GRECO'S RECOMMENDATIONS AND AMENDMENTS TO THE LEGISLATION DERIVING FROM THEM

Transcription

1 Janne Kanerva, 14 June 2011 GRECO'S RECOMMENDATIONS AND AMENDMENTS TO THE LEGISLATION DERIVING FROM THEM The amendments to the Criminal Code (39/1889) that the Additional Protocol (ETS 191) to the Criminal Law Convention on Corruption, concluded in Strasbourg on 15 May 2003 (ETS 173; Treaty Series of the Statutes of Finland 108/2002) requires will enter into force in the beginning of October The President of the Republic has on 10 June 2011 approved the amendments to the Criminal Code as well as the bill on the implementation of the provisions of a legislative nature in the Additional Protocol. In connection with enacting the Acts, the Parliament and the President have accepted and approved the Additional Protocol and the withdrawal of the reservation that relates to Article 17, paragraph 1(b) and is referred to in Article 17, paragraph 2 and Article 37, paragraph 2 of the Convention. The purpose is that the Additional Protocol will enter into force in respect of Finland on 1 October The same applies to the withdrawal of the reservation. When drafting the amendments, GRECO's recommendations issued in connection with the Third Evaluation Round were also taken into consideration. They are discussed in more detail below. 1) GRECO recommended that Finland verify the coverage of the notion of foreign arbitrators in Finnish law and, if need be, transpose in an unequivocal manner the definition of foreign arbitrators as provided for in Article 4 of the Additional Protocol to the Criminal Law Convention on Corruption (ETS 191) into Finnish legislation and sign and ratify this Instrument as soon as possible (paragraph 96). In respect of this recommendation, it may be stated that section 7 (bribery in business) and section 8 (acceptance of a bribe in business) in Chapter 30 of the Criminal Code have been completed so that the penal provisions now apply also to a person who arbitrates a dispute between entrepreneurs, between other parties or between an entrepreneur and another party as an arbitrator. In addition, a new section 14 has been added to Chapter 30 of the Criminal Code. According to the section, a domestic and a foreign arbitrator taking care of his or her duties in accordance with the legislation on arbitration proceedings of a foreign country is equated with an arbitrator when applying sections 7, 7 a, 8 and 8 a of the said Chapter. 2) GRECO recommended that Finland review the legislation concerning bribery of members of the Finnish Parliament, members of foreign parliaments and members of international parliamentary assemblies, in order to comply with the requirements of Articles 4, 6 and 10 of the Criminal Law Convention on Corruption (ETS 173) (paragraph 97). In connection with the bill drafting, it was considered that the provisions of the Criminal Code on active and passive bribery of members of Parliament do not in all respects comply with the requirements of the Convention. For this reason, the penal provisions concerning members of Parliament were amended. According to the amended section 14 a(1) in Chapter 16 of the Criminal Code, a person who promises, offers or gives a member of Parliament a gift, which cannot be considered an act of

2 2 ordinary hospitality, or another unlawful benefit intended for him or her or another person in order to have the member of Parliament act in his or her parliamentary mandate in a certain manner or to have him or her refrain from acting in a certain manner, or as a reward for such action, and the act is conducive towards seriously undermining the independence of the exercise of the parliamentary mandate, shall be sentenced for giving of bribes to a member of Parliament to a fine or imprisonment for a maximum of two years. According to the new subsection 2 of the aforesaid section, election funding in accordance with the Act on a Candidate's Election Funding (273/2009) is not considered giving of bribes to a member of Parliament, unless the purpose of the act is to evade subsection 1. A new section on aggravated giving of bribes to a member of Parliament has been added to the Criminal Code (Chapter 16, section 14 b). This offence is committed if in the giving of bribes to a member of Parliament 1) the gift or benefit is intended to make the member of Parliament act in his or her parliamentary mandate to the considerable benefit of the briber or of another person, or to the considerable loss or detriment of another person, or if 2) the gift or benefit is of considerable value. An additional requirement is that the giving of bribes to a member of Parliament is aggravated also when assessed as a whole. The penalty is imprisonment for at least four months and at most four years. The provision on the scope of application in Chapter 16, section 20 of the Criminal Code has been completed so that in applying sections 14 a and 14 b of the said Chapter, a member of a foreign Parliament referred to in Chapter 40, section 11 is equated with a member of Parliament as the object of the criminal act. According to the amended section 4(1) in Chapter 40 of the Criminal Code, a person shall be sentenced for acceptance of a bribe as a member of Parliament to a fine or to imprisonment for at most two years, if the member of Parliament, for himself or herself or for another, 1) requests a gift or another unlawful benefit or otherwise takes an initiative in order to receive such a benefit, or 2) accepts or agrees to accept a gift which cannot be considered an act of ordinary hospitality or another unlawful benefit, or agrees to a promise or offer of such a gift or other benefit in order to act in his or her parliamentary mandate in a certain manner or to refrain from acting in a certain manner in exchange for the benefit, or as a reward for such action, and the act is conducive towards seriously undermining the independence of the exercise of the parliamentary mandate. The penalty is a fine or imprisonment for at most two years. A new subsection 2 has been added to the aforesaid section, according to which election funding in accordance with the Act on a Candidate's Election Funding is not considered acceptance of a bribe as a member of Parliament, unless the purpose of the act is to evade subsection 1. Provisions on an aggravated form of acceptance of a bribe as a member of Parliament have also been added to the Criminal Code. According to the new section 4 a in Chapter 40 of the Criminal Code, a member of Parliament commits aggravated acceptance of a bribe as a member of Parliament if 1) the member of Parliament sets a gift or a benefit as a prerequisite for his or her actions or acts or intends to act in his or her parliamentary mandate to the considerable benefit of the briber or of another person, or to the considerable loss or detriment of another person, or if 2) the gift or benefit is of considerable value. In addition, it is required that the acceptance of a bribe as a member of Parliament is aggravated also when assessed as a whole. The penalty is imprisonment for at least four months and at most four years.

