Contributed by Selih & Partnerji.
1. Legal Framework
1.1. What is the legal framework for bribery and corruption in your jurisdiction?
The main legal framework governing bribery and corruption in Slovenia consists of the following laws:
- the Integrity and Prevention of Corruption Act (Official Gazette of the Republic of Slovenia, no. 69/11; as amended) (ZIntPK) which, in order to strengthen the functioning of the rule of law, determines measures and methods for strengthening integrity and transparency, for preventing corruption and preventing and eliminating conflicts of interest;
- the Criminal Code (Official Gazette of the Republic of Slovenia, no. 50/12; as amended) (KZ-1) which provides for criminal liability for criminal offenses, including bribery, corruption, and other corruption-related criminal offenses. It codifies eight corruption-related criminal offenses, of which some are related to specific circumstances, namely:
- the criminal offense of unauthorized acceptance of gifts (Art. 241);
- the criminal offense of unauthorized giving of gifts (Art. 242);
- the criminal offense of acceptance of a bribe (Art. 261);
- the criminal offense of giving a bribe (Art. 262);
- the criminal offense of accepting benefits for illegal intervention (Art. 263);
- the criminal offense of giving gifts for illegal intervention (Art. 264);
- the criminal offense of acceptance of bribe during the election/ballot (Art. 157);
- the criminal offense of obstruction of the voter’s freedom of choice (Art. 151).
- the Liability of Legal Persons for Criminal Offenses Act (Official Gazette of the Republic of Slovenia, no. 98/04; as amended) (“ZOPOKD”) which determines the conditions for criminal liability of legal entities, penalties, warning sanctions or safety measures, and the legal consequences of conviction of legal entities;
- the Rules on restrictions and duties of officials as regards acceptance of gifts (Official Gazette of the Republic of Slovenia, no. 106/21; as amended) which regulates the manner of disposal of gifts, the value of gifts, management, and the content of the list of gifts received by public officials or their family members in connection with the performance of a function, work, or public service, or in connection with their position, as well as other implementation issues related to prohibitions, restrictions, and duties of public officials in accepting gifts;
- the Resolution on the prevention of corruption in the Republic of Slovenia (Official Gazette of the Republic of Slovenia, no. 85/04) of which purpose is to create a reasonably high level of anti-corruption culture on a personal and general social level;
- the Guidelines for the development, establishment and implementation of integrity plans of which purpose is aimed at strengthening the integrity of the public sector and the rule of law.
1.2. Which international anti-corruption conventions apply?
In Slovenia, the following international anti-corruption conventions (as ratified international instruments) apply:
- the United Nations Convention against Corruption (UNCAC);
- the Criminal Law Convention on Corruption (CETS 173) with the Additional Protocol to the Criminal Law Convention on Corruption (ETS No. 191);
- the Civil Law Convention on Corruption (CETS 174);
- the Convention against Bribery of Foreign Public Officials in International Business Transactions (OECD Anti-Bribery Convention);
- the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime;
- the Convention drawn up on the basis of Article K.3 (2) (c) of the Treaty on European Union on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union.
Furthermore, Slovenia is also bound by obligations regarding bribery and corruption arising from its membership in the United Nations, European Union, Council of Europe (and GRECO), and OECD.
1.3. What is the definition of bribery?
In the Slovenian legal system, bribery is not defined in any of the abovementioned legal instruments. When describing the criminal offenses of bribery and bribery-related criminal offenses (Articles 241, 242, 261, and 262 of the KZ-1), the KZ-1 specifies this term in more detail as “gratuity, gift or other benefit or promise”.
However, the ZIntPK defines corruption as a broader concept and includes other legal areas in addition to the scope of criminal law. The ZIntPK defines corruption as “any violation of the duty of official and responsible persons in the public or private sector, as well as the conduct of persons who are the initiators of violations, or persons who can benefit from the violation, due to directly or indirectly promised, offered, requested, accepted or expected benefits for oneself or another.” The concept of corruption is limited only to actions that constitute a (successful) attempt to impermissibly influence the decision-maker. In this respect, corruption is mostly equated with bribery. The essential element of acts of corruption is accepting and giving a bribe for future (illegal) conduct. Corruption leads to decisions being made under the influence of circumstances that do not arise from the actual situation or from applicable law but are dictated in particular by the promise of direct or indirect material or immaterial benefits.
