The provisions securing the right of individuals to free trial, enshrined in Art.6 of the Convention for Protection of Human Rights and Fundamental Freedoms, are stipulated in the Constitution of the Moldova as well. Such guarantees represent the government’s aspiration to ensure efficient justice. 

With a view to building an accessible, efficient, transparent, professional and responsible judiciary in relation to the society, which meets the European standards and the rule of law and which observes human rights, the Justice Sector Reform Strategy for 2011-2016 has been implemented in Moldova[1].During its implementation, a number of laws have been adopted and others have been amended in order to ensure the integrity of the judicial actors. Efforts have been made to improve the quality of the justice delivered. By Decision of the General Meeting of Judges of September 11, 2015, the new Code of Conduct for Judges was approved, which represents a set of principles and rules of conduct for judges,that the latter must follow while exercising their job duties, as well as beyond[2].Although the new regulations are much more restrictive than the earlier ones, their efficiency could be tested only when judges are applied serious sanctions for the violation of the principles and norms of ethics and professional conduct.

According to the second Assessment Report of the Courts of Law in the Republic of Moldova, presented by the Superior Council of Magistracy in partnership with the Rule of Law Institutional Strengthening Program of the United States Agency for International Development (USAID/ROLISP),on October 30, 2015,[3]progress was made in terms of the use of the Integrated Case Management System (ICMS) and the audio recording of court hearings; courts have been provided with more advanced equipment; better archiving conditions have been ensured, more staff responsible for public relations was hired; more citizen information desks have been created; professional skills of the court staff was improved.

At the same time, according to the biannual surveys conducted by the Institute for Public Policy[4] since 2003, there has been a dramatic decrease of citizens’ confidence in justice.

Confidence in justice, according to the Barometer of Public Opinion

Thus, although the implementation of the Strategy started in 2011 and some improvements could be noticed, the delivery of justice is not perceived by citizens as efficient and qualitative; this has been acknowledged by the Minister of Justice.[5]

According to the results of the survey “Perception by judges, prosecutor and lawyers of the  judiciary reform and the fighting of corruption”, conducted in December 2015 by the Centre for Sociologic Investigations and Marketing Studies (CBS-AXA)and commissioned by the Legal Resources Centre of Moldova, judges, prosecutors and lawyers agree that the reform of the judiciary initiated in 2011 has had a positive impact. However, with regard to specific initiatives, their opinions vary significantly. Thus, in 2015, 75% of the respondent judges, 50% of prosecutors and 42% of lawyers considered that the quality of justice delivered improved, while in 2011 - 82% of judges, 46% f prosecutors, and 37% of lawyers believed the same. Around 62% of the judges surveyed think that the practice of the Supreme Court of Justice is uniform, compared to 47% of the prosecutors and 35% of the lawyers. In the same context, 79% of the judges believe that, since 2012, the Supreme Court of Justice has taken sufficient measures to ensure uniformity of the judicial practice, compared to 54% of prosecutors and 34% of the lawyers surveyed. Regrading the need to reform the public prosecution service, 84% of the prosecutors support such changes. 63% of the prosecutors agree with the provisions of the new Law on Public Prosecution Service; 66% of the prosecutors consider the activity of the Superior Council of Prosecutors (SCP) is transparent; 77% of the prosecutors believe that the decisions of SCP are well grounded and clear; 61% of them think that the activity of the general prosecution service is efficient. The perceptions of lawyers and judges about the evolvement of corruption in the judiciary since 2011 are very different. According to most of the judges, the corruption in the judiciary has decreased compared to 2011 or is inexistent, while 68% of the prosecutors and 81% of the lawyers believe that the level of corruption has remained the same or has increased. At the same time, the results of the survey show that prosecutors and lawyers perceive a higher level of corruption in the judiciary than judges do.

Summarising on the status of the judicial reform, the Ombudsperson considers that the responsible authorities need to concentrate their efforts in the areas that lag behind and to take sound actions to improve the general perception about the judiciary in Moldova.

According to the statistics about the complaints filed to the Ombudsperson Office, in 2015 the number of complaints about the violation of the right of free access to justice decreased. This is due to the fact that, the new provisions of the Law on the Ombudsperson No. 52[6],have limited the possibilities for citizens to file complaints to the Ombudsperson. In the circumscribed cases, the petitioners were advised to call the competent authorities or, to call a lawyerfor additional information,and they were informed about the area of competence of the Ombudsperson.

Complaints about free access to justice, filed to the Ombudsperson Office

At the same time, the subjects of complaints are constant and reflect the current problems in terms of the right of free access to justice: disobedience by judges of the rules of the Code of Conduct; delayed examination of civil and criminal cases; failure to enforce court decisions; lengthy examination by the Plenum of the Supreme Court of Justice of cassations in annulment based on the amendments to the Criminal Code; violation of the legal term for preparation of grounded decisions; violation of the term for sending the court decisions to the participants in the trial; issuance of enforcement orders based on decisions which are not final yet; insufficient justification of court decisions; corruption within the entire judicial system.

The disagreement with the final and irrevocable court decisions is an issue addressed quite frequently. According to the Ombudsperson, this speaks about the lack of people’s confidence in the delivery of justice.

