During February, 20 judges at the Supreme Court of Justice (CSJ) resigned. Their resignations, approved by the Superior Council of Magistracy (CSM), are very close to creating a deadlock in the judiciary: the CSM and the CSJ may not be able to function from the second half of March.

ZdG spoke to lawyer Vadim Vieru, Ilie Chirtoaca, president of the Legal Resources Centre of Moldova, lawyer Radu Jigău, judge Livia Mitrofan and MP Olesea Stamate, chair of the Legal Committee on Appointments and Immunities, about the situation of justice in Moldova and the solutions to prevent it from becoming deadlocked. The Association of Judges also came up with solutions in a press release.

Vadim Vieru: “The return of dismissed judges to the system is not a solution”

Vadim Vieru, a lawyer at Promo-lex, told Ziarul de Gardă some solutions on how to unblock the activity of the CSJ and the examination of the resonant cases.

According to the expert, part of the resignations of CSJ judges will take effect on Wednesday, March 1, as indicated in the judges’ resignation requests and in the CSM decision, while another part of the resignations will take effect on April 1, 2023.

“In principle, the CSJ is currently in a deadlock. The resignations cannot be annulled. Willingly or unwillingly. Unblocking the CSJ would mean judges from higher courts being promoted to the CSJ or being drawn from outside the system. How the CSM, which is not yet functional, will proceed is unknown. I hope that the CSJ will be operational after the General Assembly of Judges in March. That would be the solution.

As long as there is no functional CSM there is no solution, unless further legislative interventions or extraordinary measures are taken to unblock the situation. Some people are more optimistic and say that the deadlock could last several months. I believe that the deadlock would last at least six months and this would affect the citizens who have cases pending before the CSJ quite a lot. Avoiding this deadlock in a short time of 1 to 1.5 months is impossible or very risky.

The solution: legislative measures and extraordinary measures. We are talking about the field of justice, a very specific field in which there are guarantees which, according to the Constitution, magistrates must have. These (guarantees, n.r.) also concern the appointment and the way of appointment (of judges n.r.) to ensure that the constitutional provisions are respected. That is, including those measures and extraordinary legislation that could be adopted must be very carefully checked and endorsed, including by the Venice Commission. I do not exclude that (legislative changes n.r.) will be subject to constitutionality review. That means time – which cannot be solved in a month, a month and a half”.

“Given the situation created, the MoJ should have more effective communication. The DOJ should communicate ways to overcome the situation that they see. Obviously not all responsibility should be left on the Ministry.

This problem comes from the court system. I hope the situation will be clarified after the Judges’ Assembly on 17 March. If this Assembly takes place. I have explained quite dryly, because the situation is extremely uncertain. The return of the dismissed judges to the system is not a solution. The official position of the judges on the reason for resignation is: a protest action. If there were any grievances within the judiciary, in particular from judges at the CSJ, these issues should have been clarified before the resignation applications were submitted.”

Radu Jigău: “Judges resent the attitude of the government and society towards them”

Lawyer Radu Jigău, from the Centre for Analysis and Prevention of Corruption (CAPC), the institution that manages the Pre-Vetting Commission Monitoring Project, expressed his opinion to ZdG about who and what should now be done to avoid the deadlock and the situation in which the CSJ will no longer be able to examine cases.

“I don’t know how to answer this question. The deadlock is and will last as long as there are no judges and laws will not be adopted as a matter of urgency. The right laws should be passed in an emergency, not opportunistic laws. What we have is because the Legislature did not anticipate this gridlock when it began the process of cleaning up the judicial system.

The pre-vetting procedure is very time-consuming. The law on the Supreme Court of Justice is not passed and it is not clear what the fate of this law will be, as it is an opportunistic law after all. Parliament will therefore have to consider what to do next. The legal framework leaves very little room for manoeuvre in this situation. I think the legislature should have thought about the consequences when it initiated this pre-vetting procedure. When the pre-vetting law was passed, the Legislature was warned about potential consequences. CAPC warned about a potential deadlock.”

Radu Jigău believes that the judges’ resignation has several reasons. “The judges have a bias on the attitude of the government and society towards them. As a lawyer, I cannot say that judges are perfect. In Moldova, the judicial system is imperfect. It is a judicial system that has sometimes issued decisions based not on the legal framework but on humanity. It has been based on the idea that ‘this would be fairer’, ‘this would be more for the citizen’, leaving room for a lot of interpretation, leaving room for a lot of inconsistencies between rulings. We have contradictory rulings on the same situation and on the same cases precisely because the legal framework was not followed. It was not based on theory, but on “this is our practice”, “this would be correct”. There is this obstruction of judges because they think they are working hard. In reality, we have the situation we have. Citizens consider the judicial system corrupt,” Jigău believes.

