Convictions by ECHR point to injustice existing in Moldova? IPN interview with Vladislav Gribincea

Do the convictions by the European Court of Human Rights reveal the injustice existing in the Republic of Moldova? To what extent do these convictions “contribute” to Moldova’s image at foreign level? How can the judges to blame for these convictions be held accountable and how the justice sector reform goes? Responses to these and other questions can be found in Elena Nistor’s interview with the president of the Legal Resources Center of Moldova Vladislav Gribincea.

– IPN: Mister Gribincea, as part of this interview I would like to treat injustice, which is the key notion of our project, and to address the issue through the angle of the conviction of the Republic of Moldova by the European Court of Human Rights. Until then, tell us please in short about the most general notions related to the ECHR: what does it do, what kind of cases it examines and what conditions should be met to be able to obtain justice at the ECHR?

– Vladislav Gribincea:
The European Court of Human Rights was created 60 years ago and each country has by a judge there, who acts in the own name. The judge is independent and receives a salary from Strasbourg. There is a list of candidates proposed by the Government, but the judge is chosen by the Parliamentary Assembly of the Council of Europe. When the candidate is elected for a nine-year term, this cannot be influenced. These 47 judges, which is the current number, are assisted by jurists who are also employees of the Council of Europe. They are also independent and receive applications from all the 47 member states.

Over 800 million people can go to the European Court, including legal entities. The European Court is considering if the rights of these were violated or not. To get to the European Court, one should request the authorities in Moldova or in any other country to solve the problem at the local level. Only when the problem is not solved at the local level, after all the internal ways are used up, one can go to the ECHR.

The European Court does not have powers to examine any kind of human rights violations. It can deal with a limited number - about 25 rights about which one can complain. For example, one cannot complain about the right to leave to the ECHR. As a result of the examination of applications - each person can complain only about the violation of their rights – the Court adopts a decision. The process lasts for two to seven or even ten years. This is a long period, but the persons probably go to the ECHR because they do not have a better solution after using up the national remedies.

When passing a judgment, the European Court obliges to implement this as the Court’s decisions are mandatory and it compensates the person. In exceptional situations, it orders that the state should fully rehabilitate the person, for example, this should be reinstated in the post from which he was dismissed or the person’s right to property should be restored. Currently, the Republic of Moldova is among champions by the number of convictions. During 23 years, since the Republic of Moldova joined the Convention, we have over 450 decisions and the Republic of Moldova lost most of these cases.

– IPN: Let’s turn to the traditional analysis conducted annually by the Legal Resources Center. In 2019, it showed that the Republic of Moldova ranked fifth among the countries against which the ECHR passed the largest number of judgments. What does this mean in terms of the quality of our justice?

– Vladislav Gribincea: The European Court, if it passes a judgment, this refers to a violation. The fact that there are many applications filed to the ECHR shows that a large number of violations were committed. But this is not always due to justice or injustice. The number of applications can be generated, for example, by the law enforcement system, like the situation in Hungary, where everyone’s pensions were systemically reduced by a law. Justice is not involved here. It goes to a legislative action. Hypothetically, this is possible, but in the case of the Republic of Moldova, most of the convictions are due to the judiciary system.

I have the statistics here: starting with 1997 until July 1, 2020, there were ascertained 618 human rights violations. Of these, 200 violations (32%) refer to the violation of the right to a fair trial, 149 violations (24%) to the prohibition of torture, 92% violations (15%) to the right to liberty and security, which is the right to be free, 30 violations (5%) to the respect for private life, while 19 cases (3%) to the freedom of expression. These rights are most often violated.

– IPN: What shows that the right to a fair trial is most often violated? Is this due to the shortcomings existing in the system?

– Vladislav Gribincea: Sometimes the imperfections of justice are due to the law, while sometimes, but not in the case of the Republic of Moldova, they are not due to the law. Unlike Italy, for example, where the violations refer to the length of court proceedings due to the overloading of the judiciary system, the situation in the Republic of Moldova is different. Of the 200 violations, it’s hard to name a group of violations that would dominate. Yes, there are many unexecuted court decisions, 68 if I’m not wrong, but these violations are old. After 2010, we have few convictions in this regard and they originate in the 1990s, when the court decisions were adopted, but the Ministry of Finance didn’t implement them.

Now something like this does not exist. I would say that of the over 200 violations of the European Convention, of the right to a fair trial, 2/3 are due not to the non-execution of court decisions, but to the behavior of judges.  These 2/3 of violations are very different. Many refer to the invalidation of irrevocable court judgments, when judges up to the Supreme Court of Justice or the Appeals Court said a case should be solved in a particular way, but in a period changed their mind.

