A Penalty Loop for Justice Reform?

Christian RUSSU

By canceling the results of the Pre-Vetting Commission, the judicial system has struck a massive blow to PAS’s sacred cow, justice reform, in fact routing it to a second run

1 August was marked by some unexpected, but in many ways legitimate news for all those interested in the reform process and PAS’s fulfilment of its public promises and foreign policy commitments. On that day, the Supreme Court of Justice (CSJ) decided to cancel the results of the “pre-vetting” integrity commission’s activity, having reviewed the results of its work for the last year and a half in just one day. Moreover, this “independent” body was obliged to eliminate the violations and take into account all the court’s observations on the cases of failed candidates. Although there were immediate questions about the personalities who gave such a verdict, this CSJ’s decision was unexpected not because of its legal absurdity, but due to its belated nature. If it had been issued in February or March, there would have been no less heated debates between the representatives of the justice system and the PAS on the boycott of justice reform. However, it would have been much easier to work out the logic of further actions. However, early this spring, the members of the ruling party decided not to stand on ceremony, crushing judges and prosecutors under the cover of “political expediency” and expectations of European partners. The judges of the Supreme Court of Justice were among the first to come under attack. Then, the comments of the Venice Commission were discarded and the “judges’ revolt” was suppressed. The hurried formation by PAS deputies of a controlled staff of the Supreme Council of Magistracy, which went beyond the law, became the last stroke. After such a knockout, few expected that the judiciary would give such a scathing response, referring to the basic legal principles that all independent jurists had been pointing out to the authorities the whole spring. Decisions on the formation of independent self-governing bodies represented by the Supreme Council of Magistracy and the Supreme Council of Prosecutors cannot be taken before the verdicts on the appealed decisions of the Pre-Vetting Commission. All the more so because there were many questions about them. This CSJ’s decision clearly took the authorities by surprise, and it is not clear how to handle it. On the one hand, logic suggests restarting the activities of the Pre-Vetting Commission. Judges and prosecutors who failed the review should receive the opportunity to go through the procedure again, taking into account the court’s comments. This, of course, does not oblige the commission to approve all candidates, but revising decisions in this case is inevitable. Here, a number of procedure problems arise. The point is that the Commission’s powers, which checked the integrity of candidates, expired at the end of June. For the authorities, the “Pre-vetting” stage is over, and they were planning to launch the mandatory “Vetting” procedure, which provides the restrictions for the judiciary. Moreover, there is no understanding what to do with the 18 judges who still claim the seat of the Supreme Council of Magistracy. This body has already been formed and the authorities have announced its full functionality. To hold a new general meeting of judges and revise the composition means to admit to power usurpation and to commit a political suicide. In general, even if we take into account the possibilities of the PAS’s rubberstamp parliament, restarting the reform is to lose time, which on the eve of the electoral campaigns in the next two years threatens the loss of power. On the other hand, the government has already drawn up the action plan and prepared for the European partners a draft report on the work done to reform the justice system. The report mentions not only “achievements” in the formation of the new composition of the Superior Council of Magistracy, but also the Superior Council of Prosecutors staffing after the planned general meeting of prosecutors on 23 August. Panic and stupor within the ruling party will pass and the principle of preserving power at all costs will prevail. The roller of political and criminal prosecution will be directed against the judges who decided to cancel the pre-vetting results. Biased media and representatives of civil society are already actively fanning the possibility of Vlad Plahotniuc’s involvement in the incident, who, four years after his escape, is allegedly trying to restore his position. Given the support of European and American partners for the ongoing justice reform, we should not expect them to change their rhetoric, even in the new legal realities. The US and the EU have already lent their hand to the pre-vetting commission. Therefore, the most possible scenario is an urgent attempt by the authorities to get the justice reform back on the track and, contrary to the principles of powers’ separation, to determine the desired place and role of the judiciary. The way this role is seen in the ruling party can be understood from recent decisions concerning the introduction of collective and individual liability for belonging to banned parties, providing for the deprivation of the electoral right guaranteed by the Constitution. The overloading of anti-corruption bodies in order to remind Veronica Dragalin that she is only a tool in the struggle against the opposition and not a subject of power is also quite exemplary. This also includes the uncertainty with the competitive election of the Constitutional Court judge. The problem, however, is not the growing criticism and accusations of using Plahotniuc’s methods, but the fact that with its radical and brazen actions, the ruling elite plants many time bombs that could explode at any moment, tearing apart not only the justice reform, but the state institutions themselves. One of these bombs is the situation with the Prosecutor General, for whose post there is still no permanent candidate. Maia Sandu’s attempts to remove from taking responsibility for legally dubious decisions only add to the risks. The plan to use the Office of the Prosecutor General to further pressure unwanted judges may turn against the authorities if Alexandr Stoianoglo, suspended but not removed from office by presidential decree, suddenly wins a case in the ECHR.