The expert in anti-corruption, lawyer Cristina Ciubotaru, spoke about the judicial reform in an interview for the FES/APE foreign policy newsletter. We also talked about how the EU evaluates Moldova’s progress in the field of justice, but also what is happening inside the judicial system with the magistrates and the institutions designated to fight the widespread phenomenon of corruption. We are inviting you to read the interview in the lines below:

What is your assessment of how the Republic of Moldova implements the recommendations of the European Commission from its November 2023 report? Have the EU requirements been met or not? And what do you think about the recent assessment by civil society?

The European Commission’s assessment of the justice reform is political rather than realistic. The EC is a political body that has repeatedly expressed its support for the current government. There is probably also an electoral stake in “seeing” success in justice reform, which is by far the most important reform we have been promised. That’s why I think that, no matter how modest the progress, the conclusion of Brussels is and will probably continue to be that Moldova is a success story and that the country is getting closer to the European integration.

This evaluation by EC is strikingly similar to its evaluation from 10-12 years ago, when Moldova was dubbed “the frontrunner of the Eastern Partnership”, while the EU’s support for Maia Sandu reminds of the EU support for the PLDM leader, ex-prime minister Vlad Filat. In 2019, however, the EU’s excessive appreciation for the “the frontrunner” did not deliver an electoral victory to PLDM, and in the 2021 early parliamentary election, none of the PLDM’s former alliance partners for European integration passed the electoral threshold.

I’m not saying the history can repeat itself. And yet, if the electoral score does not allow the ruling party to stay in power or if in the future it has to share power with others, it would be good to understand that not only the chemistry between the EC and the politicians matters in the process of European integration. The citizens of the Republic of Moldova are also important. And some of them are in favour of European integration regardless of politics and EC preferences in Chisinau.

Governance failures seen up close cannot alchemically be transformed into successes by the EC’s assertion that from a distance they are seen as successes. Failures continue to be failures, only that their positive assessment by the EC discourages a part of the electorate, who get to say: ”I support European integration, but if Europe means this and that, then I don’t want this Europe any more”. The findings of the EU regarding the achievements that are inexistent discourages a part of the pro-European electorate. And the disappointment of even 10-15% of Moldovan population can divert the majority pro-European support.

Getting back to the progress of the justice reform today, I believe that another explanation for the overly optimistic assessment, beyond political considerations, are the alternative reports of the civil society. The last report you referred to is no exception. When it gets to confront the official reports presented by the authorities with the alternative reports of the civil society, the EC will undoubtedly see a progress which does not actually correspond to the reality in the Republic of Moldova.

The problem with EC evaluations is the lack of genuine “fact-checking” regarding what is really happening in Chisinau. The EU only sees what it receives in writing, on paper. And the main sources of information are the two kinds of reports: the official reports of the authorities and the alternative reports to the governmental ones, the so-called “shadow reports”, which are prepared by civil society. The basic idea is that a comparison of the two types of reports should allow the EU to draw some balanced conclusions. In other words, the alternative reports are the main “fact-checking” applied by the EU.

The problem, however, is that the civil society organizations, at least those active in the justice sector, that develop and submit such alternative reports are increasingly close to the government. Thus, their alternative reports are not that alternative anymore and merely confirm the official findings for the most part. During the public presentation of the last shadow report, I proposed that several well-known problems of the justice reform and the fight against corruption be reflected in the report, but my suggestions were not taken into account. And I’m not even surprised by this anymore.

Some members of civil society organizations can be found in many state structures, in addition to the Presidency, Government, Parliament, the Supreme Security Council, all sorts of commissions established in the justice sector: for selection, competition, evaluation, vetting, pre-vetting, etc. The same organizations and people manage processes and monitor how they are managed. Representatives of some organizations are omnipresent in state structures. They continue to present themselves as representatives of non- governmental organizations, even if they are no longer perceived as such.

With all due respect, these organizations are rather an extension of government in the non-governmental sector. All of them benefit primarily from the EU financial support. And so it happens that the EU basically pays to be misled in this way, or at least not to be told the whole truth.

Thus, the optics of governance ends up being supported by the shadow reports produced by these organizations. Like any other government, the current one too tends to exaggerate its achievements. And it is natural that pro-government non-governmental organizations do not contradict the government.