1.4. Is private sector bribery covered by law? If yes, what is the relevant legislation?
Yes. The main law governing bribery in the private sector is the KZ-1, namely Articles 241 (unauthorized acceptance of gifts) and 242 (unauthorized giving of gifts):
- Paragraph one of Article 241 (unauthorized acceptance of gifts) stipulates that “Whoever, in the course of carrying out a commercial activity, requests or accepts for himself/herself (hereinafter referred to as himself) or for another an unauthorized gratuity, gift or other benefit, or a promise or offer of such a benefit, so as to neglect the interests of, or cause damage to, his organization or another natural person, for the purpose of obtaining or retaining business or any other unauthorized benefit, shall be liable to imprisonment for a term of between six months and six years and to a pecuniary fine.” Paragraph two of Article 241 stipulates that “The perpetrator of a criminal offense referred to in the preceding paragraph who requests or accepts an unauthorized gratuity, gift or other benefit, or a promise or offer of such a benefit, for himself or for another, as a quid pro quo for the purpose of obtaining or retaining a business or other benefit, shall be liable to imprisonment for a term of between three months and five years and to a pecuniary fine,” whereby paragraph three of said article further stipulates that “The perpetrator who, after concluding a transaction or performing a service or obtaining any other unauthorized benefit, requests or accepts for himself or for another an unauthorized gratuity, gift or any other benefit, shall be liable to imprisonment for a term not exceeding four years and to a pecuniary fine.”
- Paragraph one of Article 242 (unauthorized giving of gifts) stipulates that “Whoever promises, offers or gives an unauthorized gratuity, gift or other benefit to a person carrying on a commercial activity for the purpose of obtaining for himself or for another any undue advantage in obtaining or retaining business or any other unlawful advantage referred to in paragraph one of Article 241, shall be punished by imprisonment for a term of between six months and six years and a pecuniary fine.” Paragraph two of Article 242 stipulates that “Whoever promises, offers or gives to a person carrying on a commercial activity an unauthorized gratuity, gift or other benefit for him or for someone else in return for obtaining or retaining a business or other benefit, shall be punished by imprisonment for a term not exceeding four years and a pecuniary fine.”
1.5. What is the definition of a public official and a foreign public official? Are employees at state-owned or state-controlled enterprises treated differently? Are there official lists of public officials, offices, or state-owned or state-controlled enterprises?
Slovenian criminal law doctrine distinguishes between domestic and foreign public officials. Both are defined in Article 99 of the KZ-1. The distinction depends on whether the person has a position or performs tasks in the Republic of Slovenia (a domestic public official) or in a foreign country or international organization (a foreign public official).
A domestic public official is broadly defined as:
(1) a member of the National Assembly (drzavni zbor), a member of the National Council (drzavni svet), or a member of a local or provincial representative body;
(2) a judge, juror, public prosecutor, or state attorney;
(3) a person who performs official duties or holds an official position with managerial powers and responsibilities in a state authority or self-governing local authority or other public law body;
(4) a person who performs individual official duties on the basis of the powers granted by law, by regulations issued on the basis of the law (public authority), or by arbitration agreement concluded on the basis of the law;
(5) a military person, who is defined as such by special regulations, but when it comes to special criminal offenses in which an official person is mentioned, whereby they are not defined as criminal offenses against military duty.
A foreign public official is defined as:
(1) a person who, at any level, performs a legislative, executive, or judicial function or other official duty in a foreign country and in terms of content fulfills the conditions from points 1, 2, or 3 of the definition of a domestic public official;
(2) a person recognized as an official within an international public organization and in terms of content fulfills the conditions from points 1, 2, or 3 of the definition of a domestic public official;
(3) a person who performs a judicial, prosecutorial, or other official function or duty with an international court.
Employees at state-owned or state-controlled enterprises are not considered to be public officials as they do not meet the criteria for public officials. In terms of criminal law, such persons are not treated any differently than employees in the private sector when it comes to bribery and anti-corruption.
In addition to public officials, KZ-1 also uses the term “public employee.” However, “public employee” is defined in the Public Employees Act (Official Gazette of the Republic of Slovenia, no. 63/07; as amended) and covers “individuals who enter into an employment agreement in the public sector.” The Public Employees Act explicitly excludes from the definition of a public employee “public undertakings and companies in which the State or a local authority holds a majority share or has a dominant influence,” as these are not part of the public sector.
There are no official lists of public officials, however, whether a person is a public official could potentially be checked by reviewing the publicly available data of the body/authority in question (e.g., by reviewing the website of the National assembly, of the courts, etc.).
Furthermore, the Slovenian Commission for the Prevention of Corruption (KPK) operates the Erar application/website, which, by publicly displaying the flow of money between the public and private sectors, contributes to more accountable actions by public officials to ensure the efficient and effective use of public funds, allows for a reasoned debate on the investments adopted and planned, and reduces the risks of mismanagement, abuse of power and, above all, systemic corruption, unfair competition, and clientelism.
Further to the above, the Slovenian State Holding (SDH) as the manager of Slovenia’s capital investments regularly updates the list of direct investments (companies owned by the Republic of Slovenia or SDH) on its website.
1.6. Are there any regulations on political donations?
Political donations are regulated in the Political Parties Act (Official Gazette of the Republic of Slovenia, no. 100/05; as amended). In this respect, Article 21 provides that a political party acquires funds, among other things, also through donations/contributions from natural persons. Donations to political parties and campaign funding by legal entities, both public and private, are thus completely banned. The main purpose of this ban is to prevent corruption, intertwining of parties and companies and the perception of a debt owed by a political party to the company that made the donation.
