Separate opinion to INM’s opinion on the ne bis in idem principle

Daniel Silviu UDRESCU
Daniel Udrescu

On 25.05.2020, JURIDICE.ro published the article: „INM’s Opinion ref. the application of the ne bis in idem principle in the case of facts likely to attract both contravention and criminal liability

A final administrative sanction of a criminal nature has a preventive character, but at the same time it is not able to remove the qualification of criminal sanction, and when we have recidivism the sanction is no longer a measure limited to repairing the damage caused by the wrongful act, but represents a criminal nature, which must be investigated on a chain, which in the case presented was not carried out.

Even if, apparently, only the engagement of the contravention liability is discussed, which can prevent a new criminal procedure against the same person, for the same deed, based on the ne bis in idem principle, I consider that the criminal investigation should have been continued and was necessary at least regarding the income tax generated by the illegal activity of the woodcutter, because he not only cut wood, but also traded it, income that was not declared and for which no tax was paid, with reference to washing the proceeds of crime, on the chain until Schweighofer, either through identity theft or phantom companies.

Maybe the opinion issued by the prosecutors could be categorized as correct, but it does not solve the problem. An incorrect text can consist of correct sentences. As such, I will try an explanation by addressing another topic related to ne bis in idem.

Meeting of the chief prosecutors of the Prosecutor’s Office attached to the High Court of Cassation and Justice, the National Anticorruption Directorate, the Directorate for the Investigation of Organized Crime and Terrorism and the prosecutor’s offices attached to the courts of appeal, from 9-10 March 2020, concluded with a minute in which INM expressed an opinion on the ne bis in item principle.

First of all, this opinion is not of INM, it is only of the prosecutors participating in the meeting organized within the Project “Justice 2020: professionalism and integrity”, SIPOCA code 453, code MySMIS2014 + 118978, co-financed from the European Social Fund (ESF) through the Operational Program Administrative Capacity (POCA). The minute was drafted by Prosecutor Irina Ioana Kuglay, INM trainer and Prosecutor Corneliu Iftim, INM trainer, both without delegation to “take” INM in a court action that can be conceived by a lawyer and judged by a judge, because a civil servant or two, without competence, issued an opinion on behalf of the National Institute of Magistracy, which is intended to be a source of law.

Why do I say this? The role of the INM is to form, not to express opinions

I quote from the comments of Mrs. Mihaela Mazilu-Babel, outraged by this new source of law:

What is the reason for these INM opinions?

And what is their legal force?

And what can a lawyer do when he finds that the INM’s opinion, although erroneous, is unanimously agreed by those present? (I also ask how the unanimity was determined?) You mean you can expect a fair trial later? At an impartiality? To an equality of arms?

… it seems to me that the INM Opinion gives the impression that non bis in idem (as it is understood at the ECHR level) would have been consecrated at the level of the Romanian Constitution, which seems erroneous to me. The Romanian Constitution does not contain a provision analogous to Article 4 of Protocol no. 7 of the Convention or Article 50 of the Charter of the EUSF (unfortunately), and there is no CCR case law to elevate it – within the meaning of the ECHR / Charter of the EUSF – to the rank of constitutional principle. However, in the Opinion, I consider that INM had the obligation to refer also to the jurisprudence of the RCC specifically incident when it said “that the way of regulating the crimes provided by art. 107 para. 1 lit. b) and art. 109 para. 1 lit. b) of the Forestry Code raises a problem of constitutionality, from the perspective of the ne bis in idem principle ”.

I was upset too and replied:

Does the INM have the competence to issue opinions? Who signs them? Who gave such a delegation and to whom? The operating regulations of the INM include the following competencies:

Art. 1 paragraph (4) The Institute carries out the initial professional training of judges and prosecutors, the continuous professional training of judges and prosecutors in office, as well as the training of trainers, in accordance with the law.

