“Won’t you please (please) help me?” – Cooperation with authorities in tax fraud criminal cases in Spain

• In Event: Procedural and Courtroom Dynamics and the Sentencing Process 2

Abstract

Background

This proposal is aimed at studying the effectiveness of the mitigating clauses of art. 305.6 of Spanish Criminal Code (“SCC”). These provisions were introduced in 2013 to get detected tax fraud perpetrators to pay their dues or to identify other involved people. When applied, judges can reduce the sanction one or two degrees – which in practice means that the offender will almost certainly not enter in prison.

Method

A sample of 84 Spanish Supreme Court’s sentences in tax fraud cases rendered between 2013 and 2023 was analysed. The number of cases in which art. 305.6 was applied, the number of prosecuted and sentenced people in each case and the application of the general mitigating circumstances of “confession”, “reparation” or “undue delay” (paragraphs 4, 5 and 6 of art. 21 SCC) were the parameters considered.

Results

Art. 305.6 was applied only in one case. As regards the general clauses, “reparation” was applied in 13 procedures (15,48%), “confession” in 10 (11,90%) and “undue delay” in 35 (41,67%). When “confession” is applied, the average number of accused (4,58 people per procedure) and sentenced people (3,20) increases up to 17,80 and 14,80.

Conclusions

The mitigating circumstances of art. 21 SCC seem to constrain the effectiveness of art. 305.6 SCC in two manners. First: since “reparation” and “confession” require payment or cooperation, they turn art. 305.6 into a superfluous provision. Second: since “undue delay” grants mitigation merely because the procedure has lasted too long, cooperating or repairing are possibly not the most attractive courses of action (“why cooperate/pay when I can just wait?”). Nevertheless, when “confession” is applied, the number of accused and sentenced people increases. Thus, the strategy of reducing the sanction in exchange for more information seems to work, despite the scarce attractiveness of the measures specifically established for tax fraud cases.

Author

• Jesús Martín Muñoz, Complutense University of Madrid