Advancing democracy and human rights
REPORT Monitoring of the court hearings on the contravention and criminal cases against the drug users Monitoring period: february - october 2015
Chisinau 2015
Advancing democracy and human rights
REPORT
Monitoring of the Court Hearings on the Contravention and Criminal Cases against the Drug Users Monitoring period: February - October 2015
CHISINAU 2015
Authors of the report: Alexandru Postica, Vadim Vieru
Edition coordinator: Olga Manole Transnlation in English language: “Intart Design” SRL Layout and printing: „Depol Promo” SRL
All rights reserved. The content of the Report may be used and reproduced for not-for-profit purposes and without the preliminary consent of Promo-LEX Association, provided that the source of information is indicated.
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Advancing democracy and human rights
PROMO-LEX Association 11/41 Dumitru Riscanu street, Chisinau, Moldova Tel./fax: (+373 22) 450024 E-mail: info@promolex.md www.promolex.md SOROS FOUNDATION-MOLDOVA 32 Bulgara street, Chisinau, Republic of Moldova Tel.: (+373 22) 274480, 270031 Fax: (+373 22) 270507 www.soros.md
“Monitoring of the Court Hearings on the Contravention and Criminal Cases against the Drug Users” Report has been developed under the “Promoting the observance of the injecting drug users’ rights through monitoring, reporting and litigation” Project, implemented by Promo-LEX Association with the support of the Public Health Program/ Soros Foundation-Moldova. The content of the Report reflects the opinion and positions of the authors. Soros Foundation-Moldova does not bear any responsibility for the content of the Report. 2
CONTENTS INTRODUCTION...........................................................................................................................................................................05 Chapter 1. Applied methodology and tools......................................................................................................................06 Chapter 2. General issues with respect to the activity of courts of law...............................................................09 Chapter 3. Aspects related to compliance with principles of the right to a fair trial.....................................11 3.1. Access to an independent and impartial court.................................................................................................11 3.2. Contradictoriality of the procedure.......................................................................................................................15 3.3. Examination of the case within a reasonable time..........................................................................................22 3.4. Clarity of the adopted judgment ............................................................................................................................24
Chapter 4. Ensuring a non-discriminatory treatment of drug users....................................................................26 CONCLUSIONS AND RECOMMENDATIONS....................................................................................................................28
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LIST OF ACRONYMS DU Drug User
IDU Injecting Drug User
JRM Justice Reform Monitoring NLAC National Legal Aid Council
SCM Superior Council of Magistracy SCJ Supreme Court of Justice
GPI General Police Inspectorate MIA Ministry of Internal Affairs PI Police Inspectorate
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INTRODUCTION The Report “Monitoring of the Court Hearings on the Contravention and Criminal Cases against the Drug Users” has been developed under the “Promoting the observance of the injecting drug users’ rights through monitoring, reporting and litigation” Project, implemented by Promo-LEX Association with the support of the Public Health Program of the Soros Foundation-Moldova. This activity succeeded The Study “The perception and treatment of injection drug users by police officers in the Republic of Moldova”, which brought into light the fact that drug users, in most cases, are discriminated due to negative perceptions of the representatives of law enforcement bodies. The behavior and attitude of police officers do not contribute to the prevention of spread of drug use, but on the contrary, creates mental barriers that isolate drug users even more from the rest of the society. The excessive application of sanctions to the detriment of encouraging treatment of these harmful habits, can only contribute to the perpetuation of a vicious circle, which drug users can hardly get out. Thus, the application of criminal and administrative offence law, because of its corrective and re-educative nature, plays a role not less important than enforcing a research procedure of these deviations. Moreover, the method of sanctions enforcement is important for the mitigation of risks determined by the drug use.
The activity of court hearings monitoring, carried out by the Association, is part of the joint effort of law enforcement bodies and civil society aimed at changing the attitudes and perceptions towards drug users. The arguments of the community representatives who defend drug users’ rights, according to whom drug users’ rights are violated not only by the criminal prosecution body, but also during court hearings, served as ground to monitor the court hearings. The purpose of the monitoring was to analyze the situation, on the one hand, and to contribute to the defense of drug users’ right through the monitoring of the court hearings in which they take part, on the other hand.
The objective is to raise the justice system’s awareness of the drug use problem and to create preconditions for the reintegration of drug users in society and for breaking some stereotypes and avoiding their stigmatization. it is noteworthy that, prior to this, Promo-LEX Association monitored court hearings on civil and criminal cases throughout the whole Republic of Moldova. The monitoring covered randomly selected cases, dealing with all types of crimes and offenses. The monitoring was carried out as part of the “Monitoring the Justice Sector Reform Strategy to Increase Government’ Accountability” Project, implemented by Promo-LEX Association and Association for Efficient and Responsible Governance (AGER), with the financial support of the European Union. 1.872 court hearings were monitored during the project implementation (2012 – 2014). The monitoring focused on 2 main components: (i) assessment of the implementation of the Action Plan implementing the Justice Sector Reform Strategy and (ii) monitoring of court hearings. Therefore, to perform a comparative analysis of attitudes and perceptions on the operation of the courts of law, we took this empiric analysis as a basis. The Report will analyze whether there are major differences between the conduct of court hearings involving drug users (DU) and court hearings not involving persons from this category. In total, 480 court hearings involving drug users have been monitored under the project.
Thanks to the applied methodology, we could interact with at least 355 drug users, who filled in anonymous surveys. Those surveys contain questions on their perceptions of courts of law and how justice was made for them. The obtained results were compared to the results provided by those 7 monitors, who assisted at all court hearings mentioned above.
The Report has 3 chapters, covering information on general aspects of courts of law, compliance with principles of a fair trial, as well as analysis of the compliance with the non-discrimination principle. Finally, the Report the covers the most important findings and recommendations for the monitored stakeholders.
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CHAPTER
1
APPLIED METHODOLOGY AND TOOLS
Court hearings involving drug users were monitored on the basis of a methodology developed by Promo-LEX Association. When developing the work methodology and tools, we focused on ensuring the compliance with standards of the European Commission for the Efficiency of Justice within the Council of Europe (CEPEJ)1. The persons contracted by the Association developed the methodology, using as a guide the CEPEJ Methodology on Measuring the User Satisfaction, Manual of Council of Europe on the enforcement of Article 6 of the European Convention on Human Rights, Bulletin on the International Provisions of the Right to a Fair Trail issued by Organization on the Security and Cooperation in Europe. All these tools were adjusted to the DU’s situation. The monitoring activity involved 7 monitors, who had worked for 8 months. The monitoring period started on 1 February 2015 and ended on 30 September 2015. The monitors benefited from trainings on the monitoring methodology and principles, reporting and interviewing. All monitors were involved previously in civic monitoring of democratic processes, conducted by Promo-LEX Association or other Non-Government Organizations. The monitors’ task was to select court hearings involving DUs. The monitors cooperated closely with specialized associations of drug users, which often provided information on the cases pending in courts of law with the involvement of their beneficiaries. In addition, a defining element used to select the monitored cases was the express confirmation of the person to be a drug user, in addition to the charges brought by law enforcement bodies to the drug users. Therefore, the court hearings involving persons who declared themselves not being drug user were not taken into account.
