SENTENCIA TS 12-05-2022 Y SOPORTES ELECTRÓNICOS INDEBIDAMENTE OBTENIDOS (I)

AUTO DEL TS DE 16-02-2022 (DERIVACIÓN DE RESPONSABILIDAD TRIBUTARIA Y "BIS IN IDEM")

 https://www.poderjudicial.es/search/AN/openDocument/bfc225e635e7bc1d/20220224

• ECLI:ES:TS:2022:1920A 
 
• Sala de lo Contencioso 
 
• Municipio: Madrid 
 
• Ponente: MARIA DE LA ESPERANZA CORDOBA CASTROVERDE 
 
• Nº Recurso: 546/2021

RESUMEN: Resumen: Admisión. Determinar si el principio ne bis in idem, en su dimensión procedimental, permite el inicio de un segundo procedimiento de derivación de responsabilidad solidaria tras la anulación por motivos formales del primer acuerdo de derivación de responsabilidad acordada por un tribunal económico-administrativo. Por el contrario, no cabe admitir el recurso de casación en lo que se refiere a la segunda cuestión suscitada por el recurrente en su escrito de preparación (determinar si en los supuestos de declaración de responsabilidad solidaria de las deudas tributarias respecto de las que se haya declarado a un tercero responsable subsidiario se exige que los hechos determinantes puedan haberse producido en cualquier momento o, al menos, que haya sido declarada la responsabilidad al deudor subsidiario), por cuanto respecto de dicha cuestión existe ya jurisprudencia en sentido contrario al propugnado por el recurrente

CUARTO. Cuestiones en las que se entiende que existe interés casacional. Conforme a lo indicado anteriormente y, de acuerdo con lo dispuesto en el artículo 88.1 LJCA, en relación con el 90.4 de la misma norma, procede admitir a trámite este recurso de casación, al apreciar esta Sección de admisión que el mismo presenta interés casacional objetivo para la formación de jurisprudencia, respecto de la siguiente cuestión: Determinar si el principio ne bis in idem, en su dimensión procedimental, permite el inicio de un segundo procedimiento de derivación de responsabilidad solidaria tras la anulación por motivos formales del primer acuerdo de derivación de responsabilidad acordada por un tribunal económico-administrativo. 

QUINTO. Justificación suficiente de que el recurso planteado cuenta con interés casacional objetivo para la formación de la jurisprudencia. 

1. Esta cuestión presenta interés casacional objetivo para la formación de jurisprudencia ya que puede afectar a un gran número de situaciones [ artículo 88.2.c) LJCA], lo que hace conveniente un pronunciamiento del Tribunal Supremo que la esclarezca, en beneficio de la seguridad jurídica y de la consecución de la igualdad en la aplicación judicial del Derecho ( artículos 9.3 y 14 CE). 

2. Es cierto que nos hallamos ante una cuestión que, en términos generales, no es totalmente nueva, ya que la Sección Segunda de esta Sala Tercera del Tribunal Supremo se ha pronunciado, constantemente, sobre los requisitos exigibles para declarar la responsabilidad solidaria por las deudas contraídas con la Administración tributaria. Pero no lo es menos que hemos declarado que cabe apreciar interés casacional a fin de matizar, precisar, concretar, reforzar o, en su caso, revisar la doctrina ya existente para realidades jurídicas diferentes a las ya contempladas en la jurisprudencia referida [ vid. autos de 3 de mayo de 2017 (RCA/189/2017; ES:TS:2017:4185A) y 15 de marzo de 2017 (RRCA/91/2017, ES:TS:2017:2061A; y 93/2017, ES:TS:2017:2189A)]. 

3. Así, conviene recordar que la sentencia de 8 de noviembre de 2010 (casación 4941/2007, ES:TS:2010:6125), con cita en la de 10 de diciembre de 2008 (casación 3941/2006, ES:TS:2008:7359), atribuye naturaleza sancionadora a la derivación de responsabilidad solidaria. Del mismo modo, esta Sala en la sentencia de 25 de marzo de 2021 [(casación 3172/2019, ES:TS:2021:1158), que es citada en la de 8 de abril de 2021 (casación 1107/2020, ES:TS:2021:1375) y a la que, a su vez, se remite la de 5 de octubre de 2021 (casación 8115/2019, ES:TS:2021:3846)], se ha pronunciado sobre la responsabilidad solidaria prevista en el artículo 42.2.a) LGT, su naturaleza y fines y, en concreto, sobre si cabe exigirla a un menor de edad, en aquellos supuestos en que la actuación que se le impute lo sea como causante o colaborador en la ocultación o transmisión de bienes, lo que constituye el hecho determinante de su responsabilidad solidaria. Además, en sentencia de 6 de junio de 2014 (casación 560/2012, ES:TS:2014:2619), ha declarado que la naturaleza del procedimiento para exigir la responsabilidad tributaria es un procedimiento declarativo conducente a la emisión de un acto administrativo en que se declara la responsabilidad, se cuantifica la misma y se le exige al responsable, habilitándole un periodo voluntario para su ingreso. 

