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Performing Legal Research: the Moldovan Experience
Published May 2005
by Mariana Harjevschi and Svetlana Andritchi
Mariana Harjevschi is the director of the Public Law Library in Chisinau, a branch of the Municipal Library "B.P.Hasdeu". She holds a Master's in Library Science and Information Assistance and a Master's in Journalism from Moldova State University. She is also an assistant lecturer at the Faculty of Library and Information Assistance and a trainer at the Training Centre - Librarianship School of Moldova. She attended training courses for law librarians granted by Constitutional Legal Policy in 1999 and 2002 (Budapest, Hungary) and 2000 (Moscow, Russia). Currently she is enrolled at the Law School, State Moldova State University.
Svetlana Andritchi is the Chief of the Digital Information Department of the Public Law Library in Chisinau. She holds a Master's in Library Science and Information Assistance from Moldova State University, and attended "Training the Law Librarian" courses in 2002 (Latvia, Riga).
Please note that all links to legislation present the original text, no updates are included.
Update to an article previously published on LLRX.com on August 15, 2002
<http://www.llrx.com/features/moldova.htm>
Table of Contents
The Framework of the Moldovan Legal System
The Historical Incursions to Moldovan Legal System
Moldovan Constitution and Legal Authorities
Features of the Moldovan Legal Information System
Access to Legal Information Electronically
In presenting a background of a legal system, evidently it’s considered more pertinent and rational to attempt to introduce its main attributes and peculiarities using a multifaceted examination. Therefore, the purpose of the present article is to provide information that can efficiently aid in legal research concerning the Moldovan legal system. The following issues are included in a descriptive way: the structure of the state; division of authorities; and classification of law sources and legal education. Also, it selectively focuses on legal information systems, but with no pretension of being exhaustive.
Historically, the Moldovan legal system has been categorized as a legal system in the civil law family. Geographic reasons also lead one to note that Moldova’s legal system should fall within the civil law family, mixed with Germanic features. However, during Soviet times the Moldovan legal system was adjusted to the Soviet Union’s legal norms, representing an overlap of the Soviet and Continental legal systems. Beginning in 1990, the legal system was reformed in order to harmonize it according to national historical traditions and European legal models.
On July 28, 1994, the Moldovan Parliament approved a new constitution, declaring Moldova a Republic as well as declaring its enduring neutrality. The new document transformed Moldova into an independent, democratic state. Moreover, during 2003 the new Moldovan Civil Code, Penal Code, Civil Procedural Code and Penal Procedural Code were adopted, and those from Soviet times being abrogated. Accordingly, the entire legal institutional system underwent changes.
Currently, the judicial system is divided into three branches: ordinary Courts, Courts of Appeal and the Supreme Court. Accordingly, the petition process is carried out through the Court of Appeal and the Supreme Court of Justice. In previous years, the Supreme Court of Justice could selectively examine judicial cases passing a complex procedure, but nowadays all petitioners can apply to the highest level. This move tremendously changed and expanded petitioner’s rights.
The Constitution of the Republic of Moldova officially represents the supreme law for the system of Moldovan legislation. No laws, other legal acts or regulations in contradiction with the provisions of the Constitution may have any legal power. Such a legal hierarchy assumes the subordination of normative acts of a lower level to normative acts of a higher level and, ultimately, to the Constitution as the normative act of the highest legal power. All modifications have to pass a prolonged and specifically defined legislative process, its supremacy being guaranteed by the Constitutional Court.
The Constitutional Court is the sole and highest authority of constitutional judicature in Moldova. It is the unique constitutional judicial body, independent from the executive, legislature and judiciary branches; it decides constitutional cases and deals exclusively with constitutional issues of the law. It consists of six judges nominated for six-year terms. Two judges are appointed by Parliament, two by the Government and two by the Magistrate Council.
