The anti-corruption expert, Cristina Ciubotaru, explained in an interview for the FES/APE foreign policy newsletter about the factors behind a successful justice reform in her view. We discussed a wide range of issues related to the working conditions of magistrates, the new package of safety laws and how Whistleblower Law should work better. We are inviting you to read the interview below:
-What do you think about the progress of the judicial reform after more than a year and a half of PAS government? How close or far are the authorities from the targets they set before coming to power?
-It depends on how sincere those targets were. If those in power really wanted the independence of the judiciary, they could achieve this goal, but I think they failed precisely here. Any process of cleaning and filtering the justice in which politicians get involved have no way of really succeeding.The problem of the lack of judicial independence consist in its politicization. The alleged “dirt” that the magistrates are still trying to clean is precisely politicization. It seems obvious to me that politicians cannot depoliticize the institutions of justice just as you cannot put the wolf guard the sheep or the fox in charge of the henhouse. So this approach was conceptually wrong. Even if the politicians were sincere about the reforms, the magistrates had to be involved in the reform processes at all stages. You cannot declare all magistrates compromised and use this pretext to make reforms against them. The magistrates must be part of the change, they are not the enemies of these changes and they themselves have stated that many times on various occasions. If you make the magistrates your enemies, they will never embrace the reform efforts. The problems of the system are also their problems, not just the politicians’ problems. They must be part of the change, not just experimental rats. This was the first mistake that doomed the justice reform to failure.
Fears and inconsistencies
-What did not work and what should the current Recean government do better in terms of reforms, especially in terms of vetting?
-From what can be seen, the pre-vetting selected candidates strongly suspected of political connections, and this generates a lack of confidence on the part of the system towards their future representatives in the Superior Council of Magistracy (SCM). Pre-vetting has applied many standards that have nothing to do with integrity. The members of the Pre-vetting Commission did not care about very important aspects of integrity.
Some of the admitted candidates are reasonably suspected of being close to the political class, and there are also press materials in this regard, which proved that initially they tried to hide this closeness. Other candidates are suspected of involvement in actions lacking integrity or even corruption, based on the evidence that the Pre-vetting Commission either ignored or did not know, as they are not indicated in its decisions.
On the other hand, the members of the Pre-vetting Commission charged, for absolutely unclear reasons, those who were not required to keep - themselves and all their relatives - transactions in certain assets. They were asked for all extended family accounting for the past 15 years, which was not a reasonable expectation of candidates. Although it had prerogatives to request any document about the candidates’ relatives directly from any data holder, the Commission omitted that and assessed that the candidates (some of them) failed to present documents (which they do not possess, nor the law permits them to request them, for they refer to other persons.
-The pre-vetting failed to select judges of integrity or judges that justice needs
-As for vetting, the most obvious expected effect is that judges will be removed from the system. With every judge who leaves the system, the violation of citizens’ right to access to justice will worsen. The fact that President Maia Sandu took almost a year before appointing a certain number of judges at the first instance, and they could not examine cases during that time, greatly increased the workload of their colleagues. New cases coming into the system were also not distributed to judges that have not been confirmed. At present, all their cases are redistributed to their colleagues, even though before knowing the decision of the CSM to repeatedly propose them to the President they remain in the system. If we were to make a comparison with the situation of these judges, whose workload falls on others now, generating a crisis, what should we expect after the vetting? Vetting means the exclusion from the system of a much larger number of judges, for reasons that will not necessarily be related to their integrity (the example of pre-vetting), and the crisis and chaos that will be triggered will be likely to exclude any access by the citizen to justice, not to mention the fate of the criminals who will end up being released or will not even be brought to justice. I am convinced that when, just as in the situation of cases processed by judges who were not appointed to the ceiling that were redistributed to their colleagues, the cases of judges who will not pass the vetting will be redistributed to other colleagues, which could cause those colleagues to quit the system,due to the pressure generated by the abnormal workload.
