After Moldova’s oligarchic regime was ousted in June, the new coalition government placed high on their reform agenda the law and order institutions, including the Prosecutor’s Office and the courts. At the end of September, judges took on judges in an attempt to gain control over the Superior Council of Magistrates, the main institution responsible for ensuring the independence of judicial power. But just like in other parts of Eastern Europe where corrupt courts and judges are creating obstacles to rule of law reforms, revamping the Superior Council of Magistrates is proving to be an internal struggle – one that is dividing public opinion and has Moldova’s international partners raising the alarm about the state of the justice system.
On October 1, 2019, the U.S. Embassy in Moldova issued a statement expressing concerns about recent developments in Moldova’s justice system. The statement referred specifically to a recent decision from the Extraordinary General Assembly of judges, which voted on September 27, 2019 to remove six current members and one alternate member of the Superior Council of Magistrates (SCM).
According to the U.S. Embassy, the decision “did not adhere to appropriate legal procedure and may have been intended to block needed reform.” And they were not the only ones who objected to the dismissals. The Superior Council of Magistrates did not recognize the Assembly’s decision, or even the legality of the Assembly convening on the issue in the first place.
And the legal issues don’t end there. In addition to the legality of the Assembly being contested, others are arguing that the meeting did not reach quorum – meaning that the Council members should not have been removed unless it was the result of a vote from an equal or greater number of judges than those who elected them to their positions in the first place. Even then, this should only take place in certain circumstances provided by law.
Now, the U.S. Embassy is calling on Moldova’s judges and prosecutors to uphold the rule of law and hold justice officials responsible for their actions – even though those same officials are the ones being accused of violating legal norms.
ZDG breaks down how the controversy between Moldova’s Superior Council of Magistrates and the Extraordinary General Assembly of judges unfolded.
The controversial decision to convene
On September 20, 2019, the Chișinău Court of Appeal issued a decision at the request of 87 magistrates, obliging the Superior Council of Magistrates (SCM) to convene the Extraordinary General Assembly of judges.
The Chișinău Court of Appeal then issued an additional ruling on September 24 that the Assembly would be scheduled for 10:00 a.m. on September 27, at the Trade Unions Headquarters in Chișinău.
The Superior Council fought the Court of Appeal decisions at the Supreme Court of Justice. On September 26, the Supreme Court panel of judges upheld the Court of Appeal’s decision that obliged the Superior Council of Magistrates (SCM) to convene the Assembly. A decision on the Court of Appeal’s second ruling regarding the organization of the Assembly is expected on October 16.
Nevertheless, the following day, 200 judges invoked the Supreme Court’s upholding the Court of Appeal’s ruling obliging SCM to convene the Assembly as legal basis for participating in the Extraordinary General Assembly of judges.
Four hours of waiting for quorum
Although scheduled to begin at 10 a.m., the extraordinary session of the General Assembly of judges began four and a half hours later. Judges took turns going on stage to give speeches criticizing the justice system, while backstage, organizers were waiting for the minimum number of magistrates required for quorum. The meeting was then declared in session.
Moldova’s Association of Judges, under the leadership of Vladislav Clima, was in charge of organizing the logistics of the meeting, including renting the conference room and the secretarial aspects of the meeting.
“The Association was asked to organize the logistics, at least regarding the rent and the lists, as most of the judges are members of the Association,” Vladislav Clima explained.
Two judges from the Chișinău Court of Appeal, Aureliu Postică and Ion Chirtoacă, were also involved in organizing the event.
But throughout the day of September 27, judge Oleg Sternioală of the Supreme Court of Justice emerged as the person actually in charge; checking the lists of judges registered at the Assembly and dealing with the organizational issues “backstage.” The Superior Council of Magistrates previously dismissed Oleg Sternioală as a member of the College of Performance Evaluation of Judges on June 25, 2019.
What’s more, Oleg Sternioală is the president of the panel of judges of the Supreme Court of Justice, which, on September 26, rejected the Superior Council’s appeal and maintained the ruling of the Chișinău Court of Appeal which obliged the SCM to convene the Assembly.
“Members of the Superior Council of Magistrates have lost all credibility”
At 14:20, after several contradictory statements regarding the number of judges registered at the Assembly, magistrate Angela Bostan announced that according to the list, there were 200 magistrates present out of the 395 judges active in the system. The meeting had reached quorum.
However, only one member of the Superior Council of Magistrates – Victor Micu – attended the Assembly.
“I told my colleagues to come to the Assembly, let the judges appreciate our activity. If they consider that we can continue to defend the independence of the judicial system, the Superior Council of Magistrates remains as it is, if not, they can lift our mandates,” explained Victor Micu.
The judges unanimously approved a Resolution stating the deplorable condition of the justice system, the need for reforms and the failure of the current Superior Council of Magistrates to ensure the magistrates’ independence.
