CRITICAL SITUATION IN MOLDOVAN JUDICIARY REQUIRES RADICAL MEASURES – VENICE COMMISSION

“Critical situations in the field of the judiciary, such as extremely high levels of corruption, may justify equally radical solutions, such as a vetting process of the sitting judges”, believes the Venice Commission of the Council of Europe, which has published its preliminary conclusion on the draft of the Law on the reform of the Supreme Court of Justice and the Prosecution Service in the Republic of Moldova.

The Venice Commission and the Directorate wrote they understand the effort of the Moldovan authorities aimed at building up a judiciary complying with integrity and professionalism requirements.

They noted that it falls ultimately within the competence of the Moldovan authorities to decide whether the prevailing situation in the Moldovan judiciary creates sufficient basis for subjecting all the sitting Supreme Court judges to extraordinary re-evaluation as provided by the draft law.

“One major concern in the reform process is that the current draft law combines such a vetting process with the reform of the Supreme Court of Justice aimed at replacing the existing Supreme Court by a new court having a different jurisdiction and fewer judges. This combination between two different purposes obstructs the justification for subjecting all the sitting Supreme Court judges to extraordinary re-evaluation and for the interference with the principle of irremovability of judges. This justification is even more important as a vetting scheme may create a dangerous precedent and may lead to an expectation that there will be a vetting scheme after each change of government, which would undermine the motivation of the judiciary and reduce its independence”, wrote the Venice Commission.

The Commission stressed that the draft law should be adopted in the form of an organic law and that this should not require any amendments to the Constitution. For the draft law to be compliant with the Constitution, all decisions concerning the transfer, promotion and removal from office of judges should be taken by the Superior Council of Magistracy.

The Superior Council should thus be entrusted with the power to take decisions based on the recommendation contained in the report of the Evaluation Committee.

The number of members of the Evaluation Committee with a judicial background (i.e. former judges or former constitutional court judges) should be increased so that a substantial number of the members (if not half) have judicial background.

“The judge who failed the integrity evaluation should not be offered any judicial office, even in lower courts but should be subjected to a disciplinary sanction proportional to the gravity of the wrongdoing”, wrote the Venice Commission.