FOURTH SECTION

Application no. 17483/10 Dainis MARKUS against Latvia lodged on 17 March 2010

STATEMENT OF FACTS

The applicant, Mr Dainis Markus, is a Latvian national, who was born in 1953. He is represented before the Court by Mr A. Laizāns , a lawyer practising in Rīga .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The applicant ’ s conviction

On 22 February 2008 the Rīga City Centre District Court convicted the applicant of requesting and attempting to receive a bribe. The applicant was sentenced to a prison term of four years. The court also ordered confiscation of his property. With regard to the sanction to be imposed on the applicant, after finding that no mitigating or extenuating circumstances were present, the first-instance court ’ s judgment included the following passage:

“Taking into account the factual circumstances of the case and the personality and the health condition of the accused D. Markus, as well as his role in the process of the commission of the crimes, [taking into account] the fact that he planned and directed the course of receiving the bribe, decided and determined the amount of the bribe, and also [taking into account] the opinion expressed by the prosecutor, the court considers that [the accused] ought to be punished by imprisonment ... , applying the additional sanction provided for by section 320 (2) of the Criminal Law – confiscation of property, since not imposing a sanction exactly like the aforesaid would fail to deter him and other persons from committing crimes ... ”.

The applicant ’ s conviction and the sanction that had been imposed by the first-instance court was subsequently confirmed by decisions of the Rīga Regional Court (27 April 2009) and the Senate of the Supreme Court (4 November 2009).

2. Constitutional complaints

The applicant then attempted to dispute the constitutionality of section 320 (2) of the Criminal Law (as in force at the time when it was applied to him) by applying to the Constitutional Court . On two occasions – on 26 January 2010 and on 3 March 2010 – the Constitutional Court refused to accept the application for examination, considering the legal substantiation of the claim manifestly insufficient.

On 17 March 2010 the applicant submitted an amended claim. Among other things he explained that confiscation of all of his property would make it impossible for him to care for his underage son and for his disabled parents. He furthermore emphasised that a confiscation order also affected a house registered in his name but used by his son with his wife and their underage daughter. The applicant concluded that compulsory confiscation of property was contrary to Articles 91 (prohibition of discrimination), 92 (right to fair trial) and 105 (right to property) of the Constitution of Latvia.

With regard to the prohibition of discrimination the applicant denounced the indiscriminate character of compulsory confiscation of property. In other words, he argued that courts when ordering confiscation ought to be able to take into account the material situation of persons concerned in order to avoid a disproportionate impact of confiscation. The applicant considered that the possibility to confiscate the entire property of a convicted person was a relic of the Soviet criminal system which had no place in market economy.

Concerning the aspect of fair trial the applicant emphasised that the compulsory nature of confiscation prevented criminal courts from differentiating and individualising the sanction, while taking into account the specific circumstances of each case. He further noted that confiscation of property in most cases had an effect also on the lives of other persons (relatives and others), thus the sanction was applied not only towards the criminally culpable person but also towards third persons. The applicant also drew the Constitutional Court ’ s attention to the fact that the Latvian legislation did not contain sufficiently clear regulation concerning the property of the criminally convicted persons and the persons under their care that could not be subject to confiscation.

Lastly the applicant argued that compulsory confiscation of property was incompatible with the constitutionally guaranteed right to property, in particular taking into account how that right is formulated in the Constitution of Latvia (see the “Relevant domestic law” section below).

3. The decision of the Constitutional Court

On 21 April 2010 the Constitutional Court adopted a decision to institute proceedings concerning the compatibility of section 320 (2) of the Criminal Law with Article 105 of the Constitution. It refused to initiate proceedings with regard to that provision ’ s compatibility with Articles 91 and 92. The Constitutional Court found that the applicant had failed to specify the circle of persons with whom he could be considered to be in a similar and comparable situation. Accordingly his claim with regard to the prohibition of discrimination was dismissed. With regard to the guarantees of fair trial, the Constitutional Court referred to its earlier case-law to the effect that in determining penal policy the legislature had a wide margin of appreciation which clearly had not been overstepped in the present case when the legislator chose to provide for compulsory confiscation of property. The Parliament and the Criminal Law department of the Law Faculty of University of Latvia were invited to submit their observations.

The Constitutional Court held a hearing and on 6 January 2011 adopted a decision to discontinue the proceedings.

At the outset of the decision the Constitutional Court reiterated that the legislative branch had a large margin of discretion in determining the penal policy. However, the Constitutional Court had a right to determine whether the legislature had not manifestly overstepped the limits of that margin.

The Constitutional Court continued by narrowing the scope of the applicant ’ s complaints. Namely, it found that the claim had been submitted in the applicant ’ s name only and therefore the Court was not authorised to assess the potential effect of the confiscation order on his relatives.

The Constitutional Court found that confiscation of property was to be seen as a restriction of property rights. Such restriction was in accordance with the law (since section 320 (2) explicitly provided for such a sanction) and it served a legitimate aim (protection of democracy, public security and rights of others). It remained to be seen whether the restriction in question was proportional to the legitimate aim sought to be achieved.

