Judgment No.6 of 16.04.2015

Judgement on constitutional review of some provisions of the Criminal Code and Criminal Procedure Code (extended confiscation and illicit enrichment) (Complaint No. 60a/2014)


The subject of complaint: ombudsman

Type of judgment: constitutionality review of laws, regulations and decisions of Parliament

Provision: Is rejected exception of unconstitutionality and is recognized constitutional

Files:
1.  en-JCC62015engfinal546ee.pdf


Complaints:

1.  ( 03.12.2014)


Communication:

1.  ( 16.04.2015)


1. The case originates in the complaint lodged with the Constitutional Court on 3 December 2014, according to articles 135 para. (1) let. a) of the Constitution, 25 let. i) of the Law on the Constitutional Court and 38 para.(1) let. i) of the Code of Constitutional Jurisdiction, by the Ombudsman, Mr. Tudor Lazăr, on the constitutional review of articles 98 para. (2) let. e), 1061 and 3302 of the Criminal Code of the Republic of Moldova, as well as the phrase “or extended confiscation” in article 202 para. (1), (3) and (31), phrase “or extended confiscation” in article 202 para. (32) and the phrase “of extended confiscation” in article 203 para. (2) of the Criminal Procedure Code of the Republic of Moldova.

2. The author of the complaint claimed that the provisions referring to the extended confiscation of assets and criminalization of illicit enrichment fail to comply, in essence, with the constitutional principles of presumption of legality of property, presumption of innocence and non-retroactivity of the criminal law, enshrined in articles 46 para. (3), 21 and 22 of the Constitution. 

3. By the Decision of the Constitutional Court of 11 December 2014, the complaint was declared admissible, without prejudicing the merits of the case.

4. In the process of examination  of the complaint, the Constitutional Court requested the opinion of the President of the Republic of Moldova, Parliament, Government, General Prosecutor’s Office, Institute of Legal and Political Research under the Academy of Science of Moldova, as well as from the law faculties.

 

5. During the public plenary hearing of the Court, the complaint was supported by Mr. Tudor Lazăr. The Parliament was represented by Mr. Ion Creangă, Head of the General Legal Division within the Secretariat of the Parliament. The Government was represented by Mr. Nicolae Eşanu, Deputy Minister of Justice.

9. The relevant provisions of the Constitution (M.O., 1994, No. 1) are as follows:

Article 1

The State of the Republic of Moldova

“[…]

 (3) Governed by the rule of law, the Republic of Moldova is a democratic State in which the dignity of people, their rights and freedoms, the free development of human personality, justice and political pluralism represent supreme values that shall be guaranteed.”

Article 4

Human Rights and Freedoms

“(1) Constitutional provisions on human rights and freedoms shall be interpreted and are enforced in accordance with the Universal Declaration of Human Rights, with the conventions and other treaties to which the Republic of Moldova is a party.

(2) Wherever disagreements appear between the conventions and treaties on fundamental human rights to which the Republic of Moldova is a party and its domestic laws, priority shall be given to international regulations.” 

 

Article 8

Observance of International Law and International Treaties

“(1) The Republic of Moldova commits to observe the Charter of the United Nations and the treaties to which it is a party, to ground its relationships with other states on the unanimously recognized principles and norms of international law.

[...]”        

Article 16

Equality

“(1) The respect and protection of the individual shall constitute the foremost duty of the State.

(2) All citizens of the Republic of Moldova are equal before the law and public authorities, regardless of the race, nationality, ethnic origin, language, religion, sex, opinion, political affiliation, property or social origin.”

 

Article 21

Presumption of Innocence

“Any person accused to have committed an offence shall be presumed innocent until found guilty on legal grounds, brought forward in a public trial, safeguarding all the necessary guarantees for his/her defense.”

 

Article 22

Non-Retroactivity of the Law

“No one shall be sentenced for actions or drawbacks which did not constitute an offence at the time they were committed. No punishment more severe than that applicable at the time when the offence was committed shall be imposed.”

 

Article 46

Right to Private Property and Its Protection

 “(1) The right to possess private property and the debts incurred by the State are guaranteed.

(2) No one may be expropriated except for a matter of public utility, as established by the law, against a fair and previously determined compensation.

(3) No assets legally acquired may be seized. The legal nature of the acquirement of assets is presumed.

(4) The assets intended for, used or resulted from misdemeanors or offences shall be seized only according to the law.

[...]”

Article 127

Property

“(1) The State shall protect the property.