The extraordinary evaluation of the magistrates

How do you assess the progress of the pre-vetting and vetting processes? Are the results those expected by the authorities and how do you assess the speed with which things are moving?

I’m not of the best opinion about the vetting and pre-vetting processes. I followed them closely from the very beginning, from the first concept documents of the Ministry of Justice, the draft laws, the opinions of the Venice Commission. Now I am watching how they are materializing in the activity of the extraordinary evaluation commissions.

It saddens me that an idea of promoting integrity, a concept I care about a lot, has degenerated into what vetting and pre-vetting have become today: the politicization of justice. In fact, I believe they are the most effective tools for the politicization of justice that I have ever seen, despite the dire consequences for the litigants.

Regarding the speed of the reform, there is an interesting analysis on the web page of the Coalition of the UN Convention against Corruption published last year, in which the speed as well as the human and financial investment made in the Pre-Vetting Commission of Moldova are compared with similar investment for the external vetting of candidates to be appointed as judges with the Anti-Corruption Court of Ukraine and head of the National AntiCorruption Bureau of Ukraine. The author estimated that in Moldova it took 3-7 times longer to evaluate 4 times fewer candidates than in Ukraine. Finally, in relation to financial and human resources, it was found out that in Moldova, the Pre-Vetting Commission spent 7-10 times more person days than in Ukraine. Given that the mandate of the Pre-Vetting Commission has continued after the publication of the article to date, the final investment in person days could be much higher than last year’s estimates.

How do you see the vetting process for judges at the Court of Appeal? Half of them resigned before this exercise, and how many out of the remaining 20 judges or so do you estimate will pass the evaluation, since the press has reported previously quite big integrity problems with some of them? And how are things at the Supreme Court of Justice in this regard?

Before the vetting at the Court of Appeal, the vetting at the Supreme Court of Justice started, from where all the judges left. They stated at the time that they did not trust this mechanism. Right before

they resigned, the Supreme Court magistrates had examined the appeals of the candidates who did not pass the pre-vetting to be elected to the Superir Council of Magistracy (SCM) and the Superior Council of Prosecutors (SCP). So, the judges of the Court practically held the evaluation files in their hands and managed to understand the practices applied in the pre-vetting process. They overturned all decisions of the Pre-vetting Commission.

The Court of Appeal judges said the same thing initially, that they did not trust the process.

I personally noticed an episode in which Prime Minister Dorin Recean pointed the finger at three magistrates, who had issued solutions that displeased him. The Prime Minister publicly threatened them that they would not pass the evaluation. At the beginning of vetting, all those three magistrates resigned. And I’m not surprised they did.

I don’t think the judges resigned because they are corrupt or because they could not justify their assets. Now I’m sure that it’s not integrity that makes some judges stay in the system and it’s not corruption that makes others resign at the start of vetting.

It is not ok for political figures in the state such as the prime minister, the speaker of Parliament, deputies or the president of the country to point the finger at different judges and prosecutors and state that they should be “evaluated to blood” or that “they will not pass the evaluation”. On 1 June 2024 in Paris, the Association of European Magistrates for Freedom and Democracy (MEDEL) issued a statement in this regard through which it condemned the political attacks on the Moldovan judiciary by the executive and legislative power, stating the constitutional balance and the rule of law were endangered.

When politicians make promises about the outcome of a vetting that has not yet taken place, on behalf of commissions that claim to be independent, I understand very well why judges do not trust this vetting process. Anyone in their place wouldn’t have. Personally, I think it’s a clever tool to make the judiciary politically loyal.

At the Court of Appeal, I find that not many people are eager to be promoted to replace the judges who have left. Because that would mean passing the same vetting. And even if there were corruption problems, I’m not saying they don’t exist, but the worst problem with vetting is that it’s not independent from politics and doesn’t inspire confidence.

Should there be a new breath into the prosecutor’s office, with the election of a new Prosecutor General?

The Prosecutor General Ion Munteanu is not that new. He had been acting general prosecutor in the last two years. Drastic changes in the Prosecutor’s Office did not happen. Things are pretty much the same as they have been lately.

Mr Muntean said previously he could assume things that only a general prosecutor with a full mandate could. Such fears are not new, and it is not him to speak about them for the first time.

