Criminal Law – Criminalisation of unjustified (illicit) enrichment
Constitutional axiological order;
Criminal-law values and assets;
Unjustified (illicit) enrichment;
Principle of legality;
Principle of the presumption of innocence;
Principle of proportionality.
RULING No. 377/15
27 of July of 2015
A Decree of the Assembly of the Republic added a crime of ‘unjustified enrichment’, which could be committed by both natural and legal persons, to the Criminal Code. In a prior review case, the Constitutional Court found some of the norms contained in the Decree unconstitutional. The Court considered that these norms were in breach of: the principle of proportionality, under which norms that restrict constitutional rights, freedoms or guarantees must be limited to that which is strictly necessary in order to safeguard other rights or interests to which the Constitution affords its protection; the principle of legality, under which the law must be sufficiently precise in its specification of the facts that constitute a given legal type of crime; and the principle that accused persons must be presumed to be innocent.
A Decree of the Assembly of the Republic created a new crime, which it called ‘unjustified enrichment’. It also added an article to the Law on crimes committed by political officeholders or for which they are otherwise responsible, such as to make special provision for the crime of unjustified enrichment when committed by a political officeholder or senior public official, either while he/she is in office, or during the three years after leaving it. These were criminal policy measures taken by the Assembly in the exercise of its competence to define new crimes and penalties. The decision whether it is necessary to resort to penal means pertains primarily to the legislator, but in a state based on the rule of law the latter can only define criminal policy measures that comply with the applicable constitutional requirements, and first and foremost the principle that any penalty must be necessary. A legislative policy decision that leads to the provision for a new type of crime is only in conformity with the principle that restrictions on constitutional rights, freedoms and guarantees must be proportional if the legal value or asset protected by the new type both deserves and needs penal protection. The Constitutional Court is responsible for determining whether new types of crime fulfil the standards which make it legitimate to say they are constitutional. In its jurisprudence the Court has held that each time a new crime is created, there must be an analogy between the constitutional axiological order and the legal system with regard to criminal-law values and assets; and that any norm which creates or defines a crime and does not seek to protect a clearly defined criminal-law value or asset is null and void, because it is materially unconstitutional.
It is not enough for the legislator to have intended to preserve a social value which, in the light of the Constitution, can be seen as deserving the highest possible degree of legal protection; it is also necessary for there to have been no other possible legislative-policy means of achieving the same goal without resorting to a penal intervention. The criminal law operates ultima ratio – as a last resort. The principle that a penalty must be necessary is linked to the typification aspect of another constitutional principle – the principle of legality – under which the legislator is obliged to identify the behaviour it considers punishable as precisely as possible, without any ambiguity. The punishment must be for a form of behaviour which is specific, adequately described and undertaken by a certain agent, and which results in a certain, determined action or omission that can be attributed to that same agent. The principle of legality places the legislator under a duty to detail the new type of crime in a way that allows citizens to understand what voluntary facts – i.e. what wilful acts or omissions on their part – will cause them to contravene the criminal law. The only way to know exactly what constitutes punishable criminal behaviour is to establish the criminal-law value of a particular form of behaviour as precisely as possible. Taken together, the principle that the penalty must be necessary and the principle of legality in the guise of lex certa express the value ‘individual freedom’, which is a fundamental value in a state based on the rule of law; and both of them assume compliance with the principle in dubio pro libertate. A legislator that chooses to criminalise an act must not construct the applicable penal norms in such a way that their formulation allows the commission of a crime to be merely presumed, because otherwise they would conflict with the presumption of innocence, which must guide the legislator not only when it drafts procedural norms, but also when it establishes substantive ones.
The Assembly of the Republic decreed (a step in the legislative procedure prior to the new act becoming law) the creation of a new legal type of crime entitled ‘unjustified enrichment’, by typifying an infraction that required the combination of two elements: the acquisition, possession or other form of control over material assets; and an incompatibility between those assets and the natural or legal person’s declared or undeclared income.
The typical agent of the infraction was the ordinary citizen, in that a discrepancy between the assets which are acquired, possessed or controlled and those which ought to be declared would always have been criminally relevant when it occurred in anyone’s legal sphere. The legal values and assets protected by the measure were the “state’s fundamental interests”, “trust in institutions and the market”, “transparency”, “probity”, the “fitness of sources of income and assets”, “fairness”, “free competition”, and “equal opportunities”. The typical “behaviour” that was deemed punishable and capable of actually or potentially damaging the valuable legal asset the legislator sought to protect took the shape of the existence of an incompatibility between two amounts – the amount of assets “possessed” and the amount “subject to declaration”. The criminalised form of behaviour was the verified existence, at any time and within the legal sphere of any person, of any discrepancy in the form of an unexplained positive variation in the assets “possessed” compared to those that were or ought to have been declared.