The following tools were developed on the basis of the monitoring methodology: questionnaire for court hearings monitoring (filled in by the monitor) and satisfaction survey of litigant (filled in by the litigant – DU). The questionnaire for court hearings monitoring contains questions on the following issues: general issues on the court hearing and fair trial, issues of monitor’s perception of the attitude and behavior of the judges and other parties to the lawsuit. The satisfaction survey includes questions as regards to the justice, quality, independence and impartiality of the judge and prosecuting officers in the monitored case, and as appropriate, the fair trail. Satisfaction surveys have been filled in by the DUs - participants in the lawsuit, in compliance with the national law on the protection of personal data, without disclosing information on identity. In addition, DUs filled in information on their attitude towards the police officers/law enforcement officers at the stage of apprehension/arrest and/or criminal prosecution. The monitoring tools also included questions related to gender.
The monitoring activities were public, the Superior Council of Magistracy (SCM) was asked in advance to approve this activity, which in fact was done by the SCM Decision No 114/5 of 17 February 20152. 480 court hearings were monitored in Chisinau Municipality: at Centru District Court of Law, Buiucani District Court of Law, Botanica District Court of Law, Riscani District Court of Law, Ciocana District Court of Law, Chisinau Court of Appeal; in Balti Municipality: at Balti Court of Law, Balti Court of Appeal; in Cahul District: at Cahul Court of Law, Cahul Court of Appeal; in Comrat Municipality: at Comrat Court of Law, Comrat Court of Appeal.
After the court hearings, the parties - DUs were asked to fill in a satisfaction survey, which contained the following indicators (parameters): Access to justice, quality, independence and impartiality of the judge(s) and prosecuting officers, and fair trial if appropriate. In total, 355 DUs agreed to fill in the surveys. Thus, the 22 questions of the survey were broken down by above mentioned chapters. The respondents were asked to assess the level of their satisfaction on the following scale: totally dissatisfied (TD), partially satisfied (PS) and totally satisfied (TS). In addition, the category undecided (UN) was added, in the event when the question was not applicable or when the respondent did not want to provide an answer. Thus, the parties - DUs filled in 355 satisfaction surveys. The surveys were anonymous.
1 2
6
http://www.coe.int/T/dghl/cooperation/cepej/default_en.asp http://csm.md/files/Hotaririle/2015/05/114-5.pdf
Types of Monitored Court Hearings The 480 monitored court hearings on both criminal and contravention cases are grouped as follows: 1. Article 217 of the Criminal Code – Illegal Circulation of Narcotic Substances, Psychotropic Substances or Analogs Thereof Not for the Purpose of Alienation – 196 hearings; 2. Article 217/1 of the Criminal Code – Illegal Circulation of Narcotic or Psychotropic Substances or Analogs Thereof for the Purpose of Alienation – 87 hearings; 3. Article 217/2 of the Criminal Code – Illegal Circulation of Precursors for the Purpose of Producing or Processing Narcotic or Psychotropic Substances or Analogs Thereof – 32 hearings; 4. Article 217/5 of the Criminal Code - Illegal Public Consumption or the Organization of Illegal Consumption of Narcotic, Psychotropic Substances or Analogs Thereof – 90 de hearings; 5. Other crimes committed by DUs – 54 hearings; 6. Article 85 of the Contravention Code - Illegally Procuring or Keeping Narcotic Substances or other Psychotropic Substances in Small Amounts or Consuming Such Substances Without a Doctor’s Prescription – 16 hearings; 7. Article 87 of the Contravention Code - Illegal Cultivation of Plants Containing Narcotic Substances or Other Psychotropic Substances - 5 hearings; Diagram 1. Number of monitored hearings
480
196
217 CC
87
90
217/1 CC
217/5 CC
32
217/2 CC
54 Other articles (186, 190, etc.)
16
85 Contr.C
5
87 Contr.C
Total
Gender of the Participants in Monitored Court Hearings As regards the gender of litigants - DUs, at least 480 persons were involved in the monitored court hearings, of whom 24% were women and 76% were men. Therefore, we note that the share of male DUs brought to justice was three times higher than the share of female DUs. Diagram 2. Gender issues related to the monitored court hearings
76%
80% 70% 60% 50% 40% 30%
24%
20% 10% 0%
Women
Men
7
The 115 monitored court hearings (24% of the total number) on criminal and contravention cases with the participation of women as defendants/offenders are broken down as following: 1. Article 217 of the Criminal Code – Illegal Circulation of Narcotic Substances, Psychotropic Substances or Analogs Thereof Not for the Purpose of Alienation – 45 hearings; 2. Article 217/1 of the Criminal Code – Illegal Circulation of Narcotic or Psychotropic Substances or Analogs Thereof for the Purpose of Alienation – 7 hearings; 3. Article 217/2 of the Criminal Code – Illegal Circulation of Precursors for the Purpose of Producing or Processing Narcotic or Psychotropic Substances or Analogs Thereof – 15 hearings; 4. Article 217/5 of the Criminal Code - Illegal Public Consumption or the Organization of Illegal Consumption of Narcotic, Psychotropic Substances or Analogs Thereof – 27 de hearings; 5. Other crimes committed by female DUs – 18 hearings; 6. Article 85 of the Contravention Code - Illegally Procuring or Keeping Narcotic Substances or other Psychotropic Substances in Small Amounts or Consuming Such Substances Without a Doctor’s Prescription – 2 hearings; 7. Article 87 of the Contravention Code - Illegal Cultivation of Plants Containing Narcotic Substances or Other Psychotropic Substances - 1 hearing;
If compared to the monitored court hearings involving male DUs, the monitors identified by 2% fewer hearings on criminal cases initiated under Article 217 of the Criminal Code of the Republic of Moldova (Illegal Circulation of Narcotic Substances, Psychotropic Substances or Analogs Thereof Not for the Purpose of Alienation) with the participation of female DUs, by 16% fewer hearings on criminal cases initiated under article 217/1 of the Criminal Code of the Republic of Moldova (Illegal Circulation of Narcotic or Psychotropic Substances or Analogs Thereof for the Purpose of Alienation), by 6% more hearings on criminal cases initiated under article 217/5 of the Criminal Code of Republic of Moldova (Illegal Public Consumption or the Organization of Illegal Consumption of Narcotic, Psychotropic Substances or Analogs Thereof), by 8% more hearings on criminal cases initiated under Article 217/2 of the Criminal Code of the Republic of Moldova (Illegal Circulation of Precursors for the Purpose of Producing or Processing Narcotic or Psychotropic Substances or Analogs Thereof), by 6% more hearings on criminal cases initiated under other articles of the Criminal Code of the Republic of Moldova (fraud, larceny etc), by 2% fewer hearings on contravention cases initiated under Article 85 of the Contravention Code of the Republic of Moldova (Illegally Procuring or Keeping Narcotic Substances or Other Psychotropic Substances in Small Amounts or Consuming Such Substances Without a Doctor’s Prescription). As a percentage, the number of monitored hearings on administrative cases, initiated under Article 87 of the Contravention Code (Illegal Cultivation of Plants Containing Narcotic Substances or Other Psychotropic Substances) is almost equal (1%). Even though, seemingly, there are no significant differences, the statistical information seems to reveal that female DUs commit fewer crimes related to illegal circulation of narcotic substances, psychotropic substances or analogs thereof for the purpose of alienation and more crimes related to illegal public consumption or the organization of illegal consumption of narcotic, psychotropic substances or analogs thereof. Diagram 3. Division of the monitored hearings with the participation of women and men 50%
40% 30% 20% 10% 0%
-10% -20%
Hearings /Women DU Hearings/Men DU Difference %
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217 CC 39% 41% -2%
217/1 CC
217/5 CC
217/2 CC
22%
17%
5%
6%
-16%
23% 6%
13% 8%
other articles (186, 190, etc.)
