Photo source: ZdG collage

Parliament re-examined the draft law on the external evaluation of judges and prosecutors on Thursday (17 August), following a petition filed by President Maia Sandu, who did not promulgate the law in its original version.

Commissions for the evaluation of judges and prosecutors will take into account irrevocable court decisions, except those considered arbitrary or manifestly unreasonable, is one of the main provisions of the legislative initiative, approved by the legislature, following the “proposals” of the head of state. The provision has been heavily criticised by jurists. They say it “violates not only the principles of law, but also the rules of elementary logic”. Olesea Stamate, chairwoman of the Legal Affairs, Appointments and Immunities Committee, explained the changes to the document.

Lawyer Maxim Macovei, a lawyer at Efrim Rosca and Associates, says the provision is “the biggest legal shame”, asking “what do we do with Article 120 of the Constitution of the Republic of Moldova?”, which stipulates that “compliance with judgments and other final decisions of the courts, as well as cooperation requested by them during the trial, execution of judgments and other final decisions of the courts is mandatory”.

“Dear President Maia Sandu, I believe in your noble intentions and good faith. However, you have some consultants and party members who are diligently laying the foundation for the biggest legal disgrace this country has probably ever known (…). One of the “improvements” proposed by the President stipulates that a commission formed under Moldovan law may disregard irrevocable court decisions if this commission considers them arbitrary or manifestly unreasonable. Parliament approved this nonsense by 54 votes on 17 August (…). There was no discussion, no question from any MP. The majority elected by our people did not see any problem in this proposal.

Millennia of debates, mistakes, teachings, development, progress – from Aristotle, Roman law, revolutions to Enlightenment, constitutionalism, Locke, Montesquieu have been shattered by Moldovan legal genius. Please explain to every citizen who voted for you, how it is possible to write in law that some commission can arbitrarily neglect, at its own discretion, an irrevocable court decision. With my humble experience of reviewing thousands of Supreme Court rulings, I too ask you for this form of grace to choose which court rulings to respect and enforce, and which not to. I guarantee you that many of them seem to me and are manifestly unreasonable and arbitrary. No matter how lofty your aspirations and actions now seem, the quasi-reforms you are implementing (tortured would be the right word) – forget a lesson from which all but one politician in the history of the country has been absent – the future will come without your presence. You are not eternal.

My problem is that that future is unpredictable. I ask you nicely for a pardon (I await your answer by the way). Others will not. They will point to this shameful and illegal precedent. And they will apply the same measures. With another purpose, another vision, another plan and another support.

You fight the windmills. You can declare every party in the world unconstitutional. You can have 101 MPs in Parliament from your party. You can reform as many times a day as you want any agency and institution. You can extend the state of emergency for another 35 years. As long as you have people who don’t see and question such legislative proposals, and they still get voted on – you can’t also ensure the fight for our European future. Last question (for the rapporteur it might be too technical, mea culpa) – what do we do with Article 120 of the Constitution? (…)”, said Maxim Macovei in a post on his Facebook page.

Lawyer Nicolae Eșanu believes that this amendment “violates not only the principles of law, but also the rules of elementary logic”.

“A new legal aberration – we grant access to justice, but stipulate that the body whose acts are challenged decides which court rulings to respect and which not. If there were a ranking of legal aberrations, I think this one would be the clear leader, as it violates not only the principles of law, but also the rules of elementary logic. It is true that there are very few absolute rights (rights that cannot be limited). Even the right of access to justice is not an absolute right and can be limited (i.e. the right to challenge certain acts in court can be excluded). But if access to justice has been granted, it is unthinkable that the authority of res judicata should not be respected. And only someone who not only doesn’t know what the rule of law means, but also doesn’t know the basic rules of logic could admit that it is possible to resort to such a sophisticated mechanism, which consumes enormous resources and in the end one can decide whether to accept or ignore what justice has decided,” Nicolae Eșanu said in a Facebook post.

For the Vetting Commission to qualify a decision as arbitrary, several conditions need to be met simultaneously, explains the chairwoman of the Committee on Legal Affairs, Appointments and Immunities, Olesea Stamate, in a commentary for Ziarul de Gardă.

