Case initiated regarding confiscation of property as a form of punishment envisaged in the Criminal Law
On 20 October 2014 the Constitutional Court at the assignment sitting initiated case “On Compliance of Para 1 of Section 36(2), Section 42 and words in Section 177(3) “with or without confiscation of property” of the Criminal Law with the second and third sentence of Article 105 of the Satversme of the Republic of Latvia.”
Contested norms (in italics)
Para 1 of Section 36(2): of the Criminal Law: In addition to a basic punishment, the following additional punishments may be adjudged: 1) confiscation of property, (…).
Section 42 of the Criminal Law:
(1) Confiscation of property is the compulsory alienation to State ownership without compensation of the property owned by a convicted person or parts of such. Confiscation of property may be specified as a basic punishment or as an additional punishment. Property owned by a convicted person, which he or she has transferred to another natural or legal person, may also be confiscated.
(2) Confiscation of property may be specified only in the cases provided for in the Special Part of this Law.
(3) A court, in determining partial confiscation of property, shall specifically indicate which property is to be confiscated. The court, in determining confiscation of property for a criminal offence against traffic provisions, shall apply partial confiscation of property and relate it to the vehicle.
(4) The indispensable property of the convicted person or of his or her dependants, which may not be confiscated, is that specified by law.
Section 177 (3) of the Criminal Law: (3) For a person who commits fraud, if it has been committed on a large scale, or has been committed in an organised group, or it has been committed, acquiring narcotic, psychotropic, powerfully acting, poisonous or radioactive substances or explosive substances, firearms or ammunition, the applicable punishment is deprivation of liberty for a term from two to ten years, with or without confiscation of property, and with or without probationary supervision for a term not exceeding three years.
Norm of Higher Legal Force
The first and the second sentence in Article 105 of the Satversme: “Property shall not be used contrary to the interests of the public. Property rights may be restricted only in accordance with law.”
The Facts
The case was initiated on the basis of the constitutional complaint submitted by Tatjana Kargina. The additional punishment envisaged by the contested norms, i.e., confiscation of property had been applied to the applicant. The applicant holds that this punishment has legitimate aims, however, the contested norms do not reach these aims. Moreover, allegedly, the contested norms place disproportional restrictions upon the applicant’s fundamental rights. The aim of the contested norms is the protection of public security, restoration of justice and punishing the guilty person. However, these aims could be reached by other measures, less restrictive upon a person’s rights. Thus, for example, it is said to be unacceptable that the confiscation of property is directed against legally acquired property, which, moreover, is neither used to commit criminal acts, nor poses a threat to public safety.
Legal Proceedings
The Constitutional Court has asked the institution, which adopted the contested act – the Saeima of the Republic of Latvia to provide a reply on the facts of the case and legal substantiation to the Constitutional Court by 20 December of the current year.
The term for preparing the case is 20 March 2015. The Court shall decide upon the procedure and the date for hearing the case after the case has been prepared.
Linked case: 2014-34-01