Financial offence, practical results of preventive punishments’ application and cooperation of the alleged offender with the investigating bodies

M. KORDZADZE

The offence determined by Article 218 of the Criminal
Code – tax evasion represents the most widespread
category of offences out of the financial ones.

Intended tax evasion in a large amount envisages a fine or deprivation of liberty for the term of up to five years. If the same action is made: a) repeatedly b) in especially large amount, it envisages deprivation of liberty for the term of from five to eight years.
The sum of the tax to be paid is considered as large when it exceeds twenty five thousand GEL, and as especially large – when it exceeds seventy five thousand GEL.
Criminal liability will not be applied if, based on the results of the tax inspection, the basic sum owed will be paid within 45 workdays from the day of receiving of notification.
The direct object of the offence is financial interests of the state, since the facts of nonpayment of taxes to the budget take place.
The objective side of the offence is expressed in tax evasion in a large amount. /Concealing of taxation objects, lack of record keeping, incorrect accounting of expenses, implementation of activities without registration, etc/.
On the subjective side the offence is characterized by direct intent. A subject of the offence can be a physical person – an entrepreneur.
Mainly entrepreneurial physical persons – payers are considered as suspects or alleged offenders in the aforementioned offence. Though the Criminal Code does not envisage the form of recognition of a legal entity as the subject of the offence, the mentioned form is applied in some countries.
There arises the necessity of application of preventive punishment, envisaged by the Criminal Code of Practice, to the alleged offender. The preventive punishment is applied so that the alleged offender would not evade from the preliminary investigation and the court, to preclude his consecutive criminal activities, so that he would not put obstacles in the way of establishing the truth in the criminal case, the basis of application of the preventive punishment can be a well-grounded suspicion that the person will go into hiding or will not appear in court, destroy the evidence, threaten the participants of the legal proceedings or commit another offence.
In announcing the preventive punishment, the prosecutor is obliged to substantiate the expediency of the kind of preventive punishment required by him. The kinds of preventive punishments have undergone changes, the prevalent ones are as follows: arrest of the alleged offender, bail, personal guarantee.
Arrest is applied to the person who is accused of committing the offence, for which the law envisages deprivation of liberty for the term of more than two years.
The Criminal Code of Practice determines the circumstances that envisage application of preventive punishment, in particular, in application of the preventive punishment and its concrete kind the prosecutor and the court take into account the gravity of the preferred charge, the personality of the alleged offender, his activities, age, health condition, family and property status, compensation of the damage inflicted by the alleged offender to the sufferer, the fact of violation by the person of some preventive punishment applied against him and other circumstances.
Arrest is applied only against the person who is accused of committing of the offence, for which the law envisages deprivation of liberty for the term of 2 years and more, except for the cases when the alleged offender violated some other, less strict preventive punishment. As a rule, arrest, as preventive punishment, is not applied to the persons who are seriously ill, non-adults, elderly people (women – from the age of 60, men – from the age of 65), pregnant women with the period of pregnancy more than 12 weeks and women having infants (up to the age of 1), who committed the offence through carelessness – except for special cases the Criminal Code envisages deprivation of liberty for the term of 3 years and more.
The order of choosing of arrest as a preventive punishment:
The prosecutor or, by approbation of the prosecutor, the investigator that will bring a charge against the person and interrogate him as an alleged offender, can apply to the judge for the sanction for the arrest in accordance with Article 140 of this Code. If there are enough grounds to believe that the alleged offender will go into hiding or will not appear in court, will destroy the evidence, threaten the participants of the legal proceedings or commit another offence, the prosecutor is authorized to detain the alleged offender and within 24 hours apply to the court for the approval of the preventive punishment. According to the written order of the investigator or the prosecutor, the administration of the detention institution takes the alleged offender to the judge, to whom the copy of the criminal case’s materials will be also submitted.
The issues related to application, changing and cancellation of the preventive punishment will be considered at the open sitting of the court.
Noteworthy are the changes related to the term of imprisonment, in particular, the total term of imprisonment of the alleged offender does not exceed 4 months and is considered from the moment of detention, and if detention did not take place – from the moment of fulfillment of the court’s decision.
Bail is a sum of money, movable or immovable property. The sum is placed by the alleged offender, defendant or by some other person on their behalf to the deposit of the court considering the case or the investigatory body to provide for the corresponding behavior of the alleged offender, defendant, in accordance with the written obligation given to the court, and timely coming to the investigator, the prosecutor or the court. The movable property pledged instead of money is handed over to the body conducting the case, while the immovable property is attached. The sum of the bail cannot be less than 2000 GEL.
As to personal guarantee, dependable persons assume a written obligation that they will provide for the appropriate behavior of alleged offender and his coming to the investigator, the prosecutor or the court.
The number of guarantors is determined by the body that conducts the criminal case. In exceptional cases there can be one guarantor, especially dependable person. Application of personal guarantee is permissible only with mediation or permission of the guarantors and with the consent of the alleged offender.
Based on the court practice, a strict preventive punishment – arrest is always applied to the alleged offenders charged with tax evasion. Application of other forms of preventive punishment is infrequent.
The following question is often heard: based on specificity of the offence, with availability of all documents (tax, bookkeeping or bank materials) withdrawn as a result of implementation of operative arrangements, which represent the main evidence of the offence, is it really necessary to apply arrest as a preventive punishment when application of other forms of preventive punishment is quite permissible?
In applying of arrest to the alleged offender charged with tax evasion (the director or the chief accountant of the enterprise) there take place such operative-investigation actions as sealing-up of the enterprise, withdrawing of documents, etc, which are directly related to banning of implementation of entrepreneurial activities, as a result of which, at the stage of preliminary investigation, the processed of implementation by the entrepreneur of tax liabilities is impeded again.
At the same time, important is the existence of Aricle 70-e (prime), which represents a novelty, of the Criminal Code, which envisages release from criminal liability for cooperation with investigatory bodies, in particular, when, as a result of cooperation of the alleged offender with investigatory bodies, the personality of the official or/and the person (persons) that committed a grave offence, and it became possible to create essential conditions for solving of the crime with his direct assistance, the court is authorized to completely release the alleged offender from criminal liability.
Practical implementation of the aforementioned in relation to financial offences is accompanied by serious difficulties, in particular, the cooperation is not formalized with observation of the existing order, in a number of cases a direct assistance of the alleged offender to the investigation is not considered as creation of essential conditions for solving of the offence, etc.
Thus, a financial offence, unlike other types of offences, is characterized by specificity, in relation to which both the preventive punishment and the requirements of cooperation with the investigatory bodies are also specific.