For the first time in Spanish democracy, a judge is investigating a former prime minister, doing so for, among other alleged crimes, influence peddling. The National Court judge José Luis Calama has gathered evidence to proceed against José Luis Rodríguez Zapatero for having woven a network to use his influence in the current government of Pedro Sánchez, as well as in other instances, such as the Venezuelan executive, in favor of companies in exchange for money.
The Spanish Penal Code includes the crime of influence peddling autonomously with the aim of protecting the integrity and objectivity of the Public Administration, sanctioning those who use their position or contacts to obtain an economic benefit improperly.
Latin tradition vs. Anglo-Saxon tradition
In its conception of the crime, Spanish legislation draws from the same tradition as Latin countries such as France, Italy, or Portugal, where this crime is typified autonomously, unlike countries of Anglo-Saxon or Germanic tradition (such as the USA, the United Kingdom, or Germany) that subsume these criminal behaviors under the umbrella of bribery or fraud. The essential difference between the two crimes, as understood by Latin tradition legislations, is that in bribery there is a pact (a sale), whereas in influence peddling there is pressure.
Specifically, the Spanish Penal Code typifies the crime of influence peddling in articles 428 to 430 and does not punish buying a public official, but rather using a shortcut or a position to obtain an administrative resolution. Here the figure of an intermediary comes into play. In contrast, bribery is typified in articles 419 to 427 and protects the absolute respect that the official must have towards the law. They cannot “sell” their functions.
Penalties in Spain depending on who takes the initiative and their status
The Spanish Penal Code classifies the crime of influence peddling into three main modalities, depending on who takes the initiative and their status. If it is an authority or a public official who exercises their influence by taking advantage of their position to obtain a resolution that generates an economic benefit, the penalties include imprisonment from one to two years, a fine equivalent to or up to twice the benefit obtained, and special disqualification from public employment or office for five to nine years.
If it is a private individual who exerts influence over an authority or public official based on personal relationships, the penalties are six months to two years in prison, a fine, and loss of the possibility to obtain subsidies or contract with the public sector for a period of six to ten years.
Finally, the person who offers to perform such conduct in exchange for gifts or remuneration, or who accepts such offers, is sanctioned with imprisonment from six months to one year, and if it is a public official who commits it, special disqualification from one to four years.
France, one of the strictest and most specific countries
France is one of the strictest and most specific countries regarding influence peddling and punishes, as in Spain, both the one who sells their influence and the one who buys it, whether this influence is real or supposed. Penalties vary according to the position of the offender. For private individuals or intermediaries, up to five years in prison and fines up to 500,000 euros (or twice the benefit obtained). If the one offering their influence is a public official, the penalty rises to ten years in prison and fines up to one million.
Precisely, former French president Nicolas Sarkozy was sentenced in 2021 to three years in prison for corruption and influence peddling in the so-called wiretapping case, a sentence that was upheld in 2023 although the court ruled that two years were exempt and the remaining one could be served at home, with an electronic bracelet, without the need to enter prison.
In Italy, the punishability of “simulated or supposed” influence was eliminated
In Italy, the criminal type has been recently reformed to align with European directives against corruption. The punishability of “simulated or supposed” influence was eliminated. Thus, for there to be a crime, the relationship of the intermediary with the official must be real. Additionally, the promised utility must be exclusively economic or patrimonial (any other ambiguous “advantage” is no longer enough), and it is required that the objective be the commission of a corruption crime (bribery). After this reform, the base penalty was significantly reduced, currently ranging from six months to three years in prison following the expiration of the previous legislation before 2024.
In Portugal, penalties are modulated depending on the objective sought
Portuguese law divides the crime into passive (the intermediary) and active (the buyer) and maintains punishment whether the influence is real or simulated. That is, if an intermediary deceives a businessman by charging money under the promise that “they know the minister and will get the license,” they commit influence peddling even if they actually do not know the minister at all.
The Portuguese Penal Code modulates penalties depending on the objective sought. If the money or advantage is given so that the intermediary influences the official to obtain a resolution contrary to the duties of the office (for example, awarding a contract by favoritism bypassing the law or falsifying a file), the prison sentence is one to five years. If the influence is bought simply to obtain an act that the official can or must legally perform, but seeking a favor, expediting procedures, or obtaining a lawful benefit (for example, speeding up a license that meets the requirements), the penalty is up to three years or a fine.
If the crime is committed by a high public official or a politician, the general Penal Code does not apply, but rather the law on crimes of responsibility of holders of political office. In these cases, when a politician takes advantage of their position to traffic influence, the criminal framework is considerably aggravated due to the special position of power and the severe breach of public trust.
Germany and the United Kingdom: The bribery approach
Germany does not have an autonomous crime of influence peddling in its Penal Code. Historically, German law has rejected this concept as too vague, preferring to protect the objectivity of public administration through bribery types. If an intermediary unlawfully influences an official through promises or advantages, they are judged as an accomplice or instigator of a bribery crime, or under the crime of “acceptance of advantages.” Depending on the severity and whether it is an advantage for a lawful or unlawful act, penalties for bribery range from fines to imprisonment from six months to five years (in particularly severe cases, up to ten years).
Unlike Spain, where the conduct of attempting to unlawfully influence is punished regardless of whether it takes effect, in Germany, if an intermediary receives money to “influence” a public official, they are not directly punished for the mere act of influencing. They can only be punished if the official actually ends up committing the crime of “accepting an advantage” or “passive bribery.” If the intermediary keeps the money and the official never finds out or acts, it is usually prosecuted as fraud against the person who paid, but not as a crime against public administration.
Like Germany, the United Kingdom does not recognize a crime called “influence peddling.” Instead, it uses an extremely powerful and modern framework: the Bribery Act 2010. Any attempt to pay an intermediary to “influence” a public official is prosecuted directly as bribery. British law considers that if you give a financial advantage for someone to perform a “public function improperly,” it is corruption. It also includes the corporate offense of “failure of commercial organizations to prevent bribery.” In the criminal sphere for individuals, penalties can reach up to ten years in prison and unlimited fines. For companies, financial sanctions are massive and have no legal cap.
United States, a particular case
The United States addresses this problem from a unique perspective. On one hand, lobbying is a legal, highly regulated, and constitutionally protected activity. On the other, crossing the line into illicit influence is severely punished federally.
There is no crime of “influence peddling” as such. Illicit intermediary conduct is prosecuted federally through bribery laws and, very commonly, through the charge of honest services fraud. The latter punishes any fraudulent scheme to deprive the public of the right to the honest service of an official through bribes or illegal commissions. Federal bribery can carry up to fifteen years in prison and fines up to three times the value of the gift. Postal or electronic fraud linked to “honest services fraud” can be punished with up to twenty years in prison (or up to thirty years if it affects a financial institution).
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