TAXATION, TAX CRIMES AND SELFINCRIMINATION ACCORDING TO THE PORTUGUESE CONSTITUTIONAL COURT

Resumo

The object of the research are the recent decisions of the Portuguese Constitutional Court regarding the principle of self-incrimination and tax law. The subject has an important impact on the conduct of Tax Administration in tax inspections and reveals the application by the Portuguese Courts of European Human Right jurisprudence. The goal of this paper is to underline the recent evolution of the Constitutional Portuguese Court Jurisprudence regarding this matter, on behalf of the taxpayers and his fundamental rights (specially the defence against self-incrimination). Methodologically, we will go through the two main decisions on this matter from the Constitutional Court, compare them with decisions from the European Court of Human Rights and confront them with some opinions from the scientific community. We will also focus on the legal articles that design the duty of cooperation and its limits, on the General Tax Law (LGT), on the RCPITA (Regime Complementar do Procedimento de Inspeção Tributária) – the law that regulates the action of tax inspections – and also on RGIT (Regime Geral das Infrações Tributárias) – the law that rules tax crimes and criminal tax procedure. Our initial hypothesis is whether the decision from case law TC 298/2019 implies a revolutionary transformation in the articulation between tax authorities and criminal authorities, and whether this decision brings a rupture with traditional interpretation of the self-incrimination principle in tax matters. Even though it is still soon to see a statistical impact in court decisions regarding similar matters, we will defend the importance of the Constitutional Court decision in the behaviour of tax inspections and the improvement of the relationship between tax authorities and taxpayers whenever a conflict may arise regarding cooperation, on the one side, and the protection against self-incrimination, on the other side. We will also anticipate a future development of the principle, to those areas where there still may be a conflict between cooperation with tax authorities and self-incrimination.