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importance to the continuity of representation by the defence lawyer than�� of having the same prosecutor represent the state throughout a given case. This practice is perhaps encouraged by existing law which provides in art. 331 para. 1 of the Criminal Procedure Code that the court can postpone the hearing if one of the parties or witnesses �� is missing, �� or for other reasons, after consulting the parties. Art. 320, para. 3 of the Criminal Procedure Code provides that�� ,�� “�� I�� f the prosecutor is not present at the hearing, the hearing is postponed.” Art. 322 para. 3 of the Criminal Procedure Code provides that�� ,�� “�� I�� f the lawyer is not present and it is impossible to have him replaced in the same hearing, the hearing is postponed.” Art. 322 para. 4 further requires that the replacement of the lawyer that did not appear for the hearing be done only with the consent of the defendant. With respect to the performance of defence lawyers in court, �� as discussed above in Chapter II section 2.4., �� monitors noted (in both Chişinău�� and the Southeast) that while many defence lawyers appeared well prepared �� to �� defend�� their clients there were�� many instances �� in which� the defence lawyer was either not well prepared or �� acted�� passive�� ly�� . A few cases were noted in which�� the lawyers appeared �� not to�� know the basic facts of the case�� ; �� the Law on the �� Bar expressly prohibits a lawyer from entering a case without prior examination of the case file.131 During the first monitoring period, as �� noted in the two previous monitoring reports, monitors observed differences in lawyers’ representation depending�� on whether the client was a private client or a legal aid client. These differences were noted during the second monitoring period both in Chişinău and the Southeast. Throughout the monitoring period, when acting as legal aid lawyers defence lawyers tended to be less active and show less interest in doing their job than when privately contracted. One reason for differences in performance by legal aid lawyers, as admitted by legal aid lawyers themselves, is the low pay. 132 Vignette: In a trafficking case the defendants were sentenced respectively to 15 and 10 years of imprisonment. At the end of the case, the legal aid defence lawyer approached monitors and said, “The defendants ought to appeal the sentence. The witnesses that were present today must be heard and new evidence must be presented, and that means that it is important to work a little and probably they (defendants) will be acquitted.” The defence lawyer also added ”I could go to the police to find some evidence and it is really possible to do something if you work, but I am sorry, I cannot do this for the 20 MD lei the state gives me. Is it not possible to give at least 150 MD lei per hearing?”132 Legal aid lawyers acted in 11% of the hearings monitored in Chişinău and 15% in the Southeast, a sufficiently high percentage of cases to permit the rather negative comparative evaluation of the performance of legal aid lawyers described in this Final Report.133 Isolated 131 �� See art. 46 para. (5) of the Republic of Moldova Law on Bar. 132 �� Note: legal aid fees have been increased, as provided by the National Legal Aid Council’s regulation on legal aid tariffs, as �� of �� 29 January 2009. It is also noted that even according to the old regulation the amount indicated by the respective lawyer is significantly lower than that regulation provided for legal aid representation. This indicates either the lawyer did not know his or her rights regarding the payment for legal aid or the implementation of the rules was problematic in practice. 133 �� Note that this percentage is not representative�� of �� the overall caseload in courts, as the gravity of the crimes and the specific subjects of the crimes included in the TMP usually mandate�� that the client contract a private lawyer rather than using legal aid. 66

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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

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Procedural safeguards: Procedural safeguards - general

Language: English

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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

Year

2010

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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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