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2007 Assessment

Moldova: Integrity Indicators Scorecard

Moldova: Integrity Scorecard Report > Sub-Category: Judicial Accountability
Indicators		Score
33	Are judges appointed fairly?	92
34	Can members of the judiciary be held accountable for their actions?	67
35	Are there regulations governing conflicts of interest for the national-level judiciary?	18
36	Can citizens access the asset disclosure records of members of the national-level judiciary?	0

Indicator and sub-Indicator Details

Are judges appointed fairly?

33a: In law, there is a transparent procedure for selecting national-level judges.

Score:

YES

Comments: Art 9 of the Law on the Statute ofJjudges stipulates that all positions of judges are filled in through a public and transprent procedure of competition. Competition is held after publication in mass media of an announcement / call of participation by the Magistrates Upper Council. The date, place and way of selecting candidates is communicated publicly in mass media by the Upper Council of Magistrates with no less than 90 days before the selection day. The graduates of the National Institute of Justice participate to the competition on the basis of their individual merits and scores. As a part of the legal reform initiated in Moldova, a specialized institute in preparing the necessary human resources for the judiciary was organized in 2006.

References: Law on the Judiciary Organization (No.514-XIII of 06.07.1995) Law on the Statute of Judges (NO.544-XIII of 20.07.1995) Law on the Creation of the National Institute of Justice (No.152-XVI of 08.06.2006)

33b: In practice, there are certain professional criteria required for the selection of national-level judges.

Score:

100

Comments: Art.6 of the Law on the statute of judges stipulates the following criteria: permanent residence in Moldova, full exercise capacity, law degree, at least five years of law practise, knowledge of the official language, no legal antecedents and medical fitness.

References: Law on the Statute of Judges (No.544-XIII of 20.07.1995)

Peer Review Comments: Although the legislation sets out some requirements such as the appropriate degree in law and a certain amount of experience, in reality the genuine professional criteria are replaced with loyalty to the ruling party. One of the latest examples: the European Court of Human Rights has rejected all the candidates Moldova has nominated as national judge in this European body of justice. In fact, all candidates were people who had contributed to the conviction of Moldova in Strasbourg more than once.

33c: In law, there is a confirmation process for national-level judges (i.e. conducted by the legislature or an independent body).

Score:

YES

Comments: For national-level judges there are specific requirements. For instance, art.6 of the law indicates that candidate to the Apeal Court need at least six years of work experience, while candidates to the Supreme Justice Court seven years. All judges are appointed / confirmed in their position by the president of Moldova (art.11) at the recomendation of the Upper Council of Magistrates. Judeges for the Appeal Court and Supreme Justice Court are confirmed by the Parliament, at the recommendation of the Upper Council of Magistrates. The president or Parliament may reject a candidate proposed by the Upper Council of Magistrates only once.

References: Law on the Statute of Judges (No.544-XIII of 20.07.1995)

Can members of the judiciary be held accountable for their actions?

34a: In law, members of the national-level judiciary are obliged to give reasons for their decisions.

Score:

YES

Comments: Art.269 of the Law on Administrative Offenses stipulates the elements that must include the final decision of the judiciary on the legal facts considered and deliberated. Art. 99 of the Law on Penal Procedures stipulates the probation elements, which provide necessary elements for the reasons to make a judicial decision.

References: Law on Administrative Offenses (No.3 of 29.03.1985) Law on the Penal Procedures (No.122-XV of 14.03.2003)

34b: In practice, members of the national-level judiciary give reasons for their decisions.

Score:

100

Comments: Although judges are entitled to give reasons for their decisions, with the newly amended Law on Judicial Procedures, they have largely neglected this obligation, mainly due to overwhelming pressure (no. of files/cases). Thus judges often do not provide publicly reasons for their decisions, or simply use a part of the defender or prosecution pledge to argue their decision; therefore, in many cases, the arguments/reasons for making one or another decisions is greatly and strikingly different from the arguments exposed on paper.

References: Alexandru Tanase, lawyer, Center for Penal and Legal Studies Viorel Furdui, lawyer, ULIM Legal Department

Peer Review Comments: Judges are yet not accustomed to the idea of accountability and transparency. It is a common understanding among judges that they are forming a privileged club, which should be protected from the "public eye".

34c: In law, there is a disciplinary agency (or equivalent mechanism) for the national-level judicial system.

