Does Moldova need an Anti-Corruption Court?

The specialized Anti-Corruption Court may begin work this summer – a year later than the authorities initially expected. In the coming days, the final version of the law on the creation of a new institution, which is expected to examine the cases of the country’s top corrupt officials, will be ready.

The project is now being finalized according to the recommendations of international and national experts. However, according to a number of experts, the process of launching the Anti-Corruption Court risks dragging on indefinitely. And the question is not only about the difficulties associated with attracting judges who are planned to be selected as part of a special competition. Experts speak out against the creation of such a court and talk about the risks associated with it. And the Venice Commission expressed doubts about the feasibility of the project, believing that it would be better for the authorities to focus their efforts on the reforms already being carried out. The government was asked to carefully analyze whether it is worth establishing a new court, which requires time and money, or whether a more suitable option would be to form a specialized panel in one of the courts in Chisinau. Judges from among teachers and lawyers In March 2023, President Maia Sandu demanded that a legislative framework be prepared for the creation of an Anti-Corruption Court, which would be referred to cases of corruption in the highest echelons of government and in the justice system. According to the expectations of the head of state, voiced after the meeting of the Supreme Security Council, the new institution was supposed to begin its work within the next three months. However, as experts predicted, it took much more time to prepare and approve the law. The presidential administration developed a bill, and the government gave a positive opinion on it. The explanatory note states that corruption is one of the key factors hampering the country’s economic development and increasing inequality between different segments of the population. The authors of the project refer to a public opinion poll conducted by the Legal Resources Center of Moldova, according to which a third of judges, a quarter of prosecutors and two-thirds of lawyers believe that in 2023 there is still a lot of corruption in the country. The authorities hope that the creation of the Anti-Corruption Court will ensure the independence of judicial decisions. According to the authors of the project, the consideration of cases of public importance in courts continues to be delayed, and cases of corruption against judges in most cases end in favor of the judges. They emphasize that despite reforms and external assessment, the judiciary does not have the courage to act contrary to the established order in the system, when the interests of judges are protected to the detriment of the interests of society. According to the bill, the Anti-Corruption Court, as a first-level court, will only consider cases related to corruption and related crimes. Cases from the Anti-Corruption Prosecutor’s Office and complaints against decisions of the National Integrity Authority, including requests for confiscation of unjustified assets, will be sent here. The staff of the new instance will include 15 judges with a salary of 45 thousand lei. The salaries of secretaries and assistants will be increased significantly. The decisions made by the Anti-Corruption Court will be appealed to a specialized panel of the Chisinau Court of Appeal, consisting of 6 judges. In the future, the verdict can be challenged in the Supreme Court of Justice. The Supreme Council of Magistracy will organize the competition and select candidates. According to the original version of the bill, international experts delegated by external partners should also participate in the pre-selection. To become a judge of the new specialized court, it is not necessary to have experience in the judicial system. By doing so, the authorities expect to attract candidates from among law teachers, prosecutors, lawyers, and other representatives of the legal profession. There are a number of criteria that all applicants to the Anti-Corruption Court must meet, including 5 years of experience as a judge or 10 years in the field of jurisprudence. For those wishing to join the specialized panel of the Appeals Chamber – 6 years of experience as a judge or 11 years in the field of jurisprudence. To avoid a conflict of interest, the path is closed to candidates who have worked in the Anti-Corruption Prosecutor’s Office for the last 7 years. One of the other criteria is deep knowledge of the law, high professionalism and integrity. The authorities intend to give priority attention to image aspects, since sociological surveys indicate a low level of public trust in the judiciary.

Judges will be appointed by presidential decree for a 6-year term. The law provides for special protection measures, as well as providing anti-corruption judges with official housing in Chisinau, if they need it. They and their family members will be provided with state protection if necessary. Transitional provisions provide that the new instance will actually begin its work after the appointment of at least 4 judges. From now on, cases pending in other courts will be sent to the Anti-Corruption Court within a month, if they have not yet reached the stage of judicial debate. Cases that have reached the stage of judicial debate must be completed within 5 months from the date the law enters into force. Otherwise, these cases will also be transferred to the Anti-Corruption Court.

“Costly and untimely reform”

In October 2023, the Venice Commission and the Directorate General for Human Rights and the Rule of Law of the Council of Europe, in a joint opinion, expressed doubts about the feasibility of the bill proposed by President Maia Sandu. Commission experts called it a “costly reform” that would entail serious logistical and organizational problems and would further fragment the judiciary by giving privileged status to judges who would hear corruption cases. It is noted that the creation of the Anti-Corruption Court is untimely, since certain reforms have already been launched in the judicial system, which have not led to results. Experts recommended that the authorities focus on completing the process of external evaluation of judges, rather than on creating an Anti-Corruption Court. It is recommended to increase the effectiveness of existing anti-corruption bodies and mechanisms, as well as judicial authorities. Experts note that cases involving corruption could be referred to judges who have passed an external review. They recommended that the authorities analyze whether the six judges of the Chisinau Court of Appeal can cope with the workload, given that, according to the project, there will be 15 judges in the first instance. Experts were also puzzled by the fact that the project provides for the creation of an Anti-Corruption Court and a specialized panel at the Chisinau Court of Appeal, while there were no plans to create a separate panel at the Supreme Court of Justice. At the same time, the conclusion notes that the decision on the sufficiency of grounds for the creation of specialized anti-corruption authorities is the competence of the Moldovan authorities. If the government insists on implementing its initiative, European experts recommend a thorough analysis of the impact of the bill, including the advantages and disadvantages of this reform. In their opinion, all powers to select judges should be transferred to the Supreme Council of Magistracy (without any pre-selection). Despite the position of European institutions, the authorities did not abandon their initiative. In April 2024, the Parliament of Moldova is preparing to adopt in final reading the law on the creation of the Anti-Corruption Court. The technical working group formed to refine the final formula according to the recommendations of the Venice Commission and the government plans to present the final version by the end of March. According to Justice Minister Veronica Mihailov-Moraru, consultations were recently organized on this issue, and the Chisinau Court, together with the Superior Council of Magistracy, compiled a list of judges specializing in corruption.

