The judicial reform: a shock or a joke?
This is a translated and slightly adapted version of an article originally published in Romanian on July 31.
At the beginning of this year, we included the “radical reform” promised by Fadei Nagacevschi in the top 9 lies of 2019. Back then, the minister of justice had an excuse though – he had been appointed just a couple of months before. But now, nine months into his office, the promised reform is still stalled, if not moved into reverse. Last week, the Superior Council of the Judiciary (CSM) promoted a couple of controversial judges to higher posts, leaving many, including foreign embassies, almost lost for words. It’s a good occasion to look back at the promises, criticism and accomplishments of the minister.
Devaluation of evaluation
Back when he was the Socialist Party’s counsel, Fadei Nagacevschi was a staunch critic of the judicial reform proposed by Minister Olesea Stamate and the now defunct bloc ACUM. He insisted that things could be done much better. For example, this is what he was telling Radio Free Europe in October 2019, a month before his appointment:
“We need some shock therapy. We hope we will be able to change this form, specifically from a technical point of view, so that we can establish a certain agenda and vet all the judges. If we really want to do it, we must root out corruption from this system. It is imperative that we scale up this shock therapy.”
After replacing Olesea Stamate at the Ministry of Justice, Fadei Nagacevschi toned down his rhetoric. The shock therapy, the proposed external vetting and the rooting out of corruption gave way to a milder approach.
In early January, the Ministry published a new vision of the judicial evaluation, with the prosecutors already off the table. The interviewing no longer had to be done publicly and the evaluation would be carried out according to the old criteria. As the Institute for European Policies and Reform IPRE noted, the current laws require judges and other public office holders only to declare their assets, without the obligation to justify them. Moreover, even if a judge fails the test under the proposed new concept, the final say would still remain with the old and unreformed Disciplinary Panel.
In short, as IPRE observed, the new evaluation mechanism proposed by Fadei Nagacevschi is ultimately based on the existing evaluation institutions and rules, which time has shown to be inadequate and flawed. Instead of shock therapy, the minister of justice has bet all his money on cooperating with a corrupted system which he seeks to reform.
Anyhow, this bill is still pending approval. This means that, in theory, it can still be improved.
A partisan CSM
Another key element of the reform was the reformation of the Superior Council of the Judiciary itself. Minister Nagacevschi’s solution was to apportion five seats on the Council, which is the judicial system’s self-governing body, to law professors appointed by Parliament. In principle, this was a welcome solution, with an important caveat which is also found in a Venice Commission opinion: these five members should have not been appointed by a simple majority of MPs, because this has made their election prone to political partisanship.
Instead, the Venice Commission recommended that the CSM members should be elected by a qualified two-thirds majority of MPs, or that other organizations, such as the Moldovan Bar or Law Faculties, also participate in delegating members to the Council.
The experts’ concerns have proven out, as the Socialist-Democratic coalition went on to elect four CSM members in a “controversial, non-consensual” manner, as noted by the Venice Commission.
Soon enough, this new composition of the CSM made its own controversial appointments. The Council has promoted Tamara Chișca-Doneva, a judge that caused Moldova to lose multiple cases and millions of euros at the European Court of Human Rights, to the position of Supreme Court vice president. Vladislav Clima, one of the judges that upheld the scandalous annulment of the 2018 Chisinau mayoral election, and also one of the organizers of a failed coup against the CSM leadership in September 2019, has been appointed president of the Chisinau Court of Appeals.
Like many others, minister Fadei Nagacevschi has appeared upset by the appointments, accusing the CSM of ingroup favoritism. He also reluctantly admitted that, while the vote was secret, it’s easy to deduce that at least some of the Parliament-elected CSM members endorsed Clima and Chișca-Doneva.
As shown above, the Venice Commission warned the Moldovan authorities about the risks of the proposed procedure of Parliament electing its share of CSM members. The problem is that, despite asking the Venice Commission’s opinion, the Moldovan authorities didn’t bother to wait for it. The law was adopted just as the Commission’s deputy secretary was in Chisinau on a fact-finding visit. It’s not the first time that the Socialists and Democrats choose this tactic.
At the same time, one of the main points of criticism that Fadei Nagacevschi has levelled against Olesea Stamate has been that “she brought disgrace on [our country] at the Venice Commission.” Even if there were any merit to this criticism, asking the Commission’s opinion on a bill and then enacting it without even waiting for the answer isn’t something that adds to Moldova’s reputation in the eyes of the Commission.
It’s true that in the end the minister of justice took into account the Commission’s recommendations and proposed, in a set of constitutional amendments, that Parliament elects its share of CSM members with a three-fifths majority. But the damage has been done and the members already appointed.
The Venice Commission strongly recommends that the new provisions take effect only after the constitutional reform. The disappointment and concern of the Venice Commission experts in March 2020 was clear: “The recent legislative reforms and the manner in which they have been implemented do not meet the expectations of either the international community or the Moldovan society. The genuine aim and meaning of the constitutional reform under analysis becomes questionable.”
The risk is obvious: if people of dubious reputation are appointed and promoted within the judicial system, and in a non-transparent manner too, this will only make it harder to reform the system and will consolidate the ingroup favoritism deplored by minister Nagacevschi.
Two steps back, one step forward
It’s not that everything is hopeless, of course. In its latest opinion, the Venice Commission is overall pleased with the proposed constitutional amendments submitted by the Ministry of Justice and reckons that they “could improve the independence, accountability and efficiency of the judiciary.” This has been one of the few positive signals concerning the judicial reform in recent months.
How these amendments are ultimately adopted in Parliament is another question. The Moldovan lawmakers are known for their ambivalent attitude towards the Venice Commission and its recommendations. One of them would be to reverse the appointment of four CSM members, wait until after the Constitution is amended, and then hold another vote under the new rules.
A lot depends of course on minister Nagacevschi, who seems to be losing his reformatory zeal in decisive moments. Back when he was the Socialist Party’s counsel, he recognized the captivity of the judiciary and the corruption within it to be its fundamental problem. As a minister however, he scrapped the plan to hold an external evaluation. Now as the CSM makes some controversial appointments, he pretends to be surprised at this display of ingroup favoritism and finds it “unbelievable” that some CSM could be vulnerable to blackmail.
In his public discourse, the archenemy of the incumbent minister of justice seems to be his predecessor Olesea Stamate rather than the corruption plaguing the system. So far however, Fadei Nagacevschi hasn’t fared any better than the target of his criticism. Quite the opposite, the situation appears to be degrading so much that even the phlegmatic Dutch are sounding the alarm.
This article is free for republication. Thanks for including credits and links.
You can also find us on Telegram.
„Avem un concept incomplet al reformei justiției, care nu reflectă gravitatea situației” (VIDEO), moldova.europalibera.org ↩︎
[Joint opinion of the Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe on the draft law on amending and supplementing the constitution with respect to the Superior Council of Magistracy] (https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2020)001-e), venice.coe.int ↩︎
Joint opinion of the Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe on the draft law on amending and supplementing the constitution with respect to the Superior Council of Magistracy, adopted by the Venice Commission on 20 March 2020 ↩︎
Joint Opinion on the revised draft provisions on amending and supplementing the Constitution, with respect to the Superior Council of Magistracy, adopted by the Venice Commission on 18 June 2020, venice.coe.int ↩︎