Combatting Illicit Trade on the EU Border: A Comparative Perspective

Description

This open access book provides the first-ever comparative study on criminal policy concerning the illicit trade of tobacco, conducted among four comparatively new EU Member States (Lithuania, Poland, Slovakia and Romania) and two “old” EU countries (Germany and Italy). The book addresses the national legal frameworks, current criminological situation regarding illicit trade of tobacco, and the practical challenges faced by national law enforcement authorities in the countries examined. It also considers the international framework, and concludes with a horizontal report. The objective of the book is to highlight legislative and practical challenges in the fight against illegal tobacco products at the national and transnational level, and to formulate recommendations for overcoming them more effectively in Europe. Acknowledgements Contents Part I: Introduction Introduction: Fighting Against Illicit Tobacco Trade in the Era of Fast Change 1 National Criminal Policy as a Part of Tobacco Control Policy: Justification of the Research 2 Scope of the Book, Methodological and Terminological Considerations 3 Research Questions, Structure and Content of the Study References International Legal Framework on the Fight Against Illicit Tobacco Trade: An Overview 1 Introduction 2 Illicit Trade of Tobacco Products in the Light of the WHO FCTC 3 Protocol to Eliminate Illicit Trade in Tobacco Products: General Issues 4 Protocol to Eliminate Illicit Trade in Tobacco Products: Penal Aspects 5 Protocol to Eliminate Illicit Trade in Tobacco Products: International Cooperation and Jurisdiction 6 European Union´s Position on Illicit Trade of Tobacco Products 7 Other Relevant Legal Instruments 8 Discussion References Part II: Criminal Policy with Regard to Illicit Tobacco Trade: National Experiences and Challenges Between Taxes, Criminal Law and Health Care: The Fight Against Illicit Tobacco Trade in Germany 1 Substantive Law Issues 1.1 Legal Architecture Related to the Illicit Trade of Tobacco Products 1.1.1 Relevant Offences and Their Features 1.1.1.1 Smuggling 1.1.1.1.1 Furnishing Authorities with Incorrect or Incomplete Particulars, § 370 (1) No. 1 German Fiscal Code (Abgabenordnung:... 1.1.1.1.2 Omission of the Tax Declaration, § 370 (1) No. 2 AO 1.1.1.1.3 Omission of the Use of Tax Stamps, § 370 (1) No. 3 AO 1.1.1.1.4 Illegal Import, Export, or Transit of Goods, § 372 (1) AO 1.1.1.1.5 Receiving, Holding or Selling Goods Obtained by Tax Evasion, § 374 (1) AO 1.1.1.2 Illicit Manufacturing 1.1.1.2.1 Omission of the Tax Declaration, § 370 (1) No. 2 AO 1.1.1.2.2 Omission of the Use of Tax Stamps, § 370 (1) No. 3 AO 1.1.1.2.3 Illicit Manufacturing and Distribution of Tobacco Products, § 34 (1) TabakErzG 1.1.1.3 Counterfeiting 1.1.1.3.1 Forgery of Stamps, §§ 369 (1) No. 3 AO; 148 StGB 1.1.1.3.2 Punishable Infringement of a Community Trade Mark, § 143a Trade Mark Act 1.1.1.4 Administrative Offenses 1.1.2 Fiscal Responsibility for Illicit Trade 1.1.2.1 Smuggling 1.1.2.1.1 Transfer 1.1.2.1.2 Import 1.1.2.1.3 Description of the Taxes 1.1.2.2 Illicit Manufacturing 1.1.2.2.1 Furnishing Authorities with Incorrect or Incomplete Particulars, § 370 (1) No. 1 AO 1.1.2.2.2 Omission of the Use of Tax Stamps, § 370 (1) No. 3 AO 1.1.3 Relation Between Criminal and Administrative/Fiscal Responsibility 1.2 Relations Between Criminalization of Illicit Trade of Tobacco and Other Types of Economic Crimes 1.3 Aggravating Cases of Illicit Trade of Tobacco Products 1.3.1 Professional, Violent or Organized Smuggling, § 373 AO 1.3.2 § 370 (3) AO 1.4 Legal Responsibility of Individuals for Illicit Trade of