Reati tributari con soglia di punibilità e applicazione dell'art. 220 disp. att. c.p.p.: la Cassazione rimarca i diritti della difesa

The verification report drawn up by the Guardia di Finanza is a non-trial related administrative document, which may be acquired and used in criminal proceedings in compliance with art. 234 of the Code of Criminal Procedure. Should any crime evidences emerge, however, it is necessary to act in accordance with the Code of Criminal Procedure, otherwise the part of the document which has been prepared following can not have probatory effectiveness, that is it can not be used in accordance with art. 191 of the Code of Criminal Procedure, without prejudice, in any case, to the different use for the purpose of tax proceeding. In particular, the violation of the provisions of the Code as usual, whose respect is required by art. 220 of the implementing provisions in order to secure the sources of proof within the framework of inspection and surveillance activities, may cause the probatory results to be unusable. Waiting for the results of the verification so as to assess the possible criminal liability threshold to be exceeded would mean that tax crimes which provide for that threshold should never require the modalities as in the Code of Criminal Procedure. According to the Supreme Court, such a position is not acceptable because it avoids legal obligations, by breaking the defence right and principles of a fair trial.