Security measures. Chapter X. Security measures. Criminal Code of the Republic of Moldova
Excerpt from the Criminal Code of the Republic of Moldova
Title X. Security measures
Article 98. Purpose and types of security measures
(1) Security measures aim to eliminate a danger and prevent the commission of acts provided for by criminal law.
(2) Security measures are:
a) medical coercive measures;
b) educational coercive measures;
c) expulsion;
d) special confiscation;
e) extended confiscation.
Article 99. Application of medical coercive measures
To persons who have committed acts provided for by the criminal law in a state of irresponsibility or who have committed such acts in a state of responsibility, of reduced responsibility, but, by the time the sentence is pronounced or during the execution of the sentence, have fallen ill with a mental illness, due to which they are unable to realize their actions or direct them, the court may apply the following medical coercive measures, which are carried out by the curative institutions of the health protection bodies:
a) admission to a psychiatric institution with regular supervision;
b) admission to a psychiatric institution with rigorous supervision.
Article 100. Admission to a psychiatric institution
(1) Admission to a psychiatric institution with regular supervision may be applied by the court to a mentally ill person who, due to his mental state and the nature of the prejudicial act committed, needs hospital care and treatment under regular supervision.
(2) Admission to a psychiatric institution with strict supervision may be applied by the court to a mentally ill person who, due to his mental state and the nature of the prejudicial act committed, poses a particular danger to society and needs hospital care and treatment under strict supervision.
(3) Persons admitted to psychiatric institutions with strict supervision shall be detained in conditions that exclude the possibility of their committing a new prejudicial act.
Article 101. Establishment, change, extension and termination of the application of medical restraint measures to insane persons
(1) The court, considering it necessary to apply a medical restraint measure, shall choose its form depending on the mental illness of the person, the nature and harmfulness of the committed act. The person subjected to forced treatment or his/her representative shall have the right to request an opinion from an independent medical institution on the state of health of the person to whom medical restraint measures are applied.
(2) The court, based on the opinion of the medical institution, shall order the termination of the application of medical restraint measures in the event of the person’s recovery or such a change in the nature of the illness that excludes the need to apply these measures.
(3) The change of the medical restraint measure or the extension of the term of its application shall also be made by the court, both ex officio and at the request of the person concerned or his representative, based on a control, carried out at least once every 6 months, regarding the necessity of applying this measure.
(4) If the court does not find it necessary to apply medical restraint measures to a mentally ill person, as well as in the event of the cessation of the application of such measures, it may entrust him to the care of relatives or guardians, but under mandatory medical supervision.
Article 102. Deduction of the duration of application of medical coercive measures
(1) The court may impose the punishment upon a person who, after committing the crime or during the execution of the punishment, fell ill with a mental illness, due to which he is unable to realize his actions or direct them, if the limitation period has not expired or if there are no other reasons for his release from criminal liability and punishment.
(2) In case of application of the punishment after recovery, the duration of application of medical coercive measures shall be deducted from the term of the punishment.
Article 103. Application of medical coercive measures to persons suffering from alcohol or drug addiction and the establishment of a judicial protection measure
(1) In case of commission of a crime by a person suffering from alcohol or drug addiction, if there is an appropriate medical opinion, the court, ex officio or at the request of the prosecutor or the health protection body, concurrently with the punishment for the committed crime, may apply forced medical treatment to this person.
(2) The persons referred to in paragraph (1), sentenced to non-custodial sentences, shall be subject to forced treatment in special regime medical institutions.
(3) If the persons referred to in paragraph (1) have been sentenced to imprisonment, during the execution of the sentence they shall be subject to compulsory medical treatment, and after their release from places of detention, if it is necessary to continue such treatment, they shall be treated in medical institutions with special regime.
(4) The termination of compulsory medical treatment shall be ordered by the court, upon the proposal of the medical institution in which the person concerned is being treated.
(5) If the offence was committed by a person who abuses alcohol and thereby places his family in a difficult material situation, the court, simultaneously with the application of the non-custodial sentence for the offence committed, shall have the right, at the request of the prosecutor or close relatives of the person concerned, to institute a measure of judicial protection.
Article 104. Application of coercive measures of an educational nature
(1) The following coercive measures of an educational nature shall be applied to persons released from criminal liability in accordance with art. 54 or from criminal punishment in accordance with art. 93:
a) warning;
b) entrusting the minor for supervision to the parents, persons replacing them or specialized state bodies;
c) obliging the minor to repair the damage caused. When applying this measure, the material condition of the minor shall be taken into account;
d) obliging the minor to follow a psychological rehabilitation course;
e) obliging the minor to follow a compulsory education course;
f) requiring the minor to participate in a probationary program;
g) requiring the minor to attend a professional qualification course.
(2) The list in paragraph (1) is exhaustive.
(3) Several educational coercive measures may be applied to the minor at the same time.
(4) In the event of the minor systematically evading educational coercive measures, upon the proposal of the specialized state body, the prosecutor shall cancel the applied measures and refer the case to the court, and if the respective measures have been established by the court, it shall cancel them and order the referral of the criminal case to the prosecutor or, as the case may be, establish a penalty provided for by law for the committed act.
(5) Coercive measures of an educational nature shall be applied to minors until they reach the age of majority, depending on the nature and degree of harm of the act committed.
Article 105. Expulsion
(1) Foreign citizens and stateless persons who have been convicted of committing crimes may be prohibited from remaining on the territory of the country.
(2) If expulsion accompanies a prison sentence, the expulsion shall be carried out after the sentence has been served.
(3) When making a decision regarding the expulsion of the persons referred to in paragraph (1), the right to respect for their private life shall be taken into account.
