Transition: retrospectives and perspectives
Chapter II. Law Enforcing Institutions
The Office of the Prosecutor
Vitalie Nagacevschi
The institution of the office of the public prosecutor established in the aftermath of Moldova's declaration of independence in 1991 took over the functions and role of the Soviet prosecution establishment almost integrally, with the only exception that its former function of court supervision was substituted with the one of contributing to the exercise of justice.
Moldova's prosecutor's office is directly accountable to Parliament, which fact, theoretically, is to imply a high degree of independence for the former. Yet the office of the General Prosecutor is not guaranteed irremovability and is often subject to political intervention. Following Moldova's joining of the Council of Europe in 1995 conditional upon the rule of law and the respect of human rights and fundamental liberties, Moldova engaged to adjust the role and functions of its prosecutor's offices to the requirements of the rule-of-law state and the Council of Europe norms. To that end, a working group was set up at the initiative of the Justice Ministry in 2000, which later developed a number of draft laws aimed at reforming the institution of the prosecutor. However, upon submission to the Government, those draft laws were severely amended to the detriment of the democratic norms and principles based on which the reform of the office of the prosecutor was proposed.
Although the powers of procurators in the system of criminal justice, as currently laid down in the Code of Criminal Procedure, fully meet the European standards, the large powers that the Government has recently proposed to be attributed to procurators in relation to the general judicial supervision and involvement in civil case is alarming.
Personal guarantees to ensure the procurators' independent and unbiased activity are scarce; the office of the Prosecutor General is at the Parliament's full discretion and so is often subject to political pressure. A number of substantial legislative provisions were initially proposed by the above-mentioned working group to correct these shortages. However, upon revision by Government, many of these provisions were eliminated and so the status of the prosecutor is not likely to change much from its current state.
As for the relations of the prosecution with the legislative and executive powers, the author mentions the exaggerated dependence of the General Prosecutor on the Parliament. To correct this, the Government has proposed to remove the prosecution from the authority of the Parliament to that of the Justice Ministry, and the General Prosecutor to be appointed by Parliament at the proposal of the Supreme Council of Magistrates. However, for full independence and impartiality of the prosecution, clear provisions with regard to the powers of the Government over the prosecution are yet to be developed and promoted.
The relations between the prosecution and the judiciary too raise a number of problems in that these do not meet the universally accepted requirements for a equality of powers and a clear delimitation of functions in administering justice.
The rights and responsibilities of the prosecution in relation to justiciables in criminal and civil cases, although generally adequate, need a few refinements, and are yet to be developed in administrative cases.
The proliferation of trans-border crime and the ensuing need for transnational judicial cooperation in criminal matters have determined Moldova to enter a number of international treaties of multilateral character, such as the CIS Convention on Judicial Assistance (1991), as well as bilateral character such as the treaties of mutual assistance on criminal and civil matters signed with Ukraine, Lithuania, Latvia, Russia and Romania. Following Moldova's joining the Council of Europe, Moldova has adhered to the European conventions on criminal matters. However, an appropriate legislative framework is yet to be developed for Moldova to be able to apply fully these conventions. A clear delimitation of prerogatives in international criminal cooperation between the prosecution and the Justice Ministry is to be worked out as well.
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