The findings of the European Court of Human Rights, the decisive argument in improving the criminal confiscation mechanism? – Op-Ed by Pavel Cazacu

The confiscation and recovery of criminal assets is one of the most effective ways to deter crime. At the same time, it is important that this instrument be perfected both in accordance with the standards provided by the European Convention on Human Rights and by the legislation of the European Union. The new draft law on amending some aspects of criminal confiscation aims to improve the mechanism of confiscation of criminal assets, to streamline its levers, but at the same time to provide guarantees to potentially affected persons. Moreover, the recent ECHR ruling against Moldova confirms the need to amend the regulatory framework in order to ensure increased legal predictability.

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CONTEXT

On 8 October 2024, the European Court of Human Rights (hereinafter the ECtHR or the Court) delivered its judgment in the case of Cosovan v. Republic of Moldova (no. 2). The complaint concerns the confiscation of a sum of money from the applicant, although the criminal proceedings against him were terminated as a result of the expiry of the limitation period.

The essential problem is that this confiscation took place in the absence of a criminal conviction, which led the Court to analyze the case in the light of Article 6§2 of the Convention, which guarantees the presumption of innocence. Analyzing the domestic legislation on special confiscation, but also the reasoning of the domestic courts, the ECtHR found the following aspects: first, the application of special confiscation does not amount to a criminal penalty; secondly, the provisions of the Criminal Code on confiscation apply to property and are aimed at preventing the use of property derived from illegal activities; Third, the assessment of the illicit origin of the money in this case was based on evidence collected in the course of the prosecution, but not on assumptions. The Court’s findings in this case are of increased relevance for law enforcement bodies, both from the perspective of the legal nature of confiscation and for the value of the arguments brought by them in the confiscation enforcement process.

In the context of the findings, the Court dismissed the applicant’s complaint by a narrow vote of four votes in favour and to three against, a rare situation that reflects the examination of a complex issue. The majority considered that the application of the special confiscation did not amount to an admission of the applicant’s guilt, respectively the presumption of innocence had not been violated[1]. The other 3 judges of the Court had a separate opinion, interpreting national law in a different manner and paying close attention to the language used in the decisions of national courts. They mentioned that the expressions used by judges and prosecutors, in particular the phrases: “income … obtained by [the applicant] as a result of the crime’ and ‘money obtained as a result of the crime’, implicitly suggested that the applicant had been guilty of committing the crime.

This tight decision, the distinct interpretation of the domestic legislation and the reasoning of the national courts regarding the special confiscation mechanism, indirectly confirm the need to improve the normative framework of the Republic of Moldova. We believe that such amendments are necessary to ensure the predictability and certainty of the criminal law regarding the special confiscation mechanism.

What are the authorities doing to improve the confiscation mechanism?

Under the National Program for the Recovery of Criminal Assets for 2023-2027[2], the Plan of Measures to Limit the Excessive Influence of Private Interests on Economic, Political and Public Life (De-oligarchization),[3] the procedure to amend several normative provisions related to the process of recovery of criminal assets was initiated. These public policy documents were adopted by the authorities following the European Commission’s recommendation on the need  to “update the strategy for the recovery of assets derived from the commission of crimes and the establishment of a new mechanism for the recovery of assets”.[4] At the same time, we admit that the ECtHR jurisprudence was also based on these amendments, in particular the judgment of the Grand Chamber in the Nealon and Hallam case[5], but also the Cosovan case (no. 2), which is at that stage pending before the Court, with important chances of condemning Moldova.

More than six months later, today there is a complex draft law, which is at a sufficiently advanced stage (repeated consultations), whose main purpose is to strengthen the mechanism for tracking and identifying criminal assets.[6] The informative note of the draft law and the specialized analyses[7] highlight major shortcomings in the process of recovering criminal assets: the criminal prosecution body focuses on proving the deed and less on the assets related to the crimes; there is no updated system of judicial statistics; and the records on seized assets can be duplicated between the criminal investigation bodies and prosecutors’ offices.

The draft law proposes to transpose important provisions of EU legislation, both to streamline the confiscation procedure (e.g. confiscation applied to third parties) and to introduce additional safeguards against potential abuses (e.g. regulating how to inform people about the seizure of assets and their rights).

The intervention of the authorities in the special confiscation mechanism, which I mentioned earlier was the subject of a narrow decision of the ECtHR, is an essential one. The authorities aimed to regulate more clearly the application of special confiscation in cases where the person cannot be held criminally liable for various grounds of non-rehabilitation, such as release from liability or criminal punishment, when there is no conviction. These changes have the capacity to ensure greater predictability of the confiscation mechanism.

Conclusions and perspectives

The need for an efficient and predictable mechanism for confiscating criminal assets is indisputable, especially in states such as the Republic of Moldova, where early democracy is affected by systemic corruption. Thus, it is important that the provisions regulating the confiscation procedure emanate from the legislative body, not from the courts, a fundamental aspect in states where justice is less accustomed to confiscation procedures, and the judicial system is in a continuous reform.

It is equally important that the draft law be consulted with all interested actors,  to obtain a balanced draft law that includes amendments both to improve the efficiency of the freezing and confiscation mechanism and to provide guarantees against potential abuses. However, the initiation of repeated consultations, the involvement of all relevant authorities,  ensures a level of certainty that in this case the authorities focus on the quality of the amendments, being aware of their positive impact in the fight against crime on one of the most important segments – the seizure and recovery of criminal assets.

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Pavel Cazacu is a lawyer and member of the Justice Experts Group within the Institute for European Policies and Reforms (IPRE).

Reviewed by Stas Ghilețchi, Deputy Director for Research at IPRE.

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This op-ed is developed within the project “Ensuring the integrity, efficiency and independence of the justice system in Moldova – #Justice4Moldova”, funded by the European Union and co-financed by the Soros Foundation Moldova. The content of the material belongs to the author and does not necessarily reflect the views of the European Union and the Soros Foundation Moldova.

[1] Case Cosovan vs Republic of Moldova (no. 2), no. 36013/13 of 08 October 2024, Available: https://hudoc.echr.coe.int/eng?i=001-236132

[2] Parliament Decision no. 342/2022, Available: https://www.legis.md/cautare/getResults?doc_id=135063&lang=ro

[3] National Commission for European Integration, Available: https://presedinte.md/app/webroot/uploaded/plan_CNIE_ro_08.06.2023.pdf

[4] Commission Opinion on the application for accession to the European Union submitted by the Republic of Moldova of 17 June 2022, Available: https://eur-lex.europa.eu/legal-content/RO/TXT/HTML/?uri=CELEX:52022DC0406

[5] Case Nelon and Hallam v. United Kingdom, applications no. 32483/19 and 35049/19 of 11 June 2024, Available: https://hudoc.echr.coe.int/eng?i=001-234468

[6] Draft law on the approval of the draft law on the amendment of some normative acts (improvement of the mechanism for confiscation of criminal assets) (unique number 228/MJ/2024), Available: https://cancelaria.gov.md/ro/content/cu-privire-la-aprobarea-proiectului-de-lege-pentru-modificarea-unor-acte-normative-38

[7] Analysis report on criminal confiscation in the Republic of Moldova, Radu Nicolae, November 2023, Available: https://soros.md/wp-content/uploads/2024/04/Confiscare_penala_v2.pdf