“The draft law on the CSJ has appeared. If it is adopted, all those who are at the Supreme Court of Justice will lose the benefits they have acquired. Judges have thought of leaving the system and staying in integrity, staying clean. They leave the system, nobody checks them, nobody objects, and they get their benefits. They didn’t leave in corpore because there is pre-vetting. Judges care little about pre-vetting. By analyzing the Justice System Act, they anticipate the potential consequences for those who fail vetting. They (judges, n.r.) are afraid of what will happen in vetting, relegating them to pre-vetting. They see how candidates’ files are examined in pre-vetting and understand that they will not pass vetting. Resigning is a way of running away from responsibility. Not the rulings of the pre-vetting decision, but the procedures of how the files were reviewed. What they check and how they check it. In vetting there will be a lot of questions, against a lot of candidates. Just as there are many questions today about the candidates for the CSM”.

Radu Jigău believes that “in some cases” the members of the pre-vetting commission were too harsh with some candidates. “For examples it is premature, because the report will be made later, based on all the decisions that will be issued during the pre-vetting. I can’t elaborate for fear of interpretation. There are situations that can be considered harsh. For example, when we talk about transfers from abroad of parents to some candidates, obviously the money did not always come officially. Sometimes the money was sent in an envelope by means of transport, by means of acquaintances. Therefore, there were certain moments that the Commission had to take into account, based on the real situation in Moldova. The procedures scared the judges. The manner of examination, what was examined, how thoroughly it was examined, what information was examined. The judges understood that there would be shortcomings in their work. They were scared of the consequences that might arise as a result of vetting. We don’t know what the vetting will be like. Currently, we do not yet have a procedure for vetting. The Vetting can be much tougher,“ the lawyer concluded.

Ilie Chirtoaca: “The voluntary departure of the judges of the CSJ facilitates the scheduled extraordinary evaluation and the creation of the new CSJ”

At the same time, the president of the Legal Resources Centre of Moldova, Ilie Chirtoaca in an article on his blog about the effects of the resignations and what can be done not to slow down the progress of the reform, mentions that “any crisis first of all creates opportunities”.

According to the expert, “the voluntary departure of CSJ judges facilitates the scheduled extraordinary evaluation and the creation of the new CSJ. Now these efforts can be channelled including to identify 20 honest and professional judges, from within or outside the system, but also to encourage honest judges in the system to mobilize to ensure a quorum for the General Assembly of Judges, scheduled for 17 March 2023 and the creation of the new CSM (the mandate of the current CSM expired long ago)”.

The expert proposes six measures to “combat the effect of the resignations of judges from the CSJ, but also to reset the entire justice system” in Moldova.

1. Continue thorough checks of assets, professionalism, past and present using a mechanism similar to that established by the pre-Vetting Commission.
2. Hurry up the reform of the CSJ – it is unlikely that the current judges of the CSJ will change their minds and from mid-April the work of the CSJ will be virtually blocked. An urgent and radical solution is needed. On the one hand, the process of recruiting new judges must be speeded up. This requires a quick vote on the package of laws reforming the CSJ (which, according to the MoJ agenda, is to be approved in March 2023), which is still with the MoJ.

As a temporary solution, temporary judges from lower courts could be brought to the CSJ to hear cases that are not adjourned until new CSJ judges are appointed.

3. Effective public communication about the reform process – interviews and hearings of the Extraordinary Evaluation Commissions deserve to be shown in prime-time, at least on national TV.
4. Promise adequate remuneration for those who passed the vetting – High salaries of at least 4 thousand euros for those who will go to the Supreme Court of Justice after passing the vetting.
5. A new leadership at the INJ, increase the number of auditors and rethink the study methods under which future judges and prosecutors will be trained – Resignations in the system will most likely continue, especially among judges of courts of appeal. It is clear that the number of people studying at the INJ must be doubled, but not at any cost. A system must be introduced whereby candidates who do not have the necessary academic preparation to be good judges and prosecutors cannot be admitted to the INJ.
6. Reorganise the judicial map to the end, digitise justice and create proper working conditions for those working in the judiciary.

Magistrate Livia Mitrofan: “I believe that the biggest bottleneck of the CSJ will be in April”

Magistrate Livia Mitrofan of the Chisinau Court, Centre office, is one of the five magistrates who passed the Pre-vetting and is now running for the position of member of the CSM. “As of 1 April, 5 judges remain. Complete in three there could be, but if a request is made to recuse a judge, there will be no one to examine the files. I think the big bottleneck for the CSJ will be from 1 April.”

