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