Often when talking about a judicial reform one can refer to improving the law, establishing a stronger judicial independence of prosecution, changes to the appointment procedure, establishing mandatory retirement age for judges or enhancing supervision over the activities in the area.

That is the case for the Republic of Moldova as well. But is it actually happening or is implemented only on paper? What is the hidden part of the iceberg when it comes to the Moldovan judiciary? Below are some events that happened lately:

Controllers with integrity problems

In December 2019, Prosecutor General, Alexandr Stoianoglo, signed an order to carry out controls at the Anti-corruption Prosecutor’s Office and the Prosecutor’s Office for Combating Organised Crime and Special Cases. Most of the 21 state prosecutors, appointed by the Prosecutor General, to verify the activity of the Prosecutors’ Offices have been found to have problems of integrity themselves in the last four years. Some of the controllers are even related or have common interests in the assigned controlled cases, wrote an investigation made by the anticoruptie.md portal.

The cases filed against the controllers at the Prosecutors’ Offices are related to offering or taking bribes, illicit enrichment, illegal transfers and influence peddling.

Vitalie Zamă, a lawyer representing the Association of Jurists for Human Rights, argues that prosecutors who have even a small connection with a filed case are forced to refrain from carrying out the control. “It is inadmissible for someone involved in a criminal case to have access to it,” he said.

Lilia Carasciuc, president of Transparency International Moldova, mentioned that if there are suspicions of conflict of interest or integrity issues regarding a prosecutor, he must be removed from such controls. “These prosecutors must have an immaculate reputation. Unfortunately, one almost can’t find such prosecutors in our country. In this case, it seems that the wolf was let to guard the sheep, but at least the most correct prosecutors had to be chosen to carry out the control,” Carasciuc declared as being cited by anticoruptie.md.

The former head of the Anti-corruption Prosecutor’s Office is still under arrest

Viorel Morari, former head of the Anti-corruption Prosecutor’s Office, was detained on January 10. A criminal case related to forgery of administrative documents and abuse of power was filed against him on December 26. 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.

On January 29, the Chișinău District Court decided to extend the Morari’s preventive arrest by 20 days, until February 19.

Viorel Morari requested that his case would be sent to the court as soon as possible in order to have the opportunity to prove his innocence, according to the declarations of his lawyer.

Morari was 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.

Victor Munteanu, the department director at the Soros Moldova Foundation stated: “I see in this scandal [ referring to the previously mentioned integrity problems of prosecutors] the Stoianoglo’s attempt to centralise all the power of the institution. I suppose this is not done without political support. An argument would be that the control at the Anticorruption Prosecutor’s Office began after Morari announced about the resumption of the criminal prosecution regarding the financing of the Party of Socialists.”

The opinion of the Venice Commission

In the opinion on the Draft Law on Amending the Law on Superior Council of Magistracy, published on January 22, the Venice Commission welcomed the proposal to increase the members of the Superior Council of Magistracy (SCM) from 12 to 15, as well as the fact that its composition will also be represented by lower courts. “The proposal to increase the number of the members of the SCM from twelve to fifteen may be positive as the functions of the Council concerning evaluation, management, discipline and accountability of judges can be qualitatively strengthened with a broader and more representative composition,” is stated in the opinion report.

It also noted that Parliament is welcomed to appoint the five members of the SCM, with the vote of the majority of elected members, and a stronger majority should include the opposition, which should be also considered in the context of preparing constitutional changes. “The election of non-judge members by Parliament with the vote of the “majority of the elected deputies”, assuming that it is constitutional, is welcome, as a positive step towards a larger support of the candidates by Parliament. A stronger majority would be more appropriate because it would involve the opposition too: this should at any rate be examined in the context of the constitutional reform in preparation.” On the other hand, the Venice Commission recommended the Moldovan authorities to consider other solutions, such as vesting outside bodies that are not under government control (the law faculties that could propose candidates or establishing an independent, non-political commission in this regard).

