Constitutionality Review

Contested Provision

The contested provision stipulates that in cases where the inviolability of the home is violated for the purpose of committing theft, an investigation or prosecution shall be conducted into the impugned offence, without requiring a complaint.

Ground for the Request for Annulment

It was maintained in brief that theft could not be committed in respect of property kept within a building or its annexes, without entering those premises; however, in addition to the imposition of an increased penalty for aggravated theft, the contested provision also allows for the imposition of a separate penalty for the violation of the inviolability of the home. It was further contended that entering a building for the purpose of stealing property kept therein constitutes an element of the aggravated form of the offence, that the same act thus gives rise to a second offence, and that, given that no complaint is required where the inviolability of the home is violated for the purpose of stealing property within a building or its annexes, an investigation and prosecution may be conducted ex officio. On these grounds, the contested provision was claimed to be unconstitutional.

The Court’s Assessment

The legislator may distinguish between the indictable offences and those investigation and prosecution of which are subject to a complaint, taking into account factors such as the gravity of the offence, its consequences on the public order, and the protection of private life. Thus, in cases where, unlike the basic form of the offence, the intent is specifically directed at committing theft, it is not in breach of the principle of the rule of law to allow the initiation of investigation and prosecution into the violation of the inviolability of the home, in the absence of a complaint.

In terms of the offence of theft, the legal interest sought to be protected is possession. It has been understood that the impugned provision has been introduced so as to ensure that acts constituting a violation of the inviolability of the home, when committed in the course of theft, are punished separately, without requiring a complaint, taking into account the nature of the offence, the manner in which it is committed, the harm suffered by the victim, as well as the legal interest protected.

As is also clear from the legislative intent of the impugned provision, it is envisaged that an additional penalty be imposed, without requiring a complaint, for the violation of the inviolability of the home committed for the purpose of theft. It is evident that imposition of sanctions for the acts laid down in the provision may have a chilling effect on the commission of such criminal acts. Accordingly, the contested provision is relevant and necessary for achieving the intended aim. Having regard to the gravity of the acts that may be investigated and prosecuted, even in the absence of a complaint, as well as the nature of the sanctions to be imposed for such acts, it has been concluded that a reasonable balance has been struck between the aim pursued and the means employed.

Considering that the acts committed for the purpose of committing theft, which may be investigated and prosecuted without a complaint, as well as the nature and severity of the sanctions to be imposed, are set out clearly and unequivocally in Article 116 of Law no. 5237, the relevant provision is compatible with the principle of the legality of crimes and punishments.

It was further argued that theft could not be committed in respect of property kept within a building or its annexes without entering those premises and that, in addition to imposition of an increased penalty for aggravated theft committed in this manner, the impugned provision allows for a second penalty for the violation of the inviolability of the home due to the same act. The principle of not being tried or punished twice for the same act (ne bis in idem principle) is inherent in the right to a fair trial, safeguarded by Article 36 of the Constitution.

For this principle to apply, there must be criminal proceedings concluded with a final conviction or acquittal, and a new set of criminal proceedings must be instituted in respect of the same act. In the offence of theft committed in respect of property kept within a building or its annexes, the act of stealing the property is focused on. Entering the building or its annexes is not prescribed as a mandatory element for the formation of this aggravated form. Accordingly, the violation of the inviolability of the home is not, in all cases, sought for the commission of theft. Therefore, theft committed by means of stealing property kept within a building or its annexes, does not constitute a composite offence.

In conclusion, where the acts resulting in a violation of the inviolability of the home are committed for the purpose of committing theft in respect of property kept within a building or its annex, the imposition of separate penalties for the two offences does not entail the institution of a second set of proceedings for the same act. Accordingly, the contested provision does not contravene the principle of not being tried or punished twice for the same act.

Consequently, the contested provision has been found constitutional and therefore the request for its annulment has been dismissed.