SECOND SECTION
CASE OF COSOVAN v. THE REPUBLIC OF MOLDOVA (No. 2)
(Application no. 36013/13)
 
JUDGMENT
 
Art 6 § 2 • Presumption of innocence • Special confiscation of a sum of money because of its undisputed unlawful origin, after the discontinuance of the criminal proceedings as time-barred • Under domestic law special confiscation constituted a precautionary measure which appeared to be directed against property rather than a person and intended to prevent the use of assets from an unlawful act • Imposition of a confiscation order did not amount to a penalty as such and did not require a finding of guilt for a criminal offence or reflect an opinion of guilt to the criminal standard of the commission of a such an offence • Statements in the confiscation order, on the basis of a correct assessment of the domestic law and read in the context of the decision as a whole, could not reasonably be understood as an affirmation of guilt to the criminal standard of the commission of the offence
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
8 October 2024
 
FINAL
 
08/01/2025
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Cosovan v. the Republic of Moldova (no. 2),
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Arnfinn Bårdsen, President,
 Pauliine Koskelo,
 Saadet Yüksel,
 Lorraine Schembri Orland,
 Frédéric Krenc,
 Diana Sârcu,
 Davor Derenčinović, judges,
and Hasan Bakırcı, Section Registrar,
Having regard to:
the application (no. 36013/13) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Mr Serghei Cosovan (“the applicant”), on 26 April 2013;
the fact that the applicant died on 25 March 2021 and his wife, Ms Elena Cosovan, expressed her wish to pursue the application before the Court;
the decision to give notice to the Moldovan Government (“the Government”) of the complaints concerning Article 6 §§ 1 and 2 of the Convention and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 10 September 2024,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the confiscation of a sum of money from the applicant, despite the discontinuance of the criminal proceedings against him as time‑barred. The applicant complained of a violation of his rights under Article 6 §§ 1 and 2 of the Convention. THE FACTS
2. The applicant was born in 1971 and lived in Chișinău. He was represented by Mr I. Cerga, a lawyer practising in Chișinău. 3. The Government were represented by their Agent, Mr O. Rotari. 4. The facts of the case may be summarised as follows. 5. On 15 January 2007, following numerous complaints from the Chișinău municipality, a criminal investigation was initiated against the applicant on charges of practising illegal commercial activity. According to the prosecution the applicant, acting as the director of a company, V.G., was suspected of having operated a public car park between April and November 2006 without proper authorisation from the State authorities and without paying taxes. 6. During the investigation, the tax authorities calculated the income from the car park during the period of the investigation, based on the documents seized on site, at 116,428 Moldovan lei (MDL) (the equivalent of 7,080 euros). The investigation also revealed that V.G. was an enterprise run by the applicant which had failed to submit any tax returns since December 2004 and which had for that reason been designated as a “delinquent” entity. 7. On 27 June 2011, following a request from the applicant, the prosecutor in charge of the case decided to discontinue the investigation because it was time-barred. The decision to discontinue read as follows:
“The investigation was initiated on 15 January 2007 on charges of [illegal practice of commercial activity] in respect of [the applicant]. According to the material in the case file, ... on 1 April 2006 the F. company signed a lease agreement for a plot of land with the V.G. company, represented by its director [the applicant], to be used as a car park. Since then [the applicant] ... had been operating an illegal car park on that plot of land, without any system for recording cash receipts and without proper authorisation, and had received a total of MDL 116,428 in cash. ... During the investigation sufficient evidence was gathered to confirm the suspicion in respect of [the applicant] and in particular there were [ten witness statements], ... three records seized on site reflecting [the activity of the car park], ... [replies from the tax authority] about the V.G. company being listed as a delinquent entity and about the car park’s takings between 1 April and 1 November 2006, amounting to MDL 116,428. On 23 June 2011 [the applicant] requested the discontinuance of the criminal investigation because the limitation period had expired. ... In view of the accumulated evidence, I consider that the criminal investigation in respect of [the applicant] should be discontinued because the limitation period has expired. At the same time, it is noted that income in the amount of MDL 116,428 was obtained by [the applicant] as a result of the criminal offence provided for in Article 241 § 2 (e) and (f) of the Criminal Code, through the operation of an illegal car park. Under Article 285 § 6 (3) of the Code of Criminal Procedure, a prosecutor deciding to discontinue an investigation may, where necessary, take precautionary measures. Under Article 98 § 2 of the Criminal Code, special confiscation is a precautionary measure. ... Since the authority conducting the criminal investigation has not identified and seized the amount of money obtained as a result of the criminal offence, it is necessary to proceed under Article 106 §§ 1 and 2 a) of the Criminal Code with special confiscation, that is, the forced and uncompensated transfer to the State of a sum equivalent to that income, amounting to MDL 116,428, from the suspect [the applicant].