Art. 2 paragraph (1) The organizational structure of the Institute includes:
a) the management bodies;
b) Initial vocational training department;
c) Department of continuous professional training;
d) The training department for trainers;
e) The competition and exams office;
f) The economic-financial and administrative department;
g) Office of International Relations, Externally Funded Projects and Public Policies;
h) Public procurement and IT office;
) The legal department.

Art. 3 The governing bodies of the Institute are: the Scientific Council, the director, 2 deputy directors and the economic director 

Art. 7 paragraph (1) The Scientific Council decides on the issues regarding the organization and functioning of the Institute.

From my point of view, I see the PROSECUTOR as a representative of the state, with a high public value, a position often criticized, but which preserves an image of state authority.

As a result, I considered that if the prosecutors issue opinions, when in fact they issue ordinances that have a special circuit of co-appeal, or issue indictments, or NUP or request RIL, which ends before judges, then as an legal accounting expert, which has the qualification to issue separate opinions, I also express a separate opinion, regarding the ne bis in idem principle, a vast field, but for Romania still in the gray area, where the elevated aspect of the matter is just a fragment.

Legal liability in Romanian law can take only three forms, namely:
– criminal liability,
– contravention liability and
– civil liability (tort).

The three forms of liability may appear, in competition, that is, together; we emphasize, however, that we are referring to the competition for criminal liability / civil liability and to the competition for contravention / civil liability, as criminal liability cannot coexist with the contravention liability (they are excluded), which means that the same wrongful act cannot be retained in the same time, as a crime, but also a misdemeanor. The INM’s opinion also noted this aspect.

Unlike Romanian law, art. 325 TFEU obliges Member States to combat illicit activities which harm the financial interests of the European Union through dissuasive and effective measures and the financial interests of the Union include, inter alia, VAT revenue. Or this aspect needs to be combined with procedures regarding the overview of a crime that in addition to VAT sometimes has to be solved through other taxes and fees.

Most often, we encounter the absence of an administrative sanction of a criminal nature, but the conclusion of the civil procedure, by a final sentence of the court, be it insolvency or voluntary liquidation based on law 85/2006 or 85/2014, which puts us before the absence of the fiscal body from contesting the respective procedures. To many this may not seem ne bis in idem, but procedurally a society DIES by a decision of deregistration, and a dead person can no longer be investigated criminally or taxed.

The national regulation, through the Fiscal Procedure Code, through the insolvency laws aims to ensure the full collection of the due VAT, having strict procedures and criminal sanctions that pursue complementary purposes, ie aim at the need to combat different aspects of the same behavior. targeted crime. The rules are clear and precise and allow the litigant to stipulate which acts and omissions are likely to be subject to such an accumulation of procedures and sanctions, indicating the verification procedures of the fiscal body. The problem is not the existence of the procedures, but the late response of the fiscal body, which did not exercise its obligations conferred by law, leaving the criminal body the role of patching the court. The principle of proportionality requires that this combination of procedures should not exceed the limits of what is appropriate and necessary for the achievement of the legitimate objectives pursued, or the late intervention of the criminal body creates disproportionate inconveniences in relation to the intended purposes.

In many of the articles I wrote in 2012 on Juridice, about tax-criminal and insolvency cases, I started from Art 28 CPP:

“(1) The final decision of the criminal court has the authority of res judicata before the civil court that judges the civil action, regarding the existence of the deed and of the person who committed it. The civil court is not bound by the final decision of acquittal or termination of the criminal trial regarding the existence of the damage or the guilt of the perpetrator of the illicit deed.

(2) The final decision of the civil court by which the civil action was resolved does not have the authority of res judicata before the criminal judicial bodies regarding the existence of the criminal act, of the person who committed it and of its guilt.

