The New Code of Criminal Procedure
7 May 2003
Recently, the Moldovan Parliament has adopted the new Code of Criminal Procedure of the Republic of Moldova, a fundamental document on criminal investigation and the exercise of justice in criminal matters. The event was widely published, but mostly due to the fact that the adoption of a new Code of Criminal Procedure was one of the obligations Moldova took on upon its joining of the Council of Europe in 1995, which the legislative body decided to fulfil by the time Moldova takes over the Chairmanship of the Committee of Ministers of the Council of Europe in mid-May 2003.
Apart from the political connotation of this event, the adoption of the Code is a major event for the society on the whole, as it is the mechanism whereby the criminal offences found as such pursuant to the Criminal Code are sentenced by the social institutions - judicial authorities, and those found not guilty are acquitted.
The contents of the new Code is yet to be carefully examined by experts and, most probably, many issues and debates will arise while applied. At present, we can make a brief comparative analysis of the provisions of the new Code (as it was drafted by the special panel and voted by the deputies) and the current Code, which will continue to be applied until the conclusion of the judicial reform.
I. The current Code of Criminal Procedure was adopted on 24 March 1963. Obviously, in time, the Code was amended and completed so that none of its articles is now in its initial form. As it is now, the current Code includes more than 450 articles, structured in 9 titles and 35 chapters.
The new Code includes more than 560 articles, structured in 3 titles and 47 chapters. Apart from this, several chapters are further divided into sections and subsections, thus focusing and highlighting the key elements of certain stages of the criminal procedure.
II. One of the most important novelties of the new Code is the special article defining the notions used in the Code. More than 40 notions used in the criminal procedure are defined, all of them having been defined before only at theoretical level and in the specialised literature.
III. An entire chapter is dedicated to the general principles of the criminal process, and the theoretical principles applicable to date are clearly defined, as is a series of new principles, of which the following are worth mentioning:
- the freedom of the criminal process (application of criminal laws in strict conformity with the international and constitutional norms; the priority of international human rights law; binding nature of the interpretative decisions of the Supreme Court of Justice etc.);
- the personal inviolability (of the person, residence, property, correspondence and private life);
- holding of the trial within reasonable terms (according to the complexity, behaviour of the parties and of the criminal investigation body; urgent trial of cases involving arrested people or minors etc.);
- the freedom to testify against oneself;
- the right not to be persecuted, judged or punished twice for the same reason (this principle has been borrowed directly from relevant international documents, in particular the European Convention on Human Rights);
- guaranteeing the rights of victims, against abuses at the work place and judicial errors;
- the principle of conflicting;
- the exclusive exercise of justice by the judicial bodies;
- the free assessment of proofs etc.
IV. The new Code brings the competence of the judicial bodies in line with the relevant constitutional provisions and provides for their division into courts, courts of appeal and the Supreme Court of Justice. Their competencies are attributed so that the bodies of first instance try most of the cases, except those falling under the competence of superior or specialised bodies.
The courts of appeal will try the difficult cases, the appeals against the rulings made in the first instance, the recourses against decisions that may not be appealed against, and the requests for retrial falling in its competence. The courts of appeal will also resolve the conflicts of competence between courts.
The Supreme Court of Justice will try in the first instance only the offences committed by the President of the Republic of Moldova, while the rest of its competence will be to rule on appeals and recourses, adopt interpretative rulings and bring cases to the Constitutional Court etc.
The new Code provides for the institution of a special instance - the instruction judge, whose competence will be to ensure the judicial control throughout the criminal investigation. This control will be exercised through: - the preventive or in-house arrest, its replacement, termination or cancellation, the provisional withholding of the driving licence; authorisation of searches, body searches, levying of distraint, confiscation of property; authorisation of intercepting communications, withholding correspondence and videotaping; hearing of witnesses etc.
V. In the chapter on parties and the other participants in the criminal trial, a number of new provisions have been added with regard to the status of the prosecutor and the defence.
In particular, it is established that the prosecutor has the right to initiate civil action against the defendant or the individual in material responsibility of the defendant in the following cases only:
- in the interest of the harmed individual who is not able to initiate civil action;
- in the interest of the state.
Thus, the new provisions are essentially different from the current ones contained at Article 120, whereby the prosecutor initiates or suspends the civil action initiated by the plaintiff "if this is required in order to defend the state, public or citizens' interests". Obviously, such language allows for an extremely broad and sometimes abusive interpretation of the provisions related to the reparation of civil damage.
A novelty for the criminal procedure is the institution of the "officer of criminal investigation", which will function under the bodies of criminal investigation as a responsible for the criminal investigation on behalf of the state. Practically, the officer will replace the current institution of the criminal investigator and of the individual doing the preliminary investigation.
