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BREAKING: The Judges of the Moldovan Constitutional Court have resigned

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Between 7th and 9th of June, the Constitutional Court declared unconstitutional the election of the Moldovan Parliament’s leadership and the vote of the new Government, and later instituted the interim presidential post, after having previously decided that the deadline for voting a new government was June 7, 2019, not June 9, as previously, publicly mentioned.

The decisions coincided with the position of the Democratic Party of Moldova (DPM), which declared the votes in the Parliament as unlawful (votes through which the speaker was elected and the Sandu Government was established), and therefore called for the early elections. However, the “synchronization” between DPM and the CC is not a coincidence. Out of the six judges of the High Court, three of them were former DPM deputies, and two of them were included in the CC in a short time before the parliamentary elections in February. CC decisions have raised more criticism and have been questioned by several experts and officials, including international officials.

Judges of the Constitutional Court have resigned in their bodies. The announcement was made public through a press release published on the Constitutional Court website. Resignation of constitutional judges comes after more than two weeks, experts, politicians, non-governmental organizations and members of civil society, have criticized the latest decisions taken by the Constitutional Court, demanding the resignation of constitutional judges.

Reminder: On June 14, DPM announced that it was withdrawing from the government, and on the second day, Saturday, June 15, the CC decided to revise and cancel the decisions taken between June 7-9, which were favorable to Plahotniuc’s party. Eventually, on 20 June, the President of the Constitutional Court, Mihai Poalelungi, resigned.

Justice

Secretary General of the CoE: “The perception of corruption in Moldova remains high, including in respect of the judiciary.”

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After an working group created by the Council of Europe (CoE) paid a visit to Chișinău, between December 20-21, for offering assistance regarding the implementation of judicial reform in Moldova, the Secretary General of the Council of Europe, Marija Pejčinović Burić, issued an official statement, stressing the fact that the judicial reform must reflect the country’s obligations as a member of the Council of Europe.

The Council of Europe delegation had meetings with the Prime Minister, the Minister of Foreign Affairs, the Minister of Justice, the Speaker of Parliament, the Parliamentary Legal Committee on Appointments and Immunities, the Constitutional Court, the Prosecutor General, the Superior Councils of the Magistracy and of Prosecutors, the National Institute of Justice, serving judges – including from the Supreme Court –  and civil society organisations. The conclusions drawn after all the meetings were transmitted to the Secretary General, who stated the following:

“Our experts concluded that a clear strategic concept for the desired changes should be drawn up as the basis for the work to follow, including at the legislative level. This concept should have the active support of all stakeholders and reflect the country’s obligations as a Council of Europe member State.  The concept should provide a proper strategic vision for the planned reforms and be based on a thorough needs assessment justifying and explaining the legislative and policy initiatives that are to follow. The institutions concerned will have to work together constructively and without haste to achieve these important goals.

According to our experts, the perception of corruption unfortunately remains high, including in respect of the judiciary. Measures should be taken to implement GRECO recommendations on preventing corruption with regard to judges and prosecutors, notably to prevent the appointment and promotion to judicial positions of candidates with integrity risks.

More broadly, the effectiveness of the anti-corruption framework should be strengthened and the independence and capacity of the main institutions in charge of preventing and fighting corruption should be guaranteed.

All reform measures must respect the Constitution and any elements of the reform that are not in accordance with the Constitution should be preceded by a constitutional amendment, itself in line with European standards. The Republic of Moldova should implement the recommendations set out in the Opinions of the Venice Commission when it comes to the role and mandate of the Superior Council of Magistracy and steps to renew the judiciary or ensure its integrity. It is important to ensure that all actions are appropriate and proportionate to the aim, and to clearly distinguish between matters that relate to the integrity of judges and those that relate to their competence.

Before considering any large-scale evaluation, full use should be made of the procedures that are already available for ensuring the integrity of the judiciary, notably criminal and/or disciplinary proceedings in cases of specific misconduct including corruption and effectively enforcing an asset declaration scheme.