85 Contr.C
6%
-2%
16%
10%
2%
4%
87 Contr.C 1%
1%
0%
CHAPTER
2
GENERAL ISSUES WITH RESPECT TO THE ACTIVITY OF COURTS OF LAW
While monitoring the court hearings, the monitors assessed the following issues related to the operation of courts of law: infrastructure, automation and way of interaction with litigants.
The monitors appreciated the infrastructure of several courts of law as being in good condition (Cahul Court of Law, Chisinau Court of Appeal) or not satisfactory (courts of law from the Chisinau Municipality, Chisinau Court of Appeal). Most courts of law (mostly those from Chisinau mun.) have insufficient hearing rooms, and the cases are examined in the judges’ offices. This situation has a negative impact on the solemnity of lawsuits.
In the monitors’ opinion, the automation1 of courts of law is implemented partially. Most of the judges use audio registration system in court hearings. On the other hand, the websites of some courts of law do not provide updated information on the hearings, judgments, stage of a case, etc. though the situation was supposed to change with the launching of Portal of National Courts of Law.2Some monitors reported that they found it difficult to find the court hearings that involved DUs in criminal/administrative cases. With regard to the public services, the monitors consider that the citizens’ access to information is not ensured by all the courts of law through information offices located at the entrance to the court building. In addition, monitors specified that the procedure and terms for issuance of case document copies differ from one court of law to another. The monitors’ finding was confirmed by the lawyers who provided legal aid to DUs. Generally, the presence of monitors in court hearings did not influence the behavior of judges. The monitor noted that only in 22 court hearings the behavior of the judges changed, in the other 458 court hearings, as monitors reported, it did not.
The monitors found that in their presence, judges became calmer and were trying to comply in details with the examination procedure of criminal/contravention cases. In an unnatural way, in some situations, the judges invoked the ECtHR case-law. During the lawsuit, both judges and prosecutions representatives were extremity respectful towards the participants in the lawsuit (especially towards DUs) and even were expressing their compassion towards the defendants/offenders. In some situations, due to the monitor’s presence in the court hearing, the judges were obviously nervous, which led even to their failure to follow some procedural elements (such as the identification of the person, failure to invite an interpreter during the lawsuit etc.). A positive aspect would be the audio recording of the absolute majority of the court hearings, because only 4 cases out of 480 monitored court hearings were not audio recorded.
With regards to the participation of DUs in court hearings, monitors tried to assess whether there were suspicions with regards to the court independence, especially regarding the existence of any influence, pressures or threats.
According to the monitoring reports, there were no such suspicious in most of the court hearings. Only in two court hearings examining the same case, the monitor concluded that the judge behaved improperly in relation to the DU. The judge offended, interrupted unjustifiably the DU’s speech. Even if the court hearing was attended by the Promo-LEX Association’s monitor, the judge’s behavior did not change. In both cases, the court hearings were recorded. The monitor declared that in the described instances the DU did not have an efficient criminal defense. In the court hearing the prosecutor also showed a discriminatory attitude towards DU. Finally, the DU was sentenced to the maximum punishment. The media representatives were not present at the monitored lawsuits. The monitors mentioned that generally the problem of drug use was not reflected in any form in local media sources. As a rule, the media representatives publish some press releases of police officers or prosecutor’s office that describe the committed crimes as regards to the drug use or with the participation of drug user in common law offences (other than drug use). We found out that almost half of the monitored cases were examined in the judges’ offices. The small area of the offices (court rooms) affects the solemnity of the lawsuit. In most cases due to lack of available court rooms, the 1 2
According to CEPEJ, automation of courts of law means applying case management programs, audio system for recording court hearings, applying other processes aimed at increasing significantly the efficiency of the lawsuit. http://instante.justice.md/cms/
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hearings were held in judges’ offices in courts of law from the Chisinau municipality. We noticed the same trend in respect to other lawsuits not involving DUs. Thus, when asked whether the hearing took place in the judge’s office, the monitor’s answer was positive in 235 cases - (49%). The monitor’s answer was negative in the other 245 cases (51%). Diagram 4. Did the hearing take place in the judge’s office?
52%
51%
51% 51% 50% 50% 49%
49%
49% 48% 48%
Yes
No
However, when asked whether the size of the room, where the hearing was held, was enough for all the participants in the lawsuit, the monitors’ answer was positive in 425 cases - (89%). The monitor’s answer was negative in 55 cases (11%).
The monitors described situations where the lawyer and/or prosecutor could not arrange their documents, they were not provided with a table, etc... Monitors mentioned that some offices did not have enough chairs for all the participants in the lawsuit, including assistants in the court hearing, that is why some of the participants in the court hearing were standing. Diagram 5. Was the size of the hearing room enough for all participants in the lawsuit?
100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0%
10
89%
11%
Yes
No
CHAPTER
3
ASPECTS RELATED TO COMPLIANCE WITH PRINCIPLES OF THE RIGHT TO A FAIR TRIAL
3.1. Access to an independent and impartial court One of the major problems related to the examination of criminal and administrative cases involving DUs, which were analyzed in prior studies, is the guaranteeing of an unprejudiced and impartial treatment towards the person held liable.
