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CNAA / Theses / 2009 / June /

Ensuring the right of persons during criminal evidence

Author: Dolea Igor
Degree:doctor habilitat of law
Speciality: 12.00.08 - Criminal Law (with specification: Criminal Law, Criminology, Criminal Procedure Law, Criminalistics, Judicial Expertise, Executional Law; Theory of The Operative - Investigation Activity)
Scientific council:


The thesis was presented on the 19 June, 2009
Approved by NCAA on the 1 October, 2009


Adobe PDF document0.35 Mb / in romanian


human rights, person, proportionality, civil society, judiciary precedent, probation, evidence assessment, presumption, the accused, criminal accusation, equality of arms, lawyer investigation, right to silence, victim of an offense, availability, authority, private accusation, subsidiary accusation, previous complaint, restorative justice, anonymous witness, witness’s lawyer, immunities and privileges, witness protection


This work is dedicated to the concept of the reform of criminal probation from the perspective of the promotion of private elements, an issue currently faced by the Republic of Moldova in the view of its aspirations to the European Union. The issue of respect for human rights within probation has not been sufficiently examined in the national legal doctrine or the foreign one.

The methodological basis of the work is the fundamental achievements of the philosophy and law as regards the respect for human rights during a criminal trial. The empirical basis of the work is the sociological research, carried out by the author among subjects to the trial (judges, prosecutors, lawyers, the accused). A special emphasis is laid on the analysis of the national jurisprudence and that of the European Court of Human Rights.

This work brings forward the argumentation that when developing legal norms which regulate the probation, moral norms should be stressed, while human dignity should be the cornerstone of this activity.

Starting from the fact that a human being is currently acquiring the status of a subject of international law, the national criminal justice must take over the principles and mechanisms that are effective in ensuring human rights. The need to recognize the principle of proportionality in the procedural activity, use of judicial precedent, development of the role of non-professional element and civil society in criminal justice is argued.

The work addresses issues concerning the intimate conviction, the institution of the “fruit of a poisonous tree”, procedural presumptions, especially of the ne bis in idem principle.

The promotion of the rights of the accused within the framework of the probation is directly proportionate to the development of the activism of parties to the probation and first of all of the lawyer investigation institution as regards the right to silence of the accused person.

A separate area of this work is the approach to conceptual aspects of ensuring the rights of the victim of the offense within the framework of the probation. It is argued that the victim is a subject with full rights, independent from the position of other subjects of the probation. At the same time, for ensuring the victim’s rights, new procedural institutions that would fit into the above mentioned would be required. This aspect addresses the perspective of the recognition of the principle of availability next to authority, as well as the implementation of private and subsidiary accusation for certain categories of offenses. A separate emphasis is laid on the reconciliation institution and restorative justice and their impact on the criminal probation. Procedural aspects of ensuring the witness’s rights in a criminal probation are analyzed.

Starting from the need to ensure proportionality between the rights of the accused to hear witnesses on the one hand and the rights of a witness on the other, the institutions of the witness’s lawyer, witness privileges and immunities and its protection are analyzed in this work.

Lege ferende proposals, that could contribute to the democratization of the criminal justice in general and to ensuring the rights of the person involved in a criminal probation in particular, are made in this work.