(2) The State shall guarantee to everyone the right to possess property in any such form as requested by the incumbent, as long as these forms do not conflict with the interests of society.

[...]”

10. The relevant provisions of the Criminal Code of the Republic of Moldova No. 985-XV of 18 April 2002 (republished in M.O., 2009, No.72-74, art. 195) are as follows:

 

Article 98

Purpose and Types of Security Measures

“(1) Security measures are aimed at eliminating a danger and at preventing the commission of acts set forth in criminal law.

(2) Security measures are:

a) medically coercive measures;

b) coercive educational measures;

c) expulsion;

d) special seizure.;

e) extended confiscation.”

 

Article 1061

 Extended confiscation

“(1) Are subject to confiscation also other assets than those mentioned in art.106 where a person is convicted for the offences referred to in articles 158, 165, 206, 2081, 2082, 217–2174, 218–220, 236–240, 243, 248–253, 256, 2603, 2604, 279, 280, 283, 284, 290, 292, 302, 324–329, 3302, 332–3351 and if the offense was committed with pecuniary interest.

(2) Extended confiscation shall be ordered if the following requirements are cumulatively met:

a) the value of assets acquired by the convicted person, within 5 years prior and after the commission of crime, before adopting the judgment, substantially exceeds the income legally obtained by this person;

b) the court finds based on the evidence presented in the case that the assets have been generated from criminal activities referred to in para.(1).

(3) In applying the provisions of par. (2) it has to be taken into account the value of assets transferred by the convicted person or by a third party to a family member, to legal entities over which the convicted person has control or to other persons who knew or should have known about the illegal acquisition of the assets.

(4) In determining the difference between the legal income and the value of acquired assets, there will be taken into account the value of assets at the date when they were acquired and the expense made by the convicted person including the persons provided for by para. (3).

(5) If the assets subject to confiscation no longer exist or were intermingled with property acquired from legitimate sources, money and other assets which can cover their value shall be confiscated.

(6) Are subject to confiscation also the assets obtained from the exploitation or use of assets which are subject to confiscation including assets into which the proceeds of criminal activities have been transformed or converted, as well as income or profits arising from those assets.

(7) The confiscation cannot exceed the value of assets acquired within the timeframe provided for by par. (2) let. a), that exceeds the level of convicted person’s legitimate income..”


Article 3302

 Illicit enrichment

“(1) Ownership by a person holding a position of responsibility or a public person, personally or through third parties, of assets when their value substantially exceeds the acquired income, and it was established, on the basis of proofs, that these assets could not have been legally obtained,

shall be punished by a fine of 6,000 to 8,000 conventional units or by imprisonment for 3 to 7 years, in both cases with the deprivation of the right to hold certain positions or to practice certain activities for a term of 10 to 15 years.

(2) The same actions committed by a person with public dignity,

shall be punished by a fine of 8,000 to 10,000 conventional units or by imprisonment from 7 to 15 years, in both cases with the deprivation of the right to hold certain positions or to practice certain activities for a term of 10 to 15 years.”

 

11. The relevant provisions of the Criminal Procedure Code of the Republic of Moldova No. 122-XV of 14 March 2003 (republished in M.O., 2009, No. 248-251, art. 699) are as follows:

 

Article 202 

Measures for Securing the Recovery of Damages and for Guaranteeing the Execution of a Punishment by Fine

“ (1) A criminal investigative body ex officio or the court at the request of the parties may undertake during a criminal proceeding measures for securing the recovery of damages caused by the crime, for the eventual special confiscation or extended confiscation of assets, and for guaranteeing the execution of a punishment by fine.

(2) Measures for securing the recovery of damages caused by the crime, for the eventual special confiscation or extended confiscation of assets, and for guaranteeing the execution of a punishment by fine, consist of sequestering movable and real property in line with art.203-210.

(3) Measures for securing the recovery of damages may be undertaken on the assets of the suspect/ accused/defendant, of a civilly liable party in the amount of the estimated value of the damage.

(31) The securing measures for the eventual special confiscation or extended confiscation of assets may be undertaken on the assets of the suspect/ accused/defendant listed in art.106 para. (2) of the Criminal Code, as well as on the assets of other persons who have accepted them knowing about their illegal acquirement.

(32) If the assets to be subject to special confiscation or extended confiscation do not exist anymore, security measures may be undertaken for confiscating their counter-value.

(4) Measures for guaranteeing the execution of a punishment by fine shall be undertaken only on the assets of the accused or defendant, depending on the amount of the fine which may be set for the committed offence.”