According to the law, a donation/contribution to a party is, in addition to a monetary contribution, also any gift or other non-monetary contribution, free service for the party, acceptance of the party’s obligations or the provision of services for the party, or the sale of goods to the party under conditions that put the party in a more favorable position than other service users or other buyers of these goods. The contributions of each natural person may not exceed, in the aggregate amount for the year for which the annual report of the party is made, 10 times the average gross monthly salary per worker in the Republic of Slovenia.
Political parties are obliged to provide information on natural persons in their annual reports when they make donations totaling more than the average gross monthly salary.
The Court of Audit (Racunsko sodisce) is responsible for monitoring the implementation of these provisions. The fines for infringements range from EUR 4,200 to EUR 21,000 for political parties, from EUR 600 to EUR 1,200 for natural persons, from EUR 450 to EUR 900 for the responsible person of a party, from EUR 6,000 to EUR 30,000 for a legal person making a contribution to a party, and from EUR 1,500 to EUR 4,000 for the responsible person of a legal person. In the event of serious infringements, the funding of a party may also be suspended for a period of one year.
1.7. Are there any defenses available?
For corruption-related criminal offenses, Slovenian law does not provide for any special defenses, except those that are in general available in criminal proceedings for all suspected or accused persons. Certain leniencies are, however, allowed in Slovenian criminal law – for more details please see Sections 5.5. and 5.6.
1.8. Is there an exemption for facilitation payments?
As a general rule, all forms of bribery/corruption, including facilitation payments, are prohibited in Slovenia. According to Slovenian criminal law, a bribe is any benefit to which the recipient of the benefit has no legal claim and which objectively improves his or her economic, legal, or even just personal position. Material benefits in the sense of a bribe include any material improvement in the position of the recipient of the benefit. In addition to money and valuable objects, material benefits include giving objects for use, granting of rebates, and other benefits, granting of loans, forgiveness, deferral, reduction, or non-payment of debts, the provision of services or execution of works, etc. In addition to material benefits, immaterial benefits are also prohibited (e.g., invitations to lectures, receptions, etc., which can then also be intertwined with material benefits).
1.9. What are the criminal sanctions for bribery? Are there any civil and administrative sanctions related to bribery cases?
According to the KZ-1, the penalty for individuals depends on the sanction prescribed for each individual criminal offense. The prison sentence for corruption-related criminal offenses is prescribed in the range of up to eight years (it may vary depending on the type of criminal offense) while the amount of pecuniary fine is not determined in advance but is calculated on the basis of the perpetrator’s income, the value of his property, the average costs of his living, and obligations to his family. In any event, an award, a gift, or any other benefit given or received is always forfeited. There are several other sanctions that could be imposed on the perpetrator (in addition to or instead of, depending on the sanction and the crime): deportation, court warning, prohibition from practicing a profession, house arrest, and community service.
Furthermore, monetary fines for violations of the ZIntPK can amount to up to EUR 1,200 (for an individual) or up to EUR 4,000 (for a responsible person), depending on the type of violation.
In the field of civil law:
- ZIntPK expressly stipulates that a contract in which a promise, offer, or an unauthorized advantage is made, in the name of or on behalf of another party to the contract, to a representative or agent of a public sector body or organization, for (i) obtaining a business, (ii) concluding a deal under more favorable conditions, (iii) failing to supervise the performance of contractual obligations, or (iv) other conduct or omission that causes damage to a body or organization from the public sector or makes it possible to obtain an unauthorized benefit (anticorruption clause), shall be null and void. Public sector bodies and organizations shall be obliged to include the anticorruption clause as a compulsory component of contracts with a value exceeding EUR 10,000 (excluding VAT) concluded with tenderers, sellers of goods, services, or contractors of works, taking into account the specific case. This provision shall also apply to the conclusion of contracts with suppliers, vendors, or contractors of works or services outside the territory of the Republic of Slovenia.
- The Slovenian Obligations Code (Official Gazette of the Republic of Slovenia, no. 97/07; as amended) (OZ) regulates liability and compensation for damages. Such damage may also be caused by acts of corruption or bribery. In addition to that, OZ also regulates the employer’s liability for damage caused by an employee at work or in connection with work to a third party, and the right to claim compensation directly from the employee if the employee caused the damage intentionally. This could be relevant in the case of corrupt practices. Furthermore, the Slovenian Criminal Procedure Act (Official Gazette of the Republic of Slovenia – no. 176/21, as amended) (ZKP) also enables the injured party to file their claim for compensation during the criminal proceedings. The claim can thus be made either in criminal proceedings or in a separate civil procedure before the competent civil court.
- According to the ZIntPK, whistleblowers have the right to compensation in the event of a report of corrupt behavior and subsequent retaliatory measures are taken by the employer. For more details, please see Section 3.3.
Further to the above, one of the reasons for termination of the employment agreement is also if the employee violates a contractual or other obligation from the employment relationship and the violation constitutes a criminal offense. This could also be relevant in the case of corrupt practices.