4. En particular, se ha de señalar que la Sección de Enjuiciamiento ya se ha pronunciado en cuanto a la aplicación del principio non bis in idem en supuestos de derivación de responsabilidad solidaria, desde su dimensión material. En efecto, en las sentencias (5) de 17 de septiembre de 2020 [casación 325/2019 (ES:TS:2020:2871), 162/2019 (ES:TS:2020:2862), 665/2019 (ES:TS:2020:2861), 7714/2018 (ES:TS:2020:2880) y 193/2019 (ES:TS:2020:2878)] y 25 de marzo de 2021 (casación 2983/2019, ES:TS:2021:1369) interpreta la aplicación del principio non bis ídem en relación con la posibilidad de que un contribuyente, sancionado por las infracciones tipificadas en los artículos 194.1 y 195.1 LGT, sea declarado responsable solidario, ex artículo 42.1.a) LGT, respecto de la sanción impuesta a otro contribuyente como autor de una infracción muy grave prevista en los apartados 1 y 3 del artículo 201 LGT, cuando el tipo de la infracción cometida por el primer contribuyente implica el uso de las facturas o documentos sustitutivos con datos falseados, emitidas por el segundo de los contribuyentes, cuya responsabilidad solidaria se deriva. 

5. Por otra parte, es preciso indicar que la jurisprudencia de esta Sala permite el reinicio de las actuaciones anuladas previamente en vía de reclamación económico-administrativa o judicial, salvo en los casos de nulidad de pleno derecho. La sentencia de 29 de junio de 2015 (casación 723/2014, ES:TS:2015:2875) recuerda así que, una vez anulada una liquidación tributaria, cabe aprobar otra nueva en su sustitución, si no se ha producido la prescripción, garantizando en todo caso los derechos de defensa del administrado y rehuyendo la reformatio in peius, matizando la sentencia de 15 de junio de 2015 (casación 1551/2014, ES:TS:2015:2692) la posibilidad de dictar una nueva liquidación en atención a la causa que determina la anulación, de fondo o de forma, de modo que sólo cabe retrotraer actuaciones y practicar nuevas diligencias en el procedimiento para dictar otra liquidación, si la anulación ha tenido lugar por defectos formales que hayan causado indefensión al administrado. En concreto, en la sentencia de 26 de marzo de 2015 (casación para unificación de doctrina 1500/2013, ES:TS:2015:1790), con cita en la sentencia de 29 de septiembre de 2014 (casación para unificación de doctrina 1014/2013, ES:TS:2014:3816) se aborda la posibilidad de que, anulado un acto de liquidación, la Administración tributaria pueda dictar otro nuevo, señalando, en cuanto ahora interesa, que "Cuando el acto tributario sea sancionador, no cabe la posibilidad de, una vez anulada la sanción, imponer una nueva. Chocaría con el principio "ne bis in idem"". Este criterio se recoge, igualmente, en la sentencia de 27 de enero de 2016 (casación para unificación de doctrina 3735/2014, ES:TS:2016:150), donde, tras citar la sentencia de 26 de marzo de 2012 [(casación 5827/2009, ES:TS:2012:2104), que indica que "[...] la retroacción de actuaciones constituye un instrumento para reparar quiebras procedimentales que hayan causado indefensión al obligado tributario, de modo que resulte menester desandar el camino para practicarlo de nuevo, reparando la lesión; se trata de subsanar defectos o vicios formales", y se declara que: "Únicamente en el ámbito sancionador sería imposible reproducir el camino para volver a castigar, pues hacerlo contravendría el principio ne bis in idem en su dimensión procedimental". 

