Issues related to the precautionary measures in the matter of tax evasion offences

Abstract

As a rule, precautionary measures are optional, and the process of imposing them has three stages: identifying one of the purposes provided by the law, performing a necessity test and performing a proportionality test. By exception, in the matter of tax evasion offences, the precautionary measures are mandatory. The process of imposing precautionary measures in the matter of tax evasion offences goes through only two stages: identifying one of the purposes provided by law and performing a proportionality test. In this case, the necessity of the precautionary measures is presumed by law.

Throughout the criminal trial, the judicial body verifies whether the purpose, the necessity and the proportionality of the precautionary measure subsist or not. If the purpose or the necessity no longer subsist, the precautionary measure is lifted. If the purpose and the necessity subsist, the precautionary measure is maintained, extended or restricted. The distinction between maintenance, extension and restriction is made on the ground of the proportionality test. In the matter of tax evasion offences, the necessity is not verified. It is presumed by law throughout the entire criminal trial.

The precautionary measure for the recovery of the damage is related not so much to the existence of a request for constitution as a civil party, but to the existence of an unrecovered damage. Therefore, a precautionary measure for the recovery of the damage can be taken (or maintained), even if there is no request for constitution as a civil party, in two situations: when the precautionary measure is taken (or maintained) before the injured person formulates a request to constitute itself as a civil party; when the damage is recovered through a mechanism other than the admission of the civil action exercised in the criminal trial (e.g. the conclusion between the defendant and the injured person of a damage payment scheduling act).

The consequence of the judicial body's failure to verify the precautionary measure within the deadline is its legal termination.