“The current long-term members of the Superior Council of Magistrates have lost all credibility to those who have mandated them and they no longer meet the demands of promoters and guarantors of strengthening the independence of the judiciary. Their remaining as exponents of the judiciary further deepens the negative perception of the society towards the judges and stagnates the change in the justice system in the Republic Moldova,” Judge Aureliu Postică read. “We find it necessary to adopt a solution to overcome the institutional crisis by expressing a no-confidence vote and lifting the mandates of the permanent and alternate elected members of the Superior Council of Magistrates.”
Although 200 judges were declared present at the Assembly, only 184 magistrates received ballots. Nevertheless, all of the SCM members in question received a majority vote of no-confidence: 166 judges voted for the removal of Dorel Musteață, 118 voted against Victor Micu. Luiza Gafton, Petru Moraru, and Nina Cernat each received 167 votes for their removal while 162 judges voted against Anatolie Galben and 155 against Anatolie Pahopol.
The judges also decided to organize another Extraordinary General Assembly of judges on October 25, 2019, in which new members of the Superior Council of Magistrates will be elected.
Until then, in order to ensure the functioning of the self-administering judicial body, Ion Postu, a member of the Superior Council of Magistrates delegated from among civil society, would act as interim president of the Superior Council of Magistrates, the Assembly decided.
The SCM does not recognize the revocation of mandates
Meanwhile, the Superior Council of Magistrates has not recognized the Assembly’s decision and continues to operate as per normal.
Dorel Musteață – who is still acting as interim president of the Superior Council of Magistrates – said that there was no legal basis for organizing the Assembly, because the Court of Appeal’s additional ruling to hold the meeting on September 27 was contested at the Supreme Court of Justice. The Court’s final and irrevocable decision on this appeal will be issued only on October 16, 2019.
At the same time, the Superior Council of Magistrates announced that it would contest the Assembly’s decision to revoke the members’ mandates and asked the Assembly organizers to present them with the minutes from the meeting and the adopted acts.
Prime Minister Maia Sandu
According to the head of the Government “all the so-called decisions” of the Assembly “don’t have legal effects and can’t be taken serious:”
“What happened today demonstrates once again that the self-cleaning of the judicial system is impossible. That is why we will move forward, firmly, regarding the reform of the Supreme Court of Justice and the court system as a whole, including by external evaluation of the judges.”
“Evident violation of several legal norms”
Public opinion on the legality of the Assembly’s decision and the Superior Council of Magistrates’ actions remains divided.
The Minister of Justice, Olesea Stamate declared that the Assembly was organized “with evident violation of several legal norms.” She described the event as “a real challenge to the law and the concept of justice.”
“The judges can and must choose their own bodies to ensure system independence, but this must be done in strict accordance with the legal norms. Otherwise, what kind of judges do we have, if they are the ones who set the example to the citizens that the laws can be violated, that one’s personal interest is above the law,” Stamate said.
When asked to comment on the battle for justice, program director at the Legal Resource Center, Nadejda Hriptievschi, said that the Superior Council should have accepted the convocation of the Assembly on a reasonable date and ensure its good organization. On the other hand, the organization of the Assembly in such a limited time – by means of a “decision issued with enviable speed – and the lifting of the mandates of the Superior Council of Magistrates were not based on “current legal provisions and are contrary to the spirit of national law and international recommendations.”
According to the expert, there are also a number of question marks regarding quorum (only 184 ballots were distributed, although the simple majority meant at least 198 judges were present), regarding the dismissal of the members of the Superior Council without indicating the legal basis in accordance with the legislation in force, as well as regarding the adoption of some essential changes to the method of electing Council members just so that organizers could convene the next meeting on October 25, 2019.
Nicolae Eşanu, former Ministry of Justice Secretary of State said that the SCM members were revoked without strictly observing the legal provisions for doing so. In the event that Moldova were to consult the Venice Commission on an initiative to re-evaluate all judges, the Commission could use this incident as an argument that such an exercise is “not only justified, but also necessary,” just as they did with regard to Albania’s law on vetting judges.
In the opinion of the former president of the Constitutional Court, Alexandru Tanase, the members of the SCM should have collectively stepped down when the Government changed hands in June – “but for quite other reasons,” Tanase said.
“This composition of the Superior Council of Magistrates has no moral right to administer the careers of judges. The very fact that today only one member of the Superior Council of Magistrates decided to attend the Assembly, which, in fact, delegated them to these functions, is representative of that,” Tanase added.
In their statement, the U.S. also expressed their continued support for the reformation and strengthening of Moldova’s justice system, in spite of their concerns about recent developments.
“We are concerned by reports that the recent Extraordinary General Assembly of judges’ decision to remove judges from the Superior Council of Magistrates did not adhere to appropriate legal procedure and may have been intended to block needed reform – including the external vetting of judges and prosecutors, or to shield judges accused of corruption from prosecution,” the statement said. “The United States supports the Moldovan government’s anti-corruption and justice sector reforms. Moldovans deserve a justice system that holds all individuals – including those within the system – accountable for any criminal or corrupt act.”