The Judiciary’s Strategic Approach: Reviewing Experiences

In the Republic of Moldova, the judiciary is one of the most frequently reformed sectors. Initially, the policy documents in the field had a segmental approach, targeting institutions and issues separately. Subsequently, a comprehensive approach was attempted, with reform efforts combined in a unified policy framework, such as the Judicial Strengthening Strategy and the Action Plan for its implementation, approved in 2007. Admittedly, the reform intentions concerned only the judicial system and did not extend, to the same extent, to the other components of the justice sector (criminal prosecution bodies, related legal professions, the enforcement system, etc.), which were dealt with, further apart.[1]

In 2009, important reforms were initiated[2], which were finally found in a holistic document – the Justice Sector Reform Strategy for 2011-2016 (SRSJ) and, respectively, the Action Plan for its implementation[3]. It is worth noting the extension of the deadline for completing the JSRS until December 31, 2017.[4]

In the view of the authorities[5], many of the planned actions have achieved their expected result and many reforms, even if delayed, have been put into practice. Among the most important are invoked:

• legislative and institutional reforms that have strengthened the administrative capacity of the judiciary (the Superior Council of Magistracy (SCM) and its specialized bodies);
• launching the reform of the map of the location of the courts;
• the creation of new mechanisms for the selection, evaluation of the performance and disciplinary liability of judges, including the strengthening of the role and status of the Judicial Inspection;
• reform of the National Institute of Justice;
• strengthening the state-guaranteed legal aid system, broadening the spectrum of assistance and the circle of subjects;
• reviewing the procedures for enforcing judgments;
• rethinking and, as appropriate, consolidating the rules on the organization and functioning of the professions related to the justice sector (notaries, lawyers, bailiffs, judicial experts, mediators, licensed administrators, translators / interpreters);
• the reform of the Prosecutor’s Office, of its administration bodies, of the statute of the prosecutors, the creation, the fortification of the specialized prosecutor’s offices;
• creating the legislative basis for the rehabilitation of victims of crime and strengthening the child-friendly justice system;
• establishing new mechanisms to prevent corruption and ensure integrity in the justice sector;
• reviewing the codes of ethics of actors in the justice sector and creating mechanisms for investigating / reacting to ethical deviations;
• the reform of the People’s Advocate institution;
• launching the process of modernizing and consolidating the legal and institutional framework of the penitentiary system and the probation system;
• adoption of new rules for the process of elaboration of normative acts.

The authorities insist that 86% of the JSRS were executed. However, difficulties in assessing the impact are acknowledged, with progress indicators mainly pursuing quantitative and not qualitative results. Moreover, the authorities, implicitly, acknowledge the errors in the strategic planning process. The objectives were too ambitious, and the spectrum and area of action were too wide, which is why not all the planned ones were achieved. Many of the actions were interconnected, the stagnation and procrastination of some leading to the chain failure of others. The implementation of the JSRS was also affected by poorly managed risks, even if they were anticipated:

• political instability;
• resistance from the authorities to the reforms;
• poor capacity to absorb funds for the implementation of the reform.

In fact, the results of the JSRS were not consolidated. In 2018, the priorities in the short-term sector were set only by the Ministry of Justice, being announced the so-called “Little reform of justice”, which was based on the following strategic directions:[6]

• reforma cadrelor justiției și evaluarea integrității tuturor judecătorilor;
• restructurarea sistemului judiciar (finalizarea reformei hărții judiciare);
• consolidarea mecanismelor de responsabilizare a judecătorilor;
• consolidarea independenței sistemului judiciar;
• sporirea eficienței și transparenței sistemului judiciar;
• reforma avocaturii și a Curții Constituționale.
• – reform of the judiciary and assessment of the integrity of all judges;
• – restructuring of the judiciary (completion of the judicial map reform);
• – strengthening the mechanisms of accountability of judges;
• – strengthening the independence of the judiciary;
• – increasing the efficiency and transparency of the judiciary;
• – reform of the lawyer profession (advocatura) and the Constitutional Court.

