CEDH · CASELAW;COMMUNICATEDCASES;ENG — 6 janvier 2025

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 27 January 2025   FIFTH SECTION Application no. 3844/24 CARAVELLA INVEST S.L. against Spain lodged on 22 January 2024 communicated on 6 January 2025 SUBJECT MATTER OF THE CASE The application concerns the issue of double degree of jurisdiction in proceedings regarding an administrative sanction. On 28 September 2015 the Tax Management Agency (“the tax authorities”) initiated tax inspection proceedings against the applicant company regarding its corporate income tax for the year 2011. On 18   October 2016 the applicant was fined EUR 169.759,26 for failure to pay the requisite corporate tax for 2011 following the applicant’s lack of declaration of its income for that year. The penalty amounted to 50 % of the unpaid tax. This decision was upheld by the Central Economic Administrative Court (TEAC) on 14   May 2019. The applicant company brought judicial administrative review proceedings before the Administrative Chamber of the Audiencia Nacional . By a judgment of 16   May 2022, the claim was rejected. On 5 July 2022 the applicant lodged an appeal on points of law before the Administrative Chamber of the Supreme Court, complaining, inter alia, about a violation of the right to appeal in criminal matters, following the Court’s case-law in Saquetti Iglesias v. Spain , no. 50514/13, 30 June 2020. It considered that it had had access only to one level of jurisdiction. The appeal on points of law was declared inadmissible on 15 March 2023 for lack of objective interest. The Supreme Court relied on its judgment of 20   December 2021 given in a different case in which it had established that the requirements of a second degree of jurisdiction were fulfilled by the possibility to lodge an appeal on points of law, even if this was ultimately declared inadmissible. In the Supreme Court’s view, this was so especially because the Convention and its Protocols left the system of appeal to be determined by the States. A further action for annulment was declared inadmissible by the Supreme Court on 27 April 2023. On 17 November 2023 the Constitutional Court declared the applicant’s amparo appeal inadmissible. The applicant complained that it did not have access to a second degree of jurisdiction because the regulation of the appeal on points of law in the context of administrative proceedings ( recurso de casación contencioso ‑ administrativo ) in Spain is not compatible with the requirements of Article 2 of Protocol No. 7. It argued that the tax sanction imposed on it was of a criminal nature and that the appeal on points of law could not be considered as a second instance, as far as most of the appeals on points of law were being rejected by the Supreme Court based on lack of objective interest, without any review of the element of guilt. QUESTIONS TO THE PARTIES 1.     Is Article   2 of Protocol No. 7 applicable to the proceedings in the present case?   1.(a)     In particular, did the decision of the tax authorities of 28   September 2015 concern a criminal offence consisting of a conviction or sentence (see Saquetti Iglesias v. Spain , no.   50514/13, §§ 20-29, 30 June 2020)?   1.(b)     If so, was the applicant’s conviction or sentence issued by a tribunal for the purposes of Article 2 of Protocol No. 7?   2.     If Article 2 of Protocol no. 7 is applicable, was the applicant afforded the right of appeal envisaged by Article   2 §   1 of Protocol No.   7? If not, did the absence of an appeal fall within the exceptions laid down by Article   2 §   2 of Protocol No.   7?   3.     In Spanish law, is the regulation of the appeal on points of law in administrative matters before the Supreme Court capable of infringing the essence of the right to a double degree of jurisdiction under Article   2 §   1 of Protocol No.   7? What is the relevance in this context of the fact that the element of guilt is not amenable to a review by the Supreme Court?