 

Article 203

 Sequestration

“(1) Sequestering assets is a coercive procedural measure consisting of inventorying the assets and prohibiting the owner or possessor from disposing of those assets or, if necessary, to use such assets. Upon sequestering bank accounts and deposits, any operations with those accounts or deposits shall be terminated.

(2) Sequestering assets shall be done to secure the recovery of damage caused by the crime to secure a civil action or eventual special confiscation or extended confiscation of assets or the counter-value of the assets used in the commission of a crime of resulting from the commission of the crime.”

 

12. Relevant provisions of the United Nations Convention against Corruption, adopted in New York on 31 October 2003 (ratified by the Parliament via the Law No. 158 of 6 July 2007; M.O., 2007, No. 103-106, art. 451), are as follows:

 

 

Article 20

Illicit enrichment

“Subject to its constitution and the fundamental principles of its legal system, each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, illicit enrichment, that is, a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income.”

 

13. The relevant provisions of the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime of 8 November 1990 (ratified by the Parliament via the Law No. 914-XV of 15 March 2002; M.O.,  2002, No. 43-45, art.281) are as follows:

 

Article 2

Confiscation measures

“1) Each Party shall adopt such legislative and other measures as may be necessary to enable it to confiscate instrumentalities and proceeds or property the value of which corresponds to such proceeds.

2) Each Party may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that paragraph 1 of this article applies only to offences or categories of offences specified in such declaration.”

 

14. The relevant provisions of the Directive 2014/42/EU on the freezing and confiscation of proceeds of crimes committed in the European Union, adopted on 3 April 2014, are as follows:

 

Article 5

Extended confiscation 

“(1) Member States shall adopt the necessary measures to enable the confiscation, either in whole or in part, of property belonging to a person convicted of a criminal offence which is liable to give rise, directly or indirectly, to economic benefit, where a court, on the basis of the circumstances of the case, including the specific facts and available evidence, such as that the value of the property is disproportionate to the lawful income of the convicted person, is satisfied that the property in question is derived from criminal conduct.

 

[…]”

1. To reject as ungrounded the complaint submitted by Mr. Tudor Lazăr on the constitutional review of certain provisions of the Criminal Code and Criminal Procedure Code, concerning extended confiscation and illicit enrichment.

2. To declare as constitutional articles 98 para. (2) let. e), 1061 and 3302 of the Criminal Code of the Republic of Moldova No. 985-XV of 18 April 2002.

3. To declare as constitutional:

-  the phrase „or extended confiscation” of the art. 202 paras.(1), (3) and (31), and 203 para. (2);

-  the phrase „or extended confiscation” of the art. 202 para. (32) of the Criminal Procedure Code of the Republic of Moldova No. 122-XV of 14 March 2003.

 

4. The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of adoption, and shall be published in the Official Gazette of the Republic of Moldova.

3.1.1. General principles

- Presumption of legal acquiring of assets and presumption of innocence   

 

40. According to art. 46 para. (3) of the Constitution, the legally acquired assets cannot be seized. The legal nature of the acquirement of assets is presumed.

41. The provision which establishes the presumption of the legal nature of property acquisition represents a fundamental element of article 46 of the Constitution, which, along with other provisions of the same article, is meant to guarantee the right to private property and the protection thereof.

42. The presumption of the legal nature of property acquisition represents a general guarantee aimed to protect the right to property of all citizens without unjustified interferences by the state.

43. This presumption, ensuring legal security and legality of the property implies the responsibility of the state to present evidence proving the illegality of enrichment.

44. In its Judgment No. 21 of 20 October 2011 on the interpretation of art. 46 para. (3) of the Constitution, the Court underlined:

“24. This presumption is grounded on the general principle according to which any act or legal fact is presumed licit until the contrary is proved, provided that the illicit nature of property acquisition is proved. The constitutional presumption attributes the burden of proof exclusively to the state bodies.”

45. Thus the Court reiterates that according to the constitutional norm, the burden of proof shall be attributed exclusively to the state bodies.

46. As well, in the above-mentioned judgement, the Court underlined that:

“27. […] to the extent in which, in spite of the proofs submitted in support of the guilt of the accused person, doubts in relation to his/her guilt still persist, the doubt shall be equivalent to a positive proof of not being guilty”.

47. At the same time, the Court reiterates that according to art. 46 para. (4) of the Constitution, the assets intended for, used or resulted from misdemeanors or offences shall be seized only according to the law.

