Failure of the vote of no confidence against the Minister of Justice in the Moldovan parliament from the end of October was an opportunity for Minister Sergiu Litvinenco to remind, from the legislature tribune, about the vision of the new government with regard to the steps to be taken in the justice sector reform. The latter is the most more important area, which, once brought to normal, will contribute to the proper functioning of the rule of law. The next steps in the reform of the judiciary have been reconfirmed, namely how the evaluation mechanism of prosecutors and judges is seen.
The new government has high expectations from this mechanism, hoping that it will remove corrupt and compromised people from the system and bring in competent and honest prosecutors and judges. The impact of the reforms remains to be seen. The haste with which the Moldovan government is acting has raised criticism or doubts about the immediate results of the launched reform. The government is not even hiding it - it wants to put into practice the promises with regard to the fight against corruption made in the election campaign, which brought the leader of PAS Maia Sandu to the helmet of the state, and then, has ensured the success of the political party, which managed to obtain a comfortable majority in the Parliament. The early parliamentary elections of 11 July 2021 gave a clear and strong mandate to the proreform forces to implement an ambitious anti-corruption agenda, improve the justice system and fight poverty, in compliance with the Moldovan commitments under the Association Agreement with European Union.
The fight against corruption in the Republic of Moldova is not an easy task. The extremely corrupt system has so far swallowed up everyone who tried to change it. And there were not a few. The question is whether the current government will be able to learn from the previous mistakes, come up with a new fighting tactic, avoid slippages and excessive politicization of reform processes, but most importantly, will have enough brave, competent and honest people to destroy this corrupt system. The right people would be the basis for success in the justice reform and elimination of corruption. Legislation and institutions are tools through which professionals can carry out reforms. The results of the reforms will depend proportionally on how skilfully they will handle the instruments.
First of all, there must be honest people in the Superior Council of Magistracy, and the future composition of this structure is extremely important for the smooth running of the reform. Here the voice of judges and their courage inside the system will make the difference, excluding those who do not deserve to remain in the system and promoting those who can change things. Let’s see if we have that critical mass in the judiciary determined to change things. This refers also to the prosecutor’s office; the change should come from within the system. Removing the corrupt and incompetent from state institutions, and especially from the justice system will not be an easy task, but the cleaning up will happen as it is inevitable. But who will replace the corrupt ones? This is going to be the hard part of the reforms.
Political subordination of magistrates
For years there have been staff reshuffles; the communist government from 2001 to 2009 has forced many prosecutors and judges to leave the system, as well as other state institutions; then Plahotniuc’s government came and swept away part of the staffing on which the system was based, operating with arrests and madeup cases, and replacing them with people loyal to the party leader. I’m not saying professionals did not stay in the state structures, otherwise this state would not exist anymore, however, many honest people now who have been dedicated to their profession and who stayed in state structures, have Damocles’s sword hanging over their heads - they are treated with suspicion for the simple fact that they worked during previous governments. Now, from the rostrums of the leadership, it is clear to them that they have to leave. Many of them did the impossible, working honestly, and fulfilling their mission. They have now become the most vulnerable to the new government, and some, even if they have not made compromises, have been forced to leave, because the new political order demands it and because they are trying to find faults with those who have worked with the previous governments. However, also some who have made compromises have also left and I know that the boomerang could reach him. But who stays in the system?
There are officials, including in the justice system, who have done well along the time, and not because they have always been the best, but because they knew how to act next to the new leaders. Or because they were part of Plan B and C of those who run the corruption mechanism, from which, for the time being, no nut has fallen. And they, according to the plan, must remain in the system, sabotage, monitor from the inside what and how it is being done or skilfully take certain actions in order to compromise the good intentions of the reforms. I do not know if this is taken seriously by the new government. But even the division into ours and yours, “he who criticizes us is against us,” does not seem to me a good attitude in the starting point of the cleaning up. Getting out of the election campaign and the euphoria of winning the election, getting down from the barricades and giving unconditional confidence to the people in the system would be, perhaps, the best way to success.
