Its importance, novelty and current
In today's society, the crime known as Bribery is being shown too often, which is why many argue that its practice has become almost a habit. Today, a large part of the legislation in criminal matters typifies a set of crimes that are externalized as a form of corruption of public officials, but are rarely configured with the title or legal figure that identifies it as such "corruption".
The crime of Bribery as a representation of Corruption is not a new phenomenon, but has been present since the existence of humanity itself, prevailing in our social environment, attacking the State, but more directly its Administration, by preventing its correct and normal operation.
Corruption has been considered modernly within the sphere of political science, due to the close relationship it has with the spheres of power. This, without discounting that its origins respond to sociological considerations, in view of its relationship with the crisis of values. In the opinion of some, the current absence of ethical values and norms has generated the emergence of a kind of “culture of corruption”.
The key to the topic that interests us is precisely the legal interest protected by this crime, since the development and operation of state activity must proceed in all its areas with honesty and respect, without being affected by unjustified enrichments. On the other hand, important studies carried out in recent years face the problem of corruption not only as an issue that affects the normal development of public administration, but also directly attacks the economy and the possibility of growth of a country.
The current conditions, such as the globalization of the economy, the ease of circulation of people, goods, values and capital, has provided enrichment, both licit and illicit.This is the reason why Corruption has spread even more, at the same time that it is less tolerated; because the modern economy requires a legal framework with greater guarantees for investments and commercial transactions. I mean by this that the figure of the Bribery can be found not only linked to the performance of the Administration at the country level, but in relation to international public servants or officials, and developing even in many countries, in the private business sphere. From the legal-criminal point of view, we see in the analysis of this phenomenon that it can affect legal assets to such an extent that it should be and is in most cases protected by Criminal Law.
Interesting is the fact that the occurrence of Corruption or Bribery as a form of it, depends largely on the specific characteristics of the specific society in which they manifest, hence its social imprint. I say this, considering that in some regions (such is the case of the European Union), the complexity and lack of clarity in the norms that make up their legal systems constitutes one of the factors that stimulates Corruption; that is, the more regulations and laws, the greater the production of infractions; This is the importance of the corresponding harmony, both internal and external, that all legal systems must have.
Although according to what has been said, the crime of Bribery as a form of Corruption manifests itself according to the specific space and moment in which it develops, from my point of view the importance of its treatment as a criminal figure in the different legal systems, is in provide due security to the Public Administration and Jurisdiction. The relevance of this lies in the damages generated by acts of bribery, consisting of citizen mistrust of its institutions, officials and rulers, causing the loss of respect for the political-legal system and the guarantees that it must offer.
In this sense, we can ask ourselves certain specific questions.
What role does the figure of Bribery play, as a form of Corruption, within the Cuban penal regulations referring to Public Administration and Jurisdiction?
The formulation of the crime of Bribery is insufficient within the scope of legal-criminal protection to confront Corruption within the Public Administration and Jurisdiction.
What role does the figure of Bribery play as a form of Corruption within the Cuban penal regulations related to Administration and Jurisdiction.
It is therefore important to inquire about the terms Bribery and Corruption from a historical perspective. Examining the different doctrinal positions in relation to the concepts: Bribery and Corruption.
Consider the regulation given in other legislation and international legal instruments, of Bribery and Corruption.
Valuing the Bribery as a criminal offense of Corruption in terms of its formulation within crimes against the Administration and Jurisdiction.
Background and etymological origin
As it can be interpreted in relation to the naming of the terms, perhaps the confusion is due to the fact that the Romans called Corruption a sudden crime while the Spanish defined it as Bribery. From this derives the different nomenclature given by the different Orders.
The foundation for the emergence of the Roman institution was the abuse of officials, generated by the insurmountable distances that caused the lack of control. Today it is known that Corruption began as a heavily punished crime, since in the Twelve Tables he was sentenced with death. Then in Justinian's time, a generic action was established directed against illicit enrichment, for the restitution of what would have been illegally made to pay or what would have been received by Roman officials with honorary positions, in the performance or exercise of a relative act to their functions. From the time of Rome it was difficult to demonstrate an act of corruption.
