Facilitation payments are strictly illegal. According to the Criminal Code, the reception of any kind of improper benefit (bribes, offering gifts or facilitation payments) is illegal and punishable with penalties that range from three months to five years of imprisonment for persons employed in the private sector and with penalties that range from six months to three years of imprisonment for persons employed in the public sector [1].

The cases prosecuted involving defence and security are available but due to lack of data on the investigations conducted by MoD investigation bodies, it is not possible to assess how many investigations have been initiated and by confronting them with the number of prosecutions and trials.
However, overall, Albania lags behind with the effective investigation and prosecution of corruption. The lack of appropriate action may be caused by undue influence in the decision-making process, affecting thus the enforcement outcomes. As the EU Commission highlights “the establishment of a solid track record of proactive investigations, prosecutions and convictions in the fight against corruption remain a long-term objective that continues to require further structured and consistent efforts” [1]. Only 10-20% of the corruption cases investigated by the prosecution are sent to courts for trial in recent years [2].

There is not enough information to score this indicator. Survey evidence suggests the presence of undue influence in the relations between businesses and public authorities. A UNODC survey report found in 2013 that one out of six businesses in the five economic sectors surveyed paid a bribe to a public official [1]. Even more recent surveys show that firms commonly have to pay some irregular “additional payments/gifts” to “get things done” [2]. However, there is a lack of evidence from the defence sector in particular.

The Anti-Corruption Law of 2006 provides clear evidence that facilitation payments are illegal. Art. 25 prohibits the act of promising to offer or grant an official an undue advantage for him to perform or refrain from performing any act in the performance of the official’s duties. Moreover, Art. 38 stipulates that gifts or any undue advantage from a person likely to influence the processing of a procedure or transaction related to his duties are punishable by law (1). The articles in the Penal Code on corruption (2) refer to the Anti-Corruption Law and no further regulations were found.

No investigations or prosecutions of cases in the defence institutions involving facilitation payments could be found in articles or reports, making it difficult to assess this question. Freedom House notes that there is political influence in the judiciary (1). Moreover, there are corruption cases, for example, linked to the state hydrocarbon company Sonatrach that have been prosecuted (2), while the former head of the company and Minister of Energy has not been prosecuted although there had been evidence that he received bribes (3).

According to the Business Anti-Corruption Portal, bribery and facilitation payments are common in Algeria; although, they are illegal (1). A report from the US Department of State notes that some companies follow their internal controls against the bribery of government officials, while others supposedly offer bribes (2).

Facilitation payments are illegal in Angola, as stated in the 2010 Public Probity Law, the Criminal Code and the 2014 Money Laundering Law (1), (2).

Even though facilitation payments are illegal, they are widespread; in recent years very few cases have been prosecuted. There is no evidence that several prosecution cases of foreign officials in other jurisdictions for bribery and illegal facilitation payments have been followed up in Angola. Under President João Lourenço, there have generally been new calls to end impunity to address corruption, but it remains to be seen how this plays out in practice (1), (2), (3).

For instance, in the last few years employees of foreign companies have been prosecuted in Brazil, Spain, and the United Kingdom on charges of bribery and illegal facilitation payments in Angola; however, no prosecution cases were opened in Angola against Angolan officials allegedly involved (1).

The practice of facilitation payments to accelerate delivery of or simply to gain access to public services, as well as for doing business is widespread and part of the commonly known “gasosa” culture in Angolan society (1).

The payments for facilitation purposes, understood as the delivery of small amounts of money to officials for an action or omission, are illegal in Argentina and imply (depending on their grade and type) administrative or criminal sanctions. In addition, in accordance with the Law of Public Ethics, public officials are prohibited from receiving gifts, donations, benefits, or gratuities, whether objects, services, or goods, “as a result of their work or in the performance of their public functions.” Gifts of courtesy and diplomacy are excluded. [1] [2] [3] [4]

There is Not Enough Information to score this indicator. There are different institutional instances on the subject that aim to investigate, prosecute, and therefore discourage acts of corruption. Outside the jurisdiction of criminal justice (crimes classified in the penal code such as corruption, bribery, influence trafficking, etc.), the Office of Administrative Investigations (within the Attorney General’s Office/Public Prosecutor’s Office) is the specialised body promoting the investigation of acts of corruption and administrative irregularities committed by agents of the National Administration, but only on the EP. [1] [2] [3] [4] [5] [6] For its part, the Anti-Corruption Office has established a travel and gift registration mechanism to be used by officials and in turn gives citizens the possibility to access it. Despite the instances mentioned, cases are often not successfully prosecuted in relation to crimes against public administration (ie. corruption). In addition, the delay in the trials and the few convictions regarding acts of corruption in the public administration in general show problems with the application of the law. The change in judicial cases according to the government in office is another obstacle with regulation compliance. [1] [6] [7]

There is Not Enough Information to score this indicator. Faciliation payments are widespread in the public administration. However, cases involving the defence sector have not been frequently reported. The clearest example would be the ARA San Juan submarine case, [1] where irregularities were detected in the hiring process for its repair. Facilitiation payments are widespread in the Police Force. [2] [3] [4] [5]

Articles 311, 311.1, 311.2, 312, 312.1 and 313 on taking a bribe, giving a bribe and mediating bribe accordingly apply to any case of bribery. If a high official takes a bribe and is sanctioned they pay three hundred or five hundred times the minimum wage penalty or up to ten years in prison depending on the circumstances and seriousness of the offence [1].

Cases of corruption, bribery, misconduct or any other type of related misbehaviour are carefully investigated in an attempt to eliminate those erroneous patterns in the armed forces. A range of cases through media outlets are publicized to make the public aware of situations and to be alert and whistleblow if anything comes to their attention [1, 2, 3, 4]. In this regard, both the former government officials and the new ones are unanimous in their public speeches to condemn corruption in the armed forces [5, 6]. However, after the Velvet Revolution, new revelations showed that there were numerous instances of corruption and bribery in the armed forces. These cases were revealed and investigated only after a change of power in the government [7, 8].

There is not enough evidence to score this indicator. It is worth noting that there are no official statistics publicly available on the prevalence of facilitation payments, which are prohibited by the Law on Special Public Service [1], the Law on Military Service [2], and sanctions are envisaged by the Criminal Code [3]. Once a case on facilitation payment is revealed, media outlets actively highlight it in the news.

As noted in previous years by Transparency International, including in the Country Recommendations in the 2015 Government Defence Anti-Corruption Index [1], facilitation payments are not criminalised in Australia [2]. Though the OECD, in its latest report on Australia’s implementation of the OECD Anti-Bribery Convention, indicated that they “consider that Australia has now fully implemented Phase 3 recommendation 2 on facilitation payments, due to extensive awareness-raising initiatives and consultation processes on their use,” they also note “significant dissatisfaction with the existence of the defence among Australia’s public and private sectors and civil society representatives” [3]. The Senate Economics Committee Report on Foreign Bribery recommended in 2018 that the facilitation payment defence be abolished, saying that “Australia’s position on this issue is increasingly isolated” [4]. Transparency International Australia has at various points voiced their concerns about the continuing existence of the facilitation payment exception [5].

Facilitation payments are not criminalised in Australia (see Q50A). As such, this indicator is scored Not Applicable.

While Australian companies are increasingly banning the practice of facilitation payments, as recently as 2013 the OECD Anti-Bribery Working Group reported that facilitation payments are “prevalent” among Australian companies [1]. Research by CAER commissioned by the Australia Institute and Jubilee Australia shows that some 65% of Australian companies banned facilitation payments in 2015, up from 24% in 2006, showing progress – though a third of companies still allowed the practice [2]. There is no specific prohibition on facilitation payments for defence procurements in the Australian Public Service Code of Conduct [3] or in the Defence Personnel Policy Manual [4] and related policies [5], though it is not clear if facilitation payments happen in practice in the defence sector.

Although bribery in the country is a common practice, the legislation prohibits it (1). According to the Criminal Code payments are strictly illegal (1). Article 312 states, giving a bribe is considered “active bribery”. Bribery or repeated bribery by an official for illegal actions (inaction) shall be punished by a fine ranging from two thousand to four thousand manats, or by deprivation of liberty for the term from four up to eight years. According to Article 311 of the Criminal Code, receiving a bribe is called “passive bribery”. Bribe committed by an official for illegal actions (inaction) shall be punished by imprisonment for the term from five to ten years, with deprivation of the right to hold certain positions or engage in certain activities for up to three years.
There should be safeguard provisions in the legislation to make bribery charges more effective. All such commissions are sanctioned by just tow articles – Articles 311 and 312 of the Criminal Code. There are no separate articles on facilitation payments or the provision within the said articles addressing that. Generally, all bribery crimes are sanctioned with just two articles.

There is no information on the continuing investigation and prosecution of the incidents. In most cases, events are kept secret from the public. According to reports published in the press, a large number of sick soldiers were sent to military service, because they refused to pay a bribe (1), No investigations took place. In the process of the Baku Court on Grave Crimes (September 2018), Colonel Rasul Guliyev, the head of the Gazakh region department of the State Service for Mobilization and Conscription of Military Service testified. He said that he paid 180,000 manats for his new job. “At that time I worked in the Defense Ministry, and I gave 180 thousand for [a] job at the Military Commissariat. Then I could no get the job, they returned my money. Rasul Guliyev was dismissed after this statement (3). Recently, articles from May 2019, were published on the demand for bribes from those wishing to enter the military course. Citizens facing bribery demanded a protest in front of the Armed Forces Training and Training Center (TTM). No official information on this incident has been given (2).

Facilitation payments in the military and security spheres are widespread. Military conscription facilitation payments/bribery cases have three main manifestations:
Young people give a bribe to be fully ineligible to military service (for certain real and non-specific diseases);
To delay the military service (to abolish service due to certain bribes during each call season);
To serve in the appropriate military unit (to avoid serving in military units located far or on the front line).
According to the Country Reports on Human Rights Practices for 2017 United States Department of State, in 2017 “there was widespread belief that a bribe could obtain a waiver of the military service obligation, which is universal for men between the ages of 18 and 35” and “citizens also reported military personnel could buy assignments to easier military duties for a smaller bribe” (4).

Article 45-G of the Armed Forces Law discriminates and prohibits receiving gifts to facilitate services [1]. The law, however, is not clear about facilitation payments [2, 3].

Facilitation payments and these types of activities are not investigated well [1, 2]. An extensive online and offline search found no information about enforcement and prevalence of such measures.

There are a number of incidents of facilitation payments; according to sources, there may be a dozen incidents per year [1, 2].

Facilitation payments in the form of bribes and gifts are illegal according to several anti-corruption laws, such as Sections 161 and 165 of the Bangladesh Penal Code [1,2].

Facilitation payments are a widespread and common practice [1]. Publicly available information indicates that the law is enforced inadequately due to political interference and intimidation.

There is not enough information to score this indicator. There is a public perception that facilitation payments are widespread in the defence and security sector [1], however, this perception is not substantiated by any public records or evidence [2].

Article 246 § 2 of the law of 10 February 1999 on the suppression of corruption provides that “constituting active corruption is the act of offering (…) an advantage of any kind”. This includes facilitation payments [1].

Any kind of domestic corruption in public SPF or the Ministry of Defence is dealt with through penal law. After investigation of the claim, the Public Prosecutor will subpoena the individual. Sanctioning will happen based on the Penal Law, Articles 246-253 [1]. No evidence was found of substantive concern expressed from independent commentators over undue political influence [2].

There is no evidence of facilitation payments in the defence and security sector since 2015 [1].

Bribery, including bribing and receiving bribes, as well as mediation in giving and receiving bribes, depending on the specific legal framework is defined by the criminal laws of Bosnia and Herzegovina and the entities of the Federation of Bosnia and Herzegovina, Republika Srpska and Brcko District of Bosnia and Herzegovina[1, 2, 3, 4].

Although carefully researched, this indicator has not been scored due to insufficient evidence/ lack of information to support enforcement or the lack of it. This is possibly also due to the difficulty in proving that someone asked for payments, as well as the fact the person making the facilitation payment could be prosecuted.

Although carefully researched, this indicator has not been scored due to insufficient evidence/ lack of information that supports the prevalence of facilitation payment.This is possibly also due to the difficulty in proving that someone asked for payments, as well as the fact the person making the facilitation payment could be prosecuted.

There are no express provisions that regulate facilitation payments. However, inference of its illegality can be deduced from the CECA [1,2]. The OECD notes that Botswana allows political donations by foreign companies, as a means towards swaying political decision-making (OECD). [3]

There are no express provisions that regulate facilitation payments. It follows that there are no sanctions as there is no crime known as facilitation payments [1,2].As such, this indicator is marked ‘Not Applicable’.

There is very little information regarding facilitation payments in the defence sector. As such, this indicator cannot be scored and is marked ‘Not Enough Information’ [1,2].

Facilitation payments are a crime, whether for civilian or military servants, and administrative and criminal measures can be taken, according to Law 8.112/1990, Article 132 [1, 2].

There is not enough substantiated evidence to score this indicator, as such it is marked ‘Not Enough Information’.

There are exonerated public servants [1]. However, the assessor found no evidence of if proper investigations or prosecutions occur or not [2]. However, according to one of the interviewees, many instances of misconduct are ‘resolved’ internally, with no formal process [3]. One of the interviewees that served the armed forces as a conscripted soldier asserted that, when military intelligence found out about the robbery of items of a military museum, the responsible party or parties suffered informal disciplinary sanctions [4]. The Military Criminal Code specifies in which circumstances a transgression or a crime can be investigated only internally, in inquiries, (as a disciplinary measure) and when it should be submitted to the Military Justice [5].

There is not enough substantiated evidence to score this indicator, as such it is marked ‘Not Enough Information’.

The assessor found no consistent evidence in the media of the presence of widespread facilitation payments within Brazil’s defence sector [1, 2]. However, if it occurs, these measures do not always become formal processes, whether administrative or criminal, as already explained in the previous question [3].

Article 31 of the Law N° 004 (2015) stipulates that “it is prohibited for public agents mentioned in Article 3, in the case of their function, to accept donations, presents and other or in-kind except conventional hospitality and minor presents, with monetary value less than the maximum authorized in Council of Minister.” Article 32 (1) makes it clear that if the monetary value of the present is higher than the maximum authorized, and the receiving public agent can not refuse due to protocol reasons, they should declare it, by informing his her hierarchy and the ASCE-LC. Article 23 (2) states that “the present in question is sent back to the national asset office, to the local governance office for which the beneficiary works for, or any other recognized institution.” The present is then recorded and the reference number is sent to the ASCE-LC. Additionally, the sanction of facilitation payments lies under Article 33. Burkina Faso has made significant progress in the battle against corruption through the adoption of Law N° 004 (2015). However, the BTI report states that its enforcement is weak because of a lack of information, a tradition of impunity and the weakness of institutions (1), (2).

According to the Business Anti-Corruption Portal, enforcement of the law is weak (1), and institutions responsible for enforcing the law are ill-equiped (1), which makes it difficult to find and investigate corruption. The ASCE-LC (2) was provided with the constitutional right to both investigate and prosecute corruption. There is no evidence of the existence of a case that the ASCE-LC or any other oversight institution, has successfully investigated and prosecuted. Facilitation payments are still widespread in the country (3).