If we look at it from the perspective of the interims, the specialized anticorruption and anti-organized crime prosecutors in the Republic of Moldova have been active for long periods in interim situations. And this does not come from the current government, it’s a much older gimmick. Probably, the political powers had their reasons to be cautious, so that the fight against corruption and organized crime don’t unleash. It’s easier to remove an interim who becomes uncomfortable, as opposed to a chief prosecutor who is guaranteed a five- or seven-year term.

During the current government it has been proven that some interims in the justice system can last almost as long as a full term or even longer. And I agree here with the general prosecutor Ion Munteanu, that the interim is a way of keeping the head of a prosecutor’s office in insecurity and uncertainty, it does not allow him/her to fully manifest his/her managerial potential, while the prosecutors subordinate to the interim - the procedural potential. Prosecutors are thus forced to be comfortable in order not to create problems for those on whom the subsequent appointment for a full term depends.

I’m wondering, if an acting general prosecutor becomes a full-time prosecutor, is that a guarantee that things will change in the prosecutor’s office? Or maybe the interim was a trial period? A way to demonstrate loyalty before being entrusted with the full mandate? I am not saying that Mr Munteanu will necessarily be loyal to the government. We will see what happens in the future. But this is a valid question in relation to all the interim in the past in which the heads of different prosecutor’s offices were for long periods.

The competition for the position of Prosecutor General was spectacular. First, the contest was allegedly rigged by a member of the Superior Council of Prosecutors (SCP), whose integrity had not been suspected in the prevetting process. Then, the competition was cancelled and even a criminal trial started, with the SCP member resigning after only 2 months in office. Then, the criminal case also failed, when, at the repetition of the contest, the one who is now speculated should have won from the start won the competition, that is the current general prosecutor.

I do not know what the truth is, and I do not rule out that all those involved in the organization and failure of the contest, and the criminal proceedings were honest. It’s just that for the time being, General Prosecutor Ion Munteanu is not taking on too many things. Is he prevented from doing so or should we wait for some time? I wonder, if he was appointed the way he was appointed — with sacrifices, cancellation of a contest, and a criminal trial— in order to get into office, to do what…? To do things differently? Or to leave things exactly as they were in the period in which he was interim?

Infighting between anticorruption institutions

How do you assess the activity of the Anticorruption Prosecutor’s Office and the National Anticorruption Centre, and what are the causes of friction between the two institutions?

To be honest, the friction between these two institutions is also nothing new. The problem has only become more visible lately, although the rivalries have been going on for years. The enforcement institutions have always been somewhat more arrogant.

It is normal for prosecutors and anticorruption officers to have a more assertive discourse, to be brave, sure of their actions, daring, and provocative. Up to a certain point, the existence of a competition between the enforcement institutions is a matter of their intrinsic character and nature. So, it is not necessarily about hostility, rather it is about a competition, which has always existed between the National Anticorruption Center (NAC) and the Anticorruption Prosecutor’s Office (AP). The intelligent leaders of the NAC and AP have always understood that their effectiveness depends on the tandem work of these institutions.

What is happening lately, however, is something else. The brothers in arms in the anti-corruption fight, the NAC and the AP, were forcibly separated.

After the 2012 reform, the NAC under the leadership of the AP, focused exclusively on the fight against corruption, especially large-scale corruption. In 2016, this changed, when the Prosecutor’s Office was reformed, and the effect of the NAC reform was compromised. The Anticorruption Prosecutor’s Office has been assigned its own powers to fight high-level corruption. However, the prosecutors do not have their own operative, technical, etc. resources. They had to rely on NAC anyway. And the rivalry between the institutions deepened: “who is the boss?”, the NAC that has all these resources, or the prosecutors who carry out the criminal investigation in particularly important cases?

Also today there exists this competition, which is considered normal. For several years now, every time there are changes in the Prosecutor’s Office in the Republic of Moldova, we keep being told that a DNA ([National Anticorruption Directorate) is being created, just like in Romania. I heard this in 2012, and in 2016, and in 2019, and now when AP was separated from NAC.

