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On May 11, President Armen Sargsyan signed the Law on Confiscation of Illegal Property. This law has been the subject of heated discussions in recent months.
Former Prime Minister, economist Hrant Bagratyan addressed the topic on May 12. In an interview with “Hraparak” newspaper, Bagratyan stated that the adopted law is unconstitutional.
“It contradicts Article 60 of the current Constitution (deprivation of property rights can only be done through court), Article 66 (a person is innocent as long as there is no verdict), Article 73 (laws cannot have retroactive effect) and other articles,” Bagratyan noted.
The Fact Investigation Platform has studied the adopted law to find out whether it really contradicts the aforementioned articles of the Constitution.
Right to property
Thus, Bagratyan notes that the law contradicts Article 60 of the Constitution (deprivation of property rights can only be done through court).
However, the law actually provides for the confiscation of illegal property without a guilty verdict and not without a court order. There are extensive explanations for this regulation in the substantiation of the law.
In particular, confiscation of property without a conviction does not mean taking action without a court order. The adopted law simply stipulates that a confiscation permit is issued not only under the Criminal Code but also the Civil Procedure Code, but only on the basis of the court decision, which has entered into force. Thus, there is no problem of constitutionality in this regard.
Presumption of innocence
According to the former prime minister, the law contradicts Article 66 of the current Constitution (a person is innocent as long as there is no verdict).
However, Article 66 of the Constitution refers to being guilty or innocent in a crime. “A person accused of a crime is presumed innocent until proven guilty in accordance with the law, by a court decision that has entered into force.”
However, this issue is regulated by the Criminal Procedure Code. The Law on Confiscation of Property of Illegal Origin does not imply the issue of finding a person guilty of a crime. Moreover, regardless of whether the violation of the law during the acquisition of the property involved a crime or not, the legality of the acquisition of that property (wealth) is essential.
Retroactive application of law
Bagratyan, as well as many other opponents, refer to Article 73 of the Constitution (laws cannot have retroactive effect) and claim that the law contradicts that article as well.
Article 73 (1) of the Constitution really states that “laws and other legal acts that worsen a person’s legal status have no retroactive effect.” However, the Law on Confiscation of Property of Illegal Origin does not imply even one situation when the acquisition of property would have been legal in the past, but after the law enters into force, it becomes illegal.
The law regulates the relations related to the confiscation of property of illegal origin, stipulates a number of provisions, including the initiation of proceedings for the confiscation of property of illegal origin, the scope of powers of the competent authorities, and a number of other relations related to the confiscation of property.
If the property or wealth has been acquired within the framework of the legislation in force at that time and with legal proceeds, then its legality shall not be revised, and it cannot be confiscated.
For example, before 1995, MPs were allowed to have other jobs, and after 1995 it became illegal. The salary received by the deputy before 1995 or the property acquired with that money was not considered, and according to this law, will not be considered illegal (and, of course, will not be confiscated).
It would be possible to characterize the law as contradictory to Article 73 of the Constitution if the legal action (legal enrichment) committed by a citizen within the limits of the previous legislation was re-qualified as illegal. However, the law simply stipulates that the property (wealth) that has been acquired illegally must be handed over to the state.
It should be reminded that previously Andranik Tevanyan, the director of “Politeconomia” research institute, also made wrong and manipulative statements about this law.
The need for the law
Under this current law, property can only be confiscated within the scope of a criminal proceeding. In particular, the property (wealth) resulting from the commission of a crime is confiscated from a person found guilty of a crime. However, firstly, the illegal is not always criminal, and secondly, there are cases when criminal prosecution or initiation of a criminal case is impossible (for example, the law on amnesty has been adopted, the statute of limitations has expired, the person has died or is hiding from the investigation, etc.) and illegally acquired property cannot be confiscated.
To solve this problem, the Law on the Confiscation of Property of Illegal Origin was introduced, in which case the Prosecutor’s Office will be able to send a lawsuit to the court, where the investigation is carried out through a civil trial. The court will check the validity of the lawsuit, the arguments of the parties (including the defendant), after which it will make a decision on confiscating or not confiscating the property.
