Do you think that bribery may be acceptable in certain cases?
I suspect that your initial reaction was “No way! There is no excuse for bribery.” Frankly, I hope it would be a natural reaction of any reader of our blog. Nevertheless, I still ask you to give it a thought before you react. You will see that the answer may be not so obvious. Let me get straight to the point.
I personally was sure that there is no excuse for bribery; however, my recent project made me to have a closer look at this matter. It arose when I was reviewing a local compliance policy for Ukrainian affiliate of the U.S. company. The template I have been provided with contained a clause “Personal Safety Payments”. The clause allowed provision of unofficial payment to avoid negative consequences to person’s health or liberty. Take a closer look at this clause:
“Personal Safety Payments. In limited circumstances where immediate payment may be demanded of Firm personnel to avoid imminent serious physical harm or imminent deprivation of liberty (for example, threatened unjust imprisonment for a routine traffic violation in a foreign country) then payments may be made to alleviate the immediate risk. If possible and practical under the circumstances, such payments should be discussed with the Firm's General Counsel, but in any event such payments must be reported to the General Counsel as soon as possible. The Firm reserves the right to report the payment to the appropriate authorities.”
I was stuck: will it work out for Ukraine? My first (and rather emotional) response was “What the hell, of course you will do anything to save your life!” Then the lawyer in me reminded that our enforcement authorities might be not so reasonable and sympathetic if they come across such case. Let’s put the emotions and speculations aside for a while and recall how our laws treat such issues.
The Ukrainian laws provide a number of exemptions when breaking the law may be justified. One such exemption is the concept of “extreme necessity”. It dictates that it is not an offence when a person harms the society in order to avoid an imminent danger to the person or its legitimate rights. There are, though, some “buts”:
The person wasn’t able to prevent danger with other means (basically, it was possible to somehow avoid paying a bribe);
The person didn’t exceed the limits for extreme necessity (the caused harm wasn’t more significant than prevented one).
So what do we have here? The clause I placed for you above allows “making a payment” (= doing harm to society) to “avoid imminent physical harm or deprivation of liberty” (= avoiding imminent danger to the person or its legitimate rights).
Looks OK so far, but we must also ensure that (i) the person didn’t have other choice except to pay a bribe in order to prevent the danger, and (ii) paying a bribe didn’t result in causing more harm than the person wanted to prevent.
The last element may seem tricky – what would cause more harm: paid bribe (affects the society in general) or caused harm to person’s health or liberty. Our Constitution is unambiguous here: an individual, its life, health and safety are the highest social values.
Therefore, theoretically it seems that there is actually no dilemma here: the person prevails over society’s interests. If the person pays the bribe to prevent harm to his or her life and health, the courts should use the concept of extreme necessity and should not impose liability.
However, in practice I would not recommend to rely only on interpretation of the law. The one should carefully consider every specific case and existing relevant precedents in order to get a better picture on how that case may unfold.
At the same time, always keep in mind that global approached should always be assessed from the perspective of local requirements. There is no place for “copy and paste” when it comes to such sensitive issue as anti-corruption compliance. The least you can do is to integrate those “buts” mentioned above into relevant clauses and dedicate some time to discuss this issue during compliance training.
I wish neither you nor your colleagues face such dilemma in your lives. Anyway, raising awareness to such issues never hurts, right? I hope that my post made you consider the questions in the title of my post from a different angle. Please share your thoughts or experience in comments.
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Igor is an associate at the global law firm. His practice focuses on anti-corruption compliance in the Life Sciences and other areas. Igor assists major international companies with development and implementation of anti-corruption policies and advises on various compliance matters.
He also chairs Anti-Corruption Working Group at the American Chamber of Commerce in Ukraine. As part of his activities there Igor participates in the development of Ukrainian anti-corruption legislation and assessment of its impact on all types of businesses.