On 3 May 2023, the European Commission presented a proposal for a directive of the European Parliament and of the Council on combating corruption, replacing Council Framework Decision 2023/568/JHA and the Convention on the Fight Against Corruption Involving Officials of the European Communities or Officials of Member States of the European Union and amending Directive (EU) 2017/1371 of the European Parliament and of the Council (Proposal for a Directive on Combating Corruption).

In presenting this Proposal for a Directive on Combating Corruption, the European Commission has highlighted that the current European Union (EU) legal framework on corruption is outdated and incomplete. This necessitates the adoption of a new EU legal framework, including the inclusion of the United Nations Convention against Corruption (UNCAC).

As the main objective of this proposal is a directive on combating corruption, the European Commission pointed out the need for all forms of corruption to be criminalised in all member states, thus creating a harmonised framework. Such a framework is necessary because between 2016 and 2021, EUROJUST (European Union Agency for Criminal Justice Cooperation) registered 505 cross-border corruption cases, demonstrating that  corruption has gradually come to have a pronounced cross-border element.

What are member states expected to do?

According to the 2023 Eurobarometer data, 7% of Latvians have been victims or witnesses of corruption in the last 12 months. In addition, 74% of Latvians believe that corruption is a common problem in Latvia. This rate is higher than the EU average, which is 70%. This is the first proposal at EU level to merge the regulation on corruption in the public and private sectors into a single piece of legislation, stipulating that corruption will be punishable as a criminal offence if committed intentionally.

The Proposal for a Directive on Combating Corruption stresses that influence trading and obstruction of proceedings related to a corruption offence should also be recognised as a criminal offence. Importantly, legal entities are also mentioned, stipulating that it should not be possible to evade liability through an intermediary.

At the same time, member states are expected to:

  • establish the minimum types and levels of sanctions for the criminal offences defined in the Proposal for a Directive on Combating Corruption
  • provide for aggravating circumstances for corruption offences such as bribery or influence trading committed in order to favour a third country
  • ensure that mitigating circumstances are established in national law in relation to offences covered by this Proposal for a Directive on Combating Corruption
  • consideration should be given to laying down procedures for the dismissal or temporary transfer to another post of a civil servant accused of a crime covered by  this Proposal for a Directive on Combating Corruption.

Combating corruption in Latvia

In Latvia, the Criminal Law (CL) criminalises exceeding the powers of the service, abuse of official position, inaction of a public official, bribery and trading in influence.

The CL lists the mitigating and aggravating circumstances that can be taken into account when a person has already been punished for an offence for which liability is provided for under the CL. However, the CL does not separately provide for an aggravating circumstance in cases where bribery or influence trading has been established, in order for a third country to achieve a more advantageous position. The same is true of mitigating circumstances. In other words, the CL does not separately define the attenuating circumstance of the offences covered by the Proposal for a Directive on Combating Corruption. Thus, the legislator should amend the relevant articles of the CL by also establishing aggravating and mitigating circumstances.

A more interesting situation arises if a civil servant has committed one of the offences mentioned in the Proposal for a Directive on Combating Corruption, because in this situation it is then necessary to consult the State Civil Service Law. This law provides that the head of an institution may suspend an official from the performance of their duties if the official has been prosecuted. The law does not mention whether such a civil servant could be transferred to another position.

However, on 7 June 2017, the Supreme Court issued a judgment in the case SKA-423/2017, which ruled that suspension from performing official duties does not prevent an official from performing other work inside or outside the public administration with the permission of the institution. Consequently, it is conceivable that such a civil servant, accused of committing a criminal offence, could be transferred to another post, thereby cancelling out the fact that the institution must at the same time suspend pay when the official is suspended. In other words, when transferring a person to another position to perform another job, payment of the salary may be ensured. However, since the settlement of such a situation is not enshrined in law, the legislature may still have to regulate it normatively.

Information, education and awareness

It is a positive step that the proposal for a directive on combating corruption states that member states will have to take appropriate measures, such as information and awareness-raising campaigns and research education programmes, in order to raise public awareness of the dangers of corruption and, in general, to reduce the number of corruption offences committed, as well as the risk of corruption. It is essential to educate the public about what corruption is and what forms it takes. This could also change the attitude of Latvian society towards corruption, which is currently regarded with tolerance. It could also encourage citizens to report cases of corruption.

Although at the moment this Proposal for a Directive on Combating Corruption is only in its infancy, with a first reading being examined by the European Council on 19 October 2023 and will now have to be examined by the European Parliament, it can be seen that member states will have much to work on to unify the framework of the fight against corruption.