The concept was restricted to the act of accepting the bribe, wanting to combat its practice in the exercise of public functions, a very frequent thing during the Empire. In the so-called Intermediate Law there is a confusion between the concussion (of quatere, requirement of gifts) or violent form of the Bribery with the crime peculatus and the abuse of authority. What really wanted to combat was the sale of an act of authority that should be free and on the other hand extortion; known as bribery and concussion respectively.
From the etymological point of view the term corruption comes from the Latin rumpere, which means to break, divide, break, violate, annul; which in turn is derived from corruption, which means alteration, disunity, decomposition, falsification, vice, decomposition of the parts of a body; that is why there are derivations of the term towards the natural and exact sciences. It is also used to indicate social conduct, since it indicates abandonment of social values that regulate behavior in accordance with general norms accepted by a given society; It corrupts, it means then, "spoil, rot." In this way the expression recognizes the presence of two participants in the act, corrupting and corrupt, the one who corrupts and the one who allows himself to be corrupted.That is why the word is used to designate that the essence of the crime consists in the moral corruption of a magistrate.
If the Dictionary of the Royal Spanish Academy is consulted, it refers to corruption as the "action and effect of corrupting or corrupting oneself. Alteration, bribery or vice in material things ”. In this regard, the phrase “he who gives as corrupt as he who receives” has emerged, and as a consequence, the law usually penalizes both parties harshly. The Dictionary itself establishes as one of the definitions of the term "corrupting", the fact of bribing or bribing the judge or any person, with gifts or otherwise. He also accepts as Americanism the term "bribery" to refer to Bribery.
For its part, there are those who argue that Bribery comes from «coemptio» which means purchase in common or in a bad part; others from the Spanish "conhecho" as a reference to a simultaneous or executed action between two people and for some it comes from the Latin voice "confecto" which means prepared, arranged.
The legal dictionary of Mexico defines that it comes from the Latin word confectus, participle of the Latin verb confers, which means to finish, to negotiate.
Doctrinal treatment
Although it can be said that Corruption occurs in almost all branches of Law, the treatment of corrupting acts has fallen more strongly in the criminal sphere, and this is given by the function of this branch of granting protection to the rest of the normative fields when these are not entirely sufficient. From this it is derived that the legal writers have assimilated it with the crimes against the Public Administration and the Jurisdiction, within which is the bribery, which comes to be one of their representations.
Many are the doctrinal criteria that have been treated by the figures of Corruption and Bribery interchangeably, or the latter as a form of the former. Corruption brings up the idea of vice or abuse, the core of the action being a deviation from behavioral parameters. The word corruption is normally used to indicate that the essence of the crime is the abuse of public functions, provided there is an intention to profit. Michael Johnston stressed that there is no single definition of the phenomenon, but that the concept is transformed along with the institutions, as long as it continues to fight internationally and citizen expectations change.
In general, 4 general areas have been proposed referring to Corruption; indicating that there is a political corruption consisting in the use and abuse of public power in the achievement of particular or sectoral benefits, which are not identified with the common good; a bilateral Corruption that requires two subjects for its conformation and can manifest itself in the criminal figure of Bribery and Concussion; Self-corruption as appropriation of public goods officials for their personal benefit, is the case of the embezzler; and the collective corruption of large corporations in order to benefit a specific community or sector.
It is a general criterion that Corruption in the Administrative sphere is the action contrary to the legal norms and ethics of a leader or official, characterized by loss and moral degradation, incompatible with the progress of society; by giving use for personal interests to what must be to the satisfaction of the public or social interest, within the framework of the functions he performs for his position, and which is based on deception, bribery, disloyalty and disorder. Corruption in the Judicial field is also spoken of as the conduct that transgressing the Law develops those authorities who are committed to the administration of justice, in the exercise of their functions, issuing resolutions in which they prevaricate regarding the decisions that justly correspond.
Hurtado Pozo insists that there can be two types of corruption: direct corruption and institutionalized corruption. He says that there is "direct corruption when in the concrete and individual behaviors, the perpetrators, the victims, the object and the motives can be clearly identified or determined." It places it at the low or intermediate level of the civil service hierarchy. On the other hand, institutionalized corruption has a hidden or hidden nature within the high institutional structure. It is a victimless finger, difficult to find out through a common complaint.
