Testimony and remarks

Moldova: Joint Stakeholder Submission on Selective Justice for the Universal Periodic Review

In the wake of a series of constitutional crises and tumultuous transfers of government over the past several years, Moldova continues to struggle to establish a truly independent judiciary.

I. Introduction

1.1. This report is submitted by Freedom House to the office of the High Commissioner for Human Rights (OHCHR) to be considered for inclusion in the summary of stakeholder submissions for the Universal Periodic Review (UPR) of the Republic of Moldova, scheduled to take place in January 2022. It covers the period elapsed since Moldova’s last UPR in 2016. It examines the practice of selective justice as a key challenge to rule of law, judicial integrity and due process in Moldova, as well as to the government’s compliance with international and national commitments to combat corruption and reform the justice sector. It focuses on the implementation of recommendations 121.118 (USA), 121.123 (Canada), and 121.128 (Japan) that were accepted by the Republic of Moldova in 2016.

II. Executive Summary

2.1. In the wake of a series of constitutional crises and tumultuous transfers of government over the past several years, Moldova continues to struggle to establish a truly independent judiciary. Research and monitoring by civil society has documented that undue political influence severely compromises the independence of Moldova’s justice sector. Many of those in power regularly manipulate judicial systems to both protect their political allies and punish opponents, including by delaying or expediting legal proceedings and inconsistently applying punishments for similar crimes.1  In the reporting period, the Moldovan Parliament passed a series of laws that further strengthened political levers of power over the judiciary and selectively blocked the appointment of judges based on their political loyalties. Oversight bodies such the Superior Council of Magistracy (SCM) have also failed to hold corrupt officials accountable or establish a culture of judicial integrity. The government of Moldova should adopt a number of legislative changes to minimize political interference in the judicial process and in the selection and promotion of justice sector officials, as well as to ensure consistent enforcement of the rule of law in accord with its international obligations.

III. Methodology

3.1. This submission is directly informed by Freedom House and local partner LHR’s ongoing programming in the Republic of Moldova. Since 2019, LHR has implemented a unique methodology to monitor criminal cases of high public interest and political sensitivity (including those associated with prominent political figures, judges, and prosecutors), building an important base of verified evidence and documentation that demonstrates the extent of selective justice and its manifestations in Moldova. This report draws from data and conclusions from LHR’s two monitoring periods covering approximately 50 total criminal cases: January 2019 – August 2019 and June 2020 – June 2021.

3.2. The submission is further informed by extensive consultations led by Freedom House with local representatives of civil society and independent media – including INVENTO and the Center for the Analysis and Prevention of Corruption (CAPC) – and references reports and publications by these entities.

IV. Selective Justice – Trends and Manifestations Since 2016

4.1. Since 2011, successive Moldovan governments have expressed commitment to justice sector reform as a key priority. However, years of failure to bring a just conclusion to high-profile cases like the “theft of a billion” and the Shor case have undermined faith in the justice system among the public – nearly 90% of whom believe the judicial system is influenced by political interests.2  Moldova’s international partners have increasingly expressed frustration at the slow rate of reform and continued evidence of state capture and undue influence over the legal process.3 Only two years after the country entered the 2016 EU Association Agreement, the European Commission chose to revoke financial support to Moldova in 2018 due to serious concerns about the rule of law and state capture by oligarchic interests. The EU finally resumed financial support to Moldova in July 2019, following June 2019 parliamentary elections that resulted in the appointment of Maia Sandu as Prime Minister, who supported a platform of robust judicial and anti-corruption reforms.

4.2. A key factor that continues to undermine the integrity of Moldova’s justice system and adherence to international commitments is the phenomenon of selective justice. Selective justice is defined as inconsistent application of legal due process, contradicting the principle of equality before the law. In Moldova, selective justice became increasingly prominent in the aftermath of the 2014 banking scandal and the consolidation of political power by the Democratic Party (PDM) and its leader, the oligarch Vladimir Plahotniuic by 2016. Since that time, selective justice has been wielded by state and non-state actors to increase political and financial dominance.

