Prohibition to hold the post of insolvency administrator by a person against whom criminal proceedings for the commission of a deliberate criminal offence have been dismissed on non-rehabilitating grounds is unconstitutional
The Constitutional Court declared unconstitutional the prohibition to hold the position of insolvency administrator for a person against whom criminal proceedings for the commission of a deliberate criminal offence have been dismissed on non-rehabilitating grounds. The Court stressed that lifetime restrictions exclude the presumption that a person is capable of changing his or her behaviour during his or her lifetime. Such restrictions are justified only in specific cases where the harm previously caused is intrinsically incompatible with the exercise of a specific right.
The application in this Constitutional Court case has been submitted by the Senate, which is hearing a case on the annulment of a decision of the Insolvency Control Service by which, on the basis of the contested norm, a person was removed from the office of administrator.
The Constitutional Court concluded that, although the administrator performed functions of importance for the State, it did not belong to the public service within the meaning of Article 101(1) of the Constitution. Consequently, the proceedings in the case in the part concerning compliance of the contested norm with this norm of the Constitution were terminated.
The Court recognised that the prohibition established in the contested norm restricted the right of a person to freely choose an occupation established in the first sentence of Article 106 of the Constitution and the restriction was established for life. Such restrictions exclude the presumption that a person can change his or her behaviour during life. This stigmatises a person forever, but is not consistent with the requirement of a democratic state governed by the rule of law to build an inclusive society in which every member is treated with dignity. The restriction contained in the contested norm may adversely affect a person’s desire to continue to develop himself or herself and to exercise his or her abilities in a way that could contribute to society. Such restrictions are justified only in specific cases where the harm caused is intrinsically incompatible with the exercise of a specific right.
By establishing the prohibition contained in the contested norm, the legislator has presumed that any person who has committed a deliberate criminal offence and against whom criminal proceedings have been terminated on the grounds that the person has not been rehabilitated could always raise doubts and undermine confidence in the effectiveness of the insolvency sector and the profession of administrator. However, the legislator has not taken into account that the degree of harmfulness of criminal offences, as well as the non-rehabilitating circumstances, may vary. A person’s behaviour can also change over time, especially if he or she committed the criminal offence as a minor. The Constitutional Court concluded that the legitimate aims of the prohibition included in the contested norm – protection of the rights of other persons and the well-being of the society – could be achieved to an equivalent quality by other, more lenient means.
In addition, the Insolvency Law allows a person whose criminal record has been expunged or removed to become an administrator. There is no adequate justification for imposing a restriction for life specifically on persons against whom criminal proceedings for a deliberate criminal offence have been terminated on non-rehabilitative grounds.
Taking into account the above, the Constitutional Court held that the contested norm was incompatible with the first sentence of Article 106 of the Constitution and invalid as of 1 June 2025. In order to protect the fundamental rights of all persons who, on the date of entry into force of this judgement, might have started or continued to protect their fundamental rights by means of general legal remedies, the Constitutional Court recognised the contested norm as null and void from the moment of infringement of the fundamental rights of those persons.
Linked case: 2023-44-01