Up-150/19, Up-151/19

Opravilna št.:
Up-150/19, Up-151/19
Objavljeno:
OdlUS XXV, 33 | 05.03.2020
ECLI:
ECLI:SI:USRS:2020:Up.150.19
Evidenčni stavek:
In cases where the law determining a minor offence has changed after the alleged act had been committed, in accordance with the second paragraph of Article 28 of the Constitution the court must first assess whether the alleged act fulfils the statutory elements of a minor offence pursuant to the new law as well. A subsequent law is namely the most lenient when it no longer defines the alleged act as a minor offence (i.e. it decriminalises it). If a court finds that a subsequent law no longer defines the alleged act as a minor offence, the court must stay the minor offence proceedings regardless of whether under the new law the statutory elements of the minor offence correspond to some other conduct that is not the subject of the charges.
 
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[Publisher's Note: The full text of this Decision/Order is available only in Slovene. This is a summary that has been prepared for informational purposes only.]
 
The Retroactive Application of a More Lenient Law in the Field of Minor Offences
 
In Decision No. Up-150/19, Up-151/19, dated 5 March 2020, the Constitutional Court decided on the constitutional complaints filed against a final judgment by which a legal entity and the person in charge of its operations were found to have committed a minor offence under the Public Procurement Act.
 
The Constitutional Court began by explaining that it decides on constitutional complaints against individual acts issued in minor offence cases only if they entail a decision on an important constitutional issue that exceeds the importance of the specific case (the second and third paragraphs of Article 55a of the Constitutional Court Act). In the constitutional complaint at issue, the complainants’ allegations referring to the non-application of a subsequently adopted more lenient law raised such a question. The Constitutional Court reviewed the allegations of the complainants from the perspective of the requirement to apply a subsequently adopted more lenient law as determined by the second paragraph of Article 28 of the Constitution. It noted that it has already taken a position on the constitutional aspects of the requirement to apply a subsequently adopted more lenient law several times, but the case at issue required the consideration of a specific aspect of this institution, which the Constitutional Court has not yet addressed. What was at issue is the effective exercise of the requirement to apply a subsequently adopted more lenient law and observance of the principle of concreteness, which requires that in the assessment of whether the subsequently adopted law is more lenient towards the offender only the conduct that is the subject of the charges contained in the accusatory instrument and not some other conduct may be taken into consideration.
 
In the second paragraph of Article 28, the Constitution determines that acts which are criminal shall be established and the resulting penalties pronounced according to the law that was in force at the time the act in question was committed, except where a subsequently adopted law is more lenient towards the offender. This constitutional provision requires that a court shall, in each concrete case, (1) verify whether the law was amended after the criminal offence had been committed, (2) perform a comprehensive assessment of which of the relevant laws is more lenient towards the offender, and (3) apply the law that is more lenient towards the offender. In assessing which law is more lenient towards the offender, the court must take into consideration the methods of interpretation that are admissible in criminal law. If the court exceeds the admissible interpretative framework and bases its assessment that a new law is not more lenient towards the offender on an inadmissible interpretative argument, it thereby undermines the significance of the requirement to apply the more lenient law. The same applies in cases where, in the framework of such assessment, a court does not consider the conduct that is the subject of the charges but instead takes into account some other conduct that is not the subject of the charges. The Constitutional Court considers all of the above steps in its review of whether the courts observed the constitutional requirement to apply a subsequently adopted more lenient law.
 
The second paragraph of Article 28 of the Constitution also applies in the field of minor offence law. Throughout the proceedings, minor offence authorities and the courts that decide on minor offences must also ascertain whether the material regulation determining a minor offence and the sanction for such were amended after the minor offence had been committed. If they establish that the regulation was amended, they must assess which regulation is more lenient towards the offender by comparing the provisions of all relevant regulations.
 
In the case at issue, the Constitutional Court held that both the court of first instance and the appellate court violated the mentioned constitutional requirement. The court of first instance violated it as in its assessment of whether the subsequent law decriminalised the alleged conduct it exceeded the possible meaning of the wording of a statutory element of the minor offence. With regard to the argumentation of the appellate court, the Constitutional Court pointed out that in cases where the law determining a minor offence changed after the alleged act had been committed, the court must first assess, in accordance with the second paragraph of Article 28 of the Constitution, whether the alleged conduct fulfils the statutory elements of a minor offence pursuant to the new law as well. A subsequent law is namely always more lenient if it does not define the alleged conduct as a minor offence (i.e. if it decriminalises it). A court must thus assess whether the legally relevant facts of the concrete case, which are derived from the accusatory instrument, correspond to the statutory definition (the statutory elements) of the minor offence pursuant to the new law. If the court finds that a subsequently adopted law no longer defines the alleged conduct as a minor offence, it must stay the minor offence proceedings regardless of whether under the new law the statutory elements of the minor offence correspond to some other conduct that is not the subject of the charges. The appellate court violated the complainants’ right to apply a subsequently adopted more lenient law as it failed to assess the alleged conduct but instead assessed conduct that was not the subject of the charges contained in the accusatory instrument. In accordance with the established violation, the Constitutional Court abrogated the challenged judgments and remanded the case to the court of first instance for new adjudication.
Opomba:
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Dokument v PDF obliki:
Polno besedilo:
 
Vrsta zadeve:
constitutional complaint constitutional complaint
Vrsta akta:
individual act
Vlagatelj:
BSB Inženiring, d. o. o., Selnica ob Dravi, in Borut Ramšak, Maribor
Datum vloge:
06.02.2019
Datum odločitve:
05.03.2020
Vrsta odločitve:
decision
Vrsta rešitve:
annulment or annulment ab initio
Dokument:
AN04001