Preliminary chamber issues in the matter of tax evasion criminal offences

Abstract

1. The need to indicate in the indictment act the amount of the damage. In the matter of tax evasion offenses, the prosecutor has the obligation to indicate the amount of the damage in the indictment act. An omission in this respect constitutes an irregularity, which leads to the impossibility of establishing the object and the limits of the judgment.
2. The adequate way to remedy the irregularity consisting in the incomplete description of the deed. If the preliminary chamber judge finds that the description of the deed is incomplete, the prosecutor, in response to the interim minute, must not limit himself to indicating the elements that the preliminary chamber judge considered to be missing, but must detail all the elements of the criminal offence. If he would limit himself, in response to the interim minute, to indicate the elements that the judge considered to be missing, the prosecutor would create the premise that the legal framework results from the combination of two procedural acts: the indictment act and the response to the interim minute. This would put the court in the situation that, after the start of the merits trial, it would present the defendant a legal framework resulting from the combination of the two procedural acts. In this way, the court would be the first judicial body to fully determine the legal framework, which is a violation of the separation of the judicial functions principle.
3. The need to indicate in the indictment act the identification data of the civilly liable party. In the matter of tax evasion offenses, the prosecutor has the obligation to indicate in the indictment act the identification data of the civilly liable party. An omission in this respect constitutes an irregularity, but this irregularity does not lead to the impossibility of establishing the object and the limits of the trial.

            (Târgu Mureș Court of Appeal, Criminal Minute no. 43/C/CP of the 4th of December 2020)