Moldova

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Background

Moldova is located in Eastern Europe, sandwiched between Ukraine and Bulgaria. Previously the country was a part of Romania before becoming a state of the USSR, and eventually gaining its independence in 1991. Moldova is a parliamentary republic, which elected a communist President in 2001 and in 2009 the country elected its first collation government. Tensions between coalition members at times caused political uncertainty, and gridlock. In January 2006 a majority government was elected.

Due to political unrest and conflicts, an area to the east of the country known as the Transnistria claimed independence. As Moldova does not have any authority over this area all of following information will not concern the Transnistria, unless stated over wise.

The country has a population of approximately 3.5 million. Moldova is considered one of the poorest countries in Europe with 25.8% of the population living under the absolute poverty line and 2.8% under the extreme poverty line.

Moldova has a civil law system. The country is not a member of the International Court of Justice, but it is a signatory of the International Covenant for Civil and Political Rights and the European Convention of Human Rights (ECHR). Moldova has about 1,100 lawyers.

Legal aid system overview

The Law on State Guaranteed Legal Aid came into force on 1st July 2008 in Moldova. The National Legal Aid Council is the main body administering the legal aid system in Moldova. The National Council advises the Ministry of Justice as well as overseeing the legal aid system. Five territorial offices, covering the entire country, implement the Council’s functions. The system provides two types of legal aid. The first category is qualified legal aid. This type of legal aid is provided in criminal, civil, misdemeanor and administrative proceedings. Qualified legal aid provides a person with representation in civil proceedings and a defense in criminal matters. For criminal cases anyone who does not have the financial means or is charged with an offence for which the Criminal Procedure Code requires mandatory legal representation is eligible for legal aid. For civil proceedings legal aid is also available for persons with no means to retain a lawyer and whose case is of a certain “legal or procedural complexity”. Primary legal assistance, the second category, is concerned with allowing access to information about the legislative system of Moldova. This form of legal aid provides people with information about their rights and how to achieve these through judicial means, as well as giving assistance for legal documentation. Primary legal aid provides assistance for matters that fall outside of the category of qualified legal assistance. Any person, regardless of their financial status, can benefit from this legal aid.

Legal aid providers

Both of the legal aid categories have a different system of delivery. For qualified legal aid public defender offices, private lawyers and specialized NGOs are consulted, and persons wishing to use primary legal aid will consult paralegals and specialized NGOs. This mixed system of access allows for greater opportunities for accessibility and allows for a reasonable cost for legal aid services.

Civil legal aid

Qualified legal assistance may be requested at any stage of a civil case. In order for a person to qualify for this type of legal assistance they must meet the following requirements; they do not have sufficient means to pay for these services and the causes of the case are legally or procedurally complex .

Qualified legal aid may be refused in some circumstances such as if the case concerns commercial activity or the case relates to damaged honour, dignity and professional reputation.

As primary legal aid is open to everyone there is not a requirement for a person to prove their financial status and there are no grounds on which assistance can be refused.


Arrest, Search and Seizure laws

The Criminal Procedure Code of the Republic of Moldova sets out the circumstances and rules associated with arrests, searches and seizures.

Arrests

Before arresting a person a criminal investigative body may wish to simply detain the person to help with their investigation. A period of detention is for a short period of time that cannot exceed 72 hours for an adult and 24 hours for a juvenile. A person can only be detained if there is a reasonable suspicion that they have committed a crime that has a punishment of a prison sentence exceeding one year. This suspicion can be based on eye witness accounts, finding the person committing the act, or the presence of obvious evidence on the person, within their processions or in their home.

A detained person must be brought before an investigative judge before their period of detention expires to determine whether the person should be arrested or released. A motion to arrest a detained person should be filled at least three hours prior to the expiry of the term of detention.

Within one hour of a persons arrest the criminal investigatory body must apply to the regional office of the National Legal Aid Council to appoint a lawyer urgently to the person’s case. Within three hours of the arrest the criminal investigatory body must complete a detention transcript. This transcript is to include the act committed by the person, the date and time, and on which grounds they are being held. Additionally to doing this the person being detained should be provided with a written document regarding to what their rights as an accused person are.

The person being detained must be allowed to communicate with their defence council confidentially before their interrogation. Although, this can only happen if a detainee consents to being interrogated.

If a juvenile is detained a parent or a representative must be present during their detention.