The big problem is that the institutions in the Republic of Moldova are configured differently than in Romania. We can’t establish DNA in Moldova exactly as in Romania. We have to understand what our advantages and disadvantages are and create an institution that would work. It is enough to understand what enhances the efficiency of the DNA in Romania in order to create our own mechanisms that would similarly enhance the Anticorruption Prosecutor’s Office (AP) here.

But without destroying the NAC or merging the two institutions. Veronica Dragalin, at one point, said that the Anticorruption Prosecutor’s Office, which she leads, does not have enough resources in the NAC, therefore she is of the opinion that the AP should “swallow” the NAC. Then this conflict between the Prosecutor’s Office and the NAC was resolved politically, so that the NAC files would no longer be taken by the anti-corruption prosecutors, and the anti-corruption prosecutors would no longer work with the NAC.

How do you see the idea of an Anticorruption Court that would solve with celerity large-scale corruption cases? Is this idea viable or not and why?

I am a big supporter of the idea of creating an anti-corruption court in the Republic of Moldova and I will explain why.

There are states where the fight against corruption has a specialized approach. That is, special anti-corruption institutions are created. And there are countries that do not specialize in this, considering corruption as a crime like any other, which needs to be fought by the police, prosecutors and courts that examine all types of crimes.

In the Republic of Moldova, as in Romania, anti-corruption specializations were created. It was considered that there is a lot of corruption, that this is a serious problem, and for this reason we need to have specially trained professionals, whom to provide the necessary resources so that they can focus only on this criminal phenomenon, which is very serious for us.

In Romania, the National Anticorruption Directorate (DNA), the General Anticorruption Directorate (DGA), and the National Integrity Agency (ANI) were specialized.

In the Republic of Moldova there is NAC, responsible for prevention, education, and fighting corruption in all sectors, throughout the country. NAC does not have an exact counterpart in Romania, although it has many counterpart institutions in the world, for instance, in the Baltic countries. In the world, this institutional model is called universal, that is, the one that combines the functions of prevention, education, and fighting corruption. The universal model comes from the legendary Asian models of Singapore and Hong-Kong.

In the Republic of Moldova, there is also the Anticorruption Prosecutor’s Office (PA) and the National Integrity Agency (ANI), just like in Romania. There is also SPIA, an internal protection and anticorruption service of the Ministry of the Interior, rather the equivalent of the Romanian DGA.

Therefore, both in the Republic of Moldova and in Romania we have certain specialized bodies for preventing and fighting corruption. But the results and efficiency of all these special bodies ultimately depend on the court’s decision.

Even if there is a lot of talk in society about corruption, the judges, not being specialized, cannot give priority to corruption cases, because all kinds of cases get on the judges’ desks, and their workload is constantly increasing, especially because of the vetting and pre-vetting from the judiciary. So, to the extent they have the time, the judges examine corruption cases, along with many other types of cases.

I personally think that the anticorruption court would have been an excellent alternative to all the vetting which is done at the moment. People’s dissatisfaction with the judiciary in the Republic of Moldova is related to the examination of high-profile cases, the absolute majority of which are corruption cases. But they represent a small percentage of the total volume of cases. The number of corruption cases is less than 1% of all categories of cases that make up the workload of the courts.

In general, ordinary people rarely end up going to court. They have no way of forming their own opinion about what justice is and how it is done. Citizens perceive justice only from what they see on television. And on TV they only see what politicians or journalists tell them. If the essence of justice reform is “thieves, to prison!”, we should understand very clearly that this is about a very narrow category of cases.

The annual number of corruption cases submitted to the court by prosecutors is up to 200, maximum 300. However, this is not even half of the annual workload of a single judge, which today ranges between 500-1,000 cases annually.

Through the judicial reforms, we today “terrorize” in a way the entire judicial system, seriously affecting the functioning of the system throughout the country, on all categories of cases: divorces, debts, thefts, inheritances - everything and anything. Corruption cases are no exception. We turned the court system upside down and almost blocked it. And these extraordinary evaluations called vetting continue to paralyze it more and more.

Why did we need such a reform? Because we wanted to see a different dynamic on certain “thieves, to prison!” cases, the number of which is less than the annual workload of a single judge. And in the end, none of those thieves we wanted in jail got there, so they never got to jail. On the contrary, the judicial system and the dysfunctional prosecutor’s offices because of the reform only increase the psychological comfort of thieves.