According to the magistrate, given that the judges have resigned, “unblocking can only happen when we have a functioning CSM that will organise a competition for judges at the CSJ. I think the CSJ, as a court, will be blocked for at least half a year”.

Regarding the possibility of seconding judges from the lower courts, the magistrate believes that “it would be an overstepping of the existing institutional framework and it would not be appropriate to resort to such methods”, and about the introduction of emergency legislative changes, the judge said that “the judges of the CSJ must be promoted by the CSM to be established. The big problem is that the CSM is not functional to second judges”.

“These days are the hearings for non-judge candidates. On 17 March there will be a General Assembly of judges. If the Assembly elects the four members of the lower courts and appoints them by 1 April, then from April we could have a functional CSM. That is if the mechanisms are used in good faith by all participants,” she said.

People with high-profile cases want these deadlocks

“Judges are interested in being this Assembly. I want to believe that everyone will exercise their duties in good faith and we will have a functioning CSJ. There are many rumours that the election will not take place, that there will be no quorum, that there will be some procedural bottlenecks. As long as the judges and Parliament do not appoint their members, the Council will be non-functional and there will be premises for other measures. I am counting on good faith and strategic thinking on all sides. If the General Assembly of Judges does not take place, there will be chaos. Chaos will only be for politics and for people who have high-profile cases and want these deadlocks. If the CSM will be operational on April 1 and will announce the competition for the judges of the CSJ, the situation will be unblocked in August-September, after the future judges will pass the vetting procedure”, concluded Judge Livia Mitrofan.

Olesea Stamate: “We expected such a situation since the adoption of the law”

Olesea Stamate, chairwoman of the Committee on Legal Affairs, Appointments and Immunities told Ziarul de Gardă that she “expected a deadlock during the evaluation of judges, but we are not happy that the judges left in corpore in resignations, even before the law on the reform of the CSJ entered Parliament”.

According to Stamate, the duration of the deadlock in the CSJ is estimated to last 2-4 months.

“We have this situation in our sights and we are working out certain actions that we can take so that we can unblock the situation and at least the most important cases and appeals against the Pre-vetting Commission can be examined,” said Olesea Stamate.

Olesea Stamate noted that at the CSJ “no files will be examined until the new judges are hired or as long as the files of the remaining judges are examined”, but that “in the context that in the next 3 months the CSJ law is adopted and the evaluation of the CSJ judges will take place (…) the files will be examined in 3 months”.

“We expected such a situation from the moment the law was adopted. The judges anticipated the adoption of the law by a couple of months and resigned early. This is alarming and regrettable, even from the perspective of the responsibility of some of them towards what is happening in the country and towards the act of justice.

We have developed some scenarios for interventions. As soon as the final decision has been taken, we will communicate it. We cannot rush the adoption of the law, because the evaluation of the CSJ depends on the formation of the new CSJ.

As far as the CSM is concerned, the General Assembly of Judges will be organised and the new members of the CSM will be elected from the judges, and then from the Parliament, after the Pre-vetting Commission has sent the decisions for the non-judge candidates”, Stamate pointed out.

We are counting on the responsibility and seriousness of judges to come and participate in the Assembly of Judges to elect their representatives to the CSM.

Stamate said that “we are counting on the responsibility and seriousness of judges to come and participate in the Assembly of Judges to elect their representatives to the CSM, where the majority of members have resigned, so that the situation in the CSM with expired terms of office does not continue and decisions can be taken regarding the career of judges, competitions can be announced to fill vacancies at different levels of courts, etc.”.

Regarding a possible withdrawal of the resignation applications by the resigning judges, Stamate said it would be “an act of responsibility on their part, taking into account the situation of the CSJ and the decisions to be taken”. According to her, it would be “common sense and responsibility (for the resigning judges, n.r.) to ensure at least a continuity of the examination of the most important cases” and that “it would be welcome the return of at least some of the judges, in order to ensure continuity for the period until the examination of the CSJ judges starts and the first judges can be hired”.

Association of Judges of Moldova: Reform of the judicial system is expected and encouraged even by those who deliver justice

In a press release, the Association of Judges of the Republic of Moldova announced that the executive of the Association had an online discussion with the expert rapporteurs of the European Commission for Democracy through Law (Venice Commission) on 24 February 2023 “in order to consult our opinion on the draft law on external evaluation of judges and prosecutors (vetting)”.

The Association of Judges of the Republic of Moldova mentioned during the discussions “the need to improve certain processes in the field of justice and the fact that the reform of the judicial system is expected and encouraged even by those who carry out justice”.

