A cool analysis and explanation of the reform of the Supreme Court of Justice

In mid-August 2022, the Ministry of Justice published for consultation the draft of the new Law on the Supreme Court of Justice (SCJ), which was drafted following discussions in a working group set up by the Ministry which included judges, prosecutors, lawyers and representatives of civil society. The Ministry of Justice has requested the opinion of the Venice Commission on the draft, which is expected in mid-October.

According to the draft, the main role of the SCJ will be to ensure uniform application of the law in the justice system. Thus, the SCJ will examine only cases of great social and legal importance, but also those that reveal particularly serious violations of the law or human rights. The law also provides for the means that the SCJ will be able to use to guide judges in applying the law uniformly.

These include the application in the interest of the law, advisory opinions issued at the request of judges or guidelines on the application of procedural law and the individualization of sanctions. The draft does not, however, mention the possibility of adopting decisions of the Plenary of the SCJ, a tool frequently used by the SCJ in the past.

Instead, the draft provides for the detailed regulation of the action in the interest of the law, which will be applicable in all types of proceedings, not only in criminal proceedings as at present. The law will no longer require the creation of specialized colleges at the SCJ, leaving the specialization of judges to the discretion of the SCJ.

The Court will be headed by a President appointed for a four-year term, assisted by a single Vice-President. They will be selected by the Superior Council of Magistracy (SCM) from a list of candidates supported by the judges of the SCJ. The powers of the president of the SCJ will be considerably reduced compared to the current situation, and the plenary of the SCJ will take over these powers.

The Plenary will approve the Rules and the organigramme of the SCJ, will constitute the annual panels, will decide on the specialisation of judges, etc. The role of the President of the SCJ will be mainly to coordinate the work of the judges of the Court and to represent the Court in relation to other institutions and organisations.

The draft reduces the number of SCJ judges from 33 to 20. Not only career judges with 8 years of experience, but also prosecutors, lawyers and law professors with more than 10 years of experience will be able to become judges of the SCJ. They will be selected by public competition and on merit by the SCM. The law sets out the main criteria on the basis of which they will be selected. These include the ability to understand and analyse complex legal situations, the ability to work as part of a team and respect the opinions of colleagues, and the ability to debate complex issues constructively.

The SCJ will decide on candidates without the involvement of the College for the Selection of Judges, which is currently not operational due to the expiry of its members' terms. The future judges of the SCJ will be appointed by the President of the country on the proposal of the SCJ.

All current judges of the SCJ will be evaluated by the "Pre-vetting" Commission, created by Law 26/2022, according to the procedure established by Law 26/2022. Within 20 days from the entry into force of the law, the current judges of the SCJ are to decide whether to resign or to accept the evaluation by the Pre-vetting Commission. The SCJ judges who pass the evaluation will continue their work in the SCJ. In case of failure of the evaluation, the judge will be immediately suspended from the position. The decision of the Pre-Vetting Commission on the failure of the evaluation may be appealed to the SCM.

If the decision is upheld by the SCM, the judge will be removed from office and banned from working in the justice system, including as a lawyer, for 10 years. He will also lose his special judge's pension and the allowance paid for his honourable departure from the system. The decision of the SCM rejecting the appeal will be subject to appeal to the SCJ. A panel of the SCJ composed of three judges who have passed the evaluation and have not worked in the SCJ until 1 January 2023 will decide on the appeal. If the appeal is upheld, the person will have to be re-evaluated by the evaluation committee.

Candidates for the vacant positions of judge of the SCJ, whether or not they are career judges, will also be evaluated by the Pre-Vetting Commission, according to the same procedure. The new SCJ (which could become operational at the end of 2022) will have to announce the competition for the selection of SCJ judges from among prosecutors, lawyers and academics.

Candidates entered in the competition will be sent for evaluation to the Pre-vetting Commission. Only candidates who pass the evaluation will be eligible to participate in the SCM competition for the position of judge of the SCJ.