48. In its Judgement No. 21 of 20 October 2011 the Court, while interpreting the constitutional norm referring to the legal presumption of property, mentioned:

 “29. […] Therefore, the presumption established in para. (3) of article 46 of the Constitution does not impede the investigation regarding the illicit acquiring of the property, the burden of proof lies with the party invoking this nature. To the extent in which the interested party proves the illicit acquiring of assets by the person, confiscation may be ordered in relation to these  illegally acquired assets, according to the law.

30. Taking into consideration the provisions of article 46 para. (4) of the Constitution, according to which only the legally acquired property cannot be confiscated, the Court considers that the legislator is free to establish the measure of confiscation in all the cases of illegal acquisition of assets.”

49. In the same context, with regard to the legal or illicit nature of the property, in its Judgment No. 12 of 17 March 1997, the Court stated the following:

“According to article 46 of the Constitution, the right to possess private property belongs to individuals (to the citizens whether individually or collectively) and to legal entities.

The same article of the Constitution provides the legal guarantees of the private property.

Deprivation of the individual or of legal entities of their property, against their will, shall be carried out only according to the law.

No legally acquired assets may be seized (art. 46 para. (3) of the Constitution). Such a sanction may be applied in relation to property in case when the assets were intended or used to commit a crime, an offence or if these assets have resulted from misdemeanors or offences (art. 46 para. (4) of the Constitution).

Confiscation represents a sanction applied to the owner for committing a crime under the provisions of the Criminal Code or an administrative offence. […] However, in all cases such a confiscation shall be carried out only according to the law. Under art. 72 let. n) of the Constitution, only the Parliament of the Republic of Moldova is entitled to regulate through organic laws the offences, punishments, and the regime of their enforcement.”

50. The Court held that the presumption of illicit enrichment is an application of the principle of presumption of innocence enshrined in the Constitution and other infra-constitutional acts of the Republic of Moldova, as well as in the international human rights instruments. According to Art.21 of the Constitution: “Any person accused of having committed an offence shall be presumed innocent until found guilty on legal grounds, brought forward in a public trial, safeguarding all the necessary guarantees for his/her defense”.

51. The Court reiterates that article 21 of the Constitution guarantees the person accused of having committed an offence the exclusion of any appearance of culpability of the person until his/her guilt is legally proved.

52. The European Court has frequently mentioned in its case-law that the presumption of innocence, guaranteed by article 6 § 2 of the Convention, is one of the elements of the fair trial. It would be violated if a statement of a public official regarding a person accused of committing a crime reflects the opinion that the person is guilty before this guilt is legally established (case Popovici v. Moldova, Decision of 27 November 2007).

53. Along the same line, the Court underlines that according to the principles of criminal procedure law, no one is obliged to prove his innocence, the burden of proof thus lies with the prosecution, and the situation of doubt is being interpreted in favor of the accused (in dubio pro reo).

54. The in dubio pro reo rule is complementary to the presumption of innocence, an institutional principle that reflects the manner in which the principles of discovering the truth, enshrined in the criminal procedure law, is found in the field of probation.

 

- Confiscation – an instrument to combat organized crime and corruption

 

55. In its Judgement No. 4 of 22 April 2013 the Constitutional Court underlined:

“[...] corruption undermines democracy and the rule of law, leads to violations of human rights, undermines the economy and erodes the quality of life. Therefore, the fight against corruption is an integral component of ensuring respect for the rule of law.

[...] fight against corruption was declared to be a national goal through different international commitments and national documents, such as the National Anticorruption Strategy for 2011-2015 (approved via Parliament Decision No. 154/2011) and the Action Plan for 2012-2013 to implement it (approved via Parliament Decision No. 12/2012), the Strategy for Justice Sector Reform for 2011-2016 (approved via the Law No. 231/2011) and the Action Plan for its implementation (approved via Parliament Decision No. 6/2012), the Law No. 90/2008 on Preventing and Combating Corruption, the Strategy for Institutional Consolidation of the National Anticorruption Center (approved via the Parliament Decision No. 232/2012).”

56. The Court held that in order to discourage organized crime, it is essential to punish the offenders by confiscating the object of crime. In this regard, the confiscation and recovery of assets obtained as a result of criminal activities represent an efficient way to fight against organized crime.

57. Confiscation impedes the use of assets of criminals as means to for other criminal activities and thus removes the danger to corrupt the society.

58. The Court holds that the need to combat organized crime is also a goal of the international and European communities, which via their legal instruments have regulated this security measure.