As mentioned before facilitation payments are somehow imbedded in social behaviours throughout the country. The 2018 BTI report made it clear, by stating that “corruption, including, facilitation payments, is widespread in all sections of the economy.” However, as opposed to other types of corruption, I must agree that eradicating facilitation payments would require both time and resources, as the practice is deeply embedded in cultural behaviours in most communities. Fortunately, the Law N°-004 is already ahead of schedule, as Article 32 (1) indicates institutions at the national and local level, where facilitation payments with a value above the maximum authorized, must be declared and kept (1), (2).

The Penal Code Law No. 65-LF-24 of 12 November 1965 and Law No. 67-LF-1 of 12 June 1967) as amended by LAW No. 2016/007 of 12 July 2016 [1] criminalises and punishes facilitation payments. Article 312 says, “Corruption of the employee is punished with imprisonment for one to three years and a fine of 50,000 to 500,000 francs or either of these two penalties only if any paid employee, without the authorisation of his boss, receives donations in any form whatsoever for agreeing or promising to carry out or refrain from carrying out his responsibilities” [1].

The Penal Code specifically addresses the issue of facilitation payments. Article 312 of the Penal Code prohibits any employee, without the permission of his or her boss, from receiving funds to carry out or refrain from carrying out a service [1]. This is, however, hardly enforced when it comes to the defence and security institutions [2] [3]. There has been widespread corruption among senior military officials including the alleged involvement of the former Minister of Defence in a corruption scandal [4].

According to Business Anti-Corruption Portal, “Facilitation payments and gifts are also addressed in Cameroon’s legislation, yet insufficient implementation of anti-corruption legislation coupled with impunity among public officials has exacerbated the levels of corruption in the country” [5].

Transparency International Helpdesk reports that “According to Freedom House (2015), ‘Bribery is commonplace in all sectors, from gaining school admission to fixing traffic infractions’ (Freedom House, 2015)… and is common practice at all levels of the Cameroon state and business sector” [6].

According to the 2017 US State Department Human Rights Report, “The law provides criminal penalties for corruption by officials, although these were seldom enforced.” The report also noted that “individuals reportedly paid bribes to police and the judiciary to secure their freedom. Police demanded bribes at checkpoints, and influential citizens reportedly paid police to make arrests or abuse individuals with whom they had personal disputes. There were reports some police associated with the issuance of emigration and identification documents collected additional fees from applicants.” The report added that “Some officers convicted of corruption were relieved of their duties but continued to be paid due to weak oversight, accountability, and enforcement mechanisms for internal disciplining” [7].

According to the 2017 Investment Climate Statement, “In some extreme instances, civil servants blatantly violate laws and then offer bribes to State inspectors so that they are not investigated and prosecuted… [bribery] continues to plague the civil service at almost every level (government procurement, award of licenses or concessions, transfers, performance requirements, dispute settlement, regulatory system, customs or taxation)” [8].

There is also a report on the details of an ongoing investigation in France concerning suspicions of corrruption and bribery between the former defence minister and MagForce regarding defence contracts [4].

Corruption and the practice of facilitation payments is widespread in the country [1]. Almost every sector and ministerial department has been affected by this practice. It ranges from being admitted into a professional institution including the police and the miltary, to giving bribes to police at checkpoints [2]. There have been reports of police issuing identification papers who were paid high sums of money that went into their own pockets [3]. When dealing with customs officials, companies usually evade taxes by giving bribes to these officials [4]. Companies have to agree to give a certain percentage (usually 30%). [3].

Transparency International Helpdesk states that “According to Freedom House (2015), ‘Bribery is commonplace in all sectors, from gaining school admission to fixing traffic infractions’ (Freedom House, 2015)… and is common practice at all levels of the Cameroon state and business sector” [1].

According to the 2017 US State Department Human Rights Report, “Individuals reportedly paid bribes to police and the judiciary to secure their freedom. Police demanded bribes at checkpoints, and influential citizens reportedly paid police to make arrests or abuse individuals with whom they had personal disputes. There were reports some police associated with the issuance of emigration and identification documents collected additional fees from applicants” [3].

According to the 2017 Investment Climate Statement, “In some extreme instances, civil servants blatantly violate laws and then offer bribes to State inspectors so that they are not investigated and prosecuted… [bribery] continues to plague the civil service at almost every level (government procurement, award of licenses or concessions, transfers, performance requirements, dispute settlement, regulatory system, customs or taxation” [5].

Facilitation payments were only prohibited for Canadian citizens and corporations after 2017 under the Corruption of Foreign Public Officials Act, [1] as that year the Act was amended to repeal the exemption for facilitation payments. [2] Guidance also exists through DAOD 1017-9 Hospitality in Canada, [3] as well as DAOD 7021-3 Acceptance of Gifts, Hospitality and Other Benefits. [4]

While Military Police are responsible for the enforcement of the CSD, they are not able to enforce provincial and territorial laws, which leaves them to rely on other policing forces to enforce infractions that fall outside of their jurisdiction. This gap has led to a call for legislative changes to fill some of the gaps that lead to problems with uneven enforcement across sub-national jurisdictions .[1] The reported respect for jurisdictional boundaries and cooperation with other policing forces where appropriate in addition to the call for additional changes in legislation, builds a strong case for the absence of politcal influence in the enforcement of military justice. [2] A major case that followed formal procedure was the case of Sub-Lieutenant Delisle, for receiving wired payments from Russian agents in return for military intelligence. [3,4]

Facilitation payments were only prohibited for Canadian citizens and corporations after 2017 under the Corruption of Foreign Public Officials Act, [1] as that year the Act was amended to repeal the exemption for facilitation payments. [2] Facilitation payments are rare, but may occur on occasion when commanders and other personnel on deployment are limited in their options and turn to such means as last resort. [3]

Facilitation payments are illegal. They are codified in the Criminal Code, which penalises facilitation payments in the form of bribery and influence peddling [1]. Concerning offences of bribery and corruption, the legislation distinguishes between passive and active bribery. Passive bribery or “cohecho” defines an offence committed by a public employee who requests or agrees to receive an improper economic benefit (“bribe”) to perform an act or exercise influence that infringes his/her duties [2]. Active bribery or “soborno” defines an offence committed by an individual who offers or consents to give a public employee an improper economic benefit so that he executes an undue act on his or her behalf (Código Penal, Art. 250). In addition, officials are required to report a suspicious situation of official crime, including bribery and facilitation payments, through the “Model of Prevention of the Armed Forces” [3].

There is evidence that cases have been investigated, and most of the time prosecuted through formal procedures, but there have been attempts to influence investigations, not very successfully, however. Prosecutors have been able to investigate and prosecute high-ranking members of the military, including two former commanders in chief of the army, a former vice commander, and a former treasurer of the army general staff, among the 34 military officers processed in 23 investigations [1, 2]. However, journalist investigations have reported several attempts made by members of military and defence institutions to delay judicial investigations, to deny information to the military courts, and more generally to create obstacles for investigations and prosecutions [3, 4, 5, 6, 7]. These attempts were made to delay formal procedures, but there is little substantive evidence that they have actually influenced the decision-making and resolution of cases.

Although facilitation payments are not the most common crime related to corruption in the defence sector, there are several cases in which members of the armed forces have been prosecuted or convicted of facilitation and bribery payments (bribery). Facilitation payments have been less frequent than other offences, such as fraud, embezzlement, influence peddling and conflicts of interest [1, 2, 3].

In the PRC Criminal Law and the Anti Unfair Competition Law, facilitation payments are not exempt from other types of bribery. [1,2] As such, any kind of facilitation payment can be considered a bribe, but the severity of the violation depends on the amount involved. [3]

Facilitation payments are considered bribery and cases are criminalised. Characteristically, the PLA has prosecuted 13,000 officers as part of anticorruption efforts in the last 7 years. [1] Numbers specifically covering facilitation payments are not available, but cases involving the illegal use of military license plates (a form of facilitation payment) have been prosecuted. [2] Still, given the weak and dependent position of prosecutors and courts, there are no safeguards against undue influence.

There is insufficient information regarding the exact extent and kinds of facilitation payments in the PLA. The practice of buying and renting military license plates was widespread, and extensive patronage networks exist in the Chinese military. [1,2] Given the lack of information on this issue, this indicator is marked ‘Not Enough Information’.

In Colombia, facilitation payments are covered under the label of “improper bribery” (improper payment) which is different from “cohecho propio” (personal bribery) which refers to bribery. Facilitation payments are regulated in article 406 of the Colombian Penal Code, applicable “when the public servant accepts for himself or another for another , money or other remuneration income or promise, direct or indirect, by act to be performed in the performance of its functions.” [1] Generally, both cohecho propio and impropio are referred to as “soborno”(bribery). Payments for facilitation or gifts are understood as “those payments to government employees that are made in order to expedite non-discretionary governmental functions of routine,” and are prohibited. [2] The Colombian government’s anti-corruption business program understands routine government actions, such as the issuance of permits, licenses, and documents necessary for companies in the context of their administrative procedures, but does not include the official’s power to decide the assignment of a business or the continuity of a business. [3] The legislation recognizes payments for facilitation purposes and understands them as bribes. [4]

There is not enough information regarding the rate with which actual cases are enforced. As such, this indicator is not scored and is marked ‘Not Enough Information’. Facilitation services carry a penalty of four to seven years in prison, a fine of 50 to 100 times the current legal minimum monthly minimum wages and disqualification for the exercise of rights and public functions of five to eight years, and the public servant receiving money or other benefit, will incur imprisonment of two to five years, fine of thirty to fifty legal minimum monthly wages in force, and disqualification for the exercise of public rights and functions for five years as according to Article 405-406. [1] However, cases continue to arise and the penalties do not seem proportional.

According to Colombia’s fifth national survey of anti-bribery practices in Colombian companies, it is clear that facilitation payments occur. Of a total of 690 entrepreneurs surveyed in the main cities of Colombia (Barranquilla, Bogotá, Bucaramanga, Cali, Ibagué, Medellín, Pereira and Tunja) 96% believe that bribes are offered in the business environment, 63% of respondents say that the main motivation to carry out these actions is in order to obtain business. The percentage of bribery to win a contract is 16.7%, and 51% of entrepreneurs consider contributions to political campaigns to be one of the most common forms of bribery. The same study identifies that of the bribery modalities, payments to expedite procedures is the most common at 67%, the closure of businesses and/or contracts is measured at 53%, and in electoral contexts 51% make contributions to political campaigns. Given these results, Transparency by Colombia states that “bribery is constituted in the country as a recurring and institutionalized practice.” [1] With regard to the prosecution’s investigations into bribery and corruption, the entity’s website offers various sanctions and convictions against public officials belonging to the defence sector and natural and legal persons. In some cases there were convictions for offering money to transit police, paying police officers to allow the illegal entry and exit of narcotic drugs and smuggled goods camouflaged on international and domestic flights, for the sale of information on salaries and financial status of the military, etc. [2]

The Criminal Code and in Order No. 2013-660, both documents consider the soliciting, offering and receiving of payments for the performance or non-performance of a public official’s function, a criminal offence. As per the Criminal Code (Law No. 81-640, Instituant le Code Pénal), the act of offering, giving or promising a bribe to a public official or the act of soliciting, authorizing or receiving a bribe is considered a criminal offence. This type of petty corruption is addressed in Section 4 (Avantage illégitime), Articles 231-235, of the Criminal Code. For example, Articles 233 and 234 consider the act of soliciting or paying a public official to perform an official function is codified as a crime (1) :

“Art. 233 – Any public official will be punished with imprisonment from three months to one year who is found guilty of soliciting or accepting a payment in cash or in kind for himself or for a third party, as compensation for an official act already performed.
Art. 234 – Whoever seeks to obtain the accomplishment, the execution or the postponement of an act through favors or benefits provided for in Article 233, or who uses threats, promises, payments, gifts or presents or gives in to solicitations for corruption, even if he/she has not taken the initiative, will be punished with the same penalties as those provided for individuals convicted of corruption, whether the coercion or corruption has or has not produced its effect. Article 233 punishes the individual who uses gifts or presents or gives in to solicitations tending to pay for an act already performed by one of the individuals referred to in Article 232” (1).

Order No. 2013-660 (Relative à la prévention et à la lutte contre la corruption et les infractions assimilées) of 20 September 2013 includes bribery as a criminal offence along with influence peddling, embezzlement and other acts of corruption. The articles on facilitation payments are contained in Title IV (Suppression of acts of corruption and related offences), Chapter 1, Sub-section 1 (Corruption d’Agents Publics Nationaux), Articles 28-30. For example, Article 30 stipulates terms of jail and monetary penalties for public officials who accept facilitation payments (2). Article 30 states:

“Any public official shall be punished with 1-5 years of jail and penalties ranging from 100,000 to 1 million FCFA for soliciting or accepting a cash payment or in-kind payment (rétribution en espèces ou en nature) for him/herself or for a third party for an official act that has already been performed” (2).

The clarity of the language in Articles 231-235 of the Criminal Code and the inclusion of bribery among the acts of corruption in Articles 28-30 of Order No. 2013-660 are justified.

IIvorian authorities have successfully initiated and prosecuted roadblock racketeers that demanded facilitation of payments, particularly the cases investigated by the military prosecutor in Abidjan in 2018. However, there is not enough evidence of a total absence of undue political influence since the anti-racketeering campaign has been a longstanding policy priority likely handed down by the executive. According to a March 2016 report by TI’s Anti-Corruption Helpdesk, there are doubts about the effectiveness of the Anti-Corruption Brigade (Brigade de Lutte contre la Corruption, BLC), launched in 2012, and the Anti-Racketeering Unit (Unité de Lutte contre le Racket, ULR), set up in 2012. The ULR has been tasked with ending the facilitation payments demanded by police agents (and their higher-ranking officers) at roadblocks in isolated areas of Côte d’Ivoire (1). However, in November 2018, Ange Kessi was widely reported to have ordered the dismantling of 33 illegal roadblocks operated by corrupt members of the police forces. Several higher-ranking brigade commanders were also successfully prosecuted in these cases at the Military Court of Abidjan (Tribunal Militaire d’Abidjan, TMA). This proves that both the investigation and the prosecution were effective in dismantling roadblocks that had been set up in the aftermath of the post-election crisis of 2010-2011 (2).

The consistent investigations, backed by the political will of the Executive, has allowed the Military Prosecutor to successfully pursue the anti-racketeering campaign. A biographical article on Ange Kessi published in Jeune Afrique (May 2016) explained how he was able to prosecute cases involving petty corruption. Kessi has also gained iconic status for his prosecution of crimes by defence personnel, including former military commanders such as Wattao and Chérif Ousmane, both of whom supported President Ouattara during the post-election crisis of 2010-2011. The article characterizes Kessi as an activist prosecutor stating:

“From his offices in Tower A of Plateau Administrative City in Abidjan, Colonel Kessi goes through his files every day. They include cases involving the abuse of power, racketeering, murders … On his table he has piled up the proceedings against soldiers, gendarmes, policemen. During trial proceedings and in the field, he has relentlessly tracked the evidence and inconsistencies” (3).

The reality in Côte d’Ivoire, where so-called facilitation payments are highly prevalent. At the same time, some progress has been made putting an end to racketeering at roadblocks, which symbolized corruption for many Ivorians. Facilitation payments, known in French as ‘backchichs’, ‘pots de vin’ or ‘commissions officieuses’, are conveyed by the generic catch-all term of ‘racket’. This is the kind of petty corruption (petite corruption) that has been taking place at roadblocks, particularly in rural districts.

