Justice Reform Failure: Natural Outcome of Ineffective Policies or Sabotage of the System?

Cristian RUSSU

With the resignation of Natalia Gavrilita’s government, the authorities not only want to “blow off steam” of citizens’ discontent over Andrei Spinu’s flawed energy policy, but also to quickly close a failed chapter in the history of their government called “Sergiu Litvinenco’s Justice Reform”.

Head Start After the removal of uncomfortable figures in the justice and prosecution system (e.g. Alexander Stoianoglo), the authorities not only decided to place the desired people (Veronica Dragalin) in key positions, but also to form controllable compositions of the Supreme Council of Magistracy (SCM), the Supreme Council of Prosecutors and the Supreme Court of Justice (SCJ). The majority party’s favorite tool for dealing with problems in justice reform and beyond has naturally been the introduction of legislative amendments. Thus, the procedures for pre-screening candidates for the SCM and the SCJ, the so-called pre-vetting and vetting mechanisms, emerged. The idea of filtering out undesirable judges was tried back in 2019 under Olesea Stamata, Sergiu Litvinenco’s predecessor. At the time, however, Venice Commission experts warned that re-evaluating judges set a dangerous precedent, as they would expect such vetting to follow every change of government. “This could undermine judges’ motivation and reduce the independence of the judiciary,” the commission opined at the time. It took the authorities some time to let the scandals die down, which forced a reshuffle with the return of Olesea Stamate to the Parliament. Minister Litvinenco himself was absorbed with the task of cleaning up the mess in the prosecutor’s office, so it was not until last April that they got to the judges. A special commission consisting of Moldovan and international experts was formed to carry out a preliminary check. They had to check the property not only of the candidates themselves, but also of their relatives: parents, in-laws and adult children. Moreover, in the case of gifts to candidates, the givers themselves were also subject to inspection. It was planned that the commission would complete its work in the autumn and that by the end of the year it would have a renewed composition of the SCM and SCJ. At least that was what Litvinenco believed. Such goals have also been communicated to the European partners. The law also stipulated a term of office for the incorruptibility commission until 31 December 2022. Harsh Reality Despite the involvement of foreign experts and the absence of judges among the Moldovan representatives in the commission, the process of launching its work was delayed. Given the extraordinary situation, the parliament had to hastily amend the previously adopted law in order to extend the commission’s term of office for another six months, until 30 June 2023. From the very beginning, the authorities blamed the parliamentary opposition for the stalling of the reform through the vetting mechanism, as immediately after the adoption of the law, PSRM MPs challenged it in the Constitutional Court, citing the previous arguments of the Venice Commission. It was not unreasonable for them to argue that the law violated Article 6 of the Constitution, which stipulates the separation of powers. Although the Socialists were unsuccessful, the Integrity Assessment Commission did not begin evaluating the first group of 27 CSM candidates until late July. Prior to that, it had been engaged in preparatory work: it had published and sent candidates a draft declaration form on assets and personal interests, as well as a list of close persons in the judiciary, prosecution and public service, and had asked citizens to provide any probative information on the financial and ethical incorruptibility of all candidates to be screened. The latter, in effect, opened the way for denunciations of candidates by malcontents. It was only in October that the commission finally began holding public hearings of candidates, hearing several people a month at intervals, and passing judgement. The pre-election procedure itself, according to those who passed it, proved to be very complicated and the requirements were exaggerated and did not take into account our realities. For example, many candidates were required to provide documentary evidence that they had no violations for the entire period of work (some had 15-20 years of experience), which was almost impossible to do, especially as such requirements had never been stipulated in the law before. In some cases, the members of the commission demanded all the receipts for renovation works in judges’ houses after receiving photographs from their personal files; complaints were made as to why parents of judges in the 2000s did not submit certificates of tax payments, why candidates did not indicate gifts in the form of spending on weddings for children or other events which are traditionally celebrated in our country on a grand scale. Many have found discrepancies between the declared values of the movable and immovable property in the income tax returns and the market value of such assets, etc. There were also claims of objective nature, when the commission took into account disciplinary sanctions already challenged in the ECHtR, demanded to collect all data on income and expenditures during the period of child care leave, and checked the activities of candidates during the period when they were not yet judges. Notably, it was not so much the foreign experts as the local ones who were particularly eager to find irregularities and shortcomings. All this not only slowed down the pre-internship procedure, but also affected its results: out of 28 judges who participated in the competition, only five were approved. It is noteworthy that all of them were from the first instance courts and none from appeal chambers and the Supreme Court, which threatens to paralyze them. Already former Justice Minister Sergiu Litvinenco called such a sad outcome a confirmation of the dire situation in the justice sector, while external partners represented by the US Embassy, the Netherlands and the EU Delegation issued a joint statement on the need to continue the work of the commission. The 22 judges who did not receive the commission’s approval formally had the possibility to challenge the decisions at the Supreme Court. Some of those who had not been pre-vetted appealed to the Constitutional Court. However, even in case of a positive decision, the maximum they would be asked to do is to continue the procedure, which would be carried out by the same panel of experts. On 14 February, the Constitutional Court acknowledged that certain provisions of the law on pre-vetting don’t comply with the Basic Law, but linked this to the infringement of certain rights of “failed” candidates, and not to the pre-vetting itself. Given that the candidate hearings were public and the recordings were then released to the public, as originally envisaged, the whole process turned into a media show. Many locally respected judges from districts who believed the authorities and wanted to go through the evaluation process were made a laughing stock, effectively putting an end to their careers. All this could not but affect the attitude of the judiciary, which saw it as anything but an objective and transparent procedure to purge justice from corrupt elements. As a result, in the past two weeks, two-thirds of the SCJ members have already resigned, four of whom are SCM members, which in practice blocks the work of the two bodies. It is likely that the judges will boycott, refusing to participate in the formation of the new SCM during the general meeting of judges on 17 March. It will be indicative if there is suddenly no quorum. In that case, it would be possible to say that the judges have followed the example of the Justice Reform organizer, represented by the former Minister of Justice, who regularly disrupted the sessions of the Supreme Court in this way. Be that as it may, the notorious pre-vetting has revealed an unpleasant picture of all the current justice system transformations. The authorities have shown that they are prepared to throw a large part of the judiciary into the mill, under the guise of “reform”, regardless of the degree of incorruptibility and professionalism, and without regard to the consequences. External partners have shown that they are prepared to turn a blind eye to any violation. The judges, among those who dared to go through the vetting process, turned out to be people with the standard mindset and unselfish behavior that is characteristic of many of our fellow citizens. The rest of the corrupt elements in the judiciary, on the other hand, had their way.