The Reign of Arbitrariness
The confusion of legal terms by the current communist leadership, which has governed the island for more than 50 years, goes beyond the political arena. It extends to the life of the citizens.
For example, Article 60 of the Constitution of the Republic states that “the confiscation of property shall only be used as a punishment by the authorities in those cases and by such procedures as the law determines.” The interpretation and application of the rule is extremely broad. The consequence: the reign of arbitrariness.
Let me explain: the National Assembly has the authority to approve, amend or repeal laws. However, Legal Directive 149 of 1994 provides for the confiscation of assets and income obtained by unjust enrichment. It is a provision of lesser authority issued by the Council of State.
For its part the Penal Code, the criminal law of higher authority within national judicial scheme, governs seizure as a specific penalty in connection with a crime. Consequently, “only courts of competent jurisdiction, in accordance with law, may impose sanctions” (Article 2-b of Law No. 82/97, Law of the People’s Courts).
The requirement is reinforced by the Criminal Procedure Act. In Article 1 it states that “no sanction or detention can be imposed except in accordance with the rules of procedure established by law and under adjudication by a competent court.”
These articles are supposed to ensure that nobody can be punished, or even be subject to a determination, if it is not done by the courts. A guarantee recognized by Article 59 of the Constitution of the Republic:
“No one can be tried or sentenced except by a competent court under laws enacted before the crime and with the formalities and guarantees that they establish.”
But Legal Directive 149 goes against all that. It provides for implementation by an administrative authority: Article 2 empowers the Minister of Finance and Prices to make the decision on imposing the penalty of confiscation.
The rule issued by the Council of State is applied as an exemplary measure against those who obtain illegitimate inheritances, proceeds of theft, speculation, the diversion of resources from state agencies, involvement in shady business deals, black market activities, and other forms of enrichment.
Conduct that qualifies, as a matter of fact and the law of legislative decree, as “criminal activities” that damage the national economy and the social stability of the country. If asset forfeiture is a penalty incurred for the commission of a crime, then why is it enforced by an administrative procedure?
Translated by: Tomás A.