CON ARREGLO A LOS CRITERIOS "ENGEL" (TEDH) Y A LOS SUPUESTOS DETERMINANTES DE LA  DERIVACIÓN DE LA REPONSABILIDAD PARECE CLARO QUE LA MISMA TIENE NATURALEZA SANCIONADORA (RESPONSABILIDAD POR DEUDA TRIBUTARIA AJENA DERIVADA DE UNA CONDUCTA CONSIDERADA INDEBIDA Y SANCIONADA DE ESTA FORMA) Y ESTARÍA PROTEGIDA POR LA PROHIBICIÓN DEL "BIS IN IDEM". TAMBIÉN EN EL SENTIDO DEL ARTICULO 4 DEL PROTOCOLO 7 DEL CONVENIO EUROPEO DE DERECHOS HUMANOS:

1. Nadie podrá ser inculpado o sancionado penalmente por un órgano jurisdiccional del mismo Estado, por una infracción de la que ya hubiere sido anteriormente absuelto o condenado en virtud de sentencia definitiva conforme a la ley y al procedimiento penal de ese Estado.

SOBRE LA VALIDEZ DE LAS PROVIDENCIAS DE APREMIO TRIBUTARIAS NOTIFICADAS POR (IN) COMPARECENCIA

LA STC 97/2019 Y LA LISTA FALCIANI

EL TEDH Y EL "BIS IN IDEM" TRIBUTARIO

Guide on Article 4 of Protocol No. 7

to the European Convention

on Human Rights

Right not to be tried or

punished twice

Updated on 30 April 2019

A.    General Principles

6. As noted in the Explanatory Report to the Protocol, § 32, Article 4 only applies to “criminal proceedings”. Consequently, it does not prevent the person from being subject, for the same act, to action of a different character (for example, disciplinary action against an official) as well as to criminal proceedings.

7. However, the Court has held that the legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of the principle of non bis in idem under Article 4 § 1 of Protocol No. 7. Otherwise, the application of this provision would be left to the discretion of the Contracting States to a degree that might lead to results incompatible with the object and purpose of the Convention (Sergey Zolotukhin v. Russia [GC], § 52 2). It has held that the notion of “criminal procedure” in the text of Article 4 of Protocol No. 7 must be interpreted in the light of the general principles concerning the corresponding words ”criminal charge” and “penalty” in Articles 6 and 7 of the Convention, respectively3. The Court’s established case-law sets out three criteria, commonly known as the “Engel criteria” (Engel and Others v. the Netherlands), to be considered in determining whether or not there was a “criminal charge” (Sergey Zolotukhin v. Russia [GC], § 53). For the consistency of interpretation of the Convention taken as a whole, the Court finds it appropriate for the applicability of the principle of ne bis in idem to be governed by the same criteria as in Engel (A and B v. Norway [GC], §§ 105-107). The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. This, however, does not rule out a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (Sergey Zolotukhin v. Russia, § 53, Jussila v. Finland [GC], §§ 30-31).

8. If the first or second set of proceedings is not considered “criminal” or “penal” by the Court, the complaint under Article 4 of Protocol No. 7 will normally be declared inadmissible as being incompatible ratione materiae within the meaning of Article 35 § 3 of the Convention (see, by way of example, Paksas v. Lithuania [GC], § 69, Seražin v. Croatia (dec.), §§ 91-92).

B. Examples

·         Tax surcharges

10. The Court has found in several judgments that the proceedings for imposition of tax surcharges were “criminal” for the purposes of Article 4 of Protocol No. 7 (inter alia, Manasson v. Sweden (dec.), Rosenquist v. Sweden (dec.), Pirttimäki v. Finland, §§ 45-48, Lucky Dev v. Sweden, § 51). This view was recently confirmed in A and B v. Norway [GC], §§ 136-139, and in Johannesson and others v. Iceland, § 43).

(…)

III. Whether both proceedings were “criminal” or “penal” in nature Article 4 § 1 of Protocol No. 7

·         Administrative proceedings and penalties

15. In Ruotsalainen v. Finland, §§ 41-47, the applicant was stopped by the police during a road check and was found to be driving with more leniently taxed fuel than the diesel oil his van should have been running on. Summary penal order proceedings were brought against him and he was fined for petty tax fraud. It was also noted that, the applicant having admitted to refuelling the van himself, there had been a notion of intent behind his offence. Administrative proceedings were also brought against him and he was charged the difference in tax. It was found that he had used his van with fuel more leniently taxed than diesel oil and that, as he had failed to give the Vehicle Administration or Customs prior notification of that usage, the normal difference in tax charge was trebled. The Court noted that the applicant was fined in summary penal order proceedings which were classified as “criminal” in Finnish legislation. Subsequently, the applicant was issued with a fuel fee debit in administrative proceedings that were not classified as criminal but as part of the fiscal regime. The Court noted that the relevant provision was directed towards all citizens rather than towards a group possessing a special status. As the collected fuel fee was trebled the Court held that it was to be seen as punishment to deter re-offending. Consequently, the Court concluded that the nature of the offence was such as to bring the issuing of the fuel fee debit within the ambit of “penal procedure”.

