Rehabilitation institution in the legislation of the Republic of Moldova

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Rehabilitation institution in the legislation of the Republic of Moldova

Veaceslav Ursu, PhD of Law, univ. prof,

chief commissioner, Dean of Faculty of Law,

Public Order and Civil security of the Academy «Stefan cel Mare»

The purpose of the article is to analyze the norms of the Criminal Procedure Code of the Republic of Moldova, which regulate the establishment and operation of rehabilitation institutions for persons who are suspected, accused or convicted of criminal offenses. Method. The research methodology is based on the principles of systematicity and objectivity. The content of the studied problem led to the use of a range of general scientific, philosophical and special legal methods. Results. The definition of rehabilitation is given. The ways of its application in accordance with the norms of the current legislation are established, the criminal procedure law does not contain exact provisions that would regulate a concrete procedure for the rehabilitation separate persons. It is established that by its legal nature rehabilitation is a form of state responsibility to the citizen. This interpretation is based on the idea of the content of legal-criminal relations between the state and the person, according to which the person (as the subject of this report) is not only obliged to comply with criminal prohibitions, but also has the right to ask the state to respect its repressive power. It is argued that the state not only has the right to punish a person for violating legal / criminal prohibitions, but is also obliged to respect the limits of its repressive power. Scientific novelty. It is established that given the need to ensure and protect the rights and freedoms of the individual is a top priority in the development of the rule of law, it is important to address issues related to rehabilitation of persons in contact with the law, namely: define rehabilitation bodies of the Register of Judicial and Criminal Information of the Republic of Moldova (there are cases when the information in the register is not true and citizens are forced to personally collect information in courts, prosecutors, etc.), on the grounds that rehabilitation / disappearance of criminal history cancels all incapacities and decadence of rights related to criminal history, and is a state duty to citizens. Practical significance. The results of the study can be used in further research and improvement of criminal procedure legislation.

Key words: rehabilitation, legal rehabilitation, judicial rehabilitation, criminal record, removal from criminal prosecution, criminal prosecution dismissal.

Introduction

Formulation of the problem. The criminal legislation in force in the Republic of Moldova serves as a basis to observe the institution of rehabilitation as a legal phenomenon.

At the same time, the process of applying legal provisions in the above issue and their detailed analysis show that it is time to determine the legal essence of the rehabilitation institution, its branch membership, i.e. it is necessary to clarify theoretically a number of basic legal questions, on which will depend not only the development of the legal doctrine but also the development and improvement of the legislation on rehabilitation, as well as its application, including solving issues related to the procedural aspects and partially reflected in the judicial- penal legislation of the Republic of Moldova.

Analysis of basic research and publications. The methodological basis of our study was the work Barbaneagra A., Boroi A., Gorunescu M., Popescu M. and others.

Setting objectives. The purpose of the article is to analyze the norms of the Criminal Procedure Code of the Republic of Moldova, which regulate the establishment and operation of rehabilitation institutions for persons who are suspected, accused or convicted of criminal offenses.

Presentation of the main material of the study

criminal procedural rehabilitation

According to the Romanian dictionary DEX «rehabilitation» is «the act or process of rehabilitating and its results; legal act whereby a person restores his former rights (following a conviction); to restore his rights to which he was deprived; to reestablish esteem for».

The Criminal Law Dictionary defines «rehabilitation» as «the general cause to dismiss the legal consequences (revocations, prohibitions, incapacities) stemming from a conviction and giving the opportunity to former convicts to legally integrate in the society» [6, p. 340].

The author of the commentary on the Criminal Code of the Republic of Moldova defines similarly the notion of «rehabilitation», which by «rehabilitation of a former convict» means his complete social integration decided by a judicial body of removing all the future incapacities and prohibitions and generally restoring him, morally and socially, to the situation he had before being convicted or released from criminal liability» [7, р. 232].

According to the paragraph 2 of article 112 CC [2] of the Republic of Moldova rehabilitation cancels all restrictions and deprivations of rights associated with criminal history. And in accordance with article 110 CC of the Republic of Moldova, a criminal record is the legal state of a person that appears at the moment when a conviction sentence becomes final, generating unfavorable legal consequences for the convicted person until the termination of criminal history or the rehabilitation of the person.