The President of Moldova is an impartial power with basic supervisory and guaranteed functions. The President is elected by Parliament for a four year term and is eligible for re-election. He has numerous functions involving both legislative and executive powers. In connection with the legislative branch of government, his powers include the promulgation of legislative acts and regulations, and suspension of the promulgation of legislation by requesting its re-examination. In terms of executive functions, powers include the nomination of the Prime Minister. Further roles include the power to conduct negotiations and conclude international treaties on behalf of the Republic of Moldova, accrediting official representatives of Moldova in other countries, and decreeing diplomatic missions abroad.
The president is elected by three fifths of the votes of selected deputies from the Parliament. If any of candidates proposed do not obtain necessary quantity of votes, a second round of voting takes place between the two nominees with the highest percentages.
The Legislative Power
According to the Constitution, which was adopted on 29th of July 1994, the Parliament is the supreme representative organ and the single legislative authority of the state.
The Moldovan Parliament is a unicameral assembly, considered the supreme representative authority of the people and the sole legislative body of the state. It consists of 101 members elected by universal suffrage for a four-year term, who hold the permanent professional activity. Parliament may also meet in extraordinary or special meetings at the specific request of the President of the Republic of Moldova, of the President of Parliament or of a third of the members.
Parliamentary leadership consists of a chair and two deputy chairs elected by the delegates. The work of Parliament is carried out by fifteen permanent committees, which have purview in the following areas: agriculture and rural social development, crime prevention, culture and religion, ecology, the economy and the budget, foreign affairs, health and social assistance, human rights and relations among nationalities, law, legislative ethics, local administration and the local economy, public relations and the mass media, science and education, state security and military affairs, and women and family issues.
The structure, organization and functioning of the Parliament are set out by its Internal Rules. The Moldavian Parliament consists of a standing bureau, parliamentary fractions and commissions sharing the following powers: to pass laws, decisions and motions; to declare the holding of referendums; to provide legislative interpretations and ensure the legislative unity of regulations throughout the country; to approve the main directions of the state’s internal and external policy; to approve the state’s military doctrine; to exercise parliamentary control over executive power in the ways and within the limits provided for by the Constitution; to ratify, denounce, suspend and abrogate the action of the international treaties concluded by the Republic of Moldova; to approve and control the national budget; to supervise and control the allocation of State loans, the aid of an economic or other nature granted to foreign countries, the conclusion of agreements concerning State loans or credits obtained from foreign sources; to elect and nominate State officials as foreseen by law; to approve the orders, medals and awards of the Republic of Moldova; to declare partial or general mobilization of the armed forces; to declare the state of national emergency, martial law, and war; to initiate investigations and hearings concerning any matters touching upon the interests of society and to suspend the activity of local institutions of public administration under the law.
The executive branch
The Government is the highest authority of executive branch. The role of the Government is to carry out the domestic and foreign policy of the State and to apply general control over the work of public administration. The Government structure consists of a Prime Minister, a first vice-prime-minister, vice-prime-ministers of ministries and other members as determined by organic law. The president after consultations of parliamentary factions names a nominee for the post of prime minister. The candidate for the post of prime minister in 15-days time asks Parliament to express a vote of confidence to the program of activity and all structure of the Government. The President of Moldova, on the basis of a vote of confidence expressed by Parliament appoints the Government. Within three days from the date of purpose of the Government the prime minister, its assistants, each of ministers and other members of the Government take before the President of Republic Moldova the oath of office, the text of which is stipulated by the Constitution.
Ministries constitute the state’s specialized agencies: Minister of Agriculture and Processing Industry; Minister of Economy; Minister of Finance; Minister of Industry; Minister of Transport and Communication; Minister of Ecology, Construction and Territorial Development; Minister of Education; Minister of Health; Minister of Labor and Social Protection; Minister of Culture; Minister of Justice; Minister of Foreign Affairs; Minister of Internal Affairs and Minister of Defense.
The judicial branch
The judicial authority in Moldova is exercised through the court system, regulated by the Constitution and specific laws. According to the new legislation on the judicial system, justice is carried out by the following judicial institutions: the Supreme Court, Court of Appeal and ordinary courts. For separate categories of actions of proceeding, specialized courts (economic, military, etc.) can operate according to the law.