1.10. Does the national bribery and corruption law apply beyond national boundaries?
Yes. The KZ-1 applies (i) to anyone who commits a criminal offense on the territory of the Republic of Slovenia, (ii) to a foreigner who commits a criminal offense outside the Republic of Slovenia against the Republic of Slovenia or against a national of the Republic of Slovenia, (iii) to a foreigner who commits a criminal offense against a foreign state or against a foreigner abroad, if they are caught on the territory of the Republic of Slovenia but are not extradited to a foreign state, and (iv) to anyone who commits any criminal offense abroad which, under international treaties or under general principles of law recognized by the international community, is prosecutable in all countries, irrespective of where it was committed (provided that permission to prosecute is given by the Slovenian Minister of Justice).
1.11. What are the limitation periods for bribery offenses?
The KZ-1 provides for two types of limitation, namely (i) the limitation of criminal prosecution (which extinguishes the right of the state to prosecute an individual or to enforce criminal liability against an individual) and (ii) the limitation of enforcement of a criminal sanction (which extinguishes the right of the state to enforce a criminal sanction that has been finally imposed on an individual). The limitation period is generally determined by the upper limit of the penalty of imprisonment for the criminal offense. The limitation periods for bribery offenses vary from six to 20 years, depending on the criminal offense.
For legal entities, the enforcement of a criminal sanction shall be time-barred within a certain period of time after the judgment imposing the sentence has become final, namely:
- three years in the case of the enforcement of a pecuniary fine;
- five years in the case of execution of confiscation of property, liquidation of the company, or prohibition of disposal of securities.
In civil law, if the damage was caused by an act that was influenced directly or indirectly by offering, giving, accepting, or demanding a bribe or any other benefit or the promise thereof, or by failing to act to prevent an act of corruption, or by another act that according to the law or an international treaty means corruption, the claim shall be time-barred to five years from the time when the injured party became aware of the damage and of the person who caused it, but in any event within 15 years from the time when the act was committed.
1.12. Are there any planned amendments or developments to the national bribery and corruption law?
The last major change to corruption legislation was in October 2020, when the Act Amending the Integrity and Prevention of Corruption Act (ZIntPK-C; Official Gazette of the Republic of Slovenia, no. 158/20) was adopted. To our knowledge, there are no planned amendments or developments to the national bribery and corruption laws in the foreseeable future. However, since financial crimes are considered a threat to society and given that there is a noticeable trend in the prosecution of criminal offenses in the field of finance in recent years, it is expected that special focus will be put on bribery and corruption-related criminal offenses in the future, both prosecution-wise and legislative-wise.
2. Gifts and Hospitality
2.1. How are gifts and hospitality treated?
As a general rule, the ZIntPK provides that public officials (or their family members) may not accept gifts or other benefits in connection with the performance of their function or public service, or in connection with their position. The ZIntPK provides an exception to when accepting a gift is permitted in the case of:
(i) “protocol gifts” – i.e. gifts given by foreign or domestic legal or natural persons at work events, which, regardless of their value, become the property of the employer of this official person;
(ii) “occasional gifts of lesser value” – i.e. gifts that are traditionally or usually given at certain events (cultural, celebratory, completion of education, training, holidays, etc.) or when performing diplomatic activities and whose value must not exceed EUR 100 (regardless of the form of the gift and the number of donors of a single gift).
If the gift does not represent a gift under (i) or (ii), a public official (or their family member) is obliged to warn the donor of the prohibition on accepting gifts and to refuse the gift offered. If the donor insists on the gift, the public official or their family member shall be obliged to hand over the gift to the public official’s employer.
Furthermore, the ZIntPK expressly stipulates that under no circumstances a public official or a member of their family may accept a gift:
- if the delivery or acceptance of such a gift would constitute a criminal offense;
- if this is prohibited by another law or regulations issued on its basis;
- if money, securities, gift certificates, and precious metals are given as a gift;
- if the acceptance of the gift would affect or create the appearance of having an effect on the impartial and objective performance of the public official’s duties.
Gifts exceeding 50 EUR in value shall be entered in the list of gifts. For this purpose, the KPK operates the Erar application/website and maintains a list of received gifts, which contains information on the type of the gift and its estimated value, the donor, and other circumstances of the gift. Supervision over reporting is carried out by the KPK which may also issue fines in case of violations.
2.2. Does the law give any specific guidance on gifts and hospitality in the public and private sectors?
As for the public sector, please see Section 2.1.
As for the private sector, there is no such guidance.
2.3. Are there limitations on the value of benefits (gifts and hospitality) and/or any other benefit) that may be given to a government/public official? If so, please describe those limitations and their bases?
Yes, these limitations are expressly defined in the ZIntPK and the Rules on restrictions and duties of officials as regards acceptance of gifts – for more details please see Section 2.1.
