Some considerations on the impact of the Romanian Constitutional Court Decision no. 176/24.03.2022 in regard to the special confiscation of certain excise tobacco products originating from smuggling

Abstract

The Romanian Constitutional Court Decision no. 176 of 24 March 2022, published in the Official Gazette of Romania no. 451 of 05.05.2022, gave rise to lively discussions, regarding the method of interpretation and its effects, in relation to the provisions of art. 4 - art. 5 of the Criminal Code and art. 3 of Law no. 187/2012, regarding the application of the decriminalization criminal law and the more favourable criminal law in ongoing criminal cases and those finally solved.

A problem that has arisen in the practice of the courts, but that is less reflected in the literature, concerns the possibility of the court to order the special confiscation of some goods originating from the crime of assimilated smuggling, according to art. 112 para. (1) let. f) of the Criminal Code, in cases finalized with an acquittal solution, based on the provisions of art. 16 para. (1) let. b) 1st thesis of the Criminal Procedure Code and the effects of the Constitutional Court Decision no. 176/2022.

The difficulty of this problem derives from the fact that although the provisions of art. 4 of the Criminal Code impose on the judge a solution to remove the effects of the confiscation in case of decriminalization of the act, the provisions of the Customs Regulation of the European Union impose on the member states solutions aimed at protecting the Union from unfair and illegal trade and to encourage legitimate economic activities, establishing the obligation of each state to institute effective, proportionate and dissuasive sanctions in case of violation of the Union customs legislation.

The priority of Union law urges, in such a situation, to the identifying of a solution that ensures the efficiency and effectiveness of the Customs Regulation of the European Union, so that, through this study, we will try to demonstrate, based on some interpretation arguments also found in recent national case-law, that the security measure of confiscation of smuggled goods can be applied not only in the administrative procedure subsequent to the criminal one, but also in an ongoing criminal case, completed with the acquittal of the defendant.