The Supreme Court of Justice is the highest court of law, and ensures the correct and unitary implementation of laws by all courts of law in Moldova. The organization and functioning of the Supreme Court of Justice is regulated by a special Law on the Supreme Court of Justice.
The official periodical published by the Supreme Court is “The Supreme Court Bulletin” (Buletinul Curtii Supreme), which appears on a monthly basis.
The Court of Appeal is the supreme instance concerning ordinary ways of appeal. Its influences extend to civil and criminal issues. The Court of Appeal considers the appeals against the decisions pronounced in first instance, as well as in other cases provided by law.
The courts operate in the sectors established by Parliament under the offer of the Highest Magistrates Council. Extra courts may be established in some cities, villages (communes), on a case by case basis. The ordinary courts consider all cases and requests, with the exception of those that are, in accordance with the law, under the jurisdiction of other courts of law.
The judges sitting in the courts of law are appointed by the President following a proposal submitted by the Higher Magistrates Council.
The military court is part of the specialized judiciary courts that administer justice, according to the law, within the military forces.
The military courts administer justice for the protection of any kind of assault on state security, the capacity to fight and defense of the military forces, and the rights and freedoms of servicemen. The military courts system comprises military courts and Departments of the Court of Appeals and of the Supreme Court of Justice. Besides criminal cases, the military courts also consider civil cases involving military units, cases involving natural persons and legal entities concerning the pecuniary damages occurred as a result of the military offences.
The Economic Court is a specialized court and is a part of the judicial system of Moldova established to administer justice in cases deriving from economic relations between natural persons and legal entities. The economic court has the duty to safeguard the rights and legal interests of natural persons and legal entities during their entrepreneurial activity and other relations of economic nature, as well as for the correct and uniform application of the legislation in the field of the economy.
The Prosecutor's Office is the supervisory body for the due observance of law in the Republic of Moldova. The Prosecutor General and the public prosecutors under him exercise control over the exact and uniform enacting of laws by public administration authorities, by the legal entities and natural persons as well as by their associations, according to the Constitution. The Prosecutor's Office defends the legal order, the rights and freedoms of citizens and supports the enforcement of justice under the law. By its activity, the Prosecutor's Office supports the maintenance of rule of law, its exact and uniform inaction in order to consolidate the legality and the defense of the rights and freedoms of citizens. It exercises its powers as an autonomous body in the legal bodies' system.
Information and Security Service is a state organ that focuses its activity in the sphere of safeguarding the state security. It is coordinated by the President of the Republic of Moldova in accordance with the parliamentary control.
The Police, placed in the service of the courts of law by the Ministry of Internal Affairs, ensure the watch of the premises, of other goods of the courts of law, the security of judges and of other participants at the proceedings, public order in the headquarters of the court and during the hearings; hands down summons to the parties, witnesses, debtors, and to other persons, brings them compulsory to the court, exercises the control of the people at the entry and the exit of the court, including the bodily control, under the conditions of the law, assists the judicial executors; and fulfils other tasks connecting to the justice-making process.
The Audit Court controls the ways of creating, administering and utilizing public financial resources. It is composed of seven members. The President of the Audit Court is appointed for a five year term by Parliament on proposal submitted by the President of Parliament. The Audit Court submits annually to Parliament a report on the administration and utilization of public financial resources.
Sources of law in Moldova are structured hierarchically. The Constitution is represented at the top, followed by codes and parliamentary statutes, and, at the bottom of the hierarchy, executive "laws."
A collection of international treaties maintained by the Ministry of Justice comprehensively covers all of Moldova’s treaties signed on the international level.
There are particular publications of judicial decisions of the Supreme Court of Justice and Court of Appeals published annually, containing both civil and criminal cases.
Legal periodicals and legal literature by and large do contain references and comments to judicial decisions, but there are also special publications that periodically publish the text of judicial decisions
The Moldavian legal education system comprises both state and private institutions, which include secondary (colleges) and higher professional (academies, universities) institutions.
