Active repentance in criminal proceedings

upadłość konsumencka

One of the previous articles was devoted to the criminal measure of voluntary submission to liability. However, a much more common institution, the meaning of which presupposes that the perpetrator of a fiscal offence is not punished, is the so-called ‘active regret’.
The fact that active contrition is applied universally and that potentially the need to use it may arise for practically every citizen capable of bearing criminal fiscal responsibility is evidenced by a classic example of its application – the late submission of the return on the amount of income earned in a given tax year.
What is active contrition?
Active contrition assumes that the perpetrator of a tax offence or a tax offence has no criminal record. This means, more or less, that if the perpetrator of an act prohibited by the Fiscal Penal Code (“Fiscal Penal Code”) has correctly applied active contrition, criminal fiscal proceedings are not commenced, and if the proceedings were commenced as a result of an initially erroneous finding that the conditions for active contrition were not met in the case, after a subsequent finding that it was correctly applied, criminal fiscal proceedings are discontinued.

Mode of action
In order to take advantage of the benefit of active regret, it is necessary to notify the relevant authority of the fact that an act prohibited by the Fiscal Penal Code has been committed yourself, before the law enforcement authority becomes aware of this fact. The specific conditions for benefiting from active regret are discussed below.

Positive prerequisites for availing of active contrition
The Fiscal Penal Code stipulates the conditions that must be met in order for active regret to result in the offender’s non-punishment. These are:
1. notification of the authority appointed for prosecution made by the perpetrator after committing the act, disclosing the essential circumstances of the act, in particular the persons cooperating in its commission (Article 16 § 1 of the Fiscal Penal Code),
2. preservation of the appropriate form of active repentance (in writing, including electronically, or orally into the record) (art. 16 § 4 of the Code of Criminal Procedure),
3. payment of the entire public debt due and payable, which has been forfeited by the committed criminal act, within the deadline set by the authority (Art. 16 § 2 of the Code of Criminal Procedure), or,
4. deposit of an object subject to forfeiture or its monetary equivalent (art. 16 § 2 of the Code of Criminal Procedure).

Negative prerequisites to benefit from active contrition

At the same time, in order to benefit from active contrition, none of the negative prerequisites listed above must be present in the case:
1. filing a notification at a time when the law enforcement agency already had clearly documented knowledge of the commission of a fiscal offence or fiscal misdemeanour (Article 16 § 5(1) of the Criminal Code),
2. filing a notification after a law enforcement agency has commenced an official action, in particular a search, a checking operation or an inspection aimed at disclosing a fiscal offence or a fiscal transgression, unless the action has not provided grounds for initiating proceedings for that offence (Article 16 § 5, subsection 2 of the Fiscal Penal Code),
3. the offender directed the performance of the disclosed criminal act (Art. 16 § 6 (1) of the Code of Criminal Procedure),
4. the perpetrator, taking advantage of another person’s dependence on him or her, instructed him or her to carry out the disclosed criminal offence (Article 16 § 6, subsection 2 of the Code of Criminal Procedure),
5. the offender organised a group or association with a view to committing a criminal offence, or led such a group or association, unless the notification was made with all the members of the group or association (Art. 16 § 6, subsection 3 of the Code of Criminal Procedure),
6. the offender induced another person to commit a fiscal offence or a fiscal offence with a view to bringing proceedings against that person for that criminal offence (Article 16 § 6 point 4 of the Fiscal Penal Code).

Benefits resulting from active contrition
A perpetrator of a fiscal offence or a fiscal offence who has made effective use of active contrition obtains an advantage of the kind that criminal fiscal proceedings are not instituted against him or her, and if they have been defectively instituted, they are discontinued. This means that such a person will not be convicted, so no sanction, e.g. a fine, will be imposed against him or her and he or she will not be listed in the National Criminal Register.

As can be seen from the above article, in the case where an act prohibited by the Fiscal Penal Code has been committed, there is a possibility to avoid all negative consequences connected with criminal fiscal liability as a result of the correct application of the institution of active repentance.