For example, the vetting effect in Albania has resulted in the fact that currently a case of average complexity takes about 10 years to be reviewed. In the Supreme Court of Albania, court hearings are fixed once every few years. Albanians are joking saying that before they go to court now, they open their passports. And if they don’t have much left to live, there is no point in going to court. This is equal to denying access to justice.
Politicians are not good at cleaning justice, only at politicizing this process. Even if they want this, in the process, inevitably, people appear who promote their own interests and turn a declared noble idea into a bankrupt one.
The citizens’ lack of access to justice will have a detrimental effect on the right to property. This will also influence investments. Because for foreign companies that want to invest here, it is very important that the judicial system protect their right to property. When this does not exist, or is delivered with long delays, investors are discouraged. I do not believe that the plans for vetting in the judicial system should be continued, especially given the unsuccessful experience in Albania with this extraordinary evaluation.
-Should these conditions be more relaxed for vetting? Is it possible that this precedent from the Superior Court of Justice will repeat itself? If so, where could new magistrates be taken from, are there human resources?
- The pre-vetting applied measures that had nothing to do with integrity. These were used as a pretext to give power in the justice system to those close to politics. I think vetting will also continue to be a pretext. Whether the measures will be draconian or mild, we have seen double standards and lack of transparency in this process. I do not believe in approaching this process through the prism of less drastic measures. Conceptually, the politicians cannot clean up the judiciary.
The judiciary has its own instruments that ensure its independence. There is the Superior Council of Magistracy (SCM) and the Superior Council of Prosecutors (SCP) and these bodies should be left to regulate the process. The fact that an attempt is made to prefigure a SCM and SCP in the image and likeness of the political class will vitiate the entire vetting process, if it is to be.
Boycott or justified gesture?
-What is your opinion about the resignation in corpore from the Supreme Court of Justice of almost all judges? Do you see it as a boycott of the reform or as a justified gesture on the part of the judges?
-Both variants. It seems to me a natural consequence, seeing the judges who did not pass the evaluation for the SCM through the pre-vetting exercise, some of whom were not even suspected of being dishonest. Suspicions that, in my opinion, did not appear even after the non-promotion of the pre-vetting. However, even the Pre-vetting Commission said that those who did not pass the evaluation do not necessarily lack integrity. In this situation I wonder for what other purposes did the Commission filter the candidates, if not to ensure the integrity of the future SCM members?
Seeing that young judges, without publicly known “sins” or “sins” proved by the Pre-vetting Commission did not pass the evaluation, for judges with more than 15 years of experience in the system it is absolutely obvious that - having a long career, including solutions on cases cancelled by the ECtHR, working during so many governments - every judge was going to be disqualified. It was also announced that if the judges do not pass the vetting, they will also be left without social security and magistrate’s pension. Why would a judge who has worked for a lifetime voluntarily choose to lose those guarantees? Judges have a status, they naturally want some respect and an assured old age. Anyone in their place would do the same.
I do not want to say that they are good or bad, but I do not see why judges should want to go through the vetting process which rather guarantees that they will not pass the evaluation and be deprived of all those rights. Why should they do it?
-What do you think of the recent General Assembly of Judges? Who does the system oppose, the reform or the politician?
-I do not think the system is against it. At the assembly, the judges demonstrated that they have dignity. If they opposed either the reform or the politics - they would not have come to the General Assembly. The politicians publicized this risk (miscalculated) and took precautions (unnecessary). A few days before the Assembly of judges, the Minister of Justice presented to the Government a draft law by which she arrogated powers to repeatedly convene the General Assembly of Judges in the event the Assembly did not meet the quorum, also reducing the quorum for the repeated assembly to be deliberative.
However, the judges did not just come to the assembly, they came in an overwhelming majority of 80 percent, they did not attack the candidates who passed the pre-vetting, they did not exclude the election of the 5 candidates from the agenda, although hardly can the option to choose from 5 candidates who passed the pre-vetting – 4 candidates for the SCM and 1 candidate for the alternate position – be called “election”. Rather, the judges gave a natural flow to the assembly.
