Untersuchungshaftentscheidungen von Ermittlungsrichtern in der ...

38 Decisions on Arrest by Investigative Judges in the Republic of Moldova An Assessment from the International Point of View
the Supreme Court of Justice and the Office of the
General Prosecutor. Besides, I interviewed a number
of investigative judges, judges, prosecutors and po-
lice officers 8 .
It goes without saying that the extent of the talks
with the representatives and in particular the extent
of the file studies and interviews does not necessar-
ily lead to universally valid results. There are vary-
ing opinions in all legal systems, differently gifted
personalities and procedures handled with differ-
ent skill. Also in my country press and professional
public may at times mouth off about the course and
outcome of certain procedures.
But this does only mean that no legal system and no
country is perfect, it does not mean that such criti-
cized procedures may not be qualified for reflecting
why and how it came to the respective results criti-
cised so much, and which lesson, as the case may
be, might be drawn from them for the future.
Like everywhere I have met people at the police of-
fices, at the prosecutor’s offices and at the courts in
the Republic of Moldova who were well-intentioned
to fulfil their legal duties and to follow the rule of
law. But then, it is also true that the files inspected
by me and the talks with the protagonists on the
job gave definite hints that there is a need for action
in order to sharpen the sensibility of the persons in-
volved as regards meeting the requirements of the
European Convention on Human Rights. It is also
true that the change of paradigm at the occasion
of introducing the new competences for judges
apparently has not always been internalized to the
necessary extent by the acting personnel.
6 Legal Deficits?
The relevant legal provisions in the Republic of
Moldova, taken alone, do not give rise to suspecting
deficits in the rule of law. They match basically with
corresponding provisions of many other countries.
The European Court of Human Rights, though, has
8 For further details cf. attachment
criticized on several occasions that the protagonists
in the Republic of Moldova did not stick to these
unmistakable national provisions at all. Likewise, it
was criticized that in many cases the lack of reasons
made the decisions incomprehensible.
The reproach first cited is of course especially seri-
ous and at first sight does not leave much room for
conciliatory explanations.
Nevertheless it appears helpful distinguishing in
the analysis whether the wording of the law or the
context all the same give rise to misunderstandings
or whether the unmistakable legal provision pos-
sibly has been intentionally ignored. Only after as-
sessments on this issue – but then of course in par-
ticular in the latter case - it has to be asked whether
there are reasons for that lying in the personality of
the protagonists.
No law on earth is a hundred per cent immune to not
replying to any question regarding the application
in an exact and exhaustive way. Over and again the
courts are called upon in such cases to examine and
interpret the probable intention of the legislator. It is
clear, however, that in the first place it is the task of
the legislator when designing the provision to see to
it not to give rise to doubts and to shape the provi-
sions as clear as possible. The more drastic and far-
reaching effects the application of the provision has
the more important and indispensable this principle
is getting. It goes without saying that this applies in
particular to the strongest encroachment, that on
personal liberty. There any possibility of different in-
terpretation should be excluded in practice.
As concerns detention by the police as a pre-stage
to the judicial arrest warrant in the Republic of
Moldova, a very critical issue has been eliminated
by the change in law 2006 when additional require-
ments were introduced as a prerequisite for police
detention, corresponding to those for the arrest
warrant. Previously the detention had only to be
based on the circumstances relating to the alleged
committal of an offence as mentioned in Art. 166
para. 1 CPC.