The presumption of guilt' in the investigation of tax evasion crimes

• Author: Ramona Mihaela Coman
• Position: University of Targu Mures, Mures Bar
• Pages: 31-38

“The presumption of guilt” in the investigation

of tax evasion crimes

Teaching assistant Ramona Mihaela COMAN

1

Abstract

Although it is one of the fundamental principles of the criminal process, whose

observance is required at all stages of the trial, and therefore in the criminal prosecution

stage as well, the principle o f the presumption of inn ocence is often "forgotten" or

transformed into the "presumption of guilt" when a tax eva sion crime is un der

investigation. The major interest in invest igating these offenses is the recovery of the

damage, which is why there is a need to find solvable persons who are involved in these

activities. Due to the fact that most of the times it i s difficult to prove their involvement, in

practice one can notice a tendency to prosecute such persons for the simple fact of having

purchased products or services from dummy companies. The article presents examples of

judicial practice and seeks to argue th e mistaken view of criminal investigation bodies in

the light of European directives as well as ECJ jurisprudence.

Keywords: presumption of innocence, tax evasion, European directives, E CJ case law.

JEL Classification: K14

1. Introduction

The considerable amount of damages that the tax evasion causes to the

consolidated general budget as well as the social danger and the virulence of the

tax evasion phenomenon led the Romanian lawmaker to adopt strict criminal

measures for preventing and fighting against it.

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At the time of the adoption of the anti-tax evasion law

3

, the recovery of the

damage caused by a crime of tax evasion was a priority for the legislator, even in

view of the need to prosecute those involved in such activities. The concern of the

legislator for the recovery of damage arises from the fact that the initial form of the

anti-tax evasion law provided for a cause of non-punishment in the event of the full

payment of the damage. Although this article was criticized at the time the Bill was

under the analysis of the Legislative Council, which stated in the Opinion that this

cause of non-punishment does not fit the general concept of the Criminal Code and

the concept of criminal responsibility, thus proposing to be considered at most a

cause for liability mitigation, and that it could lead to the encouragement of

1

Ramona Mihaela Coman - “Petru Maior” University of Targu Mures, Mureș Bar,

moldovan_ramona@yahoo.com.

2

Explanatory memorandum to Law 241/ 2005 https://www.senat.ro/legis/PDF/2005/05L113EM.pdf,

last accessed on 9 November 2017.

3

Law 241/2005 on preventing and fighting against tax evasion.