From the achievements, the authorities insist on the legislative amendments related to:[7]

• reviewing the criteria for selection, evaluation and promotion of judges;
• ensuring competitiveness in the process of promoting and transferring judges;
• strengthening the role of the SCM, in particular by limiting membership to a certain term, but also limiting the voting rights of the Prosecutor General, the President of the Supreme Court of Justice (SCJ) and the Minister of Justice in matters relating to the career of judges (appointment, promotion, sanctioning). disciplinary action and dismissal of judges);
• ensuring the functional autonomy of the Judicial Inspection vis-à-vis the SCM;
• reviewing the mechanism for examining disciplinary violations.

However, the authorities also acknowledge the maintenance of several problems in the field, such as:[8]

• corruptible factors and elements affecting the integrity of judicial actors;
• insufficient performance capabilities in human resources management;
• underdeveloped legal culture;
• non-uniform judicial practices;
• poor application of the regulatory framework;
• excessive focus on short-term actions in drafting the legislative framework and lack of a medium- and long-term systemic vision;
• legislative instability (incoherent, uncorrelated initiatives without broad consultation).

The Strategy on ensuring the independence and integrity of the justice sector for the years 2021-2024 and the Action Plan for its implementation

The long political crisis has led to a lack of a strategic vision of justice. A new policy document in this field was submitted by the Government only on October 26, 2020[9], and was adopted by the Parliament on November 26, 2020[10].

The draft Strategy on ensuring the independence and integrity of the justice sector for the years 2021-2024 includes six chapters:

1. Situation analysis;
2. Strategic directions, specific objectives and expected results;
3. Estimating the progress, impact and costs of implementation;
4. The premises of an efficient implementation and the risks of implementation;
5. The elaboration process;
6. Reporting and monitoring procedures.

The policy paper focuses on the following strategic and objective directions:

Strategic directions	Objective
Independence, accountability and integrity of justice sector actors	– Strengthen the independence of the judiciary and the Prosecutor’s Office- Strengthen the integrity and accountability of the justice sector- Increasing the degree of transparency and trust in justice- Strengthen the capacity of the legal professions related to justice
Access to justice and the quality of justice	– Improving access to justice and the human rights protection system in the justice sector- Improving the quality of judicial acts and standardizing judicial practice- Strengthen legal training and education- Strengthen alternative ways of resolving disputes
Efficient and modern administration of the justice sector	– Continuing the process of optimizing the judiciary and the Prosecutor’s Office- Strengthen administrative and managerial capacities in the justice sector- Development and implementation of judicial information systems

The project includes several important actions, some of which were taken over from those not carried out in the process of implementing the SRSJ, such as:

• standardization of the procedure for appointing judges in all courts by reviewing the manner of appointing judges of the SCJ – the appointment is to be made by the President of the Republic of Moldova at the proposal of the SCM;
• the exclusion of the provisions that establish the appointment of the presidents and vice-presidents of the courts by the President of the Republic of Moldova at the proposal of the SCM, these competencies will return exclusively to the SCM;
• the exclusion of art. 307 of the Criminal Code (Pronouncing a sentence, decisions, conclusions or decisions contrary to the law).

The implementation of other actions is also important from the perspective of the evaluation of the Republic of Moldova by specialized international bodies. We are referring to the revision of the place of the Prosecutors’ Inspection, which would be subordinated to the Superior Council of Prosecutors (CSP). This action is in the spirit of the recommendations of the Group of States against Corruption (GRECO) addressed to the Republic of Moldova in the fourth round of evaluation – taking additional measures to increase the objectivity, efficiency and transparency of the normative and operational framework of disciplinary liability of prosecutors.[11]

Deficiencies and (lack of) perspectives – conclusions

Obviously, the Strategy on ensuring the independence and integrity of the justice sector for the years 2021-2024 is not a perfect document. The process of elaboration and promotion of the project was so long that the product no longer corresponds to the requirements of the legislative technique. In the meantime, the national legal framework on public policy documents has been revised. Thus, according to the Regulation on the planning, elaboration, approval, implementation, monitoring and evaluation of public policy documents, approved by Government Decision no. 386/2020, public policy documents are of two types – strategy and program. The strategy must define and plan the Government’s long-term public policy (6-10 years) in one or more areas of Government activity. In the medium term (3-5 years), the public policy document serves the program. The program must derive from the strategy and, respectively, contribute to its implementation by detailing and concretizing the actions to be carried out in a field or subdomain of activity. The program must include the descriptive part and the action plan.

