anchidim zagrean

The practice of gambling in 2022

Expertise – a means of proof – in the activity of gambling

Article from the series “Gambling practice“, by Anchidim Zăgrean, president of ROMBET

It is already certain that gambling activity will take place in 2022 in conditions of health crisis, including the consequences already known, generated by the adoption of state measures to restrict fundamental economic rights and freedoms. We also know that in the coming period there will be a series of forced actions by state institutions aimed at bringing as much money as possible to the state treasury, in a desperate attempt to rebalance the ratio between diminished budgetary sources and additional expenditures generated during the states urgency and alert. In this regard, in order to protect their economic interests and to reduce or limit excesses in the control activity, often beyond the legal limit, gambling organizers have the opportunity to use expertise to use them as evidence, in order to neutralize the administrative acts of the ONJN, the fiscal administrative acts of the tax authorities, as well as in the case of civil or criminal actions carried out by the state authorities and which enjoy, in principle, the presumption of legality.

In order to establish the conditions, as well as the modalities, of using the expertise as a means of proof, in the practice of gambling, it is absolutely necessary to deepen and know the legal procedures as well as the applicable legal norms, as they are treated in the Code of Civil Procedure or in the Code of Criminal Procedure as well as in the Code of Fiscal Procedure.

In the Code of Civil Procedure we find that the proof of a legal act or fact can be made through an expert report, when in order to clarify certain factual circumstances, the court considers it necessary to know the opinion of specialists and can therefore appoint, at the request of the parties or ex officio, one or 3 experts. Of course, by the fact that the activity of gambling is organized and operated on the basis of special regulations, not part of the common activities, generally known, it is absolutely natural and especially necessary to be able to use this means of proof to establish and prove fact or activity and the reasoned findings and conclusions must be recorded in the expert report. Experts elected by the parties and approved by the court may participate in carrying out these expertises, having the capacity of advisers of the parties who may give relations, formulate questions and observations and, if necessary, draw up a separate report on the objectives of the expertise.

The Code of Criminal Procedure also establishes that when an expert’s opinion is required to ascertain, clarify or evaluate certain facts or circumstances that are important for finding out the truth and in question.

The Code of Fiscal Procedure, as a consequence of the necessities and common practice, has a wide range of rules, in all that it means to establish evidence, emphasizing that evidence is made up of any element that serves to establish a tax situation, including audio-video recordings, data and information in any storage medium, as well as other material evidence that is not prohibited by law. In order to determine the fiscal state of affairs, the fiscal body, in accordance with the law, administers means of proof, being able to proceed among others, to request expertise whenever it deems necessary, to resort to the services of an expert for drawing up an expertise being obliged to communicate the name of the expert to the taxpayer and the latter may appoint an expert at his own expense.

The required expertise, in order to constitute evidence, is made by drawing up a written report and “the evaluation of evidence is governed by the principle of free assessment, according to which the judicial bodies have the right to freely assess both the value of each evidence administered (in relation to the others), regardless of the procedural phase in which they were administered, as well as their credibility. The evidence does not have an a priori value established by the legislator, their importance resulting from their assessment by the judicial bodies in the context of the analysis of all the evidentiary material administered in the case” as established by the Constitutional Court by Decision no. 87/2019.

In this respect, it should be noted that the principle that should guide the tax authority in terms of the level of burden of proof is that of correctly determining the tax situation of the taxpayer. This principle is similar to the principle of truth in the knowledge of the facts in order to prevent any error in the knowledge of the facts and the courts must persevere, by all means of proof, including by conducting an expertise.

The most important conclusion, in the practice of gambling governed by a special regulation, is that the presumptions (which are the consequences that the law or the judge draws from a known fact to establish an unknown fact), can be removed by a on the contrary, unless the law provides otherwise, respectively through an expert report, which must contain the opinion of an expert in the field. This type of evidence can only be used if it meets certain conditions regarding its legality, plausibility, relevance and conclusion. From the point of view of legality, the evidence required must be a means of proof provided by law and not prohibited by law. In terms of likelihood, the evidence requested must not contradict universally recognized natural laws.

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