3 3 Section 12(4) in Chapter 40 of the Criminal Code has been completed so that sections 4, 4a and 14 of the said section are also applied to a member of a foreign Parliament. The last one of the above-mentioned sections concerns forfeiture. 3) GRECO recommended that Finland clarify in an appropriate manner what should be considered due and/or undue gifts/benefits, both in terms of material and immaterial advantages for all forms of bribery offences. It is stated in the Government proposal concerning these amendments (Government proposal 79/2010, pp. 25 and 26) that drawing up these clarifications is problematic. If "clarifying in an appropriate manner" means issuing some detailed, formulaic guidelines, this is not considered expedient and it would, in practice, be also almost impossible. In addition, such guidelines could infringe upon the principle of independence of the courts. The consideration and reconciliation of the diversity of cases and of the various judicial viewpoints and principles affecting the assessment of events shall in each individual case take place in court. In practice, any possible guidelines would be very general and, as such, apparently useless. It is stated in the proposal that some clarification may be reached by analysing the precedents of the Supreme Court. In addition, it is stated that general guidelines concerning the question of which benefits shall be considered due and which undue, aimed at civil servants, are being drafted by the Ministry of Finance. The Ministry of Finance has on 23 August 2010 published general guidelines for the state administration concerning hospitality, benefits and gifts (VM/1592/ /2010). These guidelines must be followed within the state administration. The purpose of these guidelines is to provide answers to questions arisen in practice as to the issues that civil servants should take into consideration if they are offered benefits, gifts or hospitality in official business. The guidelines have been translated into English and, as far as is known, they have been submitted to GRECO. 4) GRECO recommended that Finland consider increasing the penalties for aggravated bribery offences in the public sector (paragraph 102). According to the Government proposal (79/2010, p. 26), the penal scale for aggravated bribery offences in the public sector is equivalent to the penal scale for aggravated financial offences. The total reform of the criminal law, which has been in progress in Finland for several decades, has recently been completed. If the generally-applied penal scales for serious offences are deviated from, there should be cogent reasons for the deviation. The penalties imposed for bribery offences, which are few in number, do not appear to be exceptionally lenient or severe in comparison with the penalties imposed for other aggravated financial offences. It is also stated in the Government proposal that bribery offences are the type of offences for which the risk of being detected is very low. Therefore, no significant advantage in the prevention of bribery offences can be reached by severe penalties or by increasing the penalties for these offences. There is thus no need to increase the penalties for bribery offences in the public sector. For this reason, it was not proposed in the Government proposal that the penalties for bribery offences in the public sector be increased. This recommendation issued by GRECO, together with recommendation 7 and the needs for amendments to the legislation at a more general level, have been thoroughly assessed when drafting the bills. A report on this matter, drawn up by a working group set up by the Ministry of Justice, has been widely circulated for comments, and based on the comments and state-

