COOPERATIVA AGRI.TUR. SERVIZI v. ITALY

FIRST SECTION

DECISION

Application no. 43145/18
COOPERATIVA AGRI.TUR. SERVIZI
against Italy

The European Court of Human Rights (First Section), sitting on 12 September 2024 as a Committee composed of:

 Péter Paczolay, President,
 Gilberto Felici,
 Raffaele Sabato, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 43145/18) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 4 September 2018 by an Italian cooperative, Cooperativa Agri.Tur. Servizi (“the applicant cooperative”), which was represented by Ms I. De Francesco and Mr B. De Francesco, lawyers practising in Corsano;

the decision to give notice of the complaint concerning Article 4 of Protocol No. 7 to the Convention to the Italian Government (“the Government”), represented by their Agent, Mr L. D’Ascia, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The present application concerns the alleged violation of the principle of ne bis in idem. The applicant is a cooperative that produces olive oil from olives supplied by its members.

2.  On 20 January 2009 the Revenue Police (Guardia di Finanza) issued a tax notification (processo verbale di constatazione) under Articles 2 and 3 of Law no. 898 of 23 December 1986 (Law no. 898/1986) against an olive producer (hereinafter “the main defendant”) that was a member of the applicant cooperative, in respect of an alleged fraud connected to the production of olive oil during the 2004/05 season. In particular, the main defendant was charged with having submitted fabricated documents to the domestic authorities, the most significant of which was “Form F”, a document issued by olive-oil producers to certify the productivity of the olive producers. On the basis of those documents, the main defendant had benefitted from 40,300.65 euros (EUR) in European Union (EU) funds.

3.  The same notification also accused a representative of the applicant cooperative and an intermediary of participation in the offence. The former was accused, in particular, of issuing “Form F” to the benefit of the main defendant, falsely attesting to the receipt of a supply of olives that, had they existed, would have been used to produce approximately 50,000 kg of olive oil. He was also accused of issuing invoices for non-existent transactions in order to simulate the sale of the abovementioned 50,000 kg of olive oil.

4.  In accordance with section 6 of Law no. 689 of 24 November 1981 (Law no. 689/1981), the applicant cooperative and the main defendant were considered to bear joint and several liability.

5.  The tax notification required that the accused parties return the EU funds unlawfully awarded to the main defendant and that they pay an administrative penalty of EUR 40,300.65.

6.  Following the Revenue Police’s investigations, on 25 May 2010 the Tax Administration (Agenzia delle Entrate) issued the applicant cooperative with tax assessment notice no. TVM030101498/2010 in respect of the 2005 tax year, for the counterfeit sale of non-existent 50,000 kg of olive oil (see paragraph 3 above). The applicant cooperative was charged under Articles 6 and 9 of Legislative Decree no. 471 of 18 December 1997 (Legislative Decree no. 471/1997) with issuing invoices for non-existent transactions, submitting a false VAT declaration, and fraudulent bookkeeping. It was found guilty and subsequently ordered to pay EUR 10,353.75 in tax surcharges.

7.  On 5 February 2014 the Provincial Tax Commission of Lecce delivered judgment no. 248/04/14, rejecting the appeal lodged by the applicant cooperative against the tax assessment notice. No appeal was lodged against that judgment, which became final on 5 September 2014.

8.  On an unknown date, the applicant cooperative’s representative was charged with forging public documents as a private individual, participation in fraud (for issuing the untruthful “Form F”, in the context of a request for EU funds for olive-oil production during the 2004/05 season), and submission of invoices in respect of non-existent transactions.

9.  In judgment no. 1460/14 of 23 December 2014, the Lecce District Court dismissed the charges due to the expiry of the applicable time-limit set out in the statute of limitations (non doversi procedere per intervenuta prescrizione). The judgment was not appealed and became final on 28 February 2015.

10.  In parallel with the tax and criminal proceedings, on 9 September 2010 the Department of the Central Inspectorate for Protection of Quality and Repression of Food Fraud of the Ministry of Agriculture, Food Sovereignty and Forestry issued order of injunction (ordinanza ingiunzione) no. 96/2010 against both the applicant cooperative’s representative and the applicant cooperative itself. The order of injunction required, on the grounds of joint and several liability, that the applicant cooperative pay the administrative penalty imposed by the tax notification, and referred primarily to the counterfeit simulated production and sale of 50,000 kg of non-existent olive oil (see paragraphs 3-5 above). A similar separate order of injunction was issued against the main defendant.