For authors like Joseph S. Nay (professor at Harvard University) Corruption is a behavior that deviates from the normal obligations of public order for personal interests or benefits as well as the rules regarding the use of certain types of influences. This is one of the definitions most used by social scientists, always linked to the Public Administration, as a deviation from the operation of the political justification of the powers of the State, which is none other than the public interest.
The use of rewards to influence the judgment of a person of a certain hierarchy, the use of rewards to pervert a person in a position of trust, as well as any unlawful conduct used by individuals or groups to gain influence over the actions of the bureaucracy; they are understood as manifestations of Corruption, seen in a broad sense, which includes behaviors such as Bribery, Trafficking of Influences or Illicit Enrichment. From this edge they understand Corruption as the use by government officials of the position they occupy within the public administration, to avoid a cost or to obtain an undue personal benefit, for themselves or for another. These authors emphasize the individual and voluntaristic character of Corruption.
In a stricter sense, corruption is understood as the legal figure of the Bribery. This is how Garraud refers to him, who states that "… corruption is on the one hand the offering and on the other hand the acceptance of any advantage whatsoever to be or to abstain from doing an act proper to their functions of office or for for him acceptance constitutes passive corruption. This behavior appears regulated in many codes as a co-fact. This theorist has considered corruption as a bribe, whether active or passive, the commissioner being an official or an individual. Thus, the crime of Bribery constitutes par excellence what we know as corruption, regardless of the existence of other criminal figures related to this phenomenon,such as Illicit Enrichment, Prevarication or Abuse of Authority.
In any case, it is a behavior that involves fraud as a form of conscious non-compliance with the norm with the intention of obtaining a benefit, generally economic, for the transgressor, to the detriment of the public economy. Some say that corruption exists when an agent with a certain decision-making capacity uses it, benefiting a third party - the corrupter - with whom his activity leads him to relate, motivated because the beneficiary third party offers him some kind of personal reward. In relation to this definition, it can be objected that the corruptor does not necessarily have to belong to the agent's sphere of action, and on the other hand that the agent's motive is not to benefit the corruptor, but to obtain an advantage in return.
Francisco Carrara, a renowned criminal lawyer, already refers directly to bribery as the " sale between an individual and a public official of an act that belongs to the functions of the public servant and that should be free of charge." He said that «any abuse by a public official of the powers with which he is invested is a serious crime that involves intense political damage. This political damage increases when the abuse of powers is carried out with the purpose of profit… »There was no confidence in obtaining justice before an official who sold his functions.
On this line, many grant him covenant nature with two active subjects, bribery and bribery. It is the case of Sebastián Soler who states that the Bribery is to agree to the sale of an act of authority that should be carried out free of charge, More recently, authors such as Carlos Alberto Mejías place within the bribery any act of material or immaterial consideration, for which the agent promises, proposes or delivers another benefit, advantage or present for the intended purposes.
On what if there is no contradiction is that Corruption or Bribery (in whatever way they are understood) constitute crimes that attack the Public Administration, this being the legally protected object. The specifically protected object is the correct and normal functioning of the Administration as well as the correctness and integrity of its officials or employees. The official's venality is punished within the functions they perform, regardless of the nature of the act itself. In this regard, Carlos Creus, a Spanish treaty writer, points out that "venality, even exercised in relation to an act that the official must legally comply with, deteriorates the proper administrative functioning and endangers the normality of its development."
The act of bribery constitutes an injury or endangerment to the very essence of the public service, since it requires that the official or authority deliberately betray the sense of the management of collective interests acting against the common good., and producing a conversion of public interest into personal interest. There are those who speak of the fact that although the object of protection is essentially the activity of the Public Administration, as it is directly affected, it also affects the assets of individuals who offer money for a service that they should receive free of charge or through the payment of tariffs specified by the legal regulations themselves. Regarding this, we cannot lose sight of the fact that this will depend on the position that the individual occupies as an active subject or not of the figure.
For some like Carrara or Garuad themselves, Bribery is a bilateral crime where at least 2 people attend. It appears as a bribery pact determined by the confluence of proposition and acceptance, where both the official and the individual are simultaneously active subjects of the crime. Similar position seems to have Creus who qualifies it as a crime of necessary participation or necessary codelinquency (positivist school terminology) that requires a partner, inducer and induced. For others such as Binding, Mittermayer and Tejera these are 2 independent crimes, so there is a totally differentiated passive Corruption and an active Corruption.
