Republic of Moldova

Recent developments in the field of justice (first semester of 2022)

A.    Constitutional amendments on the judiciary

The constitutional law entered into force on April 1, 2022. The constitutional amendments  aimed to strengthen the guarantees of independence of judges, to exclude the political factors that influence their careers but also to change the structural composition of the Superior Council of Magistracy (SCM) with the exclusion of ex officio members, the Minister of Justice, the Prosecutor General and the President of the Supreme Court.

 The main amendments aim to reflect functional immunity of judges, unifying the way judges are appointed (all judges will be appointed by the decree of the President of the Republic of Moldova, or until this phase SCJ judges were appointed by Parliament), removing the initial term of appointment of judges (probationary period) for 5 years. Additionally, the composition of the SCM was changed (6 members from among the judges will be elected by the General Assembly of Judges, representing all levels of courts and 6 members will be appointed by the Parliament from civil society) and a 6-year term without the possibility of having two successive terms was established. According to the new provisions the SCM must be consulted in the process of drafting, examining, approving and amending the budget of the judiciary. Therefore, the SCM may submit proposals to the Parliament on the financial means needed for the proper functioning of the courts.

In order to ensure the implementation of the constitutional amendments operated to the Supreme Law by Law no. 120 of September 23, 2021, the Ministry of Justice drafted a law amending the infra-constitutional legislative framework.

B.     Measures for the selection of candidates for administrative positions in the self-governing bodies of judges and prosecutors

The Law no. 26/2022 on some measures for the selection of candidates for administrative positions in the self-governing bodies of judges and prosecutors regulates the legal relations related to the procedure of assessing the integrity, lifestyle and living costs of candidates and their close persons for administrative positions in the Superior Council of Magistracy (SCM), the Superior Council of Prosecutors (SCP) and their specialized bodies during the last 15 years, as a mandatory stage of the process of selecting candidates and appointing them to the respective positions.

Additionally, the Evaluation Committee for assessing the integrity of the candidates for the membership in SCM, SCP and colleges has started to be operational.  The evaluation committee is made up of three national experts designated at the suggestion of the parliamentary groups by observing the proportional representation of the majority and the opposition, and three international experts named at the suggestion of the development partners, being confirmed by the vote of the Parliament.

The decision shall contain the conclusion of the Evaluation Committee as to whether or not the integrity assessment was passed, the reasons for it and the indication of the appeal and the time limit for the appeal. The decision shall be taken by a majority of the members. The members of the Evaluation Committee shall not have the right to abstain from voting.

The decisions of the Evaluation Committee may be appealed to the SCJ by the evaluated candidates or any interested persons who participated in the administrative procedure for evaluating the candidates.

C.     Exclusion of the institution of compulsory judicial mediation in order to reduce the workload of judges and promote extrajudicial mediation

This reform was provided in accordance with the Government’s Action Plan for the years 2021-2022. The Code of Civil Procedure of the Republic of Moldova was amended.  Specifically, it is about the exclusion of compulsory judicial mediation for civil cases.

Although the original aim was to reduce the workload of judges and to resolve cases more quickly. Over time, it has been found that this alternative method of resolving disputes is inefficient and has not generated positive results. Moreover, it has had negative consequences for civil proceedings and the workload of judges and has delayed pending cases, affecting the free access to justice of litigants. For example, in the last four years, out of the total number of judicial mediation proceedings - about 43,500 cases, only 1,165 were completed with the conclusion of a transaction. In the rest of the disputes, the mediation processes ended by the refusal of the parties to settle the dispute amicably, the expiration of the term or the waiver of the plaintiff's action.

It has also been found that judicial mediation proceedings take too long - between three and nine months, which is contrary to the provisions of the Code of Civil Procedure, which provide that the term of judicial mediation may not exceed 45 days.

The amendment also provides for the transitional provision, according to which the judicial mediation processes not completed at the time of the entry into force of the law will be continued and completed according to the old provisions.

The amendment aims to promote compulsory extrajudicial mediation, to reduce the workload of judges and expand the area of intervention and provision of services by mediators.

D.    Legislative measures in the field of integrity

In order to improve the legislative framework on the functioning of the National Integrity Authority, to prevent situations of conflicts of interest and incompatibilities, as well as to declare correctly / properly the wealth and personal interests of subjects subject to such obligations, amendments were made in several legislative acts, especially in Law no. 133/2016 on the National Integrity Authority and Law no. 133/2016 on the declaration of wealth and personal interests. The amendments aim to strengthen the role of the integrity inspector and to give the power to request the evaluation of goods in asset control procedures, in order to identify their real / market value and to exclude the practice of acquiring goods at not real prices, from persons who cannot justify their origin.

In the part related to the strengthening of the integrity mechanisms of judges and prosecutors, the Ministry of Justice has elaborated a draft law which proposes, in particular to establish a mechanism for declaring assets at the stage of admission at the National Institute of Justice, so that the integrity regime is applicable to all stages of the career of judges and prosecutors (admission to NIJ, appointment, promotion / transfer). The draft law is currently subject to repeated public consultation.

E.      Other important initiatives and developments

The Ministry of Justice has initiated the process of creating the mechanism for extraordinary (external) evaluation of all judges and prosecutors (vetting), similar to the practices of other European countries.

In  the context of the reform of the justice system, the Ministry of Justice launched a concept of reformation of the Supreme Court of Justice (SCJ). The reform involves adjusting the role of the SCJ and focusing on unifying the judicial practice and pronouncing decisions in areas of major importance to society in the Republic of Moldova. The reform will also provide for a reduction in the number of SCJ judges, internal operational restructuring and streamlining the work of the SCJ.

The Ministry of Justice initiated the process of creating a normative framework that will allow the confiscation in the civil procedure of the illegally obtained goods with the establishment of a difference between the persons exercising public functions from the other persons, from the perspective of the presumption of the lawfulness of the acquisition of their goods.

Additionally, measures are taken on the component of improving the mechanisms for recovery / confiscation of criminal assets.