Both the fact that the legislator included unjustified enrichment in the systematic framework of “crimes against the implementation of a state based on the rule of law”, and the reasons it gave for prefiguring a new type of crime within that framework, mean that the legislative power attached the most intense axiological weight to the legal value or asset it believed would be protected by the new criminalisation, and justified this with reference to the values involved in the very maintenance of the essential architecture of the Portuguese constitutional system.
The Court took the view that the legislator had manifestly failed to fulfil its duty to identify the voluntary fact it deemed punishable with the maximum possible degree of precision. The description of the criminal infraction did not meet the requirement derived from the constitutional principle of lex certa. It did not make the sense of the penal prohibition clear enough to enable citizens to comply with or be guided by it.
The Court said that when the legislator considered a mere variation in assets to be punishable, it did not identify the concrete “behaviour”, be it in the form of a positive act or an omission, that was to be associated with a judgement that the penal law has been infringed. What the Assembly Decree sought to criminalise could be mistaken for a state of affairs based merely on an objective discrepancy.
The new type of crime could be committed as a result of the mere existence of a quantitative incompatibility between the assets its agent “possessed” and those he/she/it had or should have “declared”, regardless of the lawful or unlawful reasons that might justify the variation. The name given to the crime was thus a misnomer, in that the term “unjustified” would appear to mean that a mismatch between the values of two sets of assets was automatically linked to a judgement of criminality. The scope of the criminalisation was so broad that it could encompass some very heterogeneous life situations which it would not be legitimate to associate with a single, undifferentiated judgement of negative legal value. This breadth of the provision could mean that the variation in assets instead revealed another unlawful practice – that of making inaccurate or incomplete declarations. The Court said that in that situation, the law ought to punish this type of “behaviour” by providing for a crime of tax fraud. If the variation in assets revealed increases in wealth obtained by practices involving corruption, it might entail a crime of money-laundering. In other words, the heterogeneity of the possible life situations warrants different judgements of criminal misconduct.
The Court also emphasised that by presuming a crime had been committed, the norms placed the burden of justifying the variation in assets on the agent, in criminal proceedings that had already been brought against him/her/it, thereby conflicting with the principle of the presumption of innocence.
The Court said that it was also impossible to determine what legal value or asset deserved penal protection to the point of justifying criminalisation. Criminalising a mere variation in assets – the difference between assets that are actually “possessed” and those that were subject to declaration – would represent a criminal policy that was so imperfectly designed as to make it impossible to determine just what form of human “conduct” was really the object of this negative judgement.
The other norm before the court specifically concerned crimes pertaining to political and senior public officeholders. This particular version of the crime of unjustified enrichment was almost identical to the general one, but the regime was more severe, in that the untolerated difference between “possessed” and “declared” assets was smaller and the resulting prison terms were longer. In addition, the crime could be committed not only when the agent was in office, but also during the three years after he/she left it.
The Court was of the opinion that political officeholders (a generic category defined to include senior public officeholders) undertake special duties and responsibilities to the community they serve. The Constitution recognises that such officeholders possess a special status, which not only makes them generically liable in political, civil and criminal terms for actions and omissions linked to their duties, but also requires the legislator to regulate two areas: the “duties, responsibilities, liabilities and incompatibilities” pertaining to this type of officeholder; and the “consequences of failure to fulfil them”. They are also subject to a general duty of transparency with regard to the way in which they conduct their personal life, albeit this only applies to persons with public decision-making powers.
However, the Court said that this constitutional status did not enable it to change its views on the type of crime the Assembly Decree sought to add to the Criminal Code. The norm that would have been added to the law on crimes pertaining to political officeholders was entirely homologous to the first norm analysed in the present Ruling. The only features that would have distinguished the crime of unjustified enrichment committed by political officeholders from that committed by other citizens were the special condition of the agent and the greater severity of the applicable sanctions.
As such, the Court concluded that the norms before it were unconstitutional.
Five Justices concurred with the Ruling, but either wholly or partially disagreed with the grounds for it. One of them was the rapporteur. When a rapporteur dissents from the majority decision, he/she is replaced in that role. However, when he/she concurs with the decision itself, but only disagrees with part of the grounds for it, and is thus able to draft a ruling that sets out the majority opinion and reflects the fact that the other Justices support the decision itself, albeit not all or part of its grounds, there is nothing to prevent him/her from continuing as rapporteur.
See Rulings nos. 270/87 (10-07-1987); 135/92 (02-04-1992); 252/92 (01-07-1992); 83/95 (21-02-1995); 246/96 (29-02-1996); 604/97 (14-10-1997); 108/99 (10-02-1999); 168/99 (10-03-1999); and 128/12 (07-03-2012).