Notarial Law / Criminal Law – Crime of making false declarations
Legal type of crime;
Principle that criminal penalties must be provided for by law;
Parliament’s partially exclusive legislative competence;
Generalisation of findings of unconstitutionality.
RULING No. 96/15
3 of February of 2015
A Notarial Code (CN) norm said that signatories of notarised documents had to be warned in advance that they were subject to the penalties applicable to the crime of making false declarations before a public official if they culpably and to the detriment of someone else made or confirmed false declarations, and that that warning should be included in the notarised document. The Constitutional Court declared this norm unconstitutional with generally binding force, on the grounds that it was in violation of the constitutional principle that criminal penalties must be provided for by the appropriate form of law.
The Executive Law that approved the current Notarial Code was issued under the government’s own competence and not under a parliamentary law authorising the government to legislate. It is a primary requirement of the principle that criminal penalties must be provided for by law that both the criminalisation of a fact and the penalty for it must be set out in either a formal law passed by the Assembly of the Republic, or an executive law which the government was authorised to issue by the Assembly. This is because the definition of crimes, criminal penalties, security measures and the preconditions for their applicability falls within the Assembly of the Republic’s partially exclusive legislative competence. The criminalising Notarial Code norm before the Court was first formulated in the text of the Notarial Code when the latter was originally published, under circumstances that did not raise this question of organic unconstitutionality. The current norm could thus have been in conformity with the Constitution if it had been shown not to be innovative in relation to the previous versions of itself. The same defect would also have been precluded by demonstrating the existence of a line of continuity in the subsequent evolution of the legislation – i.e. a substantial match between the regulatory content of the original provision and that of the norms which resulted from any subsequent amendments. In past cases the Constitutional Court had constantly held that the Assembly of the Republic’s partially exclusive legislative competence is not infringed if the norms in a legislative act issued by the government on a subject encompassed by that partial exclusivity do not create a regime which materially differs from that which had thus far been in force as a result of legal acts issued by competent organs. In the present case there were small differences between the texts of the norm in the original and the current versions of the Notarial Code, where the determination of the criminalising elements were concerned, but the Court said these differences did not seem significant, but were rather the result of mere changes in style and did not possess the capacity to modify the content of the norm.
However, the two norms did differ in the ways in which they determined the penalty applicable to the conduct they typified as criminal. Although both employed a technique whereby they referred to another sanction-imposing norm, the original text referred to the “penalties applicable to the crime of falsehood”, whereas the latest version said that agents were liable to the “penalties applicable to the crime of making false declarations before a public official”.
The Court held that the change in the norm (added to the Notarial Code in 1990 and retained in the present version) referred to by the norm before it, and the consequent change in the punishment applicable to the crime, inevitably caused a substantial alteration in the norm’s scope compared to that of the previous version – an alteration that was significant enough to be called innovatory. In the absence of the appropriate legislative authorisation, this fact meant that the norm infringed the formal dimension of the principle that criminal penalties must be provided for by law and was therefore unconstitutional.
Under the combined terms of the Constitution and the Organic Law governing the Constitutional Court, whenever the Court has held the same norm unconstitutional in at least three concrete cases, both it and the Public Prosecutors’ Office possess the legitimacy to initiate abstract review proceedings in which the Court will decide whether or not the norm should be declared unconstitutional with generally binding force.
In the present case the Public Prosecutors’ Office asked the Court to conduct an abstract review of a Notarial Code norm that had already been found unconstitutional more than three times. This norm said that signatories of notarised acts had to be warned in advance that they were subject to the penalties applicable to the crime of making false declarations before a public official if they culpably and to the detriment of someone else made or confirmed false declarations, and that that warning should be included in the notarised document.
The Court noted that the type of crime to which the Notarial Code article referred did not match either the descriptive title or the content of any criminalising provision in the Criminal Code or of any other legislation known to the Court.
The task of establishing a match between the term ‘crime of making false declarations before a public official’ and a specific legal type of crime is an interpretative one and faces difficulties and uncertainties that are incompatible with the nulla poena sine lege certa aspect of the principle of legality.
The requirements imposed by the need for certainty in the criminal law and to preserve the principle of equality are only met when the concrete, individualised decision in question can be founded on a normative provision that clearly and accurately defines both the preconditions for a crime to exist, and the type and degree of punishment.
The Court emphasised that it had already handed down more than three concrete review decisions in which it had found the norm before it here unconstitutional, and that the condition for the issue of a general declaration of unconstitutionality under the ex post facto abstract rules was thus fulfilled. However, some of the decisions on which the Public Prosecutors’ Office had founded its review request were based on the finding that the norm was materially unconstitutional because it was in breach of the principle that a crime must be provided for by law and that that criminalising law must clearly determine the applicable penalty.
The Court therefore asked itself whether the type of procedure which the Organic Law governing the Constitutional Court lays down for the generalisation of findings in which the same norm has been held unconstitutional on multiple occasions, allows a declaration of unconstitutionality with generally binding force to be based on grounds other than those that motivated the rulings or decisions on which the request for that declaration was itself founded. Specifically in the present case, whether a declaration of organic unconstitutionality was permissible when the justifying decisions resulted from the norm’s material unconstitutionality.
Looking back at its jurisprudence, the Court answered its own question in the affirmative. The Organic Law says that the Court can declare the unconstitutionality of norms that are brought to it for review, on the grounds that they are in violation of constitutional norms or principles other than those referred to by the petitioner. This is the same as saying that the Court can declare such norms unconstitutional in the light of constitutional norms or principles other than those referred to in the reasoning underlying the earlier rulings that served as the basis for the review request.
As such, and in the light of its past decisions, the Court declared the norm unconstitutional with generally binding force.
The Ruling was the object of one concurring and three dissenting opinions.
Rulings nos. 266/87 (08-07-1987); 340/05 (22-06-2005); 114/08 (20-02-2008); and 379/12 (12-07-2012).