In the Republic of Moldova, justice became a weapon in the fighting arsenal of politicians. Some want to defend themselves, while others want to remove their opponents. In 2014, the Patria Party led by Renato Usatyi was excluded from the electoral race. Even if this fact was condemned by the European Court, the party’s political chances didn’t improve later. In several years, Andrei Năstase was stripped of the right to hold office of mayor of the capital city by a court decision. This case also reached the ECHR. How dangerous this phenomenon when election contenders are removed from the political race through injustice is and what should be done for such cases not to happen in the upcoming elections? These and other issues were discussed with lawyer Andrei Briceac, chairman of the Civil Justice Institute.
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IPN: Mister Briceac, do you think that in 2014, when the Patria Party was removed from the electoral race, particular mechanisms were implemented with bad intentions in our justice system?
Andrei Briceac: This is one of the cases that reached the ECHR in which the violation of the right to vote and to stand as a candidate at elections was ascertained. In a democracy, the right to vote and to stand as a candidate at elections is very important and it is evident that any interference by the state in the exercise of this right undermines the basis of democracy. If we do not have the guarantee that the people who hold state sovereignty can elect the administration, the MPs as they decide, we cannot be sure that the state belongs to us.
We have spoken about the reform for a long period of time. Before trying to analyze things based on real situations in the system, let’s give some definitions. When we speak about the justice sector, we often associate it with the judiciary or with public service. The administration of justice is a public service that the state provides through the agency of the judicial branch and other authorities.
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IPN: Is the whole system to blame or the blame is borne by those politicians who pursued momentary goals?
Andrei Briceac: Justice is a social condition. It is a desideratum towards which we tend. It is possibly a feeling of justice that most of the times is subjective. It is very important for society to be built according to particular rules that would guarantee, promote and support a particular level of objective justice. When we reach a particular level of acknowledgement of the way in which a society is organized, we realize that it comes to justice that is different from what we perceive as subjective justice because, beyond subjective justice, there is objective justice. We realize that a society needs to be organized so that everyone gets what they deserve, which is equitable justice.
IPN: So, does natural justice mean the observance of legal norms?
Andrei Briceac: To enjoy justice, we need to set down particular rules in society, to make laws, while the judiciary is a branch of the state whose duty is to contribute to the administration of justice. We go to court when we feel that we were wronged given that the judicial system is used to restore justice, equity and legality in cases of violation of the law.
We cannot allow the rules in a society to be broken. You see a difference here between justice towards which we tend and the notion of justice that we somehow ascribed to the judicial branch. The judges in a society, in our state, hold a public pos. They fulfill state duties to restore justice, to do justice when this is violated. But there are many sources of injustice. One goes to court when an injustice was already committed. It is important to make this delimitation here as an injustice can be a judicial injustice too and we speak particularly about this – why the judicial system does not function?.
IPN: What can we do to avoid such mistakes made consciously and out of ill will in Moldova’s justice system?
Andrei Briceac: If I say that the solution is somewhere over there and we should come closer to it, this will be a lie. To solve such a problem, we need a complex of modifications, reforms and one of these changes should occur in our culture. If we speak about these two concrete cases, it should be noted that the witnessed injustice or abuse, as the ECHR decisions confirmed, occurred due to administrative activity first of all, which is the administrative authorities responsible for the organization of the electoral process intervened and then the judges intervened. The court of law confirmed that abuse. In such situations, we have judges who accepted to be used by the authorities. In a hypothetical situation, the administration is interested in removing someone from the race and therefore organizes particular administrative activities that are later confirmed by judges.
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IPN: Are such circumstances created by administrative activities for judges to be later freed from responsibility for intervening and doing something wrong under political influence?
Andrei Briceac: The main cause was probably not the lack of knowledge or competence of court or the inefficacy of the normative framework. It was rather the absence of independence in the judiciary and its subjugation to momentary political interests and the weakness of institutions is the major problem here.
The judiciary, as other state institutions, is weak from a number of viewpoints. This weakness is used by the executive, the politicians. When the administration is changed, the judges who served the previous authorities are automatically punished or replaced with others who would be loyal to this new administration. And such changes occur every four years.
The absence of independence in the judiciary is the main problem. When the state is weak and its institutions are weak, the public service provided to us is not of the necessary quality. The administration of justice is one of the important public services, alongside security and education.
IPN: What would you start from if you had to compile a list with the first three steps that are important in a justice sector reform?
Andrei Briceac: We follow the path of amendment of laws and this didn’t help much. Also, almost all the governments tried to replace the people. There were particular judges and they substituted these with their judges. So, they do reforms that enable to name convenient judges. That’s why the liquidation of institutions or the replacement of persons does not ensure the justice system will work properly.
There is no easy solution. More should be invested in education and culture. Greater independence should be offered to the judiciary. We must tend to make the judges more responsible. It is also important to have responsible prosecutors and lawyers but a final decision is taken by the judge. Responsibility for the administration of justice should be ensured and it is not easy to combine independence with responsibility as the independence of a judge can be limited when trying to increase their responsibility.
