Criminal Law Right to Silence vs. Tax Law Duty to Communicate

In many cases, taxa­tion and criminal procee­dings are closely intert­wined. Tax and criminal tax inves­ti­ga­tions can often hardly be sepa­rated from each other.

The resul­ting problems raise the ques­tion of which provi­sions should take prece­dence in the event of a conflict — the provi­sions of the Tax Code (taxa­tion procee­dings) or those of the Code of Criminal Proce­dure (criminal procee­dings)?

§ Section 393 AO regu­lates the rela­ti­onship between criminal procee­dings and taxa­tion procee­dings. Accor­ding to the provi­sion of Section 393 (1) sentence 1 AO, the rights and obli­ga­tions of the taxpayer and the tax autho­rity in the taxa­tion procee­dings and in the criminal procee­dings are governed by the provi­sions appli­cable to the respec­tive procee­dings.

In prin­ciple, the Tax Code assumes the inde­pen­dence and equal status of the procee­dings, so that the taxpayer remains obliged to provide infor­ma­tion and coope­rate in the taxa­tion procee­dings even in the event of parallel criminal tax procee­dings.

Section 393 (1) sentence 2 of the German Fiscal Code (AO) imposes a rest­ric­tion on this assump­tion in the form of the statu­tory provi­sion that coer­cive tax measures are inad­mis­sible in the event of a risk of self-incri­mi­na­tion for a tax offense or misde­me­anor.

The coope­ra­tion of the taxpayer in the tax inves­ti­ga­tion proce­dure is thus no longer enforceable after the initia­tion of criminal tax procee­dings — because: no one has to incri­mi­nate himself (nemo tenetur se ipsum accusare).

This means that the accused does not have to coope­rate in the criminal procee­dings and can refuse to make any state­ment on the matter. The right of the accused to remain silent on the accu­sa­tion of the crime is one of the funda­mental prin­ci­ples of the rule of law in criminal and fine procee­dings. No one is obliged to coope­rate in his own convic­tion.

Beyond the right to remain silent, the accused is entitled to refuse any active coope­ra­tion in his convic­tion. He is ther­e­fore also not required to hand over evidence, because in this respect it can make no diffe­rence whether his convic­tion is made possible on the basis of compelled state­ments or by compelled produc­tion of docu­ments. The accused has a right to passi­vity, he is only obliged to tole­rate criminal proce­dural measures.

The right to silence and the freedom to coope­rate are indi­vi­dual mani­fes­ta­tions of the general and compre­hen­sive right not to incri­mi­nate oneself. This right has consti­tu­tional status, since it is derived from the prin­ciple of the rule of law (Article 20 III GG) and the right to respect for human dignity (Article 1 I, Article 2 I GG). It follows from Article 2 I of the Basic Law in conjunc­tion with Article 1 of the Basic Law that it would be unre­asonable and incom­pa­tible with human dignity if coer­cion were exer­cised to the effect that the prere­qui­site for a criminal convic­tion had to be met by making one’s own state­ments.

However, since the tax obli­ga­tions to coope­rate continue to apply, a conflict may arise with the defen­dant’s right to remain silent if the facts to be assessed are of signi­fi­cance under both tax law and criminal law.

The freedom from incri­mi­na­tion under criminal law and the duty to provide infor­ma­tion and coope­rate under tax law come into conflict where the taxpayer, in properly fulfil­ling his tax obli­ga­tions, must disc­lose infor­ma­tion that provides clues to criminal acts committed by him. A predi­ca­ment arises, since the taxpayer cannot make use of his freedom of self-incri­mi­na­tion without viola­ting his obli­ga­tions arising from the taxa­tion proce­dure.

Since the taxpayer, while respec­ting his consti­tu­tio­nally protected right not to have to coope­rate in his own transfer, cannot at the same time be obliged to comply with his tax infor­ma­tion and coope­ra­tion obli­ga­tions, a clear tension arises. This tension, which must be resolved, raises the ques­tion of which proce­dural prin­ciple must be given prio­rity in cases of conflict.

§ Section 393 of the German Fiscal Code (AO) is aimed at resol­ving precisely this conflict between the freedom to incri­mi­nate oneself in criminal law and the statu­tory duties to provide infor­ma­tion and to coope­rate in tax law.

In this respect, the taxpayer is granted a selec­tive right to silence, i.e. his tax coope­ra­tion obli­ga­tions remain in place even in the event of a risk of self-incri­mi­na­tion, but they can no longer be enforced with coer­cive tax means.