Decision No. 2 of 23 May 2013 on Constitutional Case No. 1/2013
The challenge referred to the constitutionality of Art. 11, para 5, Art. 75, para 1 and Art. 76, para 2 of the Act on Forfeiture to the Exchequer of Unlawfully Acquired Assets (AFEUAA) (DV, No. 38/2012, last amendment, DV, No. 103/2012).
It was claimed that Art. 11, para 5 of the AFEUAA was in contravention of the Preamble (the part about the law-abiding state) and of Art. 4, para 1 of the Constitution. It was assumed that the avenue to approach administrative courts with appeals against the decisions of the Commission for Forfeiture of Unlawfully Acquired Assets (CFUAA) decreeing forfeiture to the Exchequer of unlawfully acquired assets provides no guarantees for the legal defense of citizens and furthermore, affords a chance to exercise parallel control in ways that are not to be tolerated by the civil and administrative courts. In the understanding of the MPs who signed up the challenge the opportunity to exercise double judicial control on the CFUAA’s acts leads to legal uncertainty, hence to contravention of the Constitution on account of the violation of the principle of the law-abiding state as per Art. 4, para 1 of the Constitution.
Further the MPs challenged the constitutionality of Art. 75, para 1 and Art. 76, para 2 of the AFEUAA. They insisted that the two provisions were in contravention of the principles of the law-abiding state as per Art. 4, para 1 of the Constitution and conflicted with Art. 56 of the Constitution. The MPs claimed that the provisions challenged infringed upon the right to counsel for the defense of individuals who are involved in proceedings for forfeiture of unlawfully acquired assets for they are excluded from the trial that hears the CFUAA’s action on forfeiture of unlawful assets.
The MPs who signed the challenge maintain that a certain circle of individuals (the spouse of the person facing the investigation, his/her partner in an extramarital relationship, and underage children), in contravention of the Constitution, are stripped of the right to testify on their own about the lawfulness of the sources of assets that they have acquired and that are in their name.
To rule on the merits of the case, the Constitutional Court considered as follows:
1. Art. 11, para 5 of the AFEUAA provides that decisions of the Commission for Forfeiture of Unlawfully Acquired Assets shall be subject to appeal in a procedure that the Administrative Procedure Code (APC) provides for. In other words, the proceedings lie with the administrative courts.
That provision calls for an explanation of several preliminary issues that pertain to the CFUAA decisions.
Assuming that the CFUAA decisions are administrative acts, they shall be appeallable with the administrative courts, with or without an explicit law-provided recourse. The right to appeal against administrative acts derives directly from the Constitution, not from the AFEUAA.
Since the CFUAA decisions are not administrative acts, then the right to appeal as provided by Art. 11, para 5 of the AFEUAA will depart from the rationale of the text of Art. 120, para 2 of the Constitution and of the Administrative Procedure Code and will make it binding on the administrative courts to exercise control to make sure there is conformity with the law. While the challenged text of Art. 11, para 5 of the AFEUAA does not provide additional assurances that citizens’ rights shall be respected, it provides for further obligations to be assumed by the administrative courts.
The administrative courts’ control on all CFUAA decisions might provoke controversies within the AFEUAA that are hard to surmount. There is no way for meeting the requirement of non-making public the information learned about the preliminary examination (Art. 36 of the AFEUAA) if the extension of the examination has to be communicated to the person subject to the examination to enable an appeal against the decision. The same holds good of the decision to ask for precautionary measures to be enforced by a civil court as per Art. 37 of the AFEUAA.
Certain CFUAA decisions are similar to administrative acts, yet the special AFEUAA provides for a different recourse – the general courts – for the legal defense of the implicated individuals. Judicial control on conformity with the law in the sense of Art. 120 of the Constitution may be exercised also by a civil court. If a CFUAA decision infringes on an individual’s rights and if such rights were not protected in proceedings in general courts, the individual is free, in all cases, to approach an administrative court with appeal against such a decision.
In addition to legal defense the said piece of legislation provides some further guarantees to protect privacy and the rights of the implicated individuals: this is the obligation of the CFUAA bodies to process personal data in compliance with the Personal Data Protection Act (Art. 34, para 4 of the AFEUAA) and parliamentary oversight of the CFUAA activities.
The Constitutional Court found that Art. 11, para 5 of the AFEUAA did not provide further guarantees of citizens’ rights protection because of the possibility for the general courts to exercise judicial control on the CFUAA decisions and on account of Art. 120 of the Constitution. Understandably, the inexistence of further guarantees to be enjoyed by citizens does not make the provision in question unconstitutional.