However, Article 28 of the CPC has the following interpretation:

Paragraph (1): The final decision of the criminal court does NOT have the authority of res judicata, regarding the establishment of the fiscal claim, which is made ONLY according to art. 14 para. (3) lit. a) of the Old Code of Criminal Procedure, respectively art. 19 para. (5) of the new code which states that “Reparation of material and moral damage is made in accordance with the provisions of civil law.” In our case, the Fiscal Procedure Code regarding the establishment of the fiscal claim by fiscal inspection obliges ONLY ANAF to establish the fiscal claim, the experts not having these legal attributions, within the terms given by art. 110. This aspect shows that besides the criminal aspect, regarding to the “existence of the criminal act, of the person who committed it and of its guilt”, which is the strict prerogative of the prosecutor, there is the civil side that must be judged strictly according to the civil law. Or the biggest blunder in the criminal investigation is precisely the interference of the prosecutor in the fiscal aspects.

Or this is the sensitivity of the practice in the Romanian system. Assuming a final administrative sanction / a final civil procedure on the civil side, it is up to the criminal body, based on the evidence on the civil side, to determine the existence of the deed and the person who committed it. The error I see in many cases is the focus on the “big fish,” as the real beneficiary of the crime, with the release of the “little fish,” the instrument that committed the crime. When we are faced with a tax evasion, passed through various methods, the role of the criminal body is not to focus on the tax procedure, but on “the existence of the criminal act, the person who committed it and its guilt.” What do I mean? Fiscal VAT was fraudulent, the criminal committed a crime of money laundering, identity theft, the creation of a circuit, in which the “little fish” had a role, rarely punished, the carrier, the withdrawal of money, the signing of documents, invoices, contracts, false receipts, the establishment of ghost companies.

The res judicata authority is not between the civil and the criminal side, but it is ONLY on the civil side, which can no longer be changed, so we can no longer have criminal damage and according to art. 9 (5) of the Criminal Procedure Code. This does not mean that there are no other adjacent crimes. What do you think about the income tax from the crime? Was it paid? No. But it is a complementary product of crime. The real beneficiary may get away with VAT, but he cannot get rid of the illicit origin, that radically changed his standard of living, which is in itself a separate procedure.

The fundamental legal problem in the coexistence of criminal and civil liability is the non-existence of situations in which the principles of legal security / ne bis in idem appear, for one of the responsibilities that annuls the other.

For both paragraphs of Art. 28 of the Criminal Procedure Code, the existence of the criminal act and of the person who committed it has a res judicata authority before the civil court, but has no res judicata authority for the criminal court, when the civil side was first tried. It also adds guilt to the person. It follows that for the civil court has no authority to judge the guilt of the person regarding the existence of damage as a result of the wrongful act, if the criminal side was tried first, but if the civil court has already judged the case, the trial authority and / or the prescription damage, I can no longer change the judgment, otherwise the principle of legal certainty would be violated.

Paragraph (1): The final decision of the criminal court does NOT have the authority of res judicata, regarding the establishment of the fiscal claim, which is made ONLY according to art. 14 para. (3) lit. a) of the Old Code of Criminal Procedure, respectively art. 19 para. (5) of the new code which states that “Reparation of material and moral damage is made in accordance with the provisions of civil law.”

In the last 10 years, we new accountants have retrained as forensic experts / tax consultants / forensic tax consultants and we have been subjected to heavy artillery from the PROSECUTOR’S OFFICE, so we specialize in phantom companies, chain trading, etc.

Specifically, in order to demonstrate the reasoning, we took the case of some deregistered companies analyzed on an alleged transactional chain, P1-P2-P3 (in fact, transactions without commercial connection P2-P1 and P2-P3, but likely to ensure P2 evasion of tax obligations carried out in relation to P1, in a fiscal-criminal and insolvency case, in which the hierarchical order is that of SPECIAL Law 85/2006, which includes the voluntary liquidation procedures, which in turn include both the fiscal verification procedures given by the Tax Code / Tax Procedure Code, respectively the tax inspection, as well as the contestation procedures given by the Litigation Law, but also the procedures for opposing the voluntary liquidation of the P2 intermediary companies and for attracting the liability of their administrators.