Searches

There are strict rules as to how and when a criminal investigative body can conduct a search for evidence. Most searches are subject to authorisation by an investigative judge. For a search to be legal there must be a reasonable assumption that the items being searched for where used in committing the crime or where obtained in the course of the crime. Additionally the search must be linked to a specific place or person. The search can also be for wanted persons or human or animal remains.

In a case of a flagrant crime, a search can be based on a reasoned order without the authorisation of an investigative judge. However, no later than 24 hours after the completion of the search an investigative judge should receive the materials obtained. Here after the judge will declare in a ruling whether the search was legal or illegal. The search and seizure of objects and documents can only take place at night for flagrant crimes.

Seizures

There are equally rigorous rules relating to seizers. The criminal investigative body can seize any objects or documents that relate to the place and person holding them. The seizure of confidential information such as state secrets or information on telephone conversations needs the authorisation of an investigative judge. The seizure of objects in other circumstances is based upon the reasoned ruling of the criminal investigative body.

Before the search and seizure begins the person subject to the search and seizure must be given a copy of the respective order. During the search and seizure the person, or a member of their family or someone who represents their interests must be present. If this is not possible then a representative will attend. A defence counsel and representatives have the right to be present during all searches and seizures and can have their objections noted.

Nullity of procedural acts

If there is a violation of the legal provisions relating to the criminal proceedings then the processes shall be declared as null. In other words if a part of the investigation or court proceedings is conducted in a way contrary to the law then the case against the accused could be void. For example if the criminal investigatory body failures to provide an interpreter or translator for a detainee who needs one.

Legal aid at a police station

Free urgent legal assistance is available to anyone who is arrested for a criminal offence. Ideally a recently detained person should be assigned a lawyer within three hours of their detention. Urgent legal aid is offered to a person up until the time they are realised or have been detained following a pre-trial. This gives the person access to legal advice shortly after their arrest and prevents possible abuse during detention.

The person can apply for ordinary, qualified, legal aid at the regional office of the National Legal Aid Council if criminal proceedings against them continue. In cases where the person is detained following a pre-trial, urgent legal aid is automatically transferred to qualified legal aid, with the same lawyer continuing to represent them.

Legal aid for criminal offences

In order to meet the requirements to benefit from legal aid the person must show a lack of financial means and that the interests of justice require the delivery of legal aid. The “interests of justice” criteria is easily met, especially in criminal cases. In practice it has been shown that legal aid is provided in any criminal case, unless the person expressly waives the right to defence.

To meet the financial requirement the person should have a lower income than the amount the government will be provide for the legal aid. To calculate the level of income, the persons received income from the last six months is taken into account.

In some cases it is mandatory to have a defence lawyer, and therefore legal aid is provided regardless of a person’s financial status. The circumstances that require a mandatory participation of a defence counsel can be found at Article 69 of the Criminal Procedure Code of the Republic of Moldova and include the accused being a juvenile.

The regional office of the National Legal Aid Council will make a decision about providing legal aid within three working days from the moment the request was received. An accused person, a relative, criminal investigatory bodies or the court can make the request for legal aid.

Rights of the accused

The Criminal Procedure Code of the Republic of Moldova states that all agencies and persons participating in criminal proceedings shall respect human rights, freedoms and dignity. Moldova is also party to the European Convention of Human Rights, so an accused person is afforded the rights under this convention.

The rights protected by the Criminal Procedure Code of the Republic of Moldova, can be found within Article 64 and are as follows; • The right to a defence. The criminal investigative body should help the accused exercise this right by contacting the regional office of the National Legal Aid Council. • The right to know what they are suspected of as soon as they are detained. There is also a right that allows for this to be presented in a language the accused understands. • After the persons detention they will receive a document containing all of their rights. • The right to have a copy of the respective decision or a copy of the transcript of their detention. • The right to have a confidential meeting with their defence counsel before interrogation as a suspect. • The right to waive defence council and defend themselves. • The right to confidentially visit their defence council without limitation of how many times they can meet. • The right to consent to interrogation. • The right to confess and make a plea bargaining agreement. • The right to agree to a criminal investigation and case if pleading guilty. • The right to give or refuse to give a testimony. • The right to take part in or refuse to take part in procedural actions. • The right to inform people of the place of their detention. • The right to submit documents and other sources of evidence as part of the criminal case file. • The right to respect the recusal of those involved in the investigation or proceedings. • The right to submit requests. • The right to review the transcripts of the procedural actions that involved the accused as well as being able to make comments on these. • The right to be informed about all decisions relating to the accused rights and interests. • The right to object to actions of the criminal investigative body and to have these objections noted. • The right to contest the actions and decisions of the criminal investigative body. • The right to withdraw any requests filed personally or by the defence counsel. • The right to reconcile with the injured party. • The right to request and obtain redress for damage caused by any illegal actions of the criminal investigative body or the court. • The right to be rehabilitated if the suspicion was invalid.