59. Thus, the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime of 8 November 1990, in force for the Republic of Moldova since 1 September 2002, established the obligation of the states to adopt legislative and other measures as may be necessary to allow confiscation of illegal proceeds and incomes from criminal activity or of the assets, the value of which corresponds to these incomes.

60. The Directive 2014/42/EU on the freezing and confiscation of proceeds of crimes committed in the European Union adopted on 3 April 2014, sets forth in art. 5 para. (1):

“(1) Member States shall adopt the necessary measures to enable the confiscation, either in whole or in part, of property belonging to a person convicted of a criminal offence which is liable to give rise, directly or indirectly, to economic benefit, where a court, on the basis of the circumstances of the case, including the specific facts and available evidence, such as that the value of the property is disproportionate to the lawful income of the convicted person, is satisfied that the property in question is derived from criminal conduct.”

61. In the same context, the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (ETS 141), sets forth in art. 2:

“Each Party shall adopt such legislative and other measures as may be necessary to enable it to confiscate instrumentalities and proceeds or property the value of which corresponds to such proceeds. [...]”

62. In the Communication from the Commission to the European Parliament and the Council, COM (2008)766, it is mentioned that in order to disrupt organized crime activities it is essential to deprive criminals of the proceeds of crime. The confiscation and recovery of criminal assets is a very effective way to fight organized crime, which is essentially profit-driven. Confiscation prevents that criminal wealth may be used to finance other criminal activities, jeopardize the confidence in the financial systems and corrupt legitimate society. Confiscation has a deterrent effect by strengthening the notion that “crime does not pay”.

63. The Court recalls that the aspects related to confiscation of assets as an instrument to combat crime have generated an abundant case-law of the European Court of Human Rights. Thus, the European Court has examined a wide spectrum of cases on confiscation, differentiating between the confiscation of assets which are illegal proceeds of crimes (objectum sceleris) as a result of convicting the accused (Agosi vs. Great Britain, Decision of 24 October 1986); confiscation of assets which were instruments of the crime (instrumentum sceleris) after convicting the accused (C.M. vs. France, Decision of 26 June 2001) or confiscation of assets in the possession of third parties after the conviction of the accused (Air Canada vs. Great Britain, Decision of 5 May 1995). At the same time, in relation to the proceeds originating from criminal activity (productum sceleris), the European Court examined the confiscation which followed after the conviction of the applicant (see Phillips vs. Great Britain, above-mentioned), as well as cases in which confiscation was ordered independently from the existence of a criminal proceeding, because the patrimony of the applicants was presumed to be of illegal origin (see Riela and others vs. Italy, Decision of 4 September 2001; Arcuri and others vs. Italy, Decision of 5 July 2001; Raimondo v. Italy, Decision of 22 February 1994) or as being used for illegal activities (Butler vs. Great Britain, Decision of 27 June 2002).

64. The European Court in the case Raimondo vs. Italy stated: “When regulating the extended confiscation, it is important to determine some clear criteria, which would describe with sufficient accuracy the situations of applicability. In context, “the prevention measures cannot be adopted based on a simple suspicion and are justified only if they are based on establishing and objectively evaluating the facts, which derive as a result of the conduct and life style of the person. [...] Meant to block this kind of movements of suspicious capitals, confiscation represents an efficient and necessary tool to combat this crime. Hence, it appears to be proportional to the investigated objective, all the more that it does not imply in reality any additional restriction in relation to sequestration. As a result, the preventive nature of the confiscation justifies its immediate and unconditional application in spite of any recourse.” (Decision of 22 February 1994, §30).

3.2.2. Application of the aforementioned principles in the present case

65. In the context of the above-mentioned constitutional norms, the Court holds that the confiscation measure is constitutionally regulated only when offences or misdemeanors are committed, i.e. in established situations according to the law as representing the facts with a certain level of social danger.

66. Having examined the criminal law, the Court established that ‘extended confiscation of property (art. 1061 of the Criminal Code), as a safety measure, and the crime of illicit enrichment were introduced in addition to the “special confiscation (art. 106 of the Criminal Law), via the Law No. 326 of 23 December 2013.

67. The Court mentioned that while special confiscation represents forced or voluntary transfer of assets into state’s property (including currency) used to commit crimes or that resulted from criminal activity, the extended confiscation is applied to other assets, which, although not used for the commitment of crimes, have originated from criminal activities.