4 4 ments received, the matter has been further prepared in the Ministry of Justice before submitting the Government proposal. 5) GRECO recommended that Finland consider abolishing the requirement of dual criminality in respect of bribery offences in the private sector when committed abroad and thus withdrawing or not renewing the reservation relating to Article 17 of the Criminal Law Convention on Corruption (ETS 173) (paragraph 103). In connection with the legislative reform, the requirement of dual criminality in respect of bribery offences in business has been abolished. Section 11(2) in Chapter 1 of the Criminal Code has been amended so that a new paragraph 8 concerning this question has been added to the section. The new paragraph applies to acts referred to in sections 7, 7 a, 8 and 8 a in Chapter 30 of the Criminal Code, i.e. bribery in business, aggravated bribery in business, acceptance of a bribe in business and aggravated acceptance of a bribe in business. Therefore, there are no longer any reasons for the preservation or renewal of the reservation made to the Convention concerning the requirement of dual criminality. As stated above, the withdrawal of the reservation concerning the requirement of dual criminality has been approved and will be implemented as soon as possible. Section 11(2) in Chapter 1 of the Criminal Code has been amended in this connection also so that the newly criminalised acts, i.e. aggravated giving of bribes to a member of Parliament (Chapter 16, section 14 b of the Criminal Code) and aggravated acceptance of a bribe as a member of Parliament (Chapter 40, section 4 a of the Criminal Code) have been added among the offences in respect of which dual criminality is not required. 6) GRECO recommended that Finland increase the penalties for bribery offences in the private sector (paragraph 104). It is stated in the Government proposal (79/2010, p. 26) that the maximum penalty provided for bribery offences in business is imprisonment for two years, which is two years less than the penalty for bribery offences in the public sector. Due to the increased significance of the private sector, there are no longer grounds for considering bribery in the private sector any less reproachable than bribery in the public sector. Therefore, provisions on aggravated bribery in business have been added to the Criminal Code, as proposed in the Government proposal. The minimum penalty for these offences is four months' imprisonment and the maximum penalty is four years' imprisonment. Aggravated bribery in business (Chapter 30, section 7 a of the Criminal Code) is committed if, in the bribery in business, 1) the gift or benefit is intended to make the bribed person act in his or her duties so that the act results in a considerable benefit to the briber or to another person or in a considerable loss or detriment to another person, or if 2) the gift or benefit is of considerable value. In addition, it is required that the bribery in business is aggravated also when assessed as a whole. Aggravated acceptance of a bribe in business (Chapter 30, section 8 a of the Criminal Code) is committed if, in the acceptance of a bribe in business, 1) the bribed person in exchange for the received gift or benefit acts or intends to act in his or her duties so that the act results in a considerable benefit to the briber or to another person or in a considerable loss or detriment to another person, or if 2) the gift or benefit is of considerable value. In addition, it is required that the acceptance of a bribe in business is aggravated also when assessed as a whole.

5 5 7) GRECO recommended that Finland consider criminalising trading in influence in accordance with Article 12 of the Criminal Law Convention on Corruption (ETS 173) and thus withdrawing or not renewing the reservation relating to this article of the Convention (paragraph 105). In the Government proposal, it was not proposed that provisions on trading in influence be added to the Criminal Code and, in consequence, withdrawal of the reservation was not proposed either. According to the proposal (79/2010, p. 27), the main problem with criminalisation of trading in influence relates to the question of how the penal provisions could be formulated in a satisfactory manner in respect of the requirement of precision included in the principle of legality (section 8 of the Constitution of Finland). According to the established practice of the Constitutional Law Committee, the essential elements of an offence must be expressed with sufficient precision in law so that it can be foreseen, based on the phrasing of the provision, whether a certain act or neglect is punishable (e.g. Constitutional Law Committee s Report PeVL 26/2004, p. 3/II). It is also stated in the Government proposal that the most serious forms of trading in influence are already punishable as bribery offences or offences in office or as complicity in these or as other offences (such as fraud or extortion). Other amendments In addition to the above-presented amendments to the legislation, it may be stated that the criminal liability of legal persons has in Chapter 16, section 18 and Chapter 30, section 13 of the Criminal Code been extended to cover also the newly criminalised acts, i.e. aggravated giving of bribes to a member of Parliament, aggravated bribery in business and aggravated acceptance of a bribe in business. A new section 15 has been added to Chapter 30 of the Criminal Code. According to the section, a gift or another benefit received in a manner referred to in sections 8 and 8 a (acceptance of a bribe in business and aggravated acceptance of a bribe in business) or the value of such a gift or benefit shall be ordered forfeit to the State. The forfeiture shall be ordered on the perpetrator or the person on whose behalf or to whose benefit the offence has been committed. In respect of forfeiture of other property, the provisions of Chapter 10 shall be complied with. In addition, the provision on forfeiture (section 14) in Chapter 40 of the Criminal Code has been completed so that it covers also the new offence, i.e. aggravated acceptance of a bribe as a member of Parliament.