Really what happens is that although there may be a causal relationship between the offer and the acceptance, with the sole offer of one of the parties or with the mere acceptance of one of them, the crime is already typified, understood to be consummated as being a crime of mere activity and not of result. The Bribery requires that the act to be performed be future or unless there is a prior agreement. When the payment is later or there has been no agreement, there is no Bribery. This is what some have called Apparent Cohesion because there is no initial pact or agreement.
In doctrine, there is a division that distinguishes the Passive from the Active Bribery. There is Passive Bribery when the official, who acts as an active subject of the crime, accepts or receives a gift as an act subsequent to the offer or promise made by the individual, to execute acts that are within the territorial and material competence of his employment. If the act is not related to its functions, a different figure may attend, not the Bribery. For its part, it is affirmed that the Active Bribery is revealed when the individual through violence or threat forces the official to do or omit an act related to his functions in exchange for some benefit. It does not matter for the consummation of the crime, the attitude of the official before the delivery of the gift or when formulating the offer.
The previous positions suffer from some imperfections, in the description of the Passive Bribery for example, the situation that the official himself as an active subject who requests the gift or present on his own initiative, without requiring the proposition of the individual, is not included. In relation to Active Bribery, for its integration the use of violence or threat is not required, the simple proposition, promise or surrender is enough, which can even come from an official whenever he acts as a private individual.
From what has been stated, it is concluded that to be an active subject of the Passive Bribery, the official condition is required, within which the public interests are manipulated, and profits are obtained. This is why it is a crime of a special subject that includes juries, arbitrators, experts or any other person who performs any position in the field of public service. Now the offerer, is any person who acting in a private capacity interferes in the scope of official action.
For a better understanding of the structure of the crime, a second classification is used, which some attribute without reason to the Passive Bribery. This is the distinction between Self-Improvement and Self-Improvement. The Own or Serious Bribery is the performance by the public official of an unjust act, that is, contrary to law, far from common sense, there is unlawfulness in the act and in retribution. The unjust act has not been entrusted to the official, but it is within his reach.
The Improper Bribery is the one that pretends to carry out a just act, in accordance with the Law but which must not be remunerated. Unlawfulness is in undue retribution.
Regarding the subjective element, the author Queralt Jiménez states: «It is a clearly intentional crime; reckless commission is not possible. " This is because there is a subjective link between wanting and doing, since the official is motivated by what is promised or offered, while the other party is guided by the performance of an act that benefits them.
There are those who see in public office the opportunity to enrich themselves and reward friends and family, abusing the trust placed in public institutions. The benefits received are clearly unfair and undeserved, but in order for them to be truly corrupt, they must have binding suitability and motivating sufficiency. Suitability depends on the causal relationship with the violating act of its function. The term gift refers to a thing that can be given, delivered or transferred as a counterpart to the official's action of receiving or admitting it to carry out the agreement. Both promises and gifts must be accepted, and acts of mere gratitude or homage, as well as other recognitions imposed by social use and custom, without intention of corrupting, remain outside the crime.It is already a general criterion that the economic content is not required, it can be any kind of satisfaction, intellectual, sexual, recreational; which may be for the benefit of the bribery or third parties.
A comment referring to the conduct of those who “receive” would be good, since there has been a discussion that it is understood that the person who enters into material possession of the object offered has received, but the question arises as to the goods that certain formalities require for tradition. or delivery (for example real estate or vehicles).
Some believe that as long as these formalities are not complied with, there is no delivery or typical behavior; but the criterion prevails that for the sake of not going unpunished, it is understood that the property has been in possession since the pact was made and not wait for formal procedures; with the fact of possessing the good the intention is already evident. There is no doubt about acceptance, this is when the requested admits or gives his consent to receive what is promised or offered. The Bribery is consummated even if the public servant does not execute the act and even when the individual does not deliver what is offered.
In general, it is appreciated that the criminal type is filled with the following elements: presence of a special subject: the public official, acting by himself or through an intermediary, acceptance, reception or request of gift or advantage, doing or stop doing something (fair or unfair) related to their functions, the intention of obtaining for themselves or for any other profit.
