This article analyzes the amendments to the norms of the Criminal Code of the Republic of Lithuania that has raised the minimum and maximum amounts of the fines to be imposed, assessing these changes according to the criteria of proportionality, purpose of punishment and practical applicability. The article also examines the possible negative consequences of these changes. In the last twelve years the criminal legislature has repeatedly raised the amount of the fines to be imposed. According to the author, these decisions, based on the illusory view of the effectiveness of severe pecuniary sanctions, are apparently contrary to the principles of proportionality and reasonableness, and have the negative side-effect of reducing the applicability of the fine. In the absence of proper individualization as well as comprehension that inadequate fines are not recoverable, it is predictable that the case law will prioritize other punishments including imprisonment. In order to give the fine a greater perspective in case law, the author proposes to exempt this punishment from the general rule contained in the Criminal Code which requires that the size of punishment is calculated from an average of minimum and maximum sizes.
This article analyzes the amendments to the norms of the Criminal Code of the Republic of Lithuania that has raised the minimum and maximum amounts of the fines to be imposed, assessing these changes according to the criteria of proportionality, purpose of punishment and practical applicability. The article also examines the possible negative consequences of these changes. In the last twelve years the criminal legislature has repeatedly raised the amount of the fines to be imposed. According to the author, these decisions, based on the illusory view of the effectiveness of severe pecuniary sanctions, are apparently contrary to the principles of proportionality and reasonableness, and have the negative side-effect of reducing the applicability of the fine. In the absence of proper individualization as well as comprehension that inadequate fines are not recoverable, it is predictable that the case law will prioritize other punishments including imprisonment. In order to give the fine a greater perspective in case law, the author proposes to exempt this punishment from the general rule contained in the Criminal Code which requires that the size of punishment is calculated from an average of minimum and maximum sizes.
This article analyzes the Lithuanian model of criminalization of customs infringements, assessing it in accordance with the harmonized customs supervision system in the European Union, as well as in terms of consistency, reasonableness and proportionality. Questions of legality and control of the movement of goods across borders are common and obligatory to all countries of the European Union, therefore Lithuanian national legislation should be consistent with this legal regulation as much as possible, not to oppose it. This is also relevant for codes that lay down administrative and criminal liability for non-compliance with the common rules and procedures applicable to goods entering or leaving the customs territory of the Union. The Criminal Code of the Republic of Lithuania contains three norms establishing criminal liability for customs infringements: 1) smuggling (Art. 199); 2) customs fraud (Art. 199); 3) the unlawful non-export of goods or products from the Republic of Lithuania (Art. 200). All these crimes are classified as less serious and serious and this shows a great concern of the legislator about the damage caused by these infringements and the desire to insert in the norms a very strong element of dissuasion. In legal literature, this aspect of the existing criminal regulation is sometimes criticized due to excessive sanctions. On the other hand, in the public legal discussion there are no comments on the coherence and validity of the criminalization model established in the criminal legislation, whether all criminalized acts in this area really deserve a status of crime and properly aligned with the fact of belonging of the Republic of Lithuania to the common customs territory of the European Union and the Union Customs Code regulation. The article mostly focuses on these issues. The author of the article has drawn the following conclusions: 1) in the system of three norms that criminalize customs infringements can be seen both positively evaluated and preserved, as well as non-systemic and exclusionary features. Some of them may lead to excessive criminal liability, while others, on the contrary, leave room for legal gaps; 2) the status of customs offence deserves acts related to an attempt to avoid or mislead customs supervision in order to obtain unlawful tax benefits of a fixed amount. Other violations should lead to non-criminal sanctions. The model of criminalization should include avoiding and deceiving both the "external" customs supervision (applied at the border of EU customs union) and "internal" EU customs supervision (applied at the territory of EU customs union). The criterion, which establishes the basis for criminal liability for smuggling and other customs offenses, should be related with the evaded tax burden, but not with the value of transported goods and items. This criterion should be solid enough to not devalue the institute of criminal liability and consistent with general criminal legislation on tax evasion; 3) the possibility of imposing criminal liability solely for a lack of permission to transport some special kind of items across the state border (regardless of the value of the goods and status of goods under customs supervision), set in the norm of smuggling (art. 199), does not comply with the principle of proportionality; 4) the application of criminal liability for the non-declaration of cash when crossing the borders with non-EU countries, set in the norm of smuggling (art. 199), regardless of the origin of money and the purpose of the carriage, does not comply with the requirement of proportionality and aims of criminal law; 5) limitation of the subject of customs fraud (art. 199-1) to only goods brought to Lithuania from another European Union country unjustifiably restricts the scope of the norm, which does not cover violations of special procedures (customs warehousing, free zones, temporary admission, end-use, inward and outward processing) applicable to goods brought directly from third countries; 6) all customs related crimes can be merged into one article of the Criminal Code and included into section of financial criminal offenses.
