”No Judge Can Be Influenced Against Their Will”

Dumitru Visternicean was a judge from 1982-2018. He started his career in Drochia and later worked in Dubăsari and Chișinău. From 1996 until the moment he resigned, he served at the Supreme Court of Justice (CSJ). From 2009-2017, Dumitru Visternicean was a member of the Superior Council of Magistrates (CSM), president of the institution from 2010-2011, as well as interim president from November 2013 to June 2014. He resigned as judge in November 2018, after 36 years of activity in the system.

In an exclusive interview with ZdG, Dumitru Visternicean, judge in honorable resignation shared his perspective from inside and outside the justice system, his experience of the diverse stages Moldova’s justice system has undergone since the Soviet period  and how can a judge remain true to their own principles.

– It’s been almost a year since you are no longer working in the judiciary and became a bystander. In the meantime, have you noticed differences between justice seen from the inside and justice seen from the outside?

– No big difference. However, looking at it from the outside, you are sure to see it with different eyes. Remember, though, that they are still the eyes of a judge. Yes, I see other details, other moments … I would not have accepted many things, had I been in office. Of course, the judiciary can only be seen as it is. I cannot deny that in the 36 years that I have been active in the system, things have changed. It is no longer that living process, based on the principle of contradiction. Now, the process has been automated. The written procedure was introduced, files are examined in the absence of the trial participants and they say that this is justice. I do not really accept such justice, because I still believe that justice must be in person and the judge must see the trial participants. 

This facility that was introduced, for judges to have assistants, is welcome, but presently it seems to have been distorted. When the notion of judicial assistant was introduced to the Supreme Court of Justice, the position was called assistant judge. Then, a judge was an assistant. I was an assistant judge at the Supreme Court of Justice having the identification card no. 2. We had some important, responsible powers, except that we had no right to sign decisions. At that time, both the assistant judge and the judge studied the case files, and you had to argue for your position. Now the position of judicial assistant has been introduced. The idea is good, but in principle, their rights and obligations, especially in the first instance, are difficult to achieve. We, being assistant judges at the Supreme Court of Justice, could also stay in the deliberation room, but now, the assistant does not have this right. It is there, however, that the solution you have prepared can be reversed.

– Now that you are no longer a judge, did you understand why people do not trust the justice system?

– The perception that people do not trust the judicial system is real and its credibility is really low. Even though some blame external factors that distort information, I think that the blame is, first and foremost, on justice itself. When justice becomes unjust, how will the citizens understand you? When your behavior in the meeting room is not in accordance with the Code of Ethics, these issues spread very quickly. One or two of such cases will be enough. Even if afterwards everyone around you will work impeccably, alas, credibility will be hard to regain. The external factor also matters in creating this perception, because, as you know, if you tell a man that he eats sweets every day, on a day when he will no longer have sweets, he will still think that he eats sweets. However, full responsibility falls on justice first. 

When I came to the Superior Council of Magistrates in 2010, I kept saying that justice is not the third power in the state, as the representatives of the other powers would say, but an equal among the three powers. In the end, the idea was accepted, but I see that the understanding that justice is the third wheel in the state has come back together with the belief that it must be ordered around, and it must be as we want it to be, not as they want.

– You were a judge in the Soviet period, in the post-Independence period, in the period of communist governance, in the period of pro-European governance and even during Democratic Party governance, in which it was said that justice was totally subservient. When was justice most independent?

– Not in the recent period, for sure. The personality of the judge matters at all times. I worked both in the Soviet period and in the years after independence, but I had no problems with professional independence. I didn’t have influence issues to confront. I even worked in Dubăsari, when the separatists, in the Transnistrian region of the Republic of Moldova ruled as they saw fit.

– Well, and no one ever came to you to say, look, this decision must be made and not another one?

– I’m telling you honestly, there was never anything like that. There was a problem only when the self-administration bodies were formed on the left bank of the Nistru River. Then they proposed us to switch to their side, providing extraordinary guarantees. Without a doubt, I refused. Otherwise, no one came to tell me how to examine, especially what decisions to take. And now, when I hear that some president of the court comes and tells a judge what to do, I don’t know what to believe. It’s simple, you tell the person who comes up with such a proposal to take the case file and do as they please, only without getting you involved. If he/she promised someone something to get to that position, and such options should not be excluded, let him/her do it, but not honor his/her promises with your hands. There is always a way out of any situation or impediment. If you do not want to accept something, you use the right to have a separate opinion. I have had such cases, including those in which I was accused of having participated in panels of judges that lost files at the ECHR. Nobody verified that I had separate opinions at that time. In conclusion, if a judge does not agree, he/she cannot be influenced.