“Trick” for the election campaign?

While some experts support the authorities’ initiative, others argue that this project is unjustified, expensive and difficult to implement. Political observer Anatol Taranu believes that Moldova realized late the need to create an effective mechanism that would ensure the speedy consideration of cases of major corruption. In his opinion, the authorities should hurry up with the launch of a specialized court to ensure the continuation of justice reform and cleansing the system of corrupt elements. Taranu believes that the Anti-Corruption Court should change the system and become a kind of cudgel, designed to remind those who try to resist reform within the system: “Don’t do this, you will be severely punished.” Deputy Speaker of Parliament Vlad Batryncha sees the intention to create an Anti-Corruption Court as an attempt to justify the failure in the fight against corruption, which was promised by the authorities. According to him, the government has all the necessary levers to combat the phenomenon of corruption, and the establishment of this new body is a “false goal” in conditions where the promised results cannot be given to society. At the same time, as the deputy notes, the authorities have shown an inability to organize the effective work of the Anti-Corruption Prosecutor’s Office and the National Anti-Corruption Center (NCC). “No matter what this structure is called, a tribunal or another name, in any case it will have the same competencies and the same people will remain in it. Nothing will change. They want to show that they need four more years to achieve results. The PDS organized competitions; they promoted heads of the National Anti-Corruption Prosecutor’s Office and the heads of the National Anti-Corruption Prosecutor’s Office. They control these institutions, so let them demonstrate the promised results, let them not look for the culprits, but do what they promised to the citizens,” says Batryncha. Experts note that anti-corruption authorities are rare in foreign judicial systems, although there is logic in their existence. Since Moldova has the National Anti-Corruption Prosecutor’s Office and the Anti-Corruption Prosecutor’s Office, the last in this chain could be a specialized court. The first link ensures operational activities, the second – criminal prosecution, and the third – judicial consideration of cases. However, most experts still believe that this initiative will not justify itself, especially in a justice system that is dependent on political factors and other narrow interests. Anti-corruption courts tend to emerge in developing countries with the help of the international community when there is widespread frustration and there are no other ways to deal with corruption. There are also cases when politicians used such initiatives as a “trick” in their election campaigns, but the matter did not go beyond public debates and slogans, despite support from the population – this, in particular, happened during the presidential elections in Nigeria. According to WatchDog expert Alexandru Bota, in Moldova the proposed reform will not become a “lifeline”, but will further delay the consideration of corruption cases. “It may be more efficient to use the resources that we have than to think about access to new monetary, political and logistical formulas to ensure the functionality of a separate court. If this happens and is implemented in the version that is being promoted, it will create big problems with delays in cases,” says Alexandru Bot. As he notes, 15 judges of the Anti-Corruption Court will have to simultaneously consider criminal cases of corruption, administrative cases of illegal enrichment and perform the duties of judges for criminal prosecution. In such conditions, there is a high probability that some cases will not be considered due to the recusal of judges. In many cases, materials reach the judge at the stage of criminal prosecution or, for example, as part of an administrative case with the same charges. In such a situation, the judge is subsequently deprived of the right to consider the criminal case on its merits, which ultimately can lead to difficulties in the work of the Anti-Corruption Court. Some experts signal likely difficulties in forming the composition of the new institution, recalling that dozens of judges have resigned and many courts in Moldova are facing staffing shortages. In this regard, they predict that the “heavyweights” from Chisinau are unlikely to want to participate in competitive procedures; as a result, people from different regions will be selected. A similar situation, by the way, arose during the formation of the staff of anti-corruption authorities in some other countries. Thus, in Ukraine, in the first composition of the Supreme Anti-Corruption Court of 38 judges, only 22 people had previously worked as servants of Themis. Another 13 practiced law, and three were law teachers. Moreover, most of the competition winners are little-known judges and lawyers from the regions. The Legal Resources Center of Moldova believes that the creation of a specialized anti-corruption judicial system will not lead to the expected result. Experts draw attention to the increased risk of corruption among a limited number of judges, as well as the lack of international practices confirming the effectiveness of such courts. The achievements of anti-corruption authorities are widely assessed as mixed, since they have very rarely achieved any success, and in most countries the results are disappointing. According to the Legal Resources Center, Parliament should abandon the counterproductive and ill-timed idea of creating an Anti-Corruption Court, focusing on reforms already initiated. The inappropriateness of this initiative was also stated by the Center for Analysis and Prevention of Corruption, Transparency International Moldova and some other organizations. Among the main arguments are the small number of cases in this category, the ineffectiveness of such courts in other countries, the risks of corruption and political influence on judges.

Victor Surujiu