We have discussed with the presidential adviser on justice issues, Olesea Stamate, about how the judiciary in the Republic of Moldova could be reformed and how viable the solution of the external evaluation of magistrates is on the backdrop of the autocratic tendency of this increasingly closed and opaque judicial system, according to the foreign affairs bulletin launched by Friedrich Ebert Stiftung and Foreign Affairs Association in Moldova (APE). She explained to us the resources behind a successful reform in this absolute priority area for further development of the Republic of Moldova in the spirit of democracy and European values. Read about this in the following interview:
You have visited recently the Council of Europe, where the CoE Action Plan for the Republic of Moldova for the years 2021-2024 was signed. Could you please explain to us what this document entails, especially in the area of justice?
This document has several components related to the justice area on various levels, including certain changes in the functioning of the judiciary, for instance the functioning of the Superior Council of Magistracy. The same is true of other institutions supported over time by the Council of Europe such as the Council for Equality and Elimination of Discrimination.
The document also provides for the promotion of alternative methods for non-judicial cases resolution. In principle, the document is a continuation and a deepening of what has been done in the last 5-10 years.
President Maia Sandu told the Council of Europe in Strasbourg that the fight against corruption remains her number one priority. How hard is the struggle with the political kleptocratic system of Soviet origin in Chisinau?
The fight against corruption is hard. I am referring here to all areas, both corruption in the political system and in the justice sector. Corruption is a widespread and deeply rooted phenomenon in the Republic of Moldova. This is very damaging and we see that cases of both petty and large-scale corruption exist in other countries too.
Corruption is everywhere, from petty to large scale, in all areas of activity and this has an impact on the lives of ordinary citizens, the investment climate, and the public budget because with budget money we pay the reparations following the ECHR trials. But not only. I believe that if we were to calculate the indirect damages of corruption, they would exceed ten times the damages we pay by executing the ECHR decisions.
But the fight against corruption cannot be waged by the president alone, because she does not have such powers. It is very clear that the fight against corruption has to be carried out by institutions with competencies in this field. I am referring here to the Anti-Corruption Prosecutor's Office, the National Anticorruption Center, the National Integrity Authority (ANI). However, these institutions are unfortunately malfunctioning. Specifically, they do not deal with what they should do for various reasons.
Did you also discuss justice-related issues during your recent visit with President Maia Sandu to Bucharest? If so, can you please tell us what it was about and how Romania could help us in this regard?
We discussed this issue though it was not necessarily the key topic of our discussion. However, this topic was also addressed with the representatives of the Romanian Senate, for example. There were some questions about how Romania could help us in the fight against corruption and in restoring justice in the Republic of Moldova. And the president said very frankly: “If you can send us some good anti-corruption prosecutors to Chisinau, it would be good.”
But I understand that this exercise is a little more complicated, not necessarily impossible. In addition, other issues related to justice and the situation of human trafficking, violence against women and other such justice-related issues have been discussed.
Reform of the judiciary, number one priority
If we were to make a list of reforms in Moldova, where would you place the judiciary reform?
Obviously, it would come first. This is undoubtedly the first reform we need. That is why it is permanently present in the President’s speeches. It was also the number one message in the presidential election campaign. This is one of the key reasons why she received that vote of high confidence from the citizens. Because we have come to understand it that as long as we don’t reform the judiciary, we cannot move forward.
And you will see this also in the polls. Most of the time, among the problems identified by the citizens, poverty, lack of jobs and then corruption are at the top. At present, in several polls, corruption ranks at least second, while the respondents from Chisinau put corruption in the first place. Perceptions have been changing lately. People understand that poverty is actually generated by corruption and that there is a direct connection between the two.
Is judicial integrity the key to judicial reform in the Republic of Moldova? What role should integrity (now at around 23%) play in the evaluation of judges? Is its role underestimated or not? What should be the weight of integrity in the judges’ evaluation process?
I believe that integrity is the key element and I do not know if we should assess this aspect as a percentage. Of course, there are other important elements such as professional training, experience, etc. Integrity, however, must be the first thing on the table. We are not saying here that there should be 50% integrity and 50% professionalism, no.
There must be integrity above all and integrity either exists or doesn’t. It can't be measured in percentage. If there is integrity, we can move on and discuss other issues as well, namely, if the judge is professional or disciplined and so on. Thus, integrity is paramount. Absolutely.
The presidential institution is promoting the idea of external evaluation of judges. How do you explain its necessity and what are its advantages?
