What is the institution of voluntary submission to liability?

In the Fiscal Penal Code[1] (hereinafter: “Fiscal PenalCode“), the legislator decided to include the so-called voluntary submission to liability among the possibilities of termination of penal-fiscal proceedings.

This solution is noteworthy as it entails a number of benefits for the perpetrator of fiscal offences (as discussed in more detail in the following paragraphs).

In a situation where it will not be possible, for example, to use the so-called active repentance, and the perpetrator of a transgression or fiscal offence wants to end it with the most favourable result possible for him – it seems justified to consider using the institution discussed in this article.

In some cases (e.g. in the absence of evidence enabling the undertaking of an effective polemic against the findings of the authority and, consequently, enabling an effective defence), voluntary submission to liability will allow for a quick conclusion of penal-fiscal proceedings, without the need to conduct in-depth preparatory and court proceedings, which consume not only invaluable time for the entrepreneur, but also generate costs of its conduct.

However, it is important to know that the use of the institution of voluntary submission to liability will not always be possible (as discussed in more detail in the following paragraphs).

When can the institution of voluntary submission to liability be used?

Voluntary surrender to responsibility regulated in Article 17 of the Code of Criminal Procedure is characterised by a specific construction.

On the one hand, the legislator allows for a kind of “negotiation” with the authority conducting preparatory proceedings (which may influence, e.g. the final determination of the amount of financial penalties), while on the other hand, it indicates the necessary conditions to be met in order to be able to terminate criminal fiscal proceedings in this manner.

The possibility of using the institution of voluntary submission to liability is illustrated in the table below:

1

3

It should be remembered that the conditions for voluntary submission to liability must be fulfilled at the time of submission of the application in this respect.

Therefore, the perpetrator, together with the application, must pay in full the public debt due, the amount corresponding to at least the lowest fine imposed for the given offence as well as pay the lump sum equivalent of the costs of proceedings (and possibly also agree to the forfeiture of objects).

When is voluntary submission to liability impossible?

The legislator has also decided to define cases in which the application of the institution of voluntary surrender to liability will not be possible.

First of all, it should be pointed out that a perpetrator of a misdemeanour or a fiscal offence is deprived of the possibility to benefit from the institution under discussion in the case where the provision of the Code of Criminal Procedure defining the alleged offence, apart from imposing a fine, also provides for the possibility to impose a penalty of restriction or deprivation of liberty.

The above considerations are illustrated by the table below:

–

.

The benefits related to voluntary submission to liability are provided by the institution of voluntary submission to liability.

Advantages related to voluntary surrender to responsibility

In addition to the savings in time and costs generated by criminal fiscal proceedings in their full course (by which is meant the necessity to conduct preparatory proceedings and court proceedings – with two-instance court proceedings in the event of an unfavourable verdict by the Court), the institution of voluntary surrender to responsibility also entails two major advantages:

• a final judgment of the Court on the authorisation of voluntary submission to liability is not subject to entry in the National Criminal Register – the offender will therefore obtain a declaration of no criminal record, which is necessary in some cases to take up or continue activity or employment;
• the payment of a certain amount corresponding to at least the lowest fine threatened for the offence in question is not a prerequisite for fiscal recidivism.

• Procedure related to the use of the institution of voluntary submission to liability
• Submission

of an

• application

The perpetrator of a misdemeanour or fiscal offence (after analysing the fulfilment of the prerequisites set out in Article 17 of the Code of Criminal Procedure described above) must submit an application on voluntary submission to liability to the authority conducting preparatory proceedings.

Importantly, the authority conducting the proceedings is obliged to instruct the offender on the right to submit such a motion – before the first hearing.

The request may be submitted both in writing and orally into the minutes.

It should be remembered, however, that the motion must be filed before the indictment is brought.

As mentioned in point II, apart from filing the motion itself, the perpetrator is obliged to perform particular actions enabling the use of the institution in question, i.e.

The

• perpetrator is

obliged

• , apart

from

• submitting the motion,

to

perform particular

• actions

enabling

• the use of the

institution

• under discussion,

i

• .

e.

to:

• pay a public and legal liability if, in connection with a transgression or fiscal offence, the liability has been depleted, unless, by the time of filing the motion, the liability has been paid in full;
• pay as a fine an amount
• equivalent to at least
• one third of the minimum remuneration, and for a fiscal offence – an amount
• equivalent to at least
• one tenth of that remuneration;
• pay at least a lump sum equivalent to the costs of proceedings.

The question of the necessity to admit guilt in the case of a desire to make use of voluntary submission to liability on the grounds of the Code of Criminal Procedure raises doubts in the literature.

