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deals only with procedural issues. The Programme has, however, made findings related to the appearance of independence and to the issue of whether judges present sufficient guarantees to exclude legitimate doubt of their impartiality. Monitors observed that the appearance of independence and impartiality was damaged by the following practices in the courts monitored: engagement of the judges in ex-parte communications (parties entering the judges’ offices before hearing with no explanations to the other party); judges’ active engagement in questioning; judges’ support of one of the parties; judges’ hurrying�� the parties, particularly in connection with their pleadings and the final word of the defendant; and the practice by the Courts of Appeals of deliberating on several cases simultaneously. The types of violations related to the independence and impartiality of judges have already been noted in the Second TMP Report. The final monitoring period in the courts in Chişinău did not present�� significant changes in the behaviour of judges�� . M�� onitoring in the Southeast did not �� observe any �� significant differences from Chişinău. The findings of this section refer to the observations of the courts both in Chişinău and in the Southeast. The Second TMP Report highlighted the problematic practice of judges engaging in ex-parte communications with only one side or showing an excess of familiarity or friendly relations with one of the parties. The Superior Council of Magistrates has issued a decision77 regarding the “access of the trial participants and their representatives to the judges’ offices,” stating the following intent: �� “to �� prohibit the access of parties and their representatives to the judges’ offices except to �� attend �� trial hearings.” Although �� this�� decision was�� posted at all judges’ offices, monitors noted that the practice of defence lawyers or prosecutors entering judges’ offices before the hearing, without explanations to the other party, has continued. This same practice was noted in the Southeast. Several monitors highlighted the tendency of some judges to engage in active questioning of the defendant, witnesses, victims or experts, asking not only questions of clarification, but also questions with a clear prosecutorial or defence inclination. Vignette: In one case the judge addressed a witness and the defendant saying “I will dare to ask you instead of the prosecutor: who is lying?” In isolated instances the judge obviously favoured one of the parties. In one case, the judge put pressure on the prosecutor to change the category of the criminal �� charge �� from pimping to trafficking in human beings. Vignette: After several hearings postponed by the judge in a pimping case, the judge addressed the prosecutor, mentioning the need “to consult with your boss,” because “This is traffic here! Come on, she (the defendant) will have time to think in the prison.”This statement was made at the beginning of the court examination, during the questioning of the first witness. Such actions�� constitute �� an infringement �� of the defendant�� ’s�� right to an independent and impartial tribunal�� and�� to be presumed innocent. against external pressure (namely the executive and legislative branches of state power and the parties in the case), and the rules regarding the participation of a particular judge in the same case in different roles and the withdrawal of judges when there are legitimate reasons to fear lack of impartiality. 77 �� See the Decision of the Superior Council of Magistrates No. 351/14 of 15 November 2007. 54

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ODIHR (2010) Trial Monitoring Programme for the Republic of Moldova: Final Report

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Name of the author: https://www.osce.org/files/f/documents/9/c/70945.pdf

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Europe: Moldova

Theme

Procedural safeguards: Procedural safeguards - general

Language: English

Source

Organization for Security and Co-operation in Europe (OSCE): Office for Democratic Institutions and Human Rights (ODIHR)

Document Type

Report: Thematic Report

Year

2010

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70945.pdf
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Atlas of Torture

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ODIHR (2010) Trial Monitoring Programme for the Republic of Moldova: Final Report

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