The integrity ensuring mechanism in the Justice sector is still defective as the authorities’ biggest arrear is the setup of a functional National Integrity Authority (ANI). Also, the issue of judgments’ publication on the courts’ portal still triggers heated discussions between authorities and exponents of civil society, though a new regulation that was supposed to eliminate all the deficiencies was voted by the Supreme Council of Magistrates (SCM) a month ago or so. These and other related challenges were addressed in the public discussion "Integrity of Justice between two reform strategies: challenges and perspectives", organized on Thursday, November 16 by Freedom House and the Center for Investigative Journalism.
The participants discussed arrears in integrity mechanism reform of Justice sector actors. Minister of Justice Vladimir Cebotari admitted that he is not satisfied with the Justice Reform Strategy implementation to this effect.
"We are not happy because we expect other results. Also, we should admit that many of the actions of the Strategy have been taken: the development and approval of the national framework for the setup of ANI, the new law on the declaration of assets and interests, related framework, the new tools for its implementation. The institution is still inefficient –a chairman, vice-presidents, employees were not appointed, the software by which starting with January 1 we have to present the statements on assets and interests, is not implemented. The contest in the ANI is cumbersome and slow, but fair, because there is no outside involvement in these processes, and the members of the Integrity Council have been fairly elected, in line with the law", said Vladimir Cebotari.
Lilia Ionita from the Center for the Analysis and Prevention of Corruption admitted on one hand that progress was attained and on the other hand she said that selection of the members of the Integrity Council was "a sad experience". "If we read the Strategy implementation report, we can say that officially it works well. The actions in Pillar IV were met at 84%. If at initial stage of Strategy implementation we had a 21% level, the trust has increased three times this spring. (...) Lack of communication lately. The authorities in the justice sector did not reports on the problems and did not identify solutions to these problems. At some point, the sector has closed down, some problems have remained inside, or they have been just a clutter of information, which normally creates suspicions. The latest developments in terms of anonymity of judgments prove this situation", said the expert.
In the opinion of Ion Guzun from the Legal Resources Center in Moldova, one of the most important actions but unaccomplished, from his perspective, is setting clear criteria for the judges’ promotion at the Supreme Court of Justice. "I believe this is one of the actions that would have contributed much more to building trust in Justice sector. On the other hand, we see that policies in the field are improving. The legislation, some practices change, so we cannot talk that things are not balanced. The fact that the civil society criticizes is beneficial, it is the only way we can communicate when we are excluded from certain processes of working out documents", said the lawyer.
Member of SCM Anatolie Turcan spoke about the new provisions under which the composition of the Disciplinary Board was cut from ten to nine members, of which five are elected by the General Assembly of the Judges, and four are members of the titular professors, representatives of civil society. "Currently, we have difficulties in selecting the members of the Disciplinary Board on behalf of the civil society. Nobody wants to exercise this difficult task to sanction the judges who commit infringements. An approach should be worked out on how to make more attractive the seats in the judiciary, which will inevitably lead to building trust and integrity", said the magistrate.
"21 judges prosecuted for issuing illegal decisions – isn’t that fight against corruption? Isn’t that the fight with them the answer to what the state wants in this system? It is. Corruption exists, unfortunately, from top to bottom. In education, NGOs, among journalists, in justice. We should deal seriously with them, and we do it. "(Vladimir Cebotari, Minister of Justice)
New Regulation on publication of judgements, not yet applied
One current issue that triggered debates concerned the publication of judgements on the portal of national courts, though the SCM voted on October 10, an alternative regulation proposed by the SCJ, which provides for a return to the possibility of searching by name the judgments and guarantees "maximum transparency of judgments by implementing the newest and most practical ways to search for the information contained therein." "The new regulation has not yet been published in the Official Gazette because the document has to be translated into Russian. We believe that it will be published soon and it will be mandatory for all courts ", said Vera Toma, a member of the Superior Council of Magistrates. Among other challenges faced by the system, she listed the issues of building the society’s confidence in the Justice sector, minimizing the influence of politics and improving the quality of justice act.
"I know that in the Republic of Moldova, if wanted, a document is published in the Official Gazette just the day after its adoption. A month or something to translate a three-page document does not seem to be a reasonable term. I think there is something else going on here and I hope this document will be published, but mostly implemented. I hope it's not a deliberate delay", replied journalist Victor Mosneag from Ziarul de Garda.
He pointed the authorities' insistence on anonymizing court decisions under the pretext of personal data protection: "Ultimately, I could accept the depersonalization of court judgments, but let us do that right. Why anonymize the name of the prosecutor, judge, lawyer, the amount of litigation or the companies involved? It is difficult for a journalist to work with such judgments. I get the impression that the journalists were drawn into a fake battle to distract them so that to prevent them from writing about much more important things. "
"The Personal Data Protection Center has recently showed a lack of institutional fair play. They often invite experts from Serbia, Croatia, and Armenia to tell us that all judgments must be anonymous. I think we deserve something better", said Teodor Papuc, deputy secretary-general of the SCJ. He presented opposite examples from Italy or the UK. Investigative journalists pointed, among others, the communication issues they face mainly in the courts that lack functional press services and getting a response from a judge can take up to several months.
Polygraph test and judges and prosecutors' verification by SIS - necessary or not?
Representatives of the Justice sector and members of the civil society discussed about the deficiencies in the process of the candidates’ verification for the seat of judge and prosecutor by the Security and Intelligence Service (SIS). "It is an outdated law that should no longer exist, because the SIS, as structure of the executive power, must not be involved, in terms of the independence of the Justice sector in determining the judge compatibility. When it comes to compatibility, there is a procedure that can be attributed to the Judicial Inspectorate of SCM, that verifies the necessary aspects, collects information and presents the informative note to the SCM that decides on the person’s compatibility", said Dumitru Visternicean, member of SCM.
"One aspect that triggered discussion is that in its opinions the SIS assesses the quality of judgments taken by a magistrate. It is not for any authority other than the SCM to perform such assessments. Unfortunately, we have no levers to prevent this and this happens very often, including in the case of final and irrevocable judgments", added his colleague, judge Anatolie Turcan.
Mircea Rosioru, chairman of the Superior College of Prosecutors (SCP) referred to the relevance of these opinions to his colleagues: "Although such verifications involve some interference in private life, there have been cases when these opinions revealed relevant information that later substantiated certain SCP decisions , by taking the decision that the candidate is incompatible with the position. "
Director of the National Institute of Justice (NIJ) Diana Scobioala recalled that starting with 2020, the NIJ will be the only way of future prosecutors’ access to profession. To this effect, certain difficulties are found in the procedures of candidates’ evaluation. "In our opinion, it is logical that all verifications on behalf of the SIS and the polygraph or medical tests, should occur before the admission to the NIJ because there is a provision that when a graduate candidate does not want to participate in the contest, one is obliged to return the amount of money invested by the state in the training process - about 100,000 lei per candidate. If the person attends the 18-month training course and then fails the polygraph test, ie one is not accepted for this job, we lack legal basis to return these sums. Either you perform all the verifications before the studies or you change the legislation", was Scobioala’s call for the decision-makers.
"Polygraph testing should not be applied to the Justice sector actors. As for verification, it must be applied in line with international standards, and the most appropriate to this effect is the SIS. It is precisely not to affect judicial independence that these opinions are consultative and not compulsory. Of course, the law should be amended, because it was adopted in 2008 and the 2016 amendments do not make the situation clearer. This is possible in the light of some analyses, so that all the unsafe provisions can be encompassed”, concluded the anti-corruption expert Mariana Kalughin.