4.3. In Moldova, selective justice has been used as a tool of influential political and non-political actors and groups. From 2016-2019, selective justice was primarily wielded by oligarchs such as Plahotniuic to advance their own political and business interests. Since the transfer of power in 2019, civil society monitoring indicates that criminal financial entities have increasingly manipulated the legal system to establish market dominance and consolidate assets. Some initial steps were taken under the Chicu government by Prosecutor General Alexandr Stoiangolo to recognize and redress criminal cases by reexamining several cases classified by the Prosecutor’s Office as “politically biased.” However, the criteria for this categorization was not made public, and the handling of these cases has been heavily criticized by civil society as itself selective and non-transparent.

4.4. Under the pretext of re-investigating “politically biased” cases, several high-profile criminal cases were withdrawn from active legal consideration and ultimately closed in a non-transparent manner. Two notable cases that were closed under questionable circumstances include that of David Davidean, who was criminally convicted of robbery and investigated for attempted murder; and the Karamalak case, which involved 19 charges of banditry, extortion and blackmail, as well as three counts of attempted murder.4 Moreover, this process of re-examining cases has seemingly benefited organized criminal groups such as that led by businessman Veaceslav Platon; several individuals suspected of affiliation with criminal activity led by Platon have been released from detention and/or received reduced punishments. A prominent example of this is the infamous Laundromat case, involving a multi-billion-dollar money laundering scheme of which Platon was a suspected ringleader. Prosecutors initially filed charges against 16 judges involved in the case; however, of this total, 13 judges were ultimately removed from criminal prosecution and five were recommended by the SCM for reinstatement to their former positions.5

4.5. According to monitoring by LHR, selective justice has several common manifestations in the Moldovan legal system, resulting in favorable or unfavorable legal treatment for litigants depending on their political and/or business affiliations. These include: inconsistent initiation of criminal proceedings; expediting and/or delaying investigation and legal consideration of cases; inconsistent application of punishments for similar crimes; unequal treatment of the accused during pre-trial detention; inconsistent consideration of evidence; and inconsistent classification of case materials and information.6

4.6. One of the most prominent examples of selective justice in the Republic of Moldova is the case of politician and businessman Ilan Shor, who prosecutors accused of large-scale money laundering in the 2014 banking scandal. A criminal case was sent to court in 2016, and one year later Shor was convicted in the court of first instance, receiving a reduced sentence of a seven years of imprisonment. Since 2017, the case has experienced excessive delays in the Court of Appeal – only fifteen out of 60 scheduled hearings have been held. Meanwhile, Shor has remained at liberty and has been permitted to play an active role in Moldovan political life. Shor founded his own political party in 2016 and served as Mayor of the city of Orhei (2015-2019). Despite ultimately being stripped of parliamentary immunity and fleeing the country in 2019, Shor continues to hold the status of MP, and currently leads a faction of nine members from exile.

V. Practical and Legal Obstacles to Judicial Independence

5.1. Political Influence in the Selection of High-Level Judicial Officials

5.1.1. In the reporting period, legislative reform and Parliamentary oversight over the justice sector has been largely ineffective and at times counterproductive in reducing the Moldovan legal system’s vulnerability to external influences. In recent years, Parliament has taken controversial steps to increase the level of control the legislative branch holds over the appointment of high-level judicial officials, negatively impacting the ability of such officials to remain independent of political interests.

5.1.2. In December 2019, the ruling PDM-PSRM coalition adopted controversial amendments to the Law on the Superior Council of Magistracy (SCM).7  While the amendments were framed as increasing the transparency and rigor of the selection process for SCM members, in practice they empowered the parliamentary majority to alter the composition of the SCM in its favor by increasing the share of politically appointed members. Directly after the changes entered into force, Parliament pushed through the appointment of four new SCM members in a rushed and non-transparent process that was criticized by civil society and the Venice Commission.8  The Constitutional Court ultimately declared the amendments unconstitutional in June 2021, reverting the SCM to its former membership composition; nevertheless, this incident is a worrying sign of parliamentary attempts to wield excessive oversight over the SCM.9

