The role of judicial cooperation in the fight against tax evasion and tax avoidance in the CEMAC zone

SECTION I: FACTORS ACCOUNTING FOR THE LIMITED ROLE OF JUDICIAL COOPERATION WITHIN THE FRAMEWORK OF THE FIGHT AGAINST TAX EVASION AND TAX AVOIDANCE

The factors limiting the role of judicial cooperation in preventing tax evasion and avoidance in the CEMAC zone can be divided into structural (paragraph I) and institutional factors (paragraph II).

PARAGRAPH I: INSTITUTIONAL FACTORS

The institutional factors limiting judicial cooperation are essentially political in nature. They are does factors arising from the limited will of the political institutions of CEMAC^157(*) to enhance the cooperation. These factors ranges from the laxity of the process of adoption and ratification of community texts (A) to the scarcity of institutions in charge of judicial cooperation (B).

A: laxity of the process of adoption and ratification of community texts

With the advent of CEMAC, some actors were almost delighted that decisions were no longer taken exclusively by unanimity as was the case under the aegis of UDEAC. "The CEMAC texts have instituted the rule of consensus as a rule of principle for the adoption of acts of the conference of heads of state although this rule remains suppletive for the adoption of other community policies by the other organs of the community^158(*). Despite this progress, it appears that the unanimity rule resurfaces when it comes to regulating certain sensitive areas of Community policy such as judicial cooperation (1). Moreover, even when these Community bodies manage to reach an agreement despite everything, this unanimity is only a façade in view of the time gap between adoption and ratification (2).

1: The impact of the unanimity rule in matters of judicial cooperation

The requirement of unanimity of states parties for the adoption of texts on judicial cooperation has always been criticised by most authors. Because of the unanimity rule, the harmonisation of tax rules in other to effectively fight against tax evasion and tax avoidance remains largely utopian. This is all the more justifiable as national governments are more reluctant to let a Community entity usurp their regalian functions. This unanimity requirement amounts to giving a veto right to each Member State. This could result either to the paralysis or to the adoption of texts that lack ambition and therefore do not meet with objective. This situation is even more deplorable within the European Union where all decisions are taken by unanimity.^159(*)

The adoption of the unanimity rule in the field of judicial cooperation is also indicative of the opposition that animates the minds of the leaders of the sub region who, while being jealous of their sovereignty, nevertheless seek efficiency in the fight against tax evasion and tax avoidance, which in turn leads to cooperation. It is this opposition between the claim to sovereignty and the desire for efficiency that justifies the slowness of the procedure for ratifying texts on judicial cooperation.

2: The gap between adoption and ratification

The adoption of an international convention is not usually sufficient. In almost all cases, it needs to be ratified by the States Parties to become binding. Through the ratification procedure, States find a way to block a text that they have been somehow forced to accept. When we look at the time that elapses between the signing of a convention and its subsequent ratification by the various national parliaments we are sometimes perplexed. One often wonders where the political will to fight organised crime and illicit financial flow of cash lies? When it takes an average of nearly five years, and sometimes more, to ratify a convention, we understand that there is a real problem. This is a responsibility that falls on politicians for, they are the once having the last say as far as the ratification and adoption of community texts are concerned.^160(*)

In the CEMAC zone, the problem of ratifying conventions on judicial cooperation is acute. This is due to fact that judicial cooperation agreement between the CEMAC member states and the extradition agreement between these states adopted during the fifth Conference of CEMAC Heads of State on 28^th January 2004 in Brazzaville have not yet entered into force due to the lack of ratification by all of the state's parties as required by these texts.^161(*) The above problem is further aggravated by the scarcity of institutions in charge of promoting judicial cooperation.

