The extraordinary problems in the justice sector require extraordinary solutions
Commentary by Ecaterina Popșoi and Cătălina Ceban
After almost 30 years of independence, today Moldova continues to be in the process of transitioning to a system of government based on democracy and the rule of law. One of the main challenges of this process is the creation of an independent, efficient and accountable judiciary. Despite ambitious legislative reforms in 1995 and 2011 and recent attempts to reform the justice system, the policy measures have not been implemented in practice or delayed. While the public trust in the judiciary has continued to decline. Extraordinary challenges in the justice sector also require extraordinary solutions.
Independence and integrity in the judiciary cannot be ensured with half measures
The most recent Public Opinion Barometer conducted by IPP, shows that about 67% of Moldova’s population does not trust the national judicial system. The lack of finality on high profile cases, multiple journalistic investigations into the luxurious way of life of some actors in the justice sector and their unjustifiable assets, only deepen distrust and provoke more suspicion on the part of citizens.
Last year, the Ministry of Justice developed a new Strategy for ensuring the independence and integrity of the justice sector for the years 2021-2024. Its main strategic directions include the independence, accountability and integrity of justice actors, as well as the quality, transparency and efficiency of the judiciary. However, the strategy did not provide a mechanism for extraordinary evaluation of justice actors, which is why the Strategy adopted in the spring of this year, was not signed into a bill by the President of the Republic of Moldova and was returned to the Parliament for review.
While evaluating the performance of actors in the justice sector has become a pervasive topic in our society, evaluation mechanisms are often superficial, without clearly reflecting the reasons for evaluation and how evaluation promotes integrity and professionalism.
Integrity: Either you have it or you don’t. One does not get points for it.
Currently in the system of courts and prosecutors, the verification of integrity, professionalism and ethics is being done by the self-government bodies – the Superior Council of Magistracy (SCM), the Superior Council of Prosecutors (SCP) and specialized colleges subordinated to them. Also, the National Integrity Authority verifies the integrity and personal interests of judges and prosecutors, SCM/SCP members and their subordinate bodies. However, this formula for verifying the integrity of the professionalism and ethics of the actors involved in the act of justice proved to be ineffective. Moreover, the integrity in this system is treated as an evaluation criterium and not of admissibility, and the chances of a judge being checked in terms of integrity at one of the career stages (access to office, transfer or promotion to administrative position) are equal to 0.006%.
Extraordinary evaluation in the justice sector is a unique procedure
Extraordinary evaluation involves a different mechanism for assessing the integrity, ethics and professionalism of actors in the justice sector than those currently existing in the Republic of Moldova.
Such an exercise involves (a) evaluation criteria and procedures distinct from those already in place, (b) ensuring institutional integrity of the bodies involved in the evaluation process, but also a (c) broad involvement of the self-governing bodies (SCM and SCP) in accumulating and providing relevant information on the persons subject to evaluation.
Based on the experience of other states that have implemented extraordinary evaluation mechanisms, such as Georgia, Ukraine and Albania, the success of this process depends largely on the institutional framework created to ensure extraordinary evaluation, guarantees for the independence of the bodies involved in this process, and compliance with the provisions of the supreme law but also with the recommendations of the Venice Commission. In this respect, although Georgia and Ukraine have managed to implement relatively effective extraordinary evaluation mechanisms, Albania’s example is still considered the most complex and broadly positive.
The implementation of a similar mechanism in the Republic of Moldova is conditioned by (a) the existence of political will following a broad consensus in Parliament to initiate the extraordinary evaluation process, (b) the willingness of development partners to assist national authorities in developing and implementing the mechanism, but also (c) the availability of sufficient human and financial resources.
The system and the main stages of the extraordinary evaluation
If we were to refer to the institutional framework necessary for the implementation of the extraordinary evaluation of the actors in the justice sector in the Republic of Moldova, it could include several decision-making levels, namely:
- International Monitoring Mission, responsible for selecting the members of the Evaluation Commission, the Evaluation Colleges and the Special Board of Appeal;
- Evaluation Commission, composed of four Evaluation Colleges, responsible for the elaboration of the file of the person subject to evaluation. The Evaluation Committee will have the right to request additional information on the subject of the evaluation from all relevant institutions;
- Special Board of Appeal, responsible for judging appeals against the decisions of the Evaluation Commission.
