Undermining of the third pillar
Half of the term for the implementation o the European Union — Moldova Action Plan (EUMAP) has passed. Quasi-unanimous estimates of local and international experts are reduced to the finding that the things seem to go the right way as regards the adoption of normative acts, but positive practical consequences are not observed and, on the contrary, the appearing phenomena do not meet the expectations. The modality of arresting the sales manager of the private TV channel PRO TV for the presumed bribe taking held “red-handed” is the latest example with an internal and international resonance. This case raises a big interest — do the accused and his charges fall under incidence of Article 333 (2) of the Penal Code? — Why the plenary exercising of the right to defence was obstructed? — Why the arrest and detention in a hardly identified facility were needed? On the other hand, this case is also interesting for its potential impact.
The specific relations between acting Moldovan authorities and mass media have a dark enough story, if we recall the cases of “Accente”, “Moldavskye Vedomosti”, “Euro TV”, “Antena C”, “ORT v Moldove”, the “special” operation of evacuation of striking journalists from “Teleradio-Moldova” in 2004, etc. The tradition of addressing open letters signed by ambassadors of the European Union (E.U.), the United States and international democratic institutions to support Moldovan journalists and to urge the authorities to respect the freedom of expression and the freedom of mass media also demonstrates the bad state of things in this field. This story of relations between authorities and mass media had an impact on public opinion in the new case — PRO TV. The latter outlines the fact that law enforcement institutions in Moldova do not care about collateral effects of their actions (the intervention of the OSCE Mission confirms this supposition).
The context of the event is interesting in this regard: a) immediately after the accomplishments of judicial and law reform obtained by Moldova in the period of independence were debated at an international conference with the participation of prime minister, chairman of the Supreme Court of Justice, other high-ranking dignitaries and representatives of European institutions; b) during the International Seminar “Moldova and East Europe: Reform, Integration, Settlement of Conflicts, Regional Cooperation” in Chisinau; c) when the Minister of Foreign Affairs and European Integration attended an international conference in Berlin, making efforts that deserve all support to persuade the influent audience over insufficiency of the European Neighbourhood Police (ENP) for Moldova’s European options.
When the Moldovan authorities affirm on various occasions that the European integration is a strategic goal of Moldova, they must expect that European partners look at any invocation of pro-European claims in the light of the building based on the three pillars of the E.U.: economy and social policies; foreign policy and common security; justice and interior affairs, in accordance with the 1992 Maastricht Treaty. Let’s see what signals the E.U. has received from Moldova in the past month only in the light of the three pillars:
- Economy and social policies. It was confirmed on basis of some documents that after nearly three years of implementation of the Economic Growth and Poverty Reduction Strategy Paper (EGPRSP) Moldova remains the poorest country in Europe. Really, the publication of data on properties and incomes of dignitaries induces the legitimate question — if they are the poorest in Europe then how poor the common citizens should be? What happens with the economy and social policy of Moldova if high-ranking functionaries have properties of only several thousands of dollars, some after running leading posts for tens of years? Under these conditions, there is no reason to affirm that Moldova has enemies who brand it as the poorest country in Europe;
- foreign policy and security. If the E.U. is participating more actively in settling the Transnistrian conflict, the conduct of the referendum on attachment of districts from the left bank o the Dniester river to Russia demonstrates how grave is this problem and in what direction it develops;
- justice and interior affairs. This is namely the field where the meddling of other states and historical adversities cannot be invoked. It seems that it is subversively acted toward this European pillar, too, including through the modality of opening the PRO TV case, while this is the only pillar on which Moldova could focus alone its policies in order to gain the E.U. confidence that it follows the best way. This fact imposes a concise analysis of the state of things in the field of justice and interior affairs.