Rehabilitation can therefore be legal and judicial. Legal rehabilitation - rehabilitation that operates automatically, ope legis, or extinction of the criminal record, by law, when the conditions provided by it are met (art. 111 CC of the Republic of Moldova). According to para. (3) art.111 of the Criminal Code of the Republic of Moldova, the extinction of the criminal antecedents cancels all incapacities and dispositions of rights related to them, a provision similar to the one stated in para. 112 CC of the Republic of Moldova invoked by us in the previous text.

Judicial rehabilitation - is the rehabilitation given by the court at the request of the interested party, in cases where the legal rehabilitation does not work. And in this case, the criminal law provides a series of conditions that must be met by the rehabilitation applicant.

By analyzing the provisions of the criminal law of the Republic of Moldova (article 110-112 Criminal Code of the Republic of Moldova), dedicated to the institution of rehabilitation, we conclude that it concerns only persons who have committed offenses covered by the CC of the RM, who have been recognized guilty of the crimes charged, have been held liable for criminal charges, and subsequently they were subjected to a criminal penalty, by a final judgment, and in the case of judicial rehabilitation - which served the sentence imposed (art. 64, 66 CPC of RM).

However, starting from the essence and content of the term «rehabilitation», the list of subjects that would benefit from this right can be completed.

Here we refer to other participants in the criminal trial who in one or other of the cases have come into contact with the law enforcement bodies (for example: innocent people who have been knowingly held liable for criminal offenses (article 306), have been apprehended or arrested illegally (article 308 CC of RM), persons who suffered of false denunciation (article 311), false statements, false conclusions, etc. (article 312),, disclosure of data on security measures applied to participants in criminal proceedings, to actions which caused serious consequences (articles 315, 316 CC of RM) and so on.

In this context, it is also necessary to mention RM Law No 1225 - XII of 08.12.1992 on the rehabilitation of victims of political repression [4]. The aim of this law is to reintegrate into the political, social, civil and property rights the victims of political repression.

The Code of Criminal Procedure of the Republic of Moldova [3] contains a series of provisions concerning the legal institution that we submit to the analysis in this communication. Thus, art. 64 CPC paragraph (2) p.23 - the suspect has the right to be rehabilitated in case the suspicion has not been confirmed, art. 66 CPC paragraph 3 - if the accusation has not been confirmed, the defendant has the right to rehabilitation.

Article 284, para.(1) CPC of RM provides that the removal of the person from criminal prosecution is the act of rehabilitation and the completion of any criminal prosecution in relation to the person previously charged, para, (2) provides that the removal of the person from criminal proceedings shall take place when he is suspected or accused and it is found that:

1) the offence was not committed by the suspect or accused;

2) there are any of the circumstances set out in articles 275, para. (1) to (3), including whether the deed is an offense;

3) there is at least one of the cases provided in art. 35 CC of RM.

According to the provisions of para. (3), article 284 CPC of the RM, the prosecutor who operates this act is the one who has the competence to remove the person from prosecution, either on the proposal of the prosecution body or ex officio. At the end of the penal prosecution, according to article 291 CPC of the RM, the prosecutor orders by a reasoned resolution the termination of the criminal prosecution, the classification of the criminal case or the removal of the person from prosecution, in the latter case the rehabilitation of the person is carried out.

At the same time, the suspected or accused under the article 313 CC of the RM has the right to appeal to the investigating judge the ordinance on the removal of the person from penal prosecution within 10 days.

Article 320, para. (5) CC of RM stipulates that if, in the trial of the case, the whole of the evidence investigated by the court does not confirm the accusation against the defendant, the prosecutor is obliged to dismiss partially or all of the accusation.

This will be done by means of a reasoned court sentence of acquittal or of ending the criminal trial. The procedural documents on the case will be the basis for the rehabilitation of the person (art. 390, 391 CC of the RM).

According to art. 332 CPC of the Republic of Moldova, the criminal proceedings may be terminated in the court hearing, stating the grounds provided in art. 275 p. 5) - 9), 285 para. (1) p. 1), 2), 4), 5), as well as in the cases provided in art. 53-60 CC of the RM.

The rehabilitation of the defendant is also possible by ordinary means such as appeal and recourse.

And in accordance with the provisions of article 469 CCP of RM, the courts deal with several issues, including judicial rehabilitation (art. 469, para. (1), p.5) CPC). The issues concerning judicial rehabilitation shall be settled by the local court from the residence of the person seeking rehabilitation (art. 470, para. (2) CPC of RM), by the judges of common law (art. 471, para. (1) CCP of the RM). The reason for this will be the request of the convict (article 112, para. (1) CC of the RM, article 471, para. (2) CPC of the RM).

