Advancement of democracy and
4.3. Functioning of the judicial system
EVOLUTIONS: +1 SITUATION: 0 PERSPECTIVES: +1
Table 10 Indicators of the quality of justice
Source: Bulletins of the Supreme Court of Justice, analysis of the judiciary statistics (2004-2007) for the fi rst and second rows and web page of the European Court of Human Rights, http://www.echr.coe.int/ECHR/EN/Header/
Reports+and+Statistics/Reports/Annual+surveys+of+activity/
126 Justice Reform Indexes for Moldova, January 2007, Volume II, Ameri-can Bar Association.
127 Law no. 355 of 03.03.2006.
Advancement of democracy and good governance the judicial system, but also a stagnation
in the percentage allocated, between 0.12%
and 0.14% of the state budget. Th is level is insuffi cient in order to ensure an adequate operation of justice. Insuffi cient fi nancing of the judicial branch added to a lower remu-neration as compared to the legislative and executive authorities have a direct impact on the illegitimate relations and corruption in the judicial branch. Th ere is some prog-ress in diminishing the fi nancial infl uence of the government on the judiciary as regards the use of money allocated. Before 2004 the fi nancial means allocated to the courts (ex-cept for the Supreme Court of Justice) were disbursed by the Ministry of Justice. Starting with 2004, the right to manage own budgets was granted also to the Courts of Appeal, and from 2005 this right was granted to all rayon and specialised courts.
Th e third relevant aspect concerns the effi ciency of justice. One cannot speak about an effi cient act of justice until this is en-forced and applied on the whole territory of the country. Currently the problem related to the enforcement of judicial decisions is extremely serious, in particular as regards the enforcement of judicial decisions in civil and economic cases. It is diffi cult to assess the implementation of the Enforce-ment Code since it came into force only on 1 July 2005. Th e Enforcement Department managed to compile only the information regarding its activity in 2006, but even this information is alarming. Th us, in 2006 the Department employees (282 persons) had to enforce 300,895 enforcement titles in civil and economic cases; only 155,481 of them were enforced or 53.2% of the total number, which is a 1.9% decrease as compared to 2005128. It should be mentioned that failure to enforce judicial decisions was the main ground of condemnation of the Republic of Moldova by the ECHR. At the same time, the judicial authority is not exercised on the territory controlled by the separatist regime in the Eastern rayons. Th erefore, around 547 thousand residents of that region, or 1/8 of the country’s population, do not enjoy ac-cess to justice.
Th e inappropriate manner in which diff erent state bodies or offi cials react to the ECHR decisions condemning the Republic of Moldova for violations of human rights
is quite suggestive. Th ere were cases re-ported when prosecutors sent letters to the attorneys who publicly declared that they will fi le complaints against the state with the ECHR, threatening them with criminal prosecution.
Risks
Th e operation of justice is facing multiple problems which cast doubts on the effi ciency and legality of the act of justice. All these problems directly or indirectly aff ect the functioning of the judicial authorities. Generally these problems relate to:
Continuous increase of the number of de-cisions repealed by upper courts (in par-ticular in criminal cases). Upon repealing such decisions, the upper courts indicate defi ciencies and infringements committed by the lower courts, thus convincing the public about the unprofessional vocation of the persons who adopted those decisions.
Th erefore, the people involved directly or in-directly in court trials loose their trust in the justice system. One of the reasons explaining this situation is the high number of cases dealt with by the judges. In 2006 the average monthly workload of a judge was around 60 cases and materials, or 3.32 cases per each working day. Obviously, a case cannot be ap-propriately solved within a single sitting.
