7. Safeguarding the Right not to Testify Against Yourself in Tax Administration Procedures

  • Dainius Raižys
  • Justina Nasutavičienė
Keywords: Tax administration, penalty, criminal charge, privilege against self-incrimination, Convention on human rights.

Abstract

This article analyzes the privilege against self-incrimination in the field of tax administration. Although the tax administration, which is an integral part of a public administration system, is an activity of the tax administrator aimed at collecting taxes, however, according to the authors of this article, the right to remain silent and the privilege against self-incrimination has to be ensured in the said process.

The application of this principle is significant because the laws governing the tax administration provide the tax administrator the right not only to administer a proper tax liability but also to impose a monetary fine on the taxpayer for unlawful conduct which violates the requirements of tax law.

In the jurisprudence of the Constitutional Court of the Republic of Lithuania and the Supreme Administrative Court of Lithuania it has been ascertained that if certain sanctions established by law in their amount (severity) are equivalent to criminal penalties, regardless of the type of legal liability, the persons to whom such sanctions apply have to be provided with procedural guarantees arising from Article 31 of the Constitution of the Republic of Lithuania, which establishes the right not to incriminate oneself.

The Supreme Administrative Court of Lithuania in its case law takes into account the elements of a criminal charge laid down in the jurisprudence of the European Court of Human Rights and recognizes that a fine for violation of tax law may amount to a criminal sanction within the meaning of the European Convention on Human Rights.

Although not specifically mentioned in Article 6 of the Convention, the right to remain silent and the privilege against self-incrimination are generally recognised in the jurisprudence of the European Court of Human Rights as international standards which lie at the heart of the notion of a fair procedure under Article 6.

All of this implies the conclusion that in the area of tax administration, in cases where a fine equivalent to criminal penalty is imposed upon a taxpayer, ensuring the right of that person to remain silent is relevant. Guarantees of the said right are also important in cases when the same facts concerning the payment of taxes trigger parallel proceedings – tax administration procedure and criminal proceedings conducted in accordance with the Code of Criminal Procedure of the Republic of Lithuania.

On the basis of the European Convention on Human Rights, the jurisprudence of the European Court of Human Rights, the legal acts of the Republic of Lithuania, the jurisprudence of Lithuanian courts and the scientific literature this article analyzes the aspect of criminal charge under the Convention, problematic aspects of ensuring the right to remain silent and the privilege against self-incrimination in tax administration cases, namely the duty of the tax payer to provide information to the tax administrator, the scope of such obligation and its limits, also the problem of using such information in the parallel criminal proceedings.

Published
2018-11-25