Video // Criminal prosecution against magistrates, from law compliance to abuse. Viorel Morari: „If a judge does not trust own colleagues, what about a common citizen?”

Anastasia Nani
23/02/2017
Şedinţa Clubului Jurnaliştilor de Investigaţie. Foto: CIJM

In the last three years, the current general prosecutor and his predecessors have filed to the Superior Council of Magistracy (SCM) 50 complaints demanding criminal liability of 64 judges. 37 of prosecutors’ requests were accepted. However, few cases were in the attention of the public opinion.  Civil society reacted after SCM allowed prosecution of magistrate Domnica Manole from the Court of Appeal Chisinau and of judge Dorin Munteanu. In their case, prosecutors have invoked Article 307 of the Criminal Code - "The pronouncement of a judgment, decision, conclusion or decision contrary to law." Representatives of  NGOs that are monitoring the situation of justice questioned the fairness of taking  such a decision on Dorin Munteanu, because, after the case of Domnica Manole came in sight of Supreme Court of Justice, the court raised exception of unconstitutionality of Article 307. This was discussed on Wednesday, February 22 in the Club of Investigative Journalists.

"In both cases, that of Domnica Manole and  of Dorin Munteanu, we talk about judgments  passed by magistrates and prosecutors initiate  cases because these are not fair from their viewpoint. As for the case of Dorin Munteanu, there are more questions particularly with regard to the approval given by the SCM as the article under which criminal proceedings were initiated - Article 307 of the Criminal Code - was challenged in December by the college of the Supreme Court of Justice at the Constitutional Court. How can you accept prosecution of a judge based on an article questioned by the Supreme Court? Article 307 is a controversial article and yet, we will see what is the solution of the Constitutional Court", said Nadejda Hriptievschi, expert from the Center for Legal Resources in Moldova.

In the last three years, prosecutors asked permission for criminal prosecution in respect of dozens of judges, and they invoked the Article 307 of the Criminal Code, but only a few of them came in the sight of the public opinion, said Teo Cirnat, member of SCM. According to him, in 2013-2016, 50 complaints of general prosecutors against 64 magistrates were examined in the meetings of the Council. 37 complaints were admitted. According to  the member of SCM, many judges, including the 15 magistrates involved in the "Russian laundromat" were prosecuted under Article 307. "Under the same article, we have judges who have pleaded guilty, like Rezina judge who admitted to have illegally released Vitalie Proca. As for the judge Sergiu Balaban, who faked a case, he was imprisoned and then was pardoned by former president Nicolae Timofti", he said.

Teo Carnat hinted that certain cases, as that of Domnica Manole or  Dorin Munteanu should not be discussed in public as long as the investigation is ongoing. "As long as there is a judiciary, prosecution authorities have the constitutional obligation to investigate and to prove guilt. Any intervention from other persons or at someone’s request is interference in the prosecution. (...) We must all be equal before the criminal law. Even if you have the status of judge, you must be brought to justice. I, personally voted with all complaints filed by the general prosecutor, because the Superior Council of Magistracy is not law enforcement, it does not make justice", said member of SCM.

"If you agreed to come to SCM, you are required to guarantee judicial independence. Under the Constitution, you must analyze thoroughly complaints of the general prosecutor and see if there is at least prima facie evidence supporting the charge or reasonable suspicion. The positive obligation of the state is to guarantee an independent judiciary for its citizens. This is what made my case to be resounding", reproached Domnica Manole  to the SCM member.

In this context, lawyer Veronica Mihailov-Moraru, who represents Domnica Manole said that the complaints against judges should be examined in open sessions, which did not happen. Thus, the society would find about other cases and would react and SCM would gain society’s trust. "The Venice Commission said that any disciplinary proceedings brought against a judge must be public and transparent, because it is of major public interest. In some cases, when privacy is endangered, it can be closed. There is the law on  SCM that stipulates transparency or publicity of examining such complaints, we have international standards. Yet, SCM examines these complaints  in closed meetings and ground it  by a regulation of internal organization of SCM, that  is an inferior act  to the Law on  CSM and international standards. (...) SCM should gain society’s trust by justifying its decisions", said the lawyer. 

Head of Anti-Corruption Prosecution Viorel Morari said that a case against a judge undergoes several filters until finality. "Social debates are not always based on all issues considered when it comes to lifting the immunity of a judge. Article 307 applied in a case of a judge, has some protective filters. The first is the SCM consent. The Council  must start an internal investigation before taking a decision. Another filter is criminal proceedings initiated by the general prosecutor. Then, the case against a judge goes to court, being judged by own colleagues. If a judge does not trust own colleagues, what about a common citizen?", asked rhetorically Viorel Morari.

The meeting of the Club of Investigative Journalists was conducted under the project „Mobilizing civil society to support judicial integrity in the Republic of Moldova”, carried out by the Center for Investigative Journalism and Freedom House, with the financial support of the US State Department.  

Anastasia Nani
23/02/2017




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