The 2018 Bertelsmann’s Foundation report on Côte d’Ivoire (BTI 2018) characterizes the prevalence of facilitation payments as follows:

“The severe economic downturn during the many years of political-military conflict led to higher levels of generalized corruption (i.e. petty and bureaucratic) and venality at all levels of public administration, especially in the case of judicial proceedings, contract awards, and customs and tax issues” (1).

In its Human Rights Report from 2017, the US State Department characterized corruption in Côte d’Ivoire in the following terms:

“There were also numerous reports of judicial corruption, and bribes often influenced rulings. By September 20, no magistrate or clerk had been disciplined or dismissed for corruption. On the other hand, magistrates who advocated independence or acted in a manner consistent with judicial independence were sometimes disciplined” (2).

An article published by Le Monde in October 2017 cited a recent Afro barometer study showing that 47% of Ivorians polled (out of a total of 1,200 individuals) had made a facilitation payment to a police agent in the 12 months preceding the study. Another 31% of pollsters had made a facilitation payment to a public official to obtain a document. The most prevalent cases involved the security forces, Customs officials and tax collectors. The situation was described by those polled as ‘endemic’ (3).

Offering and receiving facilitation payments are illegal according to the Danish Penal Code §122 and §144 [1].

Cases are investigated and prosecuted through formal processes. The Ministry of Defence Military Prosecution Service investigates and prosecutes military criminal cases, including violations of the civil Penal Code which criminalizes faciliation payments [1, 2]. There is no found evidence of concern expressed by independent commentators over undue political influence [3] (see also Q49C). The prosecution of two employees of the Ministry of Defence Estate Agency is evidence that cases of facilitation payments are prosecuted through formal processes [4, 5].

There has been documented instances of “normal” bribery within the Defence, but not of facilitation payments; it is very rare. Research identified two instances. The so-called Atea case complex that unfolded in court around 2016-2018 and included prosecution of five employees of the Defence. The charges were bribery and embezzlement and two employees were found guilty of receiving bribery [1]. The Ministry of Defence Military Prosecution Service stated that this was the first time that charges of bribery have been raised against employees of the Defence [2]. The prosecution of two employees of the Ministry of Defence Estate Agency as mentioned above (Q50B) is the second known instance that research identified [3].

Although facilitation payments are not named explicitly in the law, the Illicit Gains Law no. 62 (1975) has a broad definition of “illicit profiteering” that includes any money obtained as a result of abuse of public position (see the assessors’ comments section for a full translation of the article). This definition very broadly covers facilitation payments, and military personnel are subject to this law and its provisions under Law no. 45 (2011) (1) which gives military courts exclusive jurisdiction for prosecuting officers and personnel of illicit gains crimes as stipulated in the Illicit Gains Law no. 62 (1975) (2).

Although the law does criminalize all forms of profiteering that stem from the abuse of a public position, military personnel and officers can only be prosecuted by military courts and prosecutors, which lack the needed independence to effectively prosecute these cases, even in the face of strong evidence. All the military justice institutions are subordinate to the Defence Ministry, including military intelligence, military courts and the Military Police, and they are considered “administrative units” of the ministry (1). Accordingly, its independence is largely compromised, and it would then naturally come under the influence of top military executives as the minister of defence must be a military officer (4). However, the Illicit Gains Law no. 62 is not enforced, and there can be widespread facilitation payments (2).

According to our sources, facilitation payments are widespread at many levels and in almost every unit, mainly contracts and the industrial sector of the MoD (1), (2), (3). There are several cases from before this reporting period, such as the Mercedes Benz case and the military aircraft depot case, which suggest that facilitation payments are prevalent in the defence sector. The lack of independence and transparency of the military justice system and the increased political power of the military since 2013 does not allude to the fact that facilitation payments are currently less prevalent than they were before.

It is illegal for officials to receive and to be offered any types of perks and benefits, whether it is appropriate or not. This is stipulated by the Anti-Corruption Act. [1] Only benefits which cannot be associated with official duties or which are unambiguously understood as common courtesy, are not deemed to be corruptive. [2] Facilitation payments were equated with bribery in Estonia’s Penal Code from 1st January 2015. [3] The reason for this is that bribery and facilitation payments are often difficult to distinguish and the punishments didn’t differ much before when they were distinguished by law. [4]

There is no evidence of unfair investigations or prosecutions concerning facilitation payments. [1] There is an external oversight of the defence sector and risks are evaluated by various institutions. [2] An external entity, the Estonian Internal Security Service, as well as the Central Criminal Police, investigate corruption instances in the defence sector. [3] However, many experts have expressed concerns over the defence sector being quite a closed sector. There is no clear public overview of what is happening inside the sector. However, independent experts who have been interviewed have not highlighted any political influence being an issue when it comes to facilitation payments. [1,2]

Based on media reports, there are not many cases of facilitation payments. The cases that are uncovered are extensively reported by journalists, as they are very rare and this makes them newsworthy. For example, the most recent case involving a facilitation payment involved an investigation by the Estonian Internal Security Service and lasted for three years. It was one of the most prominent stories at the time of publication and all the main Estonian outlets covered it. [1] According to this case, an entrepreneur bribed an official who worked at the Defence Forces between 2011 and 2013. Facilitation payment and bribery are used as synonyms in Estonia’s legislation from 1st January 2015, therefore, the men were accused of bribery. [2] The bribery receiver was punished with 1,5 years in prison on parole and the person who gave bribes was fined 14,700 euros. [3]

Facilitation payments are not differentiated from bribes in the legislation. Bribery is criminalised in the Criminal Code of Finland in chapter 40, sections 1-3 and misuse of official position in chapter 40, sections 7-8 [1]. According to the Act on Military Trial, chpt 1, section 2, the aforementioned sections fall under the Act on Military Discipline and Crime Prevention in the Defence Forces, when the suspected criminal act is against another soldier or the Defence Forces, otherwise the normal investigatory and judicial processes are followed. [2]

There is not enough information to score this indicator. As noted in 50A, all court cases in Finland are made public and there is no evidence of a case of facilitation payments being recorded there. [1]

Decree on the Defence Forces, chpt 1, section 5: Legality of the actions of and within the Defence Forces, as well as the administration of military justice, is guided and supervised by the Assessor of the Defence Forces. [2] If the suspected criminal act is against another soldier or the Defence Forces, pre-trial investigations are carried out as stated in the Act on Military Discipline and Crime Prevention in the Defence Forces section 5 and actions taken on the basis of the pre-trial investigations in section 6. [3]

Furthermore, the Act on Pre-Trial Investigation is followed and the Police may support and collaborate in the investigation. [4, 5] If impartiality of the investigation or gravity of the crime so require, pre-trial investigation shall be moved to the competence of the Police. This can be done also otherwise because of the quality of the matter and the Police may, of its own accord, conduct a parallel pre-trial investigation for a justified reason. [6]

If the suspected criminal act is against a civilian person or organisation without involving the Defence Forces, the normal investatory and judicial processes are followed. No reports on political pressuring have been reported and there is a general trust towards the enforcement of legislation.

There have been no court cases and/or media reports on faciliation payments paid or tried over the past five years.

Facilitation payments are strictly forbidden by Article 432-11 of the Penal Code. [1] The prohibition covers all “offers, promises, gifts, presents or any benefits”, to either “accomplish or to have accomplished, to abstain or to refrain from performing an act of his function, mission or mandate or facilitated by his function, his mission or his mandate” or to “abuse or have abused his real or supposed influence in order to obtain distinctions, jobs, contracts or any other favourable decision from an authority or public administration.” Punishment for civil servants can reach up to 10 years imprisonment or a fine of more than 150,000 Euros.

The prosecutor in the French justice system (“juge d’instruction”) is independent from both the executive authority and the French equivalent of the district attorney’s office, the “parquet”, representing the State, and under the remit of the Ministry of Justice. “Juges d’instruction” are currently investigating the “kazakhgate” corruption scheme (1) involving the Airbus Group and former officials within the Sarkozy administration in bids to sell airplanes to Kazakhstan.
In addition to prosecutors investigating cases, the National Financial Prosecutor (PNF), created in 2013, has been prosecuting several corruption cases (Serge Dassault’s tax evasion and votes buying in Corbeilles-Essonne for instance, or influence-peddling between former President Sarkozy, his lawyer and a magistrate), and is currently investigating the ICS case.
The PNF has shown that even though it is theoretically part of the “parquet”, it operates in a fully independent way. [2] However, no record of facilitation payments prosecution cases being recently prosecuted was found. Given this, it is not possible to provide a score and this indicator is marked ‘Not Enough Information’.

The Balard scandal and the ICS case tend to show that facilitation payments do happen sometimes, but they also show how hard it is to prove the “constitutive elements of corruption” (additional cases of suspected corruption are under investigation by the PNF). see examples of corruption column)
In the Balard case, the Cour des comptes, in its annual public report of 2018, states: “The operation did not proceed without malfunctions or reservations, during the period of negotiation, construction and development of the premises” and “this conduct is not free from criticism and certain aspects are the subject of ongoing criminal proceedings.” [1]
More precisely, there was no strict equality in the treatment of companies bidding, with a leaking (“stealing”) of documents with the candidates bids, and an overcost of 90 million euros because of negligence.

In the ICS case, which is still pending, it is not clear yet who benefited from ICS’s overcharging for aerial transportation fees to the Ministry of Defence, and whether facilitation payments were received by either one of the commanding officers prosecuted. [2]
But both cases show an overall environment of loose scrutiny and lack of transparency in bids and contract attributions, which could imply that facilitation payments as well as other corrupt practices do happen.

Facilitation payments are illegal and constitute a criminal offence for both the party giving the payment and the party receiving it (see Articles 332 and 334 of the German Criminal Code – StGB) [1]. It should be noted that the German Criminal Code does not distinguish between facilitation payments and bribery more generally [2].

If there is a legitimate suspicion of corrupt activity, Unit R III 1 (ES) of the Ministry of Defence must be informed so that it can initiate internal investigations and measures must be taken to prevent the concealment of any wrongdoing. If necessary, cases involve public prosecutors. In the most severe cases, sanctions for bribe-taking might take the form of discharge from the military (see also Q35B) [1]. There are no reports of undue political influence.

The annual report ‘Corruption Prevention in the Federal Administration suggests that anti-bribery measures are consistently applied when suspicions arise [2].

The annual corruption prevention report published by the Ministry of the Interior in 2018 reports five cases of potential corruption. In one of these cases, an internal investigation concluded that the allegations were unfounded [1]. None of these cases would clearly classify as a facilitation payment.

The annual corruption prevention report published by the Ministry of the Interior in 2019 reports three cases of potential corruption. None of these cases would clearly classify as a facilitation payment [2]. This underlines how rare facilitation payments are in the defence sector.

Section 240 of the Criminal Offences Act states that an officer is guilty of corruption if he is influenced by a “gift, promise, or prospect of any valuable consideration to be received by him, or by any other person, from any person whosoever” (1). Similarly, sections 244 and 245 criminalise the acceptance or offering of a bribe (defined as “any valuable consideration”). Despite not being explicitly mentioned, the facilitation of payments is illegal by the provisions of Section 240, 244, and 245 of the Criminal Offences Act.

Despite the judiciary being perceived as the second-most corrupt institution in Ghana (1), which leads to questions of its effectiveness, there have been cases of facilitation of payment successfully prosecuted. For instance, following the 2015 investigation of Anas Aremeyaw Anas, which exposed the corruption of the judicial system, 24 judges and magistrates were prosecuted and found guilty of bribery (2). Following another report by Anas in June 2018, the Ghanaian Football Association was dissolved for the facilitation of payments, the prosecution is currently ongoing (3).

The facilitation of payments is a widespread corruption practice in Ghana (1).

Facilitation payments are strictly and clearly illegal. According to Article 8, “it is prohibited for military and civilian personnel of the Ministry of National Defence, who are engaged in any kind of employment relationship, to seek or accept, directly or indirectly, any material favour or gift, when handling cases in the exercise of their responsibilities” [1, 2].

Cases have been investigated or prosecuted through formal processes. Independent commentators have expressed little substantive concern over undue political influence [1].

Facilitation payments in the defence and security sector are very rare [1, 2].

Facilitation payments are forbidden by the law, and the criminal law defines facilitation payments as a form of bribery which may be sanctioned by jail [1]. Ethical codices of civil servants and public officials also forbid facilitation payments. The Code of Ethics for the Military states that the soldiers should resist any attempt of bribery and “possibly should speak up against corruption” [2].

Facilitation payments are tolerated in some segments of the public and business, for example, in the health care sector (including the Military Hospital which is a big medical centre in Budapest) while intransigently pursued in other areas. Enforcement is selective, personal ties and political affiliations might matter. Tolerated forms of facilitation payments are among the most devastating forms of petty corruption. An example of a legal procedure came after a notable bribery case in the health care system; in 2018 a Budapest based doctor was sentenced for two years for bribery as he asked for money nine times for services which should have been free for patients [1].

Facilitation payments in the defence sector are not common. However, it is most widespread in the healthcare system also known as ‘money of gratitude’, including, but by far not limited to the Military Hospital in Budapest is one of Hungary’s largest medical centre [1]. The hospital is also the most advanced in the country in many aspects. Facilitation payments are tolerated in the healthcare area with very few exemptions. It provides services for government officials, police, military personnel and a large number of civilians. Thus, the facilitation payments in the Hungarian health care system, in general, affects the military hospital that has a crucial role in Hungary. Prohibitions on facilitation payments are better enforced if they fall outside of the healthcare system. According to the Global Corruption Barometer (GCB) 2016’s survey, the bribery and facilitation payment outside the healthcare sector decreased significantly compared to the previous GCB survey in 2013. However, 22% of Hungarians said that they had paid facilitation payments in the healthcare system, which is more than double the EU average (10%). The facilitation payment specifically in the defence sector was not asked in this survey and we have no survey evidence on that [2].

Facilitation payments are illegal in India and punishable under the Indian Penal Code (IPC),1860 and the Prevention of Corruption (Amendment) Act (PCA), 2018 [1][2].

According to the CBI, 3,296 corruption cases were registered under the PCA, 1988, between 2010 and 2015. Out of these 2,187 were charge-sheeted and 169 persons were convicted [1]. In 2016, total crimes under the PCA and IPC were 4,439. Out of this 1,136 cases were public servants taking gratification in remuneration [2]. The AgustaWestland VVIP helicopter controversy has been investigated, where there was a possible case of facilitation payments. The deal was also cancelled on the grounds of breaching the PCIP [3][4][5].

The Amendment Act brings welcomed changes that can help better enforce the legal provisions in place including the completion of trial for corruption cases by a special judge within a period of two years from filing of the case [6]. Given the aforementioned, it is justified to conclude there is active investigation into bribery and ‘greasing of palms’.

India has a poor reputation for corruption in the public sector. In 2017, EY and the Federation of Indian Chambers of Commerce & Industry (FICCI) published a report based on a survey conducted. Respondents represented a mix of Indian enterprises with domestic operations, as well as Indian subsidiaries of MNCs in the UK and US, whose annual incomes exceed $698 million [1].