Article 6 of the European Convention on Human Rights and the case law of the European Court of Human Rights (ECtHR) provide a binding framework as regards removals, assessments and transfers of judges. A general re-evaluation exercise for judges and prosecutors is likely to lead to numerous applications before the ECtHR by those who have been dismissed or transferred as well as disrupting the functioning of the judicial system. The Ad Hoc Working Group therefore recommends utmost caution before considering any such initiatives,” is mentioned in the statement.

The CoE working group recommended that the Moldovan authorities work proactively to ensure the widest possible consensus for all reform measures as well as the involvement and endorsement of the institutions and professional groups concerned. The CoE representatives  expressed their readiness to continue the work with the authorities in order to ensure the independence, integrity and professionalism of the judiciary, the Secretary General statement announced.


Also today, the members of the Cabinet of Ministers approved the bill regarding the amendment of the Constitution of the Republic of Moldova, in aspects related to the activity of judges, the Superior Council of Magistracy and provisions that would allow the president of the country to directly appoint judges.

A first bill’s provision refers to the exclusion of the initial term of five years of judges’ appointment, as a probationary period. Currently, judges are initially appointed for a period of five years. Only if they carry out their activity properly during this period, the judges are appointed until the age of 65 is reached.

Another amendment that is intended to be introduced is the formula according to which the judges from the Supreme Court would be appointed by the president of the country, at the proposal of the Superior Council of Magistracy (SCM), the president having the right to refuse the SCM candidatures only once. Currently, the judges from the Supreme Court are appointed by the Parliament.

Also, the Government proposed to supplement the Constitution with a new article that would stipulate that the Superior Council of Magistracy is the guarantor of the independence of the judicial authority.

Another provision concerns the composition of the SCM, as it is proposed that half of the SCM members should be judges and all institution’s members should be elected for a period of 6 years, instead of 4 years as it is now.

The bill lastly contains amendments of Constitution in terms of regulating the functional immunity of judges, that would benefit from functional immunity only while performing their direct job tasks. Therefore, passive corruption, abuse of power, bribery, and similar misconducts wouldn’t be considered as acts committed within the legal exercise of their functions.

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Justice

New debates on judicial reform – a CoE working group pays a visit to Moldova these days

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An working group created by the Council of Europe (CoE) pays a visit to Chișinău, on December 20-21, for conducting discussions regarding the implementation of judicial reform in Moldova. Prime Minister Ion Chicu had a meeting with members of the working group, led by Christos Giakoumopoulos, Director General of Human Rights and Rule of Law of the Council of Europe. The working group was created by the Council of Europe to support the Republic of Moldova in the implementation of judicial reform, according to an official statement issued by the Government of the Republic of Moldova.

During the meeting, the head of the CoE delegation highlighted the need for the active involvement of all stakeholders in the drafting of the law on judicial reform. “We are here to help, to minimise risks. We will be partners in this process. We are ready to provide the necessary support to the Republic of Moldova, in terms of consultancy, but also technical assistance for the successful implementation of the judicial reform,” said the official.

Besides, discussions on previously sent to the Council of Europe set of documents reporting the progress of the judicial reform were held, including the strategy for ensuring the independence and integrity of the judiciary for the period 2020-2023, the action plan for implementing the strategy and the draft law on the evaluation of judges.

At the same time, the experts of the Council of Europe recommended to the Government of the Republic of Moldova to ensure a real process of public discussions of the draft law on the evaluation of judges with all the interested parties, including the judiciary and civil society representatives. Only afterwards, the project can be submitted to the Venice Commission for expertise.

The CoE representatives mentioned that it would be unacceptable to speed up the drafting process only to be able to submit it for examination to the Venice Commission during the March plenary session. It was recommended to submit the draft law on the evaluation of judges rather at the June 2020 plenary session.

