The judgment in question (Criminal Supreme Court, div. III, no. 5899/2023) arises from an appeal to the Supreme Court filed by the lawyer of a financial advisor - who had already received an administrative penalty from the Revenue Agency - against a ruling of the Trieste Court of Appeal, confirming the sentencing to one year and two months imprisonment (in addition to ancillary penalties) for the offence referred to in Article 81, second paragraph, Criminal Code, and Article 5, Legislative Decree no. 74/2000.
Applying to the Supreme Court the appellant pleaded the breach of Article 649, Code of Criminal Procedure, and Article 4, Protocol No. 7 of the ECHR “as regards the lack of reasoning on the overall proportionality of the penalties imposed”.
With this plea, the Supreme Court had the opportunity to rule once again on the matter of compliance with the ne bis in idem principle in the context of the co-existence of criminal proceedings and administrative proceedings originating from the same conduct committed by the offending taxpayer.
Before going into the heart of the matter, the Supreme Court makes a number of preliminary observations.
Firstly, it recognises that failure to submit a direct tax return is a conduct that constitutes “two different acts, that are autonomously and separately punished in both criminal and administrative proceedings”.
However, this fact - again according to the Supreme Court - “does not rule out, for the purpose of the “bis in idem” prohibition referred to in Article 4, Protocol no. 7, ECHR, that the offence charged in these proceedings can be regarded, in substantive/naturalistic terms, as the “same act” that has already been punished at administrative level”.
In fact, referring to the case at issue, it expressly recognises that failure to submit the tax return “constitutes a single material act that breaches two provisions that are subject to different penalties, just as one conduct can constitute two different offences with formal concurrence of offences”.
After making these appropriate observations, the judgment under review wisely recalls that, according to ECHR case-law, the bis in idem prohibition laid down by Article 4, Protocol no. 7, of the European Convention on Human Rights, presumes the existence of a final judgment of conviction or acquittal. This means that the right not to be punished twice extends to the right not to be prosecuted or tried twice. Furthermore, it is underlined that for the prohibition to be breached the discontinuity of the two proceedings is required.
However, this discontinuity does not exist when there is a close connection in substance and time between the two proceedings.
That said, in the case at issue the question of the connection in substance and time between the proceedings was not disputed by the appellant, and therefore there was no breach of the bis in idem prohibition.
The Supreme Court instead focused on another issue, namely that of the proportionality of the penalties, on which it stated that in the case in question “the administrative penalty threatened and actually imposed on the taxpayer clearly served as a deterrent (for what could occur) and a punishment (for what actually occurred),as it was not only imposed for the purpose of compensation/indemification of the damage caused by the taxpayer. [...] In light of the criteria indicated by the ECHR (known as the Engel criterion),the penalty is essentially of a criminal nature”.
That said, in order to determine whether or not the penalties imposed for the same historical act were proportional, in light of the application of both the administrative penalty and the criminal penalty, the Supreme Court deemed it necessary to use as criterion Article 135, Criminal Code, applying the reporting rule provided for therein which the Court believes “provides the unit of measurement for the (substantively and formally) criminal penalty applicable for the same historical act”.
According to the Supreme Court, “the criminal court cannot alter the administrative penalty that has already been irrevocably and separately imposed, but can and must take it in to account when applying the criminal penalty”. For this purpose, in order to ensure the penalty is commensurate with the act, it can take into account factors such as: the general mitigating circumstances referred to in Article 62-bis, Criminal Code, the existence of satellite offences, and the offender’s economic conditions.
Therefore having ruled out that in the case at issue the sentencing of the appellant breached the convention-based ne bis in idem principle, “the Appeal Court did not however provide a response to the plea alleging that the penalty applied was on the whole disproportionate, as it did not take into account, when determining the penalty, the administrative penalty imposed on the defendant for the same act”, thus leading the Court to annul the challenged judgment only with regard to the penalties applied.
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