The Fiscal Procedure Code regarding the establishment of the fiscal receivable, through fiscal inspection obliges ONLY ANAF, to establish the fiscal receivable (the prosecutor’s office experts not having these legal attributions), within the terms given by art. 110 CPF. This aspect shows that besides the criminal aspect, regarding the “existence of the criminal act, of the person who committed it and of its guilt”, which is the strict prerogative of the prosecutor, there is the civil side that must be judged strictly according to the civil law.

A constitutional aspect is the one related to the prescription on the civil side of 5 years for determining the fiscal obligation, in relation to the prescription on the criminal side, of 10 years, after obtaining a court decision, which includes the contestation period and the terms to be correlated between the two procedures, which are not clearly defined by law, for example the period of keeping records according to Order 3512/2008.

On the civil side, ANAF must, pursuant to art. 20 para. (2) CPC, to be constituted as a civil party. But in case the civil action was judged in the sense that, through the voluntary liquidation of the company (DEATH), ANAF has the legal obligation to exercise its attributions given by law. Or the res judicata authority intervenes on the civil side, in the sense that it is assumed that ANAF has exercised a manifestation of will of the subject of law, a manifestation that must be materialized in a written declaration of incorporation of a civil party, written containing concrete information on “the nature and extent of the claims, reasons and evidence on which it is based.”

Or in this case, if ANAF did not oppose the voluntary liquidation or did not verify the inconsistencies given by the Report 394 between the participants in the transactions, there is no manifestation of will in the case of the deregistered companies. The criminal procedure, being CLEAR, is done ONLY according to art. 14 para. (3) lit. a) of the Old Code of Criminal Procedure, respectively art. 19 para. (5) of the new code which states that “Reparation of material and moral damage is made in accordance with the provisions of civil law.” Moreover, due to the lack of exercise of the obligations given by law to the fiscal body, on the civil side we have the impossibility to repair the damage, sent to a prosecutor, who has an impediment to recover:
– Final decisions of voluntary liquidation and deregistration, respectively the death of the companies
– Lack of fiscal inspections by prescribing them within the terms given by art. 110 CPF
– Lack of liability of administrators based on art. 138 of Law 85/2006

The opinion of the forensic expert is that the criminal body can no longer ascertain the nullity of the acts / contracts of the companies deregistered from P2 with P1 and P3, on the civil side, which are final by court decision. The state of affairs is usually omitted, being cases of phantom behavior (companies are aware of transactions, but do not declare tax) / identity theft (companies are not aware of transactions, do not declare tax), since there are no tax returns of P3 companies, for which the VAT Directive imposes an objective obligation to collect and declare VAT. Hence the demonstration of the subjective side of the theft of VAT in charge of P2, which, however, is a deregistered (DEAD) company. What will the prosecutor do to the dead man?

My colleague Mary Elsa Pârvan, a forensic expert with an exceptional power of synthesis, with whom I had the honor to sharpen my weapons in the fights between experts, had a similar opinion.

In my opinion, the analysis of the factual situation must be carried out in relation to the capacity of use of the legal person in this case, knowing that it ceases once the activity of the legal person ceases, which, as appropriate, may be by finding or declaring nullity, by merger, total division, transformation, dissolution or diestablishment or in any other way provided by the articles of association or by law. If the legal entity enters into liquidation in order to capitalize the asset and pay the liabilities, the legal person retains its civil capacity for the operations necessary for liquidation until its completion (the liquidation procedure is not initiated if the legal person ceases by merger, transformation or total division).