Around 89% of the respondents felt that there should be greater enforcement of laws to curb the proliferation of bribery and corruption. Aerospace and defence were seen as one of the most vulnerable sectors to corruption. Cash was the most preferred mode of paying bribes- 89% of the respondents selected it. 31% of respondents were unaware that making facilitation payments is illegal in India and controversially, 44% of the respondents were in favour of legalising facilitation payments under Indian laws, similar to the Foreign Corrupt Practices Act (FCPA).

Analysing the CBI’s public disclosures of arrests related to bribery and corruption from 2016 to present, it is evident that these practices are still prevalent in the public sector in India but are investigated. The 2010 AgustaWestland VVIP helicopter controversy – which is still under investigation, illustrates that the defence sector is not immune from facilitation payments, though cases do seem to be rare or underreported [2].

As alluded to earlier, the Prevention of Corruption (Amendment) Act, 2018 is a further step in the right direction for what is required- a systemic change from the roots up [3][4][5][6][7][8].

The regulation regarding bribery states that facilitation payments are categorised as a bribe and considered an act of gratuity. The Commission of Corruption Eradication has even released the book ‘Indonesia against Facilitation Payments’ in collaboration with Transparency International, which can be used as a guideline by government personnel. However, the term ‘facilitation payments’ is still implicitly categorised as a bribe because of the similarity in meaning. Furthermore, it has not yet been written down in the gratification control regulations, either in the Corruption Eradication Act [1] or in the Gratification Regulation [2] at the ministry and government organisation level. The basic principles of gratuity, bribes and facilitation payments are explained in the training course by the Commission of Corruption Eradication [3], which explains, in the module on gratification control, that government agencies: • must not ask for or accept gratuities, bribes or facilitation payments in any form • must not offer or provide gratuities, bribes or facilitation payments in any form • are responsible for preventing corruption and pursuing anti- corruption systems within the agency.

The Ministry of Defence and the TNI investigate and prosecute perpetrators in cases related to bribery and facilitation payments through an internal oversight and control mechanism conducted by the Inspectorate General [1]. When evidence is found of bribery or facilitation payments, an investigation is carried out internally and, when the offence is proven, the case is submitted to a military court in accordance with the decision of the Case Submitting Officer [2]. Because of their internal nature, investigations of bribery or facilitation payments can only be monitored by the public if they concern high-profile cases, especially in areas that are vulnerable to bribery, such as procurement and acceptance of Military Academy personnel. In the area of procurement, investigated bribery cases are under public scrutiny and end in sentencing for the defendant when they are found guilty. However, there is still very limited chance of corruption cases in the procurement of defence equipment being investigated, because supervision is only conducted internally, meaning that any cases that arise are generally based on reports of suspicion/evidence of corruption submitted by parties outside the Procurement Committee environment, such as the Commission of Corruption Eradication [3]. One case that surfaced concerned bribery and facilitation payments reaching up to 1.5 billion rupiahs, paid to gain entry to the Military Academy (Akmil). The case revealed the existence of a broker syndicate in the Military Academy, consisting of middle officers (pamen), first officers (pama), non-commissioned officers, enlisted officers and civil servants. The number and identity of these alleged brokers were not published because the internal investigation was still ongoing. The bribe givers, 11 members of military personnel, were still undergoing legal proceedings. Four of them were recommended to be tried at Military Court level for general crimes, while seven others were sanctioned with disciplinary action including suspension [4].

Facilitation payments still occur in many bribery-prone areas, such as the procurement of defence equipment [1,2,3,4] and the registration and recruitment of soldiers at the Military Academy [5]. Although the Chief of TNI and Commander of Military District (Pangdam) have made it clear that activities prone to bribery will be carried out with more transparency [6,7,8,9], especially with the existence of a national agenda for bureaucratic reform and the establishment of an integration zone and a corruption-free area, these cases still happen.

The law is sufficiently clear on facilitation payments. They are strictly illegal. Its provided for in Article 118 of the Armed Forces Penal Code, which essentially says that a member of the armed forces cannot accept money or documents or other forms of payment for doing his duty or for refusing to do his duty. One cannot pay more or less than the normal price, whether the duty is done or refused [1].

Cases are beginning to be investigated in Iran, and there have been a number of prosecutions [1]. However, prosecutions involving defence officials are still rare, and there is evidence of undue influence in the decision-making process [2], although it is becoming more difficult to exercise such influence [3].

The occurrence of facilitation payments is believed to be widespread. One former police chief, General Ismail Ahmadi Moghadam startlingly announced that “money can buy anything” in the country [1, 2, 3].

As Transparency International’s 2015 findings (1) disclose, existing provisions with Iraq’s Penal Code of 1969, is the closest Iraq comes to an anti-facilitation payment framework, stipulating that officials that accept “a gift, benefit, honour or promise thereof” can serve a maximum of ten years in jail, and they are subject to pay a fine no more than the money the individual is found guilty of taking (Article 38, Iraqi Penal Code) (2). The Penal Code, as one article notes is very broad, and extends beyond administrative and institutional corruption (3) [363] [Article 2/19, Iraqi Penal Code], noting that “not a single institution [in Iraq] has not been implicated in bribery allegations” (3).

While provisions of the Civil Penal Code (1), on paper, criminalise engagement in bribery and encourage culprits to come forward in exchange of court leniency, the implementation of these is weak against the backdrop of weak anti-bribery legal measures (2). The Penal Code does not specifically name ‘facilitation payments’ as an act deemed to be a form of bribery but prohibits personnel and officers from receiving or exchanging a “gift, benefit, honour [sic] or promise thereof”. As the news coverage shows, bribery associated with the police and security forces is commonplace (3). The most prevalent include temporary employment contracts, to secure a specific rank/position, financial benefits, and bribes in exchange for permission to remain absent from military service.

Facilitation payments, otherwise known as grease payments, are not permissible as the rule of law dictates; however, according to an Iraqi political advisor that TI spoke with “while it’s prohibited under Iraqi laws, facilitation payments are widely used; particularly across security and defence institutions”. Transactions or services under which this practice has flourished “differ and can range from the delivery of armoured vehicles or their parts to large construction deals and transport infrastructure” (1). Inflated service fees is another common form, the source explains, of facilitation payments. A deeper look into the subject reveals that the matter, even across local Iraqi media outlets, is not reported and commented on. This, the source interviewed explains further, “is a result of the vaguity [sic] of definitions across existing legislature over what constitutes a facilitation payment and whether it is or isn’t permissible”. One case which brings forth credible evidence of prevalence is the ASIC case in which senior officials were found guilty of paying for trucking and inland fees to the government “through [the] inflated process via intermediaries” without UN authorisation (2). Attempts to accept, give or issue bribes, is outlawed beneath the sixth section of the Iraqi Penal Code. No further information could be unearthed to provide finer details regarding the frequency of such payments. One source underlines the seriousness of these crimes, which can land officials up to ten years in prison. Another case involved Petrofac and efforts to corrupt offers to influence the awarding of government contracts concerning Badra operations (oil field) (3). Contracts awarded to Petrofac between 2012 and 2015 in Iraq, amounted to $730 mn (4). No further evidence corroborates the claim of frequent enforcement of these sentences.

Facilitation payments would most probably constitute bribery under Article 5 of the Penal Law 1977. Section 293(7) to the Penal Law specifically mandates that any payment received by a public official causing it to conduct (or fail to conduct) an action in the course of its duty will be considered a bribe (1). This applies even when the public official has no discretion as to whether to perform the act (2).

Though there are very few cases of facilitation payments in the military, cases in other sectors have been investigated and prosecuted through formal processes (1). There is little substantive concern expressed from independent commentators over undue political influence (2).

Indicents involving facilitation payments are extremely rare and there is are few examples of them occuring. (1) (2)

Facilitation payments are not allowed by law. As indicated in the criminal code (art. 318 ff.) [1], any form of payment, or instigation to, is sanctioned. Art. 3 of the Code of Conduct of the personnel of the Ministry of Defence affirms that any form and kind of payment, gift or utilities cannot be accepted by any personnel of the ministry for having performed his/her own duties. According to the same article, it is, nevertheless, possible to receive small gifts and benefit worth under 150 euros, the acceptance of which is possible only if they are given in the framework of “normal curtesy relations or according to international customs”.

There is no evidence of political influence over the investigation and prosecution of cases. However, a problem that might affect the enforcement of the legal framework, as highlighted by the 2017 study on corruption in Italy, conducted by the National Institute of Statistics, is the low rate of complaints [1]. Among the reasons for omitted complaints the most widespread is the perceived inutility. A possible explanation could be due to the extended duration of the judicial procedures.

In the 2019 report of the Anticorruption Supervisor there are indications of corruption cases that constitute a crime under the articles of the criminal code mentioned in the former sub-question [1]. Nonetheless, there is no evidence that these cases refer to facilitation payments and do not constitute a graver offence. Requests of money or of favours in exchange of facilitations have been analysed by the national institute of statistics in its first study on corruption cases experienced by families in Italy published in 2017 [2]. In total, in Italy an estimation of 7.9% of the 1 million 742 interviewed families experienced corruption. Of this, 1% of families received requests of money or favours in exchange of facilitations from the personnel of the armed forces and of the police (58 cases).

Facilitation payments are illegal under Chapter XXV “Crimes of Corruption” of the Penal Code [1] and the Unfair Competition Prevention Act (see Q35A). The law firm Nishimura & Asahi writes that “the Penal Code does not allow [Japanese] officials to receive facilitation payments.” [2] Likewise, the lawyers Nishigaki and Muto write that in the Japanese Unfair Competition Prevention Act, [3] ”there is no article literally mentioning small facilitation payments … and no action is freed of punishment under the title of small facilitation payment.” If the purpose of such a payment is “to obtain or retain improper business advantage in the conduct of international business,” such a payment will constitute bribery under the said act and be criminal. [4] The view that small facilitation payments to foreign public officials are illegal has become stronger in Japan in the years leading up to the OECD’s publication in 2019 of its report on Japan’s implementation of the OECD Anti-Corruption Convention. [5]

Japanese public prosecutors are bound by law to investigate and prosecute according to formal procedures. Although the Government can instruct the Prosecutor General, it cannot give instructions to each individual prosecutor about the cases they are investigating. [1] No commentary expressing concern over undue political influence to prevent prosecution for making facilitation payments was found in a search of the mainstream newspapers Asahi Shimbun [2] and Yomiuri Shimbun. [3] However, the OECD, represented by its Working Group on Bribery, points out that Japan has prosecuted few individuals and legal persons suspected of bribery of foreign public officials, and notes that the clarification by the Japanese Ministry of Justice of certain allegations and the interpretation of the Japanese Ministry of Economy, Trade and Industry (METI) of what constitutes a foreign bribery offence may constitute undue influence that contributed to the low number of prosecutions. No evidence was found on the pages in the OECD’s report where the cases of suspected bribery are discussed, however, that the individuals and legal persons were making facilitation payments. [4] The OECD also writes that the METI’s practice in the years up to 2019 of providing information about facilitation payments in seminars for businesses seems to have contributed to many Japanese businesses now prohibiting this practice. [5]

No examples of Japanese facilitation payments in the defence and security sector were identified. A search of the mainstream newspapers, Asahi Shimbun [1] and Yomiuri Shimbun, [2] returned no reports of such payments in the defence and security sector.

Bribery, including facilitation payments, is clearly prohibited by Article 30 of Law No. 35 of the year 1966, Officers Service Law of the Armed Forces, issued in accordance with Article 126 of the Jordanian Constitution [1]. In addition to that specific legislation that relates to the armed forces, Jordan has numerous legislations and regulations that prohibit bribery including facilitation payments. These include (1) The Civil Service Regulation No. 82/2013, (2) the bribery related provisions of the Jordanian Penal Code No. 16/196, (3) The Economic Crimes Law No. 11/1993, (4) the Anti-Corruption Commission Law No. 62/2006, and (5) The Higher Procurement Commission Regulation No. 50/1994 [2]. It is important to note here, whilst facilitation payments are clearly prohibited according to Article 30 of Law No. 35 of the year 1966, there are no sanctions defined by the Military Penal Code [3]. However, sanctions do exist within the Jordanian Penal Code. The Jordanian Penal Code’s definition of bribery clearly covers facilitation payments, as the code distinguishes between gifts or payments made for legitimate and illegitimate services. Therefore, facilitation payments would fall under the gifts or payments made in return of a legitimate service. Facilitation payments are strictly and clearly illegal.

The armed forces do not make the outcomes of their prosecutions public; there is in fact, no evidence of prosecutions within the armed forces at all. As explained previously, accusations levelled against the chief of the army were neither investigated nor prosecuted [1]. The corruption accusations by the association of retired military personnel against the armed forces [2] were not investigated or prosecuted. It is important to note here that corruption accusations were not related to either bribery or facilitation payments, instead most of them were related to embezzlement. Interestingly, cases of corruption often reported in the media are relevant to embezzlement, rather than bribery or facilitation payments. This could also be an indicator that bribery and facilitation payments are not as socially frowned upon as embezzlement. The fact that there were no cases of facilitation payments publicly discussed shows that there are clear failures to investigate or prosecute cases, even in light of strong evidence. The scoring also took into consideration the fact that Jordan is a country where Wasta and nepotism are rife [3].

In the armed forces, facilitation payments might happen and according to our sources, have happened before, but they are still very rare. They only happen at a very senior level and all news and rumors are speculations about possible facilitation payments across borders [1,2].

Various legal frameworks are already institututed against facilitation of payments in form of gifts, fees, favours etc. These include the Anti-Corruption and Economic Crimes Act, [1] The Bribery Act of 2016, [2] and the Public Service Code of Conduct and Ethics, [3] which clearly prohibits any monetary payments or gifts that would require an officer to perform or not perform their duties in favour of the person making the payment.

The Kenya Defence Forces often acknowledges corrupt practices and especially relating to bribery during recruitment of military personnel. For instance, in it as claimed that in 2017, 4.9 million Kenyan shillings was paid in bribes during the recruitment exercise, and those found guilty both civilians and KDF personnel were charged and dismissed from service respectively. [1] Nevertheless, despite claims it is difficult to verify whether the prosecutions were successful in considering that hearings of such cases is not made public. Given this fact, this indicator is not scored and is marked ‘Not Enough Information’. [2]

The Kenya Defence Forces (KDF) has often indicated that although there are cases of facilitation payments, the majority of the people involved are not its officers. [1] The Armed Forces projects the blame on cartels outside the Ministry of Defence for bribery cases. In the 2018 Ethics and Anti-Corruption Commission’s National Ethics and Corruption Survey, the Ministry of Defence ranked eighth amongst twenty goverment ministries, where one is likely to experience corruption and unethical conduct. KDF, on the other hand, ranked tenth among twenty-five government departments where one is likely to encounter corrupt and unethical practices. [2]

The facilitation payments are not addressed by the current legal framework in Kosovo [1].

The Ministry of Defence has confirmed that no cases of facilitation payments have occurred in the Ministry of Defence or the Kosovo Security Forces [1]. No other sources are available.

The Ministry of Defence has confirmed that no cases of facilitation payments have occurred in the Ministry of Defence or the Kosovo Security Forces [1]. No other sources are available.

