Construction of a type of crime that does not make it possible to identify the action or omission which is prohibited
Principle of ‘typicity’
Principle of the non-retroactivity of the criminal law
Presumption of innocence
Crime of illicit enrichment
Illicit enrichment by a public official
Illicit enrichment by a political officeholder or senior public officeholder
RULING No. 179/12
4 of April of 2012
I – In a state that is based on the rule of law in the substantive sense, there must be compliance with the constitutional-law principle under which the criminal law must only be used to protect legal assets and values that eminently deserve penal protection.
II – The construction of a type of crime that does not make it possible to identify the action or omission which is prohibited violates the principle of the ‘typicity’ and non-retroactivity of the criminal law.
III – A legal type of crime in which a decision to convict is not necessarily based on the positive demonstration of the accused person’s culpability and can be arrived at by sacrificing the principles of the presumption of innocence, ‘in dubio pro reo’ and ‘nemo tenetur se ipsum accusare’ also violates the principle of the presumption of innocence.
This case involved a request from the President of the Republic for the prior review of norms contained in a Decree of the Assembly of the Republic approving the regime that created the crime of illicit enrichment. At stake were two norms that amended the Criminal Code by introducing the crimes of illicit enrichment and illicit enrichment by a public official; and another two norms that were appended to the Law which regulates the crimes that entail special responsibility because they are committed by political officeholders, one of which configures the crime of illicit enrichment by a political officeholder or senior public officeholder, while the other gives the Public Prosecutors’ Office the competence to prove all the elements of the crime of illicit enrichment.
The Court began by offering a brief background to the matter that formed the object of the present abstract review, both in international and comparative law and in Portuguese law.
The Court recalled the 2003 United Nations Convention against Corruption (which came into force in Portuguese law in 2007), which is a normative instrument that has binding legal effects. These include the imposition of legal duties on the states that are parties to the Convention – specifically here, the duty to criminalise certain forms of conduct. Portugal made no reservations with regard to this Convention. The latter says that: “Subject to its constitution and the fundamental principles of its legal system, each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, illicit enrichment, that is, a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income.” The Court also recalled that states which had signed the Convention, but had not (yet) criminalised illicit enrichment (and had not made reservations in this respect), were not necessarily failing to fulfil their undertakings, inasmuch as the Convention itself allows states not to criminalise illicit enrichment if this is based on their constitution or on fundamental principles of their legal order. The Court reviewed a number of countries’ positions on this subject – namely those of Finland (which considers that it is unnecessary to provide for a legal type of crime such as illicit enrichment), and the United States and the United Kingdom (both of which take the view that implementation of the Convention article on illicit enrichment would imply transferring the burden of proving the legitimate nature of the source of income in question to the accused). What all the states that signed the Convention must obligatorily do is to take such measures as are necessary and appropriate to prevent the forms of conduct the Convention is designed to combat.
The Court cited the case of the European Union, which is a party to the Convention. The EU has instruments which, while they do not refer to “illicit enrichment” as such, are related to it (e.g. the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union). The Court also mentioned a number of legal orders which admit the existence of the crime of illicit or unjustified enrichment, despite the difficulties they face in criminalising it. The Macau Special Administrative Region is of particular interest in this respect, due to the closeness between its legal system and the Portuguese one. Having said this, the Constitutional Court noted that the great majority of states do not accept the criminalisation of illicit or unjustified enrichment, either because they deem it unnecessary within the framework of the other instruments with which they fight corruption, or because it is difficult for them to reconcile it with the principle of the presumption of innocence. One important exception in this regard is France.
The almost total absence of a crime of illicit enrichment in the European criminal-law context contrasts with the situation in fiscal law, where there is a whole range of normative ‘institutes’ targeted at certain unjustified increases in personal assets revealed by the existence of a mismatch between declared income and certain ‘manifestations of wealth’. The functional purpose of these normative instruments is to detect anomalous situations in which the capacity to pay taxes revealed by the taxpayer when he/she buys certain items does not match the capacity that can be deduced from the income he/she declares. In Portugal too there are both fiscal-law initiatives (the indicative assessment of taxable income based on a comparison between declared income and certain manifestations of wealth) and non-fiscal measures. However, the aforesaid manifestations of wealth do not automatically lead to additional taxation, which is always dependent on an absence of justifications for the mismatch from the taxpayer. Among others, the non-fiscal measures include the crime of money-laundering, the loss of advantages, and the loss/confiscation of property.
On the question of whether the norms which the Court was asked to review fulfilled certain preconditions that would be required in order to constitutionally legitimate the selection by the legislator of forms of behaviour it intended to be qualified as criminal – preconditions that would preclude that typification of forms of conduct that are not linked to the protection of legal assets – the Constitutional Court said that in the case before it there was no clearly defined legal asset. This necessarily meant that the norm was unconstitutional, because the purpose of the new criminalisation was to punish crimes that have been committed in the past – albeit they have not been the object of criminal proceedings and conviction – and have generated illicit enrichment. The norm would have sought to punish, in order to protect some undefined legal asset.
The type of crime which the legislator formulated led the Court to consider that under the terms of the norms, once a mismatch between income and assets was detected, that mismatch would be qualified as illicit enrichment without any positive demonstration that there were no licit causes of any kind for it. This situation does not fulfil the requirement that the legislator must ensure that criminal norms do not lead to presumptions of guilt and do not cause criminal liability to be derived from “facts” that are merely presumed. Inasmuch as the list of licit causes constitutes an open concept, the requirement for the positive demonstration of the absence of any such cause would affect the operability of the type.
This Ruling was the object of two dissenting opinions and one partially dissenting opinion. The authors of the former disagreed with the majority because they felt that there was no indetermination or overlap in terms of the protected legal asset. According to one dissenting Justice, the legal asset the legislator sought to protect was that of the transparency of sources of income, which already possessed a number of concrete presences in the legal system, above all in the shape of the obligation on the part of public officeholders to declare their income for the purpose of the public control of their wealth. The other Justice was of the view that the legal asset in question was a composite, whose constitutional-law legitimacy was provided by the same grounds as those that legitimise the criminalising norms whose direct breach would lead to the enrichment the legislator sought to sanction. Both dissenters felt that the issue here was that the construction of the legal type of crime was such that there was no typification of the forms of behaviour which would constitute a breach of the norms, and that there was also a violation of the aspect of the principle of the presumption of the accused person’s innocence regarding the prohibition on the reversal of the burden of proof.
The author of the partially dissenting opinion felt that there was no legal asset that possessed penal dignity and criminalisation was unnecessary (given the existing instruments that were already designed to sanction the behaviour in question) in the case of the criminalisation applicable to all persons, be they natural or legal; but that there was a legal asset with clear penal dignity that was inherent in the principle of the state based on the rule of law, in the case of the norms regarding the ‘illicit enrichment’ of public officials and political and senior public officeholders. To the partially dissenting Justice, this asset was that of the collectivity’s trust in the state, or the state’s credibility in its eyes (lato sensu), and the resulting capacity on the part of the state to intervene in order to achieve purposes with which it is entrusted (the mediate legal asset that warrants the criminalisation); and the concealment of the source of the assets or income of persons who hold public authority or intervene in the management of public property and services could endanger this legal asset.
See Rulings nos. 426/91 (06-11-91), and 108/99 (10-02-1999).