Additionally, the rights of a juvenile suspect shall also be exercised by their legal representative.


The trial

In Moldova courts are held in public, except under some exceptional circumstances such as when a juvenile is giving evidence or when the case is a matter of national security. In these instances the whole case or part of the case can be closed to the public. The severity of the crime dictates which courts the proceedings are held in. The Court of Appeal hears most criminal cases and the Supreme Court of Justice hears cases involving crimes committed by the President of the Republic of Moldova.

During proceedings the court is obliged to analyse the evidence submitted by both parties, and listen to evidence given by defendants and witnesses. The prosecutor and the defence are given equal rights in the court in terms of managing evidence, participating in its examination and formulating requests and motions.

It is mandatory for the prosecutor to be at the hearing. Usually the prosecutor managed the criminal investigation. During the hearing the prosecutor represents the State and presents evidence to show that the accused has committed the criminal act.

It is not always mandatory for the accused to be present during the hearing. The accused, if remanded in custody may not wish to attend the hearing or the accused may have evaded appearing in court. If the accused is absent from the hearing then it is mandatory that the defence counsel and any legal representatives are present.

The defence counsel represents the interests of the accused and provides them with legal assistance. The defence counsel can either be court appointed, or the accused can chose their own counsel, or represent themselves. Similar to the prosecutor the defence has the right to submit documents and other pieces of evidence to present to the court.

Sentencing and appeals

Sentencing

The judge or panel of judges deliberate on the factual and on the legal aspects of the case. The court shall decide on the charges filled against the accused to determine what sentence to serve. The court can decide to issue a sentence of conviction, a sentence of acquittal or a sentence terminating a criminal proceeding.

When issuing a sentence the court must follow a sequence of predetermined criteria. This can be found in Article 385 of the Criminal Procedure Code of the Republic of Moldova, and includes considerations such as whether the defendant committed the act.

If, in the course of the criminal investigation or hearing of the case, violations of the defendant’s rights were established and the person through whose fault these violations were committed is identified, the court shall examine the possibility of reducing the punishment of the defendant as compensation for these violations.

If the accused’s guilt was proven by the evidence submitted to the court then a sentence of conviction shall be issued. When issuing a sentence of conviction the court shall determine the category of the punishment, its term and when it begins.

The court may choose to issue a sentence of acquittal if it cannot be proven that the accused did not commit the criminal offence. This sentence means the person is found not guilty. The criminal investigative body will then continue the criminal investigation to find the perpetrator.

Another sentence the court might reach is the sentence of termination of the criminal proceeding. This usually happens when the injured party withdraws the complaint. If this sentenced is delivered the court shall terminate the criminal proceeding.

The sentence should consist of introductory, descriptive and dispositive parts. Once completed the sentence is to be signed by all the judges that participated in the hearing.

Appeals

Sentences may be subject to an appeal based on legal or factual aspects of the first hearing. The prosecutor or the defendant or the injured party from the criminal case can file appeals. There is a time limit on when an appeal can be launched. For the majority of appeals the limit is within 15 days from the verdict of the first sentence.

An appeal shall be filed by a written request. The request must include the name of the court to which the appeal is filed, the details of the defendant, the details of the first case and the reasoning for the appeal alongside any additional evidence. At any time an appeal can be waived or withdrawn.

The Court of Appeal shall give regard to all of the evidence examined by the court in the first hearing as well as any other new evidence presented. The Court of Appeal will make a ruling addressing all the reasons invoked for the appeal.

The Court of Appeal can either reject the appeal and uphold the judgement or can admit the appeal and repeal the sentence in whole or part. If the court chooses to repeal the sentence in part they may rehear the case and pronounce a new judgment.


Rights in prison

Moldova is party to the European Convention of Human Rights, so a detainee is afforded the rights under this convention. Of those serving prison sentences in 2016, 6.2% were female and 0.4% were juveniles.