2.4. Are there any defenses or exceptions to the limitations (e.g., reasonable promotional expenses)?
Provided that the legal framework outlined above (please see Section 2.1.) and the circumstances of the individual case are taken into account, such a defense is possible. Namely, the Rules on restrictions and duties of officials as regards acceptance of gifts expressly stipulate that:
- A gift of symbolic meaning, which is traditionally given at certain events (plaques, badges, flags, promotional material, and other items of a similar nature) is not considered a gift in connection with the performance of work;
- when the predominant purpose of the gift is its commemorative, historical, or suitable symbolic value (e.g., medals or commemorative and collector coins issued by the central bank or other similar institutions), taking into account the legal prohibitions and restrictions for prohibited gifts in the form of money, securities, or precious coins, such a gift is not considered a gift.
3. Anti-corruption compliance
3.1. Are companies required to have anti-corruption compliance procedures in place?
There are no specific provisions in national law that oblige companies in the private sector to have anticorruption compliance procedures in place. However, the implementation of a compliance program to prevent bribery could be useful as one element of defense and the court may consider it as a mitigating circumstance when determining the sanction (within the statutory limits).
As regards the public sector, according to the ZIntPK, only state authorities, self-governing local communities, public agencies, public institutions, and public funds must formulate and adopt an integrity plan and inform the KPK thereof. The integrity plan is a strategic, development, and operational process that assesses exposure to integrity violations and corruption risks, identifies risk factors for corrupt and other illegal and unethical practices, and defines measures to manage these risks. It contains: (i) an assessment of the institution’s corruption exposure, (ii) personal names and positions of persons responsible for the integrity plan, (iii) a description of the areas and method of decision-making with an assessment of exposure to the risk of corruption and suggestions for improving integrity, (iv) measures for the timely detection, prevention and elimination of corruption risks, and (v) other parts of the plan, as defined in the guidelines of the ZIntPK.
3.2. Is there any official guidance on anti-corruption compliance?
Yes, namely Guidelines for the development, establishment and implementation of integrity. These guidelines determine the creation and implementation of an integrity plan and a system for monitoring the implementation of the integrity plan and its evaluation.
3.3. Does the law protect whistleblowers reporting bribery and corruption allegations?
Yes. According to Article 23 of the ZIntPK, anyone may report to the KPK or any other competent authority a corrupt practice in a state authority, local authority, holder of the public authority, or other legal person governed by public or private law, or the conduct of a natural person which they believe to be indicative of corruption. Without a court decision, the identity of a person who has reported a corrupt practice in good faith, or who has reasonable grounds for believing that the information provided in connection with their report is true, may not be established or disclosed.
Furthermore, if the conditions for the protection of the whistleblower or their family members under the Witness Protection Act (Official Gazette of the Republic of Slovenia, no. 81/06; as amended) are fulfilled in relation to a corruption report, the KPK may submit to the Commission for the Protection of Persons at Risk a proposal for the inclusion of the whistleblower in the protection program or an initiative to the Supreme State Prosecutor for the implementation of urgent protection measures.
In addition to the above, if whistleblowers are subjected to retaliation as a result of the report of corruption practices and suffer adverse consequences, they have the right to claim compensation from their employer for the damage caused. In this respect, the KPK may assist whistleblowers in establishing a causal link between the adverse consequences and retaliatory measures. Where a causal link is established between the report and the retaliatory measures, the KPK shall require the employer to ensure that the conduct in question (retaliation) ceases immediately. In the case of public employees, if the retaliatory measures continue despite the request of the KPK and it is impossible for the whistleblower to continue working in their post, they may request a transfer to another equivalent post from their employer.
At the EU level, Directive (EU) 2019/1937 of the European Parliament and of the Council on the protection of whistleblowers was adopted on October 23, 2019, requiring EU Member States to adopt an appropriate legislative framework by December 2021 to ensure that all organizations with more than 250 employees and all municipalities with more than 10,000 inhabitants have appropriate reporting mechanisms in place. Such requirements would later also apply to all companies with more than 50 employees. The Ministry of Justice drafted a Whistleblower Protection Act in December 2021, however, it has not been adopted yet.
4. Corporate criminal liability
4.1. Can corporate entities be held liable for bribery and corruption? If so, what is the nature and scope of such liability?
Yes, a legal entity may be subject to criminal liability for bribery and corruption. ZOPOKD explicitly defines a list of criminal offenses for which a legal entity can be held criminally liable. Criminal offenses of bribery and corruption are included on this list.
According to the ZOPOKD, a legal person may be held criminally liable for a criminal offense if the perpetrator acted on behalf of, for the account of, or for the benefit of a legal person and:
- the committed criminal offense means the execution of an unlawful resolution, order, or approval of the management or supervisory bodies;
- the management or a supervisory body influenced the perpetrator or enabled them to commit the criminal offense;
- the legal entity acquired unlawful material gain or the objects created through the criminal offense; or
- the management or supervisory body failed to duly supervise the legality of the conduct of its subordinate employees.
The criminal liability of legal entities for criminal offenses is partially accessory, meaning that a legal entity is criminally liable for its contribution to a criminal offense, whereby for its criminal liability, it is not necessary for the perpetrator to also be found guilty. It is sufficient that the perpetrator has objectively fulfilled the legal elements of a criminal offense with their conduct.