The major state universities have law departments - Moldova State University at Chisinau, State University from Cahul, and the State University at Balti. Beside these, there are law departments or law faculties at private universities, such as Free International University of Moldova.
Students at both state and private institutions have to pass an admission test. Studies last for four years (in that case students graduate high school) and for five years (in that case students graduate general school). Students also have the possibility to graduate at full-time and part-time program at law departments. After graduations, candidates must pass an examination at the Attorneys' Union in order to become an advocate.
It should be mentioned that in the near future the educational system is going to harmonize with European standards, as Moldova has adhered to the Bologna Process.
Those who are striving to pursue an academic activity have a possibility to continue their education and scientific research at the postgraduate level with master’s degrees and a doctorate.
There is enormous work to be undertaken in the legal information system in Moldova; it is recognized that without well-structured legal information system adequate legal research can’t be efficiently performed. Chaotic publishing activity, mediocrity in legal content publications, obstacles regarding the access to legal information, and deficiencies and inadequacy in finding legal information on the web are the predominant vicissitudes that encompass nowadays the legal information system in Moldova. The negative impact in conducting an efficient and effective legal research is also influenced by the absence of academic law libraries, along with shortage of law librarians and trained legal information specialists.
Moldova’s laws issued by the Parliament are published weekly in the official journal called Monitorul Oficial (Official Gazette; Editor’s Note: the access to the database called DOCS.MD was recently ended by a decree of the Moldova’s Ministry of Internal Affairs), which is printed in Romanian and Russian. Therefore the primary print resources are a government concern and their publication is handled by a State Agency. In addition to Monitorul Oficial, all codes are published separately by different publishing houses.
Statistically, a minimal amount of doctrinal legal publications are published annually; in the year 2000, the legal publishing industry development increased significantly comparing with previous years, but still could be characterized by an inherent unpredictability in publication activity, lack of uniform publication strategy and mainly a lack of specialized legal publishing houses. Occasionally ordinary publishing houses will publish legal books, but the lack of specialization hurts the overall legal communities’ research needs. As the main source for collection development is the Romanian and Russian publishing market, this from a practical legal point of view doesn’t express usefulness. Exceptionally the appropriateness and helpfulness can occur for comparative analysis for theoretical matters, as Romanian and Moldovan legal system are similar, but the legislation itself differs.
The major institutions for the publication of legal materials are still the universities, where the law school faculties are involved in publishing as a part of their academic responsibilities. Thus, law schools, under the undergoing policy of academic research, are publishing adequate textbooks and monographs to support legal study in the academic environment. This characteristically only occurs, however, in certain universities where financial assistance supports the scientific research. The State Moldova University, Free International University and Police Academy are some of the best examples of where this takes place in Moldova.
Compared to textbook and monograph publications, periodicals are seen in more positive light. During the 1990s, several professional publications were offered for the legal community: in Romanian Revista de Drept, Revista de drept privat, and Russian Business i pravo, Pravo. Additionally major law schools have their own law reviews, the most common type of legal academic work is Analele Stiintifice, published annually.
Legal electronic publishing is currently evolving to meet the high standards found in the rest of Europe. Only Practica Judiciara offers access to several legal journals from Moldova and Russia.
The legal practitioner-oriented literature is much more developed and this is explained by the idea of profit making. This type of literature is published randomly by various publishers, but heavily used by law community.
Sporadic financial assistance is available occasionally for legal publications from international organizations, such as the SOROS Foundation, ABA CEELI and others.
In spite of difficulties that arise, the legal publishing activity of secondary legal publications is passing an invigorating period, a range of publishing houses are striving to lunch specialized collection in the law field (ex. Cartier Juridic). Besides the content quality of literature the overall publishing graphic is also remarkably improving.
Unique to Moldova, there are generally no specific law libraries within law schools. Legal collections represent an integral part of the whole library collection.
Academic libraries, both public and private, have neither uniform development collection policies nor sufficient financial support. Accordingly the scarcity of resources in these particular situations hampers effective legal research. As a result, this situation negatively affects the Moldavian studying and teaching process in law field.
