Fight
Corruption

“Republic of Moldova: the slow pace of the reform of the judiciary and slow progress in the fight against corruption, in particular insufficient progress made in the field of corruption prevention in respect of members of parliament, judges and prosecutors and, in this context, the political migration of members of parliament which is a source of political instability, notwithstanding allegations of political corruption.”

The text appeared in Resolution 2357 (2021).

Prior to this, in 2019, the assembly issued a report saying it was concerned by “the proximity of part of the judiciary to the political authorities”. Several attempts to reform the judiciary “have not been successful”, the parliamentarians said, pointing out that corruption remains a widespread phenomenon.

U4 issued a paper in April 2021, declaring that “outdated structures and corrupt practices mean true independence for judges is a long way off” in Moldova.

“Despite these efforts, serious allegations of corruption, vested interests, ethical issues and lack of transparency in the judicial system continue to be made by the Moldovan public, independent media and civil society. Public trust in judges is low (65% of Moldovans did not trust the judiciary in 2019) and various development partners have voiced concerns about selective justice, and judges’ lack of independence and integrity.”

“Moldovan courts have long faced the issue of inadequate and insufficient reasoning/argumentation of judicial acts. It represented an issue of major concern for the whole judicial system – there was a number of cases in which the European Court of Human Rights (ECHR) found Moldova in violation of its obligations under the European Convention on Human Rights because of insufficient reasoning provided by Moldovan courts for its decisions.”

Moldova remained a significant way from maintaining 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.

“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 Venice Commission, an independent advisory organization of the Council of Europe, said that Moldova needs to ensure that it is a viable constitutional state that is governed by the rule of law while the country’s institutions should work together to ensure the independence and integrity of the judiciary system.

The statement made by the Venice Commission came after six judges were removed from the Superior Council of Magistracy (SCM), an organization within Moldova’s judicial branch tasked with guaranteeing the independence of the judicial authorities. Despite their removal in 2019, SCM judges continued to meet and issue legal decisions which were challenged by Moldovan courts while the SCM itself was declared not functional by a Moldovan court.

The commission called Moldova’s public institutions “to find a long-term solution for the independence and integrity of the judiciary and prosecution services, in compliance with the Moldovan Constitution and with the international principles of democracy and the rule of law.”

The rule of law in Moldova is weak, with poor implementation of legal and regulatory frameworks. The justice system is widely recognized as being ineffective and susceptible to corruption and capture, with the main judicial actors (including judges, prosecutors, criminal investigators, and bailiffs) perceived as lacking integrity and independence. These issues also appear to be the main reasons for poor protection of property rights and contract enforcement, as well as inconsistent application of the commercial legal framework. Weak rule of law in Moldova is cited as a deterrent to foreign direct investment and private sector development.

Moldovan courts are not considered reliable in guaranteeing the property rights of citizens and foreign investors. In the 2019 International Property Rights Index, Moldova fell in the bottom 15 countries for protection of property rights due to scoring poorly in judicial independence, rule of law, political stability, control of corruption, and property rights protection, indicating that implementation of the legal framework is weak.

While the law provides for an independent judiciary, judicial independence remained a problem due to problems stemming from corruption and selective justice, in which the law was not applied equally to all and was often selectively enforced for politically motivated reasons.

Selective justice remained a problem and lawyers complained of instances in which their clients’ rights to a fair trial were denied. Several prominent politicians detained during the year alleged selective justice and abuses of their right to a fair trial.

The government took steps to combat corruption and increase the independence of the judiciary and capacity of anticorruption agencies. Despite some improvement, corruption remained a serious problem. There were numerous reports of government corruption. Corruption in the judiciary and other state structures was widespread. The government, including parliament, continued to prioritize judicial reform and anticorruption efforts, including through removing legislative obstacles to confiscate unjustified assets acquired through illicit means and holding trials in absentia for individuals accused of corruption, increasing transparency, pursuing asset recovery and prosecution of corrupt former officials and oligarchs, and implementing vetting of judicial and prosecutorial oversight bodies.

There is a growing realization that justice reform initiated and conducted with Western support over the last decade, and based on the implementation of existing best practices, might not be the most effec¬tive approach considering Moldova’s conditions. With corrupt courts and a public pros¬ecutor office that is still connected to former kleptocrats, Moldova is a model weak state.

As voiced by Moldovan civil society experts, the Moldo¬van legal system is very lenient towards corrupt judges; it is hesitant to sack them or to confiscate their ill-gotten gains. This represents a form of “professional solidarity”, as one observer puts it, and the public space is filled with anecdotes about corrupt judges and prosecutors. However, very little has been done by state institutions to inves¬tigate and sanction the violations of these actors and publicize their wrongdoings. Indeed, journalistic investigations are the only sources through which the public has been able to learn about the details of breaches of law perpetrated by actors with¬in the justice system. Such investigations have revealed that a significant segment of judges in the superior courts, as well as pros¬ecutors, tend to receive expensive donations and gifts from friends and families, including apartments, parcels of land and vehicles. It should not be sur¬prising then that an International Repub¬lican Institute poll published in December 2021 revealed that the prosecutor’s office and the courts of justice were the public institutions viewed the least favorably: only 2 per cent of respondents had a “very positive” opinion of them, while 59 and 60 per cent expressed negative views of the respective institutions.

Freedom House’s (FH) 2021 Freedom in the World report on Moldova, stated that “Moldova’s judicial branch continues to be highly susceptible to political pressures that hamper its independence” and “due process rights are poorly upheld in the Moldovan justice system.”

The ICJ called on Moldovan authorities to effectively implement their justice reforms in line with international standards during the discussion of its third Universal Periodic Review before the UN Human Rights Council.

The ICJ commends certain reforms carried out by the Moldovan government, including those on the Supreme Council of the Judiciary and the judicial disciplinary system. More efforts are however needed to ensure that such reforms are effectively implemented in light of the international standards of independence of the judiciary and do not remain only on paper, as has occurred in the past.

The report is called "Only an empty shell": the undelivered promise of an independent judiciary in Moldova

Both the public and the stakeholders of the justice system typically do not yet perceive an amelioration in access to justice or in the independence of the judiciary. The ICJ delegation met several stakeholders who said the situation of the independence of the judiciary is far worse now than in 2012 – some even said worse than during the Soviet times - and almost none had confidence that it would improve. The leitmotiv the ICJ heard is that the reform process left Moldova with, broadly, good legislation but with a poor, insincere and ineffective implementation.

A mentality of excessive hierarchy in the judiciary and of the judge as having a merely notary role to the work of the prosecution office (called by some experts met a "Soviet mentality") is still prevalent among judges, even despite the fact that the majority of judges are young and have been appointed after 2011.

The mission heard from several stakeholders that, these changes of personnel notwithstanding, this orientation and attitude persists, transmitted from generation to generation of judges. The ICJ mission saw first-hand that a system of deference to the Superior Council of Magistrates and the Supreme Court of Justice still exists in the Moldovan judiciary.