ARM-2011-2-002
a) Armenia / b) Constitutional Court / c) / d) 12.07.2011 / e) DCC-983 / f) On the conformity with
the Constitution of Article 55, part 4 of the RA Criminal Code/ g) to be published in Tegekagir
(Official Gazette) / h).
Keywords of the systematic thesaurus:
4.8
Institutions-Economic duties of the State
5.2.32.3
Fundamental rights – Civil and political rights- Right to property Other
limitations
Keywords of the alphabetical index:
Crime victims /
confiscation of a property
Headnotes
Within
the State’s possitive obligation to protect the private property against
others’ illegal acts, the State shall provide for an effective mechanism to
compensate the damage caused to victims by commitment of a crime.
Summary:
The
applicants maintained, that the mechanism of confiscation of the property
obtained through commitment of a crime set forth in Part 4 of Article 55 of the
RA Criminal Code, does not correspond to the Constitution, as it neglects the
legal interests of the crime victims and does not provide a guarantee for
compensation of the victims’ damage in behalf of the confiscated property
obtained through the commitment of the crime.
The
Constitutional Court has considered the raised issue within the context of the
state’s positive obligation to protect the private property against others’
illegal acts, as well as the international obligations of the Republic of
Armenia. Considering the given issue within the context of the State’s positive
obligation, Constitutional Court noted that the principle of inviolability of
property not only supposes the owner’s right to demand others not to violate
his/her right to property, but also presumes the State’s obligation to protect
that property from others’ illegal acts. In the context of this obligation the
State shall guarantee an effective mechanism for protection of the property
rights of the victims of the crimes and restoration of their damage.
Within
the case, the Constitutional Court emphasized the necessity to reveal the
constitutional-legal content of both institutions “confiscation of property’
and “confiscation of the property obtained through commitment of a crime”. As a
result of systematic analysis of the RA legislation the Constitutional Court
emphasized that these institutions differ basically, they have different
nature, purpose and objectives. The “confiscation of property” is a type of
alternative punishment, the application of which is within the discretion of
the court. In case of “confiscation of property” as a punishment, the object of
the confiscation is the property legally owned by the convicted person. Whereas
the “confiscation of the property obtained through commitment of a crime” is a
mandatory measure and is applied irrespective of the court’s discretion, and
its object is the property that has been obtained as a result of a crime: as a
rule that property belongs to victims. The purpose of the first institution is
to restrict the defendant’s right to property, as a punishment, whereas the
second one aims to return the property obtained illegally and recover the
violated proprietary rights of victims. Taking into consideration the
aforementioned the Constitutional Court stated that it is inadmissible to
identify the institute of confiscation of property with the institute of
confiscation of the property obtained through commitment of a crime, otherwise
the measure of confiscation illegally restricts the victim’s right to property.
The Constitutional Court also noted that the parallel application of the
discussed institutions may not lead to legal collision or to priority of their
application as they have different objects.
Within
the State’s positive obligations and undertaken international obligations the
Constitutional Court highlighted the necessity to check whether the RA
legislation stipulates any guarantee for compensation of the damages caused to
victims by crime while enforcing the measure of confiscation of the property
obtained through commitment of a crime. The analysis of the legislation has
proved the existence of such guarantees, particularly they are set forth in
Articles 119, 61, 59 of the RA Code of Criminal Procedure. However, the
application of these guarantees in the law-enforcement practice has been
prevented because of the absence of any condition in the challenged Article on
recovery of the violated proprietary rights of victims in accordance with the
aforementioned guarantees.
The
Constitutional Court declared the challenged provision of Part 4, Article 55 of
the RA Criminal Code in the interpretation given to it in the law-enforcement
practice unconstitutional and null and void, as it does not guarantee the
protection of the crime victims’ proprietary interests and property right in
the process of the confiscation of the property obtained through commitment of
a crime.
Languages:
Armenian