Defence rights and challenges in conducting independent investigations in criminal proceedings

Abstract

The independent investigation by the defence lawyer is an essential tool for the effective exercise of the right to defence in criminal proceedings, as reinforced by Article 100(2) of the Criminal Procedure Code of the Republic of Moldova. This gives the defence lawyer the right to request and present relevant objects, documents and information, to hold conversations with individuals and to seek expert opinions, all of which are essential for the
effective exercise of the right to defence. This gives the defence lawyer the right to request and present relevant objects, documents, and information; to hold conversations with individuals; and to seek expert opinions, all in the interests of the client, and to substantiate the defence evidence. Doctrinal and practical analysis shows that although these rights are recognised by law, they lack clear mechanisms for their guarantee or enforcement, thereby limiting their practical effectiveness. In this context, the independent investigation by the defence lawyer is a complementary means of evidence management, allowing for the verification of the validity of expert reports, the collection of additional evidence and the support of observations in counter-expert reports, without replacing the powers of the criminal investigation authorities or the court. From this perspective, a detailed examination of how the rules of the Code of Criminal Procedure and the Law on Advocacy interact is necessary to identify potential limitations and contradictions that may affect the effective realisation of the right to defence and the guarantee of the principle of equality of arms in criminal proceedings.