Another inconvenience is generated by the adoption of the Strategy by law and not by a decision of the Parliament. Neither the Strategy nor the Action Plan for its implementation constitute normative acts. Law no. 100/2017 regarding the normative acts, through art. 24, stipulates that policy documents, without being normative acts, are decision-making instruments that address existing problems in a certain field, which define the ways to solve those problems and describe the expected impact on the state and society. The policy documents are approved by Government decision. If the implementation of these policies involves the involvement of administrative authorities that are not subordinate to the Government, the policy documents are approved by Parliament. Parliament is unpredictable in this respect. For example, on 16 December 2020, Parliament approved, by decision, the National Strategy for the Prevention and Combating of Money Laundering and Terrorist Financing for the Years 2020-2025 and the Action Plan for its Implementation.[12]

Worse, the new policy document was debated by political powers and actors, out of concern for the political image rather than out of concern for the quality of the document. Law no. 204/2020 “For the approval of the Strategy on ensuring the independence and integrity of the justice sector for the years 2021-2024 and the Action Plan for its implementation” was not promulgated. The slowness with which the law goes through the promulgation and re-examination procedure cannot be overlooked. Under the conditions of art. 74 of the Rules of Procedure of the Parliament, adopted by Law no. 797/1996, the law must be sent by the President or by one of the vice-presidents of the Parliament for promulgation to the President of the Republic of Moldova at the latest on the working day following the day of its signing. Prior to promulgation, the President of the Republic of Moldova has the right, if he objects to a law, to send it to the Parliament for re-examination within a maximum of 2 weeks from its receipt. The President of the Republic of Moldova may request the Parliament, only once, to re-examine the law for any reason that makes the law as a whole or part of it unacceptable.

Finally, the Strategy returns to Parliament for re-examination on 2 February 2021 without any objections to unacceptability. In the present case, emphasis is placed on the inclusion of actions relating to:[13]

• implement the external evaluation mechanism of judges;
• launch a viable reform of the anti-corruption system;
• strengthen the independence of judges by adopting legislative changes stemming from the recommendations of development partners and the international community;
• ensure an effective verification of the declarations of assets and personal interests of judges and prosecutors, as well as strengthening legal mechanisms to combat cases of unjust enrichment and violation of the legal regime of restrictions and limitations by the subjects concerned, but also their sanctioning;
• reform the SCJ;
• ensure transparent and fair mechanisms for the election and appointment of SCM and CSP members.

First of all, some of these proposals are too general. We refer to the proposal on strengthening the independence of judges by adopting legislative changes stemming from the recommendations of development partners and the international community.

Secondly, another part of the proposals should be examined in the context of other policy documents. We refer to the proposals related to the start of a viable reform within the system of anti-corruption bodies, as well as ensuring an effective verification of declarations of wealth and personal interests of judges and prosecutors, strengthening legal mechanisms to combat cases of unjust enrichment and violation of the regime. legal restrictions and limitations by the subjects concerned, but also their sanctioning. These goals would be found more organically in the new anti-corruption policy paper, which is delayed. Moreover, the Strategy on ensuring the independence and integrity of the justice sector for the years 2021-2024 contains actions in this regard, as well as actions related to the reform of the SCM, CSP, SCJ.

Thirdly, as regards the proposal for the implementation of the external judge evaluation mechanism, it is unfeasible as long as the national framework does not provide for this way of evaluating judges. Or, you can’t implement mechanisms without them. We note that any regulations in this regard require major constitutional amendments, being justified, including in the light of international standards but also the experiences of other countries, only in exceptional conditions.