The General Assembly of Judges hears the annual activity report of the SCM. Since the judges were not allowed by the politicians, through the Commission for exceptional situations and the state of emergency, to gather in the las 4 years, the Assembly convened on 17 March 2023 was to hear 4 annual reports of the SCM. Since the SCM did not include hearing the annual report on the agenda, the judges decided to modify the agenda by including hearings on the SCM activity reports, without excluding the point about the election of SCM members. After the SCM hearing, there have followed questions and speeches by judges. Although the SCM is accountable to the General Assembly of Judges, not all the members of the SCM who convened the assembly came to the assembly, while the interim chair of the SCM simply escaped from the room during the judges’ questions to the SCM.
After about 6 hours, the works of the General Assembly of Judges were interrupted with the judges agreeing to draw up a statement on the state of affairs in the judiciary and set the date of 28 April 2023 when they will meet for the continuation of the General Assembly.
The political reaction that followed was unhealthy, accusing the judges of opposition and sabotage, while the sneaky escape of the self-appointed interim chair of the SCM, with his mandate expired and inherited from the Plahotniuc times, Dorel Musteață, went unnoticed and uncriticised by the Minister of Justice, the chair of the Legal Parliament Committee of the Parliament and the President of the country. The politicians do not attack their person.
Paradoxically, all the drastic reforms to clean up justice were politically justified by the unwillingness of the system to clean itself, while the only one who could ensure the cleaning of the system was the SCM. The politicians, however, vehemently opposed its revocation at the Extraordinary Assembly of Judges in 2019. This is how the politicians “defended” the independence of the judiciary, keeping in positions at the SCM the people from the period of the captured state, even 2-3 years after their mandate expired, prohibiting judges to convene in general meetings for 4 years, at least to invest a full-fledged SCM.
The political support for the SCM responsible for the capture of justice during the Plahotniuc times, responsible for the system’s inability to self-cleanse, the high importance given to this SCM at the meetings of the Supreme Security Council is an anomaly that discredits the reform processes with the announced goal of cleaning the judicial system. This establishes a reasonably strong suspicion of an attempt to subdue the judiciary to the political factor.
I cannot otherwise explain what is happening. However, I can definitely say that the judicial system is not opposing the reform. At least the General Assembly of Judges of 17 March 2023 gives me no reason to think so.
-What is wrong with the criminal cases of resonance? Where do you see the problems, with the judges or the prosecutors who work on those cases?
-It is the politicians’ problems. There is too much interference from politicians. They too often, even openly, formulate tasks for magistrates. We do not know what happens in closed meetings, but the intentions regarding the solutions in the cases are often revealed publicly. The presumption of innocence has been violated many times.
Judges and prosecutors are directly threatened with vetting and pre-vetting that they will not go through, and it is logical that they do not feel free because of this. When the judge or prosecutor understands today that if you do what the current government wants, tomorrow there will be another government, one that may not have the same perspective or opinion on the legality of the solutions that a prosecutor or judge has to give. It is enough to see the opinions of the parliamentary and extra-parliamentary opposition parties.
Judges and prosecutors try naturally to find reasons to delay or are extremely cautious. The magistrates understand that if they do not answer today, they will answer tomorrow before the next government why they acted according to the grievances of today’s ruling party. There are examples of judges and prosecutors that politicians took revenge on for legal solutions they have adopted previously, by not appointing them to the ceiling or through other administrative acts that affect their careers. At the same time, magistrates held accountable for clearly illegal decisions or for the criminal investigation carried out illegally are not well known to public opinion.
Dangers and Warnings
-What do you think of the new Law proposed by the Security and Intelligence Service (SIS) that could no longer need a court warrant for certain actions? There are heated debates as to whether or not the SIS should be given such enhanced powers and prerogatives. What do you think?
-I understand that there are security risks in the region, especially related to war. At the same time, such great surveillance powers, a kind of Big Brother, without any limit, is a bit hard to understand.
Regarding the security mandate, it is enough to look at what happened in Romania. The mandate of the Romanian Intelligence Service (SRI) was declared unconstitutional. Subsequently, the criminal cases that were initiated under the security warrant were reviewed and cancelled. Moreover, Romania also had convictions at the ECHR in this regard.
