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

II- Delimitation of the study

Our theme will be analysed based on a triple demarcation. Firstly, we shall begin with the geographical delimitation (A), before delving into the temporal (B) and lastly the material delimitation(C).

A- Geographical delimitation

A scientific work cannot really be done without a prior identification of the area subject to its study. The legal phenomenon at hand therefore needs to be localised in a determined space.^11(*)In circumscribing our topic, we decided to choose central Africa. This region of Africa is characterised by a plethora of regional and sub-regional organisations amongst which we have decided to select the CEMAC zone as the focus point of our study. However, for an in-depth understating of our topic, our reflexion will be extended to the role of the judicial cooperation plays in regional and sub-regional groupings out of the CEMAC zone such as ECCAS, ECOWAS and even the EU. All this being done within a specific temporal demarcation.

B- Temporal delimitation

The reality of time cannot be ignored by the law.^12(*) Our study shall cover the period 2004 till date. 2004 being the year when the CEMAC member states signed the judicial cooperation agreement.The presentation of the spatial and temporal delimitation being done, it will now be necessary to present material demarcation of our topic.

C- Material delimitation

Our work will be based on the recommendations of the OECD on the fight against tax evasion and tax avoidance and on CEMAC community laws which could be defined as all legal rules governing the relations between States engaged on the basis of one or more treaties in a process of integration.^13(*) These community laws being principally made up the institution treaties and partly derived from rules established by community institutions on one hand and on the other hand from the internal laws of CEMAC member States. It is therefore based on the above mentioned norms and recommendations that we shall bring out the role played by the various forms of cooperation (administrative and judicial) used by CEMAC States to effectively fight against tax evasion and tax avoidance. After determining the scope of our study, understanding the key terms involved therein becomes necessary. 

II- Definition of key terms

Key terms are important words found in any research work whose definition helps to get a better understanding of the topic. The key terms contained in our topic are: CEMAC zone, tax avoidance, tax evasion and judicial cooperation.

A- Judicial cooperation

The term cooperation comes from the Latin word «cooperare». It's meaning depending on the context of usage. It can be used by jurists, economists and political scientists etc.^14(*) The literal definition of cooperation is contained in a series of dictionaries. According to the Oxford Advanced Learner's dictionary 6^th edition for example, cooperation is defined as the act of doing something together or of working together towards a shared aim.The Encarta 2009 dictionary on its part refers to cooperation as mutual support for a common goal. The legal definition is more technical.

The legal definition of cooperation is contained in a series of legal dictionaries and texts. As dictionaries of legal sciences, there is the «Vocabulaire juridique» written under the supervision of Dean Gérard Cornu and the «dictionnaire de Droit international public» written under the supervision of Professor Jean Salmon.

The «Vocabulaire juridique» conceives cooperation at the international level as the joint and coordinated action by two or more States or States and private persons in a specific domain (military, scientific, technical, cultural, national or financial, fiscal, monetary, commercial, maritime, international, space and judicial), with the aim of reaching common results in one or more fields of international life.^15(*) The «dictionnaire de droit international public» cited above defines cooperation as an action to work jointly with others or coordinated action of two or more subjects with a view of achieving common objectives in a specific domain.^16(*) Manon Duthoit on his part conceives cooperation as the capacity to collaborate towards a common goal as well as the links created to achieve it.^17(*)

As per international norms amongst which we can cite the United Nations Charter, international cooperation is the resolution of international problems of an economic, social, intellectual or humanitarian nature. According to the Treaty establishing the ECCAS, cooperation indicates the elaboration of a common policy by the member States in any domain. We can therefore say that cooperation is a multifaceted support between two or more natural or corporate persons (private and or public) with the aim of achieving fixed common objectives.^18(*) The qualifying adjective judicial is often associated with cooperation.

The term judicial etymologically, comes from the Latin word judiciarius (relating to justice), derived from judicium (action of judging, court judgment). The oxford advanced learner's dictionary 6^th edition goes in the same line by qualifying judicial as something connected with a court of law, a judge or a legal judgement. For the «Petit Larousse dictionary», judicial concerns the administration of justice or what is done by judicial authorities. Furthermore, the aforementioned «Vocabulaire juridique» refers to judicial as what belongs to justice, justice rendered by the judicial courts or what is within the judicial order. The «dictionnaire de Droit international» previously mentioned designates judicial as what comes under the judicial power, relates to the power to dispense justice, relates to a pre-constituted judicial body, relates to a mission consisting in deciding in law, or which emanates from a judge.^19(*)

Judicial cooperation can therefore be understood as bringing together different jurisdictions for a common goal. It aims at harmonising different laws and procedures of the countries in other to improve access to justice and its exercise.^20(*) For Professor Mireille Delmas-Marty judicial cooperation is an inter-state device which relates to a very old process of mutual assistance between a requesting state and a requested state.^21(*)

According to the CEMAC agreement on judicial cooperation, judicial cooperation is an agreement whereby member states mutually agree to aid themselves judicially in all the procedures relating to criminal, civil, commercial, administrative, persons and the family.^22(*) In addition, the Convention on judicial cooperation and mutual assistance of ECCAS member states outlines judicial cooperation as the strengthening of cooperation in the fight against crime and delinquency in all their forms, in the prosecution of suspected offenders or people convicted in order to reduce impunity». This definition circumscribes judicial to the criminal domain.

In a nutshell, we can say that judicial cooperation is an inter-state collaboration through national jurisdictions, community and international legal orders with the common aim of combating crime in all its forms. To this end, it enables States grouped together under sub-regional organizations, in the form of Regional Economic Communities, to better combat the new threats which are increasingly invading international society.

* ¹¹ Jean Louis BERGEL, Méthodes du droit et théorie générale du droit,2^e éd, Dalloz, 1989, p.131 cited by Martial Fabrice ETEME ONGONO, La coopération judiciaire pénale dans les communautés économiques régionales en Afrique : cas de la CEEAC et de la CEDEAO, Mémoire : master en droit publique international et communautaire, université de Yaoundé II, 2013.  

* ¹² Ibid.

* ¹³ Gérard CORNU, Vocabulaire juridique (Association Henri Capitant), 9^e éd., PUF,Paris,2011, p. 269.

* ¹⁴Martial Fabrice ETEME ONGONO,La coopération judiciaire pénale dans les communautés économiques régionales en Afrique : cas de la CEEAC et de la CEDEAO, Op.cit.

* ¹⁵ Gérard CORNU, Vocabulaire juridique Op.cit.

* ¹⁶ Martial Fabrice ETEME ONGONO, Op,cit.

* ¹⁷ Manon DUTHOIT, La coopération pénale au sein de l'Union européenne, Mémoire de Master de droit pénal et sciences pénales, Université Panthéon-Assas, 2010, p. 10. cited by Martial Fabrice ETEME ONGONO, La coopération judiciaire pénale dans les communautés économiques régionales en Afrique : cas de la CEEAC et de la CEDEAO, Mémoire : master en droit publique international et communautaire, université de Yaoundé II, 2013.  

* ¹⁸ Martial Fabrice ETEME ONGONO, Op,cit.

* ¹⁹ Ibid.

* ²⁰ Théophile NGAPA, Op,cit.

* ²¹Martial Fabrice ETEME ONGONO, Op,cit.

* ²² Section 2 of the judicial cooperation agreement between CEMAC member states of 28^th January 2004.