The Constitutional Court (CC) declared inadmissible several petitions on the exception of the unconstitutionality of Article 330 (2) of the Criminal Code, which establishes criminal liability for illicit enrichment, on Friday, 25 November. Thus, the offence of illicit enrichment remains in the Criminal Code of Moldova.

In the process of examining the complaints, the High Court states that it requested the Venice Commission and the OSCE Office for Democratic Institutions and Human Rights for an opinion on the offence of illicit enrichment. On 24 October 2022, the two organisations adopted an opinion for the CC on the crime of illicit enrichment.

The CC noted that, on 6 July 2007, the Parliament adopted Law No 158 on the ratification of the United Nations Convention against Corruption committing itself to adopt “effective measures to prevent and combat corruption. Article 20 of this Convention provides that, subject to the 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 the criminal nature of illicit enrichment.”

At the same time, this article of the Criminal Code implements “the State’s commitments under Article 20 of the Convention against Corruption and penalises the possession by public officials of assets whose value substantially exceeds the lawfully acquired means”.

“The Court declared inadmissible the applications No 50g, 55g, 84g, 104g and 123g of 2022 concerning the exception of unconstitutionality of Article 330 (2) of the Criminal Code (…) The Court noted that it cannot carry out a constitutionality review in relation to an offence when alternative methods of intervention are alleged to exist. The Court is not in a position to conduct empirical studies on the need to criminalise certain acts. There may be different views on criminological issues, but it is not the role of the Court to favour one view over the other. State criminal policy is a matter for Parliament. In this respect, the Parliament enjoys a margin of discretion in the elaboration of national criminal policy, in particular when deciding whether conduct should be criminalised or whether certain acts should be criminalised (…)”, said CC President Domnica Manole at a press briefing.

The Court pointed out that it had in the past examined provisions criminalising illicit enrichment in the light of the right to respect for the presumption of innocence and had not found a violation in this respect.

“(…). The Court also held that Article 330(2) of the Criminal Code does not explicitly provide for any obligation on the person concerned to produce any evidence, nor does its text expressly establish a mechanism for reversing the burden of proof. This provision requires proof of possession of assets whose value substantially exceeds the means acquired and proof that they could not have been lawfully obtained. It is therefore not excluded that the defendant may present evidence to rebut the allegations of unlawful origin of the assets. With regard to the arguments concerning the right not to be punished twice,” the CC announced.

After the CC magistrates issued the ruling, Justice Minister Sergiu Litvinenco came up with a reaction on his Facebook page in which he noted that “all criminal cases on dignitaries or officials either under criminal prosecution or in court are moving forward”.

“The crime of illicit enrichment remains in the Criminal Code of Moldova. This is the decision of the Constitutional Court made public today, which was also based on the amicus curiae opinion of the Venice Commission adopted on 24 October this year. This means that all criminal cases against dignitaries or officials who are either under criminal prosecution or in court go ahead.

I know many hoped for a decision to the contrary. That would have messed up a lot of existing cases. Now, instead, those who wanted to get away with it will have to present evidence that overturns the allegations of the illicit origin of the assets. If, however, it is proved that they possess assets whose value substantially exceeds the means acquired and that they could not have been obtained legally, they will be liable to criminal punishment, including confiscation of assets,” said the Justice Minister.

This year, several petitions on the exception of unconstitutionality of Article 330 (2) of the Criminal Code, which establishes criminal liability for unlawful enrichment, have been submitted to the CC, including a petition by Ruslan Popov, a suspended former Deputy Prosecutor General.