Facilitation payments are not explicitly outlawed in any of the laws related to Kuwait’s security agencies, but the security agencies must simply account for every dinar in the agreements they enter, including ones on intermediaries, according to Law no. 25 of 1996 (1, 2 and 3).

State auditors, a police official and an activist close to the Government say the security agencies often do make facilitation payments and that it is an open secret in the executive branch that does not scandalise anyone (1, 2, 3 and 4). No one is prosecuted or investigated for this. Because the practice is so accepted, no one appears to keep track of it and the officials could not give specific examples.

Auditors and an activist close to the Government say facilitation payments are effectively part of every arms procurement deal (1, 2, 3, 4 and 5).

Faciltiation payments are strictly and clearly illegal according the the Law on On Prevention of Conflict of Interest in Activities of Public Officials. [1] In addition, the Corruption Prevention and Combating Bureau of Latvia “Gift Acceptance Restrictions” explain what constitutes a gift within the meaning of the law and limit the acceptance of gifts in the performance of duties to avoid potential conflicts of interest. [2]

There is not enough evidence to score this indicator. No public information is available on enforcement as regards to facilitation payments, since such cases have not been recorded. If such cases were recorded, they would receive attention in the media and an investigation under the Law on Prevention of Conflict of Interest in Activities of Public Officals would be initiated. [1] [2]

There have not been cases of facilitation payments recorded. The issue has not been discussed in public.

Facilitation of Payment is illegal in Lebanon. The LPC criminalizes forms of bribery for public officials and lays down the provisions to regulate them (1). Punishments for acts of bribery include three-year imprisonment and a fine equal to three times the bribe (2).

It is not clear whether the investigated cases are regularly prosecuted because the LAF does not publish information about prosecutions (1). According to a source, the Military Police investigate and follow up on violations (2). Prosecutions and investigations of violations are pursued and enforced (2).

Facilitation payments are widespread in Lebanon due to ineffective bureaucratic procedures and lack of transparency and accountabilitiy. Bribery methods to speed up the process are percieved as a norm. Lebanon is among 20% worst countries in the world for corruption (1). Yet, LAF is percieved as the least corrupt institution by citizens (2).
In the defense sector, cases of bribery and corruption to enter the Military Academy have been present. However, the people linked to the bribery scandle were called for questioning in front of the Military Tribunal (3). Furthermore, facilitation payments at mid to senior levels are highly risky for officers, especially in positions with financial, budgetary, and procurment responsibilities. LAF Command has successively shown a willingness to penalize and punish officers who would do otherwise (4) (5).

By law, facilitation payments are strictly and clearly illegal, considered to be purely corrupt activity. One of the main ethical principles of duty in the civil service is propriety (a civil servant shall be flawless and incorruptible, refuse gifts, money or services, exceptional privileges and concessions from persons and organisations), which means that civil servants or government officials cannot accept money, other valuable things or services from persons or organisations that may exert influence on him or her while performing the duties of a state politician or other official duties [1]. Articles 225-229 of the Criminal Code of Lithuania, which regulate corruption-related offences, stipulate sanctions for civil servants and considers it a crime case when a civil servant accepts or agrees to bribes. This means that all types of payments (including facilitation payments) are illegal [2].

The Special Investigation Service issues its annual reports, stating the growth of investigated crimes and more convictions passed in court [1]. In 2017, the courts had 431 corruption-related cases, out of which 424 were thoroughly investigated. However, there is no evidence of how many of these cases were linked to bribery / facilitation payments [2]. Cases of any form of corruption are investigated by the Special Investigation Service. Petty corruption is also investigated by the police (mostly in the police sector) and the Customs (in the customs). Facilitation payments are considered bribery which is a criminal offence. The number of active bribery cases investigated by STT has been steadily increasing, 71 cases in 2016, 73 cases in 2017 and 144 cases in 2008 (3).

The Lithuanian Map of Corruption 2016 does not name the Ministry of Defence among those institutions where bribery/ facilitation payments would be widespread. However, citizens note that they would not trust the Department responsible for acquisitions (1).

Section 8 of the Public Officers (Conduct and Discipline) Regulation 1993 and Section 21 of the MACC Act clearly prohibit facilitation payments in the form of gifts and monetary payments. [1] [2]

As a move to enhance oversight, each ministry has established an Integrity Unit, headed by an official from the Malaysia Anti-Corruption Commission (MACC), to oversee anti-corruption efforts. The Integrity Units receive numerous reports of corrupt activities or acts such as facilitation payments to gain contracts. A Special Comittee may be tasked to lead investigations, and cases are submitted to the MACC upon positive conclusion regarding the occurrence of a corrupt act. The MACC will subsequently pursue further investigations and may bring charges. [1] [2] 2019 saw increased arrests and investigations by MACC such as the arrests of a senior military official for accepting bribes and defence officials in the land swap deals, which are examples of cases involving facilitation payments being investigated and prosecuted [3][4][5][6] Both the Integrity Unit and the MACC are able to act independently without undue political influence. This is proven with the investigations of higher ups in the Scorpene case [7] and the land swap deals.

The arrests of the senior military official for accepting bribes and defence officials in the land swap deals are examples that facilitation payments do occasionally occur in the defence sector. Although there seems to have been an increase in reported arrests of defence officers by the MACC in 2019, [1] [2] [3] [4] [5] it is important to note that some of these arrests are made for cases that occurred in previous years, demonstrating a renewed tenacity of the MACC in combating corruption, but not necessarily reflecting that corruption remains widespread.

The law is insufficiently clear on the issue of facilitation payments. The Penal Code specifically outlaws corruption and acts of bribery for all public servants, including military personnel. Article 121 states that “Anyone in either the performance or the obtaining of an act or benefits or favours, uses violence or threats, promises, offers, gifts or presents, or acts tending to corruption will be subject to the measures included in article 130, ‘five to ten years’ imprisonment and a fine of twice the value of approved promises or things received or requested, without that fine be less than 100,000 francs”.¹ Curiously, the 2014 anticorruption law makes no mention of facilitation payments.²

Corruption is so widespread within the state administration that cases of abuse are only occasionally investigated. As noted above, in the 2011 investigation, public funds were recouped, but no prosecutions occurred. Citizens are accustomed to paying small bribes to public officials to obtain services that everyone has the right to obtain free of charge.¹ 2 3 Citizens remark that they frequently incur demands for bribes of between 1,000 CFA and 10,000 CFA from civil servants to accelerate services or to certify legal documents.¹ Police and custom officials are also known to exact payments from motorists and people importing or exporting goods. The sheer scale of abuse means that the vast majority of cases go uninvestigated.¹ 2 3 The IMF says that “economic agents involved in bribery are seldom prosecuted. Embezzlement in public procurements is sanctioned by the criminal code, but there again prosecutions remain the exception rather than the rule. Administrative sanctions against bidders and holders of public contracts exist for cases of incitement to corruption or the commission of fraudulent acts. However, in practice, they are seldom or never applied”.4

Corruption is so widespread within the state administration that cases of abuse are only occasionally investigated. As noted above in the 2011 investigation, public funds were recouped, but no prosecutions occurred. Citizens are accustomed to paying small bribes to public officials to obtain services that everyone has the right to obtain free of charge.1,2,3 Citizens remark that they frequently incur demands for bribes of between 1,000 CFA and 10,000 CFA from civil servants to accelerate services or to certify legal documents.¹ Police and custom officials are also known to exact payments from motorists and people importing or exporting goods.4 The sheer scale of abuse means that the vast majority of cases go uninvestigated.1,2,3
The GAN Anti-Corruption Portal notes that “corruption is a high risk for businesses acquiring public licenses, permits or utilities. Businesses report that irregular payments in relation to public utilities commonly occur..4 Indeed, 18% of Malian survey respondents have paid a bribe or provided a favour in order to obtain public services in the past 12 months.5
Corruption is a high risk in land administration. Property rights are well defined in principle, but corruption in the Malian bureaucracy negatively affects the implementation of property rights in practice.6 This includes corrupt practices raising the transaction costs connected to obtaining a legal title and diverging concepts of ownership between nomads and the sedentary population that leads to frequent clashes between these two groups.6

Mexican legislation does not regulate payments for facilitation purposes, but it does for bribery. In this regard, it indicates that public servants will incur bribery who: “solicit or receive illicitly, for themselves or for another person, money, or any benefit, or accept a promise to make or stop performing an act proper to the functions inherent in their employment, position, or commission; as well as the one that gives, promise, or deliver any benefit to any public servant to make or omit an act related to their functions, their employment, position, or commission.” [1] The legal sanction for these cases includes the imposition of fines and imprisonment.

It is important to mention that the recently signed Treaty between Mexico, the United States and Canada (T-MEC) contemplates an anti-corruption article and demands the parties recognise the harmful effects of facilitation payments. [2] [3] [4] [5] [6]

Numerous press reports and specialists point out clear flaws in the investigation and prosecution of bribery cases. [1] [2] [3] For example, some studies place Mexico in the group of countries with minimal or no levels of compliance with the OECD Convention against international bribery. [4]

In this regard, there is an evident perception that Mexicans do not comply with the laws [5] and a clear concern on the part of various social actors about the impunity that permeates public servants in Mexico, for which reason they have given themselves the task of investigate and expose cases of corruption and impunity, in order to contribute to having a more informed society and capable of demanding the corresponding sanctions. [6] [7] [8] [9] [10]

Faciliation payments commonly occur in Mexico and are therefore a widespread practice. In this regard, official figures such as the ENCIG (2017) can be found, which indicates that the 14,632 people per 100,000 inhabitants nationwide experienced at least one act of corruption when in contact with a public servant. [1] Likewise, the Global Corruption Barometer (2017) indicates that 51% of the citizens of Mexico state that they have committed facilitation payments at least once in the 12 months prior to the survey. [2] This shows the enormous challenge that exists to eradicate these practices.

This is not an isolated issue in military institutions either. Bribes, corruption, and impunity have had a significant impact on security and defence institutions, allowing criminal groups to carry out their illegal activities. [3] [4] [5] In fact, facilitation payments to officials at all levels, including in the Army, have been one of the central strategies for drug trafficking in recent years. [6] [7] [8] [9] [10]

Facilitation payments are not criminalised: the Criminal Code criminalises a bribe only if it is given to an official with the aim of them not to performing a duty that has to be performed, of them performing a duty that should not be performed, but bribes to “speed up” the performance of an existing duty are not criminalised. [1]

Facilitation payments are not criminalised, hence this indicator is not applicable.

According to available public opinion surveys, more than 45% of businesses admit that they have given a bribe in order to speed up procedures in institutions [1]. Previous research also shows that the main purposes of paying bribes by the general population are to speed up a procedure (32%), to receive better treatment (18%) or to finalise a procedure (18%) [2]. There is no available information related particulary to defence and security sector, as such this indicator is scored Not Enough Information.

Corruption in public services and authorities is explicitly prohibited by the Public Market Code. However the Public Market Code does no provide specific legislation to discourage facilitation payment (1)(2). Interviewees argued that facilitation payments were wide spread in several fields of public service, such as the police, local authorities, health, education (3)(4).

No evidence of specific legislation to discourage facilitation payment in the armed forces was found (1)(2).

The general lack of transparency surrounding the armed forces’ budget and financial management, coupled with the latest publicly available reference to the clear existence of facilitation payments within the Moroccan armed forces (A cable to the State Department sent in 2008 by the then American ambassador to Morocco) shows a wide use of facilitation payments within the military, especially in the Western Sahara region where most of the Moroccan armed forces are stationed), support the view that specific legislation might not exist, and that if it does, it is not made public and is not respected (5)(6).

Corruption in public services and authorities is explicitly prohibited by the Public Market Code(1)(2). However the Public Market Code does not provide specific legislation to discourage facilitation payments. Interviewees argued that facilitation payments were widespread in several fields of public service, such as the police, local authorities, health and education (3)(4).

No evidence of specific legislation to discourage facilitation payment in the armed forces was found (1)(2).

The general lack of transparency surrounding the armed forces’ budget and financial management, coupled with the latest publicly available reference to the clear existence of facilitation payments within the Moroccan armed forces (A cable to the State Department sent in 2008 by the then American ambassador to Morocco) show a wide use of facilitation payments within the military, especially in the Western Sahara region where most of the Moroccan armed forces are stationed and support the view that specific legislation might not exist, and that if it does, it is not made public and is not respected (5).

No evidence of successful investigations or prosecutions was found, due to the lack of specific legislation on the subject. Interviewees confirmed that there were clear failures to investigate or prosecute cases, even in the face of strong evidence.

This indicator has not been assigned a score due to insufficient information or evidence.

Corruption in public services and authorities is explicitly prohibited by the Public Market Code (1)(2). However the Public Market Code does not provide specific legislation to discourage facilitation payments. Interviewees argued that facilitation payments were widespread in several fields of public service, such as the police, local authorities, health and education(3)(4).

No evidence of specific legislation to discourage facilitation payment in the armed forces was found (1)(2).

The general lack of transparency surrounding the armed forces’ budget and financial management, coupled with the latest publicly available reference to the clear existence of facilitation payments within the Moroccan armed forces (A cable to the State Department sent in 2008 by the then American ambassador to Morocco) show a wide use of facilitation payments within the military, especially in the Western Sahara region where most of the Moroccan armed forces are stationed and support the view that specific legislation might not exist, and that if it does, it is not made public and is not respected (5).

Myanmar’s Anti-Corruption Law does not address facilitation payments of any size. Another problem is also the definition of facilitation payments in the language of Myanmar’s laws [1]. Until recent amendments, the Anti-Corruption Law did not cover corruption in the private sector, including the issue of small facilitation payments [2].

Facilitation payments are not prohibited by law [1]. As such, this indicator is marked ‘Not Applicable’.

Small facilitation payments are a very common type of petty corruption that exists in the public servant sector of Myanmar’s bureaucracy [1]. Facilitation payments are likely to be involved in defence contract tenders [2].

Facilitation payments are criminalised under the Dutch Criminal Code, which, in Articles 363 and 178, forbids personnel from both receiving payments in return for acting lawfully or unlawfully (passive bribery) and giving payments to persuade an official to act lawfully or unlawfully (active bribery) [1]. The provisions under these Articles clearly include facilitation payments, though the term is not used explicitly. Moreover, Article 70f of the Civilian Defence Personnel Code (pertaining to civilian personnel) and Article 126d of the General Military Personnel Code (pertaining to military personnel) prohibit the requesting or accepting of bribes in the form of fees, rewards, gifts or promises [2,3].

Cases of facilitation payments are investigated through the formal processes outlined in Chapter 6 of ‘Implementation of Defence Integrity Policy’ [1]. This process may culminate in criminal proceedings executed by the KMAR or the Public Prosecution Service. According to Article 363 of the Dutch Criminal Code, officials can be sentenced to up to six years’ imprisonment or receive a fifth-category fine for accepting or asking for a bribe [2]. In 2018, 46 financial violations (under which facilitation payments would be categorised) were reported internally to the Ministry of Defence [3]. Though it is unclear how many of these reports were investigated or substantiated, there is no reason to believe that due process was carried out ineffectively. There is little substantive concern expressed by independent commentators over undue political influence within the defence sector.

There is no evidence to suggest that facilitation payments are common practice in the Netherlands and the culture within the defence sector stipulates that both the offering and accepting of such payments are widely considered ‘not done’.