16. In Grande Stevens and Others v. Italy, §§ 94-101 and § 222, the Court found that heavy administrative fines imposed on the applicants by the financial markets regulator were also “criminal” for the purposes of both Article 6 and Article 4 of Protocol No. 7. The Court also found that Italy’s reservation to the effect that Article 4 of Protocol No. 7 applied only to offences classified as criminal under Italian law was not valid under the Convention, since it was too general and did not refer to the specific provisions of the Italian legal order which excluded offences from the scope of Article 4 of Protocol No. 7 (§§ 204-211).

IV. Whether the proceedings concerned the “same offence” (idem)

A. General Principles

20. The non bis in idem principle prohibits prosecution or trial for the “same offence”. In Sergey Zolotukhin v. Russia [GC] the Court acknowledged that it had adopted a variety of approaches in the past, placing the emphasis either on identity of the facts irrespective of their legal characterisation (the “same conduct”, idem factum, Gradinger v. Austria, § 55), on the legal classification, accepting that the same facts could give rise to different offences (“concours ideal d’infractions”, see Oliveira v. Switzerland, §§ 25-29), or on the existence or otherwise of “essential elements” common to both offences (Franz Fischer v. Austria). After examining the scope of the right not to be tried and punished twice as set forth in other international instruments (International Covenant on Civil and Political Rights, Charter of Fundamental Rights of the European Union and American Convention on Human Rights) and noting that the approach which emphasised the legal characterisation of the two offences was too restrictive on the rights of the individual, the Court took the view that Article 4 of Protocol No. 7 should be understood as prohibiting the prosecution or trial of an individual for a second “offence” in so far as it arose from identical facts or facts which were “substantially” the same as those underlying the first offence (§§ 79-82; see also A and B v. Norway [GC], § 108). The starting point for the determination of whether the facts in both proceedings were identical or substantially the same should be the statements of fact concerning both the offence for which the applicant had already been tried and the offence of which he or she stands accused (§ 83). The Court emphasised that it was irrelevant which parts of the new charges were eventually upheld or dismissed in the subsequent proceedings, because Article 4 of Protocol No. 7 contains a safeguard against being tried or being liable to be tried again in new proceedings rather than a prohibition on a second conviction or acquittal. It held that its inquiry should therefore focus on those facts which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space, the existence of which must be demonstrated in order to secure a conviction or institute criminal proceedings (§§ 83-84).

B. Examples

21. The principles established in Sergey Zolotukhin v. Russia [GC] have subsequently been applied in a number of other cases.

22. In Ruotsalainen v. Finland, the Court noted that the facts behind both sets of proceedings against the applicant had essentially been the same: they both concerned the use of more leniently taxed fuel than diesel oil. The only difference had been the notion of intent in the first set of proceedings. Consequently, the Court held that the second sanction had arisen from the same facts as the former and there had therefore been a duplication of proceedings in violation of Article 4 of Protocol No. 7 (§§ 50-57).

(…)

25. A number of cases concern applicants who have been subject to criminal proceedings concerning tax- and bookkeeping crimes and also proceedings concerning tax surcharges. In Pirttimäki v. Finland the tax authorities, following an inspection, considered that the applicant had received disguised dividends from a company in which he held shares. Additional taxes and tax surcharges were imposed on the applicant. Furthermore, additional taxes and tax surcharges were also imposed on the company in which he held shares. Subsequently, the applicant was convicted, on the company’s count, of an accounting offence, for having introduced incorrect and misleading information in the company’s bookkeeping, and of aggravated tax fraud. The Court noted that the first two sets of proceedings arose from the fact that the company as well as the applicant, in his personal taxation declaration, had failed to declare some income for certain tax years. In the second set of proceedings the applicant was accused, as a representative of the company, of aggravated tax fraud for having given incorrect information on behalf of the company to the tax authorities during a certain time period. The two sets of proceedings which were relevant were thus the taxation proceedings against the applicant as well as the criminal proceedings. The Court found that the two sets of facts were different, noting that the legal entities involved in these proceedings were not the same: in the first set of proceedings it was the applicant and in the second set of proceedings the company. It observed that the circumstances were not the same: making a tax declaration in respect of personal taxation differed from making a tax declaration for a company as these declarations were made in different forms, they may have been made at a different point of time and, in the case of the company, may also have involved other persons. The Court therefore concluded that the two impugned sets of proceedings did not constitute a single set of concrete factual circumstances arising from identical facts or facts which were substantially the same (§§ 49-52).