68. The Court notes that according to the legal regulations, extended confiscation is applied only in relation to the person convicted for committing the offences provided in articles 158, 165, 206, 2081, 2082, 217–2174, 218–220, 236–240, 243, 248–253, 256, 2603, 2604, 279, 280, 283, 284, 290, 292, 302, 324–329, 3302, 332–3351 of the Criminal Code and if the act was committed with pecuniary interest.

69. The Court holds that the contested provisions establish the measure of extended confiscation in case of conviction for committing some categories of serious offences, implying an increased social danger the perpetration of which allows accumulation of assets the value of which obviously exceeds the legally obtained incomes.

70. The Court notes that according to Art. 1061 para. (2) of the Criminal Code, extended confiscation is ordered, if the following conditions are met cumulatively: a) the value of assets obtained by the person convicted during 5 years before and after committing the crime before the date when the sentence was delivered, significantly exceeds his/her illicit income; b) based on evidence the court establishes that the respective assets result from criminal activities described in para. (1).

71. According to provisions set forth, the Court established that the criminal origin of assets should be established by the court based on submitted evidence.

72. In relation to the qualification of proofs, the Venice Commission in its Interim Opinion on the Draft Law on Forfeiture of Favor of the State of Illegally Acquired Assets of Bulgaria, adopted during the 82nd plenary session (Venice, 12-13 March 2010), mentioned:

“75. Specifying evidential thresholds, the authorities should meet in order to obtain actual assets forfeiture in the legislation is therefore important, because it allows to ensure that forfeiture of assets do not amount to unjustified interference with the examined person’s right to peaceful enjoyment of his/her possessions or violate his or her right to fair trial or the right to equality of treatment. It also creates uniformity, guarantees certainty and predictability, and ensures that the legislature, not the judiciary, creates the rules that govern the forfeiture process. This is particularly important in regimes with a judiciary inexperienced in forfeiture and in situations in which corruption has permeated the administration of justice.”

73. With respect to the possibility of confiscating the assets transferred by convicted person or a by third person to a family member, a company under the control of convicted person or to other persons who knew or had to know about illicit origin of assets, the Court mentioned that according to Art.5 para. (24) of the Directive 2014/42/EU:

“(24) […] Such confiscation should be possible at least in cases where third parties knew or ought to have known that the purpose of the transfer or acquisition was to avoid confiscation, on the basis of concrete facts and circumstances, including that the transfer was carried out free of charge or in exchange for an amount significantly lower than the market value. The rules on third party confiscation should extend to both natural and legal persons. In any event the rights of bona fide third parties should not be prejudiced.”

74. The Court concludes that the challenged rule does not represent an interference in the right to private property, in accordance with Art. 46 of the Constitution, and does not affect the principle of presumption of innocence as a component part of the right to fair trial, to the extent to which the presumption of illicit enrichment is challenged by the evidence sumbitted by the state authorities.

75. As for the manner of enforcement of the examined rule, according to Article 1061 para. (2) let. a) of the Criminal Code, extended confiscation is ordered only if the value of assets acquired by the convicted person 5 years before and after the commitment of the offence, before the delivery of the sentence substantially exceeds the revenues from illicit enrichment.

76. Setting the 5-year term is aimed to avoid abuses and divergences of interpretation of the period when the court has to consider it with a view to establish the existence of a disproportion between the assets acquired by a convicted person and illicit revenues obtained by this person.

77. At the same time, the Court holds that the Law No. 326 of 23 December 2013 that regulated extended confiscation of property was published in the Official Gazette of the Republic of Moldova on 25 February 2014, when it has entered into force.

78. The Court mentioned that according to Article 22 of the Constitution, no one shall be sentenced for actions or drawbacks which did not constitute an offence at the time they were committed. No punishment more severe than that applicable at the time when the offence was committed shall be imposed. This principle proceeds from the principle of legality that represents a value of the rule of law.

79. In this context, the Court underlines that the principle lex retro not agit is applied in criminal matters, according to which the law cannot be retroactive, and the principle mitior lex, according to which, more favorable criminal norm will be applied in situations determined by the succession of criminal law.

80. Art. 10 of the Criminal Code contains regulations regarding the retroactive effect of the criminal law:

“(1) Criminal law that eliminates the criminal nature of an act, that makes the punishment milder, or that in any other way improves the situation of the person who committed the crime shall have retroactive effect, meaning that it shall extend to persons who committed the respective acts prior to the date when this law took effect, including persons who are serving sentences or who served sentences but have criminal backgrounds.

(2) Criminal law that increases the punishment or worsens the situation of a person guilty of the commission of a crime shall not have retroactive effect.”