When asked about the impartiality of the court of law, the monitors answer that the respective right was guaranteed in 380 cases - (79%). However, the monitors answered that in 100 cases (21%) they noticed that particular judges tend to manifest their contempt towards DUs.
In most cases DUs were reproached for promoting vices in the society, were given the harshest sentences (the maximum punishment provided by the Article, even though no aggravating circumstances were present or DU not being involved in repeat offences), the punishment was applied selectively on some DUs, even if the same evidence were examined, in some instances, the judges were reminding prosecutors about that in the near future the preventive detention period will expire and they should submit a statement to extend the preventive measure against the DU-defendant. Some of the DUs’ requests were rejected, without being examined, some judges had an obviously aggressive behavior towards DUs. In most cases described above, the judges manifested a discriminatory attitude. Diagram 6. Do you think that the court of law was impartial?
90% 80% 70% 60% 50% 40% 30% 20% 10% 0%
79%
21%
No
Yes
According to the surveys filled in by the DUs, 63 of 355 respondents, accounting for 18%, stated that there were totally dissatisfied with the judge’s impartiality, while 205 DU respondents (58%) reported that they totally satisfied, and 87 respondents (24%) were undecided or partially satisfied. We can underline the high rate of DUs who were totally dissatisfied, compared to the rest of the litigants. Thus, the number of DU litigants who were totally dissatisfied is by 11% higher than the rest of litigants, as well as the number of DUs who were totally satisfied is lower by 4% that in case of the rest of litigants1.
1
See the Quarterly Monitoring Report 6 on the Implementation of the Justice Reform Strategy, for 1 April - 30 June 2014, http://promolex.md/ upload/publications/ro/doc_1407919460.pdf
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Diagram 7. Impartiality of the judge 70%
60% 50% 40% 30% 20% 10% 0%
DU
JRM
-10%
Difference %
UN 6%
12% -6%
PS 18% 19% -1%
TD 18%
TS 58%
7%
62%
11%
-4%
In a very low percentage, the judge had a behavior that indicated that he had already predetermined the guilt of person held liable. Nevertheless, in most court hearing such a conclusion could not be accepted by the monitors. Thus, when asked do you think that the court of law predetermined the guilt or innocence of DUs, the monitors’ answer was negative in 473 (99%) cases and only in 7 (1%) cases their answer was positive. In most cases, the DU had the handcuffs on during the examination of his/her case. Only some lawyers requested the court to take the handcuffs off. The monitors declared that those DUs were treated in a discriminatory way, and judges had a negative attitude towards them. Some DUs declared that they were subjected to pressures from the criminal prosecution body in order to recognize the incriminated acts. Diagram 8. Do you think that the court predetermined the guilt or innocence of the litigants?
120% 100%
99%
80% 60% 40% 20% 0%
1% No
Yes
When asked whether the court of law gave verbal or other types of appreciations about the statements made by DUs, which denoted a negligent or superficial attitude towards their position, the monitors’ answer was negative in 473 (99%) cases and only in 7 (1%) cases their answer was positive. The monitors reported that in some cases the judges were not attentive and did not listen to the parties’ explanations, used cell phones during the court hearings, etc. They also noticed a superficial attitude of judges towards the examination of such category of cases.
12
Diagram 9. Did the court give verbal or other type of appreciations about the statements made by DUs, which denoted a negligent or superficial attitude towards their position?
120%
99%
100%
80% 60% 40% 20%
1%
0%
No
Yes
Politeness and attitude of the judge(s) According to surveys filled in by DUs, when asked about the politeness and attitude of the judge(s), 80 of 355 respondents, accounting for about 23%, mentioned that they were totally dissatisfied with the politeness and attitude of judges, while 177 (50%) DU respondents said that they were totally satisfied, and 27% were undecided and partially satisfied. The number of DU litigants, who were totally dissatisfied is by 23% higher than of other litigants, likewise the number of DUs totally satisfied is by 30% lower than among other litigants. Diagram 10. Politeness and attitude of the judge(s) 100%
80% 60% 40% 20%
0%
-20% DU
JRM
-40%
Difference %
UN 1%
2%
-1%
PS 26%
17% 9%
TD 23% 0%
23%
TS 50%
80%
-30%
Politeness of the criminal investigation officers or prosecutors According to the surveys filled in by DUs, when asked about the politeness of criminal investigation officers or prosecutors, 118 of 355 respondents, accounting for about 33%, stated that they were totally dissatisfied with the politeness of criminal investigation officers or prosecutors, while 57 (16%) DU respondents said that they were totally satisfied, and 51% were undecided or partially satisfied.
13
Diagram 11. Politeness of criminal investigation officers or prosecutors
48%
50% 45% 40%
33%
35% 30% 25% 20%
16%
15% 10%
3%
5% 0%
UN
PS
TD
TS
Professionalism and competence of the judge(s), including the clarity of the language used According to surveys filled in by DUs, when asked about the professionalism and competence of the judge(s), including the clarity of the language used 95 of 355 respondents, accounting for about 27%, mentioned that they were totally dissatisfied with the professionalism and competence of the judge(s), including the clarity of the language used, while 158 (45%) DU respondents said that they were totally satisfied, and 28% were undecided or partially satisfied. We can state the high rate of DUs, who were totally dissatisfied, if compared to the rest of the litigants. Thus, the number of DUs who were totally dissatisfied is by 20% higher than among other litigants, likewise the number of DUs totally satisfied with that is by 20% lower than among other litigants. Diagram 12. Professionalism and competence of the judge(s), including the clarity of the language used
DU
JRM
70% 60% 50% 40% 30% 20% 10% 0% -10% -20% -30%
Difference %
UN 1% 4%
-3%
PS 27% 24% 3%
TD 27% 7%
20%
TS 45%
65%
-20%
Professionalism and competence of the prosecutors and criminal investigation officers According to the surveys filled in by DUs, when asked about the professionalism and competence of the prosecutors and criminal investigation officers, 116 of 355 respondents, accounting for about 33%, mentioned that they were totally dissatisfied with the professionalism and competence of the prosecutors and criminal investigation officers, while 76 (21%) DU respondents said that they were totally satisfied, and 46% were undecided or partially satisfied. We can state the high rate of DUs, who were totally dissatisfied, if compared to the rest of the litigants. Thus, the number of DUs who were totally dissatisfied is by 29% higher than among other litigants, likewise the number of DUs totally satisfied with that is by 2% lower than among other litigants. 14
Diagram 13. Professionalism and competence of the prosecutors and criminal investigation officers 80%
60% 40% 20% 0%
-20% -40% -60% DU
JRM
-80%
Difference %
UN 2%
60%
-58%
PS 44% 13%
31%
TD 33%
TS 21%
4%
23%
29%
-2%
3.2. Contradictoriality of the procedure Monitors reported that in some cases the judges did not explain to DUs the right not to make statements or selfincriminating statements. Generally, we found out situations when the judge did not explain about this right, switching to the explanations of the party held criminally liable and requesting explanations from the DUs.
