Polemic with a serious core
Jan Fleischhauer has deliberately highlighted this issue in a recent column. He contrasts the announced tougher penalties for tax offences with cases in which courts have imposed comparatively lenient penalties for terrorist offences or serious violent and sexual offences. Such a comparison is necessarily oversimplified. Criminal proceedings are individual cases, sentencing guidelines vary, and juvenile criminal law follows different principles to adult criminal law. Nevertheless, the underlying question should not be dismissed simply by pointing to the polemic: are the assessments within our penal system still sufficiently transparent?
Sentencing guidelines alone do not tell the whole story
The severity of a statutory penalty cannot simply be compared with a sentence actually imposed in another case. The principle of culpability, the extent of involvement in the offence, previous record, confession, prognosis, age and numerous other circumstances determine the specific sentence. In juvenile criminal law in particular, the focus is also on the educational aspect. Anyone who juxtaposes individual judgements is therefore quickly comparing apples with pears.
And yet: criminal law requires social plausibility
However, this legal explanation does not bring the debate to a close. Criminal law does not merely fulfil special preventive functions; it also articulates societal values. Citizens rightly expect the severity of a sanction to be in a comprehensible proportion to the importance of the legal interest being protected and to the offender’s culpability. If this proportion is lost in the public perception, the impression arises that priorities have been misplaced.
Tax evasion remains a serious wrongdoing
The answer cannot lie in downplaying tax crime. Anyone who deliberately evades a substantial amount of tax from the community harms not only the Treasury but also those who pay their taxes properly. Entrepreneurs and advisers in particular are well aware of the significant criminal, economic and personal consequences that tax offences can entail. A consistent state must also be able to take action in this area.
Proportionality is not leniency
Proportionality does not mean leniency. Rather, it requires a clear gradation of the state’s responses. The rule of law permits the imposition of severe sanctions. But it must be able to explain why it responds to a particular behaviour with a particular level of severity. This applies to white-collar crime just as much as it does to offences involving violence, sexual offences and offences against national security.
Criticism of court rulings is part of the rule of law
Judicial independence is indispensable. However, it does not mean that judicial decisions are immune to public or professional criticism. On the contrary: a self-assured rule of law must be able to withstand objective criticism. It is crucial to distinguish between criticism of a decision and an attack on the independence of the judiciary.
Conclusion
The real question is therefore not whether tax evaders are punished too harshly or other offenders too leniently. It is: Is the overall framework of our criminal law still consistent and comprehensible to society? A constitutional state does not thrive solely on sound legal standards and independent courts. It also thrives on the confidence that comparable wrongs are treated with comparable severity and that particularly serious wrongs are met with a response commensurate with their gravity.
The most important points in brief
- Tax offences are serious wrongdoings – their consistent prosecution is non-negotiable.
- Nevertheless, criminal law assessments must remain proportionate and socially comprehensible.
- Objective criticism of sentencing guidelines and judgements does not jeopardise judicial independence, but is part of the debate on the rule of law.
