„The legal reform debates in Moldova miss the key problem affecting the justice system. It is not the insufficient independence of courts from political pressure, although this issue is not one to be ignored. It is the lack of an effective mechanism to ensure the impartiality of the justice system actors. The lack of impartiality of the justice system is a challenge that needs to be solved before addressing its independence from political influence. While the two are connected, Moldova became a textbook example of how they can exist separately. Given that the State in Moldova is weak, lacking impartiality makes Moldova’s justice system to operate like a fiefdom…”
Identifying the real problem
It is an increasingly frequent occurrence that the daily news in Moldova contain references to legal action being taken against justice sector actors, suspected of corruption. Comparing to previous governments, the incumbent authorities seem to be more resolute in fixing the justice system, which has become – over the last decade – a private enterprise for judges and prosecutors, a tool for political repression and a kleptocratic servant. Reforming the justice system is no easy feat. In its efforts to cleanse the justice sector, the current authorities face the remaining kleptocratic resistance – materialized via parliamentary opposition – along with a justice sector that struggles back, exploring democratic principles to resist its deprivatization.
While fighting the remaining kleptocratic influence over the justice sector is a challenging task, this is significantly easier achieved than deprivatizing the justice system. A tug of war had emerged, when new authorities began reforming the justice system while the courts affected by private interests obstructed these efforts. The example of the Riscani district court of Chisinau annulling in December 2021 the decree of President Maia Sandu, which revoked the appointment of Vladislav Clima as the head of Chisinau Court of Appeal is just one vivid example. It has become difficult to distinguish between genuine attempts of the courts to preserve the law and their manipulation of the law to preserve private control over the justice system by corrupt judges and prosecutors.
This describes one of the major challenges that the authorities face in their attempt to build a genuinely democratic state, based on an impartial rule of law system. To clarify the magnitude of the challenge, let us consider a few representative examples of judicial malpractice. Since Moldova ratified the European Convention of Human Rights in 1997 and until 2020, the European Court of Human Rights has delivered over 470 judgements in Moldovan cases, identifying the violations by Moldovan courts in over 90 per cent of them. Another instance revealing the problem in Moldova’s justice sector is the Russian Laundromat case. At least $8 billion were laundered through Moldova using the scheme in which a local judge (fraudulently) ruled the existence of a debt, which was to be paid by a Russian entity to a local account, and consequently moved to banks abroad. Moldovan prosecutors consequently identified and accused some 16 judges involved in that fraud. However, 13 of them were acquitted later by Moldovan courts, while five got reinstated in their posts at the recommendation of the Moldovan Supreme Court of Justice. Yet another more revealing case involves international companies like Adidas and Puma, among others, which failed for years to get the Moldovan courts to prohibit the commercialization of counterfeit goods with their logos on Moldovan markets and receive compensation for the commercial losses. The courts usually took the side of Moldovan businesses, which routinely were connected to local kleptocrats.
The corruption of Moldovan judges has been skillfully exploited by previous kleptocrat regimes, who turned a blind eye to their privatization of justice for personal benefits, as long as the judges played along. The informal contract between these two sides was that the judges could continue taking money for delivering favorable rulings to the highest bidder, as long as they played along with the kleptocrats in power and did not issue decisions clashing with the interests of the latter. The decision to void the Chișinău mayoral elections results, favorable to the Plahotniuc regime, is just one high-profile case of many others. The courts’ services also involved granting legal backing for fraudulent appropriation of public property, taking over the private businesses of competitors, or persecuting the political opposition.
The erosion of governing efficiency
After PAS obtained political power de jure, winning in the 2021 elections, it has been unable to secure that power de facto even after several months in office. Although PAS defeated politically the kleptocrats, it was confronted with the harsh reality of a corrupt justice system, operating as an independent actor – a state within the state – with vulnerabilities that the defeated kleptocrats could continuously, albeit informally exploit. The system of rents and informal institutional control that has been built by the preceding kleptocratic regimes has proven very robust and resistant to change. A major paradox is that the previous legal reforms that the European Union and the US advocated and supported financially in Moldova are now protecting that corrupt justice system from the new government’s attempts to cleanse it. The reforms, which aimed to insulate the justice system from political interference, was a sham during the previous regimes that ignored the reform-built barriers and used a combination of coercion and co-optation to get favorable ruling from judges. However, those reform mechanisms became a politically-costly obstacle for the incumbent PAS government, as the corrupt actors in the justice system exploited them to protect their interests. Thus, even though the PAS government had appointed ministers and other senior officials, the extent to which it has been able to take effective control over all governmental agencies and change policies is questionable.