Need for fresh energy
It is the people who will carry out the reforms. Competent and honest. Sufficient in number to make the changes. And the justice system should be represented by people of integrity, that cannot be influenced by the political power at the executive and legislative level. Without enough people of integrity in the justice system the reform will fail. Let’s not run before we can walk. The road paved with good intentions will not be sufficient without people, many people of quality. The people who worked in the election campaign for the party and who now have to be rewarded, are not enough and not even those who expressed their intention to work pro-bono in order to tick in their CVs or really challenged to test their skills and knowledge. External evaluation of prosecutors and judges is one of the tools with which the current government wants to clean up the justice system in which to bring competent people. The evaluation process will at best begin in a year, no matter how much the current political decisionmakers want a rapid process. At least these are the calculations of the experts in the field.
The detention and investigation in a criminal case for abuse of power and a few other charges of Prosecutor General Alexandr Stoianoglo seems to be part of the policy of cleaning up the justice system, launched by the current government, even though from the official tribunes they say the process is not politically influenced. Criticized by many human rights defenders, the manner in which the detention happened still raises disputes. In Stoianoglo’s tenure, highprofile corruption cases have made no progress. He was appointed by Igor Dodon as general prosecutor, after the Government led by Maia Sandu was dismissed through a vote of no confidence, which had tried to prevent the capture of the prosecutor’s office by Igor Dodon. Consequently, the cases involving Dodon and PSRM have been closed or put on the dead line.
The flirtation of the head of the prosecutor’s office with the controversial businessman Veaceslav Platon has left a heavy mark on the image of the prosecutor’s office in general. Why the general prosecutor Alexandr Stoianoglo was not evaluated and possibly dismissed legally as it was announced is not clear yet. According to the practice until now, when a new government was established, negotiations were held with the Attorney General. The latter resigned, but got some guarantees instead.
These were not widely discussed, but they xisted. Alexandr Stoianoglo aspired to remain in office, he even went to war with the government, crossing the “red lines”, as the Minister of Justice himself put it, but also with the European community, accusing a former EU ambassador of conspiratorial actions. The government has not tried to negotiate this time, even though some advisors suggested such a tactic as a solution to make the attorney general leave. Only after it was clear that there will be no negotiations, backstage agreements, and especially after the detention of the prosecutor general, followed by the detention of his deputy - prosecutor Ruslan Popov -the prosecutors in the system understood that others may follow. And resignations have started, even though they were presented as a disagreement with what is happening in relation to their superiors at the General Prosecutor’s Office.
Tactically, starting the fight against corruption and reforming the judiciary through a process of maximum intensity, the detention of the Attorney General being unprecedented, is a very good action. However, the slippages or mistakes admitted in a hurry or intentionally will not be able to be justified.
I’m leaving the procedural details to the professionals in the field. My expectations have been for the case against the Attorney General to be prepared very well, down to the smallest detail. But, from the very beginning, another name appeared in the order for the criminal investigation, which shows that the text of the order was copy-pasted from another procedural act and hastily copied with the name of the person in that act. This is to me disqualifying for a prosecutor who is appointed to deal with the case of the prosecutor general. In such cases, maximum professional diligence is expected from prosecutors in the preparation of all documents and in the taking of all procedural measures.
All the more so as this case is a relevant and important one for the further fight against corruption. Beyond that, the allegations do not seem serious enough not to fail during the criminal prosecution process or in a trial. I wish I wasn’t right. Some of the defenders have invoked several procedural violations and slippages in the process of detention and pre-trial detention of the Prosecutor General. It is known that in many cases prosecutors intentionally commit certain procedural violations which then, in the trial, lead to the acquittal of the accused person.
There are techniques and procedures already in place in this regard, which some defenders are talking about. In the case of Prosecutor General Alexandr Stoianoglo, his acquittal and victimization respectively, will only help him in a possible relaunch in his political career, which he has subtly announced about in his last Press conference. Condemning a former prosecutor general for concrete crimes would certainly be the hard part of a justice reform, and a clear signal that the fight against corruption has begun. But this must be taken care of by the judiciary and not by the politicians.
Competent and people of quality will change things and bring them back to normal. But they must be encouraged, selected, and promoted through a depoliticized to the maximum process. The process should also be democratic and transparent, based on competitiveness criteria. Mistakes, defiance of constitutional norms and the rule of law will be penalized and nothing will justify them, even the results in the justice system reform and the fight against corruption.
This editorial was published in the newsletter on foreign policy and European integration issues of the Republic of Moldova, edited by Friedrich Ebert-Stiftung together with Foreign Policy Association.