Presumption of lawful acquirement of property and confiscation of unlawfully acquired property in the case-law of the Romanian Constitutional Court. The reference constitutional framework for regulating of the extended confiscation

• Author: Marieta Safta
• Position: Ph. D, associate professor - lecturer to The Bucharest University of Economic Studies, Department of Law; first assistant magistrate to the Constitutional Court of Romania
• Pages: 128-147

128 Volume 2, Issue 1, December 2011 Juridical Tribune

Presumption of lawful acquirement of property and confiscation

of unlawfully acquired property in the case-law of the Romanian

Constitutional Court. The reference constitutional framework

for regulating of the extended confiscation

Ph. D. Marieta SAFTA1

Abstract

This study examines - from a dual perspective - histor ical and teleolog ical, the

constitutional provisions that enshrine the pr esumption of la wful acquirement of assets,

including the development a nd interpreta tion thereof in the case-la w of the Constitutional

Court, in order to create a framework for analysis of Law no. 63/2012 amending and

supplementing the Criminal Code and Law no. 286/2009 on the Criminal Code, a la w that

establishes the measure of extended confiscation, expression of internationa l regula tory

concerns in this a rea.

Keywords: right to proper ty, presumption of la wful acq uirement of pr operty, lega l

certainty, extended confiscation, revision of the Constitution.

JEL Classification: K10, K11, K14

Introduction

One of the proposals contained in the bill for revision of the Constitution,

initiated by the President of Romania in 2011, at the Government’s proposal,

includes the elimination of the presumption of lawful acquirement of property,

currently governed by Article 44(8) second sentence of Constitution. By Decision

no. 799/20112, resuming the reasons which substantiated the finding of

unconstitutionality of two proposals for revision of the Constitution which had the

same subject matter, the Constitutional Court found that «elimination of the second

sentence of Article 44(8) of the Constitution, stating that „Lawfulness of

acquirement shall be presumed” is unconstitutional because it r esults in

suppression of a guara ntee of the right to property, infringing thus the limits in

matter of revision provided by Article 152(2) of the Constitution.»

In the same context, the Court also emphasized its case-law in the meaning

that „the regulation of this presumption does not prevent the investigation of

unlawful acquirement of wealth, but in this case the bur den of proof lies with the

person making such allega tion. Insofar the interested pa rty proves that some

assets, part of the wealth or the entire wealth of a person was acquired unlawfully,

those unlawful a ssets or wealth can be confiscated subject t o the law”, as well as

the fact that „the regulation of this presumption does not prevent the delegated or

primary legislator to adopt, pursua nt to Article 148 of the Constitution -

1 Marieta Safta - Ph. D, associate professor - lecturer to The Buch arest University of Economic

Studies, Department of Law; first assistant magistrate to the Constitutional Court of Romania.

2 published in the Official Gazette of Romania, Part I, no. 440 of 23 June 2011.

Juridical Tribune Volume 2, Issue 1, June 2012 129

Integration into the European Union, r egulations to enable full compliance with

EU legislation in the fight against crime”, with direct reference to the Council

Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of

Crime-Related Proceeds, Instrumentalities and Property3.

Less than one year after publication of the Constitutional Court Decision

no. 799/2011, Parliament passed a law transposing Article 3 of the above-

mentioned Framework Decision 2005/212/JHA, which introduced in the Criminal

Code the safety measure of extended confiscation. i.e. Law no. 63/2012 amending

and supplementing the Criminal Code and Law no. 286/2009 on the Criminal

Code4.

This study is mainly aimed at presenting the constitutional framework of

reference of the new regulation, respectively the development and interpretation of

relevant constitutional norms in the Constitutional Court’s case-law in the context

of international regulatory concerns in the same matter.

1. Enshrining in the Constitution the presumption of lawful

acquirement of property - an historical interpretation

Undoubtedly the application of a legal norm requires a necessary process

of interpretation, for a better understanding thereof; interpretation of the law

requires, as pointed out before5 an approach using a series of conjunct methods,

which establishes, for customization purposes, the exact meaning of the norm, its

scope, effects and purpose.

One of methods used for interpreting the law is the historical method,

which requires examination of the socio-legal circumstances that led to the

development and adoption of the law, involving the study of documents, the

preparatory work of the normative act, the explanatory memorandum, the proposed

amendments, the interventions during the debate of the normative act, and

comparison of the current regulation with the previous ones in order to draw the

practical reason that led to a certain regulation, the purpose of the regulation and

the legislative means employed to achieve the purpose6.

The historical interpretation of the constitutional norm which establishes

the presumption of lawful acquirement of property - both by comparison with the

previous regulations in this matter and looking at the social and historical

circumstances that led to its enshrining in the current Constitution - can be very

useful for its correct understanding and application. This is all the more because, as

emphasized in the doctrine of specialty7, in interpreting the Constitution account

must be given to the original intent of its „parents”. The Constitution is a fluid text,

3 published in the Official Journal of the European Union no. L 68 of 15 March 2005.

4 published in the Official Gazette of Romania, Part I, no. 258 of 19 April 2012.

5 Dan Claudiu Dnişor, Ion Dogaru, Gheorghe Dnişor, Gener al Theory of Law, C. H. Beck

Publishing House, Bucharest, 2006, p. 392.

6 Nicolae Popa, Mihail-Constantin Eremia, Simona Cristea, Genera l theory of Law, All Beck

Publishing House, Bucharest, 2005, p. 257.

7 Gheorghe Iancu, Some aspects concer ning the interpreta tion of the Constitution in the ca se-law of

the Constitutional Court, „Journal of Public Law” No. 2/2008, p. 119.