11.  Following the appeal against order of injunction no. 96/2010, the Lecce District Court referred the case to the Constitutional Court, requesting that it determine whether or not the administrative proceedings breached the principle of ne bis in idem, considering that the applicant cooperative’s representative had already been subject to criminal proceedings.

12.  On 8 March 2018 the Constitutional Court declared inadmissible as manifestly ill-founded the question of constitutionality raised by the Lecce District Court.

13.  The proceedings were resumed before the Lecce District Court, which, in judgment no. 4024/19 of 17 December 2019, granted the applicant cooperative’s appeal. It noted, in particular, that the domestic courts’ had already held, in a final judgment in the parallel civil proceedings against the main defendant, that the tax notification was not supported by adequate evidence. Accordingly, the cases against the applicant cooperative’s representative and the applicant cooperative were also dismissed.

14.  The applicant cooperative alleges a violation of the principle of ne bis in idem under Article 4 of Protocol No. 7 to the Convention with regard to the three sets of proceedings detailed above.

THE COURT’S ASSESSMENT

15.  As a preliminary point, the Court notes that the applicant cooperative was not charged in the criminal proceedings before the Lecce District Court, which were ended by judgment no. 1460/14 of 23 December 2014. This set of proceedings will not therefore be considered in the present decision.

16.  With regard to the tax and civil proceedings, the parties disagreed as to the existence of an idem factum, the connection between the various sets of proceedings, and whether they had been “criminal” in nature for the purposes of Article 4 of Protocol No. 7 to the Convention.

17.  The Court does not find it necessary to examine the question concerning the “criminal” nature of the two sets of proceedings or whether they concerned the same facts and conduct, since, even assuming that the nature of the offences for which the applicant cooperative was fined in the relevant sets of proceedings was such as to bring them within the ambit of the expression “penal procedure”, and even assuming that the applicant cooperative was tried twice for facts that were identical or substantially the same, the complaint is, in any event, inadmissible for the reasons set out below.

18.  The general principles for assessing whether there was a duplication of proceedings under Article 4 of Protocol No. 7 have been summarised in A and B v. Norway ([GC], nos. 24130/11 and 29758/11, §§ 117-34, 15 November 2016).

19.  In the present case, the Court accepts that the two sets of proceedings pursued complementary purposes. The purpose of the tax proceedings was to address the applicant cooperative’s failure to comply with tax obligations, while the civil proceedings were conducted with the aim of addressing fraud affecting the financial interests of the European Union. Thus, if domestic tax regulations were violated in the context of an attempt to obtain EU funds unlawfully, the initiation of separate sets of proceedings was a foreseeable consequence, both in law and in practice.

20.  As to the manner in which the two sets of proceedings were conducted, both were based on the tax notification issued on 20 January 2009 (see paragraphs 2, 6 and 10 above). It is impossible to assess the consistency of the evidence admitted in the tax proceedings and the civil proceedings since, although the Provincial Tax Commission of Lecce examined the merits of the case (see paragraph 7 above), the Lecce District Court dismissed the charges on preliminary grounds (see paragraph 13 above).

21.  Furthermore, given that the administrative penalty imposed in the civil proceedings was set aside by the domestic authorities, the penalty to which the applicant cooperative was subject (the tax surcharges) did not exceed what was strictly necessary in relation to the seriousness of the offences concerned.

22.  Turning to the connection in time between the two sets of proceedings, the Court notes that they were initiated at practically the same time, on 25 May and 9 September 2010 respectively (see paragraphs 6 and 10 above). The two sets of proceedings were then conducted in parallel for four years, until judgment no. 248/04/14 of the Provincial Tax Commission of Lecce became final, without an appeal having been lodged against it (see paragraph 7 above). The civil proceedings lasted another five years thereafter. Taking into account the referral to the Constitutional Court and the need to coordinate the civil proceedings with other analogous parallel proceedings concerning administrative penalties issued against the other participants in the alleged fraud, that five-year period cannot of itself suffice to disconnect in time the tax and the civil proceedings (see, mutatis mutandis, Bajčić v. Croatia, no. 67334/13, § 45, 8 October 2020, and Ignatić v. Croatia (dec.) [Committee], no. 53195/16, § 35, 21 September 2021).

23.  In conclusion, the Court finds no indication that the applicant cooperative suffered any disproportionate prejudice or injustice as a result of the impugned integrated legal response and that, in the circumstances of the case, the tax and the civil proceedings were sufficiently connected both in substance and in time for them to be compatible with the “bis” criterion in Article 4 of Protocol No. 7.

24.  It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 3 October 2024.

 Liv Tigerstedt Péter Paczolay
 Deputy Registrar President