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The Criminal Code – what you should know after or before you are charged with a criminal offence

A tax audit or other procedures to check the use of taxes or other charges may involve criminal penalties. However, even incorrect accounting for a tax or other public charge does not necessarily involve a criminal conviction. It is therefore worth briefly reviewing the basic information on this liability.

Basis for liability

Pursuant to the provisions of the Fiscal Penal Code (FPC), a necessary element for a person to incur penal fiscal liability is to first prove that the person in question has fulfilled the elements of a misdemeanour or a penal fiscal offence with his actions. In criminal proceedings, the onus of proving the offence lies with the prosecution and it is therefore the prosecution that must meet the burden of proof. It follows that the accused is not obliged to prove his innocence – which does not mean, however, that he should not defend himself and remain passive. This is for the court to judge and must have some basis for challenging the accusations. Correctly and fairly collected evidence is crucial in proving the innocence of an accused person in the course of judicial proceedings. The accused himself will undoubtedly have a significant impact on the complete collection of evidence and it is for this reason that it is important to ensure that he is actively involved from the outset. The Code of Criminal Procedure (CCP) does not provide for a closed catalogue of possible evidence. Both a suspect and an already accused person have the right to submit motions to present evidence in their defence. Taking into account the multithreaded, extensive and often extremely complex nature of penal-fiscal cases, the participation of a professional attorney in exercising one’s rights during the proceedings and effectively fighting the charges is very important.

Types of punishable acts

The FPC regulates the manner of incurring liability for misdemeanours and fiscal offences. At this point, it is also worth distinguishing between offences and fiscal offences. Both are regulated in the special part of the FPC.  Pursuant to the statutory definition provided in Art. 53 § 1 of the Code, a prohibited act is conduct with the characteristics specified in the Code, even if it does not constitute a tax offence or a tax offence. The definition of a prohibited act as a fiscal offence or fiscal transgression can only be made in this Code and from Article 53 § 2 of the Code a fiscal offence is an act prohibited by the Code under penalty of a fine in daily rates, penalty of restriction of liberty or penalty of deprivation of liberty. A fiscal offence is therefore an act specified in the Code, which fulfils all the elements set out in the special part of the Code and is punishable by a daily fine, restriction of freedom or imprisonment. An act prohibited by the Code by a daily fine, restriction of freedom or imprisonment. A fiscal offence, on the other hand, is an act prohibited by the FPC with a fine of a specified amount, if the amount of the depleted or exposed to depletion public receivables or the value of the object of the act does not exceed five times the amount of the minimum wage at the time of its commission. The possibility of holding the perpetrator of a petty offence or a fiscal offence criminally liable depends on the fulfilment of two premises, one of which is the fact that the perpetrator has fulfilled the subjective features of the forbidden act and the fact that the perpetrator is proven guilty. It should be noted that, as a rule, a petty offence or a fiscal offence may only be committed intentionally; these acts may only be committed unintentionally if the FPC so provides. The risk of becoming entangled in a criminal case has been increasing in recent years due to the growing number of profitable business activities, including those of an international nature. It is impossible not to mention the so-called white collar crimes, which are economic offences connected with moving material resources out of the enterprise or avoiding taxation. The decision to entrust the conduct of criminal proceedings to a professional attorney is all the more justified in the reality of increased fines for misdemeanours or fiscal offences committed.Amount of penalties.

Amount of fines

Pursuant to the disposition of Article 23 § 3 of the FPC, the daily rate may not be lower than one thirtieth of the minimum wage or exceed its four hundredth. Therefore, the minimum daily rate is PLN 100.33 which is 1/30 of the minimum wage, and the maximum daily rate is up to PLN 40,132 which is the minimum daily rate multiplied by 400. In order to impose a fine, the court will determine the number of fine units and the amount of one daily rate, the lowest number of units being 10 and the highest 720, unless the FPCprovides otherwise. Thus, the minimum fine is PLN 1,003.30 and the maximum is PLN 28,895,040. As regards penalties for fiscal offences, reference should be made to Article 48 § 1 of the FPC, from which it follows that a fine may be imposed in the amount ranging from one-tenth to twenty times the minimum wage. In 2022, the minimum fine is PLN 301 and the maximum fine is PLN 60,200. As one can see, the real danger, including financial, can be very serious. Of course, it must also not be forgotten that in the case of certain more serious offences, a custodial sentence (or colloquially: imprisonment) may also be imposed.