Thus, when asked whether DUs benefited from the right not to make self-incriminating statements, the monitors’ answer was negative in 17 (4%) cases, while in the majority of cases their answer was positive - 463 (96%). Diagram 14. Did the DU benefit from the right not to make self-incriminating statements?
120%
96%
100% 80% 60% 40% 20% 0%
4% No
Yes
As a continuation of guaranteeing the DU’s right to exercise his/her procedural rights, they were asked whether the time allocated to prepare for the case was sufficient, including time to get familiarized with the case materials. Thus, when asked whether DUs had “sufficient time” to prepare for the case, including time to get familiar with the case materials, monitors’ answer was negative in 6 (2%) cases, while in majority of the cases their answer was positive - 474 (98%). In cases of a negative answer, the DUs’ lawyers requested additional time to get familiar with the case materials. They invoked that they did not exercise their right to termination of the criminal prosecution.
15
Diagram 15. Do you think that DUs benefited from “sufficient time� to prepare for the case, including to get familiar with the case materials?
120%
99%
100% 80% 60% 40% 20%
1%
0%
No
Yes
According to the surveys filled in by DUs, when asked about the access to get familiar with the case materials, 40 of 355 respondents, accounting for about 11%, mentioned that were totally dissatisfied, while 247 (70%) DU respondents said that they were totally satisfied, and 19% were undecided or partially satisfied. We can state the high rate of DUs, who were totally dissatisfied, if compared to the rest of the litigants. Thus, the number of DUs who were totally dissatisfied is by 7% higher than among other litigants, likewise the number of DUs totally satisfied was by 11% lower than among other litigants. Diagram 16. Access to the case materials
DU
JRM
80% 70% 60% 50% 40% 30% 20% 10% 0% -10% -20%
Difference %
UN 1%
11%
-10%
PS 18%
27% -9%
TD 11% 4%
7%
TS 70%
59%
11%
When asked whether you believe that DUs were provided with all relevant information on the case, the monitors’ answer was negative in 29 (7%) cases, while in 451 (93%) cases their answer was positive.
The monitors reported that some DUs did not have access to the case materials. In some situations, DUs declared that their lawyers did not inform them about the essential constituent of the incriminated crime/offence and the adopted defense strategy. In some cases during the court hearings the interpreter interpreted the communications selectively and poorly for DUs.
16
Diagram 17. Do you think that DUs were provided with relevant information on the case?
94%
100% 90% 80% 70% 60% 50% 40% 30% 20% 10%
0%
6% No
Yes
When asked about the possibilities to ensure the participation of the witnesses, including experts-witnesses who are relevant for the case the monitors’ answer was positive in 470 (98%) cases, and only in 10 (2%) cases their answer was negative. The monitors declared that in some cases when DUs submitted requests and statements, the judges did not listen to them, and their requests were not even discussed. In other cases DUs did not exercise this right due to poor legal aid provided by some lawyers. Even if DUs wanted to request certain procedural actions, including hearing of witnesses, their lawyers did not support and guide them in exercising their procedural rights. In one case, although the statement of DU on the hearing of a witness was admitted formally, the requested witness was not heard. Diagram 18. Do you think that DUs had equal possibilities to ensure participation of witnesses, including expert-witnesses relevant for the case?
120%
98%
100% 80% 60% 40% 20% 0%
2% No
Yes
When asked whether DUs were provided with the possibility to participate in the hearing to present their case, the monitors’ answer was negative in 13 (3%) cases, while in 467 (97%) cases their answer was positive. This question comes to detail the court’s compliance with the DUs’ procedural rights. The monitors found out that in the most cases DUs had the possibility to exercise procedural rights foreseen by CCP, according to the provisions of Article 6 of the European Convention on Human Rights.
17
Diagram 19. Do you believe that DUs had the possibility to participate in the hearing to present their case?
120%
97%
100%
80% 60% 40% 20%
3%
0%
No
Yes
According to surveys filled in by the DUs, when asked about the time allocated to prepare for case examination, 80 of 355 respondents, accounting for about 23%, mentioned that they were totally dissatisfied, while 208 (59%) DU respondents said that they were totally satisfied, and 18% were undecided or partially satisfied. We can state the high rate of DUs, who were totally dissatisfied, if compared to the rest of the litigants. Thus, the number of DUs who were totally dissatisfied is by 18% higher than among other litigants, likewise the number of DUs totally satisfied with that is by 3% lower than among other litigants. Diagram 20. Time allocated to prepare for case examination 70% 60%
50% 40% 30% 20% 10% 0%
-10% DU
JRM
-20%
Difference %
UN 1% 5%
-4%
PS 18% 28%
-10%
TD 23% 5%
18%
TS 59%
62% -3%
Generally, defending of DU’s interests by a lawyer is not a problem. Only in 15 (3%) cases the monitors found out that DUs were not represented by a lawyer during the lawsuit, while in 465 (97%) cases, the monitors’ answer was positive. The monitors informed about one case when DU gave up on lawyer services, because he/she did not have money to pay for the respective services. In other cases, DUs gave up on lawyer services for unknown reasons.
18
Diagram 21. Criminal Prosecution Body and Court of Law accepted the rejection of the lawyer
120% 100%
97%
80% 60% 40% 20% 0%
3% No
Yes
Did the DU participate in the lawsuit without having a lawyer representing his/her interests? In most cases at the first court hearing, the DU requested state guaranteed legal aid, because of difficult material circumstances. Thus, the monitors found out that in 109 (23%) cases the DUs requested to be represented by a lawyer, and in 371 (77%) cases the monitors’ answer was negative. In several cases, DUs requested to change the lawyer provided by National Legal Aid Council (NLAC), because they were not satisfied with the provided services. In another case, because of difficult material circumstances, DUs gave up on the contracted lawyer during the court hearing and asked the court to provide state-guaranteed legal aid. Diagram 22. Did the DUs ask to be represented by a lawyer?
90% 80%
77%
70% 60% 50% 40% 30%
23%
20% 10% 0%
No
Yes
As for the quality of legal aid, the monitors (most of them are lawyers) declared that a part of the lawyers did not attend the court hearings involving DUs and provided no justification for that. Most of the lawyers were employers of NLAC.