81. In its Judgement No. 14 of 27 May 2014, the Court mentioned:

53. […] the meaning of art. 22 of the Constitution in corroboration with art.10 of the Criminal Code, non-retroactivity of the criminal law refers to any circumstance which leads to worsening of the situation of the person, without limiting only to the extent and the category of the punishment applied […]”

82. In a case similar to the one under examination, the Constitutional Court of Romania mentioned that the “criminal norm regulating the extended confiscation of assets cannot be retroactive in relation to the confiscation of the assets acquired before its entry into force, even though the offences for which conviction was ordered are committed after this date” (Decision No. 356/2014).

83. Respectively, the Court underlines that the provisions of Art. 1061 of the Criminal Code cannot be applied retroactively in respect of the confiscation of assets acquired before the date of its entering into force. Ordering the extended confiscation measure on assets acquired before the date the law entered into force equals to the violation of the constitutional principle of non-retroactivity. Thus, based on the non-retroactivity of the criminal law principle, only the assets acquired after the date of entry into force (25 February 2014) may be confiscated.

84. Concluding the above-mentioned, the Court holds that the legislator’s regulation in the criminal law of the special measure of ”extended confiscation” of the proceeds originating from criminal activities is not a violation of the constitutional norm.

 

 

 

3.2. In respect of the component of the crime – illicit enrichment

 

3.2.1. General principles

 

85. The Court mentions that according to the provisions of articles 60 and 66 of the Constitution, the adoption of laws is an exclusive prerogative of the Parliament.

86. Under art. 72 para. (3) let. n) of the Constitution, the regulation of criminal offences, punishments and the procedure of their enforcement is the competence of the legislative body, and considering certain specific circumstances, it can adopt adequate legislative measures in the spirit of constitutional principles.

87. The legislator is entitled to appreciate the situations which need to be regulated through legal norms. This right implies the possibility to decide on the opportunity of adopting the legislative act in line with the criminal policy promoted in the general interest.

88. At the same time, any regulation should not exceed the limits of the principles stated in the current legal system and be subscribed to the principle of rule of law.

89. The rule of law is ensured through the entire legal system, including criminal norms, which are characterized by certain distinct features as compared to other categories of norms, which are differentiated between them based on their nature and structure, and scope of incidence.

90. In its Report on Rule of Law (adopted during the 86th plenary session, 25-26 March 2011), the Venice Commission stated:

“47. In addition, Parliament shall not be allowed to override fundamental rights by ambiguous laws. This offers essential legal protection of the individual vis-à-vis the state and its organs and agents.”

91. The Court holds that criminalization of acts in criminal laws, establishment of punishments for the commitment thereof, as well as other regulations are grounded on rationales of criminal policy. Therefore, the criminal law represents a set of legal rules formulated in a clear, concise, and precise manner.

92. At the same time, the Court mentions that according to article 23 of the Constitution, the state ensures the right of every individual to be aware of his/her rights and duties; for this purpose, it makes accessible all the laws.

93. In its case-law, the European Court mentioned that the person is entitled to know, in very clear terms, want action and inactions may enact criminal liability (case Kokkinakis vs. Greece of 25 May 1993). Whenever an action is perceived as an offence, the judge may specify all the constitutive elements of the offense, but not to modify them in the detriment of the accused, and the manner in which the judge defines these constitutive elements should be predictable for any person consulted by a specialist (case X. vs. United Kingdom of 7 May 1982).

94. As well, in the case E.K. vs. Turkey of 7 February 2002, the European Court reaffirms the requirements of criminal law predictability and sufficiently clear formulation: “This condition is considered to be met whenever the litigant, while riding the text of the pertinent provision and, if necessary, with the assistance of its interpretation by courts of law, may know what actions or inactions imply criminal liability (§51)”.

95. Thus, in criminal matters, the rule of law generates the assurance of the principles of legality of offences and punishments; inadmissibility of extensive application of the criminal law in the detriment of the person, especially, through analogy; non-retroactivity of the criminal law, except of the more favorable criminal law.

 

3.2.2. International regulations and the experience of other states

 

96. The United Nations Convention against Corruption, adopted in New York on 31 October 2003 and signed by the Republic of Moldova on 28 September 2004, in art. 20 states:

“Subject to its constitution and the fundamental principles of its legal system, each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, illicit enrichment, that is, a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income.”

97. The practice of other states shows that there is no uniformity in attributing to the illicit enrichment a criminal nature.

98. Nowadays, a number of states treat illicit enrichment as an offence. At the European level the crime “illicit enrichment” is regulated in France, Lithuania, Ukraine.

