Up-883/14

Reference no.:
Up-883/14
Abstract:
From the first paragraph of Article 28 of the Constitution, which regulates the principle of legality in criminal law as a human right, there follows the requirement that criminal offences have to be determined by law (lex scripta). In determining criminal offences, the law must not apply empty, undeterminable, or unclear terms (lex certa), allow the application of analogy (lex stricta), or determine its own retroactive effect (lex praevia). These constitutional requirements are also binding on judges when deciding on criminal offence charges in criminal proceedings.
 
Judges must interpret statutory provisions that define criminal offences in a strict manner. By way of interpretation they may not extend the scope of criminal liability as determined by the legislature in terms of the individual elements of a criminal offence.
 
From a constitutional law perspective, it is irrelevant whether the elements of a criminal offence are included in the operative provisions of a judgment or in its reasoning; however, unless all of the elements of a criminal offence are included in the judgment, the perpetrator would have been convicted for an act that is not a criminal offence, which constitutes a violation of the principle of legality in criminal law. Such is also the case when a court interprets an element of a criminal offence too broadly or by analogy so that it also includes in its scope conduct that the legislature did not include, while at the same time it does not include conduct that entails an element of the criminal offence.
 
When interpreting a law with regard to a concrete case, the court has to establish the facts of the case that are relevant from the perspective of each individual statutory element of the criminal offence. With regard to each of the elements of the criminal offence, it has to compare the legally relevant facts of the concrete case that it extracts from the real life event with the statutory definition of the criminal offence that it derives – in a constitutionally consistent manner – from the wording of the statutory provision. The legally relevant facts of the concrete case have to correspond precisely and strictly (lex certa, lex stricta) to the statutory definition of the criminal offence – i.e. to each individual element of the criminal offence. The extraction of the legally relevant facts of the concrete case with regard to the individual statutory elements of the criminal offence entails the concretisation of the elements of the criminal offence.
 
The concretisation of each individual element of the criminal offence at the level of the legally relevant facts of the concrete case constitutes the basis of the review of their correspondence to the statutory definition of the criminal offence. Therefore, a judgment must state the concrete actions of the perpetrator that the court subsumed under the individual elements of the criminal offence at issue. Thereby, the court may not replace the concretisation of one of the statutory elements of the criminal offence with the concretisation of other statutory elements of the criminal offence so that they merge with each other. Such would entail the absence of one of the elements of the criminal offence.
 
When reviewing the constitutionality of an interpretation of substantive criminal law, the Constitutional Court does not engage in establishing the facts and assessing the evidence. It only examines whether the courts interpreted the wording of the law in accordance with the requirements stemming from the first paragraph of Article 28 of the Constitution with regard to the legally relevant facts of the concrete case that they extracted from all of the facts established in the judicial proceedings.
 
The Constitutional Court does not review the constitutionality of the act of indictment, as such is a task of the criminal courts. From the perspective of the first paragraph of Article 28 of the Constitution, the Constitutional Court verifies whether the courts observed the constitutional safeguard determined thereby.
 
The statutory element of the promise (of a reward) is an objective statutory element [i.e. actus reus] of the criminal offence of giving a gift for unlawful intervention under the first paragraph of Article 269a of the Criminal Code. As such, it has to be detected in the external world, as for this element it is essential that the will of the perpetrator to promise (a reward) is expressed. This can only be realised by the perpetrator's own actions, whereby the manner in which the promise (of a reward) is made is irrelevant, as it is not an element of the criminal offence.
 
It is in the nature of things that criminal offences of corruption, which entail a serious threat to society, are carried out in secret. Consequently, the possibility of the prosecuting authorities directly detecting such offences is limited. If, in light of such, a court concludes on the basis of other actions of the perpetrator and the particular circumstances of the case at issue that the promise (of a reward) was made, the requirement of the concretisation of that statutory element of the criminal offence is transferred to those other actions. In order to guarantee that the requirements stemming from the first paragraph of Article 28 of the Constitution are observed, they may only entail such actions of the perpetrator that, in terms of their content and nature and in the circumstances of the case at issue, allow the existence of the statutory element of the criminal offence to be established beyond a reasonable doubt.
 
The position of the courts that allows a conclusion regarding the existence of the element of the promise (of a reward) to be drawn without its concretisation, but on the basis of the concretisation of the reward and the perpetrator's intent (with the intent that the persons receiving the reward use their influence and intervene such that an official act is performed), which are independent elements of the criminal offence, is inconsistent with the principle of legality in criminal law.
 
If the court does not extract the legally relevant facts of the concrete case that entail either the direct detection of the promise (of a reward) or enable, in the context of the circumstances of the case at issue and the nature and content of the perpetrator's actions, that the existence of such promise is established beyond a reasonable doubt, the requirements stemming from the first paragraph of Article 28 of the Constitution are not observed. As a result of such an omission, the Constitutional Court cannot assess the substantive constitutionality of the interpretation of the criminal statute from the perspective of the principle of legality in criminal law.
 
Document in PDF:
Type of procedure:
constitutional complaint
Type of act:
individual act
Applicant:
Ivan Črnkovič, Ljubljana
Date of application:
27.11.2014
Date of decision:
20.04.2015
Type of decision adopted:
decision
Outcome of proceedings:
annulment or annulment ab initio rejection
Document:
AN03770