26. In Shibendra Dev v. Sweden (dec.) the tax authorities found that as the information supplied by the applicant in his tax return was incorrect and the revision had had to be made under a discretionary assessment procedure, given the business’s deficient accounting, he was ordered to pay tax surcharges. Criminal proceedings were initiated against him in regard to the above conduct. He was convicted of an aggravated bookkeeping offence and an aggravated tax offence. The offences concerned the same period as the above-mentioned tax decisions. The domestic court found that the bookkeeping of the restaurant business had been seriously deficient and that the applicant and his wife had been responsible for failing to account for considerable proceeds and VAT, which had involved large profits for them. The Court noted that the obligation of a businessperson to enter correct figures in the books was an obligation per se, which was not dependent on the use of bookkeeping material for the determination of tax liability. The applicant, while not having fulfilled the legal bookkeeping requirements, could later have complied with the duty to supply the tax authorities with sufficient and accurate information by, for instance, correcting the information contained in the books or by submitting other material which could adequately form the basis of a tax assessment. Accordingly the Court held that the applicant’s submission of the incorrect bookkeeping material to the tax authorities in support of the claims and statements made in his tax return and his failure to provide them with other reliable documentation on which it could base its tax assessment constituted important additional facts in the tax proceedings which did not form part of his conviction for a bookkeeping offence. In these circumstances the Court found that the two offences in question were sufficiently separate to conclude that the applicant was not punished twice for the same offence (§ 51; see also Manasson v. Sweden (dec.), Carlberg v. Sweden, §§ 69-70).

27. On the contrary, in Johannesson and Others v. Iceland, the Court noted that the applicants’ conviction and the imposition of tax surcharges were based on the same failure to declare income and that tax proceedings and the criminal proceedings concerned the same period of time and essentially the same amount of evaded taxes. Therefore, the criminal offences for which the applicants were prosecuted and convicted were the same as those for which the tax surcharges were imposed (§ 47). In brief, the idem element of the non bis in idem principle was present.

(…)

V. Whether there was a duplication of proceedings (bis)

A. The first ruling must be “final”

29. The aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings (non bis in idem principle) that have been concluded by a “final” decision. According to the Explanatory Report to Protocol No. 7, which itself refers back to the European Convention on the International Validity of Criminal Judgments, a decision is final if, according to the traditional expression, it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them (Sergey Zolotukhin v. Russia [GC], § 107). Decisions against which an ordinary appeal lies are excluded from the scope of the guarantee contained in Article 4 of Protocol No. 7 as long as the time-limit for lodging such an appeal has not expired (§ 108). On the other hand, extraordinary remedies such as a request for the reopening of the proceedings or an application for extension of the expired time-limit are not taken into account for the purposes of determining whether the proceedings have reached a final conclusion. Although these remedies represent a continuation of the first set of proceedings, the “final” nature of the decision does not depend on their being used (§ 108).

30. In Sundqvist v. Finland (dec.) the Court found that a decision by a prosecutor not to prosecute was not to be regarded as a “final” decision, in the light of the domestic law applicable. Accordingly, a subsequent decision by the Prosecutor General to prosecute the applicant and the following conviction did not amount to new proceedings falling under the sphere of Article 4 of Protocol No. 7. The Court has already held that the discontinuance of criminal proceedings by a public prosecutor does not amount to either a conviction or an acquittal, and that therefore Article 4 of Protocol No. 7 finds no application in that situation (Smirnova and Smirnova v. Russia (dec.), Harutyunyan v. Armenia (dec.), Marguš v. Croatia [GC], § 120; see also a provisional psychiatric internment ordered by the prosecutor in Horciag v. Romania (dec.)). This provision is neither applicable to the termination of criminal proceedings on the basis of an amnesty for acts which amounted to grave breaches of fundamental rights, such as war crimes against the civilian population (Marguš v. Croatia [GC], §§ 122-141). The Court has held that granting amnesty in respect of the killing and ill-treatment of civilians would run contrary to the State’s obligations under Articles 2 and 3 of the Convention. It has also noted that there is growing tendency in international law to see the granting of amnesties in respect of grave breaches of human rights as unacceptable. Therefore, bringing a fresh indictment against a person who has been granted an amnesty for these acts should not fall within the ambit of Article 4 of Protocol No. 7 (Marguš v. Croatia [GC], §§ 122-141).

