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In November 2016, Article 230 of the Criminal Code of
Lithuania
was supplemented with part 5, according
to which – for the purposes of applying the confiscation rules – proceeds from bribery can
be recognized as
any form of property directly or indirectly obtained as a result of the bribe, including the material advantage
obtained from the desired action or inaction of a civil servant or equivalent person in
the performance of his
duties, regardless of whether it was received in the course of activity that, according to the law, was legal or
illegal. This addition simplifies the confiscation of assets obtained from legitimate sources, if they were
obtained as a result of a bribe or trade in influence.
In some countries, paragraphs ‘c’ and ‘d’ raised uncertainty (Estonia used the phrase ‘not impossible’; Serbia
referred to the need to prove the relation between the company value increase and the crime – paragraph ‘c’).
Romania, Ukraine, Armenia, Kyrgyzstan did not give a clear reply on the possibility of application of
confiscation with respect to each of the aforesaid objects. Romania did specify that in theory these points are
covered by paragraph 6 of Article 112 of the Criminal Code, but in practice they only allow confiscation of
“fruits of direct proceeds” (interest on
bank deposits, rent for apartment purchased for a bribe etc).
The methodology, applied by the ACN countries to assess indirect (derivative) proceeds of corruption
offences, appeared challenging too. Most of the countries relied on the special expertise (specialists and
expert opinions) for this purpose (Azerbaijan, Bosnia
and Herzegovina, Montenegro, Serbia, Georgia,
Latvia, Lithuania). Some countries pointed at the discretionary powers of a court and noted the need to
develop such methodology in the judiciary practice (Lithuania, Estonia, Montenegro). A number of countries
cited the absence of such methodology per se (Ukraine, Kyrgyzstan). At the
same time, the absence of such
methodology (methodologies) can be viewed as an obstacle for a more active application of confiscation of
the derivative proceeds of corruption precisely.
In some jurisdictions, the terms ‘proceeds’ or ‘benefits’ may be legally defined or understood as the ‘gross’
proceeds or benefits, and in others, as the ‘net benefits’ or ‘profit’ after deduction of expenses incurred in
deriving the benefit. For example, under the ‘gross’ proceeds definition, if a company paid
bribes to win a
government contract, the proceeds would be the whole value of or revenues from the contract. Under a ‘net
profit (or benefits)’ definition, that same company could deduct certain expenses incurred in connection with
the contract to arrive at ‘net’ proceeds. But when bribes are paid not to obtain a contract per se but to secure
specific advantages or conditions (higher prices, lesser quality of goods or services, excessive quantity), then
courts may consider that only the additional profits linked to these specific advantages are proceeds from
bribery
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.
The ‘net benefit’ methodology is applied in
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