Facilitation payments are not considered bribes under New Zealand law, and are an “exception to the foreign bribery offence in section 105C of the Crimes Act 1961” [1, 2]. The exception has been narrowed by the Organised Crime and Anti-corruption Legislation Bill 2014 Clauses 6 and 7 so that “facilitation payments exception will not cover instances where the payment provides an undue material benefit to the person who makes the payment, or an undue material disadvantage to any other person” [3]. The Ministry of Justice recognises that New Zealand lacks case law on where exactly the line is drawn between felicitation and bribery, and therefore recommends that business is always conducted without facilitation payments [3]. Nonetheless, New Zealand’s foreign bribery offence does not apply to acts committed for the sole or primary purpose of ensuring or expediting the performance of a “routine government action”, provided the value of the benefit is “small”, as defined in section 105C(2A) of the Crimes Act 1961. Such payments are commonly referred to as facilitation payments.

Despite this, under section 54 of the Armed Forces Discipline Act 1971, personnel subject to the act are liable to up to seven years imprisonment if they accept or seek a bribe, or for up to three years imprisonment for offering a bribe to someone else subject to the Act in order to influence their official capacity. Facilitation payments are clearly illegal under section 54 as a bribe means “any money, valuable consideration, office or employment, or any benefit, whether direct or indirect” [4, 5]. Thus it appears that while NZDF personnel may not be involved in facilitation payments of any kind, in theory there exists a small, though highly unlikely, possibility that MoD staff could be if they fulfil the very narrow exception as stated under section 105C of the Crimes Act 1961. However, they would, as suggest by the Ministry of Justice, be encouraged to “make it their practice to openly and formally prohibit the use of facilitation payments of any kind” [6]. No evidence has been found to suggest that MoD have engaged with facilitation payments. It is a matter of legal debate, however, if such payments would attract legal attention if they were conducted with a New Zealand-registered subsidiary company of an international-based supplier, as such an action cannot avoid liability to the business making a payment to an intermediary [7].

No cases of faciliation were found to have taken place during the period of this assessment’s focus. As such, this indicator is not scored and is marked ‘Not Enough Information’. The NZDF states that “all members of the Armed Forces and any civilians associated with the NZDF on deployment are liable to up to seven years imprisonment if they accept or seek a facilitation payment, or for up to three years imprisonment for offering a facilitation payment to someone else subject to the Act in order to influence their official capacity” [1]. In instances of suspected official corruption, the NZDF Military Police or the New Zealand Police must conduct preliminary inquiries and cases may only be tried in the Court Martial. This limits the chances of conflict of interest and ensures a level of professionalism and fairness in the investigation and trial. For breaches of the Armed Forces Discipline Act, the NZDF’s Manual of Armed Forces Law provides a formal process in which to investigate and trial someone suspected of corruption and fraud. This is further supported by Specimen Charge examples and Disciplinary Officer’s Checklist activities [2]. None of the sources interviewed raised any concern over facilitation payments [3, 4].

No cases are known to exist, or to have occurred within the period of this assessment’s focus. None of the sources interviewed raised any concern over facilitation payments [1, 2].

Neither the 2003 Military Penal Code (1) nor the Public Penal Code (2) cover facilitation fees (paiement de faveur, paiement de facilitiation) explicitly (see question 35 for details on sanctions regarding corruption). Facilitation payments are therefore not criminalised. The law is not sufficiently clear on the issue of facilitation payments.

Since facilitation payments are not criminalised, this indicator has been marked Not Applicable.

It is difficult to evaluate with precision the extent of facilitation payments. However, some studies indicate that the practice is widespread, with some areas being affected more than others (1). For example, the police, who are public-facing in their roles, seems to be a particular concern (1). Moreover, paying an official to smoothen an administrative procedure is a widespread practice in Niger. The historical and traditional dimension of facilitation “gifts” is also to be taken into consideration and has been extensively analysed by researchers working on corruption (2).

Nigeria is a signatory to the United Nations International Convention Against Corruption (12.03). (UNCAC) (1). Nigeria is also a signatory to the African Union Anti-Corruption Convention. (16.12.03) (2). Both conventions have been ratified by Nigeria. Nigeria has no specific law regarding the bribery of “foreign officials” (1), (2). However, Nigeria has legislated against the soliciting or offering or receiving bribes of domestic officials. Apart from Section 98 of the Criminal Code, there is also the Independent Corrupt Practices Commission (ICPC), which also investigates and prosecutes giving or receiving of bribes by officials or any person (3). Although there is no specific provision dealing with facilitation payments, the scope of the Criminal Code Section 98 and the ICPC Act are sufficiently wide to cover facilitation payments (4). The law states that payments to any person for corrupt purposes, whether directly or indirectly through third parties, are prohibited by law. Section 18 of the ICPC Act 2000 provides that any person who offers to any public official or being a public official solicits counsels or accepts any gratification as an inducement or reward is guilty of an offence and shall on conviction be liable to five years imprisonment (3).

It is worth observing that despite the prohibition of such payments under the Criminal Code and other laws, there has not been a single conviction in 40 years with regards to the crime of facilitation (1).

The recent case of the MTN and the alleged payments made to public officials who are currently being investigated suggests that facilitation payments do happen in some areas where high-value contracts are at stake such as in the oil sector. Another recent example of this is the Malabo case (1), (2).

Corrupt payments are criminalised by the Criminal Code [1]. Articles 257 and 358 highlight the illegal nature of asking and receiving gifts in financial, commercial, service or other economic activities related to official responsibilities, and the Code prescribes penalties of 1-5 years of prison sentence. In the defence sector, the Law on Army Service [2] outlaws “receiving gifts or other benefits, in order to obtain unlawful proprietary benefits” (131/18) and penalises this with 10-30 % salary cuts, bans on promotion to higher ranks, demotion or dismissal from work (Article 132) [2]. The Ministry of Defence also operates following the Code of Ethics [3] which also prohibits receiving and asking for gifts (Article 10) [3].

There is not enough information to score this indicator. No evidence of corrupt payments by or to the Ministry of Defence or Army employees has been identified [1]. No media reports or investigations on private enterprise within the defence sector are publicly available.

There is no evidence of corrupt payments by or to Ministry of Defence or Army employees [1] It would seem, based on the above evidence, that corrupt payments are absent in the defence realm.

The Norwegian Penal Code does not distinguish “facilitation payments” from other bribes. Facilitation payments are therefore to be understood as improper advantages according to the Penal Code Sections 387 and 389 [1]. However, §39 of the Law on State Employees clearly prohibits accepting any gift or service that may be or is directed towards affecting the official duties of the employee. This constitutes a strict and clear prohibition against facilitation payments [2]. The State Personnel Handbook gives guidelines for handling cases of corruption in the public sector [3]. Moreover, the Ministry of Local Government and Modernisation has also published special guidelines for handling gifts in the public sector [4]. The Ethical Guidelines for Contact with Business and Industry in the defence sector make it clear that employees are not allowed to accept or facilitate the acceptance of gifts, travel, hotel accommodation, hospitality, discounts, loans or other benefits or favours that are liable to (or that are intended by the giver to) influence their official actions. The document refers to the Ethical Guidelines for the Civil Service Subsection 4.5 and the Public Employment Act Section 39 [5]. The Ethical Guidelines for Contact with Business and Industry in the Defence Sector specify that exceptions may be gifts of negligible value such as simple souvenirs and gifts with a purely symbolic function. The Defence Acquisition Regulation states that in extreme cases where the cultural dimension or diplomatic considerations indicate that refusal may offend the donor, and thus harm the country’s interests, a gift that would be unacceptable in Norway may still be accepted if it is in accordance with local custom. In such cases, the gift has to be handed over to the employer [6]. Due care must also be exercised when giving gifts. To accept or offer gifts or benefits by virtue of one’s position may be regarded as corruption. Whether the offer or payment constitutes an improper benefit and something the recipient is not lawfully entitled to accept is determined in a court of law [7]. If a facilitation payment constitutes or intends to create an improper advantage, then criminal liability may apply. The Penal Code lists fines or a prison term of up to 3 years as the punishment for corruption and trading in influence (§387 and §389). The penalty may be up to 10 years if the situation involved gross corruption (§387). Case law in this area establishes a relatively strict standard of conduct. The Ethical Guidelines For Contact with Business and Industry in the Defence Sector state that, as a disciplinary penalty for an infringement of the prohibition of gifts, the employee may be given a written reprimand or lose 1 month’s to 2 years’ seniority [5].

According to Section 55 of the Criminal Procedure Act, prosecution authorities shall act objectively in all of their actions, including the investigation phase, when a decision to prosecute is made and a case is tried [1]. The law is aimed at forestalling undue political influence. There is no evidence that any substantive concern has been expressed by independent commentators over undue political influence in recent years. There have been no known recent cases of facilitation payments in the Norwegian defence sector, according to both a search of the media and a senior expert in Norwegian defence [2].

Due to the relevant regulations and detailed ethical guidelines, facilitation payments in the defence and security sector, as in the Norwegian public sector in general, are very rare [1].

According to Omani law, bribery and facilitation payments are strictly forbidden and criminalized (1), (2), (3), (4).

Cases of payment facilitation could be investigated but not persecuted or taken seriously (1). This is a result of political influence in the process of decision making. There are no examples of investigations or failures to investigate or prosecute cases of facilitation payments in the defence or security sectors available for the public, which indicates that there is no media coverage for such cases (2). There are no media reports indicating failures to investigate or prosecute, neither are there any media reports of prosecution relating to facilitation payments in the defence or security sectors (3), (4), (5). No concerns by independent commentators over the lack of enforcement of the laws above were identified, however strict restrictions on Omani media and civil society undercut the existence of independent commentators (6), (7).

There is no evidence to suggest that facilitation payments are prevalent in Oman. According to our sources, there are very few cases which indicate it is rare, and not prevalent. This is because Omani society relies on tribal and familial connections rather than payments (4), (5). Anti-corruption portals advising international businesses on Oman emphasise the low corruption risk in Oman including within the security forces (1), (2). The Export.Gov website advises that “US businesses do not identify corruption as one of the top concerns of operating in Oman” (2). Media reports suggest corruption levels are decreasing, and commitments made by the sultan since the protests in 2011 have seen explicit commitments to combatting corruption, including facilitation payments (3). Although there is a lack of coverage on defence and security sectors, there is no indication that facilitation payments are prevalent.

Facilitation payments are strictly illegal in both civilian and military service laws. It is considered bribery and not a facilitation payment (1).

There has not been a case where an investigation or prosecution was conducted, even in the face of strong evidence of facilitation payments (1). Some payments can be in the form of gifts. Therefore, concerns have been expressed by a range of independent commentators and CSOs (2), (3).

Facilitation payments may happen (1), (2), but it is not a widespread practice. According to the ACC report, there have been some cases of illicit practices in the form of payments (22 cases in 2017) (3).

Facilitation payments are strictly prohibited by law and internal regulations. Republic Act 9485 (Anti-Red Tape Act of 2007) specifically prohibits a public officer from fixing and/or colluding with fixers in consideration of economic and/or other gain or advantage [1]. In addition, those found guilty of committing facilitation payments under the Anti-Money Laundering Act are imprisoned and fined [2].

Court hearings in the Philippines are notorious for delays, meaning that a trial can stretch to between seven and 20 years on average. It is not uncommon for an investigating police officer to ask for gasoline, meals or other favours in exchange for moving the investigation forwards [1]. Prosecutors and judges are also suspected of accepting bribes for a favourable decision [1]. Generally, investigations into high-value corruption cases (for example the hearing of former AFP Comptroller retired General Carlos Garica) receive a lot of media coverage [2]. However there are also instances when small bribes such as in checkpoints get reported [3].

There is not enough information to establish the prevalence of facilitation payments. Research indicates that there is extensive patronage in the defence and security sector but many of them go unreported because transactional records are not always available [1,2]. Among the high-profile corruption cases involving military officers were of two former comptrollers of the Armed Forces. Retired Major General Carlos Garcia pleaded guilty to direct bribery and facilitating money laundering charges and promised to return P135 million of the P303 million he illegally amassed [3,4]. Second is retired Lieutenant General Jacinto Ligot, who was found guilty of perjury over false declarations in his Statements of Assets, Liabilities, and Net worth [5].

Facilitation payments are strictly and clearly illegal. The Polish Criminal Code art. 228, para. 1, penalises the acceptance, demand, or offering of any material of personal benefit or a promise thereof in connection with the performance of a public function [1]. The code do not specify the minimum value of undue benefit, consequently facilitation payments are treated as bribes.

In 2015/2016/2017 The Military Police started 27/32/49 new and continued 19/29/27 criminal investigations in corruption cases against military and civilian personnel. 5/5/14 indictments were filed with the court [1, 2, 3], a growing trend may be observed.
In 2016/2017 Central Anti-Corruption Bureau started 4/5 criminal investigations in corruption cases in the defence and security sector [4, 5]. The report does not provide sector-specific data on how many indictments were filed with the court.
Official statistics on convictions in corruption cases do not provide sector-specific data. Some convictions have been reported by the media [7]. A study of military courts judgments for the years 2010-2015 indicates that 66% (208 out of 297) of defendants in corruption cases were convicted. However, only two (1%) of them were sentenced with a prison sentence, the others got suspended prison sentences or non-prison sentences likes fines [10]. The number of prison sentences in case of corruption convictions was 9% in 2016-2017 [3].
In some high profile cases, such as corruption charges against an assistant of a former defence minister, the media has speculated that his arrest was only possible after his political protector was dismissed. There is no evidence of the involvement of the former minister in the corrupt activities of his assistant [8].

No studies, nor media reports indicate cases of facilitation payments in the Polish defence sector.

Facilitation payments are indistinct from bribery under the law. They are strictly illegal and punishable with prison and financial penalties [1]. Military personnel are bound by law to report any occurrences [2], and in the Military Justice Code kickback-related crimes carry sentences of two to ten years in jail for soliciting or accepting any form of kickback and one to six years for giving or promising to give any form of kickback [3].

While a recent Eurobarometer survey suggests concern over pervasive corruption in the public sector (89% of respondents residing in Portugal) [1], very few individuals report having had any experience with bribery or facilitation payments [1].

Bribery or facilitation payments are known to occur in the defence sector [1, 2], but there is no evidence to suggest they are widespread either in the defence sector or elsewhere in public administration, as very few respondents living in Portugal report having had to pay bribes [3].

Facilitation payments are strictly illegal in Qatar. Article 156 of the Penal Code stipulates that ‘a penalty of imprisonment for a period not exceeding ten years shall apply to any public officer involved in collecting the fines, fees, taxes or the like, who asks for or takes non-due amounts or amounts exceeding the due payments with knowledge of the facts’. [1] This strict prohibition clearly sets out the legal framework for dealing with facilitation payments within the country, and that also applies to the defence sector. [2,3,4,5]

Despite the lack of information about facilitation payments, our sources confirm that cases may be investigated but are not often successfully prosecuted. [1] There is credible evidence to indicate undue influence in the decision-making process. [2] Qatar imposes harsh measures on public officers’ involvement in corruption, however, it is not possible to tell whether these measures are being enforced in all cases. [3]

Facilitation payments are very rare in the defence sector. There is no way of knowing whether such things happen at a senior level. [1] In general, no facilitation payments take place as most activities are done within closed circles and to known parties. [1,2]

Receiving and giving facilitation payments is illegal under Articles 290, 291 and 291(2) of the Criminal Code [1].

