CRIMINAL LIABILITY OF BRIBERY CRIME IN CRIMINAL LAWS OF IRAN, RUSSIA, AND THE REPUBLIC OF AZERBAIJAN

Alireza KIANI SHAHMARS¹*, Samir VALIEV²

^1* Graduated of Criminal Law and Criminology from the Institute of Philosophy and Law of the National Academy of Science of the Republic of Azerbaijan in Baku, Baku, Azerbaijan.

² Criminal Law and President Odlar Yurdu University Baku, Baku, Azerbaijan.

*Corresponding Author

E-mail: [email protected]

ABSTRACT

In article the comparative analysis of the legislation of the Azerbaijan Republic, the Russian Federation and the Islamic Republic Iran, defining responsibility for bribery is carried out. Implementation of these offers will improve the criminal legislation. Also was noted about the issues of the responsibility for bribery in the basic of the criminal legislation.

 Criminal liability means the ability to tolerate legal penalties which are determined to prevent crimes. Based on criminal liability people are divided into two groups: people with criminal liability and those without it. People with criminal liability have authority and are mature but those without criminal liability don’t have such characteristics and due to some reasons as being too young, they are exempted from tolerating penalties. In this article criminal liability towards bribery is studied. Throughout the whole history of humans, bribery has been considered a social crime and has been hated by all individuals as it affects the health of economic and administrative systems. Considering the importance of this crime in different religions and laws, bribery is forbidden and blamed by all nations and is faced with strong reactions.

Keywords: Bribe, Corruption, Mediation, Criminal responsibility, Employee.

INTRODUCTION

The contours of criminal liability may be considered under three heading: the range of offenses; the scope of criminal liability, and the conditions of criminal liability (Andrew, 1991).

Administrative corruption is not committed just in Iran, Russia, and Azerbaijan, but it is universal social insecurity. Bribery has been extended worldwide and though it is committed secretly, it has a special position among other crimes. Crimes such as bribery put the authorities and governmental organizations in trouble, thus decreases the importance, power, and dignity of governmental institutions among people. Furthermore, bribery disturbs the administrative order in society and violates people's rights and interests as well as social equality and justice. Some people think that if they take the attention of governmental employees towards themselves, they will be able to settle their problems and satisfy their needs, so they commit bribery. As those who commit bribery should bear penalty and as bribery causes other crimes such as theft, money laundering, illegal possession of properties, and so on, social insecurity increases. In bribery, the committer aims to gain interest or receive money, other properties, and documents or to misuse his information to commit unlawful actions or avoid actions which are his duties or the duties of employees of the related organization or institution. To commit bribery, briber and bribee or their agents collude. Therefore, in realization of physical element of the crime, it is sufficient for the sentenced to accept the amount or property or payment document as bounded in the law against a promise for fulfilling or non- fulfilling the desired work.

Shambiati holds that crime of bribery is one of the crimes allocated to government officers. Employees or official authorities. If a non-employee receives any amount from a person for fulfilling any affair in governmental authorities, his action is merely extortion and fraud (Shambayati, 2018).

Bribery is an absolute crime whose realization does not depend on its results. So getting ready to commit it, deserves a penalty, although it is an incomplete crime. In another word, the accused intends to commit a crime and he is getting ready to realize it but the material element of the offense is not completed and the crime is not committed in general. In some cases, the effort to commit a crime like bribery legally is considered a crime and deserves penalty. In such cases although the committer did not make his intended damage because of the interference of external barriers and his will did not have any role to prevent the consequences of his behavior, his intention itself has anti-social characteristics. So a briber or a bribee should bear a penalty to correct his behavior. According to article 594 of the Islamic Penal Code of Iran, beginning to commit bribery deserves the minimum penalty considered for it. Article 63 of Azerbaijan has also determined rules for punishing the committers of bribery.

Mozaffari contends that the mere acceptance of the promise is not crime in itself. And if accepting the promise is done before fulfilling the taken action after fulfillment of the action by the briber, the employed does not fulfill the promise and gets regretful of his action and refuses to accept the amount or property or payment document, etc, the crime of bribery has not been realized. However, if the governmental employee is promised before the action fulfillment, and the bribe taker does not act his promise after the action fulfillment. It is considered a crime of bribery because accepting the promise is for the fulfillment of the work (Mozaffari, 1996).