Treatment in the International Institutional Framework and in Comparative Law
In Comparative Law, the best-known forms of corruption are bribery (Bribery), embezzlement, acceptance of inappropriate gifts, fees, money for expedited efforts, cover-up; These change from one legal system to another, expanding or reducing the range of crimes that affect the Public Administration and Jurisdiction.
In order to fight corruption, national and international commissions, entities, plans and implementation conventions have been organized around the world.
In 1989, for example, the 1st International Seminar on Corruption in Public Administration was held in The Hague, in whose final report the need for states to eliminate the scourge of corruption and UN support was pointed out. Between 1980 and 1990 the Special Research Committee on Political Corruption was created by the International Political Sciencie Association, during the International Anti-Corruption Conference. In 1988 the UN Department of Criminal Justice issued the Anti-Corruption Manual Project in Vienna, later named Manual of Practical Measures against Corruption. In the year 1990 itself, the 8th UN Congress on Crime Prevention and Treatment of Offenders was held in Havana, signaling the revision and adaptation of its criminal and procedural laws,to respond to different forms of corruption, improving the design of administrative mechanisms, as well as legal provisions for the confiscation of assets resulting from corrupt practices, and the adoption of economic sanctions against the companies involved, as essential issues. In May 1993, the non-profit organization called Transparency International was founded in Berlin with the aim of fighting corruption in the public sphere.non-profit and in order to combat corruption in the public sphere.non-profit and in order to combat corruption in the public sphere.
The Inter-American Convention, held in March 1996, defines: “Corruption undermines the legitimacy of public institutions, threatens society, the moral order and justice, as well as against the integral development of peoples. Corruption is also criminalized in the 2000 UN Convention against transnational organized crime.
In the framework of comparative law, the European Constitutions have precepts in this regard, for the sake of public ethics against the use of public powers for personal gain. A concrete example is the Nolan Report, document submitted to the British Parliament on May 16, 1995, on standards of conduct in public life »through a study of the phenomenon of corruption. The Report influenced the establishment of principles that must go hand in hand with the actions of public servants for a consolidated public ethic, based on prevention and a policy of sensitivity to citizens' rights. In Spain even the fact between individuals is regulated, expanding the protection framework.
The EU signed a Convention in May 1997 to combat acts of corruption carried out by officials of the Member States of the European Union. It defines Passive Corruption (although not very clearly) when it says: “… a public official, directly or through third parties, requests or receives benefits of any nature, for himself or for a third party, or the fact of accepting the promise of such advantages, for fulfilling or abstaining contrary to his official duties, an act of his function or an act in the exercise of his function ”.
The Portuguese Council of Ministers adopted the Deontological Charter of the Portuguese Public Service, where it is underlined that the affirmation of the rights and guarantees of citizens is based on the existence of ethical values of the public service, and should inspire the behavior of officials.
At the American level, we have that in Ecuador there are novel constitutional rules, which claim that these crimes that have the State Administration and society as a taxable person, do not go unpunished, imposing the imprescriptibility of their action.
In Mexico there is the crime of Bribery typified for the Federal and Local levels. The Mexican criminal law takes into account for the imposition of the sanction the value of the gift or advantage, which does not happen in legislation such as ours, and does not establish differences between the subjects, sanctioning both the official and the individual in the same magnitude.
The Uruguayan Law on Prevention and Fight against Corruption of 1997, is pronounced regarding the conduct that a public official must have, and explains that it is protected with the inclusion of criminal figures such as Bribery in the title of crimes against the Administration Public. He mentions the principles of probity as well as the preeminence of the public interest over any other, good faith in the exercise of power, impartiality in the decisions taken, rectitude in the administration of public resources. It refers that for any action or omission in contravention of the regulations, they will be administratively, civilly or criminally responsible.
Peruvian legislation also underwent a considerable change, extending the punishability framework to Public Ministry officials, which previously included only judges. The typical configuration of the bribery crime includes both passive bribery (action of the public official who requests or receives) and active bribery (action of an individual that offers an advantage to the official).
Some American regulatory bodies define as Concussion the fact that the official does not limit himself to acceptance or receipt, but rather imposes the benefit, while there are those who do not even refer to the initiative of the official and hardly mention a possible insinuation. It is widely believed that to a large extent these behaviors tend to occur due to the wide discretionary power that is commonly granted to public officials.