Obviously, the state needs to take urgently all the measures to ensure an increased level of citizen’s confidence in the judiciary. However, this objective can not be achieved only by administrative measures. It is very important for judges to have a proper attitude towards citizens. Therefore, random case assignment, faultless conduct by judges, settlement of cases with observance of timelines, unified judiciary practice, and the elimination of corruption are just a few of the premises for re-establishing confidence in justice.

At the same time, there is a concern about the delay by decision-makers in the implementation of actions set out in the Action Plan for the implementation of the Judicial Sector Reform Strategy, particularly those related to ensuring the independence of the public prosecution service and efficiently fighting corruption in the judiciary.

Aside from the mechanism for monitoring the implementation of the Judicial Sector Strategy Reform stipulated in Law No.231of 25.11.2011on approval of the Judicial Sector Reform Strategy for 2011–2016,the non-governmental organisations that follow the progress of reforms in this field have to put pressure on the government, in the context of ensuring efficient implementation of the set objectives. To this effect, a group of experts made recommendations[7]aimed at ensuring the right to fair trial and the implementation of the judicial reform: judges should justify any postponement of  hearings for longer periods; in civil cases, judges should use the new provisions of Law No. 155, which allows them to prepare the examination of civil cases without convening court hearings and to discipline the process of presentation of evidence by the parties; reduce the number of cases sent for re-hearing and exclude the practice of repeated sending of cases forre-hearing by the courts of appeal and the Supreme Court of Justice; the Supreme Court of Justice should refrain from quashing irrevocable court decisions because of the risk of violating the ECHR, since such risk does not represent a ground for revision; the Superior Council of Magistracy should inform the public about the ex-parte communications made by the judges and the number of disciplinary measures initiated against judges; the necessary measures should be taken with a view to implementing the Constitutional Court decision of April 16, 2015[8].

In order to ensure proper operation of the judiciary, it is not sufficient to increase citizens’ confidence, ensure the independence of judges or eliminate the corruption from the system. Additional elements, such as the observance of the reasonable term by the court and the bailiffs are also important.

Petitioners still complain to the Ombudsperson Office about the excessive time for examination of cases and the failure to enforce court decisions. These issues have been reported repeatedly in the previous reports[9]and are most frequently at the core of the cases examined by the European Court for Human Rights.

Moldova has made significant steps to solve this issue by introducing the private enforcement system[10]and the mechanisms for acceleration of the procedure while examining a specific case[11], the adoption of Law No.87 of 21.04.2011 on compensation by the state of the damage caused by the violation of the right to trial of a case within reasonable timeframe or the right to enforcement of court decisions within a reasonable timeframe. However, there is no efficient practice for enforcement of court decisions at national level. In this context, it is worth noting the big number of complaints filed to the Ombudsperson Office, in which people criticize the practice established by the bailiffs of seizing the pension and salary bank accounts without taking other prior actions and by ignoring the legal provisions containing restrictions and interdictions in terms of the seizure of such types of incomes. In practice, these actions are justified by the fact that the types of financial sources on the bank accounts are unknown and, during the enforcement, procedural documents are filed to all the banks asking for the seizure of all bank accounts. Most often, such cases relate to the failure to execute the court decisions on the enforcement of receivables for the unpaid utilities. Usually the debtors are individuals with low incomes, who cannot afford to payin timetheir financial obligationsas beneficiaries of public utilities.

In a democratic society, the right to defence as an element of access to justice and fair trial should be available to everyone. Therefore, in order to guarantee effective access to justice, it is mandatory to ensure the right to defence.

The data about the complaints filed to the Ombudsperson Office during 2010-2015 show that the number of petitioners who invoked the violation of the right to defence is constant, with some small exceptions. During 2015, 35 complaints were filed, based on the following allegations: the regional office for free legal aid does not respond to the requests for legal aid; the unsatisfactory quality of the legal aid provided by the lawyers; failure to return the originals of the documents presented upon the lawyers’ request; failure to inform the client about the actions taken; refusal of the regional offices of National Council for Free Legal Assistance to provide free legal assistance.

Complaints on ensuring the right to defence, filed to the Ombudsperson Office

According to the Action Plan for the Implementation of the Judicial Sector Reform Strategy for 2011-2016, one of the strategic areas is strengthening the free legal aid ystem. A lot is still to be done in this area, an evidence to this being the existing situation. The free legal aid system should be developed by strengthening the capacity of the National Council for Free Legal Aid (NCFLA) and its reginal offices to organise and manage the provision of free legal aid; the range of free legal assistance services should be diversified; the quality of free legal aidshould be improved; the operation of the free legal aid system should be transparent; and access to legal information should be ensured.

RECOMMENDATIONS:

1. Developfurther policies to be implemented after expiry of the term for implementation of the Judicial Sector Reform Strategy for 2011-2016 and ensure the continuity of the judicial reform beyond 2016;

2. Adopt the draft Law on the Prosecution Service and the related legislation required for the reform of the prosecution service, as a priority;

3. Developa feasible regulatory framework in the context of the Decision of the Constitutional Court No. 7 of April 16, 2015on Control of the Constitutionality of some provisions of Law No.325 of December 23, 2013 on Testing the Professional Integrity;

4. Continue the development of the free legal aid system by strengthening the institutional capacities of the National Council for Free Legal Aid and its regional offices to organise and manage the provision of free legal aid and improve the quality and accessibility of such aid.