Article 106. Special confiscation
(1) Special confiscation consists of the forced and gratuitous transfer of the goods indicated in paragraph (2) to the state. If these goods no longer exist, cannot be found, cannot be recovered or their confiscation is impossible for any other reason, another good of equivalent value shall be confiscated as a priority, and in its absence, their equivalent value.
(2) The following goods (including currency values) shall be subject to special confiscation:
a) used or intended for the commission of a crime;
b) proceeds from crimes, as well as any income or benefits derived from such goods;
c) given to determine the commission of a crime or to reward the criminal;
d) held contrary to legal provisions;
e) converted or transformed, partially or fully, from the assets resulting from crimes and from the income or benefits obtained from these assets;
f) which constitute the object of money laundering or terrorist financing crimes.
(3) If the assets indicated in paragraph (2) have been merged with legally acquired assets, that part of the assets or their equivalent value that corresponds to the value of the assets resulting from crimes and the income or benefits obtained from these assets shall be confiscated.
(4) Special confiscation shall apply even if the suspect, accused, defendant or convicted person is released from criminal liability or criminal punishment or if an amnesty has been applied or his/her death has occurred. Special confiscation shall not apply in the case of the person's release from criminal liability following the expiry of the limitation period, except for minor, less serious or serious offences, and if the period has expired after the commencement of the criminal proceedings.
(5) Special confiscation shall not apply in the case of offences committed through a press organ or any other means of mass information.
Article 1061. Extended confiscation
(1) Other assets than those indicated in art. 106 shall be subject to extended confiscation, if the person is suspected, accused, indicted or convicted of committing the offences provided for in art. 1401–142, 144, 158, art. 164 para. (2) let. f), art. 165–168, art. 171 para. (2) let. a) and para. (3) let. a), art. 172 para. (2) let. a) and para. (3) let. a), art. 173 para. (2), art. 174–1751, 1811–1813, 186–191, 206, 208–2085, 2141, 217–2174, 218–2201, 223–233, 236–2461, art. 247 para. (2), art. 248–253, 257, 259–2606, 2608, 275, 278–280, 282–286, 289–290, 292, 295–2952, 302, 324–329, 3302, 332–3351, 342, 343, 361 and 3621, if the act is likely to generate an economic benefit.
(2) Extended confiscation shall be ordered if the following conditions are cumulatively met:
a) the value of the assets acquired by the suspected, accused, indicted or convicted person in the last 5 years before and, if applicable, after the moment of committing the crime, until the date of issuing the court notification act, exceeds by more than 20 average monthly salaries forecasted for the economy, established by Government decision, the incomes acquired lawfully by him. If a continuous crime is committed, the period until the end of the criminal activity is also taken into account;
b) the court is convinced that the assets in question may come from criminal activities. The court's conviction may also be based on the difference between the income obtained legally and the value of the assets acquired in the same period, on the fact that there is no plausible legal source of the assets or that the suspected, accused, indicted or convicted person has links to organized crime;
c) the crimes indicated in paragraph (1) have been committed, for which the law provides, as a maximum penalty, imprisonment for a term of at least 4 years.
(3) When applying the provisions of paragraph (2), the value of the assets held by both the suspected, accused, indicted or convicted person and the natural or legal third parties referred to in art. 1062 shall be taken into account.
(4) When establishing the difference between the licit income and the value of the acquired assets, the value of the assets at the date of their acquisition and the expenses incurred by the suspected, accused, indicted or convicted person and their family members, including the natural or legal third parties referred to in art. 1062, shall be taken into account.
(5) If, upon the adoption of the court's decision, the assets subject to extended confiscation no longer exist, are not found or have been merged with the assets acquired lawfully and which cannot be separated from them, or if their confiscation is impossible for any other reason, money and other assets covering their value shall be confiscated in their place.
(6) The assets and money obtained from the exploitation or use of the assets subject to confiscation shall also be confiscated, including the assets into which the assets derived from criminal activities have been transformed or converted, as well as the income or benefits obtained from these assets.
(7) If the suspected, accused, indicted or convicted person possesses money, these shall be confiscated as a priority. If the money possessed is not sufficient, the other assets shall be confiscated.
(8) The confiscation may not exceed the value of the assets acquired during the period provided for in paragraph (2) letter a), which exceeds the level of the lawful income of the suspected, accused, indicted or convicted person.
(9) Extended confiscation shall also apply if the person cannot be held criminally liable due to death or if he is released from criminal liability or punishment for the reasons provided for in this Code, or if an amnesty has been applied. Extended confiscation shall not apply in the case of the person's release from criminal liability following the expiry of the limitation period, except for less serious or serious offences, and if the period expired after the commencement of the criminal proceedings.
Article 1062. Confiscation applied to third parties
(1) The goods subject to special confiscation or extended confiscation that have been transferred by the suspect, accused, defendant or convicted person to natural or legal third parties or that have been acquired by these persons from the suspect, accused, defendant or convicted person shall be confiscated under the conditions of paragraphs (2) and (3).
(2) The confiscation of the goods referred to in paragraph (1) is possible in one of the following situations:
1) the natural or legal third parties knew or should have known that:
a) the goods transferred or acquired meet the conditions provided for in art. 106 paragraph (2) and art. 1061 paragraph (2); or
b) the purpose of the transfer or acquisition of the goods was to avoid confiscation, including when the transfer or acquisition was made free of charge or in exchange for an amount of money that is clearly disproportionate to the market value of the goods;
2) the goods were acquired by third parties, natural or legal, or were transferred to third parties, natural or legal, while remaining in the effective ownership of the suspect, accused, defendant or convicted person.
(3) Special confiscation and extended confiscation may not be applied to goods held by third parties, natural or legal, in good faith. Third parties, natural or legal, who have acquired goods or to whom goods have been transferred in at least one of the situations provided for in paragraph (2) may not be considered bona fide owners.
