Society

OSCE/ODIHR QUESTIONS CONSTITUTIONALITY OF JUDICIARY REFORM CONCEPT

19 november, 2019

The OSCE Office for Democratic Institutions and Human Rights (ODIHR) called into question the constitutionality of the concept of judiciary reform [the Superior Court of Justice and the prosecution bodies], which was presented by Minister of Justice Olesea Stamate in September.

According to the Office’s opinion, published on Monday on the Moldovan Ministry of Justice’s website, the ad hoc mechanism [committees for evaluation of judges] seems to be circumventing and limiting the constitutional role of the Superior Council of Magistracy (SCM) in terms of judicial appointment, transfer and removal from office. Since the SCM is bound by the Evaluation Committee’s decision, this may raise issues of compatibility with the Constitution.

“Though recognizing the right of every state to reform its judicial system, any judicial reform process should not undermine the independence of the judiciary and should be in compliance with applicable international rule of law and human rights standards and OSCE commitments, especially when it concerns such extensive change of the competence and composition of the highest jurisdiction and the career of key judicial and prosecutorial office-holders. If the necessity of such a measure is not clearly established, or means applied are disproportionate or unbalanced, the government could risk being seen as instituting a “take-over” of the highest court”, the text says.

Separately, the document points at the risk of adopting inherently deficient procedures, which are not conducive to a qualitative assessment of the re-evaluated office-holders.

“If such an extensive reform is undertaken, the legal drafters should ensure wide political consensus and provide solid legal grounds for this reform”, the statement says.

Extraordinary measures may be necessary and justified on an exceptional basis, the starting point should always be that the ordinary mechanisms and procedures of judicial accountability. If the authorities nevertheless choose to proceed with such an ad hoc mechanism, the Draft Law should in any case be substantially revised in order to ensure that extremely stringent safeguards are in place to limit interferences with judicial independence, the Office concluded.

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