In the monitors’ view, some lawyers were inefficient and apparently, did not have appropriate knowledge to participate in such types of criminal cases. Lawyers came unprepared and often without the defense file. Their presence in some court hearings was simply perfunctory. In one case regarding the prolongation of the detention period, the lawyer was not present at the court hearing, but the court of law decided to examine the prosecutor’s statement in the lawyer’s absence. The monitors recorded many cases of when lawyer was late to the court hearings. 19
Thus, when asked whether you think that the lawyer acted independently, competently and efficiently, the monitors’ answer was positive in 435 (91%) cases. The monitor’s answer was negative in 45 cases (9%). Diagram 23. Do you think that the lawyer acted independently, competently and efficiently?
100%
91%
90% 80% 70% 60% 50% 40% 30% 20%
9%
10%
0%
No
Yes
According to the surveys filled in by DUs, when asked about the professionalism and competence of the lawyer(s), 16 of 355 respondents, accounting for about 5%, mentioned that they were totally dissatisfied, while 246 (69%) DU respondents said that they were totally satisfied, and 26% were undecided or partially satisfied. We found an equal rate of DUs who were totally dissatisfied as the rest of the litigants. Diagram 24. Professionalism and competence of the lawyer(s) 80%
60% 40% 20% 0%
-20% DU
JRM
-40%
Difference %
UN 8%
37%
-29%
PS 18% 12% 6%
TD 5% 5%
0%
TS 69% 46%
23%
When asked whether the right to an interpreter was ensured, the monitors’ answer was positive in 121 (25%) cases, while in 51 (11%) cases their answer was negative. In 308 (64%) cases the monitors answered that the presence of an interpreter was not needed. In most cases the interpreter’s activity was rather perfunctory. The interpreter was present in the court room, but did not interpret for the DU. In several cases the interpreter was not present even if DU did not speak the official language. The court hearings were conducted in the absence of the interpreter. In some cases even if the interpreter was present throughout the whole process, the judgment was pronounced in his/her absence. In 2 cases judges took the role of the interpreter. In several cases court hearings were postponed on the ground that court of law could not provide an interpreter.
20
Diagram 25. Was the right to the interpreter ensured?
70%
64%
60% 50% 40% 30% 20% 10% 0%
25% 11%
No
Yes
Not applicable
When asked whether you think that defendant/parties fully understood the interpreted questions, the monitors’ answer was negative in 5 (3%) cases. The monitors’ were positive in 167 (97%) cases.
DUs mentioned in 2 cases that the participant in the lawsuit spoke too quickly, and the interpreter did not manage to interpret. In another case, the court of law provided only 2 interpreters, for 9 DUs, who physically did not manage to translate for all the participants. Diagram 26. Do you think that defendant/parties fully understood the interpreted questions?
120%
97%
100%
80% 60% 40% 20% 0%
3% No
Yes
With respect to court costs covered during the process of case examination, 57 of 355 DU respondents, accounting for 16%, mentioned that they were totally dissatisfied, while 217 (61%) respondents said that were totally satisfied, and 23% were undecided or partially satisfied. We can state the higher rate of DUs who were totally dissatisfied compared to the rest of the litigants. Thus, the number of DUs who were totally dissatisfied is by 12% higher than among other litigants, likewise the number of DUs totally satisfied is by 2% higher than among other litigants.
21
Diagram 27. Court costs and other costs related to the access to justice (without the lawyers’ fees) 70% 60%
50% 40% 30% 20% 10% 0%
-10% DU
-20%
JRM
Difference %
UN 3%
11% -8%
PS 20% 27% -7%
TD 16%
TS 61%
4%
59%
12%
2%
3.3. Examination of the case within a reasonable time The monitors reported that in many cases the court hearings were postponed without any ground, under the pretext that interpreter did not attend the hearing. There were monitored cases that were examined for more than 3 years, though apparently those cases were not highly complex. Another reason for delaying this process was the absence of lawyers and prosecutors, who were inconsistent in the administrated evidence. In some cases, DUs were not present at the court hearings, without explaining the reasons for their absence.
In fact, those delays had the worst impact on cases where DUs were placed in detention on remand. In some particular cases even if DUs were placed in detention on remand, the court hearings on the examination of criminal case were scheduled much later, in approximately 2-3 months. The dates reveal a relatively high rate of DUs under arrest. Thus, when asked whether DU were under arrest, the monitors’ answer was negative in 322 (67%) cases, while in 158 (33%) cases their answer was positive.
Most of DUs were placed in detention on remand for 3 to 6 months. Some of DUs were placed in detention on remand for 6 months to 2 years. In some isolated cases some DUs were placed in detention on remand for a period exceeding 3 years. Diagram 28. Is DU under arrest?
80% 70%
67%
60% 50% 40%
33%
30% 20% 10% 0%
No
Yes
Another issue discussed in the report developed by the monitor was dealing with the question whether the case was examined within reasonable time frame and how the length of the process influenced the fate of DU. When asked whether the case was examined within reasonable time frame, the monitors’ answer was negative in 56 (12%) cases, while in 424 (88%) cases their answer was positive.
22
Diagram 29. Is the case examined within reasonable time frame?
100%
88%
90% 80% 70% 60% 50% 40% 30% 20%
12%
10%
0%
No
Yes
According to the surveys filled in by DUs, when asked whether the time frame for case examination was reasonable, 97 of 355 respondents, accounting for about 27%, mentioned that they were totally dissatisfied, while 169 (48%) DU respondents said that they were totally satisfied, and 24% were undecided or partially satisfied. We can state the high rate of DUs who were totally dissatisfied if compared to the rest of the litigants. Thus, the number of DUs who were totally dissatisfied is by 15% higher than among litigants, likewise the number of DUs totally satisfied is by 4% lower than among other litigants. Diagram 30. Reasonable duration of the trial 60%
50% 40% 30% 20% 10% 0%
DU
JRM
-10%
Difference %
UN 4% 8%
-4%
PS 21% 28% -7%
TD 27% 12% 15%
TS 48% 52% -4%
23
3.4 Clarity of the adopted judgments As regards to the question whether the passed judgment was clear for the person held liable, the monitors’ answer was positive in 154 (32%) cases, and only in 4 (1%) cases their answer was negative. In one case, the judgment was not clear due to the failure to provide an interpreter. In another case, lawyer assumed the role of interpreter and interpreted the opera-tive part of the judgment for the DU. In other two cases, DU had several questions related to the grounds presented in the judgment. In the rest 322 (67%) the monitored cases, no judg-ment was pronounced. Diagram 31. Judgments issuance procedure on criminal and contravention cases
80%
67%
70% 60% 50% 40%
32%
30% 20% 10% 0%
1% No
Yes
No judgments were pronounced
According to the surveys filled in by DUs, when asked about the procedure to issue the judgments on criminal and contravention cases, 12 of 355 respondents, accounting for about 3%, mentioned that they were totally dissatisfied, while 48 (14%) DUs respondents said that they were totally satisfied, and 83% were undecided or partially satisfied. Diagram 32. Judgments issuance procedure on criminal and administrative cases 60%
55%
50% 40%
28%
30% 20%
14%
10%
0%
3% UN
PS
TD
TS
According to surveys filled in by the DUs, when asked whether the judgment was clear, 40 of 355 respondents, accounting for about 11%, mentioned that they were totally dissatisfied, while 75 (21%) respondents said that they were totally satisfied, and 67% were undecided or partially satisfied. We can underline the high rate of persons who were totally dissatisfied with if compared to the rest of the litigants. Thus, the number of DUs who were totally dissatisfied is by 6% higher than among other litigants, likewise the number of DUs totally satisfied is by 18% lower than among other litigants.
