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Legal alerts / 30 Jun 2016

Legal Alert – Ministry of Justice Preparing Proposal to Criminalize Trading in Influence – What Are the Effects?

The Ministry of Justice in Finland is proposing amendments to the Finnish Criminal Code by adding a new section to criminalize trading in influence. By criminalizing trading in influence, Finland also renounces its reservation concerning Article 12 of the Council of Europe’s Criminal Law Convention on Corruption.

Background

Trading in influence is somewhat different offence than other bribery-based offences. It is a corrupt trilateral relationship where a person (influence peddler) having real or supposed influence on persons, such as civil servants or members of parliament, trades this influence in exchange for an undue advantage from someone seeking this influence. Criminalizing trading in influence seeks to reach the close circle of the official or the political party to which they belong and to tackle the corrupt behaviour of those persons who are close to power and try to obtain advantages from their situation.

The difference between this trading in influence and bribery is that the influence peddler is not required to act or refrain from acting as a civil servant would be. The recipient of the undue advantage assists the person providing the undue advantage by exerting or proposing to exert an improper influence over the third person who may perform (or abstain from performing) the requested act. The scope of sanctioned behaviour is therefore enlarged.

Both active and passive forms of trading in influence are proposed to be sanctioned. Active trading in influence means that a person promises, gives or offers an undue advantage to someone who asserts or confirms that he is able to exert an improper influence over third persons. On the other side, passive stands for situation where a person, taking advantage of real or pretended influence with third persons, requests, receives or accepts the undue advantage, with a view to assisting the person who supplied the undue advantage by exerting the improper influence.

Influence Peddlers’ Scope

Influence peddler’s authority is based on their current or previous roles or social or personal status. As an example, current or former minister or special adviser to the minister as well as high ranking civil servants and corporate executives may possess the abovementioned influence. Furthermore, a spouse or other close relative may exert influence in decision making.

It is irrelevant whether the influence peddler actually exerts their influence on decision makers or whether the influence leads to the intended result. The new section applies if the person providing the undue advantage offers a reward to the influence peddler for providing improper influence and when the essential elements of abstract risk and requirements of intent are fulfilled. However, it is important to stress that acknowledged forms of lobbying as well as campaign funding for elections do not fall under this section.

Major Effects of the Proposal

If the proposal enters into force:

1) the scope of sanctioned behaviour will be enlarged;

2) a definition for improper influence will be included and influence can be considered improper if:

  • it is used to gain an undue advantage to someone,
  • it would result in breach of civil duties by a civil servant,
  • in association with it an undue advantage is promised, given or offered to civil servant, member of parliament or someone else, or
  • an assignment concerning the use of influence or a reward relating to it would be unlawfully kept secret from a civil servant or member of parliament;

3) the target for improper influence will be the decision making phase, not the preparation phase;

4) the new section will not apply to persons having decision making power. Other anti-bribery sections will apply to these persons; and

5) in addition to personal criminal liability, trading in influence may lead to corporate criminal liability and consequently to corporate fine from EUR 850 to 850.000.

The abovementioned amendments to the Finnish Criminal Code are proposed to enter into force as soon as possible.

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