A revelatory signal of this is the observed relative continuity of many policies and approaches, compared to these of the previous regimes. Another one is the raising number of accusations and the public discontent about the nominations to important middle level positions of individuals linked to the previous regimes. For instance, a former cabinet member of the Democratic Party, which was controlled by the fugitive tycoon Vladimir Plahotniuc, was nominated to head a unit of the National Center for Pre-hospital Emergency Care. The recruitment decision was consequently annulled, on the backdrop of a significant public outcry. Besides the difficulty of PAS to recruit qualified people, these nominations reveal how powerful the influence of people connected to previous regimes still is.
As voiced by Moldovan civil society experts, the Moldovan legal system is very lenient towards corrupt judges, being hesitant to either sack them or confiscate their illegally-acquired riches. It is a form of “professional solidarity”, as one observer put it. Furthermore, journalistic investigations have exposed that a very large segment of judges in the superior courts as well as prosecutors tend to receive expensive donations and gifts from friends and families, including apartments, land parcels and vehicles. It should not be surprising then that an International Republican Institute poll conducted in December 2021 revealed that the Prosecutor’s Office and the legal courts were viewed the least positively in the country among public institutions and actors: only 2 per cent of the respondents had a confident “very positive” opinion of them, while 59 and respectively 60 per cent expressed a negative view.
Understanding the justice reform
The justice reform interventions typically aim to promote the independence and impartiality of relevant justice actors and processes. Reform efforts advanced and funded by Western actors focus, as a rule, on promoting the independence of courts and prosecutor offices, aiming to insulate them from political interference. It implies that by doing this one can also achieve impartiality of the courts, which the Moldova’s case contradicts. Another implicit assumption is that generally, the legal system functions poorly because the ruling elites and affiliated political actors attempt to influence the legal process. This approach also implies that the courts and prosecutor offices are by default impartial, if saved from political pressure. In practice, the justice reform approach that has been implemented with the support of Western development partners in the Republic of Moldova and in other countries of the region prioritize legal system independence over its impartiality, because the two are not necessarily interconnected. Thus, the effort of the Western model of “independent judiciary” is based on the assumption that the judiciary itself is void of self-interest, which is a questionable one to have as the situation in Moldova revealed.
It makes sense to build mechanisms that protect the justice system from political interference, in countries where the State is strong. Based on the listed examples and the observation of its governance process, Moldova has very weak state institutions. In countries where the State is weak – being undermined by powerful private interests such as tycoons – the effect of the political insulation of courts is making them even more vulnerable to the private actors’ influence. This is so, because when tycoons get the ambition to acquire political control, they then clash with the State and the political forces in power. Since the State is weak, private interest groups then can undermine and acquire gradually control over selected state institutions, including the legal courts. As these private interests take over the State, as it happened in Moldova during the Plahotniuc rule and consequently during the short tenure of the ex-president Dodon’s in 2016-2020, this kind of reforms are helpless. Because at that point neither the courts and prosecutors are independent, nor the State that is undermined by kleptocrats is able to interfere and reduce private control of courts.
At the same time, when the State is not under tycoons’ influence, even when it’s authoritarian, it is still able to enforce the law in a non-selective way – albeit predominantly in the economic and social dimensions, and less so in the political one. However, regardless of how peculiar this may sound, this is a suitable foundation to begin genuine democratic reforms and consolidating the rule of law. This is so, because effective democracy can start with effective economic rights of the population, which is enabled by the non-selective application of law, leading evolutionarily to effective political rights.
What can be done?
Moldovan justice actors tend to protect each other. How does one break this vicious circle and create powerful incentives for the judges to respect the rule of law in a non-selective way?
It seems that the incumbent government has only two feasible solutions. One is to invoke its strong legitimacy and authority given by the popular vote and forcefully intervene by temporarily adjusting the legal framework, in order to clean the justice system of corrupt schemes and individuals (including via vetting of judges). Following this exercise, after it removes all corrupt actors and practices, it can revert back to the current legal framework aimed to protect the legal system from political interference. A suggested nuanced difference, is that it is possible to have a rational authoritarian that can avoid selective justice, as opposed to a kleptocratic authoritarian, which flourishes on selective justice.
Another solution is to co-opt one of the players of the corrupt legal system and exploit it as a tool to remove the rest of corrupt players; it will then gradually have to replace the instrumentalized player as well.
The government tried the former method but was quickly faced with criticism –both by internal and external voices – claiming that PAS draft bills were not in line with democratic rigors and standards. The PAS questionable nominations seem to reveal they might be switching to the latter model of co-optation.
