The Venice Commission has come up with several recommendations for the Moldovan Ministry of Justice in relation to the draft law on the Supreme Court of Justice (CSJ). Thus, in the joint opinion of the Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe, adopted during the 132nd plenary session held on 21-22 October, it is stated that while “pre-vetting” of candidates and integrity checks carried out by assessing asset declarations are “quite common and uncontroversial in principle”, an extraordinary verification could be justified only in “exceptional circumstances”.

The joint opinion, requested by the Moldovan Ministry of Justice, examines provisions on the role of the CSJ in standardising law enforcement, reforming the composition of the CSJ to include legal professionals other than career judges, reducing the number of judges on the CSJ from 33 to 20, and evaluating judges by vetting sitting judges and candidates.

While noting that prior vetting of candidates is in principle less controversial, the opinion stresses that the extraordinary vetting of judges provided for in the draft law could only be justified in “exceptional circumstances”.

In this respect, the Venice Commission reiterates several recommendations made in the past to the Moldovan authorities on the need to respect the constitutional framework, in particular the constitutional provisions on the independence of the judiciary, and to provide for a vetting system only after all other methods of judicial accountability (disciplinary proceedings, periodic evaluation and, in extreme cases, investigation and prosecution) have been considered.

As regards the number and composition of SJC judges, the Venice Commission considers that a mixed composition of career judges and other legal professionals and a reduction in the number of judges “should be introduced gradually and without affecting judges currently in office”, according to the opinion.

The Commission considers it more appropriate that, given the future powers of the SJC, as a result of the gradual process, there should be 13 career judges and 7 non-career judges in the SJC.

“As regards the number and composition of the judges of the SJC, the provision introducing a mixed composition of the SJC should only be applied gradually and pro futuro, without affecting the sitting judges of the SJC by reducing the number of career judges to 11. In addition, given the future size of the Supreme Court, the ratio 7 (non-career judges) – 13 (career judges) seems more appropriate. The Commission welcomes the open attitude of the Moldovan authorities to consider these changes,” the opinion reads.

“A gradual approach should be taken to reducing the number of judges, by introducing transitional provisions establishing an intermediate period of several years during which the actual number of judges could vary between 33 and 20. This would allow for adaptation to the other changes introduced by the draft law (appointment of non-judges, evaluation of judges), while allowing some time for the settlement of pending cases and for the natural departure of judges (e.g. retirement or resignation), so as to also ensure respect for the principle of irremovability of judges”, the Commission further recommends.

On 22 August, the Moldovan Minister of Justice requested an opinion from the Venice Commission on the draft law on the Supreme Court of Justice. On 19 September 2022, the Minister submitted a revised version of the draft law following public consultations.

Joint opinion of the Venice Commission and the Directorate General for Human Rights and the Rule of Law (DGI) of the Council of Europe on the draft law on the Supreme Court of Justice:

One of the main major changes proposed in the draft law concerns the modification of the composition of the CSJ and the reduction of the number of judges from 33 to 20 by 1 June 2023, when the new composition of the CSJ is due to start its work.

According to the draft, the judges of the CSJ will be selected by the Supreme Council of Magistracy (CSM) through a public competition on the basis of merit:

One of the main major changes proposed in the draft law concerns the modification of the composition of the CSJ and the reduction of the number of judges from 33 to 20 by 1 June 2023, when the new composition of the CSJ is due to start work.

According to the draft, the judges of the CSJ will be selected by the Supreme Council of Magistracy (CSM) through a public competition on the basis of merit:

13 judges will be selected from among career judges (for persons who have served as a judge in the courts, the draft requires at least 8 years of actual experience as a judge; for persons who have served as a judge of the Constitutional Court or the European Court of Human Rights (ECtHR) – at least 6 years of actual experience in that position)

7 judges will be selected from among non-judicial jurists (lawyers, prosecutors, university professors), who have at least 10 years’ actual experience in the respective posts.

According to the Ministry of Justice, the draft also provides for an extraordinary evaluation of the current judges of the CSJ, as well as of the candidates for the 7 non-judge positions. The extraordinary evaluation will be carried out in two stages: evaluation of ethical and financial integrity, and evaluation of professionalism.

“The first stage is entrusted to the independent Commission for the evaluation of the integrity of candidates for membership in the self-governing bodies of judges and prosecutors (Pre-Vetting Commission), which will assess the ethical and financial integrity of the current judges of the CSJ, as well as the candidates for the vacant positions in the CSJ. In this context, it is proposed to extend the mandate of the Pre-Vetting Commission for another year.

If the candidate passes the first stage of the evaluation by the Pre-Vetting Commission, then the CSM, through the Performance Evaluation College of Judges, will evaluate the candidate on a third criterion – professionalism relevant to the position,” the Ministry of Justice announces.

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The draft law proposed for consideration also sets out the powers for the SJC:

• Ensuring uniform interpretation and application of legislation in the justice system;
• examining, as first instance, categories of cases established by law;
• to examine, as a court of appeal, cases of the greatest social and legal importance, as well as those which reveal particularly serious violations of the law and human rights;
• referral to the Constitutional Court for examination of the exception of unconstitutionality of legal acts resulting from specific criminal, contravention, civil or administrative cases;
• to settle applications for review of cases following a judgment of conviction of the Republic of Moldova at the ECtHR;
• settlement, in cases provided for by law, of other types of applications.

The CSJ will also be the main authority responsible for ensuring uniform interpretation and application of legislation in the judicial system. To this end, the CSJ will be able to take a number of measures:

• it will publish the recommendations resulting from the work on the generalisation of judicial practice;
• develop, approve and publish guidelines on the application of the law (similar to the ECtHR, the Romanian High Court of Cassation and Justice);
• at the request of the courts, issue advisory opinions (similar to the European Court of Justice and the ECtHR);
• issue binding judgments on applications in the interest of the law.

According to the Ministry of Justice, the working group for the elaboration of the Concept for the reform of the CSJ, which includes representatives of the CSJ, the Superior Council of Magistracy, the courts of appeal, the Chisinau Court, the Superior Council of Prosecutors, the Union of Lawyers of Moldova, the Parliamentary Legal, Appointments and Immunities Commission, the Legal Resources Centre of Moldova, etc., contributed to the elaboration of the draft law. a. Representatives of the working group met in several meetings and formulated, including in writing, proposals for improving the Reform Concept and the draft normative act, the MJ also notes.

The process of drafting the Supreme Court of Justice (CSJ) Reform Concept was initiated on 10 June 2022.