We easily notice that the beneficiaries of rehabilitation can be not only convicted by a final sentence but also other participants in the criminal trial. As previously mentioned, the criminal procedure law does not contain exact provisions that would regulate a concrete procedure for the rehabilitation of the mentioned persons.

Therefore, the following may be listed as features of the rehabilitation institution:

a) cancellation of all incapacities and deprivation of rights, as adverse legal consequences related to the person's conviction or criminal liability;

b) recovery of the person's former status and reputation.

Regardless of the type or form of rehabilitation, the institution in question is of a legal- criminal nature because it results from the content of the legal-criminal report.

According to its legal nature, rehabilitation is a form of state responsibility to the citizen. This interpretation is based on the idea of the content of the legal-criminal relationship between the state and the individual, according to which the individual (as the subject of this report) is not only obliged to respect criminal prohibitions, but also has the right to ask the state to respect the limits of its repressive power.

In accordance with this, the state not only has the right to punish the person for breaking legal/criminal bans, but also has the obligation to respect the limits of his repressive power. The obligation in question is specifically followed by means of rehabilitation. In this context, we would even propose to include in the text of the Constitution of the Republic of Moldova [1] provisions on rehabilitation as a form of state responsibility for the citizen who has been convicted and subjected to repression.

And the concept of rehabilitation in the forms it takes would be included in the text of the Criminal Code of the Republic of Moldova.

By analyzing the provisions of criminal and procedural-criminal law relating to the institution of rehabilitation, both of the law and the judicial one, we can identify a number of problems, the solution of which it seems to us current and timely. In particular, the issue concerning the notion and content of criminal history has not been resolved so far.

The Criminal Code of the RM defines the concept of criminal history in article 110, which states that the criminal history represents the legal status of the person, which causes adverse legal consequences for the convict. It seems to us that the criminal history is a consequence of the conviction, and its content would consist of the decadence from rights, limitations and incapacities imposed on the convict.

Another problem that would need to be addressed would be the role and location of the adverse legal consequences of criminal history. The criminal law indicates in the article 34 CC of the RM that recidivism is considered the intentional commission of one or more crimes by a person with a criminal record for an intentional crime.

At the same time, criminal history produces legal effects in the case of criminal punishment. For example, the article 82 CC of the RM establishes the rules for the application of the punishment for recidivism, and according to article 77, para. (1), let. a), the commission of the crime by a person previously convicted of crimes constitutes an aggravating circumstance which is taken into account in the process of individualization of the penalty (article 75 CC of the RM).

A series of articles of the special part of the CC of the RM provide as an aggravating circumstance the commission of the crime charged by a person who has previously committed a similar crime (e.g. article 145, para. (2), let. o) CC of the RM).

Nor is there any answer to the question of the theoretical and practical reasoning for the provisions of article 111, par. (1) of CC of the RM, which considers that the persons mentioned in let. a), b), c), d) have no criminal record.

These, as well as other issues related to the institution of criminal history, have a negative impact on judicial practice, which may lead to violations of criminal law. Errors committed in judicial practice are connected to the application of the provisions relating to the institution of the criminal history. Among the most common ones can be invoked, for example, the record (recognition) of the criminal history extinguished or removed in case of recidivism, the application of the sentence for recidivism, the miscalculation of the time limits for invalidation of criminal history, etc.

The legal framework regarding this domain, defines amply the notion of «criminal history records» and «criminal records certificate». Thus, criminal history records means the official document, registering the entries recorded in the Register of Forensic and Criminal information, regarding the extinction of the criminal record and/or the prosecution of the person, but the criminal records certificate is an official document registering the entries recorded in the Register of Forensic and Criminal information regarding criminal prosecution and the results of the examination of criminal cases, information on a person's extinguished and unkept criminal history, as well as information on the persons' search announcement.

In the process of the examination and decision adoption to issue the listed acts, are taken into account the data about the person held by the relevant organs both in the territory of the Republic of Moldova and in other states. The information about the persons requesting the issue of criminal records certificate and criminal history records is contained in the Register of Forensic and Criminal information of the Republic of Moldova.