Its necessity stems from the fact that, for many years now, the evaluation or cleaning of the system from within, using the available mechanisms, has not worked. When we came to power in 2019, I told my colleagues in the system. “Look, we are working on a bill on the extraordinary evaluation of actors in the justice sector. We are giving you a chance. As we prepare the legal framework for this assessment, you have the opportunity to demonstrate that you can clean up internally. If you do this, we don’t need extraordinary evaluation. So, it's very simple.” Unfortunately, this did not happen. There were certain attempts when we were in government. We had some opening messages, then the Prosecutor General came to the SCM and asked for the lifting of immunity of two judges who were being investigated for illicit enrichment.
So, there were some signals. But then the Sandu government has lasted only for five months and thus could not work miracles. We know that, in principle, the justice system is quite dependent on what is happening in politics. Somehow, the temperature in politics also has an impact on justice. But in order to avoid these permanent interdependencies in the face of changing governments, we need to think about some sustainable changes. And we believe that this extraordinary evaluation is exactly the beginning of these sustainable changes.
Yes, it will not have immediate effects. And even if we have a body of judges and prosecutors who have gone through this filter of extraordinary evaluation, we have no guarantee that things will be irreversible immediately. But we are beginning a long process that will help create an internal culture of integrity.
The critical mass in the justice system will no longer be made up of corrupt people but will be composed of honest people. The latter will have the interest to remove them from the system as soon as they notice any corrupt colleagues or at least marginalize them. Now, exactly the opposite is happening. We have honest judges who are marginalized and stigmatized by the judges or prosecutors who systematically break the law.
How could this hardcore of people deeply rooted in the system that oppose such reforms be broken? Some of them are elderly and do not leave room for the young people with a newer vision of how the act of justice should be done…
Namely, the extraordinary evaluation is one of these mechanisms that could allow this. Most of the time, those who are rooted in the system and corrupt are the ones who, of course, do not want to change the current status quo. They like the current situation.
And most of the time, obviously, they are the ones who participate in various schemes and acts of corruption. However, the extraordinary evaluation will identify them and eliminate from the system. Of course, there are also potentially shorter and easier ways, because extraordinary evaluation is a more complex and long-lasting exercise.
Need for resolution of major cases
And what would be the shortest way in this process?
The shortest way would be if we had a brave enough general prosecutor to initiate proceedings against at least 4-5 major actors in the judiciary, but also in the prosecution system. This could set an example for everyone else. They would thus understand that from that moment on it is no longer possible, you either comply and play by the rules or you will be brought to account. For this to happen though, some of these “big fish” must be punished. However, for now, this has been delayed, and we do not even see a dynamic in this regard. That is why, as mentioned above, the extraordinary evaluation remains the only viable opportunity.Do you see such a desire on the part of Mr. Stoianoglo or can we rather talk about the fact that he is also part of this system and the hard core, which we were talking about earlier? Sometimes he shows signs of wanting to get involved in investigating big corruption cases, but much remains at the intention level. How do you explain these sinusoidal movements of him?
It is difficult to understand what is happening with the Prosecutor General. Also for me this is sometimes a mystery. I think he is surrounded by people who have certain interests. But it is him who surrounded himself with these people, so he has no one to blame fro that. It is not us who appointed new deputies and interim heads of the specialized prosecution office. It is him who selected them.
If he wants now to shift the blame on someone else for this, he can only blame himself, because he could have chosen other people. I understand that there are certain problems at the level of specialized prosecution offices. Even before 2019, but also now during this period, several honest prosecutors have left the institution. They knew how to do their job and they could no longer work in such an environment. The question now is what kind of environment the prosecutor general created if such prosecutors left.
From my point of view, there is no will at the level of the General Prosecutor's Office for major changes. Yes, certain things have been done. We have seen, for instance, searches and criminal cases initiated against the leadership of the National Administration of Penitentiaries. We cannot say that nothing has been done, but certainly either the priorities have not been identified well enough or they are deliberately not being addressed.
A functioning ANI, one of the main challenges
How do you see the functioning of the National Integrity Authority (ANI)? What more should ANI inspectors do for better functioning of the institution in the conditions in which there has been observed that ANI still doesn’t seem to have the courage to start investigating into possible irregularities of bigger names in the Moldovan politics, but also in justice, and it is more about low-level officials?
We have the same situation here as in the case of the General Prosecutor's Office. There are cases that have been dragging on for months and even years, where the discrepancy between the assets acquired and the income obtained is obvious.
And it is difficult to explain why this is happening. It becomes visible somehow that ANI has been focusing a lot on elucidating conflicts of interest more often at the local level. Of course, this creates a sense of mistrust in the work of this institution, as ANI should be the first filter to deal with integrity in the public sector. It is the institution that prevents. Even if they notice things that have already been done, their control is preventive. This gives the opportunity to remove from the public sector the actors with certain suspicions of integrity so that you don’t have to initiate criminal investigations against them later on.