Tobacco Products 1.5 Sanctions Applicable for Illicit Trade of Tobacco Products (Individuals) 1.5.1 Taxes 1.5.2 Criminal Sanctions 1.5.3 Forfeiture 1.5.4 Sanctions for Administrative Offences 1.5.5 Other Sanctions 1.6 Liability and Sanctions for Illicit Trade of Tobacco Products (Legal Persons) 1.7 Disposal or Destruction of Confiscated Tobacco Products 1.8 WTO FCTC and the 2012 Protocol 2 Procedural Law Issues 3 Criminological Data 3.1 Investigation of Illicit Trade of Tobacco Products 3.2 Prosecution/Convictions in Cases of Illicit Trade of Tobacco Products 3.3 Financial Impact of Illicit Trade of Tobacco Products 3.4 Exemplary Cases 3.5 Features of Illicit Trade of Tobacco Products 3.6 Characteristics of Perpetrators of Illicit Trade of Tobacco 3.7 Trends in Illicit Trade of Tobacco Products 4 Preventive Measures 5 Cooperation 6 General Aspects and Conclusion References The Italian National Legal Framework Related to Illicit Trade in Tobacco Products 1 Substantive Law Issues 2 Procedural Law Issues 3 Criminological Data 4 Preventive Measures 5 Cooperation 6 General Issues 7 Conclusion References Prevention of Illicit Trade in Tobacco Products: Experience of Lithuania 1 National Legal Framework Related to Illicit Trade in Tobacco Products 1.1 Substantive Law Issues Concerning Illicit Trade in Tobacco Products 1.2 Administrative Penalties and Administrative Measures for Illicit Trade in Tobacco Products 1.3 Punishments and Penal Measures for Illicit Trade in Tobacco Products 1.4 Criminal and Administrative Liability of Legal Persons for Illicit Trade in Tobacco Products 1.5 Procedural Law Issues 2 Criminological Data 2.1 General Data on Registered Crimes of Illicit Trade in Tobacco Products 2.2 Data on Punishments and Measures (Penal and Others) Applied with Regard to Offenders of Illicit Trade in Tobacco Products 2.3 Short Description of the Most Interesting and/or Exemplary Case Studies with Regard to Illicit Trade in Tobacco Products 2.4 Characteristics of Perpetrators of Illicit Trade in Tobacco Products in Lithuania (Age, Gender, Education, Nationality/Cit... 3 Preventive Measures 3.1 Measures Relating to Track and Tracing System 3.2 Measures Relating to the Reduction of Demand for Tobacco 3.3 Measures Relating to the Reduction of the Supply of Tobacco 4 Cooperation 5 General Issues 5.1 Rates of Excise Duties on Cigarettes, Cigars, Cigarillos and Smoking Tobacco 5.2 Main Social, Political and Geographical Factors Which Contribute to the Illicit Trade in Tobacco Products in Lithuania 6 Conclusion. Identification of Best Practices at the National Level Annex: Tables References International and European Union Legal Acts, National Laws and Other Legal Acts Jurisprudence of the Constitutional Court of Lithuania, Supreme Court of Lithuania and Other Courts Special Literature Online Sources Legal and Practical Challenges of Combating Illicit Trade of Tobacco in Poland 1 Introduction 2 Legal Aspects of the Fight Against the Smuggling of Cigarettes and Other Tobacco Products 2.1 The Penal Fiscal Code 2.1.1 General Characteristics 2.1.2 Penal Fiscal Offences Related to the Illicit Trade in, or Smuggling of, Tobacco or Other Tobacco Products 2.1.3 Excise Fraud 2.1.4 Customs Offences 2.2 The Illicit Manufacture of Tobacco Products 2.3 The Criminal Code 2.4 Sanctions 2.4.1 Penalties 2.4.2 Penal Measures 3 Procedural Rules 4 Cooperation Between State Authorities 5 Criminological Issues 5.1 Introduction 5.2 Categories of Crime Linked to the Trade in Tobacco Products 5.3 Statistical Data 5.4 Modus Operandi 6 Conclusions References Reports Other A Complex Legal Framework for a Lack of Legal Certainty: Case Study of Romania 1 National Legal Framework Related to Illicit Tobacco Trade/Smuggling 1.1 Substantive Law Issues: Criminal Offenses 1.1.1 Law No. 86/2006 on the Customs Code of Romania 1.1.2 Law No. 227/2015 Regarding the Romanian Tax Code 1.1.3 Law No. 241/2005 on Tax Evasion 1.2 Substantive Law Issues: Administrative Law 1.2.1 Government Decision No. 707/2006 for the Approval of the Regulation in Regard to the Application of the Customs Code of ... 