Moldova’s Battle for the Prosecutor General, What’s Happening?
This is a translated and slightly adapted version of an article originally published in Romanian on November 8.
A shortlist of four aspirants for the Prosecutor General’s job has been scrapped, as the Government passed an extraordinary amendment allowing Prime Minister Maia Sandu to preselect candidates herself before one can be picked by the High Council of Prosecutors. Socialists cried foul, accusing Sandu of trying to subordinate the prosecution service, in breach of the Constitution and the PSRM-ACUM coalition agreement. A no-confidence motion was initiated in Parliament Friday, and while we wait to see the outcome of this confrontation that could put an end to the governing coalition, let’s look at both sides’ arguments.
Are Socialists sabotaging competitions?
Prime Minister Maia Sandu, Justice Minister Olesea Stamate and several ACUM lawmakers have accused Socialists of cheating. When a contest was held to preselect candidates for the PG position, the juror delegated by Speaker Zinaida Greceanîi (who is also the PSRM formal leader) rated civil society representatives Ștefan Gligor and Vladislav Gribincea with scores of 24 and 25, respectively. For comparison, Gligor’s second lowest score was 65 and Gribincea’s was as high as 80. Socialists employed the same scoring trick in the summer, when they made sure that it would be Ruslan Flocea, former secretary to President Dodon, taking the job of Anticorruption Center director. PSRM lawmakers on the selection committee lavished Flocea with the highest scores while massively underrating his rivals. MP Alla Dolință, for example, only had scores of 1, 2 or 4 points (out of a 36 maximum) for other candidates. From this point of view, Maia Sandu and ACUM are right: Socialists do play dirty.
What about failed contests elsewhere?
Socialist MP Vasile Bolea demanded that Olesea Stamate step down as Justice Minister and, to reinforce his accusation, he threw into the same bucket other Government-organized competitions that failed recently – at the Customs Service, at the Moldova Mail, at the General Police Inspectorate, with the allegation that the winners didn’t turn out to be ACUM people. It’s true that the number of failed competition adds to an alarming trend, but the explanation given by ACUM/PAS lawmaker Sergiu Litvinenco still stands: in the other cases enumerated by Bolea, the competitions will be repeated not because their results were cancelled as in the PG case, but because none of the candidates that made the final phase of the respective competitions were able to gather the minimum scores. So at least technically speaking, these are two different situations that shouldn’t be mashed together.
Does it create a dangerous precedent?
Socialists have a point in saying that canceling contests is a dangerous practice with dangerous consequences. Each annulled contest diminishes the credibility of the government in general and of the respective institution in particular. And Maia Sandu’s move, for all the boldness it emanates, draws its strength from people’s confidence (use it too often, and that confidence will run thin), rather than being based on a solid legal argument and constitutional viability. The latest amendment to the Law on the Prosecution Service can eventually become a recipe for abuse. What would ACUM fans say if a hypothetical prime minister appointed by the Socialist Party or the Democratic Party did the same thing and arrogated the authority to preselect PG candidates? In fact, ACUM/PAS lawmaker Dumitru Alaiba is already concerned by such an eventuality. 
Maia Sandu said that Socialists’ tampering with the selection procedure was the last straw, “a red line crossed” in the Justice Reform saga, so maybe there wasn’t really any other choice but to amend the legislation by an extraordinary procedure. But ACUM should at least share part of the blame for allowing Socialists to unduly influence the competition outcomes over and over and for not learning from past mistakes. Ideally, ACUM should have learned the lesson the very first time they saw foul play and adjusted the scoring rules so as to eliminate abnormalities. This would have avoided the need to take a step which is as dangerous as it is necessary.
Was the reform picked apart by the Venice Commission?
Socialists claim that the Justice and Prosecution Service Reform proposed by the Ministry of Justice has been “taken to pieces” by the Venice Commission, the Council of Europe’s body of constitutional experts. This is true, minus the exaggeration – the Commission did produce a long list of recommendations in its Interim Opinion to improve the Reform before it is appraised again. The recommendations range from smaller issues (like to whom the Secretariat of the Judicial Evaluation Commission should report) to more fundamental ones (decisions to dismiss judges should be the privilege of the High Council of the Judiciary CSM).
MP Vasile Bolea and Fadei Nagacevschi, the Socialist Party’s legal counsel, also accused Olesea Stamate of showing no sign of working toward implementing the Venice Commission recommendations. Minister Stamate, however, publicly promised on several occasions to heed the Commission’s opinion. At a recent CSM meeting she announced several concrete modifications from the original draft: a committee of judges will be set up to hear the appeals of the judges and prosecutors unhappy with their evaluation; and the extraordinary evaluation will also cover appeal court judges, as well as anticorruption and special cases prosecutors. On Thursday, the Government announced it further adjusted the draft Reform according to the Venice Commission recommendations and that the final draft would be ready next week. So neither Minister Stamate, nor the Government seem neglectful of the Commission’s opinion. The extent to which it complies with the recommendations remains to be seen when the final concept is presented, hopefully next week.
Is Olesea Stamate an incompetent minister?
The Socialists are not the first to demand Stamate’s resignation. Ștefan Gligor’s fans did that upon not finding him in the PG candidates’ shortlist, and the activist eventually had to address his supporters on social media asking them to stop insulting the minister. In fact, Minister Stamate came under fire during the very first weeks of her tenure, when she chose to go on a pre-planned vacation with her family instead of staying in Chisinau and participating in the evaluation of candidates for the Constitutional Court. With all the problems that followed in pushing ahead with the Justice Reform, at least from a reputational point of view, Minister Stamate seems to be one of the main vulnerabilities of the Sandu Government. We can’t judge her competence as a lawyer, but politically Olesea Stamate deserves at least part of the criticism levelled against her.
The Socialists’ non-interference
Everyone in the Socialist camp, from President Dodon to the party’s lawyer, claim they have had a laissez faire approach, letting ACUM alone be in charge of the Justice Reform, with the implication that now ACUM alone must take responsibility for all the mistakes. However, President Dodon was among the officials who unveiled the Justice Reform concept, and he said that the Socialists still had some details to negotiate with ACUM. The president himself doodled a sketch of the Reform on a piece of paper and presented it to the media. It was because disagreements between PSRM and ACUM that the draft Reform was presented later than announced. PSRM publicly opposed the idea of inviting a foreign chief prosecutor and of applying a EU Mechanism for Cooperation and Verification, which were struck out, or of extending the eligibility criteria for the Prosecutor General’s office to also include lawyers and judges, which eventually passed. So it’s untrue that Socialists haven’t participated or interfered in the process of designing the reform.
Reforming the justice sector, both the Bench and the Prosecution Service, in a way that it becomes genuinely independent is a signature promise of both components of the governing coalition. Beyond this general goal statement, it’s increasingly clear that their plans are different. ACUM organizes weak contests, while PSRM sabotages them. Ironically, the battle for the Prosecutor General has been the last straw for both sides. The former Constitutional Court justice Victor Pușcașu thinks that Maia Sandu plays a dangerous game that undermines the principle of separation of powers. Another former CC judge, Nicolae Osmochescu, however thinks that the move is not that bad, legally speaking, because it only changes the rules of the pre-selection and not of the election itself. One thing is certain at this point – the battle for the Prosecutor General has openly become a political one.
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Interim Joint Opinion of the Venice Commission and the Directorate of Human Rights of the Directorate General of Human Rights and Rule of Law of the Council of European the Draft Law on the Reform of the Supreme Court Of Justice And The Prosecutor’s Office, venice.coe.int ↩︎