24
In the surveys filled in by the DUs, a number of respondents mentioned that they do not want their name to be placed on the court’s website, in order to keep their confidentiality and because this would have proven that they were drug users. In spite of the DUs’ requests, representatives of the chancelleries ignored them. Diagram 33. Clarity of the judgment 60% 50%
40% 30% 20% 10%
0%
-10% -20% DU
JRM
-30%
Difference %
UN 52% 48% 4%
PS 15% 8% 7%
TD 11% 5% 6%
TS 21%
39%
-18%
25
CHAPTER
4
ENSURING A NON-DISCRIMINATORY TREATMENT OF DRUG USERS
Another problem revealed by DUs is that courts of law and participants to lawsuit treat them in a discriminatory way. When asked whether the way how court of law, prosecutor or criminal prosecuting officer treated DUs indicates a discriminatory or improper attitude, the monitors’ answer was positive in 55 (11%) cases, while in 425 (89%) cases their answer was negative. In cases of positive answers, monitors reported that DUs were harassed by prosecutors, representatives of criminal prosecution body, escort etc., during both court hearings and in periods before and after hearings. In fewer cases, DUs were subjected to discriminatory treatment by judges during the court hearings in the form of insults and unjustified limiting of the procedural rights. Diagram 34. Is the way how court of law, prosecutor or criminal prosecuting officer treated DUs indicating a discriminatory or improper attitude?
100%
90%
89%
80% 70% 60% 50% 40% 30% 20% 10% 0%
11%
No
Yes
Another assumption that had to be checked was whether the law enforcement bodies used appropriately the terminology when identifying the main elements of the offense/crime. When asked whether the judges, prosecutors, lawyers used appropriate notions to identify the drug use and precursors, other notions that are provided by specific instructions and regulatory acts, the monitors’ answer was positive in 423 (88%) cases, while in 57 (12%) their answer was negative.
The monitors declared that, as a rule, lawyers, prosecutors and some judges used improper notions and terms, for example when identifying DU (sometimes they were named in pejorative ways), as well as when identifying drug use and precursors. “Perception and Treatment of Injecting Drug Users by Police Officers in the Republic of Moldova” Study re-iterated the low police officers’ knowledge of terminology on the identification of drug and precursors.
One of the main findings of the study was that the national legislation is not harmonized in terms of terminology related to injecting drug users - there isn’t a single set of definitions applicable to all laws and regulations.
26
Diagram 35. Did the judges, prosecutors, lawyers use appropriate notions on identification of drug use and precursors, other notions that are provided by specific instructions and regulatory acts?
100%
88%
90% 80% 70% 60% 50% 40% 30% 20%
12%
10%
0%
No
Yes
When asked about the lowest, average, highest sentence set for DUs, the monitors answered that in 100 (63%) cases judges set the lowest sentence, in 38 (24%) - the average sentence and in 20 (13%) cases - the highest sentence. The monitors reported that, as a rule, the judges set the sentences requested by the prosecutor. Diagram 36. The lowest, average, highest sentence imposed for DU’s
70%
63%
60% 50% 40% 30%
24%
20%
13%
10%
0%
The lowest sentence
The average sentence
The highest sentence
27
CONCLUSIONS AND RECOMMENDATIONS The report highlights a number of attitudes that are not unanimously highlighted by DUs, as well as some omissions made by courts of law. We will try to explain below the major differences between the DUs’ perceptions and observations of the monitors who participated in those hearings: • Judges’ bias - this indicator is by 11% higher than among other categories of litigants, who are totally dissatisfied with the impartiality of the judges. This trend is also supported by the observations of monitors involved in the monitoring process. As regards to the impartiality of the court of law, the monitors found that in 79% of cases this right was guaranteed. However, the monitors answered that in 21% of the cases (if compared to 185 cases indicated by DUs) they noticed that particular judges tend to manifest their contempt towards DUs; • Dissatisfaction with the lack of politeness and hostility showed by judge - this indicator is by 23% higher than among categories of litigants, who are totally dissatisfied with the judges’ politeness and attitude. This trend is also partially supported by the observations of monitors involved in the monitoring process; • Monitors indicated that in 5% of the monitored cases the judges changed their behavior, once informed by the monitors about the purpose of their presence in court hearing. In the rest of cases, the behavior of the judge seemed not to be affected by the monitors’ presence; • Dissatisfaction with the lack of politeness on behalf of criminal investigation officers or prosecutors - 33% of the total number of DU respondents, who declared that they were unsatisfied with the politeness showed by the prosecuting officers or prosecutors during the criminal prosecution stage or court hearings. This trend is also partially supported by the observations of monitors involved in the monitoring process. In 11% of the monitored cases, the monitors declared that the way in which prosecutor or police officer treated DUs in the court of law indicates a discriminatory or improper attitude. The lower percentage provided by DUs, compared to monitors, can be explained by the fact that monitors attended only one court hearing. In addition, the monitors were neutral actors during the monitoring process. They had no procedural interest in the lawsuit; • DUs’ dissatisfaction with the professionalism and competence of the judge - this indicator is by 20% higher than among other categories of litigants, who are totally dissatisfied with the judges’ professionalism and competence. This trend is also partially supported by the observations of monitors involved in the monitoring process; • The professionalism and competence of prosecutors and criminal investigation officers - this indicator is by 29% higher than among other categories of litigants, who are totally dissatisfied with the professionalism and competence of the prosecutors and criminal investigation officers. This trend is also partially supported (only in respect to prosecutors, because the monitors did not monitor the activity of criminal investigation officers) by the observations of monitors involved in the monitoring process. • The professionalism and competence of the lawyer - 5% of the total number of DU respondents reported that they were dissatisfied with the lawyer’s professionalism and competence. The undecided and dissatisfied persons account for 26%. Even if only 5% of the respondents declared in the survey that they were dissatisfied with the lawyers’ services, during the discussions with monitors, a great number of respondents reported being dissatisfied with legal services provided by lawyers. As for the professionalism of judges, prosecutors and lawyers, the monitors declared that in 11% of the monitored court hearings, they had the impression that judges were using improper notions and terms, for example in the process of identifying DU/IDU, sometimes they were named as junkies, during both processes identification of drug use and of drug precursors; • The time provided to DUs to prepare and get familiar with the case materials - this indicator is by 7% higher than among other categories of litigants who are totally dissatisfied with the time provided to prepare and get familiar with the case materials; • The court costs and other costs related to access to justice - this indicator is by 12% higher than among other categories of litigants, who are totally dissatisfied with the court costs and other costs related to access to justice (without the lawyers’ fees); • Reasonable duration of the trial - this indicator is by 15% higher than among other categories of litigants, who are totally dissatisfied with the reasonable duration of the trial. This trend is also supported by the observations of monitors involved in the monitoring process. • The clarity of the judgment - this indicator is by 6% higher than among other categories of litigants, who are totally dissatisfied with the clarity of judgment. This trend is also supported by the observations of monitors involved in the monitoring process. 28
