Some of the provisions of the bill to amend and complement the Civil Procedure Code need to be reviewed or even eliminated as they impinge on fundamental rights of justice seekers or are inopportune for the jurisdictional system of Moldova now that the credibility of the justice system is seriously affected, said experts of the Center for the Analysis and Prevention of Corruption (CAPC) who appraised the bill from the perspective of human rights.
CAPC expert Adelina Bicu, in a news conference at IPN on July 3, said the bill was drafted by the Center for Reform in the Judicial System. Judging by the informative note, the bill is aimed at reducing the burden of the courts of law by introducing new institutions for the national legislation and by excluding or amending imperfect regulations of the procedural legislation that generate interpretation and implementation difficulties both to courts and to justice seekers.
Adelina Bicu noted that the bill mainly complies with the constitutional provisions, the correlative legislation, the international standards and the ECHR’s case law, but there are particular deficiencies. For example, when the amendments are approved, the judiciary mediation will become mandatory. This fact is appreciated by experts as a positive one, but the fact that mediation will be conducted by the judge generates objections. “We consider that mediation must remain the competence of mediators, as the law provides now,” said the expert, adding that in many states the mediation is conducted by judges, but the people’s confidence in those judges there is very high, not as in our country.
She also said that they have objections to the proposal concerning the payment of the state tax when an irrevocable decision is passed. Now this tax is paid when a lawsuit is filed. This proposal represents an additional guarantee to the principle of free access to justice, but it could visibly affect the process of levying this tax that goes primarily to maintain the judicial system, while a large part of the irrevocable decisions are not fulfilled.
Another objection refers to the introduction of the written procedure for applications with reduced value or the invoking of procedural exceptions that will lead to the completion of the trial without the examination of the basic evidence. It is suggested applying the written procedure only in the case of applications over amounts lower than 50,000 lei. This way, an application will be filed, the case will be examined in the absence of the sides and the judge will issue a written decision. The EU states use such a practice, but the highest amount there is much lower and the plaintiff can choose the trial method. The adoption of such a law can affect the right to a fair trial, said Adelina Bicu.
She also said that the bill contains a series of positive aspects such as the setting of definite terms for examining cases and the plaintiff’s right to ask for the replacement of the accused. Also, a large part of the provisions were borrowed from the experience of European states, but these were not always adjusted to the realities in Moldova.
The appraisal was carried out within the project “Harmonization of the legislation with the international human rights standards”, which is supported financially by the Civil Rights Defenders of Sweden.
