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Content updated: 08-03-2021 12:26

On criminal prosecution as grounds for declaring a person incompatible with the interests of national security

04-03-2021

The Constitutional Court recognised by its ruling of 4 March 2021 that Item 4 of Article 11 of the Law on the Protection of Objects of Importance to Ensuring National Security (wording of 12 January 2018), insofar as, according to that item, criminal prosecution against an investor for committing a grave, serious, or less serious crime under the Criminal Code or for committing a crime under criminal laws of foreign states that corresponds to the elements of a grave, serious, or less serious crime, as specified in the Special Part of the Criminal Code, constituted grounds for declaring the investor incompatible with the interests of national security, had not been in conflict with the Constitution.

The Constitutional Court noted that the impugned legal regulation, in order to achieve the constitutionally important objective of protecting the interests of the security of the state and society, when regulating economic activities, established the criterion – criminal prosecution, i.e. where a person is a suspect or accused of committing an intentional (except for a minor) crime – for assessing the risk posed to the security of the state and society by persons, i.e. investors and persons controlling them, seeking to carry out economic activities in economic sectors (enterprises) important to the security of the state and society.

The Constitutional Court held that such a legal regulation is aimed at preventing in advance threats in economic sectors important to the security of the state and society, where those threats arise due to persons’ vulnerability relating to their criminal prosecution; therefore, the impugned legal regulation should be assessed as implementing the duty of the legislature under Paragraph 3 of Article 46 of the Constitution to regulate economic activity in such a way that it serves the welfare of the People, by setting special requirements (conditions) for economic activities in order to avoid a threat to the security of the state or society; thus, as such, the impugned legal regulation should be assessed as not violating the presumption of the innocence of a person, which is enshrined in Paragraph 1 of Article 31 of the Constitution. The screening of persons seeking to carry out economic activities in economic sectors important to the security of the state and society on the basis of the criteria for assessing the risk posed to the security of the state and society is not the administration of justice and does not decide the issue of a person’s guilt in committing a criminal act.