5.1.3. In the past year, the political bias of the SCM has become increasingly apparent, as the body appointed several judges who are known to be loyal to PSRM and are of questionable professional integrity. For example, in July 2020 the SCM controversially appointed Vladislav Clima as President of the Chisinau Court of Appeals; judge Clima infamously upheld the 2018 decision to annul the Chisinau mayoral election on dubious legal grounds, substantially benefiting PSRM’s strategic interests.10

5.1.4. Civil society monitoring also indicates that the Moldovan Parliament has consistently abused its authority to confirm judges to the Supreme Court of Justice nominated by the SCM, undermining merit-based selection in favor of candidates perceived as politically loyal. In March 2021, the PSRM-Pentru Moldova parliamentary majority unilaterally voted to appoint several new judges as Vice Presidents in the Supreme Court of Justice, ignoring criticism from opposition leaders and civil society.11  Notably, the majority chose to appoint Tamara Chişca-Doneva, who served on a panel of judges which made a high-profile ruling in 2005 that was overruled by the ECtHR.12  In the same period, Parliament rejected Viorica Puica, who was widely supported by civil society organizations as a model of integrity and professionalism. 13

5.2. The National Integrity Authority: A Critical Component of Checks and Balances

5.2.1. In parallel to the Moldovan Parliament’s robust and at times abusive oversight of the judicial branch, Parliament has taken steps to limit oversight over the integrity of its own MPs and other public officials. In December 2020, a parliamentary majority composed of the PSRM and Shor Parties unilaterally passed legislation amending the Law on the National Integrity Authority, a body mandated to assess the integrity of public officials by verifying their assets and properties.14  The amendment drastically shortened the timeframe allotted to the NIA to carry out official investigations and limited the statute of limitations to discipline officials to one year. This change was criticized by civil society, the international community, and the NIA itself as significantly weakening the body’s ability to investigate public officials or hold them accountable for integrity violations.15  In addition, as ongoing investigations would be subject to these new provisions, in practical terms the Law forced a large number of investigations to close prematurely.

5.2.2. Several MPs who sponsored or supported the amendment were under an ongoing NIA investigation or were previously targeted in fact-finding documents issued against them.16   This, combined with the unusual speed with which such sensitive legislation was forced through Parliament and over the NIA’s objections, strongly suggests that MPs intended to undermine the NIA’s functional independence and shield themselves from liability.17  Opposition parties challenged the law’s constitutionality; as of this submission, the amendment is suspended pending review by the Constitutional Court.18  While the functional independence of the NIA remains in question, a culture of impunity for corruption and selectivity of justice will remain a pervasive and entrenched feature of the Moldovan justice system.19

5.3. Failure to Enforce a Culture of Judicial Integrity

5.3.1. Despite numerous recommendations from civil society and the international community, the Republic of Moldova has continued to exercise practices that systematically de-prioritize judicial integrity and perpetuate a culture of impunity for corrupt and politically biased actions.

5.3.2. The criteria of the SCM and Superior Council of Prosecutors (SCP) to select new judges and prosecutors assign a low level of importance to assessing the integrity of new candidates. Out of a possible 100 points offered by the Performance Evaluation Board of the SCM, a maximum of 14 points are offered for integrity-related indicators. In the case of SCP, only eight out of 100 points are offered for integrity indicators. Moreover, the Evaluation Boards of the SCM and SCP are not obligated to perform a background check or security clearance of new candidates in coordination with other state bodies that could otherwise contribute critical integrity-related information. Monitoring by CAPC indicates that the Evaluation Boards also often fail to review publicly available civil society and independent media reports regarding the integrity of candidates.

5.3.3. Despite their mandate to guarantee the independence and impartiality of judges and prosecutors, the SCM and SCP regularly fail to adequately react to allegations of political pressure or other malign interference in legal proceedings. For example, following the transition of power in 2019, several judges and prosecutors spoke out publicly about political pressures that they encountered, including from their superiors, in the course of their work. Following these public denunciations, the SCM took disciplinary actions against several court managers; however, all of these sanctions were subsequently annulled by the courts.20  In other cases, the SCM failed to take any action to respond to judges’ complaints. For example, the SCM failed to respond to a serious compliant by Chisinau Court of Appeal judge Ludmila Ouș regarding political pressures she faced in issuing decisions on high profile cases concerning Constantin Țuțu and former Prime Minister Vlad Filat.21

