordance with Article 35 of the Penal Code and Article (43) of the same law which stipulated that “it is considered in the judgment of a public servant in the application of the provisions of this Chapter A - Employees And employees and workers in the interests of the government or placed under its supervision or control.

B- Members of general or local parliaments, whether they are elected or appointed.

C Arbitrators, experts, public prosecutors, liquidators and judicial guards.

D - Every person assigned to a public service.

E- Members of boards of directors, directors, employees and employees of institutions, companies, associations, organizations and establishments if the state or a public body contributes to its capital a share in any capacity whatsoever.

If the capacity was available at the time the crime was committed, then it is not a condition that it continue until the time it is discovered or a case is filed.

Accordingly, the termination of the public service or the public office by dismissal or resignation does not preclude the recognition of the capacity as long as the crime occurred at the time of enjoyment thereof, and the status of the public office is not interrupted by the employee's leave or suspension from work as long as the capacity is not removed from him.

The first pillar: physical:

Article (37) of the Kuwaiti Penal Code stipulates that “Anyone who requests for himself or others a promise or gives him an allegation that it is a bribe to an employee and he intends to keep it or part of it for himself or to use real or alleged influence shall be punished with the same punishment stipulated in Article 35 of this law. To obtain or attempt to obtain from any public authority works or orders ... ...) and based on the aforementioned article, the material corner includes multiple elements and images of it:

(1) Demand, take and accept.

This crime is committed by the bribed public employee, and in it the perpetrator performs a job or abstains from work, or breaches the duties of the job, and accordingly the material element of this crime consists of the following elements:

The behavior of the public servant, which is in the form of requesting, taking or accepting.

That the subject of the behavior focus on a gift, gift, or promise.

That the gift or the promise of it is in return for the job that the public employee performs, or refuses to do, or has actually done it in conformity or breach of the duties of the job.

The element of the request is merely a personal request for a certain benefit to trade a job or work as a complete crime, so he is the initiator of offering a specific service in exchange for a fee he gets, and the request is not required to be accepted by the stakeholder. And since the crime of bribery requires in its nature the presence of two parties, the bribe and the bribe, and the establishment of an offer and acceptance, and their meeting until the crime is considered to have been completed, it follows from this that the mere request from the part of the bribe-taker, or the offer on the part of the briber, is considered an initiation of a bribe, if neither is met Accepting that the legislator saw the behavior of the bribe-taker as a danger in itself, and made it an independent crime, because it revealed the extent of his tampering with the tasks of his job and making it a subject of trafficking, which may result in the loss of people's confidence in properly looking after their interests.

It is worth noting that the explanatory memorandum defined the concept of work, explaining the work required of the employee, so that the principle in the work required of the employee is to be within his jurisdiction and what defines his specialization through a legal or administrative mandate and not to be completely within his jurisdiction, but it is sufficient for its realization to be only partial, which is a standard The relationship between the employee and the work concerned with his performance.

The question arises if the work is outside the work of the job with a legal or administrative mandate?

This is what Article 35 explicitly answered that “If the bribery is realized, the provision of this article shall apply even if the work stipulated in the previous paragraph does not enter into the work of the bribe-taker, but he claimed that or thought wrongly ...

(2) Asking for a promise or a gift:

The seriousness of the crime lies in everything that indicates that the employee has actually sold his liabilities and tampered with the duties of his job in vain and is not contested, so confidence was shaken by him and it represents a return to the job that the employee does, or refrains from actually doing it.

(3) Subsequent reward, which is considered one of the crimes attached to bribery:

Article 36 of the Penal Code stipulates that every public employee accepts a person who unlawfully gives him a work from his position or refuses unlawfully from performing one of its work, a gift or a gift after completing that work or abstaining from it with the intention of reward for his performance or abstaining from it without A previous agreement with imprisonment for a period not exceeding five years and a fine not exceeding fifty dinars or one of these two penalties .. The reason for reducing the penalty in the subsequent reward crime is that it does not include a previous agreement between the employee and the applicant for service, and therefore the availability of the crime must focus on acceptance of a gift or a gift and not merely The promise of it, because the promise of his work on an illegal work that was made without a previous agreement, for him, the quality of the return is negligible.

(4) Response to a request, recommendation, or mediation:

This crime is committed by every public official who undertakes an act of his position, abstains from work in his position, or breaches its duties, as a result of hope, recommendation or mediation.

It is rare for an employee to perform any of the work of his job or breach its duties except after the request of the service applicant, or the recommendation or mediation of acquaintances and friends, or the applicant for service, and administrative corruption is called favoritism.

The second pillar: criminal intent:

It is intended to intend the briber and the bribe, and to establish the intention; Since the crime of bribery is an intentional crime, the criminal intent must be present. Is it sufficient for the public intent or the private intent? The general intention is defined as directing the will of the offender towards committing an act or abstaining from an act for which he knows that the law determines the punishment for it. The private intent defines and requires, in addition to the availability of the public intent, the availability of proof of intention towards achieving a specific goal determined by law.

The opinion was that the bribe-taker should have a special criminal intent, but the prevailing opinion in the jurisprudence is that it suffices in the crime of the bribe-taker to have a general criminal intent.