99. Hence, the French Criminal Code criminalizes “non-justification of resources corresponding to the level of living and non-justification of the origin of the possessed asset”, in Ukraine “obtaining by a civil servant of an illegal benefit in substantial amounts”, and Lithuania includes in the composition of the crime the “amount of the sum” of the value of assets and if the exceeding of this amount cannot be justified, it represents an offence.

100. The offence of illicit enrichment or “unjustified property” as it is called in some states represents a legal instrument to fight against corruption acts committed by persons who hold power.

101. In Romania, by the Decision of 29 March 2007, the Constitutional Court reviewed the constitutionality of the system controlling the properties of officials, civil servants, and magistrates, in relation to the provision of article 44 para. (8) of the Constitution, which similar to art. 46 para. (3) of the Constitution of the Republic of Moldova, established the presumption of legal acquisition of property. The Court adopted the opinion according to which, whenever finding “obvious differences between the property declared on the date of investiture or appointment and the property acquired during the exercise of the respective position and if clear evidence exist that some of the assets or assets could not have been acquired from the legal incomes obtained by the given person or through other legal ways, the given presumption stops to operate to allow the initiation of the control in the respect of the property held”.

 

3.2.3. Application of the aforementioned principles in the given case

 

102. The Court reiterates that in the light of articles 60 para. (1) and 72 para. (3) let. n) of the Constitution, the legislator has the plentitude of competences to establish the situations which need to be regulated through legal norms. This right signifies the possibility to decide about the opportunity to adopt the legislative act based on the criminal policy promoted in the general interest.

103. Hence, in order to implement the above-mentioned international acts, which represent important instruments for preventing and combating corruption, and as a result of fulfilling the actions provided in the Justice Sector Reform Strategy for 2011-2016, the legislator, within the limits of its powers, adopted the Law No. 326 of 23 December 2013, by which the Criminal Code was supplimented with a new type of offence “illicit enrichment” (art. 3302), according to which:

“(1) Ownership by a person holding a position of responsibility or a public official, personally or through third parties, of assets when their value substantially exceeds the acquired income, and it was established, on the basis of proofs, that these assets could not have been legally obtained,

shall be punished by a fine of 6,000 to 8,000 conventional units or by imprisonment for 3 to 7 years, in both cases with the deprivation of the right to hold certain positions or to practice certain activities for a term of 10 to 15 years.

(2) The same actions committed by a person with public dignity,

shall be punished by a fine of 8,000 to 10,000 conventional units or by imprisonment from 7 to 15 years, in both cases with the deprivation of the right to hold certain positions or to practice certain activities for a term of 10 to 15 years.”

104. The Court mentions that according to the all the above stated arguments, the presumption of legal acquisition of property represents a constitutional guarantee of the right to private property.

105. At the same time, the Court holds that the guarantees established through constitutional norms do not impede the state authorities to fight against organized crime and corruption, using legal means and in compliance with constitutional principles.

106. In its Judgement No. 21 of 20 October 2011, the Court underlined that the presumption established through art. 46 para. (3) of the Constitution does not impede the investigation of the illicit nature of property acquisition.

107. At the same time, the Court reiterates its conclusions according to which, the burden of proof with respect to the illicit enrichment is attributed exclusively to the state bodies.

108. Thus, the Court finds that the norm of art. 320/2 of the Criminal Code does not request the public servant to “explain reasonably” his/her property in relation to his/her incomes. According to the given regulations, not only the discrepancy between the value of the property and the legally acquired property leads to the conviction of the public servant. The text “was established based on the proofs that these assets could not have been obtained legally” indicates the fact that additional proofs are needed, being presented in the way established by the law by the state authorities, which should prove the illicit nature of the property.

109. In relation to the enforcement of the norm under review, the Court holds that taking into account the rationale expressed in §§ 78-82 of this judgement, the provisions of art. 3302 of the Criminal Code cannot be applied retroactively regarding the assets acquired before the entry into force of the given provisions.

110. Taking into account the above-mentioned, the contested provisions do not exceed the constitutional frame and are grounded by the interests of the state security and corruption fight.

111. Moreover, having examined the elements of the offence, the Court established some inaccuracies in this text, which may create deficiencies in the process of implementation.

 

112. In this respect, the Court mentions that the shortcomings existing in the text of the offence “illicit enrichment” provided in art. 3302 of the Criminal Code, should be eliminated by the legislative body, and for this purpose it is necessary to issue an address to the Parliament.

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