U-I-6/15, Up-33/15, Up-1003/15

Reference no.:
U-I-6/15, Up-33/15, Up-1003/15
ECLI:
ECLI:SI:USRS:2018:U.I.6.15
Abstract:
[Publisher's Note: The full text of this Decision/Order is available only in Slovene. The text published below is a summary prepared for the annual report.]
 
Prohibition of Retroactivity in the Confiscation of Illicitly Acquired Property
 
By Decision No. U-I-6/15, Up-33/15, Up-1003/15, dated 5 July 2018 (Official Gazette RS, No. 53/18), the Constitutional Court decided on the constitutionality of the first paragraph of Article 57 of the Confiscation of Illicitly Acquired Property Act (the CIAPA), in accordance with which this Act also applied retroactively, namely in cases in which a police or criminal procedure was initiated prior to its entry into force and after 1 January 1990. The Constitutional Court abrogated the challenged provision with immediate effect. It decided that the first paragraph of Article 57 of the CIAPA is inconsistent with the principle of the prohibition of the retroactive validity of regulations (Article 155 of the Constitution) because it enables inadmissible retroactive application of a law as regards a period prior to its entry into force, i.e. prior to 29 November 2011.
 
The main allegation in the petition for the review of constitutionality was that the first paragraph of Article 57 of the CIAPA is inconsistent with the prohibition of retroactivity determined by Article 155 of the Constitution, as on its basis the whole Act would allegedly be used for the confiscation, i.e. securing, of property acquired prior to the CIAPA entering into force.
 
Under the CIAPA it was deemed that property was illicitly acquired if it was not proven that it was acquired from lawful income or in a lawful manner. The Act determined a rebuttable presumption that property has been illicitly acquired if there is a manifest disproportionality between the scope of such property and the income (reduced by taxes and contributions) that the person against which the procedure is pending spent in the period in which the property was acquired. If the individual concerned does not rebut the presumption, the [competent] court grants the claim of the Specialised State Prosecutor’s Office and concludes that the origin of a certain property is illicit. The property is confiscated and, once the judgment is final, becomes the property of the Republic of Slovenia. During the proceedings it is possible to temporarily secure the property in order to confiscate it.
 
While the CIAPA applied ex nunc, i.e. after 29 November 2011, it nevertheless, in accordance with the first paragraph of Article 57 thereof, also applied in cases in which a police or criminal procedure was initiated prior to its entry into force and after 1 January 1990. In defining property of illicit origin, the law applied on the basis of the first paragraph of Article 57 did not determine anew only the retroactively relevant facts that already at the time of their occurrence would have undermined the validity of acquiring the property such that already at that time the acquirer thereof would not have been able to trust that he or she would be able to peacefully enjoy such property. It was necessary to take into account the fact that in defining property of illicit origin, the CIAPA defined anew the violation and connected thereto new legal consequences in the form of the confiscation of property or securing it in order for it to be subsequently confiscated. In this respect, the Act did not determine that the illicit origin of property must be proven in judicial proceedings, but [instead] enacted a rebuttable presumption that property is of illicit origin if there is a manifest disproportionality between its scope and the income (reduced by taxes and contributions) that the person against which the procedure is pending spent in the period in which the property was acquired. Prior to the entry into force of the CIAPA, no regulation enacted such a presumption. Therefore, the existence of property defined in such a manner was not recognised as a violation that in itself would trigger the duty to challenge the presumption and to impose a sanction if the presumption is not rebutted in judicial proceedings. Since in the described manner the CIAPA interfered with the rights to the free disposition and peaceful enjoyment of property, it applied in the period prior to its entry into force, on the basis of the challenged first paragraph of Article 57 thereof. A law that in such a manner prescribes the application of the measure of the confiscation of property or securing it in order for it to be confiscated entails the retroactive application of such law. Namely, individuals were unable to know that on the basis of past presumed facts violations would be established anew and legally binding consequences would arise if they failed to rebut the presumed facts.
  
Although the CIAPA as a whole applies ex nunc, in view of the above, the first paragraph of Article 57 caused some of its provisions to also apply retroactively. The first paragraph of Article 155 of the Constitution prohibits such retroactive effects. In accordance with the second paragraph of that Article, it is only exceptionally admissible that a law establish that certain of its provisions have retroactive effect, if such is required in the public interest and provided that no acquired rights are infringed thereby. In accordance with the established case law, in order for the retroactive application of a law [to be admissible], a special public interest that justifies the retroactive application of statutory provisions must exist. The legislature failed to demonstrate such public interest. In the legislative procedure it did not respond to the warnings of the Legislative and Legal Service of the National Assembly and of the National Council, which drew attention to the fact that the measure is constitutionally disputable from the viewpoint of the constitutional prohibition of the retroactive application of laws, and the legislature also did not state its position in the constitutional review proceedings. Consequently, one of the cumulatively determined conditions listed in the second paragraph of Article 155 of the Constitution was not fulfilled. Hence, the challenged provision was inconsistent with the second paragraph of Article 155 of the Constitution, and thus also with the prohibition of the retroactive application of laws determined by the first paragraph of Article 155 of the Constitution.
 
The Constitutional Court also granted the two constitutional complaints. It found that the challenged judicial decisions, which were based on the abrogated statutory provision and referred to the temporary securing of property by confiscation (the complainant was prohibited thereby from alienating her real property or encumbering her ownership right) violated the rights determined by the second paragraph of Article 14 of the Constitution (the general principle of equality) if the criminal offences were carried out or if the property was acquired prior to the entry into force of the CIAPA, and Article 22 of the Constitution (the equal protection of rights).
Note:
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Document in PDF:
Type of procedure:
review of constitutionality and legality of regulations and other general acts constitutional complaint
Type of act:
statute individual act
Applicant:
Vlasta Mrčinko, Ptuj
Date of application:
19.01.2015
Date of decision:
05.07.2018
Type of decision adopted:
decision
Outcome of proceedings:
annulment or annulment ab initio establishment of a human right violation establishment of a human right violation
Document:
AN03924