26 November, 2013
Punishment policy, which has been implemented by courts to persons, who are found guilty in tax evasion or evasion of payments equated to those, is characteristic of the fact that to these persons deprivation of liberty, with some exceptions, if offence was committed, when sentence had not been served, has not been imposed – such conclusion is made by Valentija Liholaja, the Doctor of Law, in compilation of case-law prepared by the professor upon order of the Supreme Court in cooperation with the Department of Criminal Cases of the Senate and the Division of Case-law.
Actually, in all cases courts motivated such punishments with the fact that punishment of deprivation of liberty would be incommensurate to crime committed by the accused and his/her personality, irrespective of the fact, how long the accused performed this evasion and what damages has he/she caused to the state.
In research “Case-law in cases about legalisation of proceeds from crime and about tax evasion” materials of 87 criminal cases were analysed, in which 63 accused were brought charges with Section 195 of the Criminal Law and 83 individuals were brought charges with Section 218 of the Criminal Law. Criminal cases analysed were reviewed in the first instance court between 2008 and 2013.
Section 218, Paragraph Two of the Criminal Law, which was effective at the moment, when tax evasion, which caused large-scale losses to the state, established in cases analysed was committed, envisaged deprivation of liberty for period not exceeding five years, community service or a fine not exceeding one hundred and twenty minimum monthly wages, with confiscation of property or without that, with deprivation of right to implement entrepreneurial activity for the term of not less than 2 years and not exceeding 5 years or without that.
However, only in one case from among those analysed, the court adjudged deprivation of liberty. In 46 cases, conditioned sentence was adjudged, in 17 cases – community service, in 28 cases – fine, in 5 cases – confiscation of property, in 31 cases – deprivation of right to implement entrepreneurial activity was sentenced.
Similar punishment policy is implemented also in relation to individuals, who were convicted for legalisation of proceeds from crime, which was mainly qualified pursuant to Section 195 of the Criminal Law, and sanction for this crime effective at that time envisaged deprivation of liberty for the term of not less than five years and not exceeding twelve years, with confiscation of property, and, alternatively – with police control for the term not exceeding three years. In this case, conditioned deprivation of liberty for the term of five years dominates.
From among 87 cases analysed, 18 cases were reviewed under application of Section 499 of the Criminal Procedure Law and not performing verification of evidence, and 32 cases were reviewed under agreement procedure.
It has been concluded in research – the question is how justified is limitation established to a court to assess sentence under agreement procedure, which should be done pursuant to provision stipulated in effective wording of Section 46, Paragraph Three of the Criminal Law, namely, taking mitigating and aggravating circumstances into account.
Research “Case-law in cases about legalisation of proceeds from crime and about tax evasion” is available on the web site of the Supreme Court www.at.gov.lv in Section Judicature/ Compilations of Court Decisions/ Criminal law
Information prepared by
Rasma Zvejniece, the Head of the Division of Communication of the Supreme Court
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