I. Introduction

On 18 November and on 19 November 2014 respectively, the Minister of Justice of Moldova sent letters to the Venice Commission and to the OSCE Office for Democratic Institutions and Human Rights, requesting assistance from both institutions in reviewing the Draft Law on the Prosecution Service of the Republic of Moldova (CDL-REF(2014)052), hereinafter the “Draft Law”).

Both OSCE/ODIHR and the Venice Commission confirmed their willingness to review the draft amendments. On 5-6 February 2015, a joint delegation of the Venice Commission, DG I and the OSCE/ODIHR visited Chisinau and held meetings with representatives of the authorities (the Ministry of Justice, the Parliament, the General Prosecutor’s Office, the Superior Council of Prosecutors) as well as professional associations of prosecutors and lawyers and civil society. The delegation is grateful to the Moldovan authorities and to other stakeholders met for the excellent co-operation during the visit.

 

II. Scope of the opinion

The scope of this Joint Opinion covers only the Draft Law, submitted for review. Thus limited, the Joint Opinion does not constitute a full and comprehensive review of the criminal procedure system of Moldova.

The Joint Opinion raises key issues and provides indications of areas of concern. In the interests of concision, the Joint Opinion focuses more on problematic areas rather than on the positive aspects of the draft amendments. The ensuing recommendations are based on relevant international human rights and rule of law standards and OSCE commitments, Council of Europe standards, as well as good practices from other OSCE participating States and Council of Europe member states. Where appropriate, they also refer to the relevant recommendations made in previous OSCE/ODIHR-Venice Commission opinions.

In view of the above, OSCE/ODIHR, the Venice Commission and DG I would like to make mention that this Joint Opinion is without prejudice to any written or oral recommendations or comments on the respective legal acts or related legislation that OSCE/ODIHR and the Venice Commission may deliver in the future.

 

III. International standards

The OSCE/ODIHR, DG I and the Venice Commission have examined the Draft Law in the light of the standards of the Council of Europe and of the OSCE that are of relevance to legislation dealing with the operation of public prosecution services, as well as of existing good practices in the field, as available in particular in:

- the European Convention on Human Rights (hereinafter ECHR) and the related case law of the European Court of Human Rights;

- OSCE commitments, such as the 1990 OSCE Copenhagen Document, which provides that “the rules relating to criminal procedure will contain a clear definition of powers in relation to prosecution and the measures preceding and accompanying prosecution” and the 2006 Brussels Declaration on Criminal Justice Systems, which states that “[p]rosecutors should be individuals of integrity and ability, with appropriate training and qualifications; prosecutors should at all times maintain the honour and dignity of their profession and respect the rule of law;” and that “[t]he office of prosecutor should be strictly separated from judicial functions, and prosecutors should respect the independence and the impartiality of judges”.

- Recommendation Rec(2000)19 of the Committee of Ministers to member states on the role of public prosecution in the criminal justice system ;

- Recommendation CM/Rec(2012)11 of the Committee of Ministers to member states on the role of public prosecutors outside the criminal justice system;

- Recommendation 1604 (2003) on the Role of the Public Prosecutor’s Office in a Democratic Society Governed by the Rule of Law of the Parliamentary Assembly of the Council of Europe;

- the Venice Commission's Report on European Standards as regards the Independence of the Judicial System: Part II The Prosecution Service (hereinafter “Report on the Prosecution Service”) and related Venice Commission opinions;

- the European Guidelines on Ethics and Conduct for Public Prosecutors (“the Budapest Guidelines”) adopted by the Conference of Prosecutors General of Europe;

- the Opinion No. 3(2008) of the Consultative Council of European Prosecutors on 'The Role of Prosecution Services Outside the Criminal Law Field';

- the Opinion No.12 (2009) of the Consultative Council of European Judges (CCJE) and Opinion No.4 (2009) of the Consultative Council of European Prosecutors

 

