Moldova remained a significant way from having a functionally independent judiciary, which is an indispensable element in the country’s capacity to deliver justice for its people and institutions. Many significant legislative reforms have been undertaken, but judicial independence is far from being achieved in Moldova, says a report by the International Commission of Jurists (ICJ) that was presented in Chisinau in an event staged by the Legal Resources Center from Moldova, IPN reports.
“While many significant legislative reforms have been undertaken, judicial independence is far from being achieved in Moldova,” said Massimo Frigo, Senior Legal Adviser for the ICJ Europe and Central Asia Program. “Reforms are needed in the law, but more than that a change is needed the mindset and working culture of many judges themselves that must protect and promote judicial independence in all of their work,” he added.
The ICJ acknowledged that important progress had been achieved in many areas, including in efforts to secure audio-recordings of all court hearings, the introduction of a system of random allocation of cases, and staff and salary increases for all judges. However, the ICJ has concluded that the implementation of the most crucial legal reforms is significantly lagging behind and often lacks political will and conviction.
A culture of excessive hierarchy in the judiciary and of the judge remained prevalent among judges.
The ICJ is concerned at reports that the Superior Council of Magistracy (SCM) – a judicial self-governance body – instead of playing its crucial role of defending the independence of the judiciary, institutionally and in respect of individual judges, has become an instrument of pressure on individual judges and a threat to their independence.
“During our mission, we were presented with witness statements and stories of judges living often in a condition of fear: fear to express their opinions on the situation of the judiciary; and fear of criminal prosecution solely for issuing a decision contrary to the requests of the prosecutor’s office or of other powerful interests,” said Massimo Frigo.
The report authors recommend that the composition of the SCM should be changed by removing the ex-officio membership of the Minister of Justice, Prosecutor General and the President of the Supreme Court of Justice. The number of judges from the first instance courts should be increased to ensure a greater level of representativeness. The initial temporary appointment of judges for a five-year term should be abolished. The judges of the Supreme Court of Justice should be appointed by the President, similar to the other judges, rather than by the Parliament.
Disciplinary proceedings should not be linked to evaluations assessments, as they should relate only to disciplinary offences provided by international standards. The criminal offence under article 307 from the Criminal Code constitutes a dangerous instrument of pressure on judges by the prosecution service and shall be abolished. Hearings in criminal cases must be held in public and the decisions must be clearly delivered in public. The use of closed court hearings including, and particularly, in high-level criminal cases that raise matters of public interest is contrary to international standards on transparency of judiciary and the fairness of proceedings.
Attending the event, Nicolae Eșanu, secretary of state at the Ministry of Justice, said that no matter what the Ministry does, if society considers the judiciary is not independent and efficient, it means the necessary steps haven’t been taken. “We live in a somehow double or parallel reality when everyone agrees that the existence of judicial independence is a sine qua non condition for any reform done in the Republic of Moldova. I haven’t met people who would have disagreed with this. Everyone accepts the proposed measures, but in the end we have full dissatisfaction with the situation in the justice sector,” he stated, noting general responsibility should be assumed and those who know what should be done should pass from statements to action so as to ensure changes.
Victor Pușcaș, ex-president of the Constitutional Court, said things should be analyzed retrospectively to understand the situation. One party came to power in 2001 and this started to fully control justice. The developments of 2009, when political control over the courts of law, law enforcement agencies was introduced and the senior posts in the state were distributed, should also be studied. “The report says it right that no matter how the political forces behave in the state, the judge, if this really wants, keeps his independence,” stated Victor Pușcaș.
This report was prepared by the International Commission of Jurists within the framework of the project “Promoting rule of law in Moldova through civil society oversight”, implemented by the Legal Resources Centre from Moldova, which is made possible by the generous support of the American people through the United States Agency for International Development. The contents are the responsibility of the International Commission of Jurists.
