2017/1/4 - 15 Tdo 832/2016 (summary)

Judgement of the Supreme Court dated 4 January 2017, file number 15 Tdo 832/2016

(non bis in idem, taxes)

The accused of a crime of tax evasion under Section 240 of the Criminal Code filed an appeal to the Supreme Court. He argued that the criminal prosecution against him should be stopped as inadmissible since the punishment already imposed on him in tax proceedings precludes another punishment for the same crime in criminal proceedings.

The Supreme Court has considered the question of the nature of the tax penalty imposed in tax proceedings, i.e. whether it is a reparative or a repressive sanction. He concluded that tax penalties constitute a sui generis criminal sanction. Therefore, Article 4 (1) of Protocol No. 7 to the The Convention for the Protection of Human Rights and Fundamental Freedoms (Right not to be tried or punished twice) should also apply to the tax penalty. If the taxpayer is the same as the offender of a criminal offense of tax evasion, criminal prosecution and tax proceedings are about the same action. A final decision in one of the tax or criminal proceedings does not create a barrier to the matter decided with the effects of ne bis in idem, if there is not only a close factual link between tax and criminal proceedings but also a temporal link. The significant factors determining the existence of a sufficiently close factual and temporal context include, inter alia, whether the two procedures pursue a complementary objective, whether the combination of the proceedings in question is the foreseeable consequence of the same conduct and, in particular, whether the sanctions imposed in the proceedings which ended first was taken into account in the proceedings that ended later. In determining the criminal sanction, the court must therefore take into account the final decision of the tax authority on the obligation to pay a penalty payment. It must also explain in the judgement how this factor has been taken into account. The temporal link must be sufficiently tight to provide the person concerned with protection against uncertainty and prolongation of the proceedings. The weaker the temporal link is, the greater focus must be put on the need to clarify and justify delays in proceedings.