There is not enough substantiated evidence to score this indicator, as such it is marked ‘Not Enough Information’. According to the Ministry of Internal Affairs’ 2018 crime rate report, there were 3,499 cases of receiving bribes, 2,612 cases of giving bribes and 979 cases of mediation in bribery identified. Among them, only 2,784 cases of taking bribes (79.5% of identified cases), 2,299 cases of giving bribes (88% of identified cases) and 691 cases of mediation in bribery (70.6% of identified cases) underwent a preliminary investigation [1]. No information is provided regarding the prosecution rate of these cases.

Additionally, if we only analyse high-profile cases (ignoring millions of common bribery cases across the country), we can see that in cases involving top officials, the investigation/prosecution process is dragged out or the punishment is commuted [2]. Fot example, in April 2017, a criminal investigation was launched against Markelov, the head of the Mari El region, for accepting a bribe of 235 million rubles. The first court hearing was not held until May 2019. The case is still unresolved [2]. In November 2010, Domovec, the head of a major investigation unit in the Moscow investigation department in the transport sector, was arrested as he accepted 500,000 dollars of a 1.5 million-dollar bribe from a local businessman. In 2012, the Supreme Court commuted the initial sentence to a conditional one [2].

The occurrence of facilitation payments is widespread across the territorial regions and activity areas. According to the Russian Investigative Committee and General Prosecutor’s Office, in 2018, cases of accepting bribes increased by 10% compared with 2017 and totalled 3,171 [1]. The Prosecutor’s Office explained that this rise in numbers was due to ‘better detectability, tougher legislation and wider anti-corruption propaganda’ [1]. The number of cases of giving bribes also rose from 2,037 in 2017 to 2,251 in 2018 [1]. As for state agencies, the MoD is the top third ministry whose employees were suspected in corruption crimes [1].

According to our sources, facilitation of payments is prohibited by law, and the Code of Conduct of the military and civil personnel (1), (2). However, these laws are not very clear and do not specifically provide a mechanism of how to deal with the facilitation of payments (2). According to the Code of Conduct for civilian personnel, officials are prohibited from receiving gifts with relation to their public functions (3). However, the code does not specifically address the issue of facilitation payments.

There is a clear failure in investigating corruption cases of payment facilitation (1). One source claimed, “50% of procurements include facilitation payments” (2). Although the officials are aware of that, there are no measures taken. There is no publicly available information on procedures to investigate facilitation payments in Saudi Arabia, and they have been known to occur. In the past authorities have turned a blind eye to facilitation payments in the military; for example, in the case of GPT Special Project Management’s contract with SANG (3).

Traditionally, facilitation payments have been considered part and parcel in the local business environment (1), (2), (3). This includes the widespread use of middlemen and fixers in defence procurement, who have been known to receive kickbacks for facilitating deals between foreign defence companies and the Saudi government (4), (5). There are signs that the Saudi government wants to root out such practices, for instance, the establishment of the General Authority for Military Industries (GAMI). GAMI is an industry body created in August 2017, billed as a one-stop-shop for procurement (1).

Facilitation payments are recognised as a criminal offence by the Criminal Code (Art. 367 and 368) under bribery, which prohibits the acts of both accepting and giving bribes and specifies penalties for it [1]. Even though not defined separately from bribery, facilitation payments are criminalized and can lead to up to eight years of imprisonment for all public officials, including MoD and SAF members. The Anti-Corruption Agency Law (Art. 40-42) also bans the reception of gifts [2]. The Code of Honor of the SAF mentions that a SAF officer cannot “accept gifts apart from the protocol ones” [3].

There is not enough information to score this indicator, According to the MoD’s response to the BCSP questionnaire, there are no central records on criminal charges filed against MoD and SAF members. The human resources sector stated that within their own unit there were no criminal charges, and they do not have information on other organisational parts of the MoD and SAF [1]. As such, it is difficult to gain an overall picture of enforcing sanctions on offences related to bribery and facilitation payments. Moreover, since the law does not separate them from bribery, sanctions aimed precisely at tackling facilitation payments cannot be pinpointed.

According to the media reports, cases related to bribery seem to occur in the field of military medicine most often. In March 2018, there were two large MSA, MP and MoI joint actions aimed at tackling corruption cases in military medical facilities. One resulted in the arrest of five people for bribery and unlawful mediation in a military hospital in Niš; while in the other one, a Lt. Colonel in Military Medical Academy in Belgrade was imprisoned on suspicion of having committed the criminal offence of abuse of office [1, 2]. Nevertheless, without consolidated data on the entire system, the prevalence of bribery is hard to assess.

Section 5 of the Prevention of Corruption Act creates public and private offences of active and passive bribery by both individuals and companies. Persons are guilty of bribery if they corruptly solicit, receive, or agree to receive, any gratification as an inducement or reward for any person including government officials [1]. The Penal Code also contains provisions that deal specifically with the bribery of domestic public officials (sections 161 to 165). Examples cited include a public servant taking gratification in respect of an official act; a person taking gratification in order to influence a public servant by corrupt or illegal means [2].

There is evidence that transgressions, when detected, result in prosecution and severe punishment without influence from the government, industry, or society. For example, two Republic of Singapore Air Force officers were punished for receiving bribes and other financial gratification and have been punished [1], while government-linked officials have likewise been fined and jailed for similar transgressions [2].

There is no evidence suggesting that occurrences such as these are frequent. Both the judiciary and the executive have consistently stated that the health of the government and society is premised upon integrity and law, implying that the country’s present success can be attributed to successful measures that have prevented widespread instances of corruption [1, 2].

An analysis of South African anti-corruption legislation and effectiveness carried out by Dave Loxton of Werksman Attorneys concluded that the Prevention and Combating of Corrupt Activities Act 2004 (PACCA) strictly prohibits any use of facilitation payments [1].

An analysis by the Open Society Initiative for South Africa asserted that non-enforcement of existing anti-corruption and anti-bribery legislation and regulations was widespread and that key executive-led institutions are ineffective and have low conviction rates [1].

Corruption Watch’s Analysis of Corruption Trends (ACT) 2018 report found that bribery is one of the leading forms of corruption in South Africa with hundreds of reports each year [1].

The Improper Solicitation and Graft Act, which came into effect in 2016, makes facilitation payments illegal. The law imposes restrictions on all types of bribes in the public sector and prohibits those in the public sector from receiving gifts or free meals in exchange for services or preferential treatment. Those receiving free meals that cost more than 30,000 Korean won or gifts worth over 50,000 won may be punished with fines. Congratulatory or condolence money for weddings or funerals cannot exceed 100,000 won. [1] [2]

There is not enough evidence to score this indicator. Prosecutions for facilitation payments are not made public under the legislation. After reviewing media sources and interviews with several defence experts, it was difficult to find successful prosecution outcomes aimed at defence personnel who engaged in facilitation payments after the enforcement of the Improper Solicitation and Graft Act (ISG Act). In one of the publicly known cases, a former high-ranking army general was accused of receiving facilitation payments from private defence contractors for preferential treatment, which breaches the ISG Act. He was found not guilty of bribery charges but found guilty of providing preferential treatment to his subordinate by the Court of Appeal in April 2019. [1]

After the enforcement of the Improper Solicitation and Graft Act, people seem to have been discouraged from engaging in potential corrupt acts. A senior official working for the National Defence Committee at the National Assembly said in an interview that it is extremely rare to be given facilitation payments in comparison with years before the Act came into force. [1] [2] Despite the strict legal framework to curb corruption and facilitation payments, there is clear evidence that facilitation payments occasionally occur in the defence sector. In February 2018, contracting officers at the DAPA were charged with receiving bribes in the form of a corporate card and business entertainment, including free golf, from a defence contractor for preferential treatment. [3] [4]

Facilitation is an illegal activity and under the SPLA Act 2009, it may fall under the rubric of “corrupt” activities and be liable for punishment. [1]

There is insufficient information in the public domain to ascertain a case in which an official engaged in corrupt actions with clear evidence that resulted in a prosecution. Hence this indicator is marked ‘Not Enough Information’.

There is insufficient information in the public domain to ascertain a case in which an official engaged in corrupt actions with clear evidence that resulted in a prosecution. Hence this indicator is marked ‘Not Enough Information’.

Article 286 of the Spanish Penal Code, on crimes of corruption in business, states that possible sanctions include criminal prosecution/ incarceration and considerable financial penalties for corruption (Art. 286) [1]. Article 262 of the Penal Code sanctions the distortion of competition in public tenders with a prison sentence of one to three years and a fine of 12 to 24 months [1]. Article 6 of the Royal Decree 5/2015, of 30 October (on the Law of the Basic Statute of the Public Official) states that “any gift, favor or service in advantageous conditions that goes beyond the usual, social and courtesy uses will be rejected, without prejudice to the provisions of the Penal Code” [2]. Art 53.7 of the same Royal Decree states that public employees “will not accept any treatment of favor or situation that implies privilege or unjustified advantage, by individuals or private entities” [2]. Considering this legal framework, it is assumed that facilitation payments are covered.

Statistics of the military judicial processes consider offences listed in Article 6, 7, and 8 of Organic Law 8/2014 (of the Disciplinary Regime of the Armed Forces), Article 7, 8, and 17 of Organic Law 8/1998 (also on the Disciplinary Regime of the Armed Forces) [1] and Article 7, 8, and 9 of Organic Law 12/2007 (for the Civil Guard). None of the offences listed as soft, severe, and very severe refer to facilitation payments (or anything deemed similar). Thus, none of the 369 violations of items listed as offences in the statistic yearbook on military jurisdiction expressly refer to anything related to facilitation payments [2].

However, whilst many cases of facilitation payments are not investigated [3], other cases are prosecuted and sentenced. However, a quick review of cases shows that in certain cases the offence could not be judicially demonstrated (e.g. because the gift could not be quantified) [4, 5].

Facilitation payments in the defence and security sector certainly occur but are not deemed widespread [1]. For instance, a quick search for the word “dádiva” (gift) in the military jurisdiction offers 22 results. A quick review confirms that at least some cases refer to facilitation payments [2, 3].

GAN Integrity’s Sudan report reads: ‘Active and passive bribery, gifts and facilitation payments are prohibited in the public sector’. However, this is not specific to the security sector [1]. Section 129 of the 2003 Penal Code references penalties for ‘taking bribes or gratification in order to influence public servant’ [2].

GAN Integrity’s report on Sudan reads: ‘Active and passive bribery, gifts and facilitation payments are prohibited in the public sector, but enforcement is weak… Public servants are known to demand extra facilitation payments for services that individuals and companies are legally entitled to’ [1]. An expert on Sudan’s defence sector and political dynamics said in a phone interview that, in general, facilitation payments to officials to expedite or complete a routine procedure are frequent. Penalties are not often imposed and most Sudanese people would not consider these to be acts of corruption, but rather ‘the way things get done’ [2].

GAN Integrity’s report on Sudan reads: ‘Public servants are known to demand extra facilitation payments for services that individuals or companies are legally entitled to… Government officials are frequently involved in corrupt practices with impunity. The lack of transparency in Sudan retains the status quo both due to a weak administrative setup, which allows for poor record-keeping and lax budget handling, and due to the absence of legislation providing public access to government information… Corruption is a high risk in the police force, most commonly in the form of petty bribery’. Furthermore, ‘government officials hold direct and indirect stakes in many enterprises, which creates a system of patronage and cronyism and distorts market competition to the disadvantage of foreign firms without political connections’ [1]. In 2020, defence sector watchdog The Sentry wrote the following about the Sudan Armed Forces, the (until 2019) National Intelligence and Security Services, the RSF and the National Police: they ‘developed vast business empires and still enjoy exemptions from government taxes and other dues, undercutting the private sector. In addition, they were empowered to keep part of their revenues off budget, using them to extend significant benefits to senior officials and to feed into the regime’s patronage systems. These officials maintained their own private companies and received preferential treatment in bidding for government contracts while their political connections allowed them to stash abroad the proceeds of their exports’ [2].

Facilitation payments are criminalised accoring to Swedish law, more specifically the Public Employment Act [1] [2].

Cases are investigated and prosecuted through formal processes in line with to the Swedish Penal Code [1]. However, it should be noted that OECD has repeatedly expressed substantive concern regarding Sweden’s failure to fully adhere to the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and for not pursuing prosecutions against Swedish companies suspected of paying bribes abroad [2] (see Q5B).

No indications or evidence could be found that facilitation payments have been made in the defence and security sector during the studied time period [1].

The Swiss Criminal Code (StGB) explicitly prohibits facilitation payments (“Briberies”). Any person who “offers, promises or gives […] a member of the armed forces an undue advantage for that person or for a third party in order that the person carries out his official duties is liable to a custodial sentence not exceeding three years or to a monetary penalty” (Article 322 StGB). The same applies to accepting such an advantage for public officials (Article 322 StGB). These rules do also extend to foreign officials (Article 322 StGB) and the private sector (Article 322 StGB) [1, 2]. Article 102 of the StGB defines the liability under the criminal law for cooperations. The maximum fine is five million Swiss Francs [1]. The Code of Conduct for Federal Personnel (COC) also applies to the military and summarizes the rules for government employees. It discusses gifts and invitations, as well as illegal behaviour or transgression of rules [3].

There are no reports on facilitation payments involving Swiss government officials in general, or of the defence department in particular. The main concern with such payments in Switzerland is holding private cooperation responsible for bribery abroad [1]. Corporate liability for facilitation payments was put into the law in 2003 (Article 102 Swiss Criminal Code) (StGB) [2]. Since then only seven firms have been convicted, three during the reporting period of this study. Since 2007 “a good dozen” of cases was brought before a judge [1]. The maximum fine is not a sufficient deterrent and was therefore criticized by the OECD in its Phase 4 report of the Working Group on Bribery in International Business Transaction [3]. The media reports on these scandals and court cases [1, 4, 5].

A search for cases on facilitation payments involving the Swiss defence sector during the reporting period did not yield any results. If such cases exist, they are probably rare. However, Switzerland was slow to establish corporate liability [1] for bribery, and the system still offers only limited deterrence [2]. However, Swiss firms appear in cases involving facilitation payments abroad. The last media report on a defence case concerns a scandal with the involvement of a Swiss firm in 2012, allegedly playing a role in a corruption case linked to a Eurofighter purchase in Austria [3].

Facilitation payments are made strictly and clearly illegal by the Criminal Code and the Anti-corruption Act [1, 2].

Laws and regulations related to “facilitation payments” are well organised and clarified in terms of definitions, investigation, allegation, and prosecution for both civilian and military personnel under the Criminal Code and the Anti-corruption Act [1, 2]. Cases are investigated and prosecuted through formal processes without undue political influence [3, 4].

Accepting facilitation payments is strictly prohibited for civilian or military personnel of Taiwan’s armed forces and is regarded as a serious legal offence [1, 2]. Cases concerning facilitation payments in the defence and security sectors are rare [3, 4].