Why is ANI reluctant to go after the “big fish” that you’ve talked about earlier? When they approached some deputies, ANI withdrew immediately after the deputies had reacted. Why is this happening?
I think there is pressure excersised on ANI. I don’t know to what extent this is about the ANI management, but certainly pressure has been put on the integrity inspectors. Influence comes from different parts, trying to influence the integrity inspetors’ activity. But the basic problem is that the management of the institution doesn’t have enough courage to move forward, regardless of political colour or who is targeted.
Transformations certainly don’t happen over night and this behaviour is the result of the last 10-20 years during which the state authorities have functioned in the same way, trying to be somehow friendly with everyone, except the law, and maintaining good relations with everyone in power for any eventuality, because the heads of institutions don’t know where they will work tomorrow. But this is the happiest case.
How do you interpret the constant pressure put by political actors on the judges of the Constitutional Court (CC), who have been bombarding the CC with complaints from the political area in recent months? By the way, the chairperson of the CC, Domnica Manole, asked for security after she had been threatened.
This is unfortunate and of course there should be no such situations in a democratic state, but we are not there yet and I regret that certain actors who try to influence certain decisions of the Constitutional Court are making such abuses. Such attitudes cannot be tolerated.
On the other hand, it is satisfying that the judges have withstood the pressures and I very much hope that this will be a lesson for those who have tried to exert pressure and that such situations will not happen again in the future.
Igor Dodon has accused the Constitutional Court of being under the control of President Maia Sandu recently, but at the same time, we saw that PSRM has been intensely promoting the candidature of Vasile Bolea in order to take control of the institution through intermediaries.
I would rather see the ambiguity in the statements made by those from the PSRM following some decisions of the Constitutional Court. When the decision suits them and they like it, they praise the work of the CC, and when it doesn’t suit them, they accuse the Chairperson of alleged influences, which is inadmissible and seems to me a childish game on their part.
And let's not forget that one of the judges of the CC [Vladimir Țurcan] is clearly a person close to the PSRM. It's a known thing. Two of the Court's judges were also elected by Parliament following a contest which they annulled and insead two other judges have been elected. Back then, being dissatisfied with the result, they appointed two other judges, including Domnica Manole. I mean, it is them who appointed her and they now want to withdraw her from the Court. It is simply ridiculous!
On the other hand, I don’t believe the promotion of Mr Bolea to the vacancy of judge at the Constitutional Court is a serious intention. It was rather to distract the attention from the real candidates promoted by them.
How can the trust of Moldovan citizens in the justice sector be restored, one of the sectors with the lowest trust?
Confidence will continue to decline unless certain very tought and direct actions are taken to reform the justice sector. We are not necessarily talking now about reforms such as the adoption of strategies and laws. We had enough of such. They were written very nicely, only they didn’t have any real impact.
I believe that trust can be restored and that is exactly what we are working on. If the justice system works well, not immediately, but in a very short time, citizens will begin to regain their trust in it, because they will realise the judges or prosecutors are doing their job according to the law. And, step by step, the confidence level will increase. But this requires very tough reforms, starting from the top, and that is exactly what our concept of extraordinary evaluation provides for. Or, as I said, there is a simpler way, a scenario in which some “big fish” are caught and punished [among magistrates, for instance], and the others change by the power of example. Not immediately, but change is going to happen.
Some will quit, others who are close to retirement age will leave until the prosecutors have caught them, and the system will begin self-cleaning. But this requires some firm action from the Prosecutor's Office.
However, if this doesn’t happen, extraordinary evaluation remains the only solution. You have to understand that there is a vicious circle here in the judiciary: we have two governing bodies that were designed according to the best European practices, but work according to the practices of the Republic of Moldova. And that's a problem.
Even if you are not satisfied with the activity of some members of the General Prosecutor's Office or of the specialized prosecution offices, you cannot replace them now, because you are blocked by the Superior Council of Prosecutors (CSP). Only the CSP adopts the decision on the appointment of the Prosecutor General. Of course, the prosecutor is later confirmed through a presidential decree, but you can't do anything without the CSP's decision.
The SCP is perhaps a more closed caste than the SCM, because the prosecution system is also more closed than the judiciary. Both the SCM and the CSP, being in principle similar, are the essence of the system. And as long as the system is largely corrupt, with some obvious exceptions, these bodies are the mirror of this system.
And the circle continues. Even if the mandates of some SCM and CSP judges and prosecutors expire this year and towards the end of the year, elections should be organized and new members - prosecutors and judges – will be elected, the main body of these institutions remains unclean. Thus we are in a vicious circle that is not going to end until we start cleaning the system.