This article analyzes the Lithuanian model of criminalization of customs infringements, assessing it in accordance with the harmonized customs supervision system in the European Union, as well as in terms of consistency, reasonableness and proportionality. Questions of legality and control of the movement of goods across borders are common and obligatory to all countries of the European Union, therefore Lithuanian national legislation should be consistent with this legal regulation as much as possible, not to oppose it. This is also relevant for codes that lay down administrative and criminal liability for non-compliance with the common rules and procedures applicable to goods entering or leaving the customs territory of the Union. The Criminal Code of the Republic of Lithuania contains three norms establishing criminal liability for customs infringements: 1) smuggling (Art. 199); 2) customs fraud (Art. 199); 3) the unlawful non-export of goods or products from the Republic of Lithuania (Art. 200). All these crimes are classified as less serious and serious and this shows a great concern of the legislator about the damage caused by these infringements and the desire to insert in the norms a very strong element of dissuasion. In legal literature, this aspect of the existing criminal regulation is sometimes criticized due to excessive sanctions. On the other hand, in the public legal discussion there are no comments on the coherence and validity of the criminalization model established in the criminal legislation, whether all criminalized acts in this area really deserve a status of crime and properly aligned with the fact of belonging of the Republic of Lithuania to the common customs territory of the European Union and the Union Customs Code regulation. The article mostly focuses on these issues. The author of the article has drawn the following conclusions: 1) in the system of three norms that criminalize customs infringements can be seen both positively evaluated and preserved, as well as non-systemic and exclusionary features. Some of them may lead to excessive criminal liability, while others, on the contrary, leave room for legal gaps; 2) the status of customs offence deserves acts related to an attempt to avoid or mislead customs supervision in order to obtain unlawful tax benefits of a fixed amount. Other violations should lead to non-criminal sanctions. The model of criminalization should include avoiding and deceiving both the "external" customs supervision (applied at the border of EU customs union) and "internal" EU customs supervision (applied at the territory of EU customs union). The criterion, which establishes the basis for criminal liability for smuggling and other customs offenses, should be related with the evaded tax burden, but not with the value of transported goods and items. This criterion should be solid enough to not devalue the institute of criminal liability and consistent with general criminal legislation on tax evasion; 3) the possibility of imposing criminal liability solely for a lack of permission to transport some special kind of items across the state border (regardless of the value of the goods and status of goods under customs supervision), set in the norm of smuggling (art. 199), does not comply with the principle of proportionality; 4) the application of criminal liability for the non-declaration of cash when crossing the borders with non-EU countries, set in the norm of smuggling (art. 199), regardless of the origin of money and the purpose of the carriage, does not comply with the requirement of proportionality and aims of criminal law; 5) limitation of the subject of customs fraud (art. 199-1) to only goods brought to Lithuania from another European Union country unjustifiably restricts the scope of the norm, which does not cover violations of special procedures (customs warehousing, free zones, temporary admission, end-use, inward and outward processing) applicable to goods brought directly from third countries; 6) all customs related crimes can be merged into one article of the Criminal Code and included into section of financial criminal offenses.