Drawbacks and priorities of justice and interior affairs
The conference “Pace of Judiciary Reform in Moldova. Accomplishments, Problems, Perspectives”, which was recently organised in Chisinau within the Joint Programme of the European Commission and the Council of Europe for Moldova, was an occasion to sum up and highlight the results of this reform estimated in the light of implementation of EUMAP, with the justice being a priority of the Plan.
A public servant who does not work in this system but knows it very well and has access to different information and even must analyse relevant problems like a professional was an interesting enough feature. Thus, the secretary of the Supreme Security Council, Ion Morei, former prosecutor and former justice minister, has recently told journalists that the “judicial system still has a lot of work to do in order to regain the trust of society …there is much work to do for legal education from high-ranking to low-ranking dignitaries, whose mentality does not have respect for law.”
Certain evolutions in this field are being observed and it was mentioned above that they mainly refer to modification of legislation, but we note that the things develop slowly regarding institutional implementation and practice and many problems remain unsolved. The most pressing drawbacks and immediate priorities are linked to:
- faster implementation of new amendments to legislation, ensuring a control on implementation, resources for implementation, creation of infrastructure for enforcement, adoption of new laws, (mediation, clerks, police, border guards);
- strengthening of capacities of new, revised members of CSM, creation of legal self-administration structures (specialised department);
- financing of justice: (endowment of law courts, information of courts, low salaries of judges and prosecutors, auxiliary personnel participating in making justice, etc.). It was earlier announced that a national strategy on financing and technical-material endowment of courts and bodies contributing to making justice is being drafted, but the 2007 budget and the Medium-Term Expense Framework do not include adequate resources for serious reforms in the field and lower expenses for justice are proposed for next years (percentage share in GDP);
- rise of the number of judges, rapid completion of vacancies; (measures which would reduce the duration of examination and number of cases for every judge);
- ensuring the independence of justice, reducing the influences and obscure interests (categorical ensuring of aleatory distribution of cases, ensuring transparency of trials);
- better quality of justice (higher courts outlaw a lot of judgments, cases must be analysed while those guilty must be sanctioned , a permanent improvement is needed; specialisation of judges). Assistants of magistrates are needed as soon as possible after the model implemented in CSJ (clerks are not capable and prepared enough to assist magistrates);
- low effect of “authority of tried thing” (settled cases are re-examined, cases delivered to CSJ are returned to the first court 2–3 times);
- reformation of Prosecutor’s Office (independence — the prosecutor-general and his deputies, members of the Prosecutor-General’s Office College are appointed by Parliament, so that they are under political influence; lower-ranking prosecutors are subordinated to senior prosecutors appointed by political body — Parliament; senior prosecutors can control the appeals of prosecutors; professionalism (selection, transparent contests); status (from repressive body into body participating in making justice; representation and intervention in interest of the state must be done in strictly limited grave cases; equality with the defence);
- inefficient activity of penal bodies (Prosecutor’s Office, Interior Ministry, CCCEC), bad examination of cases by them, lack of further complete information about effect of cases. In order to prevent different interpretations, a rapid settlement with maximum fairness and probity and information of public opinion about final judgments on cases V.Pasat, S.Urechean, M.Formuzal, V.Klimenco, V.Sarban, V.Modirca, I.Paladi, A.Turcan, A.Cebanenco, C.Beccciev, I.Ciontoloi, V.Colta, G.Gorea, Gh.Braghis, M.Cibotari, cases involving high-ranking officers of the Interior Ministry, on awarding of fake invalidity degrees, cases of illicit granting of fields by local authorities (CCCEC has recently reported new cases of this kind), etc. is needed.
