IL DIVIETO DI BIS IN IDEM NEL SISTEMA REPRESSIVO PENALE TRIBUTARIO

The EU law and the ECHR still did not provide a clear conceptual framework for the definition of the dividing line between administrative and criminal offences. The progressive and mutual collaboration between the two European courts will evidently once again be deeply disturbed, Strasbourg going one way and Luxembourg going the other way. Furthermore, the protection of a non-derogable individual right such as ne bis in idem must not be left to the discretion of States. In a de iure condendo perspective, the surest manner of ensuring compliance with Article 4 of Protocol No. 7 is the legislative provision, at some appropriate stage, of a single-track procedure. In the meanwhile, different pronouncements by the tax and the criminal Court on the same facts, based on a different assessment of the same evidence, calls into question the authority of the State. The Italian Supreme Court is still approaching the topic with caution, worrying about the non-favorable deviation from domestic law. A comprehensive legislative solution should be the best solution; but it is still far to come.