Pre-vetting – the first step in resetting the justice system in Moldova

In the last 10 years, the justice sector of the Republic of Moldova has conducted several reform efforts to make it more efficient, also focusing on the enhancement of the integrity and professionalism of judges and prosecutors. However, despite the adoption in 2016 of the updated new legal framework on integrity verification and prevention of conflicts of interest and efforts to improve this mechanism, it has not delivered the expected results. The activity of justice institutions does not enjoy currently a high level of trust, with suspicions of lack of integrity, corruption, political control, but also the influence of criminal groups and the kleptocratic system on the justice sector. Nor has the ordinary evaluation mechanism of judges and prosecutors, which involves assessing their integrity and professionalism at various stages of their careers by the Superior Council of the Magistracy and the Superior Council of Prosecutors, proved to be effective as it does not provide for a verification of integrity in terms of the difference between income and expenses or assets held and in terms of the admission of conflicts of interest. Moreover, under this system integrity is an evaluation criterion and not an eligibility criterion. Such an approach is wrong, because integrity cannot be evaluated in a percentage value, but must be considered an essential criterion for access or promotion to the position of judge or prosecutor[1].

In order to address the chronic challenges of the justice sector of the Republic of Moldova related to lack of integrity, corruption, selective justice, etc. The Ministry of Justice on 15th of November 2021, published a concept on the extraordinary evaluation of judges and prosecutors (“vetting” procedure), it envisages a unique extra-judicial mechanism for evaluation of the integrity of judges and prosecutors. According to articles 123 para. (1) and 125¹ par. (3) of the Constitution of the Republic of Moldova, the self-administrative bodies are the ones that make decisions on the career of judges and prosecutors, and the concept published by the Ministry of Justice does not provide for a possible amendment of the Constitution to change the concerned task. The self-administrative bodies of judges and prosecutors therefore have a crucial role to play in the vetting procedure, and on the integrity and professionalism of the members of the SCM and PSC depends on the success of the reform. For these reasons, the vetting concept published by the MoJ in November 2021, provides for a procedure of priority evaluation of candidates for membership in the SCM, SCP and their specialized bodies (pre-vetting procedure), this being the first step in the process of resetting the justice system of Moldova.

Aspects related to the drafting and adoption of the pre-vetting Law

On the 1st of December 2021, the Ministry of Justice published the first version of the draft law on some measures related to the selection of candidates for administrative positions in the self-administrative bodies of judges and prosecutors (pre-vetting procedure). The draft law provides for the evaluation of the integrity of candidates for membership in the SCM, SCP and their specialised colleges by an independent Evaluation Commission. The draft law was sent for consultation to the Venice Commission and was subject to extensive public consultation between December 2021 and January 2022. The Ministry of Justice organised public debates on the draft law to which representatives of the justice sector were invited: judges, prosecutors, members of the SCM, SCP, lawyers, civil society, and other stakeholders, MoJ received several written proposals as well for adjustments to the draft law. On 17th of December 2021, the MoJ submitted the draft law for approval, and on 19th of January 2022, the Government approved an adjusted version of the draft lawfollowing the recommendations of the Venice Commission and civil society and submitted the draft law to Parliament. Although the version of the draft law submitted to the Parliament reflects most of the recommendations of the Venice Commission as well as the recommendations made by civil society, including IPRE, which sent to the authorities two legal opinions on the concerned draft law[2], at the time of examination of the draft law in the Parliament several contradictory aspects were still unclear:

