Requested by: Republic of Moldova, Ministry of Justice

Recommended Measures:
A. As regards the vetting of sitting judges, it reiterates the following recommendation of the 2019 Opinion, which remains valid: 1. “for the draft law to be compliant with the Constitution, all decisions concerning the transfer, promotion and removal from office of judges should be taken by the SCM. The SCM should thus be entrusted with the power to take decisions based on the recommendation contained in the report of the Evaluation Committee. The decision of the SCM should be public and fully reasoned and should be triggered automatically by the evaluation committee’s report […]. 2. Also, the draft law should ensure that, in the context of the appeal against the decisions of the Superior Council of Magistracy based on such report before a panel of the SCJ composed of newly appointed judges, neither the latter nor the appellant can be transferred to a different court if the appeal quashes the SCM decision. 3. Moreover, the evaluation foreseen in the Draft Law can only be acceptable if it is construed as a one-off exceptional mechanism, set-up to resolve the alleged issue of corruption, where the Evaluation Commission would be an ad-hoc body that carries out the necessary inquiries and collects the relevant elements to produce a factual report to be communicated to the SCM. It should be better emphasized that the only objective of all the evaluation is to clarify whether there are any data of corruption and/or actions connected illegal acts. As to the results of the evaluation, if the evaluation is positive (or the decision of the SCM does not result in a removal, or the latter decision is quashed by an appeal), the judge of the SCJ must not be removed from office. On the other hand, if the evaluation is negative, it should be for the SCM to decide on the removal from office. In any case, the Venice Commission maintains that the consequences of a negative evaluation proposed in Article 143(6) are disproportionate and should be reconsidered. B. As to the number and composition of judges of the SCJ, the provision introducing a mixed composition of the SCJ should only be applied gradually and pro futuro without affecting the SCJ sitting judges by diminishing the number of career judges to 11. In addition, taking into account the future dimension of the Supreme Court, the proportion 7 (non-career judges) – 13 (career judges) seems more adequate. The Commission welcomes the open attitude of the Moldovan authorities to take these changes into consideration. C. A gradual approach should be taken as regards the reduction of the number of judges, by introducing some transitional provisions that would set forth an interim period of few years during which the actual number of judges may variate between 33 and 20. This would allow to adjust to the other changes introduced by the draft law (appointment of non-career judges, evaluation of judges), while granting some time for settling the backlog of pending cases and the natural departure of judges (e.g. retirement or resignation), so as to ensure the respect of the principle of irremovability of judges as well. D. The mechanism described in Article 4, should be revised, by clearly defining what is the “application in the interest of the law” and in what circumstances this mechanism should be used and by specifying that a judgement adopted on the application in the interest of the law can be binding only for other (future) judgements of the SCJ, and not for lower courts. Where appropriate, other subjects directly concerned by the question of law examined should also be invited to present their position at the hearing. In addition, once the application is found admissible, the representatives of various legal professions, legal experts, academics, civil society organisations, and the ombudsperson should also be invited to present their views and opinions in their capacity of expert witnesses or amici curiae. 70. The Venice Commission makes the following further recommendations: E. Concerning the structure of the law, to adopt distinct legislative acts to amend other specific organic laws, in particular concerning the exceptional mechanism for the evaluation of judges to be included in the Law 26/2022 on selection of candidates for membership in self administrative bodies of judges and prosecutors. F. As to the issue of uniformisation of the application of the law, for the sake of clarity and legal certainty, to ensure the consistency and specificity of the terminology employed in Article 3, in particular as concerns the “generalisation of judicial practice”, a mechanism that should be either removed or detailed further. In addition, the word "non-binding" should be included both in sub-paragraphs (a) and (b) of Article 3.

Measures taken: The Minister of Justice has submitted a revised draft law to the Venice Commission. Opinion CDL-AD(2022)049, adopted in December 2022, is a follow-up to this opinion.