As mentioned before, the library collection of legal materials, especially secondary materials, is not well balanced or consistent. This situation has specific corollary: Romanian literature is appropriate for Moldavian research as both countries belong to the same civil law family even though the legislation background is different, with exception to the newly enacted Civil Code, Procedural Civil Code, Penal Code and Procedural Penal Code. Russian literature is considered partially propitious because of historical similarities between legal systems, and as well still analog primary legal sources and their practical interpretations. It should be mentioned that major law schools which are concentrated mainly in state capitals and accordingly financially supplied still have a lack of primary and secondary legal materials.
Unfortunately in Moldova law libraries within legal offices or legal institutions are poorly developed, or even worse do not exist at all. Essentially, only state legal institutions (for instance The Parliament, The Supreme Court etc.) are supplied with a library or legal information center, and only then do they include primary resources and reference books.
Conditions may be improving, however. The Law School from the State University of Moldova recently opened an independent Legal Information Center, separate from the Main Library, which has a comprehensive collection, and is also equipped with computer facilities connected to legal databases.
The Parliamentary Library serves as an in-house reference library for Parliament members. The library was opened in 1978 with the mission of building a collection mainly of primary sources. Currently it contains more than 11,400 titles.
Courts traditionally own law libraries containing primary sources, while not all of them have access to legal databases.
At the beginning of the year 2000, an interest from the legal community in creating a specialized library in the field of law gave rise to the opening of a Public Law Library, with financial assistance from the Moldova Soros Foundation and Legal Institute from Budapest. The library’s mission is to ensure necessary legal information and documents are accessible to any person interested particularly in Moldovan law - practicing lawyers, law students from different educational institutions, state institution employees and other interested persons providing them with the opportunity to not only make use of its extensive holdings of books and journals but also the on-line and local legal databases and Internet information resources accessible at the library. The library’s informational and documentary policies are based on the principle of the public library: legal information for everyone and an academic library accessible for the legal community, and its target audiences could be implied from its name – public and legal community.
Access to legal documents and data in rural areas stands in stark contrasts to the developments seen in major Moldovan cities- no law collections are offered for public.
Due to the underdeveloped legal information system, there is a shortage of legal information specialists in Moldova. The deficiency of librarians with expertise in legal research makes the process of conducting a legal research problematic. Also the development of the law library, more exactly the law collection, is in the situation of balancing the amount of books comparing with the other fields of study within the university which impacts the resources that can be devoted solely to law. Library stacks are not open to the users and tend to function in a traditional way. This, respectively, tends to negligence of the law library as an independent entity and minimizes its importance for the legal information system in general.
A significant action took place at the University Library at the International Free University. In order to facilitate legal research, a “legal and business reference librarian” was appointed. This approach is considered a relatively new concept in Moldovan librarianship.
In spite of the appeals of librarians from Moldova dealing with legal information issues, an association of law librarians has not yet formed.
The legal materials on the internet are still in their developmental stages. A big success in 2000 was the development of the online bilingual legal-reference system DOCS.MD. It was considered the basic tool of decision-making on legal questions for all legal community members. It included Moldova’s legislation and also the whole collection of international treaties. This on line database was freely accessed until April 2005 at www.docs.md.
The official and most reliable legal database concerning only Moldovan legislation is the fee based Jurist, offered by MoldLex Company. It is more extensively comprehensive, as it includes also cases from the Supreme Court of Justice and the Court of Appeal. Additionally it contains access to legal periodicals. It contains legal legislation since 1989, including codes and international treaties to which Moldova joined both in Romanian and Russian languages. The database includes the following information sections:
The database functions in parallel as an archive of the past laws and updated versions of legal documents. Also each legal act includes the list of laws that affects or making brings changes. The entire database is classified according to the General Legal Qualifier.
The search can be made according to the following criteria:
Recently the Jurist database merged with Practica Judiciara that contains Moldova's judiciary practice and includes the following information sections:
The database structure and search mechanism is similar to Jurist database. The updating process is carried out in an automatic mode weekly through internet and it is accessible on payment base.