Facilitation payments are outlawed under the Prevention and Combating of Corruption Act 2007, Section 20(1-3). [1]

If cases go to court, they are investigated through formal processes following normal court procedures. Cases may be investigated but are not often successfully prosecuted due to poor evidence. There is credible evidence to indicate undue influence in the decision-making process. Also some cases concerning facilitation payment are normally not sent to court, but rather they end up at administration level, leading to sanctions including warnings or suspensions from work, without being sent to a criminal court. For others there is clear evedence they were sent to court for further procedures. In the end though, it is difficult to tell what is going on with the defence sector in this particular case given the fact that there are millitary courts. [1] There have been no known cases of prosecution for the use of facilitation payments. A 2012 settlement between the UK’s Serious Fraud Office and BAE Systems effectively shut down investigation of such payments in the case of the 1995 purchase by Tanzania of a military radar system for civilian use by Tanzania in 2001. [2] [3]

Cases concerning facilitation payments in the defence and security sector are very rare. This shows that facilitation payments in this area are very rare. This is because the defence and security sector is well disciplined and those who go against the codes of ethics of public servants are punished as any other public servant.There are some cases concerning facilitation payments in the process of recruitment into the posts of Tanzania People’s Defence Forces (TPDF), but these concern mostly non-defence personnel and a strict warning has been given to the people who are involved in such acts. Very few cases has been reported in the Millitary and Defence. On June 27, 2019 a member of the TPDF Millitary personnel, MT 77341 Johanes Kubambi, was tried in the Kinondoni magistrate court for allegedly receiving TZS700,000 so as to facilitate Kelvin Fabian getting a job in the Millitary. [1] [2] [3]

Legally, the OACC prohibits state officials from receiving any type of payments, which would include both bribes and facilitation payments. Therefore, it is illegal for officials to demand or receive facilitation payments, as confirmed by Tilleke & Gibbins, and so as a general rule, facilitation payments should be avoided according to the law [1]. The Act Supplementing the Constitution Relating to the Prevention and Suppression of Corruption (2018) also regulates the giving of gifts or benefits by any person to officials in Thailand. Similarly, the NACC considers facilitation payments to have a high risk of bribery [2]. The Payment Systems Act B.E. 2560 (2017), Section 128, also indicates that giving a gift or benefit, regardless of the value, to solicit a benefit in kind is considered bribery [3,4].

In Thailand, anti-corruption legislation is insufficiently enforced and facilitation payments and gifts are practically common. Facilitation payments made to civil servants who are responsible for regulatory bodies remain problematic and companies that refuse to pay risk losing their competitive advantage over other firms in the same field [1]. For example, low-ranking officers may give facilitation payments to their generals in exchange for higher housing loans or easier access to guns in the military welfare projects. These cases have rarely been disclosed and prosecuted, even though they have attracted public attention [2].

In Thailand, facilitation payments and gifts are practically common, especially facilitation payments made to civil servants responsible for regulatory bodies [1]. After the general election in 2019, the parliamentary review publicly discussed the problem of facilitation payments given by big companies in exchange for support for their mega-projects, which mostly contradicted the public interest [2,3].

Facilitation payments are punished according to Articles 82 to 94 of the Penal Code, penalising the corrupter, the corrupted and the intermediary between the two. It punishes both positive and negative acts which include donations or promises of donations and gifts or advantages of any kind, whether for the purpose of active or passive corruption. Similarly, the Penal Code penalises acceptance of donations by corrupted individuals. This includes cases where officials are refusing to carry out an activity that is within the remit of their official duties, or to refrain from carrying out said duties (1). According to article 133 of the Military Justice Code, the provisions of the Penal Code are also applicable to the military (2).

According to our sources, there are political attempts to derail efforts on corruption cases related to facilitation payments. These efforts are sometimes faced strongly by INLUCC and senior commanders and sometimes are tolerated based on the power of the political figure (1,2). There is evidence that cases are investigated. The Anti-Corruption Authority (INLUCC) annual report for the year 2017 mentions that 7 cases of corruption have been transmitted to justice by the Ministry of Defence. Details of these cases are not publicly available and it is unclear if they include facilitation payments (3). There is no evidence of comments from independent commentators over undue political influence (4).

According to our sources, there are very rare facilitation payments that may happen in the MoD, but they are not prevalent. These cases may consist of fewer than a dozen in the last few years (1,2).

According to Article 252 of the Turkish Criminal Code (TCC-5237), facilitation payments, regardless of the amount, are illegal and a type of bribe. It should be noted that all military and civilian personnel within the defence/security sector are obliged to the adhere to the Turkish Criminal Code. Article 252 of the Criminal Code defines any payment offered to public servants for their services as a bribe, regardless of the amount [1].

There is not enough information regarding facilitation payments to and from defence personnel. As such, this indicator cannot be scored and is marked ‘Not Enough Information’. Interviewee 4 suggested that facilitation payments are considered bribes within the defence and security community; he suggested that cases may be investigated but often not successfully prosecuted [1]. However, they could not provide evidence to support these allegations, so it is inconclusive.

Interviewee 4 suggested that facilitation payments occur occassionally, particularly among politically backed civilian officals, but are not widespread [1]. He underlined that it is not likely for military personnel to receive facilitiation payments because the Ministry of Defence has formed a committee comprising at least three offficers and this committee is in charge of the conduct of the contracting and procurement process, making it harder for the committee members to engage with foreigners alone [1].

Section 176 (b) of the Uganda People’s Defence Force (UPDF) Act 2005 states that “a person who is subject to military law who improperly demands or accepts compensation, consideration or personal advantage in respect of the performance of any military duty or in respect of any matter relating to the Defence Forces commits an offence and is, on conviction, liable to imprisonment not exceeding seven years” [1].

Facilitation payments are common when it comes to deals in the Ministry of Defence and Veterans Affairs (MoDVA). They work like power brokers [1]. Some highly connected people carry out the lucrative businesses of procurement [2].

The defence sector is prone to facilitation payments inorder to win the many lucrative contracts. Given the fact that most of the procurement opportunities in the mininstry are closed to the public, it is hard to know what really takes place when it comes to facilitation payments although it is a known fact that the practice of facilitation payments is a common practice in Uganda. Since most of the budget items are classified, behind the scenes, there are many highly connected business interests in the MoDVA transacting in major procurement deals [1, 2]. For instance, according to media reports [3], the MoDVA cancelled a UPDF hospital contract worth Shs130b because the deal was marred by allegations of bribery and backhand methods which left the MoDVA senior staff divided, officials said in a letter to the inspector general of the government (IGG). It further stated that the contract had been awarded to the Seyani Brothers and Prabat Constructions in a joint venture, but it was cancelled after it emerged that the project price had been scaled up from Shs113b to more than Shs130b without consistent explanation. However, Miss Byengoma, the Permanent Secretary of the MoDVA, in an 18 April 2016 letter to Public Procurement and Disposal of Public Assets (PPDA) said the MoDVA cancelled the tender to the preferred bidder, Ms Seyani/Prabat, “due to the wrongful treatment of arithmetic errors by the evaluation committee,” which led to an escalation in the project cost.

Bribes (facilitation payments) are prohibited by law. For instance, the Criminal Code of Ukraine, namely Article 368 stipulates that “Accepting an offer, promise or receipt of improper advantage by [a] public official” can be punished with up to 12 years of imprisonment, deprivation of the right to occupy certain public positions and confiscation of property [1]. However, the Law allows the possibility for public officials to receive gifts “which meet generally accepted notions of hospitality, happen once and if the cost of such gifts does not exceed 1762 UAH or 63 USD” (as of April 2018) with regards to the limitations of Article 23 of the Law on Corruption Prevention [2].

The Law on Corruption Prevention [2] defines “unlawful benefits” as a part of the term “corruption”. Unlawful benefits themself are defined as – money or other kinds of property, benefits, preferences, services, intangible assets, any other benefits of immaterial or non-monetary nature that are promised, offered, granted or received without legal justification. There is no separate term for facilitation payments in the Ukrainian legislation bu the definition of the terms “corruption” and “unlawful benefits” are broad enough and incorporate facilitation payments. For example, there was a case when a State Migration Service civil servant was arrested for receiving a bribe for “speeding up the process of issuing [an] ID card”.

The General Prosecutor`s Office provides data on the prosecution of criminal and administrative corruption cases [1], and there is evidence that cases are investigated. However, there is evidence-backed concern that investigation and prosecution authorities, as well as the judiciary, might be unduly influenced by the legislature. For instance, there are reasons to doubt SAPO`s independence since its head was recently suspected of certain illegalities [2]. However, NABU is one of the effective authorities tasked to combat corruption; it is also one of the first public institutions to investigate high-level corruption cases with active MoD officials involved [3,4,5].
Moreover, the MoD website reports on cases illustrating that the Chief of Defence initiated an official investigation of an officer who was allegedly involved in bribery [6], deprived two corrupt officers of military ranks [7] and dismissed a commander of the military unit from the AFU [8].

The General Prosecutor`s Office provides data stating there were 2681 cases of bribery (in regards to Articles 368, 369, 370 of the CCU) recorded by law enforcement agencies in 2017 and 2031 cases in 2016. However, it is worth noting that there are clear methodological challenges in measuring corruption and the occurrence rate of facilitation payments, in particular. This is the case, although some recent polls indicate that facilitation payments are common in the social sphere such as schools and hospitals [2]. If we look at the defence and security sector, in particular, facilitation payments became a widespread practice with regards to crossing checkpoints in the East of Ukraine [3] and the illegal movement of goods to the temporarily occupied territories [4].

According to many sources, facilitation payments are prohibited in the UAE and are considered illegal under the laws that criminalise bribes (1), (2), (3). Bribery, including facilitation payments, is prohibited through Federal Law 3/1987, also known as the Penal Code, Articles 234 to 239, and Federal Decree-Law 11/2008 (also known as the Federal Human Resources Law) (4). However, there is no clear evidence that the Federal Human Resources Law applies to the defence sector. All evidence suggests that there are legal frameworks that strictly make facilitation payments illegal. It has also been noted that although the US under the FCPA allows for exceptions concerning facilitation payments, the UAE has no exceptions (1), (5), (6).

The UAE does not make information about the investigation and prosecution of cases of corruption in the defence sector and the armed forces accessible to the public. According to our sources from the armed forces, the enforcement of legal frameworks with regards to facilitation payments are strict, and people involved are prosecuted, and in cases where they are foreign, they will be deported (1), (2).

According to the assessor’s interviews with officers within the UAE armed forces, facilitation payments are very rare and not a common practice within the forces (1), (2).

The law is insufficiently clear on the issue of facilitation payments. As per Sect.13 of chapter 23 of the Bribery Act:

13. Defence for certain bribery offences etc.

(1) It is a defence for a person charged with a relevant bribery offence to prove that the person’s conduct was necessary for—
(a) the proper exercise of any function of an intelligence service, or
(b) the proper exercise of any function of the armed forces when engaged on active service.

However, according to the MoD, the defence under Sect.13 of the Act would only be available in highly exceptional circumstances, and its use is subject to authorisation [1, 2].

Cases are investigated through formal processes and prosecutions are made publicly available [1]. There is no substantive concern expressed from independent commentators over undue political influence. However, as pointed out in the previous assessment, the Bribery Act contains a significant potential loophole with respect to service personnel: ‘S.13 Chapter 23 of the Bribery Act 2010 sets out defences against Bribery Act offences which includes that bribery was necessary function of the armed forces while on service. Such a loophole could be used to evade all facilitation payments charged that were deemed to support mission success [2, 3].

A review of the list of prosecutions under the Bribery Act for the last 6 years suggests that faciliation payments in general are very rare, with less than 20 prosecutions taking place since the introduction of the Act [1]. However, the lack of prosecutions does not necessarily demonstrate a lack of bribery. In a written response, the MoD’s Fraud Defence unit underlined how they were unaware of any cases involving faciliation payments in the defence and security sector [2].

The Foreign Corrupt Practices Act (FCPA) makes an exception for facilitation payments, in which companies can make facilitation payments to foreign officials for ‘routine governmental action’ (see § 78dd-1(b)) [1]. The emphasis here appears to be on the purpose of the payment rather than the monetary value [2,3]. Facilitation payments to US officials would fall under bribery however, and therefore it is illegal for a US official to receive facilitation payments [4].

There is not enough information to score this indicator. As noted in 35B, there are no publicly available statistics on the enforcement of anti-bribery legislation in the DoD. Bribery cases would be investigated by the DCIS, and recorded in the DoD IG Semiannual Report to Congress. With regards to facilitation payments made by US companies to foreign officials, it is not clear that records are kept on this.

There is not enough information to score this indicator; very little data regarding the prevalence of facilitation payments exists. Given their nature, it seems they would most likely only take place in transactions outside of the US and for small payments. This would make it difficult to track and record such payments.

Venezuelan legislation includes the duty of civil and military officials to neither accept nor request payments for their services, favors, or for refraining from their functions [1, 2]. Likewise, the Venezuelan Penal Code establishes penalties for “citizens who succeed in corrupting public officials” [3]. Although they prohibit these behaviours, the laws – especially the Military Discipline Law (LDM) and the Organic Code of Military Justice (COJM) – are insufficiently clear, nor are there policies that disincentivise facilitation payments.

Though it punishes the illicit enrichment of officials, the Anti-corruption Law that government institutions currently uphold does not provide measures to prevent officials and citizens from paying for the facilitation of procedures [3]. Moreover, there are no concrete plans to combat corruption, so corruption and other behaviours that breed corruption malpractices are not discouraged [4, 5].

The offence of receiving or requesting payments for public service functions is punishable under the Penal Code, and the receipt or request of service payments is a disciplinary offence in the LDM [1, 2, 3]. In very few cases is there evidence that public and military officials have been punished, and it is not possible to find evidence of sanctions against citizens who have made facilitation payments [4].

One example of this inaction from the justice system relates to reports of the charging of money to facilitate access to food items such as subsidised food boxes from the Local Committees for Supply and Production (CLAP), which are managed by military officials [5]. While the legislation is unclear on the offence of paying for the facilitation of these procedures, officials who demand payments could be punished. However, impunity is upheld, as neither of these behaviours is disciplined, so that this kind of exaction of payment has become standard for this and other procedures [6].

Payment for facilitation purposes is widespread in Venezuela, not only for institutional procedures controlled by the defence sector, but for all types of government procedures [1].

Social organisations have consistently condemned the enrichment of civil and military officials through shadow charges for facilitating access to social goods and benefits established by the government [2, 3]. This has even been recognised by some officials of the National Bolivarian Armed Forces (FANB) who have decided to defect in the face of the political crisis and flee abroad, where they have openly denounced that through these charges – to provide services that are citizens’ rights – military officials of different ranks have a secondary income to supplement their salaries [4]. Likewise, according to Transparancy’s global corruption index, Venezuela is a society with high levels of bribe acceptance in different areas of the public sector: about 38% of public servants have accepted a bribe [5].

The Defence Act outlines offences in the military, but it does not elaborate more on corruption, including the payment of facilitation fees, and there is nothing on bribery [1]. Facilitation payments are not criminalised, and the legal framework does not discourage this. The discretion to determine whether such conduct is unacceptable is largely left to military commanders [2].

This indicator is marked “Not Applicable,” as facilitation payments are not criminalised.

There are several areas where facilitation fees are paid. This usually happens in procurement, disciplinary proceedings, postings and promotions [1]. It is usually senior officers that are given the facilitation fees or staff and officers in the administration department that receive facilitation fees to influence the outcomes of administrative or procurement processes [2].