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IPN: It is important to make the rules harsher and to warn beforehand. Do you think that if the judges who pronounced on the cases of Usatyi and Năstase had known that an eventual conviction by the ECHR would mean greater responsibility for them, including financial or the loss of the post of judge, they wouldn’t have become involved in that dangerous politically-created game?
Andrei Briceac: I believe that if a judge can consciously commit an abuse in his work and he knows that he can be held accountable for that abuse, he will think twice before doing so. Evidently, the judge is under political pressure or someone from outside dictates a particular solution and insists on that solution. But the judge should resist as serving as a judge is a responsibility and this post requires a lot of courage for being able to take correct decisions. When a judge says that he will not fulfill political orders and what is requested by political players because he can be held accountable in several years this can be a guarantee that the judge will act correctly.
IPN: You also mentioned the necessity of educating society and we speak here about the education of the ordinary people who seek justice and also about those who do justice. Does this mean that a society that is much better informed about its rights will increase the chances of exposing the injustices committed the last few years?
Andrei Briceac: This is the first step for us to realize where abuses and injustices are committed. The second step is for society to react to abuses and not to tolerate them. We should not become a society that tolerates injustice. The judicial power, as the other powers, is affected by vices. If we are not attentive, we will not achieve results. We must solve all the aspects of problems. We must increase socioeconomic comfort and keep the people, the specialists here. We experience serious problems in the courts in Chisinau owing to the shortage of specialists. The judges are overloaded with cases.
This is a problem of the state as it does not organize this process very well but is also a problem of society in general as we also have economic disadvantages and the people leave the country because of the low salaries. When there are no specialists, this public service cannot be organized.
IPN: You also said that each of the governments that tried to do somehow the justice sector reform first ‘cleaned up’ the system. Being also a university lecturer and analyzing the current situation in the justice system and the motivation of students, do you think that we have who to do this justice sector reform with during the next few years?
Andrei Briceac: If you don’t have people, you cannot build anything. We lose a lot of specialists but we also lose students as the universities in Romania have extremely good offers and the lyceum graduates go there. In our universities, we have fewer students. As in any sector, the weaker is the competition, the lower is the quality of the finished product.
From another perspective, do we have the capacity to bring back the graduates, the young people who went to Romania or states in the West? This is a very serious problem. It is a social, demographic and national security problem. Without a pool of human resources, it is practically impossible to do something. We must identify solutions to keep pace with the countries that develop at a high speed.
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IPN: How do you think, who wants the judges, lawyers, people who do justice in the Republic of Moldova not to be able to stand up and say: We do everything in accordance with the law?. Who wants the justice system to be weak and with people who easily comply with instructions?
Andrei Briceac: So, in 2018 I was in Riga where I was studying the Philosophy of Law. There, a reputable professor admitted: “Yes, the judges have their place but the politicians would like the judges to be better in their pockets”. This was said in the West. The tendency to undermine justice exists everywhere in politics. It is very hard for a judge to resist political pressure. However, I think this is one of the problems that must be solved. We need to somehow identity solutions to increase their independence. We, as society, should delimit the situations when a corrupt judge commits abuses and comes under attack from situations when a judge is attacked for the simple reason that he wants to be independent.
As I said, a precedent was created in our country for the politicians to manipulate the system so that the judiciary is to blame for all evils and for them to also manipulate the judges so as to control them. Evidently, the next government will do the same. We must find a way to react to such cases.
IPN: Mister Briceac, how do you assess the way in which the current government tries to do the justice sector reform and do you think we will manage to create conditions in the justice system to avoid cases similar to those involving Usatyi and Năstase until the next elections?
Andrei Briceac: There are partial starts and efforts that should be welcomed. The wish to make changes is felt somehow. But there are witnessed mistakes that should not be made. We, the jurists, were taught that any person should be judged according to the rules. One must not break the rules when judging a person, even if this person is the biggest criminal. Each person has the right to a fair trial. The jurists realize this. But the politicians should also realize this. Justice should be done not on TV by politicians but in courts of law, in accordance with the penal procedure and civil codes.
It is highly improbable that the problem of removal of election runners through injustice will be solved until the next elections. It is yet important to go on, not to dramatize and not to address the problems in an abstract way, about everything and nothing. We should look at the cases separately and examine them. The individual cases reveal systemic problems and help us do the necessary diagnosis of the system in general. When we say: “that person is a thief, while the other person is not a thief” this is political narrative that seldom helps to realize the real problem and to solve it. When we all do our job, we have chances to move on. We must move on and we do this but not at the speed we all want.
The interview “Election contenders removed from the race through injustice. How to avoid such cases in next elections?” was conducted by IPN News Agency in the framework of the project “Support for the Justice Reform through multimedia coverage of cases of alleged injustice”. The video variant of the interview is available here.