Surprisingly, Parliament did not rush to review the law either. The Legal, Appointments and Immunities Commission, in April 2021, conducts 3 rounds of public hearings with the participation of representatives of the authorities concerned. Following these hearings, on April 22, 2019, the Parliamentary Commission proposed to the Parliament the maintenance of the previously adopted decision on Law no. 204/2020[14]. In fact, the Strategy no longer has definite perspectives, the Parliament being dissolved on April 28, 2021.[15]

In generalizing the above, it should be noted that the reform of the judiciary has always been a sensitive issue for the other two powers. Prolonged political crises have deprived the sector of genuine strategic treatment. As of 2018, justice is no longer governed by any strategic vision, despite the fact that its reform has been declared a priority by all parties and political actors. An unprofessional and uncooperative political class cannot implement a true reform of the judiciary, and the process will be mimicked as long as the policies in the field are promoted out of concern for their own rating. In fact, the next legislature will have a difficult mission – to restore justice, disturbed by unjustified, incoherent and populist initiatives. However, justice reform remains a priority that must be emphasized.

The document was developed within the project “Consolidating the state of democracy and law: the contribution of civil society” implemented by Transparency International – Moldova and financially supported by the Embassy of the Kingdom of the Netherlands. The opinions expressed belong to the authors and do not necessarily reflect the position of the funders.

---

[1] An example can be: The strategy for the development of the execution system, approved by Government Decision no. 1393/2007; The concept of the automated information system “Register of execution procedures”, approved by Government Decision no. 1520/2007.

[2] The concept regarding the financing of the judicial system, approved by the Parliament Decision no. 39/2010; The action plan for the implementation of the Concept regarding the financing of the judicial system, approved by the Government Decision no. 803/2010.

[3] Justice sector reform strategy for 2011-2016, approved by Law no. 231/2011; The action plan for the implementation of the Justice Sector Reform Strategy for 2011-2016, approved by Parliament Decision no. 6/2012.

[4] Parliament Decision no. 259/2016 on ensuring the continuity of reforms in the justice sector.

[5] Draft Strategy for ensuring the independence and integrity of the justice sector for the years 2021-2024, p. 6, http://parlament.md/ProcesulLegislativ/Proiectedeactelegislative/tabid/61/LegislativId/5296/language/ro-RO/Default.aspx

[6] Ministry of Justice, The small reform of justice, http://justice.gov.md/pageview.php?l=ro&idc=715&

[7] Draft Strategy for ensuring the independence and integrity of the justice sector for the years 2021-2024, p. 9, http://parlament.md/ProcesulLegislativ/Proiectedeactelegislative/tabid/61/LegislativId/5296/language/ro-RO/Default.aspx

[8] Ibidem, p.9.

[9] Government Decision no. 789/2020 on the approval of the draft law for the approval of the Strategy on ensuring the independence and integrity of the justice sector for the years 2021-2024 and the Action Plan for its implementation.  

[10] The draft law for the approval of the Strategy on ensuring the independence and integrity of the justice sector for the years 2021-2024 and of the Action Plan for its implementation,  http://parlament.md/ProcesulLegislativ/Proiectedeactelegislative/tabid/61/LegislativId/5296/language/ro-RO/Default.aspx

[11] The evaluation report of the Republic of Moldova, as well as the two compliance reports can be accessed at the link: https://www.coe.int/en/web/greco/evaluations/republic-of-moldova.

[12] Parliament Decision no. 239/2020 for the approval of the National Strategy for preventing and combating money laundering and terrorist financing for the years 2020-2025 and the Action Plan for the implementation of the National Strategy for preventing and combating money laundering and terrorist financing for the years 2020-2025.

[13]  Letter from the President of the Republic of Moldova addressed to the Parliament, no. 01-06-05 din 02.02.202, http://parlament.md/ProcesulLegislativ/Proiectedeactelegislative/tabid/61/LegislativId/5296/language/ro-RO/Default.aspx

[14] Legal Commission, appointments and immunities, Report on the re-examination of Law no. 204 of 26 November 2020 for the approval of the Strategy on ensuring the independence and integrity of the justice sector for the years 2021-2024 and of the Action Plan for its implementation (no. 363 of 17.02.2021), CJ-06 no. 124 of 22.04.2021, http://parlament.md/ProcesulLegislativ/Proiectedeactelegislative/tabid/61/LegislativId/5296/language/ro-RO/Default.aspx

[15] Decree of the  President of the Republic of Moldova no. 77/2021 on the dissolution of the Parliament.