B. Whether there was a new set of proceedings

31. Article 4 of Protocol No. 7 prohibits the repetition of criminal proceedings that have been concluded by a “final” decision. Article 4 of Protocol No. 7 is not only confined to the right not to be punished twice but extends also to the right not to be prosecuted or tried twice. It applies even where the individual has merely been prosecuted in proceedings that have not resulted in a conviction (Sergey Zolotukhin v. Russia [GC], §§ 110-111, in respect of an acquittal following the second set of proceedings).

32. The Court has held that Article 4 of Protocol No. 7 clearly prohibits consecutive proceedings if the first set of proceedings has already become final at the moment when the second set of proceedings is initiated (Sergey Zolotukhin v. Russia).

33. It has to be noted that, in some cases, the issue as to whether a proceedings is “final” or not is devoid of relevance if there is no real duplication of proceedings but rather a combination of proceedings considered to constitute an integrated whole (Johannesson and Others v. Iceland, § 48). In this case, the Court did not find it necessary to determine whether and when the first set of proceedings – the tax proceedings – became “final” as this circumstance did not affect the assessment of the relationship between the proceedings at stake.

34. As regards parallel proceedings, Article 4 of Protocol No. 7 does not prohibit several concurrent sets of proceedings (litis pendens). In such a situation it cannot be said that an applicant is prosecuted several times “for an offence for which he has already been finally acquitted or convicted” (Garaudy v. France (dec.)). There is no problem from the Convention point of view also when, in a situation of two parallel sets of proceedings, the second set of proceedings is discontinued after the first set of proceedings has become final (Zigarella v. Italy (dec.)). But, when no such discontinuation occurs, the Court has found that there was a duplication of proceedings in violation of Article 4 of Protocol No. 7 (Tomasović v. Croatia, §§ 29-32; Muslija v. Bosnia and Herzegovina, §§ 36-37; Nykänen v. Finland, §§ 47-54; Glantz v. Finland, §§ 57-64).

(…)

36. Tax sanctions have been examined by the Court in several cases against Finland and Sweden. (Häkkä v. Finland, Nykänen v. Finland, Glantz v. Finland, Rinas v. Finland, Österlund v. Finland, Kiiveri v. Finland and Lucky Dev v. Sweden). In these cases the Court noted that under the Finnish and Swedish systems the criminal and the administrative sanctions had been imposed by different authorities without the proceedings being in any way connected: both sets of proceedings followed their own separate course and became final independently from each other. Moreover, the Court noted that neither of the sanctions had been taken into consideration by the other court or authority in determining the severity of the sanction, nor was there any other interaction between the relevant authorities. Furthermore the Court observed that the tax surcharges had been imposed following an examination of an applicant’s conduct and his or her liability under the relevant tax legislation which was independent from the assessments made in the criminal proceedings. This, the Court held, contrasted with the Court’s earlier cases relating to driving licences, where the decision on withdrawal of the licence had been directly based on an expected or final conviction for a traffic offence and thus had not contained a separate examination of the offence or conduct at issue. Therefore, the Court concluded that there had not been a close connection, in substance and in time, between the criminal and the taxation proceedings.

37. The issue is then whether there had been a duplication of proceedings (bis). In A and B v. Norway [GC] the Court examined the Norwegian system of dual criminal and administrative proceedings regarding incorrect information submitted in tax declarations. The Court developed further the principle of “sufficiently close connection in substance and in time” between the proceedings. It held that the surest manner of ensuring compliance with Article 4 of Protocol No. 7 was the provision of a single-track procedure enabling the parallel strands of legal regulation of the activity concerned to be brought together, so that the different needs of society in responding to the offence could be addressed within the framework of a single process. Nonetheless, Article 4 of Protocol No. 7 does not exclude the conduct of dual proceedings, even to their term, provided that certain conditions are fulfilled. The respondent State must demonstrate convincingly that the dual proceedings in question have been “sufficiently closely connected in substance and in time” (§ 130). When deciding whether dual criminal and administrative proceedings are “sufficiently connected” the Court held that the material factors included (§ 132):

“- whether the different proceedings pursue complementary purposes and thus address, not only in abstracto but also in concreto, different aspects of the social misconduct involved;

- whether the duality of proceedings concerned is a foreseeable consequence, both in law and in practice, of the same impugned conduct (idem);

- whether the relevant sets of proceedings are conducted in such a manner as to avoid as far as possible any duplication in the collection as well as the assessment of the evidence, notably through adequate interaction between the various competent authorities to bring about that the establishment of facts in one set is also used in the other set;

- and, above all, whether the sanction imposed in the proceedings which become final first is taken into account in those which become final last, so as to prevent that the individual concerned is in the end made to bear an excessive burden, this latter risk being least likely to be present where there is in place an offsetting mechanism designed to ensure that the overall amount of any penalties imposed is proportionate.”

