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In the last several months, the turbulent development of events on the basis of the European Court for Human Rights in relationship to the presentation and application of the principle “not twice in the same case” in tax cases has come to a head.
It is appropriate to say in the introduction, what does the principle “not twice in the same case” (lat. ne bis in indem) mean. This principle, which is anchored in international as well as national law and applies not only criminal offences but administration delicts too (tax sanctions belong among these – interest due on arrears, penalties, etc.), prohibits the punishment of a person, who was already punished for a specific crime (legally convicted for the crime of tax evasion), for the same crime again (for example, to impose a tax penalty).
The European Court for Human Rights, the Highest administration court has decided in its conclusions that the unequivocal decision that imposing a penalty such as a tax sanction on the tax subjects (in which the tax subject incorrectly stated a lower tax on their tax return) that this sanction has aspect of a punishment.
With it, hope for tax subjects is in the air, that in the case of imposing a tax penalty having the aspect of a criminal charge, they could not be punished with a prosecution and vice versa according to the “ne bis in idem” principle.
The public courts adopted the above-mentioned attitude to the prohibition of double punishment as well as public authorities up to the relatively new judgment of Grand Chamber of the European Court for Human Rights in the cases A and B against Norway from the 15th of November 2016. It admitted that it is possible to hold criminal, as well as tax proceedings, against a tax subject suspected of tax evasion under some advanced fixed conditions. It will be possible to impose a punishment within the criminal proceeding as well as in the tax proceeding. Perhaps the most significant condition for such a procedure is the obligation of the relevant authorities to respect the imposed sanction from the past proceeding when imposing the second sanction.
Without reference to the above-mentioned info, I add that the application of the principle “ne bis in idem” is at least controversial in the situation, when the tax administrator measures a penalty to a legal person, but the criminal proceeding will be held against the participants of the statutory authority (physical person). I am generally sceptical to this thing and I believe that it will be impossible to interpose this principle of prohibition of double punishment before public authorities.