Liability of Legal Entities Related to the Crime of Bribery

Just real entities do not have criminal liability but legal entities also have liability. In section 15-2 of the amended version of the criminal code of Azerbaijan, it is mentioned that legal entities take the liability of bribery but they are not considered criminals. In other words, real entities directly take the liability of bribery. Legal entities should take the liability of giving or receiving the bribe. In the Islamic Penal Code of Iran, even legal entities take the liability of some crimes such as bribery and some penalties are considered for them. Preventing employment in certain jobs and terminating the activities of the legal entity are among those penalties. The United Nations Convention for fighting corruption which was approved on October 31, 2003, confirmed international regulations on bribery. Article 15 of this convention is related to national governmental authorities who committed bribery and article 16 is about foreign governmental authorities and public and international organizational authorities, while article 21 is related to private sectors[1].

Bribery has always been a threat to the health of human communities and it has emerged in different times, through different ways, and in different extensions. Nowadays, committing bribery is not limited to traditional methods but as the administrative systems are more extended, individual, social relations are more completed and individuals have more expectations, this crime has wider and more complicated forms and it is committed in various ways. Crimes related to bribery are hidden and have more effects on the criminology of bribery.

Bribery in Azerbaijan and Russian Federation

Studying bribery in Azerbaijan and Russia showed that in 2001 in Russia, 4797 examples of giving the bribe and 3112 examples of receiving bribe were registered. So, a total of 7909 examples of bribery were registered in Russia during 2001, and the bribery coefficient was 5.45. The study also showed that:

1. In 2002, 4533 examples of giving the bribe and 2758 examples of receiving bribe were registered which made a total of 7291 examples of bribery. The bribery coefficient was 5.03.
2. In 2003, 4425 examples of giving the bribe and 2921 examples of receiving bribe were registered which made a total of 7346 examples of bribery. The bribery coefficient was 5.07.
3. In 2004, 5273 examples of giving the bribe and 3655 examples of receiving bribe were registered which made a total of 8928 examples of bribery. The bribery coefficient was 6.16.
4. In 2005, 5720 examples of giving the bribe and 4104 examples of receiving bribe were registered which made a total of 9821 examples of bribery. The bribery coefficient was 6.77.
5. In 2006, 6546 examples of giving the bribe and 4517 examples of receiving bribe were registered which made a total of 11063 examples of bribery. The bribery coefficient was 7.63.

So, in Russia from 2001 to 2006 the crime of giving bribery was more than receiving bribery and it seems that the reason was that in the penal code of that period, no criminal liability was determined for the briber. During 2001, 54 examples of bribes were registered in Azerbaijan, and bribery coefficient was 0.67; in 2002, 9 examples of bribes with a coefficient of 0.11, in 2004, totally 5 examples of bribes with a coefficient of 0.5, in 2005, 13 examples of bribe with a coefficient of 0.15, in 2006, 12 examples of bribery with a coefficient of 0.14, in 2007, 9 examples of bribery with a coefficient of 0.10, in 2008, 4 examples of bribery with a coefficient of 0.05, in 2009, 7 examples of bribery with a coefficient of 0.08. In 2010, 7 examples of bribery with a coefficient of 0.08 were registered in Azerbaijan[2]^{, [3]}.

The above-mentioned report shows that in comparison with 2001, during 2006 in Russian Federation, bribery increased 0.40 and from 7909 examples reached 11063, while, in Azerbaijan during the same period bribery (both giving and receiving a bribe) decreased 4.5 times (from 54 reached 12 examples). Such decrease continued during next years. Furthermore, sometimes in Azerbaijan, bribery registered 50 or even 120 times less than in Russia. This situation shows a reduction of committing bribery in Azerbaijan while the reason for a reduction in statistical level can be based on the fact that many cases of bribery had been kept hidden. The contentment of both sides of bribery, i.e., the briber and the bribee, the worry of receiving a penalty, the dismissal of employees of the criminal organization, the inefficiency of judicial institutions, and negligence of managers because this crime remains hidden and the possibility of committing it increases.