• Aspects related to the identification and appointment of members to the Evaluation Commission by the development partners- the draft law lacks clear procedural provisions on how development partners should identify candidates for the Commission and how the Government should select the three candidates from the list proposed by the partners of the Republic of Moldova.
• Aspects related to the hearings of the candidates- the draft law provides for the hearings of candidates to be conducted in public sessions with audio and video recording, with the possibility of conducting a part of the hearing in closed regime, if the interests related to the public order, privacy or morality are affected. Venice Commission has stressed that public hearings could indeed discourage candidates who have something to hide but they could also discourage worthy candidates who don’t want to disclose information about their family businesses. Therefore, candidate hearings should not be held in public.
• Aspects related to the regulation of conflicts of interest- the draft law does not provide sufficient clarity on the mechanism for the regulation of the conflicts of interest for members of the Evaluation Commission. Thus, the draft law provides for an obligation for the members of the Commission to refrain from any activity that could give rise to a conflict of interest or any action incompatible with their membership of the Evaluation Commission, as well as to refrain from actions that could discredit the Evaluation Commission or cast doubt on the objectivity of its decisions. However, it is not clear whether a conflict of interest can be invoked, for example by the subject of the evaluation, what measures are taken if a conflict of interest is identified, and who will decide whether a member of the Commission should be recused if such a situation arises.

Nevertheless, on 21st of January 2022, the draft law on the pre-vetting procedure was voted in the first readingby the Moldovan Parliament without adjustments to the draft law approved by the Government. On 10th of February 2022, the draft law was adopted in its final reading with the vote of the “Action and Solidarity” party MPs, the opposition left the plenary in sign of protest, claiming lack of sufficient dialogue on the draft law and failure to adjust the draft law according to the recommendations of the Venice Commission. It should be noted that between the first and second readings, two public consultations were organised by the MoJ to which all interested stakeholders, including the parliamentary opposition, were invited. On 26th of January 2022, a consultation on the draft law was held in the Moldovan Parliament with the representatives of the parliamentary factions, which was not attended by the parliamentary opposition. Several adjustments were made to the draft that was already voted into law in February 2022.

Who will conduct the evaluation?

According to the legal provisions available at the moment, the evaluation of candidates for membership in the SCM and SCP and their subordinate bodies will be carried out by an Evaluation Commission composed of 6 members, of which: 3 members proposed by the development partners and 3 members proposed by the parliamentary factions (two by the majority faction and one by the opposition). The composition of the Commission will then be approved by the Parliament with a vote of 3/5 of the MPs. In order to depoliticize the pre-vetting procedure, the members of the Evaluation Commission cannot be persons who in the last 3 years have been part of a political party or have held the position of deputy, member of the cabinet of ministers, secretary general, secretary of state, head of cabinet, counsellor, assistant or secretary of the dignitary or civil servant in the Moldova public authorities. Likewise, persons who have held the position of judge or prosecutor in the last 3 years cannot be members of the Commission. The Commission will be assisted in its work by a secretariat.

Subjects to be evaluated

Candidates for membership in the Superior Council of Magistracy and specialized colleges subordinated to the SCM: College for the selection and career of judges; College for the evaluation of the performance of judges; Disciplinary College of judges, are subjects to the pre-vetting procedure. As well as the candidates for the position of member in the Superior Council of Prosecutors and the specialized colleges subordinated to the SCP: College for the selection and career of prosecutors; College for the evaluation of prosecutors’ performance; College for the discipline and ethics of prosecutors. We emphasize that the Law provides for a priority evaluation of candidates for membership in the SCM and SCP. However, the law does not provide clarity regarding the evaluation of candidates for membership in bodies subordinate to the SCM and the SCP.Thus, it is not clear whether the evaluation of the latter will take place in parallel with the evaluation of the candidates for membership in the SCM and SCP or after the conclusion of this evaluation. The Law also provides for the possibility of verifying the assets of relatives of the candidates under evaluation.

What the integrity evaluation means?

In the context of the pre-vetting procedure the integrity of the candidate is evaluated from two perspectives: ethical and financial integrity. Thus, the Commission will verify that there is no suspicion of corruption in relation to the candidate under evaluation, that he/she has not admitted serious violations of the professional conduct and ethics of judges, prosecutors, or other professions, has not adopted arbitrary decisions, has not admitted conflicts of interest. As regards financial integrity, the Commission will verify that the candidate has properly submitted declarations of assets and personal interests and that the assets acquired in the last 15 years correspond to the declared income. It will also be checked how the candidate has acquired assets, the sources of his/her income, the candidate’s compliance with tax obligations as regards payment of income tax, real estate, and customs taxes.