This has been one of the biggest mistakes of the Romanian National Anticorruption Department (DNA). The DNA that was greatly admired in the Republic of Moldova, the institution that was later forced by circumstances to admit its mistake for having used the security mandate of the SRI. Especially in the case of magistrates, who were later rehabilitated. This was even described by Daniel Morar, former head of DNA and judge at the Constitutional Court in Romania, in his recent book that became a bestseller “It could have been otherwise. A subversive history of justice after 1990”.
In the context of the Republic of Moldova, when the government wants efficiency on cases of resonance, specifying also the type of results on concrete cases, I think the security mandate for the special secret services is dangerous, because it can end up being used to intimidate prosecutors and judges.
And this is not because I have a bad opinion about SIS, but because secret services have a certain way of acting and if they have no limits - they tend to abuse. The restriction of some fundamental citizens’ rights can only be done with a court order. No matter how much hatred towards judges the government cultivates.
I understand that it is becoming convenient to discredit the entire judicial system and the prosecutor’s office, to say that they are all bad, and on this background to justify the expansion of the powers and mandate of the SIS, an institution that has a much greater immediacy to politics.
Thus, with the best intentions, the path will be paved to the “secret service justice” of the NKVD-ist era of the USSR from which we took refuge in independence and democracy. I don’t want to say that it would end up being exactly the same, but either way we would be closer to those times than to the normality we all want.
Both GRECO (the Council of Europe’s Group of States against Corruption) and the Council of Europe’s Consultative Committee for Justice have clear and explicit recommendations and standards in this regard. They say that the secret services cannot be involved in any form of ensuring the integrity of prosecutors and judges. Not even in criminal cases.
The Venice Commission, another body of the Council of Europe, said much the same. There were professional associations of Romanian magistrates who made public appeals and addresses to the authorities of the Republic of Moldova one year ago, reminding them about these standards. You cannot involve the secret services in integrity processes. I understand that it is not the same as the security warrant, but I fear that the security warrant will be used as a specific pretext to continue the political interference in the judiciary.
-What do you think of the current form of the Public Integrity Whistleblower Law? Does it protect and encourage honest people to report cases of corruption to the authorities?
-The current Whistleblower Law has come with a handicap. Concurrently with this law, no sanctions were voted for possible retaliatory actions taken against the whistleblower.
The whistleblower, when he/she wants to make a public interest disclosure of illegal practices, wants to know that he/she is protected precisely against retaliatory actions. The adoption of these sanctions took time, and they were not introduced in the Criminal Code. During that entire period of time, effective whistleblower protection did not exist.
The ombudsman who was supposed to provide protection did not have sufficient understanding of this mechanism. The institution is not understood even by the courts, for now, where the Ombudsman addresses for the protection of whistleblowers. Unfortunately, the former Ombudsman, Mr. Mihai Cotorobai, who participated in the writing of the law, died during the pandemic, and his duties were taken over by the Ombudsman for the rights of the child, who, however, had a different profile and could not understand the institution of the public whistleblower.
I don’t think the integrity whistleblower institution has the intended application yet. It was popularized because there were NGOs that worked a lot on this aspect. I can say even more than the National Anticorruption Center, which is one of the institutions that reviews public interest disclosures. I believe that a better implementation by the institutions was required, but also legislative protection against retaliation against whistleblowers.
Regarding the fact that some say that this law is not in compliance with the EU Whistleblower Directive, I must say that in our country the law was developed in 2017 and adopted in 2018. I know this because I was working for the institution that had worked on that draft law and this was one of the conditionalities imposed by the EU.
The EU was advising to vote the law, while the EU itself was only drafting its own directive. We told them back then that we needed a model from them, but they insisted we be guided by the draft EU Directive. It is somewhat half-true that this law does not comply with the European Directive.
I think that the current mechanism can be improved, as well as the institutional approaches, and of course the legislative mechanisms. However, I very much doubt that a law is necessary at all.