The practice of gambling in 2024
Expertise – means of evidence in gambling activity – for the implementation of the provisions introduced by law 107 of 2024
Article from the series “Gambling Practice“, by Anchidim Zăgrean, FedBet Vice President and President of ROMBET
It is already a certainty that the activity of gambling, such as slot machines and video lottery games, will take place in 2024 in conditions of deep crisis, including consequences of the type of “underground economy”, generated by the adoption of the provisions introduced by law 107 of 2024, for restricting some fundamental economic rights and freedoms. We also know that in the coming period there will be a series of forceful actions by the state institutions aimed at bringing as much money as possible into the state treasury, in a desperate attempt to rebalance the ratio between the diminished budgetary sources and the additional expenses generated by the implementation of these new provisions. In this sense, for the defense of own economic interests and for the reduction or limitation of some excesses in the control activity, most of the time above the legal limit, the organizers of gambling, in this field, have the possibility to call for the performance of expertise, in order to use them as means of proof, in order to neutralize the administrative acts of ONJN, the fiscal administrative acts of the tax authorities, as well as in the case of civil actions or criminal offenses 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 methods, for the use of expertise, as a means of evidence 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 Civil Procedure Code we find the fact that the proof of a legal act or a fact can also be done through an expert report, when in order to clarify some factual circumstances, the court considers it necessary to know the opinion of some specialists and therefore can appoint, at the request of the parties or ex officio, one or 3 experts. Of course, by the fact that gambling activity is organized and exploited on the basis of special regulations, not being part of common, generally known activities, it is absolutely natural and especially necessary to be able to appeal to the use of this means of evidence, to establish and prove a fact or a activities and the findings and reasoned conclusions must be recorded in the expert report. Experts chosen by the parties and approved by the court may participate in the performance of these expertise, having the capacity of advisers to the parties who can give relations, formulate questions and observations and, if necessary, draw up a separate report regarding the objectives of the expertise.
The Criminal Procedure Code also establishes the fact that when an expert’s opinion is necessary for the ascertainment, clarification or evaluation of facts or circumstances that are important for finding out the truth, an expert opinion is ordered.
The Fiscal Procedure Code, as a consequence of the needs and the usual practice, has a wide range of rules, in all that it means the establishment of evidence, emphasizing the fact that an evidence is constituted by any element that serves to ascertain a fiscal state of facts, including audio-video recordings, data and information in any storage medium, as well as other material means of evidence and which are not prohibited by law. In order to determine the fiscal state of facts, the fiscal body, under the law, administers evidence, being able, among other things, to request expertise whenever it deems necessary, to call on the services of an expert for the preparation of an expertise, being obliged to communicate to the taxpayer the name of the expert and the latter can appoint an expert at his own expense.
The requested expertise, in order to constitute a means of proof, is carried out by drawing up a written report again “the evaluation of evidence is governed by the principle of free appreciation, according to which the judicial bodies have the right to freely appreciate both the value of each piece of evidence administered (in relation to the others), regardless of the procedural phase in which it was 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 sense, it should be noted that the principle that must guide the fiscal body regarding the level of the 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 to prevent any mistake in the knowledge of the facts and the courts must insist, by all means of evidence, including by conducting an expert opinion.
The most important conclusion in gambling practice, 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 contrary, if the law does not provide otherwise, respectively by 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 conclusiveness. From the point of view of legality, the evidence requested must constitute a means of proof provided by law and not prohibited by law. In terms of plausibility, the evidence requested must not contradict universally recognized natural laws.
We’ll be back with other opinions in the next issue of the magazine…
