Requested by: Republic of Moldova, Constitutional Court, President

Recommended Measures:
The Venice Commission concluded that Article 330(2) of the Criminal Code would not be contrary to the principles of the presumption of innocence, legality of the offence and ne bis in idem from the perspective of the European Convention on Human Rights and international standards if respectively: a) this provision could be interpreted as requiring the proof of possession of goods the value of which substantially exceeds the means acquired and proof that these goods could not have been obtained lawfully, while allowing defendants to rebut any prima facie case established against them by adducing evidence sufficient to raise a doubt regarding the submissions of the prosecution with respect to the proof of the material elements of the criminal offence of illicit enrichment, including by contesting the possession of goods, their value and proving the licit origin or lawful acquisition of the goods -- and, for the purpose of so doing, s/he has had the opportunity, consistent with the procedural standards required for a fair trial, to exonerate her/himself from the accusations against her/him; b) the Constitutional Court can conclude that (i) an individual could know from the wording of this provision - if need be, with appropriate legal advice and the assistance of any interpretation available by the courts - what acts and omissions would make her or him criminally liable and (ii) this provision is not intended to be applicable to possession of goods obtained unlawfully before its adoption or to lead to a more severe penalty than would otherwise have been the case because of including constituent elements similar to those of a previously existing offence; c) there has been neither an acquittal or conviction in respect of a similar crime/offence nor the institution of any proceedings under this provision or, in the event of both having occurred, the second set of proceedings is discontinued. Furthermore, the Venice Commission took the view that it is up to the Constitutional Court of the Republic of Moldova to decide whether the Constitution of the Republic of Moldova allows for a ruling on the observance of the ultima ratio principle by the Parliament of the Republic of Moldova. However, the imposition of criminal liability by Article 330(2) of the Criminal Code would a priori not be contrary to the discretion left to individual member States of the Council of Europe and to OSCE participating States to determine the scope of their criminal policy. Finally, the Venice Commission outlined that the applicable standard of proof should be in line with international standards as well as the Criminal Procedure Code of Moldova. The defendant should be able to rebut any prima facie case established against him/her by simply adducing evidence sufficient to raise a doubt regarding the submissions of the prosecution with respect to any of the constitutive elements of the criminal offence.

Measures taken: The Constitutional Court adopted judgment n° 159 on 24 November 2022. The judgment refers to the opinion.