The evaluation process structure

At the beginning of the evaluation process, the candidate will submit a declaration of assets and personal interests for the last 5 years which will also reflect the candidate’s expenses for the indicated period. The candidate will also submit a declaration concerning his/her close relatives to carry out verifications in relation to this circle of subjects if necessary. The authenticity of the information provided to the Commission will be verified, as the Commission has access to all public databases and the right to request information from any public and private institution, including financial institutions. Thus, in its work, the Evaluation Commission and its secretariat have access to all relevant information concerning the candidate being evaluated, except for information that constitutes a state secret.

In addition to the examination of the information collected in relation to the candidate being evaluated, the law also provides for a hearing. The hearings will be held in public with audio and video recording. For matters affecting public order, privacy or morality, part of the hearing may be held in closed format. In this respect, we recall the recommendation of the Venice Commission to hold hearings in a closed format.

Which is the finality of the evaluation?

Following the analysis of the data collected by the Commission as well as the hearing of the candidate, the Commission will take a motivated decision adopted with the majority of votes of its members as to whether the candidate has passed or field the evaluation. The Commission’s decision can be challenged at the Supreme Court of Justice without suspending the election process. In case of failure to pass the evaluation procedure, the candidate will not be eligible for membership in the self-administrative bodies of judges and prosecutors. We emphasize that failure to pass the pre-vetting procedure does not imply the candidate’s dismissal from office but the impossibility of examining his/her candidacy in the elections for the position of member in the SCM or the SCP.

Conclusions

The proper implementation of the pre-vetting procedure of candidates for membership in the SCM and SCP and the subsequent vetting procedure of all judges and prosecutors could considerably contribute to improving and even overcoming the already chronic problems of the justice sector, caused mainly by the lack of integrity, independence, and professionalism of some actors in the system. However, the extraordinary evaluation cannot be treated as a universal solution for all problems the system faces.

Implementation of the extraordinary evaluation isolated from other processes is not sufficient to achieve the expected impact, as it is necessary to strengthen the whole system of public administration, the supervisory system and to ensure sustainable independence of law enforcement bodies. We also emphasize the importance of increasing the level of trust in the justice system, as well as the importance of ensuring maximum transparency in the conduct of the evaluation exercise so that there is no doubt as to its fairness and purpose.

*Ecaterina Popșoi is an expert within Justice and Rule of Law Programme of the Institute for European Policy and Reforms (IPRE).

This publication was prepared within the project EaP Cooperation for Stronger Democracy: Georgia, Moldova and Armenia”. The project is run by the Georgian Institute of Politics (GIP, Georgia), in partnership with the Institute for European Policies and Reforms (IPRE, Moldova) and the Analytical Center for Globalization and Regional Cooperation (ACGRC, Armenia). The project benefits from the support of the Netherlands Fund for Regional Partnerships MATRA for regional cooperation in the Eastern Partnership (EaP).

[1] OPINION on integrity verification of  judges at various career stages- https://ipre.md/2021/06/01/opinie-privind-verificarea-integritatii-judecatorilor-la-diverse-etape-ale-carierei/

[2] OPINION on the draft law on integrity evaluation of the candidates for membership in the self-governing bodies of judges and prosecutors (pre-vetting)- https://ipre.md/2021/12/20/opinie-cu-privire-la-proiectul-de-lege-privind-evaluarea-integritatii-candidatilor-la-functia-de-membru-in-organele-de-autoadministrare-a-judecatorilor-si-procurorilor/?lang=en

ADITIONAL OPINION on the draft law on several related measures for the selection of candidates for administrative positions in the self-administrative bodies of judges and prosecutors and the amendment of some normative acts (pre-vetting)- https://ipre.md/wp-content/uploads/2022/01/Additional-opinion_IPRE_pre-vetting-draft-law_20.01.2022_EN_final.pdf