A discussion of this issue goes beyond the scope of this paper, however, it should be borne in mind that an admission of guilt may contribute to positive fulfilment of the first prerequisite described in the provision of Article 17 § 1 of the Code of Criminal Procedure, i.e. lack of doubts as to the perpetrator’s guilt and the circumstances under which the offence was committed.

On the other hand, the absence of the need to admit guilt is connected with the possibility for the perpetrator to withdraw the application for voluntary submission to responsibility.

However, it should be borne in mind that this may take place at the earliest one month from the date of its submission (no later than the date on which the authority refers the request for permission to voluntarily submit to liability to the Court).

Withdrawal of the application is equivalent to the impossibility of resubmitting it in the framework of the same proceedings.

If the application is withdrawn, the amounts paid by the offender shall be retained until the end of the proceedings as security for the penalties, punitive or other measures that he faces, as well as for the costs of the proceedings.

It should be noted at this point that the authority conducting the proceedings may ultimately refuse the offender’s request.

The refusal is made by way of a decision which may be appealed against to a superior authority (of which the offender should be informed).

If the complaint is validly rejected, it closes the way for exercising the benefit of voluntary submission to liability, thus resulting in the need to conduct the criminal proceedings at their full stage.

• Negotiations with the prosecuting authority

The submission of a request for voluntary surrender of liability makes it possible to enter into “negotiations” with the prosecuting authority regarding, inter alia, the amount corresponding to the fine threatened for the offence in question and the costs of the proceedings.

At this stage, it is necessary to highlight all facts and circumstances indicating, e.g. an insignificant degree of social harmfulness of the act and lack of doubts as to the circumstances of committing an offence or a fiscal offence.

A different level of repression will be met e.g. by intentional failure to pay public debts, as well as their non-payment as a result of a simple mistake, a temporary lack of liquidity of a company or due to other extraordinary circumstances.

The fact that the perpetrator has no previous criminal record for a misdemeanour or fiscal offence plays an important role here.

Practice shows that the presence of an established defence counsel in the person of an advocate or a legal adviser helps considerably during negotiations.

This will make it possible not only to finally establish the most favourable financial conditions (constituting financial disadvantages for the perpetrator), but also to avoid a situation in which the authority, taking advantage, for example, of its power or stressful and nervous situation related to the very fact of conducting criminal proceedings against the perpetrator – will propose conditions that are downright unfair and do not correlate with the degree of guilt.

• Submission of a request to the Court for permission to voluntarily surrender liability

.

Once the conditions for voluntary submission to liability have been worked out, the authority conducting the proceedings shall formulate a request to the competent Court for voluntary submission to liability.

The motion should contain, in particular, the identification of the perpetrator and a precise description of the act allegedly committed by the perpetrator, indicating the place, manner, time and circumstances in which it was committed, and, in particular, the amount of the public law receivable which was or is threatened to be lost.

The justification of the motion may be limited to the indication of evidence proving that the guilt of the perpetrator and the circumstances of committing the offence do not raise any doubts, and, moreover, other circumstances proving that in a given case voluntary surrender to liability may be allowed, in particular due to the fact that it is sufficient to satisfy a justified financial interest of the State Treasury, a local government unit or another entitled entity.

Together with the application referred to above, the authority conducting the proceedings shall send the Court the files of the proceedings together with the attachments.

The authority shall also notify the offender of the filing of the application.

It follows, therefore, from the foregoing paragraphs that the final possibility to benefit from voluntary submission to liability is decided by the Court – this takes place in the form of a judgment.

The pre-trial authority, after examining the prerequisites set out in Article 17 of the Code of Criminal Procedure, only addresses a request for granting permission for voluntary submission to liability.

As a rule, this means that despite the positive view of the financial pre-trial authority on the termination of criminal proceedings in the discussed manner – the Court may not consent to such a solution.

This may occur e.g. in a situation where, in the opinion of the Court, the perpetrator’s guilt or the circumstances of committing a fiscal offence or a fiscal offence raise doubts.

The above will result in an immediate return of the case to the financial pre-trial body and, consequently, in the necessity to conduct criminal fiscal proceedings in full.

On the other hand, practice shows that, in the overwhelming majority of cases, the referral by the financial pre-trial body of a request for permission to voluntarily surrender responsibility is approved by the Court.

***

This article is for information purposes and does not constitute legal advice.

If you are in doubt as to your rights or as to how to proceed, it is advisable to consult a professional lawyer.

[1] Act of 10 September 1999 Fiscal Penal Code (Journal of Laws 1999 No. 83, item 930, i.e. Journal of Laws 2023, item 654).