Th e number of complaints fi led with the ECHR against the Republic of Moldova is continually increasing. Th is aspect preju-dices the image of justice in the Republic of Moldova. Another problem is that the ECHR adjudicate fi nancial compensation for
mate-Authority 2003 2004 2005 2006 2007
Rayon Courts
21,85
23,93 32,94 51,03 55,51
Courts of Appeal 6,98 10,82 15,21 15,66
Economic Rayon Court 1,77 2,15 2,52 4,49 4,6
Supreme Court of Justice 3,65 7,29 17,10 14,28 15,83
Prosecutor’s Offi ce 25,92 28,88 40,17 67,89 66,29
Total budget allocated to the
judicial branch 53,19 69,23 103,55 152,9 157,89
% of the state budget allocated
to the judicial branch 0,12 0,13 0,12 0,14 0,13
Table 11 Financing of the judicial branch, million MDL
Source: Laws on State budget for the years under review
128 http://www.justice.gov.md/index.php?cid=192.
Advancement of democracy and good governance
rial and moral damages suff ered by the ap-plicants. Th e amount of damages adjudica-ted by the ECHR is quite high and continues to increase, reaching more than 1.5 million Euros at the end of 2007. Th ese amounts are paid from the state budget, ultimately by the taxpayers.
Financing of the judicial authority is lower than in the European countries129. In the process of European integration, the Repu-blic of Moldova must ensure its convergence to the European level of the fi nancing of jus-tice. Currently, this priority area is fi nanced under the level of other domains, which are less important for the functioning of a de-mocratic state.
Failure to enforce fi nal judicial decisions is a key problem for the Republic of Moldova.
Forcing people to seek justice at the ECHR, this aspect has a negative impact on the ima-ge and public trust in the justice system. Se-condly, failure to enforce judicial decisions is a ground to resort to the ECHR, even if the trial was perfectly legal and fair. Th is situati-on results in additisituati-onal expenses, which wo-uld be lower if the decision concerned was enforced on the national level.
Another serious risk is that the legislation of the Republic of Moldova is not applied on the territory controlled by the separatist regime of Tiraspol. Currently, this is a seri-ous problem for Moldova which eventually could lead to a complete loss of control over the territory on the left bank of the Nistru River. In its decision in the case Ilascu vs.
Moldova and Russia, the ECHR noted that the Republic of Moldova bears responsibi-lity for the infringements and violations of human rights which occur on that territory.
Using this precedent, any Moldovan citizen residing in that region can fi le a complaint with the ECHR against Moldova for violati-ons of his fundamental rights, since non-ap-plication of the legislation on that territory results in violations of the rights of those persons.
Governmental policies
Th e European Union – Republic of Moldova Action Plan provides a number of actions aiming at reforming the judi-cial system. With a view to implement
the AP provisions, a number of legislative acts were amended to strengthen the in-dependence of the judicial power, change the modality of appointing judges and create conditions for the improvement of professional vocation of the judicial staff . A pending issue is reform of the compe-tences of the Prosecutor’s Offi ce and the modality of appointing prosecutors, in-cluding the Prosecutor General.
Th e National Action Plan in the area of human rights for 2004-2008 was approved by the Parliament on 24October 2003 in order to ensure the implementation of a joint policy of the public institutions and civil society designed to improve the situa-tion in the fi eld of human rights. Th is Plan includes actions to enhance the system of state bodies in charge with the protection of human rights and in particular the ju-dicial system. A number of actions were designed for the judicial system, but most of them were purely declarative, and their implementation would not dramatically change the situation. In order to fulfi l the Plan, public debates are organised with the participation of the civil society, but these debates have a formalistic nature, and no signifi cant progress was achieved.
On 19 June 2006, the Government ap-proved the Decision no. 668 “regarding the offi cial web-pages of the authorities of public administration”. Accordingly, the judicial power established a new type of relations with the society. On the court web-pages, important information of pub-lic interest can be accessed, thus facilitat-ing the free access of citizens to justice.
Another positive aspect of this initiative is the fact that the explanatory decisions of the Plenum of the Supreme Court of Justice, designed to set up a uniform ap-plication of the legislation, are accessible for the public at large.
Th e Government founded the Nation-al Training Centre for the personnel of the Ministry of Justice and Prosecutor’s Offi ce back in 1996. But the impact of the Centre was low fi rst of all because there were no clear provisions requiring judges and pros-ecutors to attend such training courses.