... For the above-mentioned reasons, ... I order the following:
1. The discontinuance under Article 275 paragraph 4 of the Code of Criminal Procedure of the criminal investigation on the charges under Article 241 § 2 (e) and (f) of the Criminal Code of illegal practice of commercial activity by [the applicant] because the limitation period has expired;
2. The special confiscation of ... a sum equivalent to that obtained from the criminal offence, amounting to MDL 116,428, to be paid by [the applicant]. ...”
8. The applicant challenged the part of the prosecutor’s decision that concerned the confiscation and argued, inter alia, that he had never admitted guilt and that his guilt had not been determined by a court of law. He had never been given any explanation as to the applicability of the legal provision on special confiscation. The measure of special confiscation therefore could not be applied to him. 9. On 6 April 2012 a hierarchically superior prosecutor dismissed the applicant’s appeal, reiterating the reasons previously given by the prosecutor (see paragraph 7 above) and stating as follows:
“[T]he authority which conducted the criminal investigation considers that the sum of MDL 116,428 obtained from the operation of the illegal car park by the accused [the applicant] represents the proceeds of criminal activity and that that sum may be the subject of special confiscation under Article 106 of the Criminal Code. On 23 June 2011 [the applicant] sought the discontinuance of the criminal investigation because of the expiry of the limitation period. On 27 June 2011 the investigation was discontinued under Article 275 § 1 (4) of the Code of Criminal Procedure. Discontinuance on this ground [does not give an entitlement to rehabilitation]. For this reason, a request to discontinue proceedings on the grounds of the expiry of the limitation period indicates a waiver of the right to have guilt proved in criminal proceedings. Non-rehabilitation is therefore a condition imposed by the law for the application of the rules on the expiry of the limitation period.”
10. On 19 April 2012 the applicant complained to the investigating judge about the confiscation ordered by the prosecutor, seeking the annulment of his decision of 27 June 2012 but only as to the part concerning confiscation. He argued that the prosecutor had not explained to him that asking for the investigation to be discontinued because it was time-barred was considered by the criminal investigating authority to be an admission of guilt. Nevertheless, he had never had standing in the criminal proceedings as he had not been acknowledged as a suspect and no charges had ever been brought against him. By concluding that he was guilty, the prosecutor had breached his right to a fair trial and his right to be presumed innocent. Because he had not admitted guilt, the prosecutor was precluded from applying the measure of special confiscation, which could be used only once the criminal offence and the offender had been established in judicial proceedings. He submitted that the confiscation had already been enforced. 11. On 15 January 2013 the investigating judge of the Buiucani District Court dismissed the applicant’s complaint. The court provided the following reasons:
“In the course of the criminal investigation sufficient and pertinent evidence was gathered to confirm the suspicion in respect of [the applicant], and in particular there were [ten witness statements], ... three records seized on site reflecting [the activity of the car park], ... [replies from the tax authority] about the V.G. company being listed as a delinquent entity and about the car park’s takings between 1 April to 1 November 2006 amounting to MDL 116,428. On 23 June 2011 [the applicant] sought the discontinuance of the proceedings as time‑barred. During the criminal investigation ... it was established that [the applicant] could not be held criminally liable because ... of the expiry of the limitation period. ... Nevertheless, it has been found that income in the amount of MDL 116,428 has been obtained by [the applicant] as a result of criminal offences under Article 214 § 2 (e) and (f) of the Criminal Code, through the operation and administration of the unauthorised car park. Under Article 285 § 6 (3) of the Code of Criminal Procedure, the prosecutor may, if necessary, take precautionary measures ... [such as special confiscation].
[T]he court finds that the prosecutor’s decision was well-founded, with due assessment of the evidence adduced, and [the applicant] did not refer to any legal reasons why the prosecutor’s decision of 27 June 2011 should be annulled. ... On 28 February 2008 [the applicant] was acknowledged as a suspect, which he was informed about in the presence of his appointed lawyer, and he refused to make a statement. On 23 June 2011 [the applicant] sought the discontinuance of the proceedings because of the expiry of the limitation period. ... On 27 June 2011 the proceedings [were discontinued and the confiscation was ordered] ...
[The applicant] does not challenge the prosecutor’s decision to discontinue the criminal investigation. ... His complaints about [procedural deficiencies] do not correspond to the material in the file since all procedural actions had been taken in the presence of his appointed lawyer. For this reason, the discontinuance of the investigation ... on the grounds of the expiry of the limitation period took place with his consent and in compliance with Article 275 § 4 and Article 285 of the Code of Criminal Procedure. In discontinuing the proceedings, the prosecutor was authorised to adopt precautionary measures, [including special confiscation].