“The President’s request for a re-examination of this bill came in the context of the fact that the criterion of ethical integrity was formulated differently in Law No. 65 on the external evaluation of judges and candidates for the position of Supreme Court judge and in the law on full vetting. This is because we managed to discuss with the Venice Commission practically at the last minute and to get a better wording for the full vetting law, and Law No 65 on the evaluation of the SCJ was already voted. Respectively, Madam President asked us to standardise, to have the same provisions.

Now, if we are talking about that criterion of ethical integrity which sounds like this – in the last ten years it has admitted arbitrary acts or issued arbitrary decisions that violate the mandatory rules of law or on similar cases the ECtHR would have pronounced before the adoption of the act or such act/decision would be arbitrary.

In order for the Commission to qualify a decision as arbitrary, several conditions need to be met simultaneously. On the one hand, the decision must infringe mandatory rules of law. The law must say one thing and the decision must say something else entirely. On the other hand, there must have been a previous decision in a similar case, an ECtHR judgment, in which it is stated that in such a case this is what is meant by an arbitrary decision and that case can be applied by analogy to this judgment (…). So, and in paragraph six, where we said that irrevocable judgments shall be taken into account in a binding manner by the Vetting Commission, we added – except for judgments considered arbitrary by the Commission which refers to those judgments according to the second paragraph, according to the criterion of ethical integrity. Otherwise, if we had not amended paragraph six, these two paragraphs would have clashed. On the one hand, the Commission can still consider that a judgment is arbitrary if it violates mandatory rules of law, and if the ECtHR would have held in a similar case that it is an arbitrary judgment, but at the same time, paragraph six stipulates that they are binding and that the Commission cannot hold itself out on account of them (…)”, Olesea Stamate told ZdG.

Asked whether the provision stipulated in the draft law on external evaluation of judges and prosecutors does not contradict Article 120 of the Constitution of the Republic of Moldova, the Chairwoman of the Committee on Legal Affairs, Appointments and Immunities replied that “no, the Vetting Commission does not come to review or modify the binding court decision”.

“The Commission will only refer to the ethical part of the judge when adopting that decision, which can possibly be qualified as arbitrary if the above conditions are cumulatively met (…)”, stressed Olesea Stamate.

On Thursday 17 August, the Parliament re-examined the draft law on the external evaluation of judges and prosecutors, after President Maia Sandu did not promulgate the law and returned it to the Legislature for amendments. Thus, commissions evaluating judges and prosecutors will take into account irrevocable court rulings, except those deemed arbitrary or manifestly unreasonable. In addition, decisions of the Superior Council of Magistrates (SCM) and the Superior Council of Prosecutors (SCP) will also be subject to appeal by the evaluation commission, not only by the subjects under evaluation. Appeals will be lodged with the Supreme Court of Justice (SCJ), where they will be examined within 30 days by a panel of the top three judges who passed the evaluation and did not serve in the SCJ until 31 December 2022.

According to the report of the Committee on Legal Affairs, Appointments and Immunities, the draft law has been amended, following the “proposals” of the Head of State, so that “the findings of irrevocable court decisions shall be taken into account, on a mandatory basis, by the Evaluation Commission, except for decisions which the Evaluation Commission considers arbitrary or manifestly unreasonable. The Evaluation Committee may only rule on breaches of the rules of ethics and professional conduct, without ruling on the legality of the decisions in question”.

The reasons given by Maia Sandu were the different standards of ethical integrity set for the evaluation of judges and candidates for the position of judge of the SJC and for the external evaluation of judges and prosecutors. In addition, the head of state pointed out that in the last law adopted by the Parliament in the evaluation process it is not indicated to take into account the irrevocable court decisions, but also to challenge the decisions of the SCM and PSC.

The legislative initiative providing for the external evaluation of judges and prosecutors was adopted by Parliament at the end of July. The draft law is the third stage of the vetting mechanism and the final stage of the reform of the justice system.