It is a common criterion that the investigation of any suspected Bribery is always very difficult. The criminal practice has shown that the behaviors against the Public Administration are complex to demonstrate, since they move between the sectors of power and there is talk that they are a kind of victimless crime. The one we have been dealing with is one of the crimes within the calls of the Black Number for some and of “white glove” for others, as they are rarely reported.
The Bribery in the Cuban Penal regulations:
In the Cuban penal regulations the Bribery was not always contained within the legal figures referred to the Administration, in fact the Penal Code of 1889 did not even contemplate it. It was contained in the Social Defense Code of 1939 but in the Title referring to crimes that injure or endanger the Administration of Justice. Currently, such reductionism has been overcome, since it is understood that the reception of a gift or gift in exchange for an act related to their functions can be carried out by all officials, even if they do not have judicial functions.
The Social Defense Code only contemplated the case that the public official received or accepted by himself or by an intermediate person a gift or offer to do or stop doing an act related to the exercise of his position constituting a crime, but he did not foresee that his own official could demand or request. The sanction was less severe when the activity related to its functions did not constitute a crime. For its consummation, the execution of the act was necessary. There was no distinction between the sanction of the individual and that of the official.
Our current criminal regulations: Law 62/1987 has more fully foreseen the set of crimes related to corruption in the Administration and the Jurisdiction, by modifying some and including others (including Trafficking of Influences and Illegal Exactions) and Illicit Negotiations, modification of the Illicit Enrichment). Such is the case of the Bribery that was perfected and included in Title II of the Administration and Jurisdiction, as it constitutes a manifestation of Corruption. The conduct of the Bribery was modified by Decree-Law 175 of 1997 and was defined in the way it currently appears in article 152 sections 1 - 8.
The legal objectivity of this class of infractions is the protection of the normal functioning of the Administration and the Jurisdiction, injured or endangered by the existence of corrupting acts, however the measure of the sanction does not depend on the nature of the acts.
The conduct refers to the one who “receives”, which implies taking, perceiving some object, favor or service that shows the lucrative spirit. The completion of the act by the official or employee is not required for the consummation of the crime, the acceptance of the proposal is enough. The exercise of the functions (active or omission) can be for the benefit of the person or a third party. It is essential that the act be relative to the functions and powers of the administrative official. When the conduct consists of "accepting" or "demanding", the sanctioning framework changes, this is so because despite the fact that with the acceptance the crime of section 2 is already consummated, it may not be received due to repentance or non-compliance by the other party.. On the other hand, the sanction becomes more severe when requested or demanded,This constitutes a novelty since many writers claim that there can be no active official conduct without prior passive conduct by the individual, which is ruled out in the Cuban Ordinance.
Section 7, currently criticized by some writers, such as Esp. Danilo Rivero, deals with the official who, with abuse of his powers, obtains benefits from any case. The criticism starts from the possible confusion that such a description can give with other figures. However, in Cuban criminal practice, the Supreme Court has repeatedly classified criminal conduct as standard.
Subjects of the passive Bribery (sections 1,2 and 3) of a special nature may be: employees and public officials, the latter defined in article 173, as well as those who intervene as experts or auditors in acts of justice, although the latter without designated functions directly linked to public activity. For its part, 152.4, regarding the active Bribery makes a general mention "He who…", without giving special treatment to certain individuals, as legislation such as Argentina does where the bribery worsens when the active subject is another public official, and the penalty also includes the special disqualification of said subject. It does not exclude that the subject may be an official as long as he does not act as such.
The formula is quite broad when it refers to the gift, present or benefit and although it is questioned whether the crime is integrated when the advantage has no economic content, it is usually established that it can be an enjoyment that is valued by the subject as long as he has the capacity to corrupt.
From what has been said, we see that our legislation does not accept this distinction between Active Bribery and Passive Bribery, but it is inferred from the regulation of different types of crime. The same occurs with the theoretical positions in Cuba that distinguish the proper Bribery from the improper without being reflected in the norm. However, the unjust requirement was eliminated within the elements of the type, that is, both the unjust act (own bribery) and the just act (improper bribery) are sanctioned.
Our positive law to what does not conform is to the bilateral thesis of the Bribery, which raises the existence of a conspiracy between both subjects for the consummation of the crime. The current Penal Code establishes as a crime of Consummate Bribery both the request for the gift by the official not accepted by the individual and the attempted corruption by the individual, not accepted by the official.