The conclusion / resolution of deregistration is communicated to the company at the registered office, ANAF and the general directorates of county public finances and the municipality of Bucharest electronically, is displayed on the ONRC website and at the trade register of the court in the area whose company has its registered office and is published in the Official Gazette, Part IV (or in a local newspaper, for example), by the care of the trade register, at the expense of the holder of the deregistration application, thus practices one of the functions of the trade register, that of advertising, in accordance with the provisions of art. 237, para. 9 of Law no. 31/1990, rep. and OMJ 2594 / C / 2008, annex 180. A company deregistered from the Trade Register no longer has the quality of taxpayer, reason for which it can no longer be subject to a fiscal inspection, according to the provisions of art. 94, para. (1) of the Fiscal Procedure Code, the fiscal inspection having as object the verification of the legality and conformity of the fiscal declarations, as well as of the correctness and accuracy of the fulfillment of the obligations by the taxpayers.

Also, a deregistered company no longer appears with fiscal obligations to pay in the analytical record sheet on the payer organized at the level of the fiscal administration body, an aspect that also results from the provisions of art. 176 Insolvency, para. (6) of the Tax Procedure Code, rep. (form applicable in 2010):

“(6) The fiscal receivables due by debtors, legal entities, deleted from the registers in which they were registered according to the law, shall be deducted from the analytical records on the payer after deletion, regardless of whether or not other persons were liable for payment of tax obligations. laws.”

In the same sense is the ANAF Circular no. 300121 / 08.02.2007 stating: “Considering that by the conclusion of the deregistration the legal person ceased to exist, no longer having the status of taxpayer, it can no longer be subject to tax inspection under the conditions established by art.92 of the Government Ordinance 92/2003 Regarding the fiscal procedure code with subsequent amendments and completions.”

Partial conclusions:

The marginal name of art. 11 of the Fiscal Code: “Special provisions for the application of the Tax Code” leads to the conclusion that its provisions are strictly applicable, by reference to Article 13 of the Fiscal Procedure Code which states that: “The interpretation of fiscal regulations must respect the will of the legislator as is expressed in the law. “From the corroborated analysis of the provisions of art.11, paragraph 2 of the Fiscal Code with those of art. 77, paragraph 2 of the Fiscal Procedure Code, rep. In 2005, as well as of the provisions of OPANAF no. 222/2008, we find that:

– the competent bodies for the application of the income / expenditure adjustment procedure are: “the fiscal body with competence to exercise the fiscal inspection within the territorial and central structures of the National Agency for Fiscal Administration”;

A company deregistered from the Trade Register no longer has the quality of taxpayer, reason for which it can no longer be subject to a fiscal inspection, according to the provisions of art. 94, para. (1) of the Fiscal Procedure Code, the fiscal inspection having as object the verification of the legality and conformity of the fiscal declarations, as well as of the correctness and accuracy of the fulfillment of the obligations by the taxpayers. If that taxpayer no longer exists, being deleted based on the provisions of Law 31/1990, rep. the tax inspection is no longer relevant. Also, a deregistered company no longer appears with fiscal obligations to pay in the analytical record sheet on the payer organized at the level of the fiscal administration body, an aspect that also results from the provisions of art. 176 Insolvency, para. (6) of the Fiscal Procedure Code, rep. (form applicable in 2010): “(6) The tax receivables due by debtors, legal entities, deleted from the registers in which they were registered according to the law, shall be deducted from the analytical record on the payer after deletion, regardless of whether or not the liability of others persons for the payment of fiscal obligations, in accordance with the law.”

In the end, we must mention that the criminal always makes a mistake, and this mistake must be verified by the prosecutor. From personal findings, the criminal investigation always looks for the real beneficiary instead of fully verifying the fraud, eliminates the little associates or the screen administrators, when in fact they are co-partners in crime. In the present case, the ne bis in idem principle does not cover what happens to the object of the illicit act – the distribution to the „little man” associate following the liquidation, which the real beneficiary used, as in the case of Al Capone, has a flaw – after the liquidation the real beneficiary seized the money, the wealth thus accumulated has no legal basis and leaves through various bank transfers the PROOF of the crime. Even if he has the authority of res judicata, for the product of the crime, the real beneficiary did not pay his income tax, when the „little man” partner transferred the product of the crime to him.

Certified accountant Daniel Udrescu

Related posts