The Union of Lawyers of Moldova (UAM) issued a statement on Wednesday stating that the Institution of Lawyers is concerned about statements made by Moldovan President Maia Sandu during the briefing held after the meeting of the Superior Security Council (CSS) on September 5, 2022, in which she mentioned that there are “very many cases when defense lawyers deliberately procrastinate cases using all kinds of possibilities that the current legislation allows”, thus qualifying these actions of lawyers as abuses.
The statement signed by UAM President Dorin Popescu states that lawyers “will not accept such a position, will fulfil their mission in society and will defend the rights of citizens regardless of the position of the authorities, as long as it is contrary to human rights and the right to freely exercise the profession of lawyer, guaranteed by the Constitution of the Republic of Moldova and international treaties.
During the briefing on 5 September, referring to “obstacles, which in the opinion of the members of the CSS, exist to the dispensation of justice”, the President of the Republic of Moldova, Maia Sandu, stated that:
“The biggest question is to the judicial system because the acting Prosecutor General has reported on several cases that have been completed and forwarded to the courts and we have asked the Superior Council of the Magistracy to come up with a solution, whether this means creating a specialized court (…) We know of many cases when defence lawyers deliberately delay certain cases and we have respectively discussed to eliminate these ways of abuse, it is necessary to amend the legal framework. We have asked for a proposal to strengthen the capacity of the Criminal Assets Recovery Agency (ARBI)”.
“We consider unacceptable such rhetoric from the President of the Republic of Moldova Maia Sandu and implicitly, the CSS, from which it follows that lawyers commit abuses, while the legislation allows them to exercise their professional duties according to the law.
As long as the legislation allows to exercise the profession by using legal ways, by activities allowed by law, when the defense lawyer but also the lawyer in other categories of cases uses the opportunities provided by law, his activity is perfectly legal and therefore CANNOT BE CONSIDERED AS ABUSE OF LAW committed by lawyers.
At the same time blaming defence lawyers participating in criminal cases for abuse of law, President Maia Sandu did not come up with any concrete examples in this regard.
Therefore, it is worrying that at the level of the President of the Republic of Moldova, society is misinformed about alleged abuses of law committed by lawyers in the exercise of their professional duties in criminal cases, when the use of these ways and actions is allowed by law.
Another concern of UAM is that if the institution of the President of the Republic of Moldova, and implicitly CSS, considers that once a criminal case is sent to the court, the defence party should sit quietly and not fulfil its legal role as a defence counsel, not fulfil its obligation to take evidence, accept evidence accumulated in violation of the law, to accept unfounded criminal charges that are contrary to the legislation in force and to criminal doctrine in general, and to accept abuses committed by the prosecuting authorities and the courts against which lawyers defend the rule of law, abuses for which the Republic of Moldova is paying hundreds of thousands of euros from the country’s budget as a result of the ECtHR ruling, then this is very serious and has nothing in common with the rule of law.
Thus, we firmly DECLARE that the Institution of Lawyers in general and lawyers in particular, will NOT accept such a position, will carry out their mission in society and will defend the rights of citizens regardless of the position of the authorities, as long as it is contrary to human rights and the right to freely exercise the profession of lawyer, guaranteed by the Constitution of the Republic of Moldova and international treaties.
At the same time, we believe that it is right that in this situation, lawyers should participate and be represented at the CSS meeting, but not only the prosecution side in the person of the representative of the General Prosecutor’s Office and not only the representative of the SCM, which represents the judicial body.
On this occasion, we remind the Presidency that the right of the lawyer to exercise the defence within the prescribed limits is guaranteed by Article 26 of the Constitution of the Republic of Moldova.
In turn, the right of lawyers to exercise their profession freely, through legal channels, in criminal cases and the right to give evidence in a criminal case with the assurance of an adversarial trial within a reasonable time is guaranteed by Articles 51; 52; 53 of Law No. 1260/2002 on lawyers, Articles 17; 19; 20; 24; 68; 99; 100 of the Criminal Procedure Code of the Republic of Moldova and Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
At the same time, we recall that according to Art. 20 para. (2) p. 1) CPP, one of the criteria for assessing the reasonable time for the resolution of the criminal case is the complexity of the case. And the cases discussed during the CSS meeting of 05.09.2022, are certainly of a higher complexity, involving many activities of the defense allowed by law.
At present, the criminal procedural law provides for bad faith and abusive conduct only in cases provided for in Art. 34 para. (4) of the CPC with reference to the repeatedly submitted request for recusal; Art. 142 para. (2) CCP, which regulates the examination of the request for the order of judicial expertise; and Art. 201 para. (4) p. 4) CPP, which regulates the application of the judicial fine in the event of delay by the expert, interpreter or translator in carrying out the assignments received.
For the rest, the activity of the advocate in a criminal case within the legal limits cannot be qualified as procrastination in the examination of the criminal case.
At the same time, the law clearly sets out the ways and solutions for not allowing the examination of a criminal case to be delayed.
Therefore, from the statements of the President of the Republic of Moldova Maia Sandu, made during the briefing held after the CSS meeting of 5 September 2022, the impression is created that the institution of the Presidency and the CSS, in fact, have agreed to eliminate any possibility for lawyers in the exercise of their profession to use the opportunities offered by the law regarding the freedom of the lawyer in choosing his position, in order to fulfil his obligations to defend the accused, a position which the defence lawyer is not obliged to coordinate with anyone except the client (art. 51 of Law 1260 on Advocacy).
In this sense, it is implied that in fact, it is intended to eliminate and ignore the principle of adversarial proceedings in a criminal trial, as well as the Basic Principles of the Role of Lawyers, adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana (Cuba), 27 August-7 September 1990, which states in § 16 that “Governments are obliged to ensure that lawyers (a) are able to perform all their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and consult with clients freely both at home and abroad; and (c) shall not be subject to sanctions or threatened with criminal prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties and regulations and in accordance with the standards and ethics of the legal profession. “
In such a case, we express our concern that there is a risk that in the near future the rule of law will be eliminated and will no longer exist in the Republic of Moldova”.
On Monday 5 September, the head of state convened a meeting of the CSS. According to the presidential institution, one of the issues discussed by the Supreme Security Council is the fight against terrorist acts. Members of the SSC also discussed progress and obstacles in the process of justice delivery and the priorities of the legislative agenda on justice reform.