Article 311 of the penal code of Azerbaijan which is related to receiving bribe and article 31 related to giving a bribe as well as article 290 of the Russian penal code related to receiving bribe and article 291 related to giving bribes which were approved in 1996 determining criminal liability for committers.

According to article 311 of the penal code of Azerbaijan, if the employee receives a bribe for doing or not doing his duty (action or omission), for the benefit of a third party and if he receives material properties or other privileges by himself or by a third party, directly or indirectly, personally or with the intervention of an agent, he has committed bribery[4].

According to Article 312 of Criminal Law of Azerbaijan, bribe the employee for executing the alatairs in his competency is based on Fulfilling or non-Fulfilling action given to the employee or third party in person directly or indirectly or by intermediates against property or benefit or generosity.

Article 290 of the Russian penal code explained receiving bribes but article 291 did not explain giving bribes[5].

Examples of bribery are the ruling body, and the employees of the government and local organizations, commercial and service institutions, and other sections are responsible for delivering public services. Material properties, privileges, and donations are subjects of bribery.

Crime of bribery is one of the crimes allocated to governmental officers, employees, or official authorities. If a non-employee receives any amount from a person for fulfilling any affair in governmental authorities, his action is merely extortion and fraud (Shambayati, 2018). Dr. Validy believes that accepting a bribe is for fulfilling or non-fulfilling affairs related to governmental organizations and public services (Validy, 2017).

Material aspects of received bribe have been determined in paragraph 1 of article 311 of penal code of Azerbaijan as well as paragraph 1 of article 290 of Russian penal code while the subjects of bribe have been determined in paragraph 1 of article 311 of penal code of Azerbaijan as well as paragraph 1 of article 291 of Russia Federation.

Because no Statistics are presented concerning the crime of bribery in Iran unlike Azerbaijan and Russia, it is impossible to get access to statistical tables in this regard.

Age of Criminal Liability in Committing the Crime of Bribery

Giving and receiving a bribe is a formally combined crime. Through giving or receiving a portion of a property, bribery will be committed because the briber is willing to receive it and the bribee is completely aware of his offense. It is worth mentioning that efficient individuals have certain characteristics and due to receiving a bribe, they have criminal liability in practice. In most cases, these individuals are older than 18. So everyone who is 16 or older and is wise, is considered criminally liable.

According to the penal code of Azerbaijan, everyone who is 16 years old is a criminal liable. As those who are under 18 years old have not reached their legal age of majority, the penal code of Azerbaijan alleviates their penalty and does not forbid them from working in certain jobs. Russian penal code has similar rules in this regard (Samandarov, 2011).

Before Iran's 1979 revolution, there were different ideas about the legal age for criminal liability or about the age that general penal code could be canceled about them in various administrative and legal organizations. Although the legislation tried to determine the religious age of criminal liability, in practice and different administrative regulations, it acted differently. For example, according to article 88 of Iran's penal code, kids and juveniles who commit a crime will receive taziri penalty. The type and amount of penalty that kids and teenagers receive depend on the decision of the judge and he has the authority to decide about the maximum or minimum amount of the related punishment. Generally, for children who are between 9 to 15 years old, depending on the case, the court takes one of the following decisions:

1. Return the kid or the juvenile to his parents or his grand patents
2. Return him to real or legal entities and if those who were mentioned in paragraph (a) are not available, the court acts based on the expedient of the kid or the teenager. According to article 89 of this law, the teenagers who commit ta'zir crimes, and when committing them, they are between 15 to 18 years old (solar year), will receive the following penalties:

• Keeping on probation for three months to three years
• Financial fines depending on the type of crime they have committed

Iran's legislator allocated section 4 of the Islamic penal code to the condition and obstacles of criminal liability, in article 146 of chapter 2 which is about obstacles of a criminal liability says that immature individuals do not have criminal liability. Furthermore, according to article 147, the maturity age of puberty in girls and boys is 9 and 15 (lunar month) respectively, and article 148 says that security and educational actions should be implemented on immature individuals. It is worth mentioning that according to article 976 of Iran's civil law, those whose father is a foreign citizen and when reaching the age of 18 had been staying in Iran at least for one year, are considered Iranian citizens. As it is seen, Iran's legislator considers the age of 18 as a criterion while in other cases ages 9 and 15 (lunar year) or 18 (solar year) are criteria (solar and lunar years are considered differently).

