Commentary on Judgment No. 18 of 2023 of the Constitutional Court: Implications for Criminal Confiscation

The recent judgment No. 18 of 2023 of the Constitutional Court has raised important reflections on the topic of criminal confiscation, bringing significant changes to the current legislation. This decision fits into a complex legal context, where the protection of creditors' rights clashes with the needs of public order and justice. Let us explore 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 deadline set by Law No. 228 of December 24, 2012, could begin before the entry into force of that law. This provision concerned decisions of criminal confiscation pursuant to Article 240-bis of the Penal Code, which occurred within a well-defined timeframe.

  • Decisions of criminal confiscation between 01/01/2013 and 19/11/2017 are now subject to a new assessment.
  • The timeliness of applications for the protection of creditor positions must be examined according to the most favorable rules currently in force.
  • Article 58, paragraph 5, of Legislative Decree No. 159 of September 6, 2011, thus becomes central for the evaluation of pending applications.

The Implications of the Ruling

Criminal confiscation in particular cases - Judgment of the Constitutional Court No. 18 of 2023 - Confiscation decisions made between the date of entry into force of Law No. 228 of December 24, 2012, and the date of validity of Law No. 161 of October 17, 2017 - Applications for the protection of creditor positions affected by the confiscatory measure - Verification of timeliness - Applicable regulation - Indication - Reasons. Regarding criminal confiscation, following the judgment of the Constitutional Court No. 18 of 2023, declaring the constitutional illegitimacy of the provision of Article 37, first period, of Law No. 161 of October 17, 2017, in the part that did not exclude that the deadline referred to in Article 1, paragraphs 199 and 205, of Law No. 228 of December 24, 2012, could start before the entry into force of the mentioned Article 37, in the case of decisions of criminal confiscation pursuant to Article 240-bis of the Penal Code occurring in the period between 01/01/2013, the date of entry into force of Law No. 228 of 2012, containing "Provisions for the preparation of the annual and multi-year budget of the State," and 19/11/2017, the date of validity of Law No. 161 of 2017, the timeliness of applications for the protection of creditor positions affected by the confiscatory measure, if still pending, must be evaluated with regard to the regulations provided by Article 58, paragraph 5, of Legislative Decree No. 159 of September 6, 2011, in the text currently in force, as it is more favorable than the previous one, so that such applications will be admissible if less than a year has passed since the filing of the decree of enforceability of the bankruptcy state.

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 in more favorable times. Furthermore, it underscores the importance of a timely evaluation of applications, a crucial aspect in a field where time can significantly influence the chances of recovering credits.

Conclusions

Judgment No. 18 of 2023 represents a step forward in the protection of creditors' rights in cases of criminal confiscation. By introducing more favorable criteria for assessing the timeliness of applications, the Constitutional Court has shown that it is attentive to the dynamics of criminal law and the needs of social justice. It is essential that legal practitioners take these innovations into account to ensure the correct application of the rules and adequate protection of the rights of their clients.

Bianucci Law Firm