„In November 2023, the Parliament of the Republic of Moldova voted in the first reading the draft law providing for the creation of an Anticorruption Court. The population is particularly dissatisfied with the impunity enjoyed by perpetrators of corruption and the material benefits they receive. The long duration of trials, the extremely slow progress of cases and the lack of finality on resonant cases further diminish the level of citizens' confidence in the act of justice. Although society and the political class are pinning their hopes on the new anticorruption structure, past experience shows that interventions must be well weighed to reduce the main risks that could further aggravate the challenges we are already facing…”
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Corruption is almost universally recognized in Moldovan society as a threat to welfare, justice and ethical values. Particular attention is directed to the elites of corruption, the so-called "big corruption". Thus, the steps, including legislative ones, to identify solutions to combat corruption are understandable, especially in the context in which the population of the Republic of Moldova perceives such an initiative as important. In a survey on integrity in the judicial sector, 48% of respondents considered the creation of an Anticorruption Court and a new system of anticorruption courts very important, and 27% of those interviewed considered such a reform rather important. With 75% of respondents approving of such an intervention, it was expected that this concept would take shape. The draft law on the anticorruption judiciary has a precise purpose: "the quality and speed of judging criminal cases on corruption and related acts". But can this new Anticorruption Court ensure the professionalism and speed of examination of corruption cases?
In order to get closer to the purpose indicated above and answer the question below, the anti-corruption court system should start its work as soon as possible. The experience of states with courts specialised in corruption cases shows that it takes several years, after the adoption and entry into force of the founding laws, for the new courts to examine cases. This complex and not at all simple process generates some concerns regarding the selection of judges, providing adequate logistical facilities (administrative staff, IT systems, etc.), identification/commissioning of the premises, etc. In organizational aspects, the Republic of Moldova usually does not excel (e.g. headquarters for courts, according to Law no. 76/2016, commissioning of the Chisinau Penitentiary, which was to take place in July 2018 or the implementation period of the external evaluation Pre-Vetting and Vetting).
The new Anticorruption Court will examine all cases based on the same rules provided by the substantive and criminal procedural legislation. The fact that a court is specialised does not mean that it judges you on the basis of special rules. The judges of an anti-corruption court will be subject to the same rules of ethics and discipline and will be obliged to ensure equal rights and guarantees for litigants. For example, if in a case, the court has to hear 25 witnesses, or order a judicial expertise (a system that also needs to be improved), regardless of whether it will be in an Anticorruption Court or in a common court, these components will always generate prolongation of the trial. Such aspects are common in different jurisdictions, and studies on judicial time management highlight these peculiarities. The main reasons for delay are the complexity of the case, the behavior of the parties (cooperative or non-cooperative), improper summoning, expert opinions, postponements, etc. In the experience of the states that are part of the Council of Europe, it was agreed that, "a balance must be found between procedural guarantees, which necessarily imply the existence of deadlines that cannot be reduced, and concern for prompt justice". The same standards, also strengthened by case-law by the European Court of Human Rights, show that a duration of 2 years in simple cases is generally considered reasonable, and in complex cases, the time allowed is sometimes more than 5 years and almost never more than 8 years for the entire procedure. Therefore, although society and the political class are pinning their hopes on an accelerated resolution of resonance processes, the reality could be quite different.
Another important component of an anti-corruption court system is the future judges of such courts. We must learn from the experience of the Republic of Moldova in the case of specialized courts, which shows that elements of corruption have coalesced around them at higher levels than in common courts. In the end, the only solution was to liquidate them. An (anti) example is the activity of the Economic District Court, for the liquidation of which, more than 12 years ago, it was opined that: "[...] Concentrating the judgment of all economic disputes in the country in a single court of first instance and an appellate court, de facto, allows the exercise of control over the economy as a whole, which contradicts the policy of liberalization and demonopolization promoted by the current government. When promoting this project, it was also taken into account that the most important judgments condemning the Government of the Republic of Moldova by the ECHR were pronounced as a result of the activity of economic courts".
The very narrow specialization of judges will also be a challenge for the new Anticorruption Court. In the last year of activity (i.e.2016) the Military Court examined only 156 cases. Another unsuccessful experience was the institution of the investigating judge, which in the initial formula, was a failure. In a first phase, the investigating judges who were called to be genuine judges of "rights and freedoms" discovered a strong pro-accusatory vocation. International experience shows that anti-corruption courts have often been perceived as instruments of political oppression. The lesson of countries that founded similar courts, from those on the African continent (Nigeria) to those in the European Union (Bulgaria), but which gave them up after they failed to achieve the goal, became politicized and did not show efficiency, is relevant.
Given the hypothesis in which this draft law is in the process of revision in order to be adopted in the final reading, it would be important for the draft's authors to additionally analyze the interventions so as to minimize possible risks in the implementation process, so as to create opportunities with added value. It would be essential for the draft law to establish additional guarantees regarding the selection of judges, an important role being given to the Superior Council of Magistracy (SCM), which at an early stage will also carry out a "vetting" exercise.
At the same time, improvements are to be made to the system of disciplinary responsibility of judges, and in this direction the legislator should intervene in strengthening the specialized bodies of the SCM: The Disciplinary Board and the Judicial Inspection, which did not become fully functional and effective even after the legislative changes of 2022 and 2023. It is necessary to clarify the specialisation of judges, as the examination of criminal cases (composition of offences), administrative cases (challenging ANI acts) and civil cases (confiscation of unjustified assets) cannot be classified as specialisation.
In order to achieve the expected result, the institution of the prosecutor's office should also be strengthened, at least by putting into practice the provisions of Law no. 159/2016, improving the organizational, functional aspects and cooperation with other actors, and the criminal investigation bodies, to which the "fighting" component should be delegated, and the courts should be responsible, as is natural, for the delivery of justice.
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Petru Istrati is a lawyer and member of the Justice Expert Group (GEJ) of the Institute for European Policies and Reforms (IPRE).
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This op-ed is developed within the project "Ensuring the integrity, efficiency and independence of the justice system in Moldova –#Justice4Moldova", funded by the European Union and co-financed by Soros Foundation Moldova. The content of the material belongs to the author and does not necessarily reflect the point of view of the European Union and Soros Foundation Moldova.