Apparently, the new Law on the SCJ will enter into force in early 2023. The reform of the SCJ will start with the evaluation of current judges of the SCJ who agree to undergo external evaluation. Their number will largely depend on how the candidate judges for the SCJ, who are currently being evaluated by the Pre-Vetting Commission, will be evaluated, and decisions on these are expected by the end of November 2022.

Also in early 2023, the SCM will have to advertise the vacant positions at the SCJ. It is estimated that the competition for the selection of new judges of the SCJ could be held in mid-April 2023 at the earliest. It should be noted that the draft does not make the holding of the competition conditional on the evaluation of all candidates entered in the competition. The SCJ will be obliged to hold the competition after at least 3 candidates have passed the external evaluation, in order not to block the work of the SCJ if a large number of current SCJ judges do not accept the external evaluation and resign.

The draft Law on the SCJ is accompanied by a comprehensive draft amending the procedural and administrative codes. The SCJ is transformed into a court of cassation, but some powers to annul arbitrary decisions taken by courts of appeal are retained. The SCJ will also examine as first and last instance appeals against decisions of the SCM, the Supreme Council of Prosecutors and the Central Electoral Commission.

The SCJ will examine cases, as a rule, in panels of three judges. Complex cases may be heard by 5 and 9 judges, but the decision to do so is entirely at the discretion of the SCJ judges to whom the case has been assigned. According to the draft, the change in procedural law would enter into force on 1 March 2023.

In essence, the reform of the SCJ is the beginning of the vetting of judges and prosecutors announced by the authorities. Unlike judges running for the SCM, SCJ judges who fail the evaluation will be dismissed with a 10-year ban from working in the legal system.

Full "vetting" is however scheduled to start in summer 2023. According to the Ministry of Justice, it will be carried out by a 12-member vetting commission (6 national and 6 foreign), which will evaluate candidates in a full 3-member panel. It is not clear at this stage whether all remaining judges and prosecutors will be evaluated in this exercise, or only those holding the most important positions. But it is certain that a 6-7 year exercise, similar to Albania, will not be supported with the same enthusiasm by the European Union.

In both Albania and Ukraine, where vetting has been carried out (with different impacts, admittedly), the salaries of judges and prosecutors have been increased considerably. The Ministry of Justice also announced a possible salary increase, which sparked a wave of criticism on social media. According to the 2020 CEPEJ Report, in 2018 Moldova was the country that paid its judges the lowest.

In 2020, a junior judge in Ukraine received a gross monthly salary of EUR 2,500, and in Albania - EUR 1,750. In 2022, a junior judge in Moldova has a gross salary of around EUR 1,050. An increase in judges' and prosecutors' salaries will not be a popular measure, but it is necessary to ensure (along with other measures) that honest judges and prosecutors can make a comfortable living without corruption. In my view, the question is not whether, but how much to increase salaries and for whom?

An increase of at least 75% seems to me to be more than sensible, given the inflation of almost 35% in 2022 and the gap between judges' salaries in Albania, Ukraine and Moldova, but only for judges and prosecutors who have passed the external evaluation.

Alongside the benefits, the reform of the SCJ comes with many risks. On the one hand, the success of this reform is not guaranteed. It depends on the speed and quality of the external evaluation of judges and candidates to the SCJ, but also on how the new composition of the SCJ will interpret the new legislation, in particular as regards its competence.

Another risk is that the SCJ could be blocked if in January 2023 a large number of SCJ judges decide to resign, making it difficult to examine cases that are not subject to adjournment. The biggest risk, however, is the repetition of such reforms after each electoral cycle, which would considerably erode the independence of the SCJ. The announced reform is justified by three main arguments, the constitutional amendments of 1 April 2022 which excluded the requirement that judges of the SCJ be career judges, the critical situation of the judiciary and the reputation of the current composition of the SCJ.

The Venice Commission will have to decide whether the authorities' arguments are sufficient to change the composition of the SCJ.

According to the draft, all judges and the leadership of the SCJ would be appointed by 1 July 2023.