In this regard the decision noted, inter alia , the following. The mere fact that there existed alternative means for achieving the Parliament ’ s stated purpose of ensuring confiscation of criminally obtained property was not decisive, given the above-mentioned wide margin of discretion in the field of penal policy. The Constitutional Court distinguished the confiscation ordered in the applicant ’ s case from the one that the Court had found to be compatible with the Convention in Raimondo v. Italy (22 February 1994, Series A no. 281 ‑ A), since an attempt to accept a bribe was not a crime that could only be organised by representatives of organised crime. The Court took into account that the Latvian legal doctrine contained diametrically opposite opinions concerning confiscation of property. It also noted the existence of conflicting opinions about the exact scope of the sanction of confiscation of property, the lack of clarity being illustrated by decisions of criminal courts, some of which had on occasion only ordered confiscation of part of the convicted person ’ s property while other courts had considered that the Criminal Law did not authorise anything short of ordering confiscation of all the property. The Constitutional Court referred to section 42 (4) of the Criminal Law and argued that the legislator had not intended that the entirety of property could be confiscated, yet at the same time remarked that the “law” referred to in that provision had never been adopted. For that and other reasons the Constitutional Court drew the Parliament ’ s attention to “serious defects” in the legal regulation for imposing and executing confiscation of property.

The Constitutional Court came to an interim conclusion that “the proportionality of the restriction of fundamental rights provided for by the disputed norm should be assessed not by looking at the text of the disputed norm in isolation but by [analysing] the understanding and the compatibility with the Constitution of the general part [1] of the [Criminal Law] as a whole”. Since the applicant had only contested the constitutionality of the sanction provided for by section 320 (2) of the Criminal Law and not “the norms of the [Criminal Law] that establish confiscation as a type of criminal penalty”, the Court turned to the question of whether it was possible and necessary for it to expand ex officio the claim that had been submitted by the applicant. The Constitutional Court , having taken into account the way the applicant ’ s claim had been formulated, concluded that the legal arguments submitted by him were not sufficient to enable the Court to assess the constitutionality of the pertinent norms of the general part of the Criminal Law. Therefore it was decided to discontinue the proceedings.

That decision was final and the applicant could no longer submit an amended claim, since more than six months had elapsed after the date on which his conviction became final.

B. Relevant domestic law

Article 105 of the Latvian Constitution ( Satversme ), in so far as it is relevant, provides as follows: “Everyone shall have a right to property. Property may not be used for purposes contrary to the interests of society. Property rights may be restricted only as provided by law. ... ”

Section 320 (2) of the Criminal Law, as in force at the time when it was applied to the applicant, provided as follows: “[f]or [receiving a bribe], in case it has been done repeatedly or on a large scale or in case the bribe has been requested, the punishment shall be deprivation of liberty for three to ten years, with confiscation of property”.

Section 42 of the Criminal Law, as in force when it was applied in the applicant ’ s criminal case, provided as follows:

“Section 42. Confiscation of property

(1) Confiscation of property is compulsory transfer to the State without compensation of the entirety or part of a convicted person ’ s property. Confiscation of property may be ordered either as the principal sanction or as an additional sanction. It is also permissible to confiscate the convicted person ’ s property which has been transferred to another physical or legal person.

(2) Confiscation of property may only be ordered in cases provided for in the special part of this Law.

(3) When ordering a partial confiscation of property, the court shall specifically identify the property to be confiscated. When ordering confiscation of property for a criminal offence in the field of road traffic, the court shall order a partial confiscation of property and order the confiscation of the vehicle.

(4) The property indispensable to the convicted person or to persons under his care shall be specified by law.”

The “law” mentioned in section 42 (4) has not been adopted.

Section 49 of the Criminal Law provides that if two or more mitigating circumstances are found to be present and there are no extenuating circumstances, the competent court may impose a more lenient sanction than the one provided by law. On the same grounds the court may choose to not impose an additional sanction, the imposition of which is mandatory according to the law. This regulation also relates to the order of confiscation of property.

Section 144 of the Sentence Enforcement Code provides as follows about the confiscation of property:

“The property to be confiscated shall be indicated in a judgment of a court and included in the property inventory [ mantas aprakstes akts ] as property belonging to the convicted person. ...

The basis necessity goods and sustenance [ uzturlīdzekļi ] belonging to the convicted person and his dependants shall not be confiscated.”

COMPLAINTS

In the initial application that the applicant submitted to the Court on 17 March 2010 he complained under Article 6 § 1 that the Constitutional Court had failed to adequately motivate its refusal to accept his constitutional complaint.

On 4 July 2011 the applicant submitted another application, which was joined to the one from 17 March 2010. In the second application he submitted two complaints:

1) the Constitutional Court ’ s decision of 6 January 2011 was at odds with the guarantees of Article 6 § 1 in that it had not been adequately motivated and had in fact been an attempt on behalf of the Constitutional Court to avoid having to resolve a politically sensitive issue; and

2) the confiscation of his legally acquired property had been a disproportionate interference with his rights guaranteed by Article 1 of Protocol No. 1.

QUESTIONS TO THE PARTIES

[1] The “ general part” of the Criminal Law contains the general principles applicable in criminal proceedings, while the “special part” lists specific criminal offences and the sanctions to be imposed.