As an accused in a criminal trial, you have the right to a defence lawyer during all stages of criminal proceedings and the trial in court. In some situations, the State has an obligation to grant you a lawyer, free of charge.
Right to a lawyer
You have the right to hire a defence lawyer from the moment a criminal process has been initiated against you. This means that you may already choose a lawyer in the pre-trial stage of your case, that is, before the trial has started.
Your lawyer has a right to be present at different occasions during the pre-trial stage when you are involved in separate procedural activities. For example, your first interrogation as a suspect, during your detention review with the investigative judge or any other investigative action in which you are involved. If you do not yet have a lawyer at the time of these activities, or if your lawyer is unavailable, a special lawyer must be invited for that single occasion.
Your right to a defence lawyer continues at all stages of the proceedings (during the entire time you have the status of a detainee, a suspect, a criminally charged or an accused). In Moldova, only attorneys at law can defend you at criminal proceedings.
State-paid lawyer
The state has an obligation to grant you a lawyer, free of charge, only:
- if it is in the interests of justice
- if you cannot afford to pay for legal aid yourself
In such cases, human rights demand that you should be given a free lawyer to ensure that you are not put in a worse situation than the prosecution and so that your participation in the trial is effective. Otherwise, this may result in a violation of your right to a fair trial.
example You will be entitled to a lawyer if your case is so complex that without the help of a lawyer you cannot meaningfully participate in the trial and understand what is happening in your case.
According to Moldovan law, if you cannot afford a lawyer, the state has a duty to provide you with a defence lawyer. Taking into account your financial situation the state can fully or partially pay the lawyer’s fee. There is however a list of cases where Moldovan law provides for free legal aid notwithstanding your income and possibility to pay for a lawyer, in particular cases where the presence of a defence lawyer is mandatory (see below).
If a lawyer hasn’t been assigned to you and you genuinely cannot afford to hire one, you should ask the court to assign you a state paid lawyer. Even if you receive a refusal, you will be able to complain about a potential violation of your rights later in other national or international human rights institutions.
Effective defence
Defence lawyers must be able to provide legal assistance and defend you effectively. This means that you have to be given an opportunity to meet your lawyer in private and to call or write to them without surveillance.
If your lawyer is not fulfilling their duties properly, the court will not be responsible for such failure. In that case you have the right to change your lawyer or request a new one where the lawyer has been assigned by the state.
Right to choose or change a lawyer
Generally, you can freely choose your own lawyer and pay for their services yourself. But, neither do you lose your right to choose a lawyer if legal aid is granted to you by the state. This means that if you cannot work with the lawyer assigned to defend you for some reason, you have a right to request a different one from the State.
Right to refuse a lawyer
You also have the right not to use a lawyer. However, there are some cases where the presence of a defence lawyer is mandatory. For example, in:
- cases against a minor
- cases when the accused does not speak the language of the proceedings
- proceedings concerning a serious, particularly serious or exceptionally serious offence
- proceedings regarding the rehabilitation of a deceased person
- cases where the accused is suffering from a mental or physical health impairment that prevents the full use of their procedural rights
The presence of a defence lawyer at your trial does not mean that you can be denied the opportunity to be present in the courtroom.