Domestic and foreign legal entities are criminally liable for (i) criminal offenses committed on the territory of the Republic of Slovenia and (ii) criminal offenses committed abroad, if the legal entity has its seat on the territory of the Republic of Slovenia or carries out its activity there, and the criminal offense was committed against the Republic of Slovenia, its citizens, or a domestic legal entity.
Furthermore, in certain cases, a domestic legal entity may also be criminally liable for a criminal offense committed abroad against a foreign country, a foreign citizen, or a foreign legal entity.
4.2. Can a company be liable for a bribery offense committed by an entity controlled or owned by it? Are there requirements for the parent to avoid liability in these situations?
There are no provisions in the Slovenian criminal law prescribing the liability of the company for a bribery offense committed by an entity controlled or owned by it.
4.3. Can a company be liable for corrupt actions of a third-party agent engaged to help it obtain or retain business or a business advantage (such as government or regulatory actions or approvals)? If so, are there measures recognized in law, enforcement, or regulatory guidance to mitigate this liability?
Yes. A legal entity can be criminally liable for a criminal offense regardless of the legal relationship between the perpetrator and the legal entity, provided that all criteria for the criminal liability of this legal entity are established (for more details on the criteria please see Section 4.1.). This means that a legal entity can also be criminally liable for corrupt actions of a third-party agent.
There are no specific provisions in national law that would mitigate this criminal liability of a legal person. However, implementation of a compliance program to prevent bribery could be useful as one element of defense (in assessing whether the management or supervisory bodies of the legal entity have exercised due supervision of the actions of employees and third-party agents) and the court may consider it as a mitigating circumstance when determining the sanction (within the statutory limits).
4.4. What are the sanctions for the corporate criminal entity?
Sanctions for legal entities are stipulated in the ZOPOKD and depend on the prescribed prison sentence for the individual perpetrator according to the KZ-1. For corruption-related criminal offenses, the following sanctions may be imposed on a legal entity:
- for criminal offenses for which a penalty of up to three years of imprisonment is prescribed for the perpetrator, a pecuniary fine of up to EUR 500,000, or up to a maximum of 100 times the amount of damage caused or unlawful material gain obtained through the criminal offense;
- for criminal offenses for which a penalty of over three years of imprisonment is prescribed for the perpetrator, a pecuniary fine of a minimum EUR 50,000, or up to a maximum of 200 times the amount of damage caused or unlawful material gain obtained through the criminal offense;
- for criminal offenses for which a penalty of five years imprisonment (or more) is prescribed for the perpetrator, confiscation of property may be imposed instead of a pecuniary fine.
In general, a pecuniary fine may not be lower than EUR 10,000 and not higher than EUR 1 million. If the criminal offense caused damage to a third party or if a legal entity obtained unlawful material gain, a pecuniary fine may amount to a maximum of 200 times such damages or material gain. The imposed pecuniary fine also depends on the economic power of the legal entity.
If special conditions from the ZOPOKD are met, the court may also impose the liquidation of the respective legal entity, forfeiture, and/or prohibition of disposal of the securities that it holds. The court may also impose a security measure prohibiting a legal entity from performing a business activity.
Furthermore, if a legal entity is found criminally liable, sanctions under the Public Procurement Act (Official Gazette of the Republic of Slovenia, no. 91/15, as amended) (ZJN-3) could also be imposed upon such a legal entity. Namely, in accordance with the ZJN-3, the contracting authority shall exclude a legal entity from participation in the public procurement procedure for a period of five years if it finds that a final judgment that has elements of bribery or corruption-related criminal offenses has been rendered upon such a legal entity. However, a legal entity may provide evidence to the contracting authority that it has taken sufficient measures to demonstrate its reliability despite the existence of grounds for exclusion. Upon demonstration of the measures, the contracting authority may decide whether to exclude the company from the public procurement procedure or not.
Companies convicted of bribery offenses may also face exclusion from public procurement procedures under Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC.
5. Criminal proceedings into bribery and corruption cases
5.1. What authorities can prosecute corruption crimes?
Corruption crimes may be investigated by the police and/or the National Bureau of Investigation (Nacionalni preiskovalni urad) (NPU) as part of the criminal police and as a specialized criminal investigation unit at the national level for the detection and investigation of serious criminal offenses, especially economic and financial crime, and corruption.
Corruption crimes may then be prosecuted by the state prosecutor’s office. However, a Specialized State Prosecutor’s Office (SDT) was established to prosecute the most complex crimes which require special organization and capacity of prosecutors and the highest level of efficiency. Among other criminal offenses, the SDT is responsible for prosecuting perpetrators of corruption-related criminal offenses.
Furthermore, in individual cases of complex criminal offenses, in particular in the fields of, inter alia, corruption which require prolonged, targeted action of several bodies and institutions from the field of prevention of corruption, the head of the competent public prosecutor’s office may, ex officio or on a written initiative of the police, establish a specialized investigation team with the heads of the individual bodies and institutions from the field of prevention of corruption (KPK). The specialized investigation team shall be headed and directed by the competent public prosecutor and its members shall be appointed by the heads of the authorities and institutions from the field of prevention of corruption (KPK). Upon an order or with the prior consent of the public prosecutor, a member of the specialized investigation team may be present or may advise the public prosecutor in the performance of particular investigative acts.
