Commentary on Constitutional Court Ruling No. 18 of 2023: Implications for Criminal Confiscation
The recent ruling No. 18 of 2023 by the Constitutional Court has prompted significant reflections on criminal confiscation, introducing substantial changes to the current regulations. This decision is situated within a complex legal landscape where the safeguarding of creditors' rights clashes with public order and justice requirements. Let's examine the main innovations introduced by this ruling.
The Regulatory Context
The Court declared the constitutional illegitimacy of the provision contained in Article 37 of Law No. 161 of October 17, 2017, which did not exclude the possibility that the forfeiture period provided for by Law No. 228 of December 24, 2012, could commence before the law itself came into force. This provision concerned criminal confiscation decisions under Article 240-bis of the Criminal Code, issued within a specific timeframe.
- Criminal confiscation decisions issued between 01/01/2013 and 19/11/2017 are now subject to re-evaluation.
- The timeliness of applications for the protection of creditor positions must be assessed according to the most favorable currently applicable rules.
- Article 58, paragraph 5, of Legislative Decree No. 159 of September 6, 2011, therefore becomes central to the assessment of pending applications.
Implications of the Ruling
Criminal confiscation in specific cases - Constitutional Court Ruling No. 18 of 2023 - Confiscation decisions issued between the effective date of Law No. 228 of December 24, 2012, and the effective date of Law No. 161 of October 17, 2017 - Applications for the protection of creditor positions affected by the confiscation order - Timeliness verification - Applicable regulations - Indication - Reasons. Regarding criminal confiscation, following Constitutional Court Ruling No. 18 of 2023, which declared the constitutional illegitimacy of the provision in Article 37, first period, of Law No. 161 of October 17, 2017, in the part where it did not exclude that the forfeiture period referred to in Article 1, paragraphs 199 and 205, of Law No. 228 of December 24, 2012, could commence before the entry into force of the aforementioned Article 37, in the case of criminal confiscation decisions under Article 240-bis of the Criminal Code issued in the period between 01/01/2013, the effective date of Law No. 228 of 2012, concerning "Provisions for the formation of the annual and multi-year state budget," and 19/11/2017, the effective date of Law No. 161 of 2017, the timeliness of applications for the protection of creditor positions affected by the confiscation order, where still pending, must be assessed with regard to the regulations provided for in Article 58, paragraph 5, of Legislative Decree No. 159 of September 6, 2011, in its currently effective version, as it is more favorable than the previous one. Consequently, such applications will be admissible if less than one year has passed since the filing of the decree approving the passive state of the estate.
This ruling not only clarifies the applicability of the rules but also offers greater protection to creditors' rights, who can now see their position recognized under more favorable terms. Furthermore, it emphasizes the importance of a timely assessment of applications, a crucial aspect in an area where time can significantly influence the possibilities of debt recovery.
Conclusions
Ruling No. 18 of 2023 represents a step forward in protecting creditors' rights in cases of criminal confiscation. By introducing more favorable criteria for assessing the timeliness of applications, the Constitutional Court has demonstrated its attentiveness to the dynamics of criminal law and the demands of social justice. It is essential for legal practitioners to consider these developments to ensure the correct application of the rules and adequate protection of their clients' rights.
