The Criminal Procedure Code of the Republic of Moldova will be changed. According to a bill approved by the Government earlier this week, prosecutors in Moldova would be deprived of the right to resume prosecution, if it was previously ranked a cause or person has been removed from criminal prosecution. Only the judge will be able to do it.
The Ministry of Justice explains that the document defends the interests of citizens and will not allow prosecutors to commit abuse and "to resume prosecution at any time in the absence of clearly defined reasons".
Moreover, the changes were made after the Constitutional Court considered that one paragraph of the Criminal Procedure Code is unconstitutional. The Supreme Court lodged a statement to the Court to clarify a dispute pending in the Court of Cimişlia city.
"In the Constitutional Court's decision, the Court states that in a democratic society the basic task of the state is to protect the person. By establishing the rules criminal procedure, the state aims to protect the person and society from crime, but at the same time, to protect them from abuses of persons with responsibilities for investigation the crimes, so that any person who has committed a crime to be punished according to his guilt and no innocent person would be prosecuted and sentenced. However the Court notes that the guarantees provided for by Article 21 of the Constitution state the right not to be punished twice for the same offense. This rights are to become fundamental and undeniable principles of any system of law and is guaranteed by international documents, to which Moldova joined.
Thus, according to article 4 paragraph 1 of Protocol No. 7 to the European Convention, no one can be punished again by the jurisdiction of the same State for an offense for which he has already been acquitted or convicted by a final judgment according to the law", reveals the information note issued by the Government.
According to the Government, the resumption of prosecution would be done only by judges and only when "there appear new facts, or newly discovered, or in case if a fundamental defect in the prosecution affected the decision".
The experts' opinion about the new changes
The project, that is to be debated in Parliament was criticized by the experts in this field.
The Ziarul National reports that the experts affirm the new law contradicts to the Law on Prosecutor's Offices, which provided the prosecutors an independence in their activity.
Moreover, the lawyers warn that behind the new law there can be hidden interests of the current government, which provides that its "protégés" will remain free if it is subsequently established that they violated the law, but were not attracted to the penal responsibility in time. The investigative judges can be easily influenced to not agree to resume the prosecution and be a "shield" in front of prosecutors that would find irregularities in the past criminal cases.
"Actually, neither the prosecutor nor the judge won't be able to guarantee the respect for human rights in criminal proceedings. Practically we don't have justice there. The criminal trial is severely affected by arbitrariness. The law isn't applied correctly. The judges even don't study the files. The situation has become extremely serious due to corruption. The fundamental rights have turned into some privileges that cost money ", said Stanislav Pavlovschi, the former prosecutor and former judge at the European Court for Human Rights from Moldova.
"The idea is in fact good, but its execution is poor. We should use the Romanian model. The are judges for human rights and judges of the pre-trial room", added Pavlovschi.
The President of the Superior Council of Prosecutors, Mircea Rosioru, told the Ziarul National: "I find it absurd to pass the ball to the judges. I wonder then what was the logic of the working group for new Law of the Prosecutor's Offices, that states that there is only one level of hierarchical control and prosecutors are completely independent? These two laws contradict each to other", said Rosioru.
The endlessly postponing of decisions
Another problem mentioned by experts is the passing to another instance and the delay of cases.
"The problem can be solved much easier in the Prosecutor's Office where is the case. The prosecutors' advantage is time. If their competencies are transmitted to the judges, the number of judges in courts must increase. Otherwise we will face a serious problem of justice – delaying cases", said the president of the Superior Council of Prosecutors, Mircea Rosioru.
We note that the project that limits the powers of the Ministry of Justice where the prosecutors can resume prosecution will be debated by the specialized committees of Parliament and deputies will later vote it in two readings.
The Criminal Procedure Code has been changed previously, when Chiril Gaburici was a prime minister. In June 2015 the Government approved another bill. Thus, it provided a limit of the time for keeping in custody to ensure the principle of predictability of the legal norm, especially of keeping in custody in the time of the trial.