Abstract
The path that the Latvian normative regulation in criminal law and the Latvian criminal law doctrine took to arrive at the possibility of turning against legal entities by criminal law measures was neither fast nor simple. The initial position was that regulation like this would be incompatible with the basic principles of Latvian criminal law since, historically, psychological understanding of guilt has been characteristic in the Latvian criminal law, guilt is identified with a person's mental attitude towards the criminal offence, and guilt also is one of the grounds for criminal liability. It was not clear how this understanding of guilt could be compatible with punishing such "legal fiction" as a legal person in the framework of criminal law. Ways, in which Latvia could adjust its legal regulation to various international normative documents that Latvia had acceded to, at the same time leaving the dominant basic institutions of the Latvian criminal law theory unaffected, were sought rather reluctantly. Discussions that lasted for years resulted in the inclusion into the Criminal Law coercive measures, existing outside the system of criminal penalties, applicable to legal persons, likewise, several criteria were defined as the grounds for applying these coercive measures to legal persons, the central of which was a criminal offence, committed by a natural person who was connected to the legal person, in the interests of the legal person or as the result of insufficient control by this legal person. Accordingly, criminal procedural regulation was created, which to a large extent equalled a legal person to an accused natural person in criminal proceedings. Although the criminal law and criminal law regulation, which provides for the possibility to apply criminal law coercive measures to legal persons in the framework of criminal proceedings has existed in Latvia for already 16 years, these criminal law instruments have started taking their place in the practice of applying law only in recent years, simultaneously also revealing deficiencies in the legal regulation, already now providing sufficient material for analysis to be used for improving these legal norms.
Highlights
The path that the Latvian normative regulation in criminal law and the Latvian criminal law doctrine took to arrive at the possibility of turning against legal entities by criminal law measures was neither fast nor simple
In the second reading in the Saeima [the Parliament] this draft law was radically transformed, providing that coercive measures instead of criminal penalties could be applied to legal persons for all criminal offences provided for in the Special Part of the Criminal Law if these had been committed in the interests of the legal person
Since the psychological understanding of guilt has become enshrined in the Latvian criminal law and guilt is part of the grounds for applying criminal liability and criminal penalty, a conclusion was made that a legal person as an independent subject of criminal liability would not fit into the Latvian system of criminal law
Summary
Since regaining its independence in 1990, when Latvia set on its course to join the European Union, NATO, and other international organisations, harmonisation of the Latvian national law with various international legal acts and requirements set by various international organisations has been one of the priorities for the Latvian legislator. Several basic institutions that are essential for the Latvian criminal law have been kept intact, such as the subject of criminal liability, guilt and the total constitutive elements of a criminal offence This “compromise” solution is based on the finding that, within the framework of criminal law, apart from applying a criminal penalty, it is possible to apply other coercive measures, which should not be regarded as a criminal sentence. No substantial amendments were made to this draft law during the third reading in the Saeima (on 5 May 2005), and these amendments to the Criminal Law were promulgated on 25 May 2005 and entered into force on 1 October 2005 At this point, the possibility to bring proceedings against a legal entity by applying coercive measures to them has existed for sixteen years already. In 2017, 8 criminal proceedings were initiated against legal entities, 14 in 2018, 32 in 2019, and 38 in 2020 (LRIMIC, 2020)
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