Tax avoidance offense. Reasoning of the court order - Sanction. Reason for the reduction of the punishment governed by art. 10 of Law no. 241/2005. Settlement of the civil action enclosed to the criminal proceedings. Maintenance of the distraint

DREPT PENAL ȘI DREPT PROCESUAL PENAL

Abstract

1. The reasoning of the court order should be relevant, complete, substantiated, homogeneous, concrete, persuading and accessible. The reasoning should correspond to the parties’ claims, namely to the various heads of claim and to the means of defence. This warranty id essential, as it allows the justice seeker to ensure that his or her claims were examined and that the judge took into account. The reasoning should allow to pursue a sound premise which determined the judge to deliver certain solutions. In order to satisfy the requirements of a fair trial, the reasoning should emphasize that the judge actually examined the concrete elements of the case brought before the court. Defendants opted for the settlement of the case in the simplified procedure of recognition of their guilt, according to the provisions of art. 374 para. (4), art. 375 and art. 396 para. (10) of the Code of criminal procedure, recognizing that they committed the offenses described in the document instituting the proceedings and agreeing with the evidence on which the prosecutor based his order of bringing before justice. In such situation, the circumstance that the judge of the court of first instance chose to expose in the criminal judgment all facts acknowledged by the prosecutor in his indictment, which the defendants were charged with, cannot be equivalent to a lack of reasoning of this judgment. 

2. By reference to the new regulation in the matter of appeal, introduced by the new Code of Criminal Procedure, art. 421 para. (1) item 2 letter b of the Code of Criminal Procedure, the declaration in the appeal proceedings of the reason for relative nullity consisting of the partial lack of reasoning of the order of the court of first instance cannot represent a reason for quashing the entire judgment and remanding the case for retrial to the court having initially jurisdiction to rule the case on the merits. Such a solution does not breach the right to a fair trial, as set forth by art. 6 of the European Convention of Human Rights and constantly interpreted by the European Court. The determination of the fair nature of a criminal proceeding conducted against a defendant shall be made by taking into consideration the entire proceeding, as a whole, and this matter shall result in the following conclusion: a deficiency found at an initial stage of the proceeding may be repaired during a subsequent stage, provided that the court of judicial review has the jurisdiction necessary for deleting the invoked flaw 

3. Since the provisions of art. 10 of Law no. 241/2005 are a benefit for an agreement on the law for the defendant, and not parties claiming damages, any doubt relating to the amount of claims of the party claiming damages will always take advantage to the defendant expressing his availability to pay the claims to the party claiming damages. The party claiming damages shall be required to exactly indicate in terms of the civil side the claims which it has from the defendant, and in the event that the party claiming damages does not fulfil this obligation, during the entire criminal prosecution proceeding, the prosecutor shall be required to clarify the amount of the claims belonging to the party claiming damages, and during the trial, such an obligation shall be incumbent on the court, however, only until the first hearing date. The notion of “claims of the party claiming damage” used by the legislator in the light of art. 10 of Law no. 241/2005 is not identical to the notion of damage caused as a result of the defendant committing either of the tax avoidance crimes provided for under art. 8 and 9 of Law no. 241/2005. Under the circumstances in which the defendant intends to take advantage of the benefit granted under art. 10 of Law no. 241/2005 and expressed his intent, that during the period defined in the hereinabove mentioned legal provisions, to pay the claims to the party claiming damages, the later shall be required to clearly, completely and accurately indicate the amount of claims so that the defendant be able to make the voluntary payment of the damage. If the party claiming damage is not able to exactly indicate the amount of the accessory tax obligations related to the main debt arising from the tax avoidance crimes committed by the above-mentioned defendants, this issue cannot be deemed as an impediment for the application of the provisions of art. 10 of Law no. 241/2005. In such a case, the hereinabove mentioned provisions shall be upheld in favour either of the defendants, if the pay the amount of claims to the party claiming damages being of a certain, precise and determined nature. Since the provisions of art. 10 of Law no. 241/2005 are a benefit for an agreement on the law for the defendant, and not parties claiming damages, any doubt relating to the amount of claims of the party claiming damages will always take advantage to the defendant expressing his availability to pay the claims to the party claiming damages.

4. Each director might benefit from the provisions of art. 10 para. (1) of Law no. 241/2005, if each of them paid the claims to the party claiming damages determined pro rata with their number. If the interpretation that the payment in full of the claims to the party claiming damages by each defendant was acknowledged, so that each of them could benefit from the provisions of art. 10 para. (1) of Law no. 241/2005, it would come to the case in which the party claiming damages would receive the double amount of its claims, respectively an undue payment. However, such an interpretation goes beyond the legislator's will, as it is devoid of any logical basis, and it could come to certain situations which are difficult to accept in practice, in which, in the case of a solidarity between a large number of defendants charged with committing tax avoidance crimes, the party claiming damages would collect several times the equivalent value of its civil claims, just for the defendants to be able to benefit from the cause of reduction of penalty. Those defendants who will pay the full amount of claims to the party claiming damages, due to their joint efforts, shall benefit from the provisions of art. 10 para. (1) of Law no. 241/2005, and this interpretation should be made in favour of the respective defendants, and not in their disadvantage.

5. It follows from the analysis of the legal provisions laid down in the G. O. no. 6/2019, that the legislator understood to establish a special procedure of cancellation of any accessory obligations which are exclusively conducted before the relevant tax bodies, as the previously indicated legal provisions cannot be relied on during the criminal proceedings. The courts in criminal matters have no legal duty to grant any payment facilities regulated under the GO no. 6/2019, and consequently, defendants cannot request in this respect that the cancellation of certain accessory tax obligations be acknowledged, as this measure may be exclusively ordered by in the procedure regulated before the tax bodies. 

6. The defendants which have paid the damage dispose of an action for recovery against those defendants which have not paid any amount as such and which have been jointly required to pay it, however the action for recovery is settled according to the rules governed by the Civil Code and the Code of Civil Procedure, and shall not be related to the civil side of this case. Accordingly, maintaining the distraint in order to guarantee an action for recovery of the other defendants is illegal in the criminal proceedings, since the maintenance of the distraint is only ordered for those cases exhaustively provided for by art. 249 para. (1) of the Code of Criminal Procedure, for which this measure was established.