The Civil Servant in Bribery Crimes (Criminal Law)

The Civil Servant in Bribery Crimes (Criminal Law)

First: The difference between the civil servant in administrative law and criminal law

The Administrative Concept

A civil servant in administrative law is defined as:

Any person who is permanently appointed to a position included within the job structure of one of the units of the state’s administrative apparatus, and who receives a salary for his work from the general budget.

Accordingly, the essential elements of this concept are:

1. Appointment by the competent authority pursuant to an official decision.
2. The position is permanent, not temporary or contractual.
3. The position is included in an official organizational structure within the general framework of the state.
4. The employee receives his salary from the state or its general budget.

Example

Administrative employee:

An employee in the Ministry of Justice, the Ministry of Finance, or Muscat Municipality is considered a civil servant from an administrative perspective because he was appointed by an official decision and receives his salary from the state budget.

Second: Definition of the civil servant in bribery crimes (criminal law)

The Criminal Law Concept

In criminal law, the legislator adopts a very broad definition of the “civil servant,” because the purpose of criminalization is to protect public trust in public office and public service, rather than merely to protect the formal employment relationship.

Accordingly, a civil servant in bribery offenses is defined as:

Any person who performs an act of a public office or contributes to the provision of a public service, even if he is not formally appointed or permanently established on the official staffing structure.

Characteristics of this expanded concept:

1. Formal or permanent appointment is not required.
2. It includes anyone who performs a public service by assignment from the state or under its supervision.
3. It extends to employees of public institutions, state-owned companies, or those who carry out tasks of public benefit.
4. It also includes temporary or seconded employees, and even those who have left public office if they exploit their former status in committing bribery.

Criminal law example:

An engineer working under a temporary contract in a municipality, a member of a governmental procurement committee, or an external auditor in a regulatory authority are all considered “civil servants” in the criminal law sense if they exploit their positions to obtain a bribe.

Third: The Position of Omani Law

Under Omani law, a distinction can be made between the two concepts by reference to the following:

1. Civil Service Law (Royal Decree No. 120/2004):

 A civil servant is defined as:

 A person who occupies a public position in one of the units of the State’s administrative apparatus. This represents the purely administrative concept.

2. Omani Penal Code (issued by Royal Decree No. 7/2018):

In the chapter on crimes against the public office (Article 10) of Royal Decree No. 7/2018 promulgating the Penal Code, the legislator did not confine the definition to civil service employees only. Rather, it provides that the following shall be deemed a civil servant for the purposes of applying the provisions of this law:

a. Anyone who occupies a governmental position.

b. Members of the Council of Oman and members of municipal councils.

c. Anyone entrusted with carrying out a specific task by one of the competent public authorities, within the limits of such assignment.

d. Government representatives in companies, and employees of companies wholly owned by the government, or in which the government holds a share exceeding forty percent (40%) of the capital.

e. Members of the boards of directors of Omani public-benefit (public-interest) associations.

The termination of service or loss of status shall not preclude the application of the provisions of this law, provided that the crime was committed during the period of service or while the status existed.

This constitutes an explicit legislative expansion of the criminal law concept, aimed at protecting the public interest.

Fourth: Practical Applications

1. Contracted Employee:
2. Administratively: He is not considered a civil servant because he is not subject to the Civil Service System.
3. Criminally: He is regarded as a civil servant if he accepts a bribe while performing work connected to a public utility.
4. Member of a Procurement or Tenders Committee:
5. Administratively: He may be merely a cooperating consultant.
6. Criminally: He is considered a civil servant in bribery crimes because his work is connected to the public interest.
7. Employee Whose Service Has Ended:
8. Administratively: He is no longer a civil servant.
9. Criminally: If he exploits his former status to request a bribe, he is held accountable as a civil servant under criminal law.

Fifth: The Legislative Rationale Behind Criminal Expansion

The reason behind the criminal legislator’s expansion in defining a civil servant is that the danger which bribery crimes seek to combat does not depend on formal employment status, but rather on the breach of integrity of those who perform a public service.

In other words, what matters is not the position itself, but the public trust that this position represents in the eyes of citizens.

Prepared by: Mr. Saied Ahmed Ahmed

Al-Alawi & Co – Lawyers and Legal Consultants
Muscat, Sultanate of Oman