THIRD SECTION
Application no. 47764/09
Vladimir STADNITCHI
against the Republic of Moldova
lodged on 18 June 2009
STATEMENT OF FACTS
1. The applicant, Mr Vladimir Stadnițchi, is a Moldovan national, who was born in 1976 and lives in Ghindeşti.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant registered an individual enterprise (întreprindere individuală) to run a small grocery shop.
4. On 20 September 2007 the Florești Tax Office run a control at the grocery shop and, as a result, drafted report no. 0184955 and act of control no. 361626 on the applicant’s failure to register all cash in the cash register, which read as follows:
“On 20 September 2007 [the applicant] while selling food stuff did not use the cash register and did not register the entry of 144.50 MDL, contrary to the provisions of Government Decree no. 474 of 28.04.1998 on the use of cash registers for cash operations.”
The report cited the violation of Article 152/9 (4) of the Code of Administrative Offences, while the act cited the violation of Article 8 (2) (c) of the Tax Code.
5. On 25 September 2007 the applicant contested the report and the act before the Chief of the Florești Tax Office. His complaint was dismissed as ill-founded.
1. Proceedings according to the Code of Administrative Offences
6. On 1 October 2007 the Chief of the Florești Tax Office adopted Decision no. 344 and found the applicant guilty of an offence under Article 152/9 (4) of the Code of Administrative Offences on the basis of the facts presented in the report of 20 September 2007:
“In the shop [the applicant] did not use the cash register and did not register the amount of 144.50 MDL, which infringes Government Decree no. 474 of 28.04.1998 ... and Article 8 (2) (c) of the Tax Code”.
The applicant was sentenced to a fine of 200 MDL (12.5 EUR).
7. The applicant paid the fine the same day and did not appeal Decision no. 344.
2. Proceedings according to the Tax Code
8. On 9 October 2007 the Chief of the Florești Tax Office adopted Decision no. 1264 and found the applicant’s individual enterprise guilty of an offence under Article 254 (2) of the Tax Code:
“... having examined the act no. 361626 of 20 September 2007, we have found contrary to the Regulation on the use of cash registers of 24 July 1998 and p. 1 of the Government Decree no. 474 of 28.04.1998 [...] the taxpayer exercised entrepreneurial activity without using the cash register”.
The applicant was sentenced to a fine of 6,000 MDL (370 EUR).
9. At an unknown date the applicant appealed Decision no. 1264, arguing that it imposed a fine for an offence for which he had been previously punished. He asked the annulment of the decision and compensation for non-pecuniary damage.
10. On 19 December 2008 the Florești District Court dismissed the applicant’s claims as ill-founded. The court noted inter alia:
“In regard to the argument about double sanction imposed onto [the applicant], the court concludes that in one case the sanction concerns the administrator of the individual enterprise, who is [the applicant], under the Code of Administrative Offences. In the other case the sanction refers to the individual enterprise itself under the Tax Code.”
11. On 19 January 2009 the applicant appealed the judgment of the Florești District Court of 19 December 2008. Relying on domestic law, he argued inter alia that the liability of the individual registered as entrepreneur and of the individual enterprise itself was indivisible. Therefore he concluded that the sanction imposed on the individual enterprise and on him as its founder and administrator amounted to a double sanction.
12. On 17 March 2009 the Bălți Court of Appeal dismissed the applicant’s appeal and upheld the first-instance judgment, reiterating its argument about the distinction between the persons concerned by the sanctions. This judgment is final.
B. Relevant domestic law
13. According to Article 14 of the Law on entrepreneurship and enterprises no. 845-XII of 3 January 1992, as worded at the time of events, an individual enterprise was the enterprise privately owned by a natural person. The individual enterprise was not a legal entity and it acted in legal relations as the natural person who registered it. The assets of the individual enterprise were inseparable from the personal assets of the entrepreneur.
14. The Tax Code read at the time of events as follows:
“Article 5. General definitions
1) Person – any legal entity or natural person;
2) Taxpayer, taxation subject – the person which, under tax legislation is obliged to calculate and/or to pay to the state budget any taxes, penalties and fines ...;
3) Natural person:
a) the citizen of the Republic of Moldova, ...;
b) the organizational form with the status of natural person, including the individual entrepreneur ...
Article 8. Rights and obligations of the taxpayer
... (2) The taxpayer is obliged:
c) ... to cash in money by means of systems and machines for cash registration, following the rules instituted by the Government ...
Article 254. Failure to use cash registers
... (2) The exercise of any activity without the use of existent cash registers, ... when their use is mandatory, shall be sanctioned with a fine of up to 10,000 MDL for each infringement.”
15. The Code of Administrative Offences, in force at the time of events, read as follows:
“Article 1529. Infringement of rules on the use of cash registers
... (4) All cash transactions with customers without using the cash register ... shall entail a fine from 10 to 50 units.”
COMPLAINT
16. The applicant complains under Article 4 of Protocol No. 7 to the Convention that he was sanctioned twice for the same offence.
QUESTION TO THE PARTIES
Has the applicant been punished twice for the same offence in the territory of the respondent State, as prohibited by Article 4 § 1 of Protocol No. 7?
In particular:
(a) did the application of fiscal sanctions upheld by domestic courts on 17 March 2009 amount to a repeated punishment for the same acts in respect of which the decision to impose an administrative fine had been adopted?
(b) if so, did the proceedings fall within the exceptions envisaged by Article 4 § 2 of Protocol No. 7?
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