B: the scarcity of Community institutions in charge of judicial cooperation

The need to create Community cooperation bodies for the fight against tax evasion and tax avoidance as well as organised crime has always been felt. Bernard BERTOSSA already recalled this in the European context when he affirmed that: "if we want to have any chance of combating organised crime, it is imperative that the European (Community) institutions provide themselves with judicial authorities competent to prosecute, throughout the continent (the Community), perpetrators of offences of which these institutions may also be victims.^162(*)

With the view to strengthening judicial cooperation in Europe in order to effectively combat organised crime, several specialised bodies have been created. For example, we have EUROJUST which is a European body whose aim is to strengthen the fight against serious crime. It is composed of representatives of the Member States who are prosecutors, judges or judicial police officers. We also have the example of Europol, whose mission is to ensure the efficiency of the competent services of the Member States and their cooperation in the most numerous fields of international crime.^163(*)

In the CEMAC, things are not so advanced. Because of the struggle to preserve their sovereignty, states are reluctant to accept the creation of supranational bodies responsible for coordinating the fight against the most serious forms of illicit activities.^164(*) This state of things is further justified by structural factors limiting cooperation in the sub-region.

PARAGRAPH II: STRUCTURAL FACTORS

The structural factors limiting judicial cooperation can be divided into: the conditional application of extradition in tax matters(A), the protection of banking secrecy(B) and systemic corruption(C).

A: Conditional extradition in tax matters

The principle is generally that tax offences are excluded from the scope of extradition. Obeying the claims of the sovereignty of the States parties, international conventions allow for the refusal of extradition in taxes matters, duties, customs and exchange. This is also the case of the extradition agreement between the CEMAC Member States. According to this agreement, extradition can only be granted in tax matters "if so agreed between States Parties for each offence or category of offences "^165(*). Some authors^166(*)criticise this situation and propose that tax offences should be included in the field of extradition without the possibility of exclusion. Several reasons are given to support this position. The most common one is that tax offences are usually very closely linked to several offences that remain within the scope of extradition, in particular money laundering. The commission of these offences is frequently accompanied by tax and customs violations. Moreover, tax investigations often reveal the existence of other, more far-reaching economic offences^167(*).The condition attached to extradition in tax matters appear at the end of this analysis as real sources of blockage for judicial cooperation. These conditions added to that others such as the protection of banking secrecy can thus paralyse and render ineffective the fight against tax evasion and tax avoidance.

B: the protection banking secrecy

The Cameroonian law n°2003/04 of 21^st April 2003 on banking secrecy in its Section 3 defines banking secrecy as "the obligation of confidentiality to which credit institutions are bound in relation to acts, facts and information concerning their clients of which they have knowledge in the exercise of their profession ". The purpose of this law is to ensure the confidentiality of financial transactions. It places an obligation of secrecy on the banker, the violation of which is likely to engage his civil liability. In some countries, banking secrecy is so rigidly regulated that it cannot be lifted. This has long been the case in Switzerland^168(*) and in many other tax havens. However, it appears that the link is often quickly made between a tax evasion, tax avoidance and money laundering operations and the protection of banking secrecy.^169(*)In order to inject the proceeds of their illicit financial activities into legal channels, criminals most often use financial institutions, especially in countries that are resistant to any lifting of banking secrecy. The banker will be all the more credible if he can remain as silent as possible^170(*).

Despite the above illustrated practice, it is worthwhile noticing that this challenge has however been overcomed at the level of the CEMAC sub region thanks to the help of community and national legislation adopted in that domain. For example, section 57 of the CEMAC regulation on the prevention and suppression of money laundering and terrorist financing in Central Africa states that, mutual assistance may include inter alia relevant documents, including bank statements, accounting documents, and records showing the operation of a company or its commercial and financial activities. This solution was corroborated at the domestic level by the Cameroonian legislator thanks to section 8(1) of the Banking Secrecy law provides that "banking secrecy may not be opposed to the judicial authority acting in the context of criminal proceedings and to judicial police officers acting on a rogatory commission from the State Counsel". This approach does not however solve the problem of corruption that continues to rage.