Furthermore, the Court stressed that the extent to which the administrative proceedings bear the hallmarks of ordinary criminal proceedings, inter alia its stigmatising features, was an important factor. Moreover, where the connection in substance is sufficiently strong, the requirement of a connection in time must also be satisfied. The Court held that the two sets of proceedings do not have to be conducted simultaneously from beginning to end as it should be open to States to opt for conducting the proceedings progressively in instances where doing so is motivated by interests of efficiency and the proper administration of justice, pursued for different social purposes, and has not caused the applicant to suffer disproportionate prejudice. However, the connection in time must be sufficiently close to protect the individual from being subjected to uncertainty and delay and from proceedings becoming protracted over time, even where the relevant national system provides for an “integrated” scheme separating administrative and criminal components (§ 134).

Applying these principles to the facts of the cases, the Court was satisfied that, whilst different sanctions were imposed on the applicants by two different authorities in different proceedings, there was nevertheless a sufficiently close connection between them, both in substance and in time, “to consider them as forming part of an integral scheme of sanctions under Norwegian law” for failure to provide information for their tax returns. The dual proceedings did not constitute therefore a proscribed duplication of proceedings so there had been no violation of Article 4 of Protocol No. 7 to the Convention (§§ 144-147 and 149-154).

38. On the contrary, in the case of Johannesson and Others v. Iceland, the Court found that even if the two proceedings pursued complementary purposes in addressing the issue of taxpayers’ failure to comply with the legal requirements relating to the filing of tax returns (§ 51), there was no sufficiently closed connection between them, due to the limited overlap in time and the largely independent collection and assessment of evidence (§ 55). Consequently, the applicants suffered disproportionate prejudice as a result of having been tried and punished for the same or substantially the same conduct by different authorities in two different proceedings which lacked the required connection.

TEDH GUÍA SOBRE EL DERECHO DE PROPIEDAD: ASUNTOS TRIBUTARIOS

Se reproducen a continuación los apartados de la Guía elaborada por el Tribunal Europeo de Derechos Humanos referidos a asuntos tributarios decididos por dicho Tribunal con base en el artículo 1 del Protocolo 1 del Convenio Europeo para la protección de los Derechos Humanos y Libertades Fundamentales, ratificado por España, y los enlaces a las Sentencias dictadas por el TEDH en los mismos

D. Taxation

283. Taxation is in principle an interference with the right guaranteed by the first paragraph of Article 1 of Protocol No. 1, since it deprives the person concerned of a possession, namely the amount of money which must be paid (Burden v. the United Kingdom [GC], § 59; Špaček, s.r.o., v. the Czech Republic, § 39).

284. The interference for taxation purposes is generally justified under the second paragraph of this Article, which expressly provides for an exception as regards the payment of taxes or other contributions (Gasus Dosier- und Fördertechnik GmbH v. the Netherlands, § 59).

285. The issue nonetheless comes under the Court’s purview, since the correct application of Article 1 of Protocol No. 1 is subject to its supervision (Orion-Břeclav, S.R.O. v. the Czech Republic (dec.)). A financial liability arising out of the raising of taxes may adversely affect the guarantee of ownership if it places an excessive burden on the person concerned or fundamentally interferes with his financial position (Ferretti v. Italy, Commission decision; Wasa Liv Ömsesidigt, Försäkringsbolaget Valands Pensionsstiftelse and a group of approximately 15,000 individuals v. Sweden, Commission Decision; Buffalo S.r.l. in liquidation v. Italy, § 32).

286. The State is generally allowed a wide margin of appreciation under the Convention when it comes to general measures of economic or social strategy (Wallishauser v. Austria (no. 2), § 65), as well as when framing and implementing policy in the area of taxation (“Bulves” AD v. Bulgaria, § 63; Gasus Dosier- und Fördertechnik GmbH v. the Netherlands, § 60; Stere and Others v. Romania, § 51). The Court respects the legislature’s assessment in such matters unless it is devoid of reasonable foundation (Gasus Dosier- und Fördertechnik GmbH v. the Netherlands, § 60).

