In August 2007, the mobile teams lawyers provided legal assistance to 122 detainees from Chisinau no. 13, Balti no. 11, Cahul no. 5, Rezina no. 17 investigating detention facilities, among them 31 – juveniles and 91 – adults, 27 – female and 95 – male.
Making an analysis of questionnaires, it’s possible to come to the conclusion
regarding the rights which are most frequently violated, both at the stage
of criminal prosecution and the judgment of case.
It has been ascertained frequent violations in regard with the legal assistance
provided to persons in conflict with the law ex-officio. Therefore, persons in
custody become acquainted with the defender ex-officio only in trial, where he
participates more formally and the defense is of bad quality.
Another procedural violation committed at the stage of criminal investigation
is that the persons are not explained their rights during their arrest, especially
the right to silence, right to avoid self-incrimination, right to counsel and
make statements in the presence of the defender, which are provided by art.
64, 66 CPC.
The probable cause of arrest and the content of suspicion are brought to his
notice in absentio of the defender, thus the art. 64 par. (2)
subpar. 1) CPC of RM. It has been also ascertained
that the defenders ex-officio are one and the same lawyers who come just formally
at the request of the police bodies to sign that they provided legal assistance
and participated at different procedural actions, but in fact this wouldn’t
occur.
Violation of art. 167 CPC concerning the drawing up of the arrest
warrant has been ascertained, in which the date of arrest was modified.
The art. 20 of CPC and art. 5 para. 3 of the Convention for
the Protection of Human Rights and
Fundamental Freedoms are also violated, providing the right to judge
the case in a reasonable term, but for some juveniles, it has been judging for
a term more than a year, and meantime they being held in custody.
It could be mentioned, that cases of violating the art. 173 para. 1)
CPC concerning the right to announce the relatives about arrest, occur
frequently.
As regards the juveniles, a frequent violation of art. 479, 480 CPC of
RM has been ascertained, according to which the defender
and the educator shall be present during the hearing processes of the suspected,
defendant and the accused, as well as the presence of the legal representative
is required for the term of judging the case.
As for the male detainees, it is frequently applied the physical and psychical
coercion, while the female detainees are applied the psychical coercion, which
violates the art. 10 para. (3) CPC, art. 3 of the Convention
for the Protection of Human Rights and
Fundamental Freedoms and art. 37 of the Convention on the rights
of the child, providing that no child shall be subjected to torture
or other cruel, inhuman or degrading treatment or punishment.
As concerns the adults, the terms of judging the case are also delayed, as it
occurs in the case of juveniles, thus the principle of judging the case is violated
as provided by art. 6 para. 1) and art. 5 para. 3 of
the al Convention for the Protection of Human Rights and
Fundamental Freedoms and art. 20 CPC of RM.
According to female detainees, after their arrest they had not been brought in
reasonable terms before a judge to be explained the lawfulness of the procedural
measure, accordingly the art. 5 para. 3 of the al Convention
for the Protection of Human Rights and
Fundamental Freedoms was violated.
It has been also ascertained the violation of the art. 399 CPC of RM, providing
that not longer than 3 days from the day the verdict or the decision has
been pronounced, the accused in custody shall be presented with the copy of the
verdict or the decision, in fact some detainees are given the copy of
the verdict after a month or even later form the day of its issue.
It is flagrant the negative effect of the detention on the person’s
psychic, all the more so of being held in custody, when the person waiting
for the verdict to be pronounced has no idea what is going to happen further.
That is why the period between the crime is committed and the verdict is pronounced
should be as short as possible, to make it possible for the defendant to become
aware of the crime he committed. Besides, the earlier the verdict is pronounced,
the earlier it becomes clear whether the person is or is not guilty of the
incriminated facts as well as the risk to hold in custody for long period innocent
persons decreases.
It could also be possible to ascertain that the Republic of Moldova joining
to some international acts providing the observance of human rights and freedoms
assumed the major responsibility towards the international community and its
own citizens, but applying into practice these provisions faces with many difficulties
at the moment.
Alexandru Cebanas,
Project coordinator