Representatives of the Association of Judges of the Republic of Moldova expressed their “concerns about the provisions of several regulations in the draft law. Instruments such as “serious doubts” and “suspicions of corruption” carry with them an imminent risk of subjectivism in the process of assessing the integrity of judges and prosecutors”.

According to the Judges’ Association, the Information Note of the draft law “is drafted in the absence of an impact study as well as in the absence of an analysis of the compatibility of the regulations in this draft law with the Constitutional provisions”, and “in order to lay the foundations for a genuine reform in justice” it is mentioned about “the need to identify a broad consensus in society”.

“In the writing of the reform, all interested parties, in the good sense of the word, including judges, must be involved. Mimicking public consultations, attended for years and years by representatives of the same two NGOs, is a ploy designed to subordinate justice in Moldova”, concluded the members of the Judges’ Association.

ZdG previously wrote about the resignations of Supreme Court judges. “Following the resignation of the judges, 5 judges in the Civil, Commercial and Administrative Disputes Panel and 3 judges in the Criminal Panel will effectively be active at the Supreme Court of Justice, taking into account that one judge is seconded to the CSM,” the CSJ warned in a press release.

20 judges at the CSJ resigned in February

The Plenum of the Superior Council of Magistracy (CSM) accepted on Tuesday 14 February the requests for honourable resignation from the position of judge submitted by 16 magistrates of the Supreme Court of Justice (CSJ). It is the most massive resignation from the CSJ in its history.

Ala Cobăneanu, Svetlana Filincova, Iurie Diaconu, Victor Boico and Victor Burduh will leave the judiciary on 1 March 2023; Elena Cobzac – from 13 March 2023, and Nadejda Toma, Liliana Catan, Maria Ghervas, Galina Stratulat, Iurie Bejenaru and Ghenadie Plămădeală – from 31 March 2023. At the same time, the CSM accepted the resignation applications submitted by Victor Micu, Luiza Gafton and Petru Moraru, all three judges at the CSJ, seconded members of the CSM, who requested to be approved for resignation from 3 April 2023. Also at the same meeting, the CSM Plenary accepted the request of Judge Nina Vascan for her honourable resignation from 17 March 2023 in relation to reaching the age limit.

“Under these circumstances, after the resignation of the above-mentioned judges, on the indicated date (1 March/13 March/17 March/31 March/3 April), 5 judges within the Civil, Commercial and Administrative Disputes Panel and 3 judges within the Criminal Panel will effectively work at the CSJ, taking into account that one judge is seconded to the CSM,” a CSJ statement said.

Subsequently, at its meeting on Thursday, 23 February, the CSM approved the resignation of four more judges from the CSJ. Judge Dorel Musteață, also acting president of the CSM, Judge Vladimir Timofti, acting president of the CSJ, as well as Judges Nicolae Craiu and Dumitru Mardari submitted their resignation requests from their positions as judges of the supreme court.

According to information on the CSJ website, there are 25 judges working in the supreme court. As of today, 3 March, only five of them have not resigned: Anatolie Turcanu, Mariana Pitic, Aliona Miron, Ion Guzun and Tamara Chișca-Doneva.

Parliament voted in first reading on a draft regulation on the procedure for electing members of the CSM and CSP

A draft law regulating certain aspects of the election of members of the Superior Council of the Magistracy (CSM) and the Superior Council of Prosecutors (CSP) was voted on Thursday, 2 March, at first reading by 52 MPs.

“The document was drafted with the aim of excluding the situation of perpetuation of the interim or vacancy of the position of member of the CSM, CSP and specialised colleges, which may be caused by the lack of quorum required for the general assembly to be deliberative,” said the author of the draft, MP Olesea Stamate.

Thus, if the General Assembly of Judges or Prosecutors will not take place due to lack of quorum, the repeated assembly will be held in restricted terms and the quorum for the repeated General Assembly will be reduced to 1/3.

The document also regulates the situation in which the General Assembly cannot be convened due to the expiry of the mandate of the CSJ and CSP members, the lack of quorum or in case of declaration of a state of emergency.

In these circumstances, the General Assembly of Judges shall be convened and opened by the President or interim President of the Council. In the event of a vacancy, the General Assembly of Judges shall be convened and opened by the Minister for Justice.

The document will be submitted to Parliament for a second reading.

The General Assembly of Judges is due to take place on 17 March 2023.

The article was prepared within the framework of the Project “Accountability of the Justice Sector in Moldova”, implemented with the support of Freedom House Moldova. The views expressed reflect the position of the authors and do not necessarily represent the views of the funder.