CEDH · CASELAW;COMMUNICATEDCASES;ENG — 9 juillet 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } Published on 29 July 2024   FOURTH SECTION Application no. 24344/21 Adrian-Marin MITITELU and Gigel PREOTEASA against Romania lodged on 10 May 2021 communicated on 9 July 2024 SUBJECT MATTER OF THE CASE The application originated in criminal proceedings for tax evasion opened by the authorities against the applicants. The latter were administrators of the U.C. football club, who in March   2011 without the permission of the tax authorities, sold the federative playing rights of one of the club’s players. These rights were treated by the tax authorities as an “asset” and seized by them on 31   January   2011 in the context of ongoing insolvency and bankruptcy proceedings opened against the club. By a final judgment of 5   November   2020 (made available to the applicants on 16   November   2020) the Craiova Court of Appeal (“the Court of Appeal”) convicted the applicants of tax evasion and sentenced Mr   Mititelu and Mr   Preoteasa, respectively, to 3   years and 2 years and 6 months imprisonment. The applicants alleged that the criminal proceedings against them were unfair and breached their rights guaranteed by Article   6 of the Convention. In particular, the Court of Appeal’s judgment had breached the principle of legal certainty because it had ignored or contradicted the findings of other final judgments delivered by other courts – in particular those of the Bucharest Court of Appeal of 15   June 2017 and 1   February 2021, of the Brașov Court of Appeal of 18   April 2017 and of the Bucharest County Court of 25   November 2019 – to the effect that the tax authorities’ seizure of 31   January 2011 had been unlawful and that the premise for the existence of the offence the applicants were convicted of, namely the presence of an asset ( bun ) which was or could be seized lawfully, was missing. The applicants alleged further that by convicting them of the offence of tax evasion the Court of Appeal breached Article   7 of the Convention. In particular, the acts for which the applicants were convicted did not constitute a criminal offence at the time when they were committed because they did not meet the required elements of the offence of tax evasion given that (i) the federative playing rights of the club’s players was not an asset with pecuniary or non ‑ pecuniary value, (ii) the seizure imposed by the tax authorities was unlawful as the playing rights could not be seized and any form of enforcement ( executare silită ) against the club was stayed by default pending the outcome of the insolvency and bankruptcy proceedings, (iii) selling the playing rights could not be stopped by an unlawful seizure and (iv) the applicants’ action did not result in damage or dangerous consequences or a failure to honour financial obligations. Moreover, the Court of Appeal interpreted and applied the law arbitrarily and unreasonably making it impossible for the applicants to foresee at the time when they committed the alleged offence that they risked a criminal conviction. Furthermore, the penalties imposed on the applicants by the Court of Appeal exceeded the statutory limits for the sentence that could be imposed on them in the event that the damage resulting from the offence was compensated by the defendant, as laid out in Article   10   §   1 of Law no.   241/2005 on preventing and combating tax evasion and in Article   10 1 of the Criminal Code in force in March   2011, namely a fine or an administrative penalty. Lastly, relying in substance on Article   14 of the Convention taken in conjunction with Article   7, the applicants alleged that the Court of Appeal had treated them differently without an objective justification in comparison with other defendants who had compensated the damage caused by their actions because it had failed to give effect to the relevant provisions of Article   10   §   1 of Law no.   241/2005 and of Article   10 1 of the Criminal Code in force in March   2011 concerning sentencing. QUESTIONS TO THE PARTIES 1.     Did the applicants have a fair hearing in accordance with Article   6 of the Convention with regard to the determination of the criminal charge against them? In particular, did the Court of Appeal’s judgment of 5   November   2020 breach the principle of legal certainty because it allegedly ignored or contradicted the findings of other final judgments delivered by the national courts to the effect that the tax authorities’ seizure of 31   January   2011 was unlawful and that the premise for the existence of the offence the applicants were convicted of, namely the presence of an asset which was or could be seized lawfully, was missing?   2.     Was the applicants’ conviction for the offence of tax evasion compatible with the requirements of Article   7 of the Convention? In particular, were the applicants convicted for acts which did not constitute a criminal offence because their acts did not allegedly meet the required elements for the offences of which they were convicted? With regard to the interpretation and application of the national law by the Court of Appeal, was it possible for the applicants to foresee at the time when they committed the offence that they risked a criminal conviction? Furthermore, were the sentences imposed on the applicants by the Court of Appeal imposed in violation of the statutory limits required by Article   10   §   1 of Law no.   241/2005 on preventing and combating tax evasion and Article   10 1 of the Criminal Code in force in March   2011 (see Del Río Prada v.   Spain [GC], no.   42750/09, §§   77 ‑ 80, ECHR   2013)?   3.     Have the applicants suffered discrimination in the enjoyment of their Convention rights in comparison with other defendants who had compensated the damage caused by their actions because of the Court of Appeal’s alleged failure to give effect to the provisions of Article   10   §   1 of Law no.   241/2005 and of Article   10 1 of the Criminal Cod in force in March   2011 in their case? If so, was the discrimination contrary to Article   14 of the Convention, read in conjunction with Article   7?