Although differential criminal liability is accepted in Juvenile Delinquency compared to the adults, the acceptance of the persons younger than 18 years old as juvenile group in special domestic and foreign regulations: nonetheless, the age range and the commencement of criminal liability is controversial (Abouzari, 2018).

The Different and Amended Suggestions in Laws Related to Bribery of Russia, Azerbaijan, and Iran

Iran's legislator must consider differences and dispersions existing in regulations and integrates them. In regulations on bribery, there is the dispersion of rules as well. Article 594 of chapter 11 of the Islamic penal code which is about bribery, lucre, and fraud says that the penalty for beginning these crimes is the same as determined by law. In its notice 2 of article 3 of another law which is known as the rule of aggravating punishment and is related to bribery and fraud committed, it is stated that the penalty for beginning the crime of bribery is the minimum amount of punishment determined for it. Article 18 of the military criminal law says that if every military personnel who fulfills or avoids a task which is his duty or the duty of another personnel of armed forces, accepts money, property, or document or gives a property gratuitously or less than the usual price in any condition is considered as bribe, although fulfilling or avoiding doing that is not in contrast with law.

Furthermore, in the law of developing administrative health, some regulations are determined to fight corruption such as bribery. According to the hierarchy, Iran's legislator, like legislators of Russia and Azerbaijan, amends and must integrate the regulations to reach a single system. By doing this, on one hand, the dispersion in the criminal legislating system will be eliminated, and on the other hand, practically the system will be integrated, so implementing and executing the law will be easier.

To continue, it is necessary to point that the real entity who has reached his legal age and is wise can be considered as liable guilty, or committed. Of course in receiving a bribe just a definite real entity, i.e., the state employee or governmental and public institutions can be considered as guilty. While in giving bribe all individuals even state employees can be considered as a briber. However, in some cases, legal entities such as companies or their legal representatives can be criminally liable for giving or receiving a bribe.

According to article 312 of the penal code of Azerbaijan and article 291 of the Russian Federation penal code, if the briber has to give bribe due to the thread of those who have governmental liabilities and efficiencies and report it to state organizations and inform them voluntarily, he is free from criminal liability.

Furthermore, according to article 311 of paragraph 2 of the criminal code of Azerbaijan and article 290 of paragraph 2 of the criminal code of the Russian Federation, if one who is liable and efficient commits an illegal act he is considered as a bribe.

In articles 311 of paragraphs 1 and 2 of the penal code of Azerbaijan and article 290 of paragraphs 1 and 2 of the Russian Federation penal code, actions that are considered in advance by the organized groups and are executed repeatedly due to a thread, will receive the penalty as aggravated punishment. It is worth mentioning that in December 2003 the descriptive issues of the penal code of the Russian Federation on receiving bribes were repeatedly eliminated.

It is necessary that the criminal liability of a person who is the agent of bribery be separately determined in article 312 of paragraph 1 of the new version of the penal code of Azerbaijan and article 292 of paragraph 1 Russian Federation criminal penal code.

If the agent of bribery helps with receiving or giving a bribe and thus is taking part in executing bribery and informs the state organizations voluntarily, he will be free from a penalty by the vote of the court.

According to article 118 of the military penal code of Iran approved in 2003 and articles 588, 589, and 590 of Islamic penal code of Iran on executing bribe in armed forces and on receiving bribe and article 592 on giving bribe, article 593 on intermediation with bribery or trying for receiving a bribe, and also according to article 539, physicians who receive bribe are criminally liable.

According to article 588, if arbitrator, auditor, and expertly determined by a court or by the sides of a transaction, receives an amount of money or a type of property to act in favor of one side of the transaction, gives viewpoints or decides on their behalf, will be sentenced to imprisonment from 6 months to 2 years or will be financially lined and everything he has received will be requisitioned in favor of the government.

