LAW OF THE REPUBLIC OF MOLDOVA

of July 3, 2014 No. 122

About approval of the Concept of reform of Prosecutor's office

According to the Strategy of reform of the sector of the justice for 2011-2016 approved by the Law No. 231 of November 25, 2011 and the Action plan on strategy implementation of reform of the sector of justice for 2011-2016 approved by the Resolution of Parliament No. 6 of February 16, 2012 for the purpose of creation of the available and effective, professional and socially responsible system of bodies of the Prosecutor's office conforming to the European standards, providing rule of law and respect for human rights and also for the purpose of building confidence of society in justice the Parliament adopts this ordinary law.

Art. 1. – Approve the Concept of reform of Prosecutor's office provided in appendix.

St.2. – For the purpose of implementation of the Concept of reform of Prosecutor's office to the Working group on completion of the Concept of reforming of Prosecutor's office and project development of the regulations directed to reforming of activities of the Prosecutor's office (formed by the Order of the Chairman of the parliament of DDP/C1 No. 2 of January 15, 2014) to develop and initiate acceptance process:

a) the bill on modification and amendments in the Constitution of the Republic of Moldova;

b) bill on Prosecutor's office;

c) drafts of the laws on modification and amendments in the existing legal acts concerning activities of Prosecutor's office.

Appendix

Concept of reform of Prosecutor's office

This document is conceptual basis for project development of the laws directed to realization and promotion of reform of Prosecutor's office by increase in professionalism and independence of this institute.

The Parliament of the Republic of Moldova approved by the law No. 231 of November 25, 2011 the Strategy of reform of the sector of justice for 2011-2016 which overall objective is creation of the available, effective, independent, transparent, professional and socially responsible sector of justice conforming to the European standards, providing rule of law and respect for human rights, promoting building confidence of society in justice. Achievement of this purpose is impossible without implementation of the measures provided by the strategic direction 2.2 poles of the II Strategy entitled "Increase in professionalism and independence of prosecutor's office".

Availability of set of problems in activities of system of bodies of Prosecutor's office was recognized as acceptance of Strategy. Need of implementation of the measures directed on is as a result established:

a) increase in procedural independence of prosecutors;

b) ensuring specialization of prosecutors in special cases and consideration of feasibility of functioning of specialized prosecutor's offices;

c) fixing of exact competence of Prosecutor's office;

d) strengthening and refining of powers of Prosecutor's office in the field of criminal justice;

e) establishment of accurate and transparent criteria and procedures of selection, appointment and promotion of prosecutors;

f) review of procedure for appointment of the Attorney-General, strengthening of its powers on realization of policy of the state in the field of criminal prosecution and ensuring uniform practice of adoption of legal decisions within criminal procedure;

g) review governed, the prosecutors concerning responsibility;

h) strengthening of capacity of the Supreme council of prosecutors.

For the purpose of realization of the tasks planned by Strategy and implementation of the measures provided by strategic direction 2.2 Action plans on strategy implementation the Working group on project development of the laws on activities of system of bodies of Prosecutor's office formed by the joint order of the Minister of Justice and Attorney-General No. 307/46 of July 11, 2013, and the Working group on completion of the Concept of reforming of Prosecutor's office and project development of the regulations directed to reforming of activities of Prosecutor's office, DDP/C1 No. 2 formed by the Order of the Chairman of the parliament of January 15, 2014 developed and finished this concept proposing solutions as the problems revealed by the above-stated program documents and other problems concerning activities of Prosecutor's office.

The concept of reform of Prosecutor's office is based on the following principles and the purposes:

• establishment of standards of the European countries / the European Community in the organization and activities of system of bodies of Prosecutor's office;

• strengthening of measures of strategic planning in the organization, coordination and implementation of activities of Prosecutor's office;

• exception of the sphere of competence of the prosecutor of some types of activity which are not connected with criminal trial;

• refining of competences of the prosecutor of criminal trial and exact determination of the relations of the prosecutor as the subject playing paramount role in criminal procedure and criminal prosecution authorities;

• specialization of prosecutors;

• ensuring individualization of decision making process by the prosecutor and eradication of practice of signing of acts of the prosecutor by the second person;

• reducing number of higher prosecutors;

• essential reducing repeated checks of legality of procedural acts in Prosecutor's office;

• equal and equitable distribution of amount of work between prosecutors;

• rational allocation of budgetary funds for activities of Prosecutor's office and self-government institutions of prosecutors.

This concept is built on the following structure:

A. Place and role of Prosecutor's office

I. The Prosecutor's office place in system of law

II. Appointment of the Attorney-General

III. Competence of Prosecutor's office. Powers of Prosecutor's office in civil legal proceedings. Powers of Prosecutor's office in other areas

IV. Budget of Prosecutor's office

B. Organization and activities of system of bodies of Prosecutor's office

I. Structure of system of bodies of Prosecutor's office, including the Prosecutor General's Office. Specialization of prosecutors

II. Activities of Prosecutor's office as administrative authority

III. Institutional assessment of Prosecutor's office

C. Functional independence and responsibility of prosecutors

I. General meeting of prosecutors and the Supreme council of prosecutors

II. Hierarchical subordination of prosecutors

III. Special ranks of prosecutors

IV. Access to public prosecutor's profession and public prosecutor's career

V. Assessment of achievements of prosecutors

VI. Disciplinary responsibility of prosecutors. Inspection of prosecutors

VII. Criminal prosecution of prosecutors

D. Social guarantees of prosecutors

I. Compensation of prosecutors

II. Pension entitlement and other guarantees of prosecutors

A. Place and role of Prosecutor's office

The premises fixed first of all in the Management of the UN about role of prosecutors (1990) and Recommendations of the Council of Europe of role of prosecutor's office in the criminal justice system (2000) recognized internationally as necessary element of real and effective system of law is the functional, independent, autonomous and transparent institute of Prosecutor's office. Such guarantees as independence and autonomy, are provided to prosecutors not in their private interests, and for the sake of rule of law and for the benefit of those who look for and try to obtain justice (1).

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(1) the European guidelines on ethics and behavior of prosecutors ("The Budapest guidelines") accepted on May 31, 2005 at the Conference of Attorney-Generals of Europe.

I. The Prosecutor's office place in system of law

The revealed problems:

– ambiguity of the current legislation determining the Prosecutor's office place in system of law enforcement agencies and its role;

– insufficiently accurate regulation of activities of Prosecutor's office that leads to inconsistent application of the legislation;

– The prosecutor's office is not perceived by completely depoliticized institute, and the legislation does not provide indisputable guarantees of independent and impartial implementation of the functions by it.

Context

1. Concerning the prosecutor's office place in system of law legal Europe is subdivided into systems in which the prosecutor's office is completely independent of parliament and the government, and systems in which the prosecutor's office is subordinated to one of these authorities, using nevertheless certain degree of independence in actions. Concerning single model of prosecutor's office for the present it is not necessary to speak about the European harmonization (2).

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(2) the Recommendation of Rec (2000)19 of Committee of Ministers of the Council of Europe about role of prosecutor's office in the criminal justice system, the Explanatory memorandum, page 11.

2. Irrespective of the fact which the model chooses the certain state, it is known that the prosecutor's office shall play key role in ensuring independent and impartial functioning of the criminal justice system. For this purpose the prosecutor's office shall be protected from inadequate intervention and influence, including from legislative and executive power. For this reason the continental model ranks prosecutor's office as judicial authority, granting it right of defense, provided with independence of justice.

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