Accordingly, the Egyptian Court of Cassation ruled that it is determined that the criminal intent in bribery is available as soon as the bribe acquires when he asks for or accepts a promise, gift, or interest, that he does so in exchange for doing a job or abstaining from a job from the job or breaching his duties, and that it is a price for trading or exploiting his job. It follows from this pillar of the circumstances and circumstances that accompanied the work, the abstinence, or the breach of his job duties.

The intention of the briber must be an objector to a bribe or a street in a bribe unless the intention of his offer is to induce the employee to perform a work of his job or to refrain from it. Accordingly, there is no intent in his right if he is ignorant of the competent employee.

Proof of intent: It is proven by all means of proof, so it is not necessary for the bribe-taker or his partner to disclose it in words or in writing, because he may deduce the intent from the circumstances and circumstances of the bid.

Third: Punishment for Bribery:

First: Punishment for the Briber:

In Article 39, the legislator limited himself to stating the punishment of the briber without defining his crime. It is a position that illustrates the tendency of the law to consider it an accomplice in the crime of bribery. However, the law punishes the briber as being a principal perpetrator of an independent crime, which is the crime of offering a bribe without accepting it. It is a crime distinct from the crime of bribery in its strict sense. Because the employee does not contribute any installments to it, and rather, he must not accept a bribe until this crime occurs.

And considering the offer of a bribe on the part of the person in need as a private crime does not mean that the law has established special provisions for it, as it does not differ from a complete crime except in the failure of the perpetrator to reach his intention. The perpetrator must present the offer, and his intention is to compel this person to perform one of the work of his job, even if the work is a right or abstaining from one of the aforementioned actions even if it appears that it is not right. Or breach of his job duties.

Bribery is not achieved without the agreement of the briber with the employee who is bribed to offer the bribe to the latter in exchange for performing a job or refraining from performing his job, or claiming to be so, or breaching his job duties. The fact that the briber is the one who initiated the offer of the bribe does not matter that the employee is the one who initiated the request. Whenever an agreement is reached between the two, the bribe shall be held criminally accountable as a partner, even if he has not yet implemented what he promised, considering that the mere acceptance of the bribed employee of the promise or the gift - even if he has not yet taken the bribe - is considered alone sufficient for the crime to occur legally. It is equal for the said agreement to be concluded between the bribe himself and the employee, or through his representative, i.e. the mediator.

The briber must be informed of the status of the bribe-taker, or that the bribe that he offered or provided to him in exchange for the latter’s trading in his job or his exploitation of it, and it is not intended to buy the employee’s responsibility, because his crime does not occur if the employee accepts it with the intention of trading his job or exploiting it as a price for that. This is without prejudice to the accountability of the employee for his criminal intent.

In Article 39, the legislator punished the bribe with the same penalty according to Article 35 of imprisonment for a period not exceeding ten years and a fine equal to twice the value of what he gave or promised, provided that it is not less than fifty dinars.

We find that the legislator has tightened the penalty for bribery in Article (40). If the purpose of the bribery is to commit an act punishable by law with a punishment more severe than the penalty prescribed for bribery, then the briber, the bribed, and the mediator are punished with the penalty prescribed for that act, along with the fine prescribed for bribery and the aggravation is clear here by adding the fine penalty to the crime penalty The most severe.

Second: Punishment of the Mediator:

The Penal Code in Article 39 was limited to explaining the mediator’s punishment without defining it, as it did with regard to the bribe. The article stipulated that “the briber or mediator shall be punished with the penalty prescribed for the bribe-taker. It does not exceed one thousand dinars or either of these two penalties, and in all cases the briber and the mediator are exempt from the penalty if he informs the public authorities of the crime even after its completion.

A mediator is every person who interferes between the briber and the bribed person, representing one of them to the other in carrying out his role to complete the crime of bribery. Undoubtedly, the task of the mediator requires him to have an agreement with whoever represents him as a bribe or a bribe-taker, or with both. Hence, he is only a partner in the crime of bribery if it is carried out on the basis of this participation.

We must not confuse the mediator for the bribe-taker with the bribe-taker himself, who seeks the bribe for others. The mediator is nothing more than a means of transmitting the desire of the bribe-taker without the need for him to be a specialist or a leader to specialize in the work to be performed in exchange for the bribe. This is in contrast to the bribe-taker who asks for a bribe to others in exchange for a work that falls within his real or alleged competence. Whereas, the mediator is not required to be a public servant other than the bribe-taker, who must have a capacity.

To be held accountable to the mediator for the bribe in which he contributed, he must know the elements of the crime in which he wants to contribute, so he must know the status of the employee, and that what the latter will receive is in exchange for an act of his job. For example, if the mediator believes that the gift that he took on behalf of his client is a gift or a debt, then his responsibility for participating in the crime is not legally fulfilled, and it is not required that the intention of the mediator be directed to present the gift to the bribed, meaning that if he interferes with mediation intending to seize the bribe for himself, this is not resolved Without being held criminally accountable as an accomplice in the bribery, considering that the bribe took place as soon as the bribe was accepted or taken on behalf of the bribe-taker.

It is noted that the legislator has reduced the penalty gradually to the point of exemption from the punishment, for example if the performance of the work or abstaining from it is a right, then the punishment is reduced to imprisonment for a period not exceeding five years and a fine not exceeding one thousand dinars or one of these two penalties, then exempt the briber and the mediator from it completely if they do To report the crime even if it is completed.

It is noted that, in all cases, the briber or the mediator shall be exempt from punishment if he informs the authorities of the crime of bribery even after its completion.

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