The agenda of the CoE delegation includes meetings with the Prime Minister of the Republic of Moldova, the President of the Parliament, the Minister of Justice, the Minister of Foreign Affairs and European Integration, the Prosecutor General, the Superior Council of Magistrates representatives, the Superior Council of Prosecutors representatives, the Director of the National Institute of Justice, as well as representatives of civil society and other officials from judicial and diplomatic areas.


Also today, the leader of the Party of Action and Solidarity (PAS), Maia Sandu, and the member of the Parliament, Sergiu Litvinenco, declared, in a press conference, that the new judges’ evaluation process is a disappointment, blaming the socialists and its unofficial leader Igor Dodon of attempting to take control of the judiciary.

“The current Government completely discredits the judicial reform. It tries to subordinate the judiciary to political interests. The proposals of the Government, as they appear in the draft law that was made public, present a major deviation from the judicial reform, promoted by us,” declared the PAS leader. In the opinion of Maia Sandu, judges and prosecutors from Moldovan judiciary have to be evaluated by independent experts from outside the country.

“The proposed mechanism is very dangerous. It is clear that no external evaluation of judges is foreseen. […] It could happen that honest judges are excluded from the system, while those who have integrity problems may remain,” added Sergiu Litvinenco.

Yet, Minister of Justice, Fadei Nagacevschi, denied the presence of political interest in judiciary and reminded that the evaluation process is to be monitored by a commission formed of 5 international experts and 5 national experts, the latter being elected by a Parliament’s special designated commission.

“There is a message of inconsistency. On the one hand, the desire to evaluate the judiciary for excluding corrupt judges is criticized, on the other hand, the cleansing of the Prosecutor’s Office is requested. […] The public accusations regarding the judges’ evaluation tool, as an attempt to take over the control over judiciary, has no reasonable argumentation. Instead, it forces me to ask myself questions about the real purpose of the former government, which promoted the evaluation tool in a clearly politicized manner, contrary to the Constitution of Moldova and international standards,” stated Nagacevschi on social media.

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Former head of the Anti-corruption Prosecutor’s Office is under arrest

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Viorel Morari, former head of the Anti-corruption Prosecutor’s Office, was detained for a period of 20 days, in addition to initial 72 hours. A criminal case related to forgery of administrative documents and abuse of power was filed, on December 26, against him, based on notification documents registered with the General Prosecutor’s Office, as it is announced in a press release of the General Prosecutor’s Office.

On January 10, 2020, Viorel Morari was recognised as a suspect in the criminal investigation, he was detained and was to be involved in hearings related to the case.

” Viorel Morari is suspected that, in March 2017, he received from Vladimir Plahotniuc a complaint that was registered against the legal requirements, filing a criminal case and subsequently criminal prosecution, and falsifying several procedural documents within the criminal case. All of these actions were performed to protect the interests of his own and those of his complainant, the latter being involved as a suspect in a criminal case regarding the bank fraud, as well as obstructing the fast, complete and objective investigation of this criminal case,” it is mentioned in the press release.

In the criminal prosecution, Viorel Morari did not admit the commission of the crimes he is suspected of and, at this stage, does not cooperate with the investigation.

Morari was temporarily removed from office, at the beginning of December, during an internal control of prosecutors initiated by the new Prosecutor General Alexandru Stoianoglo. The decision to perform the controls was issued after Viorel Morari’s announcement of resuming the investigation into the Russian financing of the Party of Socialists of the Republic of Moldova.

Former head of the Anti-corruption Prosecutor’s Office told journalists that he does not exclude that the investigation would be related to the case on financing the socialists. Morari does not exclude that the general prosecutor, Alexandr Stoianoglo, would be connected to President Igor Dodon, and that he would like to see him detained, taking into account certain information Morari knows.

In a public message, head of the Delegation of the European Union to the Republic of Moldova, Peter Michalko, stated that the EU institutions closely monitor what happens in prosecution in Moldova.

We are watching very closely what is happening in prosecution in Moldova. During last months, the anti-corruption…

Geplaatst door Peter Michalko op Zaterdag 11 januari 2020

Photo: ipn.md

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