In addition, the report highlights some situations when the procedural rights of DUs were limited. Some aspects are general for all the categories of litigants, but there are discriminatory situation focused on the following: • In some situations the names of DUs involved in court hearings were placed on the websites of the courts of law, though DUs disagreed with this and requested to keep it confidential, however courts of law and representatives of chancelleries did not take into account the DUs’ wish; • Court of laws, apparently, have problems with ensuring the right to an interpreter. In criminal cases involving several defendants, the interpretation of the hearing was ensured by only one interpreter, who did not manage to interpret simultaneously for several defendants. In other cases the interpretation was not qualitative. Thus, in 11% of the court hearings where a interpreter was needed, his/her activity was rather perfunctory. As a rule, the interpreter was present in the court room, but did not interpret for DU. In several cases the interpreter was not present even if DU did not speak the official language. Some court hearings were conducted in the absence of an interpreter. In several cases the court hearings were postponed, because court of law could not provide an interpreter; • It seems that in respect to DUs, detention on remand is applied more often, if compared with other categories of litigants. In most cases, this measure was not justified by the prosecutor, in its turn, the court of law does not justify this measure in its court resolution. This conclusion, probably, denotes the existence of some preconceived ideas, according to which drug users must be isolated from the society and therefore custodial preventive measures should be applied. In 158 (33%) monitored cases, the monitors found preventive arrest of the DU used as a preventive measure. Most of DUs were placed in detention on remand for 3 to 6 months. Some of DUs were placed in detention on remand for 6 months to 2 years. In some isolated cases some DUs were placed in detention on remand for a period exceeding 3 years; • The quality of legal aid provided by the lawyers is a problem. Based on the conclusions made by monitors and DUs’ statements, the legal aid in many cases is superficial and perfunctory, as a rule, the quality of legal aid provided in administrative offence/criminal cases with the participation of DUs and lawyers appointed by NLAC was poor. In most monitored criminal cases with the participation of ex-officio lawyers, the monitors found the defendants pleading guilty, examination in simplified procedure and conditional sentencing of the defendant with suspended sentence, depending on the case.
Although to a lower extent than in case of police officers, DUs mentioned that they were subjected to a discriminatory treatment by judges and/or prosecutors. Thus, in 11% of monitored court hearings, the monitors found that judges and prosecutors have apparently had a discriminatory attitude towards DUs. The same thing was declared by DUs. In cases of positive answers, monitors reported that DUs were harassed by prosecutors, representatives of criminal prosecution body, escort etc., during both court hearings and in periods before and after hearings. In fewer cases, DUs were subjected to discriminatory treatment by judges during the court hearings through insults and unjustified limiting of the procedural rights. • The elements of the right to fair trial are violated as a result of an obvious discriminatory treatment of DUs. For example, a concern is that during the monitored court hearings most of the DUs were kept handcuffed throughout the entire session. This reveals, probably, the presence of some preconceived ideas, according to which drug users are dangerous for people around them; • The monitors also found that judges, during the lawsuit, had certain stereotypes, according to which if the defendant used drugs in the past, then this was enough grounds to convict him/her. The court of law pays less attention to the abuses and procedural violations committed at the criminal prosecution stage. The procedural violations committed by the criminal prosecution body at the criminal prosecution stage are not interpreted within the meaning of defense, while the drug use, it seems that, is considered by the court of law to be an aggravating circumstance; • The monitors found that the assurance of witnesses’ presence in the court of law represents an impediment for the fair trial. As a rule, they are brought to the court by police officers, and on the way to court room they are “instructed” how to testify in the court hearing; • The examination of cases within a reasonable time remains apparently a problem in the lawsuits involving DUs. Even if, apparently, the criminal/administrative offence cases related to the crimes on the drug use have an average complexity level or do not present significant difficulties, the respective cases might be investigated for periods exceeding 2 years, whilst the DU, as a rule, is place in detention on remand.
29
RECOMMENDATIONS Based on the monitors’ findings and surveys filled in by the drug users, the following recommendations have been developed for the observance of the right to a fair trial, prevention and combating of discriminatory treatment of drug users:
Policies and legislation
• Harmonize the legal terminology regarding injecting drug users, by approving a single set of definitions applicable for all laws and regulations; • Maintain the proposal to amend the Government Decision No 79 of 23.01.2006 on the Approval of the List of Narcotic, Psychotropic Substances or Plants Containing Such Substances Identified in Trafficking and their Quantities in order to adjust the quantities of narcotic and psychotropic substances and plants containing such substances to the European standards. Fill in on ongoing base the list of the narcotic substances, considering the ongoing diversification of narcotic substances and their analogs.
Institutional level
30
• The Supreme Court of Justice should even the legal practice on the use of detention and individualization of criminal or contravention sanctions, as appropriate, applied to drug users and distributors; differentiate clearly the qualification of actions of each category of persons; ensure the confidentiality of the names of drug users on the courts’ websites; • The National Institute of Justice should plan the ongoing training on the peculiarities of the examination of cases involving drug users, depending on the judge’ needs and improve the training methodology; • The National Legal Aid Council should conduct trainings for the lawyers who provide state guaranteed legal aid on the peculiarities of the examination of criminal/contravention cases involving drug users. The Council should ensure the specialization of some lawyers in the provision state guaranteed legal aid to drug users; • The Union of Lawyers of the Republic of Moldova should include the subjects related to national and international legislation on non-discrimination, crimes related to drug use in the training curricula designed for lawyers and trainee-lawyers and organize periodically trainings for lawyers and trainee-lawyers on the above mentioned subjects; • Judges should substantiate any postponement of hearings for long periods of time, which involved persons placed in detention on remand; • Specialized civil society organizations should inform their beneficiaries (DU) about their rights and obligations in the criminal prosecution process and contravention/criminal trial.