– You mentioned above that, in recent years, justice was the most politically dependent. Did I understand correctly?

– Basically yes. Ever since the communists came to power, that’s what happened. Subsequently, things have amplified, according to the information we have, especially regarding human resources, appointments to positions. I have also said before that, in recent years, high-level appointments were not decided within the Superior Council of Magistrates. Nobody convinced me that I wasn’t right.

– You were president of the Superior Council of Magistrates and its member for eight years. How can the Superior Council of Magistrates members be influenced?

– As I have observed, they now use a method of working with each one separately. Everybody knew that in order to get a favorable decision at the Superior Council of Magistrates, seven votes were needed. Those who wrote separate opinions were not even bothered. There was, as we were saying, the zolotaia semiorka (the golden seven – Russian translation, ed. note) that provided all the procedures. The second option was that, there were no contestants in a competition. There were many methods of dictating rules to look as though they were true. How they clarified with each one, you can ask them, but no one will tell you.

– Were they blackmailed or simply given money, positions or other facilities?

– There are many methods. For example, I had a separate opinion in the case of the 14 judges accused of engaging in laundering billions. On the first day, when the issue of granting the right to initiate criminal proceedings was examined, the seven votes were not accumulated. I was sure that the arguments put forward would not allow the agreement to be given. They announced a break for the next day. On that day, I was the only one left in the Council with the opinion of the previous day. I looked to the left, to the right and did not understand.

– After all, did you understand how they were convinced?

– I looked into their eyes. Some looked down and said nothing. I didn’t insist, because I understood that there’d been a great deal of work done with them. Then I wrote a separate opinion. Just that. No, no one even came up to me to propose anything. Somehow, in the system, you know who you can approach and who you can’t. Maybe that’s why no one ever came to me.

– Do you think it was then a political directive to prove that corruption was being fought?

– You hit the target.

– Can a judge with assets of millions, with luxurious houses, with cars, with dubious integrity do fair, impartial, independent justice for the benefit of the people?

– My answer will surprise you. I think he/she can, because all of this is of no importance when examining a case file. But, can a judge make an objective judgment when he’s poor, when he has no apartment, when he has to provide for his children? How will you answer this question?

– But why do some judges agree to take bribes, to fulfill some political orders?

– You have to ask them. I would like to hear their answers to these questions too.

– After the change of government, several judges began to talk about pressure exercised on them. What do you think about these disclosures?

– You put me in a difficult situation, because I’m used to working with evidence. As such, according to the circumstances they have stated, I cannot categorically deny that such situations have occurred. The problem is that we have heard other variants, that everything was organized by someone, to show that we have such judges in the system. Similarly, there were many discussions in the case of the disclosures made by Judge Murguleț, which led to the removal of the leadership of the Chișinău court and of the Supreme Court of Justice. I know a lot of people, including from the National Institute of Justice and I also know that, especially young people, they cannot keep silent. I think that it is difficult to order around those who have been trained at the National Institute of Justice or those who worked with a correct judge for 5-7 years.

– By the way, what do you think of the Superior Council of Magistrates decision to remove the leadership of the Chișinău Court and the Supreme Court of Justice, for, such a term does not exist in the legislation, and, moreover, recently they have been restored?

– This decision speaks of an extremely unpleasant thing in the judicial system. There are solutions to suspend someone, but I have never encountered anything of the way Superior Council of Magistrates proceeded, with such violations. Why did the Council do this? I think for conforming to the new situation in the country and to show that “we, the old ones, can be different”. And this, in my view, is the most dangerous thing to do, accommodating to the new situation. Actually, for justice, it’s awful.

– But can members who have served a regime, suddenly, overnight, change, be correct and make independent decisions?

