Criminal Law – Crime of causing or inciting prostitution for gain – forfeiture of property to the state
Economic and financial criminal law;
Guarantees in criminal proceedings;
Presumption of innocence;
RULING No. 101/15
11 of February of 2015
A norm in a law that establishes measures designed to fight organised and economic/financial crime says that assets are forfeit to the state in the event of conviction of any of a specific list of crimes. The norm also presumes that the difference between the value of the accused person’s assets and the amount that would be compatible with his/her lawful income constitutes an advantage derived from criminal activity.
In declining to declare this norm unconstitutional, the Constitutional Court noted that the special regime governing the forfeiture of assets to the state operates after conviction and thus does not contradict the constitutional presumption of innocence. What is more, the accused person always has the opportunity to prove that the presumption that the differential between the two sets of asset values is an advantage derived from criminal activity is inaccurate – a possibility that applies to all legal presumptions unless the legislator provides otherwise.
This concrete review case involved an appeal on constitutional grounds by a private individual against a decision of the Lisbon Court of Appeal.
The appellant’s request encompassed two questions of constitutionality, but the Constitutional Court refused to hear one of them on the grounds that the appellant had not properly identified the norm or normative interpretation he considered unconstitutional.
When used in the constitutional review setting, the term “norm” possesses a particular meaning which the Court has consistently defined as the prescriptive text of a given precept, with the condition that that prescriptive text was applied in the decision of the court a quo and the question of its constitutionality was raised during the proceedings. In the same context, “norm” also refers to the particular interpretative meaning the lower court gave to a given norm. Appeals to the Constitutional Court address norms and only them (i.e. they cannot be aimed at the concrete judicial decisions handed down in the case by the lower court(s)), and the appellant must clearly identify the norm or specific interpretation of a norm whose constitutionality he or she is asking the Court to review. The Court cannot disregard this requirement and itself undertake the task of identifying or “formulating” the object of the appeal. This would be contrary to the principle of judicial passivity by which the Court is bound and which limits its power to hear questions to those directed at a particular norm which the court a quo has applied or refused to apply.
In the present case the appellant was invited to identify the specific object of his first question, but did not do so and the Court was thus unable to hear that question.
He did, however, identify the norm linked to his second question of constitutionality: a norm included in a law that establishes measures designed to fight organised and economic/financial crime. This norm defines a special regime covering evidence gathering, setting aside the duty of professional secrecy and the forfeiture of assets to the state in the case of certain crimes that are listed in the law, one of which is the crime of causing or inciting prostitution for gain.
Where the special regime governing the forfeiture of assets to the state is concerned, the norm says that in the event a person is convicted of any of the crimes on the list, it is presumed that the difference between the value of his/her assets and the amount that would be compatible with his/her lawful income is an advantage derived from criminal activity.
The appellant argued that this norm is unconstitutional because it establishes a presumption which implies a reversal of the burden of proof and is in breach of the principle of the presumption of innocence, thereby injuring the guarantees which the Constitution affords to accused persons in criminal proceedings.
The Court took the view that when it established this presumption, the legislator assumed that in principle such cases entail illicit gains made from criminal activities. The Court considered it understandable for the legislator to attribute any income over and above the accused person’s lawful income to such activities, and also noted that the appellant could always have demonstrated that the amount in question was not in fact acquired unlawfully.
In the light of all this, the Court found no unconstitutionality in the norm before it.
The Ruling was the object of a partial dissenting opinion, whose author believed that the formal requirements for hearing the appellant’s first question of constitutionality had been met.