In the Republic of Moldova there are around 400-450 judges and 600-650 prosecutors. Some of them are corrupt and give us big headaches. But no matter how much our head hurts from them, pills with a focused action on headaches are preferable to the guillotine. Or, if there is corruption in all state structures, for consistency, the government should apply the same vetting approach everywhere. And then nothing would work anymore, from kindergartens to Parliament.

Even if the corruption cases are not many, however, given their importance to society, no more than five judges could be specialized. That way we could provide what people have been waiting for a long time - speed and efficiency. This does not mean exclusively sentencing solutions. Prison only if it is proven that they are thieves and corrupt. Otherwise, let the innocent go free.

I do not think that the two approaches to justice reform are complementary: 1) the “guillotine” through vetting and 2) the “treatment for headaches” through the creation of the anti-corruption court. It would make more sense to try the headache pills before the head was cut off and not after. That’s why it seems rather pointless to me to discuss today the creation of the specialized anticorruption court. What could it do in today’s conditions but get bored?

The Anticorruption Prosecutor’s Office has been “bleeding” even before beginning of the vetting. Although the Parliament doubled their number of employees on paper, in reality, the number of existing prosecutors has already been halved, and the vetting of their integrity has not even begun. In addition to integrity, an anti-corruption prosecutor also needs courage. The prosecutor who only has integrity but lacks courage is not effective in fighting corruption. With prosecutors who are only obedient or with ones who have been worrying about vetting, the creation of a specialized anti-corruption court is completely useless.

If the judiciary and the prosecutor’s office ever recover, and dissatisfaction with their work continues, the idea of creating an Anti-Corruption Court could become relevant again.

Selective justice

What can say about selectivity of justice and what are your observations regarding this phenomenon during the current government compared to the previous governments before July 2021? I know you are monitoring this phenomenon within a Freedom House report.

Yes, I am doing this together with the journalist Mariana Rata, as part of a study for Freedom House. Based on the criteria developed by us, we have already been monitoring for several years the selectivity of criminal justice in high-profile cases. That’s why I told you above that most resonant cases are the corruption cases. Dissatisfaction that exists in society and among government with regard to justice is largely due to what is known as high-profile cases. This is where all the conclusions I stated above in this interview about judges, specialized anti-corruption prosecutors, etc. come from.

The know-how of this government is that those who have been involved in the justice reform are part of a special interest group that has leverage to influence justice. They are the same people who were also in different enforcement structures, ministries, Parliament, Superior Council of Magistracy. Certain criminal cases were of interest to the members of this group, whether it was the cases concerning the members of this group or the cases of their opponents.

In the case of the opponents of this group, the court proceedings were conducted in an unfortunate manner for them, while for the affiliates of the group – in a very gentle manner. At the same time, this group delivered the necessary course to the resonance cases, when a suitable political interest appeared.

For example, in the same period when the suspicion arose that the government and its political opponents, Igor Dodon and the Socialist Party, had planned and reached some electoral agreements for the presidential and parliamentary elections, the speed of the examination of the criminal cases in which Igor Dodon and the Socialist Party were targeted were practically put on hold at the Supreme Court of Justice.

Parliament voted several laws to remove a certain prosecutor from Igor Dodon’s case. The Parliament changed the conditions so that this prosecutor could no longer act within the specialized prosecutor’s office, and therefore could no longer support the state prosecution in the respective cases.

Parliament has also voted other laws that could change the fate of the examination of resonance cases. It was proposed to abrogate the paragraph of an article of the Criminal Code on the basis of which Igor Dodon was accused in another criminal case. The amendment was voted in the first reading in the Parliament, then the press noticed and the legislative procedure stopped. But the draft law has neither been withdrawn nor voted in the second reading yet.

Through these interventions, the Parliament favoured a defendant in a high-profile case so that the judiciary had no choice but to exonerate him. This is the most direct political influence on justice: you change the law, and justice applies it as you changed it. Changing the rules of the game in such a visible way by amending the laws through Parliament is an unprecedented method of political intervention in the act of justice.

Current judicial reforms have not reduced judicial corruption, rather they have perpetuated its selectivity. Justice becomes selective, primarily under political influence. The current political situation, in addition to the traditional methods of influencing justice, has discovered new forms of determining justice to be selective.

Thank you!