The norms of the Criminal Law on confiscation of property are compatible with the Satversme
On 8 April 2015 the Constitutional Court passed the judgement in Case No. 2014-34-01 “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.”
The possibility of losing property is an appropriate measure for deterring persons from committing crimes of material nature
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:
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 a constitutional complaint submitted by Tatjana Kargina. The additional punishment envisaged by the contested norm, i.e., confiscation of property had been applied to the applicant. The applicant holds that the contested norms place disproportional restrictions upon her fundamental rights. The aim of the contested norms allegedly 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 is neither used to commit criminal acts, nor poses a threat to public safety.
The Court Findings and Rulings
On the scope of review of the contested norms
The Constitutional Court noted that law envisaged various forms of confiscation of property, for example, confiscation of illegally acquired property. In the framework of the case under review the Constitutional Court examined confiscation of property as a type of punishment envisaged by the Criminal Law and as a uniform institute of law. [11.1, 11.2]
On the nature of confiscation of property as a type of punishment
The Constitutional Court noted that confiscation of property in the meaning of a type of punishment as the enforced alienation property owned by the sentenced person without remuneration in favour of the state, i.e., confiscation as a criminal sanction is not applied to alienate illegally acquired resources. The confiscation of property essentially is similar to a monetary fine – the aim is not to alienate what has been acquired illegally, but to punish a person by enforcement against property. [12.3]
On the restriction upon the right to own property
The Constitutional Court noted that the contested norms should be recognised as a restriction to the fundamental right enshrined in Article 105 of the Satversme. [12.3] To establish, whether the restriction to fundamental rights is justifiable, the Constitutional Court examines, whether:
- the restriction has been established by law,
- the restriction has a legitimate aim,
- the restriction reaches its legitimate aim. [13]
In examining, whether the restriction to the fundamental right has been established by law, the Constitutional Court recognised that the case contained no dispute on whether the contested norms had been adopted and promulgated in due procedure and had been publicly accessible. However, the applicant has questioned, whether the law has been worded with sufficient clarity, allowing a person to understand the content of the rights and obligations following from it and anticipate the consequences of its application. [14]
The Constitutional Court stated that the contested norms clearly defined, on the one hand, the limits to confiscation of property, allowing a court not to apply confiscation of property altogether, and, on the other hand, defining property that could not be confiscated. In each particular case the court has to select the most appropriate type and scope of punishment, assessing all facts of the case. [14.1, 14.3] Thus, the Constitutional Court recognised that the restriction on the fundamental right had been established by a law, which had been adopted in due procedure. [14.3]
The Constitutional Court recognised that confiscation of property, as any other criminal sanction, was aimed at reaching the aim defined in the Criminal Law. The legitimate aims of a restriction upon fundamental rights was the protection of the democratic state order, public safety and other person’s rights. [15]
In examining the proportionality of the restriction upon the fundamental right, the Constitutional Court took in to consideration the broad discretion that the legislator had in the field of penal policy; however, verification, whether the legislator has not obviously exceed the limits of its discretion, falls within the jurisdiction of the Constitutional Court. [16]
The Constitutional Court, in examining the proportionality of the restriction upon the fundamental right, noted, inter alia, that confiscation of property as a punishment reached the legitimate aim of the restriction upon a fundamental right. [17] Moreover, types of punishment cannot be compared and assessed as more or less lenient measures. Therefore, measures that would be less restrictive upon an person’s rights do not exist. [18] In assessing, whether the benefit gained by society exceed the damage caused to an individual’s rights; the Constitutional Court noted the restriction upon a person’s rights could not be directly compared to public benefit. The public benefit that is ensured by realising criminal justice is the protection of a democratic state order, public safety and other persons’ rights. Moreover, the possibility to lose one’s property is an appropriate measure for deterring persons from committing crimes of material nature. Hence, the benefit to society exceeds the damage inflicted upon an individual’s rights, and the restriction to the fundamental right is to be recognised as being proportional. [19]
Therefore, the Constitutional Court recognised the contested norms as being compatible with Article 105 of the Satversme.
The Judgement by the Constitutional Court is final and not subject to appeal, and it has entered into force.
Linked case: 2014-34-01