In cases where the prosecution does not initiate (or does not intend to continue) criminal prosecution (for various reasons), instead of the state prosecutor, the prosecution may be initiated (or continued) by the injured party as a prosecutor (i.e., subsidiary prosecutor).
5.2. Is there a legal obligation to report bribery and corruption cases? If so, to whom does it apply and what are the sanctions for failing to meet such an obligation?
According to Article 146 of the ZKP, all state authorities and organizations shall be obliged to report criminal offenses for which the perpetrator is being prosecuted ex officio if they are informed of them or if they otherwise become aware of them. By failing to fulfill this duty, an official may, in the case of a criminal offense punishable by law by a term of imprisonment exceeding three years, commit the criminal offense of failing to report the criminal offense or the offender (Article 281 of the KZ-1).
Furthermore, the law specifically obliges state authorities and public authority holders to provide known evidence and to protect the traces and objects of the crime. However, this provision (as well as the provision demanding state authorities to report criminal offenses punishable by law by a term of imprisonment of up to three years, provided that the perpetrator may be prosecuted ex officio) is lex imperfecta as there is no sanction for non-compliance with it unless it is such a deliberate act by a public official which could constitute the criminal offense of aiding the perpetrator after the commission of a crime (Article 282 of the KZ-1) or the criminal offense of preventing the taking of evidence (Article 285 of the KZ-1).
Private legal and natural persons are obliged to report a criminal offense only if the sentence prescribed for the particular criminal offense is a minimum of 15 years. Therefore, given that the sentences prescribed for bribery and corruption cases are lower than 15 years, such legal obligation for bribery and corruption-related criminal offense is only prescribed for public officials.
Namely, a public official who knowingly omits to report a criminal offense of which they become aware in the course of their duties, where the law prescribes a sentence of three or more years of imprisonment and the perpetrator is prosecuted ex officio, shall be liable to a term of imprisonment of up to three years for the criminal offense of omitting to report the criminal offense.
The perpetrator, however, is not obliged to report the crime they committed or to uncover any facts or give any evidence, as such an obligation would be contrary to the privilege against selfincrimination.
5.3. Is there any civil or administrative enforcement against corruption crimes?
Under Slovenian law, there is no special civil or administrative enforcement against corruption crimes. However, it can result in civil liability for damages, employee responsibility, or disciplinary responsibility. For more details on this please see Section 1.9.
5.4. What powers do the authorities have generally to gather information when investigating corruption crimes?
The police and the state prosecutor’s office work together to detect criminal offenses and their perpetrators. In general, if there are grounds for suspecting that a criminal offense has been committed for which the perpetrator is being prosecuted ex officio, the police must take all necessary steps to trace the perpetrator of the criminal offense, to ensure that the perpetrator or the person involved does not hide or escape, to discover and secure traces of the criminal offense and objects that may constitute evidence, and to gather any information that may be useful for the successful conduct of the criminal proceedings. For this purpose, the police may request the necessary information from persons; make the necessary searches of means of transport, passengers, and luggage; restrict movement in a particular area for a necessary period of time; take the necessary measures in connection with establishing the identity of persons and objects; issue a search warrant for the person and things sought; inspect, in the presence of the person in charge, certain premises and buildings of undertakings and other legal persons and examine certain of their documents; take a photograph of the person suspected of having committed a crime and publish the photograph, take fingerprints and a mouth swab, and do and perform other such acts and acts as necessary. The police may also summon individuals and collect information and data from them or question them. If a person is summoned for the purpose of gathering information, the police may forcibly bring them in, provided that the summons is in writing, and if the written summons contains an instruction that if the person fails to attend, they may be brought in forcibly. Furthermore, police officers have the right to refer persons found at the scene of a crime or persons residing abroad to the investigating judge or to detain them until their arrival if they are able to provide important information for the criminal proceedings.
The police can also interrogate the suspect if the suspect hires a lawyer. Such an interrogation has full evidentiary value in criminal proceedings. Otherwise, if the suspect does not wish to hire a lawyer, the police draw up an official note, which is considered only “semi-proof” and cannot replace a confession (hearing). The state prosecutor may also be present at the hearing.
Furthermore, police officers can take someone into custody if there are grounds for arrest and bring them before an investigating judge without delay. As an exception, they may arrest and detain a person if there are reasonable grounds to suspect that the person has committed a criminal offense for which the perpetrator is being prosecuted ex officio, if one of the grounds for detention is met, and if the detention is necessary for the purposes of establishing identity, verifying the alibi, collecting information and evidence. Such detention may last for a maximum of 48 hours, after which the offender must either be brought before an investigating judge or be released.
