Brief conclusion: the minutes drafted by ANAF at the request of the prosecutor during the criminal prosecution are no longer means of proof in the criminal proceedings.

The Constitutional Court unanimously decided that the regulation of the Fiscal Procedure Code which allowed the minutes prepared by ANAF during criminal investigations at the request of the prosecutor to be used as means of proof, is unconstitutional, including in relation to provisions of the ECHR.

In particular, Article 350 (2) and (3) of the Fiscal Procedure Code provided that:

“(2) In duly justified cases, after the initiation of the criminal prosecution, with the approval of the prosecutor, it may be requested that A.N.A.F. will perform tax audits according to established objectives.

(3) The result of the controls provided in paragraph (1) and (2) shall be recorded in the minutes, which shall constitute means of proof (evidence). Minutes shall not constitute a title to a tax claim for the purposes of this Code.”

The Court has established that proxies of the parties in the criminal proceedings (i.e. ANAF) cannot take over atributions of the prosecutor, due to the provisions of the fundamental law, especially to what concercns the capacity of the Public Ministry.