C: systemic corruption

Corruption according to Transparency international is the abuse of entrusted power for private gain. National wise, corruption is referred to by section 134(1) of the Cameroon penal code corruption is considered as «the act by which all or any civil servant or public agent for himself or a third party solicits, accepts or receives offers, promises, donations, gifts to do or abstain from doing or adjourn an act of his function».^171(*) Paragraph 3 of the above section reaffirms the definition of corruption by holding that «it is the act by which a civil servant or public agent solicits or accepts retribution in cash or in nature for himself or for a third party in remuneration for an act already accomplished or an abstention».^172(*)

Within the framework of tax evasion corruption, take place through indulgence. This form of corruption is provided for by section 137 of the Cameroonian penal code. This section deals with public servants who act to the detriment of government department, co-operative or any State authority. The corrupt act envisaged here is when public servant's grants exemptions from any fee, due, duty, tax, contribution or he delivers at a lesser price than that prescribed by the law.

The Gabonese legislation did not derogate from that rule. Indeed, the 2003 law instituting a regime of prevention and repression of illicit enrichment provides that: «Any official of the State in charge of a public service, any collector of duties, taxes, contributions or other public funds who fraudulently collects or orders the collection of undue remuneration for the collection of such duties, taxes, contributions or other public funds shall be punished by imprisonment for a term of two to ten years and a fine of 2,000,000 to 20,000,000 CFA francs. Convictions under this article shall automatically entitle the convicted person to exercise the rights provided for in Article 18 of the Criminal Code.»^173(*) Section 9 of law n°5-2009 of 22^nd September 2009 on corruption, bribery and fraud and related offences in the Republic of Congo provides same.

Furthermore, section 10 of the aforementioned code stipulates that: «Any person who, in order to obtain an undue material or moral advantage, shall be found guilty of fraud and punished by imprisonment for a period of one to five years and a fine equal to at least twice the value in cash of the advantage obtained or the duties evaded...either by any ruse, evades the payment of duties imposed on a product, merchandise or commodity with a view to evading the law or regulations on taxation.»

From the foregoing, it sequels that corruption is a practice very common within the sub region where tax inspectors are tempted on daily basis to fall prey to the propositions (retribution sin cash and kind) made to them by taxpayers in exchange of reduction of due taxes. However, notice should be taken about the fact that in some instances, the tax administrator are the once soliciting reductions from taxpayers in exchange of tax reduction. This is a practice very detrimental to the administrations of member states who loss billions of CFA as a result of corruption and other lacunas facing the administration.

* ¹⁵⁷ The conference of head of states and the council of ministers.

* ¹⁵⁸ Théophile NGAPA, Op.cit.

* ¹⁵⁹Ibid.

* ¹⁶⁰ ZANOTO (Jean-Pierre), l'espace judiciaire européen, Acte du colloque d'Avignon,1999, p138.

* ¹⁶¹Section 26 (2) Extradition Agreement between CEMAC Member States.

* ¹⁶² Bernard BERTOSSA, l'espace judiciaire européen, acte du colloque d'Avignon, p. 123

* ¹⁶³ Théophile NGAPA, Op.cit.

* ¹⁶⁴ Ibid.

* ¹⁶⁵ Section 4(4) of the Extradition agreement between CEMAC member States of 28^th January 2004.

* ¹⁶⁶ Jean ZIEGLER, l'espace judiciaire européen, acte du colloque d'Avignon op.cit., P 115

* ¹⁶⁷Mireille,DELMAS-MARTY, criminalité économique et atteintes à la dignité de la personne, Maison des Sciences de l'Homme, 2001,p.64 cited by Théophile NGAPA, La coopération judiciaire pénale dans la zone CEMAC, Mémoire : DEA en Droit Communautaire et Comparé CEMAC, Université de Dschang 2005.

* ¹⁶⁸ Théophile NGAPA, op.cit.

* ¹⁶⁹ Ibid.

* ¹⁷⁰ Ibid.

* ¹⁷¹ Section 144(amended by ordinances n°12/78 of 23 January 1978 and n°15/80 of 13 September 1980) of the Gabonese penal code goes in the same line.

* ¹⁷²This legal provision of the Cameroonian penal code goes in the same line with section 2 of the Congolese penal code.

* ¹⁷³Section 12 of Law n°002/2003 of 7 May 2003 instituting a regime of prevention and repression of illicit enrichment in the Gabonese Republic.