Position Paper on the draft law for the amendment of some normative acts (improvement of the mechanism for the confiscation of criminal assets (unique no. 228/MJ/2024)

The Institute for European Policies and Reforms (IPRE) has received the letter from the Ministry of Justice no. 03/3693 of 30.09.2024 by which the draft law for the amendment of some normative acts (improvement of the mechanism for the confiscation of criminal assets) registered with the State Chancellery under the single number 228/MJ/2024 was submitted for approval [hereinafter – “Draft law”]. The draft law aims, as described in the accompanying Information Note, to strengthen the mechanism for tracking and identifying criminal assets to support the bodies responsible for their confiscation and effective enforcement, as well as to ensure asset management and planning measures, by aligning the national regulatory framework with the standards of EU legislation.

It should be noted that the draft law is drafted as a result of 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. This need has been outlined in section 5.2. of the Action Plan for the implementation of the measures proposed by the European Commission in its Opinion on the application for accession of the Republic of Moldova to the European Union, approved by the National Commission for European Integration on 04.08.2022.

The authors of the draft described in detail the conditions that imposed the elaboration of the project and the aims pursued in the Informative Note.

In addition to the legislative efforts to align with the acquis communautaire, the reconceptualization of the legal regime of the mechanism for the confiscation of criminal assets is a necessity that derives from a series of inaccuracies and gaps in the substantive, procedural and enforcement legislation that make it difficult to apply this mechanism effectively and that has been notified at national level by the institutions with responsibilities in this field.

At the same time, IPRE notes that the large-scale legislative interventions that this project comes with are to be carefully analyzed from the perspective of respect for human rights and the principles of criminal law enshrined in the Constitution and in the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), primarily and through jurisprudence. In particular, our attention turns to the objections and proposals in the Synthesis concerning: (i) the presumption of innocence; (ii) the protection of the right to property; (iii) the right to a fair trial; (iv) the right to privacy. Useful in this regard are the conclusions set out in the Joint Opinion of the Venice Commission and OSCE/ODIHR on the crime of illicit enrichment in the Republic of Moldova, adopted at the 132nd plenary session of the Venice Commission, in which the constitutional principles of the presumption of innocence, ne bis in idem, etc., were analyzed.

The authors of the draft in substantiating the interventions referred to the ECtHR jurisprudence and to the legislative acts of the European Union.

In the following, even if the draft law is at an advanced stage of approval, we will try to present our vision on some elements of substance and form. This opinion reflects the current analysis and is open to further adjustments, in the event of the identification of additional issues or the emergence of new information on the application in practice, in the spirit of the evolving and dynamic interpretation of the law (reasoning set out by the ECtHR in several judgments, i.e.: Tyrer v. Great Britain (1978); Christine Goodwin v. Great Britain (2002); Scoppola v. Italia (nr. 2) (2009); Selmouni v. France (1999)].

Further details on the JEG recommendations are available here.