– I’ll give you an example from history. An emperor conquered a fortress that was unbreakable. He succeeded because there was a traitor inside that fortress. He entered the fortress and, of course, broke with those inside. The first to be executed was the traitor. A wise man told the king that he was not doing the right thing, because that man helped him. Then the king said, If he betrayed them, he will betray me. I believe that the judiciary should not be directly proportional to the ideas of government, because a government comes and goes, but the judicial system remains.

– How can the Constitutional Court (CC) decisions from June 7-9 be framed?

– Those decisions, categorically, do not honor our judicial system.

– But why did Mr. Poalelungi, who was a respected judge, up to a certain point, go to such lengths with certain things?

– I guess he didn’t do it alone. Yes, he should not have accepted and, honestly, I didn’t expect him to do this. Unfortunately, he disappointed me. And, basically, I cannot qualify the periods of his presidency at the Supreme Court of Justice and the Constitutional Court as resultative, even if he changed the law, he promoted some ideas and he did something for the judges, I mean the salaries. But, on the whole, this period is the most difficult for the judiciary, generating a drastic decline in credibility.

– This period coincided with the time when the Democratic Party was in power. And in this period it was said that Plahotniuc controls the justice system. Being at the Superior Council of Magistrates, did you feel that Plahotniuc controlled the justice system?

– I do not know whether it was Plahotniuc or the party itself, but I am sure that justice was administered through someone. Unfortunately, at present, some things are taking place that should not happen. Point blank. I want to give you one example. In 2010-2011, the Supreme Court of Justice was reformed. Some of the judges went, others came. What’s the idea of the new Minister of Justice? Reform of the Supreme Court of Justice. Do you really think that in such a situation, the Supreme Court of Justice will become that court that has credibility, authority and quality? No matter how good the reform might be, but what is now proposed to be done at the Supreme Court of Justice is definitely negative, it will not have any effect. Moreover, as long as we make sector reforms, the judicial system as a whole is destroyed.

– Should the legislation about appointing judges for a period of five years be changed or not?

– This provision must be completely abolished.

– Is this provision a way to influence judges?

– At least this aspect is not excluded. The judge, for five years, has limited independence, because after that, the Superior Council of Magistrates and the head of state must decide his/her fate. And in these five years, the judge has to think about what’s in the future. If there was the political will, this provision would have been canceled long ago.

– Can young judges change the system and the state of justice?

– They can, but these judges can access the Court of Appeal or the Supreme Court of Justice after a period of time. There’s only a hint of possibility for young judges. And it’s important that they be supported by those above, by everyone in the system, and by society.

– Is Rodica Berdilo an example for young judges? Does her example show that young people can change the system?

– I read her ruling. All subsequent decisions of the hierarchically superior courts, adopted on the case, support her decision. In this case, I have no right to say that she did not proceed correctly.

– Personally, what were your feelings after that chain of decisions regarding the validation of local elections?

– The same feelings as yours.

– Do you think Constitutional Court judges should be punished?

– I do not exclude this option. There are many articles in the Criminal Code where their actions could be framed, including abuse of office or negligence. It’s just that this has to be proven.

– Have you ever executed political orders?

– No. I told you before. When you are labeled that you are like this or that, no one approaches you. But if I come to analyze, I tell you that there are many ways to denounce that you are under pressure.

– How true is the perception that if you are a more principled judge, important case files do not reach you, they go to those who accept to work on order?

– I thought about this and, basically, I do not exclude this option. Yes, the random case file distribution system is a good one, which makes it easy to work, but it does not guarantee an absolutely random distribution, because there are many nuances. I have not yet received proof that the security of this program is absolute and that no one can influence it. When I served at the Superior Council of Magistrates, I went to a court. The president of that court had suggested to show me something. Beside him was a boy of about 18 years old, who was handling very well information technology. In three seconds, he unsealed the entire system. He could put anything in there.

– In your 36 years in the position of judge, have you always done justice or were there exceptions?

– Honestly, every time I made a decision, I made it in accordance with the law. I have had many cases when, humanly, you are inclined to make a certain decision, but your final decision is totally legal. I only acted according to the law.

– What do you think should be done to the judicial system to really reform it? For it is clear that all politicians will want to subordinate it.

– I think, as long as the politicians are not honest with the judiciary and as long as they say one thing, but do something different, this system will never be independent.

– Thank You.

Victor MOŞNEAG, v.mosneag.zdg@gmail.com