1.2.2 Law No. 227/2015 on Tax Code 1.2.3 Law No. 12/1990 on the Protection of the Population Against Illicit Production, Trade and Services 1.2.4 Fiscal Responsibility for Illicit Trade 1.3 Relation Between Criminal and Administrative/Fiscal Responsibility 1.4 Relations Between Criminalisation of Illicit Trade of Tobacco and Other Types of Economic Crimes 1.4.1 The Relationship Between the Smuggling Offense (Article 270 (3) of Law No. 86/2006 on the Customs Code of Romania) and t... 1.4.2 The Relationship Between the Smuggling Offense (Article 270 of Law No. 86/2006) and the Offense of Tax Evasion (Article ... 1.4.3 The Relationship Between the Smuggling Offense (Article 270 of Law No. 86/2006) and the Money Laundering Offense (Articl... 1.4.4 The Relationship Between the Smuggling Offense (Article 270 of Law No. 86/2006) and Organized Crime Offense (Article 367... 1.4.5 The Relationship Between Illicit Trade of Tobacco and Corruption 1.4.6 The Relationship Between Illicit Trade of Tobacco and Organised Crime 1.5 Sanctions 1.5.1 Aggravating Circumstances 1.5.2 Sanctions Applicable for Illicit Trade of Tobacco Products with Regard to Individuals 1.6 Legal Responsibility of Legal Entities 1.7 Disposal or Destruction of Confiscated Tobacco Products 1.8 Asset Recovery Related to Illicit Trade of Tobacco Products 1.9 The Impact of the WTO FCTC and the 2012 Protocol to the FCTC on the National Law 1.10 Procedural Law Issues 1.10.1 Institutional Framework 1.10.2 Procedural Rules 2 Criminological Data 2.1 Offenses 2.2 Financial Impact of Illicit Trade 3 Exemplary Case of Illicit Trade 4 Methods and Other Phenomenological Details Related to Illicit Trade of Tobacco Products 5 Preventive Measures 6 Cooperation 7 General Issues 8 Conclusions Prevention and Repression of Illicit Trade in Tobacco Products: Experience of Slovakia 1 National Legal Framework Related to Illicit Trade in Tobacco Products 1.1 Substantive Law Issues 1.1.1 Combatting Illegal Smuggling of Tobacco Products 1.1.1.1 Tax Law (Applicable in the Majority of Cases) 1.1.1.2 Criminal Law 1.1.1.3 Administrative Law 1.2 Application of ne bis in idem Principle 1.2.1 Legal Responsibility 1.2.1.1 Legal Responsibility of Individuals: Administrative Law Perspective 1.2.1.2 Legal Responsibility of Individuals: Criminal Law Perspective 1.2.1.3 Legal Responsibility of Legal Persons: Administrative Law Perspective 1.2.1.4 Legal Responsibility of Legal Persons: Criminal Law Perspective 1.2.2 Disposal or Destruction of Confiscated Tobacco Products 1.3 Slovak Republic and WTO Framework Convention on Tobacco Control and the 2012 Protocol to the Framework Convention on Tobac... 2 Procedural Law Issues 2.1 General Overview 2.2 Real Work 2.3 Specific Procedural Issues Regarding Investigation and Prosecution of Illegal Trade in Tobacco 2.4 Special Investigative Techniques Which May Be Used with Regard to Investigations of Illegal Trade in Tobacco 2.5 Preventive Measures That Are Applied in Criminal Proceedings with Regard to Perpetrators of Illicit Trade 3 Criminological Data 4 Preventive Measures 5 Cooperation 6 General Issues 7 Conclusion References Part III: Conclusions Conclusions: Criminal Policy on Illicit Tobacco Trade Between Scylla of Health Concerns and Charybdis of Fiscal Interests