[D]uring the criminal investigation it was established [see a summary of findings based on the evidence listed above] and that income in the amount of MDL 116,428 had been obtained by [the applicant] as a result of the criminal offences under Article 241 § 2 (e) and (f) of the Criminal Code, through the operation and management of an unauthorised car park. [The applicant] did not contest those conclusions reached by the prosecutor. Neither [the applicant], nor his lawyer denied the facts alleged in the court proceedings. Even if a criminal penalty was not established, an individual may be subjected to special confiscation when income is derived from an act committed and prohibited by the Criminal Code, in this particular case Article 241 § 2 (e) and (f), the result of that act [in the present case] being the sum of MDL 116,428 derived from unlawful commercial activity. On that basis, the court concludes that in the absence of any legal impediments and with the [necessary] procedural authority ..., the prosecutor has correctly applied Article 106 of the Criminal Code and ordered the special confiscation of [MDL 116,428] which has been obtained from unlawful commercial activity.”
12. The Government provided the complete criminal file from the domestic proceedings. Among other things, in addition to the facts described above it contained numerous letters, decisions and site reports by the local public authority concerning the dismantling of illegal car parks in various parts of the city, including the car park allegedly operated by the applicant; numerous police reports about the site; a decision by the owner of the V.G. company authorising the applicant to act as its administrator; ten witness statements, including one by the owner of the V.G. company concerning the informal transfer of ownership of the company to the applicant and statements from five car-park security staff who said that the applicant had taken all the income from the car park; the record of the applicant’s interview as a suspect on 28 February 2008, during which he declined to make a statement; a request dated 21 October 2009 signed by the applicant’s lawyer seeking the discontinuance of proceedings as time-barred; and a request dated 23 June 2011 signed by the applicant also seeking the discontinuance of proceedings as time-barred. RELEVANT DOMESTIC AND INTERNATIONAL LEGAL FRAMEWORK
DOMESTIC LEGAL FRAMEWORK
13. The Code of Criminal Procedure, enacted by Law no. 122 of 14 March 2003, at the time of the events of this case provided as follows:
Article 23. Protecting victims’ rights as a result of crimes,
abuse of public office and judicial error
“(3) A person who is acquitted or in respect of whom a decision to discontinue proceedings is taken on rehabilitation grounds shall be entitled to the restoration of all personal rights, as well as to compensation for the damage caused.”
Article 275. Circumstances excluding criminal investigation
“A criminal investigation shall not be initiated, and if initiated, may not be pursued and shall be discontinued if:
... 4) the limitation period has expired or an amnesty has been declared; ...”
Article 285. Discontinuance of a criminal investigation
“(1) A criminal investigation shall be discontinued in the situations referred to in Article 275, and also:
... 2) when at least one of the grounds in Articles 35 and 53 of the Criminal Code has been established; ... (6) On discontinuing a criminal investigation, the prosecutor, if necessary, shall take the necessary steps:
... 3) to apply precautionary measures; ... (61) The discontinuance of a criminal investigation and the exemption of a person from criminal liability shall not be pursued against the wishes of the person concerned.”
Article 397. Other issues to be solved in the operative part of the judgment
“The operative part of a judgment convicting or acquitting [the defendant] or discontinuing criminal proceedings shall include ... if appropriate:
2) a decision on any special confiscation; ...”
14. The Criminal Code of the Republic of Moldova, enacted by Law no. 895 of 18 April 2002, at the time of the events of the present case provided:
Article 14. Definition of a criminal offence
“(1) A criminal offence is a harmful act (fapta) (act or omission) provided for by the criminal law, committed with intent and punishable by a criminal penalty.”
Article 53. Exemption from criminal liability
“A person who has committed an act which contains the elements of a crime may be exempted from criminal liability by the prosecutor in the course of the criminal investigation and by the court in the course of court proceedings because of:
... (g) the expiry of the limitation period for criminal offences.”
Article 62. Categories of penalties applied to individuals
“(1) The following penalties may be imposed on individuals who have committed crimes:
a) a fine;
b) deprivation of the right to hold an office or to practise a certain activity;
c) withdrawal of military rank, honour or title, qualifications or State awards;
d) community service;
[point (e) (‘arrest’) repealed as from 13 May 2008]
f) imprisonment;
g) life imprisonment.”
CHAPTER X. Precautionary measures
Article 98. Purpose and types of precautionary measures
“(1) Precautionary measures shall aim to remove a risk and to prevent the commission of acts prohibited by criminal legislation. (2) Precautionary measures shall be as follows:
a) compulsory medical treatment;
b) compulsory education;
c) expulsion;
d) special confiscation.”