According to article 589, if the judge takes part in bribery and thus votes on a penalty that is more severe than it is determined in the law, he will be sentenced to receiving the penalty of bribery as well the penalty of his vote.

According to article 590, if the bribe is not in the form of cash but is in the form of a gratuitous property or the product which is the object of a transaction considerably cheaper than its usual price or the price is apparently as the product's usual price but it is considerably less than the product's usual price and the good is sold to the government employees and agents both judicial and administrative, directly or indirectly, the related employees are considered as bribee and the partner of the briber.

Article 539: If the physician writes an unreal testimonial on a person's character to exempt him from service in official administrations or military services or to deliver it to judicial authorities, he will be sentenced to imprisonment from 6 months to two years or paying the financial fine.

To aggravate the penalty of bribery committed on December 6^th, 1988, a law was approved in Iran which is known as the act of punishment for aggravation of bribery, embezzlement, and fraud. Articles 3 and 4 of this act are allocated to bribery.

Article 3 says that each of state employees and agents both judicial and administrative, councils, municipality or revolutionary institutions, and in general triple powers in Iran, armed forces, governmental companies or organizations which are related to the government, official or nonofficial agents of public services who execute or do not execute an act related to their organizations, directly or indirectly, accept a payment, property or document of paying or offering a property, are considered as bribe.

According to article 4, all portable and importable properties of those who establish or guide visuals to commit bribery, embezzlement, and fraud, are seized in favor of the government and will also be sentenced to pay a financial fine equal to the value of that property, and they will be permanently suspended from governmental services and will be imprisoned from 15 years to their whole life.

It is recommended that the penal code of Azerbaijan determines the penalty for the agents of bribery, as article 3 of the Islamic penal code of Iran does it.

Similarities between Bribery Laws of Russia, Azerbaijan, and Iran

Considering bribery, there are similarities between the laws of Russia, Azerbaijan, and Iran.

For instance, according to article 591 of the penal code of Iran, if it is proved that the briber has been obliged to pay an amount of money or a type of property to maintain his rights, he will not bear prosecution and the money or the property will be returned to him. In a note of article 592 of the same law, it is mentioned that if the briber has been obliged to give a bribe or report it or make a representation, he will be exempted from bearing imprisonment and his property will be returned to him[6].

According to article 312 of the penal code of Azerbaijan and the notice of article 291 of the penal code of the Russian Federation through the fulfillment of the above-mentioned condition, bribers will be exempted from criminal liability but the paid money or the property will be suspended, while according to articles 591 and 592 of Iran's penal code the property subject to bribe is returned to the owner. So this condition that the paid property should be returned to the owner can be added to article 312 of the penal code of Azerbaijan and the notice of article 291 of the penal code of the Russian Federation. Thus, these articles can be re-written as: “If the briber through the thread of the state employee gives bribe and informs the governmental organizations, he will be exempted of criminal liability and the money or the property which is spent through bribery, is returned to himself".

According to the penal code of Iran, the briber should be sentenced to a financial fine, the received bribe should be returned to him. He should bear imprisonment and he is contemporarily and permanently suspended from state services, depending on the case. Furthermore, the briber's military rank will be reduced and he will be dismissed from military services.

1. Legislations of Azerbaijan and the Russian Federation are better to use this experience.
2. In Iran's penal code the penalties considered for briber and bribe are not the same. For instance, according to article 592 of the Islamic penal code, the penalty for the briber is to seize the property gained through a bribe, imprisonment from 6 months to 3 years or 74 strokes of the whip, but according to article 3 of the rule of aggravating punishment for bribe committed, the penalty for bribee depends on the amount of bribe and the position of the briber.
3. Considering the quality and conditions of giving or receiving a bribe, according to articles 311 and 312 of the penal code of Azerbaijan, briber, and bribee are sentenced to imprisonment and a financial fine. According to article 592 of the penal code of Iran, a briber is sentenced to imprisonment from 6 months to 3 years or 74 strokes of the whip.