This is unacceptable. If the judge passed a judgment and this is final, it should be implemented and can be remedied only in case of very serious shortcomings. They, the judges, easily accepted to reverse the proposed solution. The European Court convicted us for such acts in over 60 cases and this is a lot – 10% of all the convictions.

– IPN: What does this “change of mind” show? Are the judges influenced from outside?

– Vladislav Gribincea: Normally, when the judges pass a judgment, they should be absolutely sure about the solution they provide as this is not a decision pronounced for the first time. The decision is pronounced for the first time and is then upheld by three judges of the appeals court and, eventually, is upheld by five judges of the Supreme Court. Nine judges take part and, when a solution is revised, often by violating the law or without convincing reasons, the questions is simple, why does this happen? And I don’t have a plausible explanation for this.

The judges most often revise the own position based on arguments that existed in the case, which is they, by a particular date, said the arguments should be treated this way, while after a particular date reversed the own solution based on the same arguments. This is unacceptable.

We tried to examine in detail this phenomenon and didn’t find a plausible explanation. In some of the cases, there are economic interests indeed. Then, the inversing of the solution can be related to corruption. This is not for sure, but we cannot exclude something like this. In other cases, there were major political interests and the judges could have been thus influenced. I think we should seriously ponder over when the judges easier accept such influences.

We have many convictions concerning the reversing of own decisions by judges and such convictions continue to come. The first conviction of the kind was in 2005, which is 15 years ago. We each year have such convictions, even if they are fewer in number. The question is, if the ECHR passes judgments, it expects the authorities to remedy the cases so that no such decisions appear in several years.

– IPN: I want to ask you about the amendments to the legislation concerning the appeals that the state could file against judges to blame for Moldova’s conviction by the ECHR. Is this a kind of improvement of the existing mechanism? What is your opinion about that bill?

– Vladislav Gribincea: Let’s start from the fact that we do not have judges who would have covered the costs paid by the state because of their fault. Secondly, it is not normal for the judge to answer for each made mistake. But I refer to a mistake, when there was no intention. When it goes to an evident “mistake” that can be made only by neglecting evidence, the judges should answer for something like this.

The Ministry of Justice proposed that the judges should cover the costs only when they are held accountable criminally or are punished disciplinarily. This means the accountability should be conditional upon the conviction of the judge by his colleagues or upon disciplinary punishment by his colleagues. Do you imagine something like this? Such a mechanism will never be applied.

– IPN: So, you think this mechanism is a priori failed?

– Vladislav Gribincea: I don’t think the mechanism is ok. If the judge who is examining an appeal identifies an inexcusable mistake made by the judge of the previous court, he simply obliges that judge to return the money. I note that something like this should happen in exceptional cases and only when it is determined that the judge intentionally passed an illegal judgment. But we should not make this contingent on the criminal punishment of the judge as we will witness absolute impunity.

There is a relevant Constitutional Court judgment that does not say it clearly what should happen, but there is the opinion of the Venice Commission. The Venice Commission said the judge should be made to pay the costs in two cases: 1) when there is the intention and there are methods for determining the intention; 2) when there is an inexcusable mistake. The law says a person can be sentenced to two to five years in jail, but the judges can give a person ten years. There were such cases and they are inexplicable. Those judges should answer for something like this.

– IPN: How do you think, to what extent do these convictions by the European Court “contribute” to Moldova’s image abroad, before the Western partners that every time lay emphasis on the rule of law, equitable justice, human rights, etc.?

– Vladislav Gribincea: We speak about image, reputation, trust and this reputation is earned in time, by the own example. When the examples are bad, the reputation is also bad. When the examples are good, the reputation is also good. Such examples can only further harm the reputation of the Moldovan judiciary.

However, as I said, the ECHR examines the cases during a long period of time. A judgment passed by the European Court now refers to a situation that existed four-five or even seven, nine and 15 years ago. We should be attentive to what we say, but the impression is not created based on one example. It is created by an amalgam of circumstances – of 10, 15, 20, 50 examples. And it happens not during one day only. We all know that it is easy to lose confidence and it is very hard to regain it, if it’s possible in general. One should work hard during many years in this regard.

As many as 1,020 applications against the Republic of Moldova were pending at the European Court of Human Rights at the start of this July and 980 of these applications had big chances of being decided in favor of the applicants. The figure is big as Moldova during 23 years was convicted by the ECHR in 618 cases for human rights violations. Of the 980 applications, possibly not all will result in convictions as the Government can itself recognize the violation. But the number of 980 acceptable applications is very large, especially in relation to the country’s population. This is a workload for the European Court for ten years to come.

Other aspects of the accountability of judges, the recent appointments in the judiciary system and the justice sector reform can be followed in the video version of the interview with the president of the Legal Resources Center of Moldova Vladislav Gribincea.

The interview was held in the framework of IPN’s project “Injustice Revealed Through Multimedia”.

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