5.3.4. Although a new Law on Whistleblowing was passed in 2018, Moldovan authorities have not established a secure space for reporting illegal practices. Due to inconsistent implementation, the Law’s guarantees of protection do not offer enough confidence to potential whistleblowers to come forward with their testimony. In several cases, representatives of the justice sector have continued to experience persecution and retribution after sharing information while under whistleblower protections. One such case involved Judge Ion Cotea, who was suspended from his position by the SCM in June 2021 after publicly revealing first-hand information regarding corruption in the judiciary.22 According to analysis by CAPC, ineffective implementation of whistleblowing legislation is driven by the de-prioritization of judicial integrity by key bodies such as the SCM and SCP; it is also due in part to limitations in the legislation itself, which contains vague and declarative language that fails to clearly establish mechanisms by which to adjudicate and enforce whistleblower complaints and corresponding protections.

5.3.5. In addition, the current system of judicial probation incentivizes judges to adhere to the political influences of their superiors. The current system allows new judges a probationary term of five years before they are able to be reconfirmed by the SCM for a tenured position. In practice, this has led to a culture in which new judges are compelled to act in accordance with the instructions of superiors in order to progress in the legal profession. In recent years, several controversial decisions accused of political motivation were issued by judges in their probationary period. Among them are Judge Rodica Berdilo, who issued the initial court decision annulling the 2018 Chisinau mayoral elections; and Andrei Neculcea, who made decisions of disputed legality in cases regarding Ilan Shor in 2017 and Turkish teachers forcibly expelled to Turkey in 2018.23

5.3.6. The dysfunctions of the judicial tenure system have long been openly acknowledged by the Constitutional Court, which issued three successive opinions in 2016, 2017 and 2020 recommending the elimination of the five-year probationary term; however, Parliament has continually failed to pass legislation to effect this change.24

5.3.7. Finally, the pervasive culture of impunity in the justice sector is further demonstrated by the fact that judges are often permitted to continue their work while they themselves are under investigation for corruption or similar crimes. This is possible due to court decisions that have annulled the SCM’s initial decisions to suspend judges who are under criminal investigation or who are being tried in criminal cases. One example of this is judge Oleg Melniciuc, who is currently the subject of criminal proceedings for illicit enrichment. The criminal case regarding Melniciuc was started in 2017 and is currently pending in court. However, Melniciuc returned to work in 2019, after the 2017 SCM decision suspending him from office was annulled by the Chisinau Court of Appeal. 25

VI. Recommendations

6.1. Ensure the legal principle of equality before law is upheld for all Moldovan citizens, and that current practices permitting selectivity and political bias in the justice system are addressed through legislation and rigorously enforced at all levels of government;

6.2. Clearly establish and provide transparent public explanation for cases categorized by the Prosecutor General as “politically biased.” Revise the criteria for such cases in coordination with civil society to ensure they do not unfairly benefit special interests;

6.3. Strike down as unconstitutional laws recently passed by Parliament that limit the activities and authority of the NIA. In coordination with civil society, readdress integrity reform laws, including Law No. 132 on the National Integrity Authority and Law No. 133 on the Declaration of Assets and Interests, to improve the NIA’s effectiveness to achieve its mandate;

6.4. Establish clear and detailed criteria for assessing the integrity of judges and prosecutors by the Evaluation Boards of the SCM and SCP, and increase the weight of integrity criteria in the general evaluation score of justice sector officials;

6.5. Take measures to improve the procedure of appointment, transfer and promotion of judges to enhance transparency and independence in the judicial system, including by adopting constitutional changes eliminating the five-year probationary term for judges

6.6. Ensure thorough investigation by the SCM, SCP and General Prosecutor of the facts of official complaints submitted by judges and prosecutors regarding undue influences and pressures they experience in the course of their work. Encourage the practice of whistleblowing in all justice sector bodies and ensure whistleblowers receive full protection under the law;

6.7. Actively support the efforts of civil society and independent media to monitor, document and share information on corruption and integrity issues with Moldovan citizens, including by proactively sharing information of public interest.