In sum, assistance in the crime of bribery depends upon conditions and special regulations of these countries. As regards assistance in the crime of bribery, if the assistance does not have a side aspect, that is to say, assistance is merely related to bribe-taker, and the governmental employee may commit the crime of bribery as a result of the assistant's act or participation in bribery regarding his share from the bribery or failure to specify his share from the bribery under some conditions, it is considered as a criminal liability (Safari & Shahabi, 2021).

Reasons Justifying the Crime and Removing the Barriers of Criminal Liability

Fines as the most custom and natural social response to a criminal phenomenon is void due to different acts, of which the justifiable reasons of crime and removing the barriers of criminal liability can be mentioned.

In criminal procedure, different defenses are raised by the accused or his agent like citing the justifiable reasons and removing the barriers of criminal liability. The justifiable reasons of crime refer to the concrete conditions that justify the criminal acts through reluctance, coercion or legitimate defense. In contrast, removing the barriers of criminal liability refers to personal and mental conditions of the accused that removes the actor\s criminal liability in spite of the occurrence of crime. The reasons such as minor age or insanity can be assumed ass cases that remove the barriers of criminal liability.

As regards the legal entities, it can be said that in criminal liability, liability lies with real persons, and legal entities assumes the liability if the legal agent commits a crime in his name or to his advantage, and the criminal liability of legal entities will not prevent the liability of real persons who have committed the crime.

Therefore, concerning the criminal liability, the person who commits the crime of bribery applies for some of the reasons that justifies or removes the criminal liability, and the commitment and liability of a person for bribe taking does not necessarily requires committing others for bribery. For example, he can commit it as urgency.

CONCLUSION

In this article, the regulations issued on bribery in the penal code of Iran, Russia, and Azerbaijan were compared and analyzed. There are some differences and similarities between these regulations, so, this article suggests some changes and amendments which are better to be implemented in the recent penal code of Azerbaijan, and federation of Russian states, and Iran; in this case, the deficiencies in those rules could be improved.

Meanwhile, the criminal liability and the legal age for committing a crime and starting crime and refunds incurred due to crime of bribery with its special status and emergency case and disclaimer of criminal liability has been discussed comparatively. Concerning the statistical tables, it can be said that due to the status of this crime, the briber and bribe-taker both usually try to avoid its disclosure for the interests of both parties; so, it is investigated when it is sometimes reported or the briber announces and the criminal liability in the crime of bribery is strict responsibility (Malkoach, 2010). So that there are a small umber of crime which can be committed without any mens rea, these offences are known as strict liability crimes (Elliott & Quinn, 2006).

Thus when it is said that bribery is considered as absolute crimes, this means its realization does not depend on the realization of special results. Therefore, in the crime of bribery. Whether the employee does or fails to do the desired act of the briber – taker or whether the act done by the governmental employee is legal or illegal. The crime of bribery is realized (Safari & Shahabi, 2021). As such, it can said that concerning criminal law in classical concept, apart from physical element of the crime. There is a need for availability of virtual element of the crime to prove it. Considering the changes and developments in law, especially in criminal law. And the importance of new crimes along social and environmental changes, the legislator has conceived that due to special consideration of social discipline. The availability of fault in its general sense is not viewed as part of the crime and exertion of the desired fines even though this is contrary to the philosophy of criminal liability. Exceptionally it requires that such crimes are realized with legal and material elements on the one hand. And since the civil, professional and disciplinary guarantees are not sufficient on the other hand. Cash fines and imprisonment can be exerted for such crimes to prevent real persons and legal entities from escaping somehow.

Having considered criminal law in three above – mentioned countries, no fine is exerted for the violation of physician, expert or arbitrator, and issuing a certificate of violation about bribery and view them as a violator because of taking bribes deserving punishments.

ACKNOWLEDGMENTS: I would like to thank Dr. Samir valiev for his research efforts, for their patience and support. He is professor of criminal Law and President odlaryrdu University Baku and is my supper visor in the National Academy of Science of the Republic of Azerbaijan.

CONFLICT OF INTEREST: None

FINANCIAL SUPPORT: None

ETHICS STATEMENT: None