Criminal history as an institution of criminal law is of great importance to the practice of law enforcement. In particular, their presence or absence shall be taken into account in:

(A) individualization of the penalty (article 75, par. 1 CC of the RM);

(B) commiting a criminal offense by a person who has previously been convicted of a criminal offense is recognized as an aggravating circumstance when determining the penalty (paragraph 1, letter a), article 77 CC of the RM, article 78 CC of the RM).

(C) application of penalty (article 79 paragraph 4 CC of the RM) - the provisions of paragraph 1 shall not apply to persons in case of recidivism; article 81, article 82 CC of the RM;

(D) the release from criminal penalties (article 90, para. (4) CC of the RM), in the event of recidivism, conditionally suspended sentence does not apply.

At the same time, paragraph (8) of article 90 Criminal Code of the Republic of Moldova provides that if after the expiry of at least half of the probation period or, where appropriate, the trial period, the convict with a conditionally suspended sentence had a fair and exemplary behaviorb and fully repaired the damage, the court, at the request of the probation service, may declare conviction annulment and criminal history extinction.

The plenum of the SCJ in its decision no. 8 of 11.11.2013 [5] mentions that recidivism generates an increased degree of criminal liability and punishment, namely:

- in case of recidivism of crimes during the execution of the sentence for the previously committed crime, special rules apply to establish the penalty for cumulation of sentences (art.85 CC);

- in case of recidivism, the person cannot be released from criminal liability (art. 55, 57, 58, 59 CC).

The determination of the extent of the penalty depending on danger degree of recidivism (para. (2) and (3) of article 34 Criminal Code) obliges the courts to determine the type of recidivism, with the wording of relative conclusions in the descriptive part of the sentence (article 394 para. (1) point 6) CPC). In the correct resolution of the issue of the determination of the penalty in case of recidivism (article 82 CC), the courts shall investigate the circumstances confirming the existence of the recidivism, taking into account the criminal history that has not been extinguished or canceled for the intentionally committed crimes. In this case, the rules on the extinction of criminal history and rehabilitation, provided in articles 111 and 112 CC, must be applied.

In accordance with Article 34, para (5) of the Criminal Code, the establishment of recidivism shall not take into account the criminal history of: (a) juvenile crimes; (b) reckless crimes; (c) extinguished or in case of rehabilitation in accordance with articles 111 and 112 CC.

According to article 296, para. (2) CPC, the contents of the indictment necessarily include, inter alia, circumstances which mitigate or aggravate the liability of the accused and data relating to the accused person, including the presence of criminal records. The prosecutor participating in the trial of the criminal case, with the obligation to maintain an active role in supporting the charge throughout the criminal trial, must take effective measures to verify the data on the defendant's person (presentation of copies of sentences, if necessary, by which the defendant was previously convicted, etc.).

When establishing the identity of the defendant in the preparatory part of the trial session (art. 358 CPC), the court concretizes the defendant's criminal history. The verification of aggravating circumstances held by the defendant by the indictment is carried out during the examination of the case, regardless of the prosecutor position.

Conclusions

Once the enforcement and protection of the rights and freedoms of the individual is the basic priority in a state of law, it is essential to resolve the issues related to the rehabilitation of persons in contact with the law, namely: to define the notion of rehabilitation, to establish a clear mechanism for the competent authorities to supplement the Register of Forensic and Criminal information of the Republic of Moldova (there are cases where the information in the register is not true and citizens have to collect personally the information from courts, prosecution bodies, etc.), on the grounds that the rehabilitation/extinction of criminal history cancels all incapacities and decadences from rights related to the criminal history, and constitutes a state obligation vis-a-vis citizens.

References

1. Constitution of the Republic of Moldova (1994, July 29). Official Monitor of the Republic of Moldova N0.1 from 08.12.1994.

2. Criminal Code of the Republic of Moldova (2002, April 18). Republished: Official Monitor of the Republic of Moldova, N0.72-74/195 from 14.04.2009.

3. Criminal Procedure Code of the Republic of Moldova (2003, March 14). Official Monitor of the Republic of Moldova. N0.104-110/447 from 07.06.2003.

4. Law of the Republic of Moldova No. 1225 - XII from 08.12.1992 on the rehabilitation of victims of political repression.

5. Decision of the plenum of the Supreme Court of Justice no. 8 (2013, November 11.).

6. Boroi, A., Gorunescu, M., Popescu, M. (2004). Criminal Law Dictionary / ed. All Beck Bucharest.

7. Barbaneagra, A. (2009). Criminal Code of the Republic of Moldova. Comment, Chisinau.

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