JUDGMENT OF THE COURT OF JUSTICE IN CASE C-143/22 OF 21.09.2023

#95Judgment of the Constitutional Court PL. ÚS 1/2021-164 on the penalty of forfeiture of property imposed pursuant to Section 58 (2), (3) of Act No. 300/2005 Coll. Criminal Code as amended (hereinafter referred to as the („Criminal Code“)

By this Ruling, the Constitutional Court declared that the provisions of Section 58 (2), (3) of the Criminal Code on the imposition of the penalty of forfeiture of property are incompatible with the Constitution of the Slovak Republic.

According to Section 58 (1) of the Criminal Code "The court may impose the penalty of forfeiture of property, taking into account the circumstances of the crime committed and the circumstances of the offender, if it sentences the offender to life imprisonment or if it sentences the offender to an unconditional term of imprisonment for a particularly serious crime by which the offender has obtained or has sought to obtain a property benefit on a large scale or by which he or she has caused damage on a large scale".

On 10 February 2021, the Constitutional Court received a petition from the petitioners to initiate proceedings pursuant to Article 125 (1) (a) of the Constitution of the Slovak Republic on the compliance of Section 58 (2) and (3) of Criminal Code with Article 1 (1) (a) of the Constitution of the Slovak Republic. 1, Article 13 (4), Article 16 (2), Article 20 (1) and Article 50 (1) of the Constitution of the Slovak Republic, Article 1 of the Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 17 of the Charter of Fundamental Rights of the European Union in conjunction with Article 52 (1) of the Charter of Fundamental Rights of the European Union.

By their application, the appellants challenged the provisions of Section 58 (2) and (3) of the Criminal Code, which were added to the Criminal Code with effect from 1 September 2011 by Act No 262/2011 Coll., amending Act No 301/2005 Coll., the Criminal Procedure Code, as amended, and amending certain acts. The original wording of Section 58 (2) of the Criminal Code was replaced by the new wording of Section 58 (2) of the Criminal Code and at the same time Section 58 of the Criminal Code was supplemented by a new paragraph 3.

The appellants argued that while in the optional imposition of the penalty of forfeiture of property under section 58 (1) of the Criminal Code, the general court applies the principles of sentencing set out in section 34 of the Criminal Code, in the cases governed by the impugned provisions, the penalty of forfeiture of property is imposed compulsorily and the application of the principles of section 34 of the Criminal Code in relation to the penalty of forfeiture of property is precluded. Thus, the effect of the contested provisions is that the sentencing court imposes the penalty of forfeiture of property irrespective of whether it complies with the relevant constitutional principles and the principles of sentencing under section 34 of the Criminal Code, and at the same time the penalty of forfeiture of property affects all the property of the offender, irrespective of the time and manner of its acquisition.

The Constitutional Court by this Ruling declared the penalty of forfeiture of property incompatible with the Constitution of the Slovak Republic, on the grounds that the penalty of forfeiture of property affects the entire property of the perpetrator, regardless of the time and manner of its acquisition. The Constitutional Court based its assessment on the development of the legal regulation in the Criminal Code, on a review of the regulations in several Member States of the European Union, including the case law of the courts there, and on the case law of the ECtHR and the Court of Justice, and concluded that the obligation of the court to impose the penalty of forfeiture of property in exhaustively defined cases is an exceptional regulation.

Accordingly, the penalty of forfeiture of property is to be imposed exceptionally, in exhaustively defined cases, in relation to an offence by which the offender has obtained or has sought to obtain a large-scale pecuniary advantage or by which he has caused large-scale damage, and is not to apply to property which the offender has acquired by lawful means, in particular with regard to the time and manner of its acquisition. For example, property acquired by inheritance will not be affected in the case of the imposition of the penalty of forfeiture of property. This change has significantly affected the regulation of the penalty of forfeiture of property, which will no longer apply to all property, but only to property that has been acquired through illegal activity, with regard to the manner and time of its acquisition.