Article 7(2) of the Latvian Administrative Offences Code (LAPC) provides that administrative offences must be dealt with in strict compliance with the law.
In my work practice, I have come across a situation where, for example, SRS officials summon a taxpayer to appear at a certain time, taking with them the accounting documents listed in the summons. After submitting the documents, the SRS officials send a second letter about submitting the accounting documents, but with different documents (different time period).In the last letter, the taxpayer is warned by the SRS that failure to submit the documents may result in administrative liability under Article 159.9(1) of the LAPC, which provides that for failure to provide the tax administration with the information required for tax administration and control - a fine shall be imposed on natural persons from twenty-five to one hundred and fifty lats, and on legal persons - from fifty to five hundred lats.
Taking into account the fact that the taxpayer did not respond and did not appear after the second summons of the SRS, the SRS issued an administrative offence report without the presence of the offender. Neither in the first nor in the second letter of invitation did the SRS staff inform the taxpayer, nor was the taxpayer (the offender) separately informed that an administrative offence report would be drawn up for the offender and that the offender would be invited to the drawing up of the report.
In this example, it should be checked whether the SRS or any other authority competent to draw up an administrative offence report has not infringed the procedural conditions laid down in the LAPC for the drawing up of the report.
The third, fourth and fifth paragraphs of Article 248 of the CCPC shall provide in turn that the report shall be signed by the person who drew it up and the person who committed the administrative offence [...] if the person who committed the administrative offence refuses to sign the report, an entry to that effect shall be made in the report. The person who committed the offence shall have the right to submit explanations and comments on the content of the record to be annexed to it and to state the reasons for which he refuses to sign it. When the report is drawn up, the offender shall be informed of his rights and obligations under Article 260 of this Code and an entry shall be made in the report.
Article 248.1 of the CCPC provides that, if for objective reasons it is not possible to draw up the administrative offence report in the presence of the person who is held administratively liable or in the presence of the representative of the legal person, it shall be drawn up without the presence of those persons and a copy of the report shall be sent by registered post to the residence address or legal address of the [...]
Although Article 248 of the LAPC does not explicitly state that the person held liable shall be summoned to the drawing up of the report, if we assess the legal regulation of Article 248 and Article 248.1 of the LAPC together, we can conclude that the general procedure for drawing up the report is that the person who committed the offence is present at the drawing up of the report, his procedural rights and obligations are explained to him, he may give explanations to the report, he may refuse to sign the report, stating the reasons. The record shall be drawn up without the person being present only if, for objective reasons, it cannot be drawn up in the presence of the person.
Thus, returning to the above example and applying the above legal framework to the above circumstances, we can clearly conclude that during the proceedings the offender was not provided with the opportunity to participate in the drawing up of the report and to exercise his/her rights under Articles 248 and 260 of the LPK, as the person was not notified of the place and time of the drawing up of the report and was not invited to the drawing up of the report.
Moreover, according to the case-law, the fact that the person did not participate in the drawing up of the report and also could not choose to exercise this right or not, because the person was not notified (omission of the authority), cannot be recognised as an objective circumstance within the meaning of Article 248.1 of the LAPC.
Furthermore, if the authority sends the offender an information letter on some facts and circumstances of the case, which does not explicitly invite him to appear before the administrative offence report, the offender does not need to know, and should not know, that such letters (without a precise and explicit invitation) invite him to appear before the administrative offence report.
Source: www.ifinanses.lv
