Untersuchungshaftentscheidungen von Ermittlungsrichtern in der ...

More documents

Recommendations

Info

Decisions on Arrest by Investigative Judges in the Republic of Moldova An Assessment from the International Point of View 47 tor who, as regards handling the reasons for arrest warrants, grieves about history following the separation from the Soviet Union and who in connection with the discussion of the prerequisites for a motion for preventive arrest talks tough on Communism without touching upon the legal wording. But even apart from that I would have expected remarks being much more expressive as regards the requirements for detention and preventive arrest. The predominant statement is – besides general complaint about the quality of the police – the (self-critical but in the end vague) remark that in the fields of police, prosecution and courts not always the right, qualified people were appointed. There would be a lack of good education and training as well as appreciation (including financial appreciation). The result would be that in spite of general understanding of the obligation for reasoning in practice rather a mentality of nodding through would prevail on all levels. By having the talks with the local protagonists according to my previous request in the absence of superiors, the descriptions of the past and the present situation in the field of criminal prosecution were on all levels partly very frank. On several occasions open or concealed exerting of influence on the decisions of the protagonists and even before on their appointment were deplored, frequently as an inheritance from Soviet time. These quite self-critical remarks do not explain, though, why the same persons when being confronted with the files were not able to indicate at once what in the concrete case possibly had not been correct. This is equally valid for the comments of the investigative judges. In this context differences were to be noted depending on which professional career the present investigative judge had previously had. With due care and attention when trying to give an evaluation it would appear that there exist particular problems insofar as these persons have their professional roots not in the judicial but in the prosecutorial field. At any rate as regards the persons interviewed by me coming from the latter field, a closer inner near- ness to the prosecutor’s office could be made out, connected with a self-assessment as in the first line persecutor/hunter. Thus, an investigative judge with that prosecutorial background declared he would follow the prosecutor’s examples in the documents. He would not consider himself entitled to take into consideration other things than explicitly put down by the prosecutor; after all, he would not be allowed to “invent reasons”. Of course there were alternatives to preventive arrest, but their application would not be secure because there were too few possibilities of control. He would worry that he would be left the one looking stupid when after his diverging from the motion of the prosecutor the latter would appeal and the Court of Appeal in the end would de- cide on preventive arrest. An attorney declared that the practice of ordering preventive arrest in his district had changed to the better after the investigative judge with prosecutorial roots had been replaced by a judge from the common penal field. The new judge would work better and more efficiently. Apparently former pros- ecutors would have difficulties to free themselves from the old Soviet mentality. This attorney named an additional reason for the reluctance of many investigative judges to diverge from the motions of the prosecution: younger judges before the expiry of the five-year period until permanent appointment would be afraid of appeals of the prosecution because this might have an unfa- vourable impact on the permanent appointment. Generally the attorneys interviewed assessed the work of police, prosecutor’s office and courts in the Republic of Moldova for the most part as negative. At the same time there seems to be a certain ten- dency that defence counsels do not appeal in every possible case. The explanation from their side is that many counsels in view of their experiences expect little success from remedies. Of course there are other explanations conceivable. One of them could be the concern that the opposition to the preventive arrest by the suspect could have a detrimental effect in the main trial. Besides, there are counsels (and other professionals) in all law systems carrying out their profession with the least possible effort.
48 Decisions on Arrest by Investigative Judges in the Republic of Moldova An Assessment from the International Point of View 9 Further Talks In addition to the interviews with the protagonists on the job I had the opportunity during my stay to discuss possible consequences of the condemna- tions by the European Court of Human Rights with representatives of the Ministry of Justice, the Su- preme Court of Justice of the Republic of Moldova, the Superior Council of Magistracy and the General Prosecutor’s Office. The Ministry of Justice, confronted with the re- proaches of the European Court of Human Rights most closely by its representative at the Court, has openly named the problematic and declared its interest in and its cooperation for measures to im- prove the present situation. The Supreme Court of Justice of the Republic of Moldova and there the (co-) author of the then legal provisions has described the development of re- cruiting investigative judges cited at the beginning of this report and has deplored that the original ideas as regards necessary personal requirements could not be implemented because not enough ap- plications had come in. There are reflections at the Supreme Court of Jus- tice whether by temporary assignment to the position of an investigative judge within a court im- provements could be reached. Due to the different background of the judges, however, there would be a perceived two-classes-judge-system, which would make it difficult to put normal penal judges in the position of an investigative judge except in cases of emergency. The Superior Council of Magistracy commented rather a bit reluctantly as regards the existence of the general problem and has taken the view that the Republic of Moldova is on a good track. The General Prosecutor’s office has well acknowl- edged the existence of problems and hopes to come up to the demands for constitutionally correct prosecutorial activities by intensive internal control and training. 10 Consequences When as a result of the study visit certain outlines in the legal reality of the Republic of Moldova seem to be perceptible, judged as negative, it has to be examined which chances exist to avoid these phe- nomena in the future. 10.1 Institutional and Legislative Mo difications Bearing in mind the historical situation of the Re- public of Moldova and seeing it from abroad, it may be questioned whether, as regards the con- ditions for assignment as an investigative judge, prior experience as a prosecutor should really have preference as opposed to the apparently larger inner distance of a long-serving independ- ent penal judge. I refrain, however, suggesting substantial modifications in the system. This can- not be the task of a foreign expert. As for possible modifications of law and personnel decisions it is in the responsibility of the parliament and the judicial bodies of the Republic of Moldova how to deal with the fact that even seven years after a reform with systematic changes in the compe- tences and the requirements for ordering preventive arrest there still are protagonists who do not seem to have completely internalized the change from the Soviet system. 10.2 Other Measures Below this level, though, it appears possible and necessary to give some food for thought. 10.2.1 Basics — Experience in many countries, also and in particular of the former Soviet sphere of influence, shows that a country under the rule of law is dependent upon protagonists identifying themselves with the rule of law. Political views and personal attitudes can be influenced only to a point by legal provisions or hierarchic or disciplinary control. It is necessary that the protagonists are conscious of their power, of the risk of abuse of power and of their responsibil-
Page 1 and 2: Untersuchungshaftentscheidungen von
Page 3 and 4: CZU D Versiunea originală a prezen
Page 32 and 33: Decisions on Arrest by Investigativ
Page 56: Decisions on Arrest by Investigativ
Page 59 and 60: 58 Deciziile de arestare luate de j
Page 81: 80 Deciziile de arestare luate de j

Untersuchungshaftentscheidungen von Ermittlungsrichtern in der ...

Create successful ePaper yourself

Delete template?

Save as template?