287. It is first and foremost for the national authorities to decide on the type of tax or contributions they wish to levy. Decisions in this area normally involve, in addition, an assessment of political, economic and social problems which the Convention leaves to the competence of the member States, as the domestic authorities are clearly better placed than the Convention organs to assess such problems (Musa v. Austria, Commission decision; Baláž v. Slovakia (dec.); Azienda Agricola Silverfunghi S.a.s. and Others v. Italy, § 103; R.Sz. v. Hungary, §§ 38 and 46). It is also for the domestic legislature to make choices as to what may be classified as taxable income and what should be the concrete means of enforcement of tax liability (Cacciato v. Italy (dec.), § 25; Guiso and Consiglio v. Italy (dec.), § 44).

288. Delay in reimbursement of overpaid taxes amounted to a violation (Buffalo S.r.l. in liquidation v. Italy, § 39 – the Court considering that delays ranging from five to ten years had a serious impact on the applicant company’s financial situation which could not be compensated by payment of merely simple interest on the amounts due, caused uncertainty for the taxpayer and was additionally compounded by lack of any legal avenues to remedy the situation.

289. Likewise, an inability to obtain the reimbursement of overpaid tax in respect of which the domestic authorities acknowledged that it had been paid in violation of the applicable substantive law gave rise to a violation: both the negation of the applicant company’s claim against the State and the absence of domestic procedures affording a sufficient remedy to ensure the protection of the applicant company’s right to the peaceful enjoyment of its “possessions” upset the fair balance (S.A. Dangeville v. France, § 61).

290. A discrepancy between the value of property taken for the purpose of calculating compensation for expropriation and for inheritance tax led the Court to find a violation on grounds of arbitrariness (Jokela v. Finland, § 65).

291. The mere fact that tax legislation is of a retroactive character does not, as such, give rise to a violation (e.g. retroactive law to make certain transactions subject to tax (M.A. and 34 Others v. Finland (dec.)).

292. Enforcement measures in the context of tax proceedings which were not automatically suspended when a debtor appealed against them were considered acceptable and falling within the State’s wide margin of appreciation, but they must be accompanied by procedural safeguards to ensure that individuals are not put in a position where their appeals are effectively circumscribed and they are unable to protect their interests effectively. One of the important factors here is whether there was some reasonable degree of communication between the public authorities involved, allowing for protection of the taxpayers’ rights (Rousk v. Sweden, § 124).

293. The mere fact that the tax rate is very high does not per se give rise to a breach; the Court examines the applicant’ tax rate (R.Sz. v. Hungary, § 54). Taxation at a considerably higher tax rate than that in force when the revenue in question was generated could arguably be regarded as an unreasonable interference with expectations protected by Article 1 of Protocol No. 1 (M.A. and 34 Others v. Finland (dec.)).

294. However, in a case where a dismissed civil servant was obliged to pay tax on her severance pay at an overall rate of 52%, the Court found a violation on the following grounds: this rate had considerably exceeded the rate applied to all other revenues; the applicant had suffered a substantial loss of income as a result of her unemployment; and the tax had been directly deducted by the employer from the severance pay without any individualised assessment of her situation and had been imposed on income related to activities occurring prior to the material tax year (N.K.M. v. Hungary, §§ 66-74).

295. Also in the context of tax proceedings, the Court attaches importance to the availability of procedural safeguards in the relevant proceedings (compare Agosi v. the United Kingdom, § 55). Fair balance was upset in cases where the national authorities, in the absence of any indication of direct involvement by an individual or entity in fraudulent abuse of a VAT chain of supply, or knowledge thereof, nevertheless penalised the fully compliant recipient of a VAT-taxable supply for the actions or inactions of a supplier over which it had no control and in relation to which it had no means of monitoring or securing compliance (“Bulves” AD v. Bulgaria, §§ 67-71).

https://www.echr.coe.int/Documents/Guide_Art_1_Protocol_1_ENG.pdf

El artículo 1 del Protocolo 1 del Convenio Europeo de Derechos Humanos (CEDH) que reconoce el derecho al disfrute pacífico de las posesiones de una persona física o jurídica no podría, sin embargo, según la Sentencia del TribunalConstitucional 38/2011, de 28 de marzo, ser invocado en amparo y se encontraría fuera del ámbito nacional de protección jurisdiccional