With the creation of the National Judicial Institute a general rule was established to
129 The fi nancing of justice in the Republic of Moldova. Chisinau 2005.
Centre for legal studies and policies, IDIS Viitorul, pag.4.
Advancement of democracy and good governance the eff ect that judges, starting with 1
Janu-ary 2008, must attend at least 40 hours of continuous legal training every year. Ac-cordingly, the professional vocation of judges and prosecutors will be improved, a fact which will have a positive eff ect on the cases under consideration.
As regards the issue of enforcing fi nal judicial decisions, two positive aspects should be mentioned, namely the creation of the Department of Judicial Decisions Enforcement in 2002 and adoption of the Enforcement Code on 24.12.2004, in force starting with 01.07.2005. However, this au-thority is not properly funded and staff ed.
Recommendations
Amend the existing legislation and incre-ase the number of judges in courts of com-mon jurisdiction. It is necessary to amend the Appendix to the Law nr. 853 of 29May 1996 “on reorganisation of the court system”
which establishes the number of judges for each court. Increasing the number of judges in common jurisdiction courts (according to the Appendix, there are 48 common ju-risdiction courts) would signifi cantly re-duce the monthly workload of judges, and thus have a positive eff ect on the quality of justice.
In order to minimise the number of con-demnations by the ECHR and improve its image, the Republic of Moldova should make a better use of the dispute resolution procedures pursuant to articles 38 and 39 of the European Convention for Human Ri-ghts, namely the amiable agreement. Th is type of confl ict resolution is welcomed for two reasons. First of all, it would allow dimi-nishing the amounts which are paid by the state in cases of violation of the applicants’
rights. Proceedings at the ECHR are lengthy and in most cases the applicants seek to re-store their rights and not benefi t fi nancially.
Th e later the violated rights are restored, the higher is the amount of damages awarded.
Moreover, in cases of amiable resolution the government can negotiate for periodic pay-ment of damages, opposed to a condemna-tion by ECHR when the payment is ordered to be made at once. Secondly, the Republic of Moldova would prove that it is able to solve independently its problems without an in-tervention of international institutions.
Maintain the pace of increasing the fi nan-cing of judicial authorities. It is necessary to
use a part of the allocated amounts for capi-tal investments (renovation of courts premi-ses and court rooms, technical means etc.).
Th ese investments will have a direct eff ect on the functioning and image of the judici-al authorities, extending the public access to judicial hearings, which currently oft en take place in the judges’ offi ces. Also, attendan-ce of a larger number of persons during the hearings aff ects in a positive way the judges behaviour and performance. Th e presence of other persons in the hearings increases solemnity and offi cial character of the court trials130.
In order to ensure enforcement of the judi-cial decisions it is necessary to increase the staff of the Department of Judicial Decisi-ons Enforcement. Currently, the Department comprises 42 territorial offi ces, staff ed with 282 employees. In the short run, it is neces-sary to employ at least one more person in each territorial enforcement offi ce. Th is wo-uld signifi cantly decrease the workload of every employee, thus increasing the quality of work done by the enforcement offi cials.
In order to solve the confl ict and impose respect for the Moldovan legislation in the Eastern rayons controlled by the separa-tist regime, the competent state authorities (Prosecutor’s Offi ce, Ministry of the Interi-or, Centre for Combating Economic Crimes and Corruption, Security and Intelligence Service), should initiate criminal investiga-tions in every case of violation of the human rights, and ensure their full and objective examination. If a person is indicted, he/she should be given for international search, in-cluding through Interpol and CIS search bo-dies. In certain cases, the President may de-cree pardon and in this way the people who collaborate with the separatist regime would understand that there is justice in Moldova and also that forgiveness and reintegration into society is possible. At the same time, the Republic of Moldova should draft a standard of reaction to the decisions of “courts” in the region controlled by the separatists. From this point of view, only the Ilascu case can be mentioned, when the Supreme Court of Jus-tice reacted and declared as illegal the con-viction decision. Th at kind of attitude should be applied in every single case.