In a number of cases the right to appeal against certain CFUAA decisions is an end per se for the decision does not affect whatever of the citizens’ rights like the decision to conclude a settlement as per Art. 11, para 1, item 5 of the AFEUAA or the decision to terminate the examination under Art. 27 of the AFEUAA. In other cases the possibility to appeal against CFUAA decisions that are not individual administrative acts (for instance under Art. 20, Art. 38, para 5, Art. 40 and Art. 84 of the AFEUAA) would create unnecessary problems in jurisdiction. Such legal imperfections in certain AFEUAA provisions could likewise lead to a conclusion of unconstitutionality.
The major conflict with the principle of the state committed to the rule of law is provoked whenever the application of Art. 11, para 5 of the AFEUAA may lead to mutually exclusive decisions of the administrative and general courts.
The possibility to appeal against decisions that pertain to the initiation of proceedings in keeping with the AFEUAA and decisions that ask for the disclosure of banking secret are some of the examples of cases where a conflict in the process of law enforcement may arise. In practical terms the last two groups of decisions can be appealed against by taking the appeal to administrative courts once the district, respectively the regional court, has already ruled on their legality. Such legal situations may occur in the process of appeal against CFUAA decisions that conclude, transform or terminate contracts of employment of men and women who do not have the status of civil servants.
The possibility for different courts to exercise judicial control on one and the same CFUAA decisions creates real prerequisites for controversial and mutually exclusive judicial acts. In this way the challenged Art. 11, para 5 of the AFEUAA causes legal uncertainty which undermines the principle of the state committed to the rule of law, a principle that a number of Constitutional Court decisions have conceptually outlined.
There has already been an occasion on which the Constitutional Court concluded that legal arrangements that impede law enforcement or that exclude one another are not in harmony with the principle of the state committed to the rule of law (Constitutional Court’s Decision No. 10/2009). Parallel jurisdiction on CFUAA decisions by administrative and civil courts and the possibility to take controversial decisions on the basis of one and the same facts definitively disagree with the imperative of legal certainty in a state committed to the rule of law (Constitutional Court’s Decision No. 3/2008 and Constitutional Court’s Decision No. 10/2009). Parallel jurisdiction disagrees, inter alia, with the imperative that legal arrangements should be clear, coherent and uncontroversial as they are a major aspect of the state committed to the rule of law (Constitutional Court’s Decision No. 3/2012).
2. The MPs challenge of the constitutionality of Art. 75, para 1 and Art. 76, para 2 of the AFEUAA is to be judged in the context of a possible contradiction to the principle of the state committed to the rule of law. A possible contradiction to Art. 56 of the Constitution is to be discussed separately.
The AFEUAA contains special provisions of procedural nature. The AFEUAA provides that an action for performance shall be brought against the person under examination and the persons referred to in Arts. 64, 65, 66, 67 and 71 for forfeiture to the Exchequer of unlawfully acquired assets. However, there may be persons beyond this circle whose assets are forfeitable. Art. 63, para 2 of the AFEUAA lists the circle of persons whose assets are forfeitable and that circle is not what Arts. 64, 65, 66, 67 and 71 refer to.
Essentially, even if it is a gap in law as an imperfection or a deficiency, it may be filled in by the subsidiary application of the Code of Civil Procedure as provided for by Art. 80 of the AFEUAA.
In its official capacity the court shall see that the parties are properly constituted and that the respondents in the action are known in the phase of imposition of precautionary measures. It is not possible to forfeit the assets of a person who is not constituted as a respondent and has not been defended in trial. The persons referred to in Art. 63, para 2, items. 2-5 of the AFEUAA are indispensable parties of the person examined and shall be officially constituted by the court in order to be guaranteed legal defense in trial. The same holds true of the third parties who have acquired forfeitable assets in a legal transaction.
In the understanding of the Constitutional Court a legal imperfection does not automatically result in unconstitutionality on the basis of disagreement with the principle of the state committed to the rule of law. This understanding is supported by the Constitutional Court’s Decision No. 14/2000 and by the Constitutional Court’s Decision No. 6/2005 where it is clearly stated that contradictions within the legislation and its interpretation are not sufficient to declare such texts unconstitutional.
In the case, even if the challenged texts of Art. 75, para 1 and Art. 76, para 2 of the AFEUAA are assumed to be imperfect, they are not constitutionally intolerable and do not rule out the achievement of the objectives of the law, be it even by means of the subsidiary application of the CCP.
The application of the CCP provides a full set of guarantees that the rights of citizens who are constituted as respondents in actions brought by the CFUAA will be respected, hence the Constitutional Court ruled that the claim of inconsistence of the challenged provision with Art. 56 of the Constitution was not to be sustained.