However, the Commission stated that it is regrettable that the Parliament of the Republic of Moldova did not wait for the present opinion before the adoption at the second and final reading of the draft law amending Law no. 947/1996 on SCM on 20 December 2019, nor before submitting it to the President for promulgation.

The next day, 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. More details here.

The CoE working group’s recommendation

The experts of the Council of Europe recommended to the Government of the Republic of Moldova, during an official visit in January 2019, 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.

Report on justice

In 2018, Moldova allocated for judiciary EUR 14.3 per inhabitant, that was 4.5 times smaller than the Council of Europe (CoE) average, as it was reported by the Legal Resources Centre from Moldova. The budget allocated for justice (courts, legal aid and prosecutor’s office) accounted for 1.3% of the entire public expenditures.

Moldova still remains among the countries with the lowest salaries for judges and prosecutors. In 2018, the entry-level salary paid to Moldovan judges and prosecutors was five times smaller than the CoE average.

Also, the same report concluded that Moldovans go to court considerably less frequently than the CoE average, when considering the number of registered commercial, administrative and criminal cases per 100 inhabitants.

In Moldova, the examination of a case lasts 259 days on average, as compared to the CoE average, which is 735 days. Moldova is one of the countries with the fastest justice system, that meaning a lower quality of justice, as confirmed by numerous cases lost by Moldova at the
European Court of Human Rights.

Photo: Shutterstock/image

The European Court of Human Rights (ECtHR) released on January 29, the activity report for the year 2019. According to the report, the Republic of Moldova had 1054 pending cases with the ECtHR as of December 31, 2019, that representing 1.76% of the total number of pending cases for all member states. When it comes to the absolute number of the pending cases, Moldova ranks the 11th out of 47 countries.

Out of 1054 cases against Moldova, 635 applications were allocated to a judicial formation, as compared to 814 allocated applications in 2018. Also, 301 cases were already communicated (28% of the cases), while 697 applications were declared inadmissible or struck out.

The number of applications allocated per 10 000 inhabitants was 1.79 in 2019, as compared to 2.29 cases in 2018. At the same time, the average number of applications for all European countries was 0.53 in 2019.

In 2019, the ECtHR received the lowest number of applications against Moldova in the last 12 years. However, when allocated to the population of the country, the number of claims against Moldova is quite high. Last year, Moldovans applied to the ECtHR 3.4 times more often than the European average.

Moldova ranked the 6th regarding the total number of applications allocated per 10 000 inhabitants, a higher number of applications being registered for Bosnia and Herzegovina, Monaco, Montenegro, San Marino and Serbia.

Regarding the number of violations by article and by state, 54 judgements were delivered against Moldova in 2019 ( as compared to 33 in 2018), out of which 39 judgements concern at least one violation of the European Convention on Human Rights (ECHR) and in 14 cases no violation was found. The most violated by the state articles of the ECHR were as following: right to a fair trial (22 cases), protection of property (15 cases), the right to liberty and security (9 cases) and inhuman and degrading treatment (5 cases).

In 2019, the ECtHR issued 884 judgements in total, 13% less than in 2018. Most judgements were issued against the Russian Federation – 198 (23%), Turkey – 113 (14%) and Ukraine – 109 (13%). In this regard, Moldova ranked the 5th out of the 47 member countries, with 54 judgements.

Since 1959, 441 judgements were delivered against Moldova by the ECtHR, out of which at least 385 cases were found to violate the Convention.

The sum of damages that the Government of Moldova was obliged to pay to its complainants in 2019 amounted 536 946 euro, twice more as compared to the previous year (234 191 euro), as the Legal Resources Centre from Moldova report stated. In 16 cases out of 54, the Russian Federation was obliged to pay damages to the complainants from the Republic of Moldova as well.

All in all, based on all judgements delivered by the Court, until December 31, 2019, the Republic of Moldova was obliged to pay over 17.1 million euros to the complainants from the country.

Photo: icj.org

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.

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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.

Photo: coe.int