Article 106. Special confiscation
“(1) Special confiscation is the forced and uncompensated transfer to the State of goods used in the commission of a crime or obtained as a result of crime. If the goods used in the commission of a crime or obtained as a result of crime no longer exist or cannot be traced, their equivalent value shall be confiscated. (2) The following goods (bunuri) shall be subject to special confiscation:
a) those resulting from an act (fapta) prohibited by this Code as well as any income from those goods, except for goods or income subject to return to their legal owners;
b) those used or intended for use in the commission of a crime, if they belong to the offender (infractor);
c) those provided for the carrying out of a crime or to pay the offender (infractor);
d) those obtained through the commission of a crime, if they are not to be returned to the injured person or are not intended to be provided to him or her by way of compensation;
e) those possessed contrary to the law;
f) those converted or transformed, partially or completely, from goods resulting from crime or from any income accrued from such assets;
g) those used or intended for the financing of terrorism. (21) If the goods resulting from or acquired through crime or any income accrued from such goods have merged with legally acquired goods, then the part of the goods or their equivalent value which corresponds to the value of the goods resulting from or acquired through crime and any income accrued from those goods shall be subject to confiscation. (3) Special confiscation shall be applied to persons who have committed the acts (fapte) prohibited by this Code. The goods mentioned in paragraph 2 may be subject to confiscation even if they belong to other persons, if those persons accepted them knowing that they had been illegally obtained. (4) A special confiscation measure shall be applicable even if no criminal sanction was imposed on the perpetrator (făptuitor). Article 241. Illegal practice of commercial activity
(1) The illegal practice of commercial activity, resulting in large profits, shall be punished by a fine of up to 500 conventional units or community service of up to 200 hours ... (2) The same deed committed:
... (e) in extremely large proportions;
(f) resulting in extremely large profit.... Shall be punished by a fine from 500 to 1000 conventional units or imprisonment up to two years ...
[Article 126 of the Criminal Code defined “extremely large” any value exceeding 5,000 conventional units, which at the time of events constituted 100,000 Moldovan lei (equivalent to 5,900 euros)]”
15. After several amendments in 2012 and 2016, the provisions of Article 106 of the Criminal Code of the Republic of Moldova now read as follows:
Article 106. Special confiscation
“(1) Special confiscation is the forced and uncompensated transfer to the State of goods listed under paragraph (2). If those goods no longer exist or cannot be found, their equivalent value shall be confiscated. (2) The following goods (including money) shall be subject to special confiscation:
a) those used or intended for use in the commission of a crime;
b) those resulting from crimes, as well as any income accrued from them;
c) those provided for the carrying out of a crime or to pay the offender (infractor);
[point (d) repealed as from 06 May 2016]
e) those possessed contrary to the law;
f) those converted or transformed, partially or completely, from goods resulting from crime or from any income accrued from such goods;
g) those which constitute the object of the crimes of money laundering and financing of terrorism. (21) If the goods resulting from or acquired through crime or any income accrued from such goods have merged with legally acquired goods, then the part of the goods or their equivalent value which corresponds to the value of the goods resulting from or acquired through crime and any income accrued from those goods shall be subject to confiscation. (3) If the goods listed under paragraph (2) a) and b) belong or were transferred for consideration to a person who was not and ought not have been aware of the purpose or the origin of the goods, their equivalent value shall be subject to special confiscation. If those goods were transferred without consideration to a person who was not and ought not to have been aware of their purpose and origin, then the goods shall be subject to confiscation. (4) A special confiscation measure shall be applicable even if no criminal sanction was imposed on the perpetrator (făptuitor).”
INTERNATIONAL LEGAL FRAMEWORK AND PRACTICE
16. The Financial Action Task Force (FATF) recommendations entitled “International Standards on Combating Money Laundering and the Financing of Terrorism and Proliferation” include: recommendation no. 4, which states that countries should consider adopting measures that allow non‑conviction-based confiscation “to the extent that such a requirement is consistent with the principles of their domestic law”; and recommendation no. 38, which calls on States to ensure they have the authority to respond to requests made on the basis of non-conviction-based confiscation proceedings and related provisional measures, unless this is inconsistent with fundamental principles of their domestic law. 17. The Fifth Round Mutual Evaluation Report of the Council of Europe Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism (MONEYVAL) on “Anti-money laundering and counter-terrorist financing measures in the Republic of Moldova” was issued in 2019 (MONEYVAL(2019)6) and reads as follows, in so far as relevant:
“Special confiscation
250. The special confiscation is defined as a security measure aimed at removing the dangers resulting from the commission of criminal acts, as well as preventing the commission of future criminal offences. According to the prosecutors, the special confiscation is usually ordered by the Court in case of a conviction. However, the measure may also be applied if the Court decides the cessation of the trial on motivated grounds (i.e. in case of amnesty or death of the offender) or in cases where the criminal liability has been replaced with a civil liability and respective sanction. The confiscation is considered to be an ‘in rem’ measure, hence not being subject to the statute of limitations ...”
THE LAW
PRELIMINARY REMARKS
18.

Article of the Convention at issue: Article 6
Outcome: no_violation