The Constitutional Court has initiated a case on the fundamental principles for imposing fine
On 16 January 2012, the First Panel of the Constitutional Court initiated a case “On Compliance of the words “and a fine in accordance with the Law “On Taxes and Fees”” of Section 33 (5) of the Law on Excise Duties with the second sentence of Article 92 of the Satversme of the Republic of Latvia and Article 4 of Protocol No. 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms”.
The Part of the Contested Norm (highlighted with a different formatting)
The first sentence of Section 33 (5) of the Law on Excise Duties provides that confiscation of excisable goods for violations of this Law or other regulatory enactments or application of other regulatory enactments in respect of violations in the circulation of excisable goods shall not exempt the specific person from liability to pay duty in accordance with this Law and a fine in accordance with the Law On Taxes and Fees”. However, the second sentence of Section 33 (5) of the Law on Excise Duties establishes amounts of confiscated goods, in respect to which the State Revenue Service [Valsts ieņēmumu dienests] shall not calculate the duty and fee.
Section 33 (7) of the Law on Excise Duties establishes that, if a person performs any operation with excisable goods without complying with the provisions of this Law (including undeclared or other importation in the State of excisable goods without complying with the importation procedures specified in regulatory enactments or without fulfilling the relevant customs procedures, performs unregistered or other production of excisable goods without complying with the procedures specified in regulatory enactments for the production of excisable goods, performs any other activities with excisable goods for which duty has not been paid or security provided for by this Law has not been submitted or which have not been labelled with excise duty stamps in accordance with this Law), the State Revenue Service shall collect by uncontested procedures into the State budget in accordance with the duty rates specified in this Law, the unpaid amounts of the duty and a fine in accordance with the Law On Taxes and Fees”.
The Facts
The Administrative District Court of the Republic of Latvia reviews a matter, in the frameworks of which a natural person has contested a decision of Director General of the State Revenue Service, by means of which the person has been imposed an excise duty for tobacco products, as well as a fine and a fine for delay in payment.
The particular person was held administrative liable for smuggling tobacco products, imposed a fine at the amount of 70 lats and all tobacco products were confiscated. The natural person addressed the Administrative District Court because he/she holds that he/she has been punished twice for one and the same offence.
The applicant, the Administrative District Court holds that fine for failure to pay taxes established in legal norms of the Republic of Latvia has a criminal nature. Pursuant to case-law of the European Court of Human Rights and in the meaning of the Convention for the Protection of Human Rights and Fundamental Freedoms, such cases that are regarded as criminal cases in respective country shall be regarded as criminal cases.
Execution of confiscation in an administrative case and imposition of a fine shall be regarded as a punishment applicable to criminal cases. Consequently, the court concludes that the Contested Norm establishes criminal punishment twice.
Taking into account the aforesaid, the Administrative Court asks the Constitutional Court to assess compliance of the words “and a fine in accordance with the Law “On Taxes and Fees”” of the Contested Norm with the second sentence of Article 92 of the Satversme of the Republic of Latvia[1] and Article 4 of Protocol No. 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms[2].
Proceedings
The Saeima was asked to provide, before 16 March 2012, a reply on the facts of the case and legal substantiation thereof.
The term of preparation of the case is 16 June 2012.
[1] Article 92 of the Satversme: „ Everyone has the right to defend his or her rights and lawful interests in a fair court. Everyone shall be presumed innocent until his or her guilt has been established in accordance with law. Everyone, where his or her rights are violated without basis, has a right to commensurate compensation. Everyone has a right to the assistance of counsel.”
[2] Article 4 of Protocol No. 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms: “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
3. No derogation from this Article shall be made under Article 15 of the Convention.”
Linked case: 2012-02-01