The major risk from the first approach is that it can create temptations for the government to step upon the authoritarian path. However, given Moldovan history of regular and largely competitive elections as well as the political culture of the voters, this risk is minimal. If the incumbent government embarks on a steady authoritarian path – as opposed to only using strong-hand practices for the duration of reform – PAS will very likely be voted out in the next elections. The risk of the second, co-optation approach is that the government is likely to get entangled in the corrupt schemes and agenda of the group it co-opted. The related risk is that the PAS government, or its elements, could acquire kleptocratic characteristics as well.
The co-optation strategy is a typical element of the transitional justice approach, as countries in this case simply do not have a sufficient number of new judges of integrity to replace the corrupt ones. However, it requires a set of facilitating conditions to work. The authorities need to have the ability to alternate co-optation with coercion, in case the co-opted player departs from the logic of PAS-intended reforms. If the incumbent does not have the ability to effectively and promptly identify and sanction corruption in the justice system, the result will probably be the monopolization of the justice mechanisms by a single player – the one the government attempted to co-opt.
Despite the opposition to the PAS justice reform efforts, the formalistic approach of blindly following the current legal framework that protects the partial justice system, is no solution. If Moldova’s justice system is not forcefully cleansed, applying transitional justice measures, the country will revert back to the previous corrupt justice practices as soon as genuine pro-reform politicians like Maia Sandu are voted-out. What the current opponents to the PAS reform strategy want, is to wait out the incumbent government, preserve as much as possible and return to Plahotniuc era private justice practice after PAS is voted out. To avoid this and create some legacy of a genuinely independent justice, PAS would have to combine essentially both approaches listed above. It will have to avoid gradualism in reforms and go with them all out.
In order to achieve success and prevent superficial changes that are easily undone later, the PAS administration would need to secure strong EU support for a radical reform. PAS has to avoid the rhetorical traps invoking sovereignty and blocking the stronger involvement of the Western partners in its justice reform. Given the weak State, Moldova is not sovereign, but feudal, being divided by a few domestic interest groups, which frequently are susceptible to Russian influence.
The coercive approach that accompanies the co-optation one, should mandatory include setting up an anti-corruption ad hoc tribunal, consisting of both national and international judges, tasked to investigate corruption within the legal system and with respect to high profile political cases, as well as effectively sanction it. No alternative purely domestic solution can solve Moldova’s problem, because there never has been a case when a captured system has cleansed itself. In contrast, hybrid mechanisms such as vetting of justice actors involving both national and international judges have showed effectiveness, as revealed by respective UN experience as well as the elements of EU’s more engaged involvement in Albania.
EU’s co-participation in such a mechanism would be very suitable to Moldova, given EU’s strong reputation and moral standing in the minds of the majority of Moldovan citizens. This would help PAS insulate itself from the attacks of the kleptocrats, the opposition forces serving them, as well as address the skepticism of the part of society that is wary of the return of authoritarianism.
Today, it appears that Moldova is on the way of implementing the hybrid approach. With the support of the EU and US, Moldova began putting in place a “Pre-Vetting Evaluation Committee” which is composed of both international and national assessors, aiming to evaluate the future members of Superior Council of Magistracy and Superior Council of Prosecutors. The next step will be the implementation of the full-scale vetting of judges and prosecutors. However, the success of a systemic justice reform in Moldova will depend on the extent to which the foreign partners are allowed to play a bigger role in this endeavor.
The earlier suggested approach goes along the logic of transitional justice, tailored to the weak state conditions of Moldova. The reformers, as well as the genuine liberal opposition, have to keep in mind that transitional justice requires a balance between liberal commitments and political precautions. The reforms may be considered achieved when liberal norms are respected to the extent necessary for, and consistent with, the consolidation of liberal democratic institutions. This is important to consider, given that the law and its application is largely a dynamic condensation of power relations, and not just a rationalised technique for the ordering of social relations.
Dumitru Mînzărari Ph.D. is an associate policy analyst with the Institute for European Policies and Reforms and a research associate at the German Institute for International and Security Affairs.
This publication was prepared within the project “EaP Cooperation for Stronger Democracy: Georgia, Moldova and Armenia”, as well as as a result of an IPRE partnership with IPN within the “We and Europe” project supported by the Konrad Adenauer Foundation in the Republic of Moldova. The “EaP Cooperation for Stronger Democracy: Georgia, Moldova and Armenia” project is run by the Georgian Institute of Politics (GIP, Georgia), in partnership with the Institute for European Policies and Reforms (IPRE, Moldova) and the Analytical Center for Globalization and Regional Cooperation (ACGRC, Armenia). The project benefits from the support of the Netherlands Fund for Regional Partnerships MATRA for regional cooperation in the Eastern Partnership (EaP).