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De complexe verhouding tussen het Belgische Openbaar Ministerie en de fiscale administratie in de strijd tegen criminaliteit

Publication date: 2024-03-14

Author:

De Smedt, Jente
Verbruggen, Frank ; Verstraeten, Raphaël

Abstract:

This PhD research analyses the complex relationship between the public prosecutor's office and the tax administration in the fight against crime. In criminal tax procedure, the last decades have been characterised by many successive, sometimes radical legislative changes, which makes it difficult to see the wood for the trees. This thesis aims to answer the question of which relationship the public prosecutor and the tax authorities should have to make the fight against crime more efficient, without disregarding the right to a fair trial and the protection of personal data. Consequently, the study is situated at the intersection between criminal law and criminal procedure, tax law, and data protection law. The first part describes the historical evolution of the criminal tax procedure and shows that the relationship between criminal law and tax law has been the subject of debate for decades. Belgian legislators have experimented with different systems to shape the most efficient criminal tax proceedings. This has not been fully successfully done to date. The second part, which deals with the current complex cooperation between the administrations involved in tax prosecution, confirms this. Particular attention is paid to the complexity of the various channels of data exchange because the flow of information has changed under the influence of globalisation and digitalisation. The concept of tax privacy is also increasingly central to criminal cases. The first two parts of the thesis distill four fundamental problem areas that characterise the complex relationship between the public prosecutor's office and the tax administration. The third part analyses the German and Dutch criminal tax prosecution systems. It shows that both countries do not have a strict separation between criminal and tax investigations and foresee different solutions to problems similar to the Belgian system. The fourth part further elaborates on the normative framework by giving a more specific interpretation of the right to a fair trial in tax criminal proceedings (with a particular focus on equality of arms, the presumption of innocence, and the nemo tenetur principle) and data protection law. This exposes a fundamental tension between criminal procedure law and data protection law. The evaluation of the current relationship between the public prosecutor and the tax authorities in the first chapter of the final part shows that the legislator needs to make clearer choices in several areas to set up a more efficient system that meets minimum human rights standards. The four fundamental obstacles identified earlier serve as a guide in this regard. Finally, the second chapter of this part contains eleven recommendations to make the complex relationship between the public prosecutor and the tax administration in Belgium more efficient. Let this proposal with its recommendations be an impetus for legislators to open the debate. Coherent legislative interventions are only useful after a thorough analysis of the entire system.