Score:

YES

Comments: Art.21 of the Law on the Statute of Judges stipulates the provisions concerning the disciplinary measures against judges, when they have committed flaws in their legal obligations, they have manifested ultargious behavior to the public opinion, which damages the judiciary reputation. Art.23 says that the state is responsible in property terms for the judicial errors committed by the judges (this is exactly a painful reality since RM has been sentenced for dozens and hundreds of times by the European Court on Human Rights when citizens have directly applied in Strasbourg to protect themselves agains abusive or politicaly influenced or incorrect decisions made ty the Moldovan judiciary). Art.22 of the Law stipulates a long list of cases in which disciplinary measures shall be taken against judiciary.

References: Constitution of RM (1994) Law on the Statute of Judges (No.544-XIII of 20.07.1995)

Peer Review Comments: Law 950-XIII from July 1996 on disciplinary collegium and disciplinary responsibility of judges says in its first article that the Disciplinary Collegium within the Higher Council of Magistrates is the body in charge with the examination of cases concerning the disciplinary responsibility of judges in Moldova. See [ LINK ]

34d: In law, the judicial disciplinary agency (or equivalent mechanism) is protected from political interference.

Score:

YES

Comments: Judges can be dismissed from their position as a disciplinary measure by the Upper Council of Magistrates, as a self-governing body of the judiciary. Judges can be dismissed by the authorities that have appointed them. Individual judges can resign under specific conditions stipulated by law.

References: Law on the Statute of Judges (No.544-XIII of 20.07.1995)

34e: In practice, when necessary, the judicial disciplinary agency (or equivalent mechanism) initiates investigations.

Score:

100

$Scoring Criteria :: 100 Score Criteria: The judicial disciplinary agency (or equivalent mechanism) aggressively starts investigations -- or participates fully with cooperating agencies\' investigations -- into judicial misconduct. The judicial disciplinary agency (or equivalent mechanism) is fair in its application of this power. <p>50 Score Criteria: The judicial disciplinary agency (or equivalent mechanism) will start or cooperate in investigations, but often relies on external pressure to set priorities, or has limited effectiveness when investigating. The judicial disciplinary agency (or equivalent mechanism), though limited in effectiveness, is still fair in its application of power. <p>0 Score Criteria: The judicial disciplinary agency (or equivalent mechanism) rarely investigates on its own or cooperates in other agencies\' investigations, or the judicial disciplinary agency (or equivalent mechanism) is partisan in its application of this power.$

Comments: The proposals for the dismissal of judges are initiated by law by the Upper Council of Magistrates and are submitted for consideration to the president or to the Parliament, according to the authority that have appointed the respective judges. This initiative is to be based on certain legal reasons (art.25), which are related generally to: the resignation, professional incapacity, committed disciplinary violations proved by the Council, confirmation of the lack of exercise of capacity, losing citizenship of the Republic of Moldova, etc.

References: Law on the Statute of Judges (No.544-XIII of 20.07.1995) Vitalie Nagacevschi, Lawyers for the Human Rights

Peer Review Comments: Mr. Roger Gladei from Turcan & Turcan Law Office: the Higher Council of Magistrates is an independent body and it appoints members to the Disciplinary Council. However, political interference may be felt in connection with the dependence of the judiciary branch on the funding provided by Parliament.

34f: In practice, when necessary, the judicial disciplinary agency (or equivalent mechanism) imposes penalties on offenders.

Score:

100

Comments: Art.21 of the Law on the Statute ofJudges stipulates that, 'after covering the damage produced by previous decisions, which were considered incorrect and illegal by a judicial decision, the state can initiate a pledge against the judges that have caused the damage, because of lack of bona-fides behavior or neglijence. If the illegal decision has been made by more than one judge, the legal offense can be initiated against all participating judges.

References: Vitalie Nagacevschi, Lawyer, Juristii pentru drepturile omului Viorel Furdui, Lawyer, ULIM Legal Department

Peer Review Comments: My answer is different because to my mind, no judges have been punished for the decisions that have led to the conviction of Moldova in the European Court of Human Rights. Today, 24 October 2007, Moldova was convicted again, on seven cases, following a series of convictions last week.

Peer Review Comments: I agree that judicial improprieties are difficult to detect (and thus punish). However, when necessary, appropriate penalties can be raised.

Are there regulations governing conflicts of interest for the national-level judiciary?

35a: In law, members of the national-level judiciary are required to file an asset disclosure form.

Score:

YES

Comments: ARt.15 stipulates that judges have the obligation to present a declaration on incomes and estate properties they own by the time they take office. Declarations are submitted to the Upper Council of Magistrates that serves as a disciplinary body of the judiciary as well.