The crime of bribery in general, does not admit attempt and that all the acts prior to the consummation of the typical action, although they are directly related to its perpetration, do not go beyond unpunished preparatory acts, since the crime in question is bribery active or passive, it is pure activity (it does not require any result, not even the acceptance of the proposal).
The phenomenon of Corruption in Cuban legislation, although it does not have such a denomination as a criminal figure, is fought not only in our substantive Law by figures such as the Law of Bribery, but by other provisions that reinforce the protection that the Administration's performance deserves. and the Jurisdiction. Such is the case of Law 49 Labor Code, Decree Law 159 of Auditing, Decree Law 149 On Confiscation of Assets and Income obtained through Illicit Enrichment, Decree Law 192 of the State Financial Administration, the Commercial Code, the Law No. 77 Foreign Investment Law, as well as other legal bodies for better control and organization such as the National Accounts Plan, the General Accounting Principles and Standards, and the Control Principles, among others.
From another edge, the Code of Ethics of the Pictures of the Cuban State was inserted, to govern the actions of all the leaders of the public sector. Then in 2001, the Code of Judicial Ethics was approved, which establishes the obligation to “reject gifts, benefits, perks or offers that compromise or question the honest and disinterested conduct of judicial workers.” This is an evident manifestation that corruption should not only be faced from the penal level with the severity of the sanctions, but that the control of the administrative, political and economic management of the public official is also effective. It would also be productive to achieve an internal modification of both the server and the individual, immersed in the loss of values.
Corruption as a use of public powers for the satisfaction of personal interests has existed for a long time. Regardless of the theoretical and normative criteria that equate or distinguish the phenomena of Corruption and Bribery in their treatment, it must be understood that the latter is a manifestation of the latter.
Although for many what is affected by corrupt acts are diffuse interests, today it is evident that they affect the role of the Public Administration and Jurisdiction, and indirectly, society in general.
At the international level, the fight against corrupt manifestations has become increasingly urgent, generating the creation and improvement of important instruments of a national and international nature, despite the theoretical-practical foundations that characterize each political-legal system.
The formulation of the figure of the Bribery within the Cuban penal regulations is insufficient for the effective confrontation of Corruption, in the sphere of protection of Public Administration and Jurisdiction. This is due to the fact that Corruption involves certain behaviors that go beyond the framework typified by the figure of bribery; However, there is a whole set of penal norms that contribute to confronting and preventing these manifestations in the civil service field. This is manifested in our substantive criminal law with the regulation of others related to the operation and impartiality of the Administration and Jurisdiction, as well as other regulatory bodies that provide their support through ethical and control standards.
Bibliography
Cairoli Milton. Second Criminal Law Course. Special Part. Volume II. University Culture Foundation. 1986.
Creus Carlos. Criminal law. Special Part. Volume 2, Buenos Aires, 1997, Page 270)
Slim Valley, Pearl. Globalization and Corruption.
Grillo Longoria, José Antonio. Crimes in Kind. Volume I. Legal Editions. Social Sciences Editorial. Havana 1982. (Chapter 7 Crimes against Administration and Jurisdiction. Continued)
Holguín Year. 2006.
Martínez Álvarez, Alberto. Corruption: its prevention and confrontation from the judicial organs in current Cuban society.
Puig Peña, Federico. Criminal law. Tax attorney. Answer to the programs of the oppositions to the Judiciary and the Public Ministry. Second edition. Volume II. Licili. Barcelona, 1950.
Quirós Pírez, Renén. Manual of Criminal Law I. Legal Sciences. Editorial Félix Varela. Havana 2005.
Collective of Authors. Special Criminal Law. Law School. Havana University.
Judicial Code of Ethics. People's Courts Republic of Cuba. February 2001. Printed in the Supreme People's Court.
Inter-American Convention against Corruption. Saint Joseph. June 2005.
Inter-American Institute of Human Rights IIHR. Swedish International Development Cooperation Agency. Adopted in 3rd plenary session on 3/29/1996. Edition year 2005.
United Nations Convention against Transnational Organized Crime. 2000.
Convention to combat the Bribery of foreign Public Servants in International Commercial Transactions & Complementary Documents.