Th ere are several long-term recommenda-tions to be considered. Specialised criminal, civil and administrative panels should be
130 Half-annual analytic report „Preliminary conclusions of the monito-ring of judicial heamonito-rings in the Republic of Moldova” produced by the OSCE Mission to Moldova on 30 November 2006.
Advancement of democracy and good governance
created in the rayon courts similar to those existing in the Appeal Courts and the Supre-me Court of Justice. Th e possibility of peo-ple fi ling complaints with the Constitutional Court when they consider that their rights have been violated by or through the judicial authorities should also be considered. Th e appointment of the Prosecutor General by the Parliament upon the proposal of the
Pro-secutors Board (presently he/she is proposed by the Speaker of the Parliament), would in-crease the independence and responsibility of the institution. It is necessary to equip the courts with judicial hearings recording equi-pment. Last but not least, the remuneration of judges should be raised to a level compa-rable to that of the neighbouring countries.
Advancement of democracy and good governance
Diagnosis
Th e existing public administration in the Republic of Moldova is not very diff erent from the one of the Soviet period as regards methods of administration, transparency of the decision-making process and manage-ment of the public service.
In addition to the subordination rela-tions, a modern public administration em-ploys also other types of relations – lateral, diagonal and others. Th ese are not clearly regulated in the legislation of the Republic of Moldova. For example, the Law on local public administration provides: “Between the central and local authorities, between the public authorities of fi rst level and those of second level there are no relations of sub-ordination…”131. Th at being said, the legisla-tor does not make it clear which are in fact the relations within the administrative pro-cess designed to ensure good governance.
Other areas related to administration are not regulated better, including those regarding the legal status of the public servants. Th e framework law in this area132 is to a large ex-tent obsolete. A new draft law in this area is discussed since 2003, but was never adopted.
Such examples can be found in many fi elds of the administrative activity. Given the frag-mented and uncertain regulation of the ad-ministrative process, it is very diffi cult for the administration to implement the legislation, take correct and effi cient decisions, and clar-ify who is in charge with the implementation thereof, or who and how is accountable for failures and errors of the governance.
Good functioning of the public admin-istration depends to a large extent on the quality of training of the professionals in this domain. Nowadays, the quality of train-ing of public servants cannot be designed, monitored or evaluated because there are no performance criteria for the professionals in public administration. Th e said criteria are part of the Academic (educational) Stan-dards for graduates in the public adminis-tration (administrative sciences) speciality, which for the time being are not offi cially ap-proved in the Republic of Moldova. Modern
governance can be successfully performed only by well-trained personnel, which means that knowledge and skills acquired during the university studies should correspond to the minimum requirements for performing public services. Th ese requirements should be part of the Standards (professional, edu-cational) for holding a public offi ce, which are not draft ed yet.
Despite the eff orts undertaken up to this moment, in the Republic of Moldova insuffi cient attention is paid to the training of personnel for the public administration.
Th us, only 4 state higher education institu-tions train specialists in the area of “Public administration”, namely the State University of Moldova, Academy of Economic Studies of Moldova, State Universities of Balti and Cahul, the annual number of scholarships being 100. Moreover, if before 2006 the number of paid places for this speciality was limited only by the capacities of universities and the number of applicants, starting with 2006 this number is arbitrarily decreased on an annual basis by the Government. Start-ing with 2007, the Academy of Economic Studies of Moldova was not allocated a single scholarship for this speciality, and in other universities the number was reduced by 50%. Th is will result in a shortage of the staff reserve able to implement the adminis-trative reforms needed in the process of Eu-ropean integration. Th e continuous training of public servants is managed exclusively by the Academy of Public Administration un-der the Offi ce of the President of Moldova (APA)133, which precludes the establishment and development of alternative schools of public administration in Moldova. Th is situation impedes the formation of a quali-fi ed category of professional public servants, since APA established by the Government and later transferred into the President’s subordination is an education institution totally controlled by the current