References: Law on the Statute of Judges (No.544-XIII of 20.07.1995)

35b: In law, there are regulations governing gifts and hospitality offered to members of the national-level judiciary.

Score:

YES

Comments: Art. 22 of the Law on statute stipulates that judges shall refrain from exploiting their positions in order to get illegal sources of incomes. There are other provisions, such as the top-officials from the executive, legislative and judiciary have to disclose their revenues. Sometimes the process is postponed or delayed for several years, and when it goes on according to the schedule, the information presented by the respectrive officials is largely incomplete or partially relevant.

References: Law on the Statute of Judges (No.544-XIII of 20.07.1995) Law on the Declaration and Control of the Incomes and Estate Properties Owned by Top-level Officials (No.1264-XV of 19.07.2002)

35c: In law, there are requirements for the independent auditing of the asset disclosure forms of members of the national-level judiciary.

Score:

YES

Peer Review Comments: The idea of an independent/external audit is badly received not only by judges, but also by public institutions since it is seen as a "control" aimed to damage the credibility of certain body.

35d: In law, there are restrictions for national-level judges entering the private sector after leaving the government.

Score:

YES

Comments: There are no restrictions as to the way former national-level judges may want to continue their activity after leaving their positions.

References: Law on the Statute of Judges (No.544-XIII of 20.07.1995) Law on the Organization of the Judiciary (1995) Constitution of RM (1994)

35e: In practice, the regulations restricting post-government private sector employment for national-level judges are effective.

Score:

100

Comments: Art.6 aims to restrict some rights and liberties of the public officials in order to prevent and curb corruption, to protect the constitutional regime, the rights and liberties of citizens, which could be affected by unloyal behavor of corrupt officials. Provisions concerning the employment in the private sector of the former state officials are inexistent in the whole bulk of the anti-corruption legislation in Moldova.

References: Law on Curbing Corruption and Protectionism (No.900 of 27.06.1996)

35f: In practice, the regulations governing gifts and hospitality offered to members of the national-level judiciary are effective.

Score:

100

Comments: The Law explicitely prohibits them to conduct business, to provide verbal or written consultations on the pledges considered in a court, etc. Art.22 (Infringements) stipulates that judges should not exploit their positions with the aim to receive unworthy benefits. Although they are part of the judiciary system, the behavior of the technical staff of the judiciary is regulated by the provisions of the Civil Service Law, which stipulates (art.11) that civil servants are prohibited to receive gifts and other hospitality signs, except symbolical presents, whose value/size is not specifically provisioned by the law.

References: Law on the Statute of Judges (No.544-XIII of 20.07.1995);

Lilia Carasciuc,Transparency International - Moldova: www.transparency.md

Peer Review Comments: I choose another score because I believe the regulations concerned have never been enforced actually.

Peer Review Comments: Comments above indicate a 0 grade.

35g: In practice, national-level judiciary asset disclosures are audited.

Score:

100

Comments: Declarations that are presented by the public officials are never audited. Investigative mass media have often made the case for estimations that are taken as granted from the respective public officials or judiciary, but are never reassessed on the basis of the market prices.

References: Alina Radu - Chief Editor, Ziarul de garda www.investigatii.md www.transparency.md

Peer Review Comments: Comments above are indicating a 0 score.

Can citizens access the asset disclosure records of members of the national-level judiciary?

36a: In law, citizens can access the asset disclosure records of members of the national-level judiciary.

Score:

YES

Comments: By law, citizens may apply to receive any kind of official information (except in the cases in which some data belong to the field of state secrecy), but often this field is artificially enlarged up to the limits where noone can access the data. For instance, income declarations of civil servants, judges, deputies are considered to be a field of 'personal interest' (art.7c), and on the basis of that, independent mass media have been sued in the last years for distributing personal information, despite the fact that they claimed only to follow the public interest during investigative journalism. Authorities may decline, by law, to provide some sorts of information, but they shall inform in writing about their reasons to the applicants.

References: Law on Access to Information (NO.982-XIV of 11.05.2000)

36b: In practice, citizens can access judicial asset disclosure records within a reasonable time period.

Score:

100

Comments: As in the case with income declarations, citizens cannot access freely these records.

References: Alina Radu, editor in chief of newspaper Ziarul de Garda Lilia Carasciuc, Transparency International - Moldova

36c: In practice, citizens can access judicial asset disclosure records at a reasonable cost.

Score:

100

Comments: There is no procedure by which the information that cannot be received from open sources or upon request (notification) can be purchased officially.

References: Lilia Caarasciuc, Transparency International - Moldova Alina Radu, editor in chief Ziarul de garda