The police or the public prosecutor’s office may also carry out (on the basis of an order from the public prosecutor’s office or the investigating judge, depending on the type of measure and other conditions) undercover investigative measures for the purpose of investigating criminal offenses: (i) covert tracking and observation, (ii) obtaining data on traffic in an electronic communications network, (iii) obtaining subscription data on the owner/user, (iv) wiretapping and monitoring, (v) signal monitoring, (vi) wiretapping and observation in foreign premises by technical means and hidden entry, (vii) fictitious redemption, (viii) undercover operations, (ix) obtaining information on deposits, balance, and turnover of a transaction account, (x) monitoring of financial transactions and (xi) obtaining information on the holder or the nominee of a transaction account or safe deposit box.
After the collection of information, the police send the state prosecutor a criminal complaint or a report on the actions taken.
Furthermore, during the investigation (or, exceptionally, prior to the investigation) the following investigative acts may also be carried out in the course of the investigation: searches of the house and the person, seizure of objects, questioning of the accused and witnesses, inspection of the place, and appointment of an expert witness.
5.5. Is there any form of leniency law in your jurisdiction, allowing a party to a bribery or corruption crime to voluntarily confess to the crime in exchange for a release from liability or reduction of the penalty?
As a general rule, the criminal court should sentence the perpetrator within the limits prescribed by law for the particular criminal offense, taking into account the seriousness of the offense and the perpetrator’s culpability. In doing so, the court shall take into account all the circumstances which have a bearing on whether the sentence should be reduced or increased (mitigating and aggravating circumstances). In principle, the court shall take into account a plea of guilty as a mitigating circumstance. However, based on established court practice of the Slovenian criminal courts, if the defendant confesses to the criminal offense towards the end of the criminal proceedings or shortly before the end of the criminal proceedings (e.g., at the last hearing), such a confession does not constitute a mitigating circumstance. Furthermore, cooperation with the enforcement authorities may also present a reason for the determination of a less severe sanction or mitigation of sentence.
Further to the above, in the case of three corruption-related criminal offenses (Articles 242, 262, and 264 – for details please see Section 1.1.) which comprise the act of giving a bribe or a gift, the KZ-1 provides that a perpetrator may be relieved of a sanction if they report the act before it was discovered or before they found out it was discovered, provided that this does not conflict with the rules of international law.
As regards legal entities, Article 11 of the ZOPOKD prescribes that:
- in certain cases, if, after the commission of a criminal offense, the management or supervisory body voluntarily notifies the perpetrator to law enforcement, before the criminal offense has been detected, the legal person may be punished more leniently;
- if, in addition to notifying the perpetrator to law enforcement, a legal person also immediately orders the return of unlawful material gain or remedies the harmful consequences caused or communicates information on the grounds of liability for other legal entities, the sentence may be waived for the legal entity.
5.6. Can a person plea bargain in corruption cases? If so, how is such a process conducted?
Under Slovenian criminal law, it is possible to enter into a plea agreement for corruption cases. Article 1 of the General instructions on negotiations and on the proposal of sanctions in the event of a guilty plea and a plea agreement to the state prosecutors (General Instructions) expressly stipulates that the prosecutor’s office must be in favor of negotiations.
The defendant, their defense lawyer, and/or the public prosecutor may propose the conclusion of a plea agreement to the other party. If the defendant does not have a defense counsel, the president of the court shall appoint a defense counsel ex officio for the negotiation procedure. The guilty plea may in no case be initiated by the court. The plea agreement shall be in writing and signed by the parties and the defense counsel. In the plea agreement, the defendant and the public prosecutor may agree on: (i) the sentence or cautionary sanction and the manner in which the sentence is to be carried out, provided that the agreed sentence is within the limits of the prescribed sentence, (ii) the public prosecutor’s waiver of prosecution for the defendant’s criminal offenses not covered by the plea agreement, (iii) the costs of the criminal proceedings, and (iv) the performance of any other task. However, the following cannot be the subject of the plea agreement: (i) the legal definition of the criminal offense, (ii) precautionary measures when their imposition is obliged, and (iii) the forfeiture of the unlawful material gain. The General Instructions instruct state prosecutors that the proposed criminal sanction must be in accordance with the sanctions realistically imposed by the courts and with the objective and subjective circumstances of the criminal offense. The proposed sentence should not be less than two-thirds of the sentence that the court would impose in a similar case. However, only as an exception and after careful consideration of the circumstances of the criminal offense and the consequences of concluding such a plea agreement, it should be reasonable to propose half of such a sentence.
The plea agreement must be approved by the court before which the criminal proceedings are conducted. Namely, the judge determines whether the plea agreement is in accordance with the ZKP, whether the defendant understood the nature and consequences of the plea, and whether the plea is voluntary, clear and complete, and supported by the evidence in the court file. If any of the conditions are not met, the judge shall reject the plea agreement, disqualify themselves from the case, and another judge shall take over the case (trial).
Another form of a guilty plea is to plead guilty before a judge at a pre-trial hearing (or later in criminal proceedings).
In Slovenia, approximately one-third of criminal cases end with one of the forms of guilty pleas (plea agreement or pleading guilty before a judge).