23/7/2019

Individual Application 74/19

Press Release concerning the Judgment Finding a Violation of the Right to Property due to Enforcement of the Confiscation Order despite the Decision Suspending Pronouncement of the Verdict

The Facts

A criminal complaint was filed against the applicant by the officers of the Forestry Department who found out during inspection that the applicant had planted pistachio trees on a forestry zone. Although the chief public prosecutor’s office requested the applicant’s punishment, he requested his acquittal maintaining that the immovable with pistachio trees had been previously registered in his name. He also consented to the delivery of a decision suspending pronouncement of the verdict.

The incumbent criminal court conducted an on-site examination in company with the experts who indicated in their technical report that the impugned zone was located within the area classified as forest land. The incumbent court convicted him for having occupied and exploited a land within an area finally classified as forest but decided to suspend the pronouncement of his verdict. It also ordered confiscation of the pistachio trees planted on the impugned land.

Appealing the court’s decision in so far as it concerned the confiscation order, the applicant requested stay of the enforcement of the confiscation process as the decision was under an appellate review. The court dismissed his request. The Court of Cassation, examining the applicant’s request for appeal, held that decisions suspending pronouncement of the verdict were appealable, whereas it was impossible to lodge an appeal against the confiscation order. It accordingly remitted the case-file without conducting an examination.   

It has been indicated that for the enforcement of the confiscation order, the report issued by the Forestry Department and the confiscation order were read out and notified to the applicant; however, he abstained from signing it.

The Applicant’s Allegations

The applicant maintained that his right to property was violated as the decision ordering confiscation of the trees, which was issued at the end of the criminal prosecution, had been enforced despite the finalization of the decision suspending pronouncement of the verdict.  

The Court’s Assessment

In its previous judgment with regard to confiscation, the Constitutional Court indicated that application of confiscation measure for the purpose of preventing any acts and actions damaging or destroying forests pursued a legitimate aim in the public interest. 

In the present case, the confiscation order issued by the first instance court in addition to the decision suspending pronouncement of the verdict was a pending decision too as it was contingent upon the same verdict. In the same vein, the Court of Cassation notes that the confiscation measure is not capable of bearing legal consequences until the pronouncement of the verdict. In this respect, an appeal may be lodged against the confiscation order only in cases when the verdict is pronounced or the proceedings are discontinued at the end of the probation period. It appears that there is no clear legal provision clarifying at which stage the confiscation order will be enforced in case of a decision suspending pronouncement of the verdict.  

The Assembly of the Criminal Chambers of the Court of Cassation pointed out the fact that the inferior courts must separately consider whether the property subject to confiscation may be assigned to the accused as a trustee, within the probation period and under the conditions to be set when necessary, with a view to preventing any forfeiture of right during the five-year probation period as the verdict -as a decision suspending pronouncement of the verdict- was not yet capable of bearing legal consequences.

In the present case, upon the finalization of the decision suspending pronouncement of the verdict, the first instance court issued a letter to the Forestry Department for enforcement of the confiscation order, without awaiting for the final conclusion of the proceedings. Then the Forestry Department notified the applicant of the enforcement of the order. It has been therefore observed that the confiscation measure which is in fact a pending decision in conjunction with the main verdict was intended to be enforced upon the finalization of the decision suspending pronouncement of the verdict and without awaiting for the final conclusion of the proceedings.

The Court is to determine whether there have been available remedies capable of offering redress for the property owner’s damages -such as temporary assignment of the property’s use to its owner or, if not possible, payment of compensation- in order to avoid an excessive burden being placed on the property owner. In the present case, such a mechanism was not found to exist.

It has been therefore concluded that the interference with the right to property by way of confiscation put an individual and excessive burden on the applicant in that the opportunity to lodge an appeal, a remedy whereby alleged arbitrariness or unlawfulness could be argued, was put aside and the confiscation order was intended to be enforced in conjunction with the decision suspending pronouncement of the judgment.   

 Consequently, the Court has found a violation of the right to property safeguarded by Article 35 of the Constitution.

Application of Article 50 of Law no. 6216

It has been observed that the violation with regard to the confiscation order in the present case has resulted from the uncertainty in the relevant provision of law. In this respect, enforcement of the confiscation order following the finalization of the proceedings will constitute a sufficient redress.

In addition, there is also an uncertainty about the steps to be taken in terms of the seized property as well as the way how the confiscation measure will be applied in cases where a decision suspending pronouncement of the verdict is rendered.

It shall be at the discretion of the legislator to ascertain the issues as to how the uncertainty giving rise to a breach of the right to property will be eliminated; the step to be taken with respect to the seized property -in case of a decision suspending pronouncement of the verdict- in the light of whether it falls under Article 54 §§ 1 and 4 of the Code no. 5237; the way whereby an appeal may be lodged against the continuation or termination of the seizure measure or against the confiscation order again in cases when a decision suspending pronouncement of the verdict is rendered; as well as when the confiscation measure will be applied and how the property owner’s rights will be protected -such as by way of offering various mechanisms including compensation- in cases when its immediate application is exigent.

Accordingly, the Court has decided to send a copy of the judgment to the legislator for consideration of all these issues.