- also, the public opinion must be informed about evolution of penal cases on management of some state-owned (state-run) economic units: Air Moldova Company, S.A. Franzeluta, S.A. Aroma, S.A. Farmaco, and others;
- prompt analysis of causes of sentencing by ECHR, exclusion of evident causes in future, recovery of damage by punishing those guilty (investigators, judges, mayors, etc.);
- strengthening of efficiency of judicial police, ensuring a necessary number and subordination, adequate endowment;
- execution of decisions, efficiency of execution of civil and economic matters (rapid execution, recovery of damage in real size, establishing compensations compared with inflation); adequate amendment of the law on remedy of the damage caused through illicit actions of penal investigators, prosecutor’s office and law courts (establishing adequate remunerations in comparison with the damage, exclusion of recovery limits);
- improving the system of legal expertise (more often use by courts, reduction of costs, more efficiency, adequate endowment, rise of the number of employees, etc.);
- lack of a new Code of Contraventions;
- functioning of real system for the protection of victims, witnesses, judges and prosecutors;
- lack of an unified system of judicial practice, insufficient analysis of judicial practice;
- reduction of costs of applications and judging of cases (especially those for civil and economic cases remain high);
- lack of efficient internal reforms within the Interior Ministry; the Border Guard Service; the domestic security service SIS; the Customs Service; the centralised control, sometimes excessive of the executive on all these subdivisions is still preserved;
- reduction and exclusion of cases of torture and inhuman treatment by law enforcements (practiced especially immediately after the arrest and during penal investigations), ensuring the transmission of management of detention facilities to the Justice Ministry;
- reformation, concentration and optimisation of activity of CCCEC;
- efficient combat of corruption inside of police, CCCEC, customs services;
- combat of trafficking in human beings;
- better mechanism of relations with foreigners (efficient and fair procedures of expulsion of foreigners who illegally stay in Moldova;
- signing of readmission agreements with many states; faster statutory determination regarding asylum seekers and refugees), etc.
The recent proposal of the E.U. for Ukraine regarding the drafting of a new document to substitute the Partnership and Cooperation Agreement and to serve as basis for future bilateral relations suggests us that something of this kind will be proposed soon to Moldova, too. It would be regretful if the new offer, be it marked by standard approaches, would focus on “deteriorated condition” of the European integration pillars. But there is a very little time for “repairs” and it is very important to make real efforts, so that very soon:
- dignitaries declare the real values of their properties and incomes, trying to destroy Moldova’s fame of the poorest country in Europe at least this way;
- to try persuading the E.U. that its new agreement with Ukraine must stipulate solutions to security problems in the Transnistrian section of the Moldovan-Ukrainian border. Moldova could ask the E.U. to convince Ukraine also to ban the access of separatist leaders of Transnistria to its territory, while the air traffic between Transnistria and Russia be regulated and controlled by legal authorities of Moldova. Logically, the separatist leaders in Transnistria cannot be considered subjects of the negotiation process after the September 17 referendum (indeed what could be discussed — the term when Transndiestria will become de jure part of Russia?) and, therefore, they must be treated as offenders and must be tried under the Penal Code, including outside of Moldova. Also, the separatist regime, though it is a regime de facto, ignores ostentatiously the norms of international law — the ECHR judgment on Ilascu and many resolutions of European democratic institutions obliging the execution of ECHR judgments; obstructs the strategic partner of Moldova to honour its international commitments on withdrawal of ammunition and military personnel from Moldova; the 2006 events in Crimea demonstrated that the example of Transnistrian separatism is invoked by separatist elements in Ukraine as an example of success worthy of being followed. All these facts must be convincing enough for the Ukrainian authorities to act the same way like the E.U. regarding the “black list” of separatist leaders who are prohibited access to the E.U. This would be a legal procedure since the regimes de facto may be sanctioned for violation of international norms. As regards the relations with the Russian Federation, they may be pragmatic only after their “monetisation” and after the embargo imposed to Moldova. Insisting on Ukraine and the E.U. (which has a positive influence on this country) to allow Russian airships from the eastern districts of Moldova to fly over the Ukrainian territory for landing and take-off with the consent and control of competent authorities of Moldova only is an element of the pragmatism aimed to combat the separatism. Most be find another solutions;
- to remedy the drawbacks of justice and interior affairs as soon as possible, especially those mentioned above.