as one of the ways of terminating criminal fiscal proceedings.
What are the benefits of the above-mentioned institution contained in the Fiscal Penal Code?
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 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 allowing for an effective polemic against the authority’s findings and, consequently, allowing for 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 not only consume the entrepreneur’s invaluable time, 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 to use the institution of voluntary surrender of responsibility is illustrated in the table below:
| L.p. | Rationale | Opportunity to ‘negotiate’ with the investigating authority |
| 1. | there are no doubts as to the guilt of the perpetrator and the circumstances in which the fiscal offence was committed | YES – in this case, however, these will not be negotiations in the literal sense of the word, as it should be noted here that the institution in question may be used only in a situation where the facts of the case are not complicated and allow for their unambiguous interpretation – it is therefore required to present the facts to the authority conducting the proceedings in such a manner that they do not raise any doubts both as to the act itself and as to the guilt of the perpetrator. |
| 2. | a public debt due has been paid in full | NO – it is necessary to pay the whole of the due public receivable, the possibility of paying only a part of the above receivable is excluded (of course, in a situation where such receivable has been depleted in connection with an offence or fiscal offence) |
| 3. | 3. the offender has paid an amount corresponding to at least the lowest fine imposed for the given offence;
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YES – in a situation where the perpetrator has not been previously convicted of a misdemeanour or fiscal offence, does not hinder the proceedings, as well as the circumstances of the act and its social harmfulness do not raise any doubts (e.g. the depletion of public receivables was not significant) – there is a possibility to conduct “negotiations” with the authority which may result in the final determination of the amount in question corresponding to the lowest fine for the given offence. |
| 4. | the offender has consented to the forfeiture of the objects or, if the offender is unable to deposit them, if the offender pays the monetary equivalent; | NO – this is an obligatory condition, however, related to only a part of the offence, e.g. in a situation where the object is directly derived from the offence, was used to commit the offence or e.g. in a situation where the manufacture or storage of such an object is prohibited |
| 5. | at least the lump sum equivalent of the costs of the proceedings has been paid | YES – see remarks as under point number 3. |
At the same time, it should be remembered that the conditions for making use of the voluntary surrender of liability must be met with the submission of the application in this respect. Consequently, the offender must pay in full, together with the application, the public debt due, the amount corresponding to at least the lowest fine for the offence in question, as well as the lump sum equivalent of the costs of the proceedings (and possibly also agree to the forfeiture of objects).
When is the use of the institution of voluntary submission to liability impossible?
The legislator has also decided to define the cases in which the use of the institution of voluntary submission to liability will not be possible. First of all, it should be pointed out that a perpetrator of a misdemeanour or 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 provides for the possibility to impose the penalty of restriction or deprivation of liberty in addition to imposing a fine. The above considerations are illustrated by the table below:
| Prohibited act | Possibility of voluntary submission to liability |
| Art. 76 § 1 of the Code of Criminal Procedure – anyone who, by providing data inconsistent with the actual state of affairs or by concealing the actual state of affairs, misleads a competent authority, exposing himself to undue reimbursement of a public tax liability, in particular input tax within the meaning of the provisions on value added tax, excise duty, reimbursement of overpayment or its credit towards tax arrears or current or future tax liabilities, shall be liable to a fine of up to 720 daily rates or to imprisonment, or to both these penalties jointly. | NO – apart from the possibility of imposing a fine, the provision also provides for the possibility of imposing imprisonment or both these penalties jointly |
| Art. 61 § 1 KKS – whoever unreliably keeps books shall be liable to a fine of up to 240 daily rates. | YES – the provision provides only for the imposition of a fine. |
| Article 62 § 1 of the Code of Criminal Procedure – whoever, contrary to his obligation, fails to issue an invoice or bill, issues it defectively or refuses to issue it, shall be liable to a fine of up to 180 daily rates. | YES – the provision provides only for the imposition of a fine. |
| Art. 62 § 2 of the Penal Code – whoever issues an invoice or bill unreliably or uses such a document shall be subject to a fine of up to 720 daily rates or to imprisonment for a period not shorter than one year, or to both these penalties jointly | NO – apart from the possibility of imposing a fine, the provision also provides for the possibility of imposing imprisonment or both these penalties jointly |
Irrespective of the above principle, it should be remembered that the possibility to use the institution of voluntary submission to liability is also denied to perpetrators who have committed a petty offence or a fiscal offence in the so-called special circumstances (e.g. in a situation where the value of the offender’s public receivables is high, the perpetrators have made a regular source of income out of their criminal activity or have acted as part of an organised criminal group).
Advantages associated with voluntary surrender to liability
In addition to the savings in time and costs generated by criminal proceedings in their full course (by which is meant the necessity to carry out preparatory proceedings and court proceedings – with two-instance court proceedings in the case of an unfavourable verdict handed down by the Court), the institution of voluntary surrender to responsibility also entails two major advantages:
- a final judgment of the Court authorising voluntary submission to liability is not subject to entry in the National Criminal Register – the offender will therefore obtain a declaration of non-criminal conviction, which is necessary in some cases to take up or continue an activity or employment;
- the payment of a certain amount corresponding to at least the lowest fine imposed for a given offence is not a condition for fiscal recidivism.The procedure for making use of the institution of voluntary submission to liability
- Submission of a request
The perpetrator of a misdemeanour or fiscal offence (after analysing the fulfilment of the prerequisites described above, as set out in Article 17 of the Code of Criminal Procedure) must submit a motion on voluntary submission to liability to the authority conducting the pre-trial 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. to:
- to pay a public receivable if, in connection with the offence or fiscal offence, the receivable has been depleted, unless, by the time of filing the application, the due receivable has been paid in full;
- to pay by way of 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 of an admission of guilt in the case of a willingness 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 to the benefit of the voluntary surrender of responsibility, thus resulting in the necessity to conduct criminal proceedings at their full stage.
- Negotiation with the prosecuting authority
The submission of a request for voluntary submission to liability enables the commencement of “negotiations” with the prosecuting authority concerning, inter alia, the amount corresponding to the fine for the given offence 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, as well as 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.
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This article is for information purposes only 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).
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