To ensure a proper balance in the process of extraordinary evaluation of actors in the justice sector, this process should include on the one hand the self-governing bodies ( SCM and CSP) and on the other hand the Parliament, the Government and civil society. And Compared to the subjects subject to evaluation, in the case of the Republic of Moldova we consider it opportune to carry out the evaluation in three stages.
The first stage is the evaluation of the members of the SCM and SCP, the chair, vice-chairs and judges of the Supreme Court of Justice (SCJ), the General Prosecutor (GP) and deputies as well as the chief prosecutors of the territorial subdivisions of the Prosecutor’s Office, chief prosecutor, deputies and prosecutors from the Anticorruption Prosecutor’s Office (AP), the Prosecutor’s Office for Combating Organized Crime and Special Cases (POCOCSC), the director and deputy directors of the National Anticorruption Center (NAC), members of the Integrity Council, the director and deputy director of the National Integrity Authority (NIA), as well as the director, deputy director and members of the Council of the National Institute of Justice (NIJ).
The second stage involves the evaluation of the chairs, vice-chairs and judges of the Courts of Appeal, and the courts of first instance, members of the specialized Colleges within the SCM and SCP, inspectors of the prosecutors and judges, prosecutors within the GP, integrity inspectors within NAI.
The third stage will include the evaluation of judges and prosecutors who were not evaluated in the first two stages and other actors in the justice and integrity system, civil servants with special status.
This structure of subjects of evaluation could be extended at a later stage of implementation of the mechanism to close relatives of justice actors in the context of verifying the integrity of the actors concerned.
Extraordinary evaluation criteria
The extraordinary assessment of justice actors should focus on two basic criteria: (a) integrity, which includes verification of lifestyle, compliance with declared assets with actual possessions, respect for professional conduct and ethics, and (b) professional capacity, which are to be verified through professional skills to motivate, justify and solve complex cases, as well as the level of performance.
Instead of conclusions …
A correct implementation of the extraordinary evaluation mechanism could contribute considerably to ameliorating and even overcoming the extraordinary and perpetual problems already in the justice sector, caused largely by the lack of integrity, independence, but also professionalism of some actors of the system.
At the same time, the extraordinary evaluation is a unique and necessary solution for the re-set of the justice system in the Republic of Moldova. It can only be applied once. It is important to manage expectations as well. This process is not necessarily a universal solution to all the problems currently facing the justice sector. Most likely, the results of this process will not be felt immediately, and the first evaluation actions will meet fierce resistance from the actors concerned, being invoked multiple reasons, such as creating a large volume of pending cases, blocking justice in Moldova, lack of access to justice or multiple vacancies among judges and prosecutors. These, but also other risks and constraints can be mitigated by preliminary preparatory actions for the process, including by increasing the number of graduates of the National Institute of Justice, introducing an ex-ante evaluation of candidates for the position of audience in the NIJ, judges, prosecutors and other actors in the justice sector, thus avoiding blocking the Supreme Court of Justice, the General Proscutor’s Office or specialized prosecution offices, as well as facilitating access to the position of judge at the Supreme Court of Justice, by adjusting the eligibility requirements.
Due to the complexity and increased interest in the extraordinary judicial evaluation process, it is important to ensure efficient and proactive communication. This will involve extensive consultations and a comprehensive training exercise, testing to review possible limitations of the new mechanism. All this must be ensured before the actual evaluation process is initiated. The mechanism must be well explained to the citizens, but also to the honest and clean actors within the justice system, who could be the main promoters of the extraordinary evaluation, but also those who will have to carry out additional tasks to examine the cases.
Ecaterina Popșoi is an expert in the Justice and Rule of Law Program at the Institute for European Policies and Reforms.
Cătălina Ceban is an intern within the #StagiuIPRE2021 program and the #BeTheChange initiative of the Institute for European Policies and Reforms. Cătălina is master student at the University of Warsaw (UW).
This Commentary is prepared within the project “We and Europe – Analysis of EU-Moldovan relations through innovative media and analytical products”, implemented by the Institute for European Policies and Reforms (IPRE), in partnership with IPN, Radio Chisinau, Zugo.md and with the support of Konrad Foundation Adenauer. The opinions presented in this commentary belong to the authors.