Special attention is paid to the institution of the defence. For example, the provisions on the rights of the defence amount to 20 points in the new Code as compared to the 11 points in the current Code. Thus, the new Code extends the rights of the defence. Practically, the defence has equal rights as the representatives of the prosecution, which fact enhances the procedural quality of the defendant and a better quality of justice. On the other hand, knowing that the rights and possibilities of the defence are quite extensive, the body of criminal investigation will have to prepare much more seriously the file and the charge, and will gather evidence which will not be easy to contest simply because it was not collected professionally.
VI. New provisions have been included in the chapter on evidence and the means of evidence.
Thus, evidence is the factual elements, which serve to determine the existence or lack of offence, identify the offender, determine the guilt and highlight the circumstances relevant for the trial.
The Code specifies expressly that the data obtained in the following ways cannot be material evidence:
- by violence, threats or in other repressive ways;
- by breaching the right to defence of the defendant, victim or witness;
- by breaching the right to an interpreter;
- from a source which may not be verified by the court;
- by using unscientific methods;
- by an individual who does not have the right to start court actions in criminal cases;
- when the criminal investigation body commits essential violations of the Code.
As a measure to modernise the Code, the assistant witnesses have been excluded from the category of means of evidence (these used to be invited by the body of criminal investigation to witness certain in situ procedural measures).
The reason for excluding this category of witnesses has been the incompetence of and their excessive manipulation by the bodies of criminal investigation. At the same time, the lack of witnesses upon the collection of evidence and other procedural measures might allow for forged evidence (especially in order to charge someone for having committed such actions, which can justify him/her being withheld for a longer time).
It is not excluded that the application of the new Code and the eventual abuses will result in this institution being reinstated, until which time many innocent people might have to suffer. The damage caused then will have to be repaired at the expense of the state, whose representatives in Parliament have decided to abolish an institution guaranteeing procedural rights.
VII. The new Code includes a series of innovations with regard to the applicable preventive measures. In particular, these involve a detailed description of the provisions related to taking the defendant out of arrest on personal or corporate guarantee, as well as on bail.
Thus, the individual, who has been arrested or for whom an arrest warrant has been issued, will be freed on the bail determined by the instruction judge or other body only when the offence has been committed out of carelessness and for which current laws provide for a sentence no longer than 15 years. If the defendant willingly breaches the requirements of his/her provisional release on bail, or if he/she commits a new intentional offence, the deposited amount (between 5,400 si 900,000 Moldovan Lei) is transferred to the state budget.
It is to be reminded that the current Code does provide for release on bail, but to date no case of release on bail of suspects has been made public.
VIII. The new Code reserves the right to undertake criminal investigations to five institutions: (in the current Code, these are nine):
- Prosecutor's office
- Ministry of Internal Affairs
- Information and Security Service
- Customs Department
- Centre for Fighting Economic Crimes and Corruption.
The exclusive competence of the prosecutor is the criminal investigation of offences committed by the President of Moldova, MPs, Government Members, judges and prosecutors, generals, criminal investigation officers, mayors of municipalities.
Likewise, it is only the prosecutors who are in charge of the criminal investigation of attempts of murder of law enforcement bodies' employees, judges and prosecutors as well as members of their families when the murder attempts are related to their professional activity.
IX. The new Code's title on criminal trials includes a special chapter regulating the agreement to acknowledge guilt. It is provided that this agreement is a transaction concluded between the prosecution and the defendant, whereby the latter acknowledges guilt and gets a smaller punishment.
The main aim of this novelty is to encourage the guilty persons to co-operate, cut back on the efforts of the criminal investigation bodies and the costs of the investigation, as well as on the terms of the case trial. On the other hand, the new provisions raise a series of moral issues, which can hardly be solved by invoking material or pragmatic aims of the sort mentioned above.
X. The new Code includes provisions related to the procedure of prosecution and trial of legal persons, to which the general provisions of the Code will be applied, certain derogation and additions being made to the competence of trying cases and the exercise of judicial control.
The issue of criminal responsibility of legal persons is understudied as this type of responsibility has been only now introduced in the new Criminal Code (which has not entered into force yet) and hence there has been no actual practice of trying such cases. It is almost certain that the provisions included in the new Code will not be sufficient and that soon they will have to be amended.
XI. The new Code refers in great detail to the international judicial assistance on criminal offences. Thus, the Code includes detailed stipulations related to:
- the rogatory commission;
- the transfer of sentenced individuals;
- the recognition of criminal rulings of foreign courts etc.
To sum up, it should be mentioned that regardless of the gaps and issues that might emerge upon the application of the new Code of Criminal Procedure, its adoption is an important step forward towards the conclusion of the judicial reform. The bulk of attention is to be paid from now on to the method of application of the Code (most likely, special laws will have to be adopted for this purpose). Also, as important will be to provide the necessary financial and technical-material support for the application of the new provisions of the Code, since it is well known that, however progressive or modern, any provision may be easily compromised and deprived of contents on the excuse that adequate means for its application are missing.