IV. Executive summary

At the outset, OSCE/ODIHR, the Venice Commission and DG I welcome the Draft Law, which represents, overall, a substantial improvement of the current Law regulating the operation of the Moldovan Prosecution Service and reflects a genuine effort to modernize the existing legal framework, in line with relevant European standards and best practices. It appears to be of good technical and structural quality, and it deals in detail - although in some cases in a too detailed manner - with many important aspects of the functioning of the Prosecution Service. Many of the proposed changes entail the implementation of recommendations in the Opinion adopted by the Venice Commission in 2008 on a previous version of the Draft Law (Opinion on the Draft Law on the Public Prosecutor's Service of Moldova, 13-14 June 2008, CDL-AD(2008)019 ).

The proposed changes concern various steps to secure the autonomy of individual prosecutors and the service’s own independence from external influence, the structure of the service and its demilitarisation, the appointment, tenure and removal of the Prosecutor General, the appointment and promotion of other prosecutors, as well as the performance evaluation and the disciplinary procedures.

 It is particularly positive that the Draft Law proposes a significant reduction of the number of tasks of the Prosecution Service by specifying that provisions not related to the prosecution service’s core role, such as its participation in civil cases and the supervision of the compliance with the law, will expire within three years from the entry into force of the Draft Law, thereby providing sufficient time to draft legislation which will transfer these responsibilities to other bodies. This will also allow the Prosecution Service to focus on its core task of criminal prosecution. While it would seem desirable to consider amending the Constitution to define the competences of the Prosecution Service more closely and narrowly, a constitutional amendment does not seem required for the changes envisaged in this regard by the Draft Law.

The new procedure for the appointment of the Prosecutor General envisaged by the Draft Law is, in the specific circumstances prevailing in the Republic of Moldova, clearly preferable to the current procedure but can, as acknowledged by the Transitional Provisions, enter into force only once the Constitution has been amended. This is a further aspect making it desirable to amend the Constitution.

In addition, the emphasis on the independence and neutrality of the prosecution service, improved rules on internal independence, the competitive recruitment of prosecutors and the focus on objective criteria in their performance evaluation, are significant steps to ensure a professional and politically independent prosecution service. Substantial amendments have also been introduced to the provisions concerning the prosecutorial self-administration bodies. In particular, the powers of the Superior Council of Prosecutors have been enhanced.

Key recommendations

The above-mentioned improvements are welcome. The OSCE/ODIHR, the Venice Commission and DG I, however, suggest the following improvements to the Draft Law:

A. To provide a more precise and narrow delineation of the powers of the Prosecution Service outside of criminal law and for judicial supervision of prosecutors’ actions in this area, including during the transitional period, and to consider amending the Constitution with a view to defining the competences of the Prosecution Service more closely and narrowly;

B. To include more precise provisions on the internal independence of prosecutors and related safeguards (the requirement that individual orders from hierarchically superior prosecutors be reasoned and given in writing, the limitation of the number of levels of hierarchical control over the prosecutor’s acts, increased clarity as to the decisional discretion of the prosecutor and who may change his/ her actions or inactions; more precisely defined disciplinary offences and increased guarantees for the impartiality of the disciplinary proceedings);

C. To include a specific mechanism for the dismissal of the Prosecutor General, distinct from the provisions regulating dismissal of other prosecutors and based on clear conditions and criteria;

D. To reconsider the proposed provisions with respect to prosecutors in the Autonomous Territorial Unit (ATU) of Gagauzia, which are not compatible with the provisions of organic law on the ATU of Gagauzia. This is problematic not only since such contradictions within the applicable legislation have to be avoided in general but also since any interference with the status of Gagauzia in the current context raises sensitive issues and would require, if done at all, appropriate consultation of the competent bodies of Gagauzia;

E. To ensure that the Transitional Provisions provide for the appropriate harmonization of the provisions of the Draft Law with those of the Code of Criminal Procedure and any other relevant legislative provisions.