The article analyzes the legal concept of tax evasion and its equivalents in the system of special part of criminal legislation. The author, emphasizing subsidiarity of criminal law in relation with the tax law, assesses the quality and consistency of relevant norms of criminal code, rationality of criteria to criminalize various forms of tax evasion, discusses the ways to improve the legal regulation, draws attention to the issues of qualification of tax offenses illustrating his conclusions by reference to the relevant precedents of the Court of Cassation. The author draws attention to the lack of Criminal Code regulation, which by misunderstanding uses the notion of tax avoidance instead of tax evasion, while in the Code there is a whole chaotic set of tax evasion corresponding norms, which are scattered in different sections. This collection contains both the articles set out in the chapter of offenses against financial system (Chapter XXXII) and the articles defining offences against property, property rights and property interests (Chapter XXVIII), as well as offences against the economy and business (Chapter XXXI). The basic idea of the presented research is that the application of criminal liability for tax violations and their delimitation from non-criminal activity of tax payers must be based on classification of tax burden reduction adopted in the tax law. In other terms, the criminal justice must be able to distinguish between tax optimization, tax avoidance and tax evasion, as well as to ensure that criminal liability would be applied only for the illegal tax burden reduction which corresponds to the concept of tax evasion. Very important are also criterions of delimitation of the criminal and administrative liability for tax evasion, paying special attention to their clarity and rationality. The author is critical of the existing criminal legal regulation, according to which offences corresponding to the concept of tax evasion are scattered in different chapters of criminal legislation, are not compatible with each other and based on different legal logic. The author criticizes also the provision of article 220 of Criminal Code under which € 380 evasion is sufficient to result in criminal liability. According to the author, this size should be 25 times higher, while the existing criterion is inconsistent with the Code of Administrative Offenses. The author also criticizes part 1 of article 202 of Criminal Code, which establishes the criteria of criminal liability for illegal economic activities, one of them (entrepreneurial way) is very vague and naturally inherent in any business. This complicates the issue of criminal and administrative responsibility delimitation and creates favorable conditions to carry redundant criminal proceedings for minor violations. The article critically evaluates also the norms on deceptive and negligent accounting, in which the criteria of criminalization are extremely abstract. The author also advocates the need for a total decriminalization of negligent accounting as incompatible with the purposes of criminal legislation. The article also criticizes the definition of illicit enrichment which lacks the legal logic and rationality. According to the author, the criminality of illicit enrichment (art. 189(1) of CC) should not be associated with the value of the assets held, but to the value of concealed income from such assets are acquired. The article expresses the idea that criminal punishability of all tax evasion offenses must lead to the same criteria – the value of concealed or attempted to conceal taxes and income. All such tax evasion norms should be included into the financial crimes section of criminal legislation.
The article analyzes the legal concept of tax evasion and its equivalents in the system of special part of criminal legislation. The author, emphasizing subsidiarity of criminal law in relation with the tax law, assesses the quality and consistency of relevant norms of criminal code, rationality of criteria to criminalize various forms of tax evasion, discusses the ways to improve the legal regulation, draws attention to the issues of qualification of tax offenses illustrating his conclusions by reference to the relevant precedents of the Court of Cassation. The author draws attention to the lack of Criminal Code regulation, which by misunderstanding uses the notion of tax avoidance instead of tax evasion, while in the Code there is a whole chaotic set of tax evasion corresponding norms, which are scattered in different sections. This collection contains both the articles set out in the chapter of offenses against financial system (Chapter XXXII) and the articles defining offences against property, property rights and property interests (Chapter XXVIII), as well as offences against the economy and business (Chapter XXXI). The basic idea of the presented research is that the application of criminal liability for tax violations and their delimitation from non-criminal activity of tax payers must be based on classification of tax burden reduction adopted in the tax law. In other terms, the criminal justice must be able to distinguish between tax optimization, tax avoidance and tax evasion, as well as to ensure that criminal liability would be applied only for the illegal tax burden reduction which corresponds to the concept of tax evasion. Very important are also criterions of delimitation of the criminal and administrative liability for tax evasion, paying special attention to their clarity and rationality. The author is critical of the existing criminal legal regulation, according to which offences corresponding to the concept of tax evasion are scattered in different chapters of criminal legislation, are not compatible with each other and based on different legal logic. The author criticizes also the provision of article 220 of Criminal Code under which € 380 evasion is sufficient to result in criminal liability. According to the author, this size should be 25 times higher, while the existing criterion is inconsistent with the Code of Administrative Offenses. The author also criticizes part 1 of article 202 of Criminal Code, which establishes the criteria of criminal liability for illegal economic activities, one of them (entrepreneurial way) is very vague and naturally inherent in any business. This complicates the issue of criminal and administrative responsibility delimitation and creates favorable conditions to carry redundant criminal proceedings for minor violations. The article critically evaluates also the norms on deceptive and negligent accounting, in which the criteria of criminalization are extremely abstract. The author also advocates the need for a total decriminalization of negligent accounting as incompatible with the purposes of criminal legislation. The article also criticizes the definition of illicit enrichment which lacks the legal logic and rationality. According to the author, the criminality of illicit enrichment (art. 189(1) of CC) should not be associated with the value of the assets held, but to the value of concealed income from such assets are acquired. The article expresses the idea that criminal punishability of all tax evasion offenses must lead to the same criteria – the value of concealed or attempted to conceal taxes and income. All such tax evasion norms should be included into the financial crimes section of criminal legislation.
