Taking and Giving a Bribe – Articles 338 and 339: What These Norms Cover
Bribery cases in Georgia are resolved under two articles of the Criminal Code: Article 338 – taking a bribe – concerns an official or a person equated to him, while Article 339 – giving a bribe – concerns the person who gives it. One and the same episode thus leads two persons to two different articles: the giver and the taker. In practice this means that a bribery case always contains two positions and two different defense strategies.
A bribe is not only money: securities, other property, a property benefit or any other unlawful advantage – all these forms fall under the article if they are disposed of in return for an action connected with the performance of official rights and duties: carrying out an act, refraining from an act, using official authority, or providing official patronage.
Taking a Bribe – Article 338 and Its Sanctions
Part 1 of Article 338 defines the taking of a bribe as receipt, demand, or acceptance of an offer or promise thereof. The sanctions, part by part:
- part 1 – taking a bribe – imprisonment for a term of six to nine years;
- part 2 – taking a bribe by a person holding a state-political office, in a large amount, or by a group with prior conspiracy – imprisonment for a term of seven to eleven years;
- part 3 – the act provided for by parts 1 and 2, committed by a person convicted of bribery, more than once, by extortion, by an organized group, or in a particularly large amount – imprisonment for a term of eleven to fifteen years.
The note to the article defines the thresholds: a bribe is considered to be in a large amount where the sum exceeds ten thousand GEL, and in a particularly large amount where the sum exceeds thirty thousand GEL. These thresholds change the qualification directly – the difference between parts 2 and 3 lies precisely in these sums.
Giving a Bribe – Article 339 and the Possibility of Release
Article 339 concerns the giving of a bribe – a promise, an offer or a grant. The sanctions:
- part 1 – giving a bribe – a fine, or corrective labor for a term of up to two years, or house arrest for a term of six months to two years, or imprisonment for a term of up to three years;
- part 2 – the same act committed in order to induce an unlawful act – a fine, or imprisonment for a term of four to seven years;
- part 3 – the act provided for by part 1 or 2, committed by an organized group – imprisonment for a term of five to eight years.
The note to Article 339 is particularly important for the defense: the giver of a bribe is released from criminal liability if he voluntarily reported it to the body conducting the criminal proceedings; the decision on release is taken by that same body. Also, a legal person is punished for this offence by a fine.
Aggravating Forms in Both Articles
For taking a bribe the aggravating features are the status of a person holding a state-political office, a large amount, the group form, extortion, an organized group, repetition and a particularly large amount. For giving a bribe – giving in order to induce an unlawful act, and the organized-group form. Each of these circumstances must be substantiated by the prosecution with evidence.
Particular attention is devoted to the form of extortion: where the official himself demands the bribe with violence or threats, this constitutes the gravest form of part 3. Establishing this element – whether the demand was coercive – is often the central question of the case and is treated as exculpatory from the giver's side.
The Defense's Tasks in Bribery Cases
In bribery cases the evidence often rests on materials of special investigative measures, which are subject to independent rules – the conditions of their use are defined by other provisions. The defense verifies: whether the subject was an official or a person equated to him; whether an advantage was genuinely transferred; whether an agreed action in return existed; and whether the evidence obtained is lawful.
A separate direction is comparing the versions of the victim-accused relationship: bribery episodes almost always begin with two contradictory versions – voluntary giving or demand, a gift or a bribe. Establishing these boundaries requires a detailed analysis of the case materials.
Special Investigative Measures and Their Lawfulness
Most bribery cases begin with the use of special investigative measures, and a charge built on precisely those materials is often the weak point of the case: the conditions of using such measures, independent authorization and procedural recording are defined by strict rules – under other provisions. A violation of those rules becomes a ground for the inadmissibility of the evidence, and the defense works in this direction from the very first day of the case.
A separate question is the boundary of inducement: the line between lawful operational activity and provocation of the act must be assessed separately in each case. If the accused's side substantiates that the bribery episode was precisely the product of such inducement, this fundamentally changes the assessment of the case.
How a Lawyer Assists in Bribery Cases
The lawyers of Legal.ge work on bribery cases in both positions – defending the accused and protecting the interests of the victim: we assess the qualification, the subject's status, the relation to the amount thresholds, the element of extortion and the lawfulness of the evidence. In such cases the decisions of the very first days often decide the final outcome.