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IV. FAIR �� TRIAL AND ASSOCIATED RIGHTS OF VICTIMS AND WITNESSES The principle of proportionality between the need to fight crime (including the protection of victims’ rights) and the interests of the accused permeates European Court jurisprudence, the European Convention141, and recommendations and decisions of the Council of Europe142 and the European Union.143 Other international documents provide important guarantees for victims and witnesses.144 Moldovan law defines the terms “victim,”145 “injured party,”146 “civil party”147 and “witness”148 and grants to each person so defined different substantive and procedural rights. For the sake of brevity, the term “victim” in this Final Report is used to refer to all three �� –�� victim, 141 �� See Doorson v. The Netherlands, Application No. 20524/92, 26 March 1996, para. 70, where the European Court stated that, “It is true that Article 6 does not explicitly require the interests of witnesses in general, and those of victims called upon to testify in particular, to be taken into consideration. However, the life, liberty or security of a person may be at stake, as may interests coming generally within the ambit of Article 8 of the Convention. Such interests of witnesses and victims are in principle protected by other, substantive provisions of the Convention, which imply that Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled. Against this background, principles of a fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify.” 142 �� See Recommendation No. R (85) 11 of the Committee of Ministers to member states on the position of the victim in the framework of criminal law and procedure, 28 June 1985. 143 �� See European Council Framework Decision on the Standing of Victims in Criminal Proceedings, 15 March 2001. 144 �� Art. A (4), Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, United National General Assembly Resolution 40/34, 29 November 1985. 145 �� “any physical or legal person who suffered moral, physical, or material damage resulting from a crime,” Art. 58 para. (1) of the Criminal Procedure Code. Of note, in contrast to international law, the criteria of definition under Moldovan law is somewhat restrictive in that it does not expressly recognize persons directly related to the actual victim as victims as well (See Section A (2), Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, GA Res. 40/4, 29 November 1985, which declares that victims may also include “where appropriate, the immediate family or dependents of the direct victims, and persons who have suffered hard in intervening to assess victims in distress or to prevent victimization”). The victim has the right to have her/his complaint registered by the criminal investigative body and from that moment to be informed about the results of the investigation. 146 �� “…the physical person who suffered moral, physical or material damage resulting from a crime and has been recognized in this capacity, according to the law, with the consent of the victim.” - Art. 59 para. (1) of the Criminal Procedure Code. 147 �� “…the physical or legal person regarding whom there are sufficient reasons to consider that s/he has suffered moral or material damage resulting from a crime, and who has filed a civil claim with the criminal investigation body or the court against the defendant or the persons materially liable for the defendant. The civil claim is examined by the court within the criminal trial if the volume of the damage is undisputed.” - Art. 61 para. (1) of the Criminal Procedure Code. 148 �� “…the person summoned in this capacity by the criminal investigative body or the court, as well as the person who testifies as a witness in a way set by the present code. Persons who have information regarding a certain circumstance, which needs to be determined in the case, may be summoned as witnesses.” See Art. 90 para. (1) of the Criminal Procedure Code. Witnesses are obliged to give statements, except a list of persons provided in Art. 90 para. (3) who are excluded from the obligation to give statements as witnesses. Close relatives, as well as the husband, wife, of fiancée of the defendant, are not obliged to testify. The criminal investigative body or the court is obliged to bring this circumstance to the attention of these people under signature. 71

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

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Europe: Moldova

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Procedural safeguards: Procedural safeguards - general

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

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Report: Thematic Report

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2010

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

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