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Bosnia and Herzegovina

Anti-Bribery and Corruption Laws in Bosnia and Herzegovina

Bosnia and Herzegovina
Source of law 

Criminal Code of Bosnia and Herzegovina (“BiH”),

Criminal Code of Federation of Bosnia

and Herzegovina (“FBiH”),

Criminal Code of Republika Srpska (“RS”),

Criminal Code of Brčko District (“BD”),

Law on confiscation of property arising from the criminal act of FBiH,

Law on confiscation of property arising from the criminal act of RS,

Law on confiscation of illegally acquired property of BD

Law on Agency for the Prevention of Corruption and Coordination of the Fight against Corruption of BiH

Offence

Bribing

Giving or promising (directly or indirectly) a gift or other benefit to an official (including a foreign public official or an international official) or responsible person in the institutions of Bosnia and Herzegovina, an arbiter or juror judge to induce performance or non-performance of an act within the scope of his official powers (whether or not the act should or should not have been performed by the person).

Being bribed

Demanding or accepting such a gift or benefit or facilitating bribing by an official (including a foreign public official or an international official) or a responsible person in the institutions of Bosnia and Herzegovina, an arbiter or juror judge in return for performance or non-performance of an act within the scope of his official powers, or as a reward for such performance or non-performance (whether or not the act should or should not have been performed by the person).  1 Not to be confused with the Conflict of Interest laws, namely BiH, FBiH, RS and BD, which regulate situations where gifts (any payment, entertainment, service or item of value) are given directly to the recipient (elected officials, executive officeholders and advisors of governmental institutions) without compensation or expectation of compensation. Such gifts may be kept by recipients up to a certain value, and liability for breach is only on the recipient.

Bribing for trafficking of influence

Giving or promising a gift or other benefit to a person who has an official, social or influential position or other status to facilitate or induce performance or non-performance of an activity by an official, responsible person in the institutions of Bosnia and Herzegovina, foreign official, international official, arbiter or juror judge.

Being bribed for trafficking of influence

Demanding or accepting a gift or other benefit directly or indirectly in order to use his/her influential position or other status (or facilitating by using his/her influence) to induce performance or non-performance of an official activity by an official, responsible person in the institutions of Bosnia and Herzegovina, foreign official, international official, arbiter or juror judge.

Bribing and being bribed in bankruptcy procedure  2 The offence is stipulated only in the Criminal Code of Brčko District and is not recognized as such in other criminal laws in force in Bosnia and Herzegovina.

Demanding, accepting or giving a bribe or an offer/a promise of a bribe by a creditor, a member of the creditors' committee or a bankruptcy administrator to vote/not to vote in a certain way or to act otherwise detrimentally to at least one creditor in bankruptcy proceedings.

Bribing in the performance of business or other activity

Giving or promising, directly or indirectly, a gift or other benefit to a person to conclude a contract or reach a business agreement or provide service, or refrain from such actions, to violate other duties in performing a business or other activity to the detriment/for the benefit of a business entity for/in which he/she works or another legal or natural person mediating in such bribing.

Being bribed in the performance of business or other activity

Demanding or accepting, directly or indirectly, a gift or other benefit to a person to conclude a contract or reach a business agreement or provide service, or refrain from such actions, to violate other duties in performing a business or other activity to the detriment/for the benefit of a business entity for/in which he/she works or another legal or natural person mediating in such bribing.

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The bribe 
Is there a presumption that the advantage was given/received corruptly?No  3 3 Even though the presumption does not exist and the burden of proof that the advantage is received corruptly is on the prosecutor, still in extended confiscation of property the degree of proof is lowered to the level of suspicion/probability. Namely, the court may confiscate even the property that has not directly been proven to have resulted from committing an offence if the prosecution shows that it probably arises from an offence, provided that the court already decided that the offence was committed. The burden of proof in such a situation shifts to the perpetrator who must prove that the property has been legally acquired.  
Would facilitation payments be caught?Yes
Would corporate hospitality be caught?Depend on intent
Is there any de minimis?No
Does the bribe have to be monetary?No
Public officials 
Does the offence only apply to bribing public officials?Yes (exceptions applicable )  4 The Criminal Codes of FBiH, Federation of Bosnia and Herzegovina, RSepublika Srpska and BDrcko District provide that a “responsible person” also refers to responsible individuals in private companies as well as those in public institutions. While not explicit in the Criminal Code of Bosnia and Herzegovina, it may be that these offences could be used in the context of private sector bribery, although there has yet to be a prosecution to confirm the position. Additionally, Criminal Code of RS and Criminal Code of BD specifically criminalize bribing and being bribed while performing business activities, which offences cover not only public officials.
Acts performed outside Bosnia and Herzegovina 
Can bribery performed outside Bosnia and Herzegovina be caught?Yes  5 If the wrongdoer was on Bosnia and Herzegovina soil at the time of committing the offence and the potential penalty for the offence in the country where it was committed is five years’ imprisonment or more.
Does the act also need to be illegal in the foreign country of performance?Yes
Who can be liable 
Bosnian-Herzegovinian  nationals?Yes
Bosnian-Herzegovinian  company?Yes
Bosnian-Herzegovinian partnership (including limited liability partnerships) incorporated?Yes
Director of Bosnia and Herzegovina  company?Yes 
Bosnian-Herzegovinian   company if the bribe is committed abroad by its foreign subsidiary?Yes (if action on behalf of company from Bosnia and Herzegovina)
Foreign subsidiary of an Bosnian-Herzegovinian  company if the bribe is committed abroad?Yes
Foreign national/company/partnership if bribe is committed in Bosnia and Herzegovina?Yes
Foreign national domiciled or “ordinarily resident” in Bosnia and Herzegovina if bribe is committed outside Bosnia and Herzegovina?Yes
Foreign company/partnership if bribe is committed abroad?Yes  6 Foreign company/partnership falls under the jurisdiction of Bosnia and Herzegovina if an offence has been committed against Bosnia and Herzegovina or its citizen, provided that the offender is found in the territory of Bosnia and Herzegovina or extradited there.
Penalties 
Penalties

Individuals

Bribing: imprisonment for up to five years (for performing an unauthorised act; or not doing what should have been done); fine or imprisonment for up to three years (for doing what should have been done (by accepting a facilitation payment); or for not doing what should have been done)

Being bribed: imprisonment for up to ten years (for performing an unauthorised act; or not doing what should have been done); imprisonment for up to eight years (for doing what should have been done (by accepting a facilitation payment); or for not doing what should have been done)

Bribing for trafficking of influence: imprisonment for up to five years

Being bribed for trafficking of influence: imprisonment for up to five years; or imprisonment for up to eight years (for mediating in such a bribe), or for up to ten years (if the person requested or received or accepted a reward or any other benefit for himself or another)

Bribing in the performance of business or other activity: fine and imprisonment for up to 8 years

Being bribed in the performance of business or other activity: fine and imprisonment for up to 5 years

Bribing and being bribed in bankruptcy procedure: imprisonment for up to five years or imprisonment for up to eight years (if committed by a bankruptcy administrator)

+ Confiscation of property gained through the perpetration of the criminal act

Companies

Depending on the circumstances of the individual case: fines, confiscation orders and/or dissolution of the company

Defences 
Are there any defences available?Yes  7 The individual who has given a bribe at the request of an official or responsible person in the institutions of Bosnia and Herzegovina, including a foreign official or international civil servant, can be cleared of charges if he/she reports the deed before it has been discovered or before becoming aware that the deed has been discovered. The gift or other benefit, if seized from the person who accepted the bribe, may be returned to the individual who committed the bribe.