Tuesday, September 04, 2007

When an Opinion Matters...

... After that officials often decide to resign. Whether he should have done it or not, the reaction was not the one that should have followed...

Recently a big scandal in Moldovan judiciary and media erupted because of a dissent opinion of one of the European Court of Human Rights's judges. Judge Bonello presented his partly dissenting opinion in the case of Flux (No. 2) vs. Moldova, in which he severely criticized Moldovan judiciary system and the President of the Moldovan Supreme Court of Justice, judge Ion Muruianu. And although the Court in this case declared inadmissible the claims concerning the alleged lack of independence and impartiality of judge Muruianu the Bonello's dissenting opinion aroused a deep resonance in Moldovan media and shaked public opinion.

Most newspapers commented this opinion.

"The judge from Malta after studying several independent reports on the state of justice in Moldova draws a conclusion on the evident dependence of judges on political powers. In his opinion "the telephone justice" is widely spread in the Republic and courts often pronounce their judgments to please political conjuncture... This is the very case when critics cannot be disregarded... Certainly, Ion Muruianu is unlikely to be dismissed from his post, however, his professional reputation was stricken destructively. And in his person the whole judicial system that he is expected to reform and administer is under a blow" (Kishinevskii Obozrevateli)

In order to understand what is this scandal all about I would like to cite several paragraphs from judge Bonello's partly dissenting opinion (the whole text of the judgment in this case and the opinion may be found here):

1. In this case the Court could have voiced its views on the pathology of an administration of justice. It did not.

14. I would have expected the Court to pounce on this opportunity to give hope to the people of Moldova. To let out some timid whispers for justice politically untainted... . I would have been gratified had the Court asked how often judge I.M., and other candidates for the heroes of the resistance award, found against the ruling party or its exponents in politically sensitive lawsuits. It would seem that the administration of justice in Moldova respects a number of precepts. I looked for them in Article 6 and could find none of them there.*

15. All this alarms me profoundly. I have this old-fashioned prejudice against judges approximately impartial. I respond with inconstant passion to the credo of some politicians that judges fit nicely everywhere, but best of all in their pockets. I find bland, if not inconsequential, the doctrine that justice must not only be done, but should manifestly be seen to be done. Far more relevant, to me, is the doctrine that, for control-freaks to rule undisturbed, injustice should not only be done, but should manifestly be seen to be done.

16. Judge I.M.'s career crashed - from minor district judge to President of the Supreme Court in a span of time shorter than it takes to say 'the party is always right'. In an otherwise bleak panorama, it is comforting to note that the sacrifice of judges who align their energies with the welfare of the ruling political class, does not always cripple their careers.

"The situation is strange enough: usually the Strasbourg judges in their dissenting opinions and public discussions do not step beyond the limits of legal issues and aspire to avoid commentaries with political implications" (Logos press).

I do not make any assertions regarding the Supreme Court's President professionalism or impartiality or his political dependence. What I think is more important that an ECHR's judge makes a statement that any judge does in extremely seldom cases (if makes any). And this should be a major concern both for Moldovan justice and Republic's government. Instead, judge Bonello found himself under critics from the part of Moldovan judiciary.

The head of the Supreme Court's press-service Mr. Gutu stated that "a judge, a colleague cannot permit himself to criticize another judge. He is neither acquainted in person with Mr. Muruianu nor made any inquires about him. And as a result he takes for gospel what was presented to him by others" (TV7).

Meanwhile, judge Muruianu seems not to care about all these statements. In his interview to Kishinevsckii Obozrevateli he told:

"The judgment is pronounced by the Court and not by one person. If the European Court considers there was no violation and one judge does not agree with this he has the right to provide his dissenting opinion. Unfortunately, our media is not concerned with the common decision of the court and only presents a dissident opinion of a single judge. I do not care about this. I am strongly convinced that the judicial system in Moldova is absolutely independent, judges know their work and decisions are taken in strict conformity with law. We take care of our reputation and we have a sharp sense of honour and dignity.

The ECHR's decisions are obligatory for us. But these are the judgments that have a legal force but not dissenting opinions, in which the conclusions on dependence of Moldovan judiciary system and existence of so called "telephone justice" are made".

He was also supported by the Supreme Council of Magistrates that expressed its concern about "increased accusations of the judicial system of Moldova". In its statement, sent to Infotag, the Council recognizes the human right to freedom of expression and criticism of judicial instances. However, at the same time the courts must be protected from disrespect manifestations toward the justice.

The council is also concerned with the European Court of Human Rights judge Giovanni Bonello's statement that there is allegedly pathology in administering justice in Moldova.

The Council considers that the judge made this erroneous conclusion on the basis of certain essays in mass media, where the ЕСHR' decisions are interpreted in a speculative way. The allegations by the respectable judge are based on a superfluous impression and on fragmentary data and present a distorted and incorrect image of the Justice in Moldova. It spoke out in the defense of the justice image and the judicial corps, so that the right for freedom of expression should not offence the judicial system".

"Erroneous conclusion on the basis of certain essays in mass media", "a superfluous impression and fragmentary data that present a distorted and incorrect image of the Justice in Moldova".

Let see what judge Bonello speaks about these media essays and fragmentary data:

"11. I am attaching as an appendix brief summaries of several external reports on the state of the judiciary in Moldova, all highly negative and startling. For reasons of balance I wanted to include reports from other authoritative sources denying that the independence of the judiciary in Moldova is a stretcher case. I found none."

And what are those sources of fragmentary (according to the Supreme Council of Magistrates) data? As we can see from the Appendix to the dissenting opinion these are US Department of State, Council of Europe's Commissioner for Human Rights, International Commission of Jurists, International Helsinki Federation for Human Rights. Definitely, these are organizations that cannot be trusted in any way.

An interesting opinion about this situation was expressed by the actual ECHR's judge representing Moldova, Mr. Pavlovschi, in his interview to Logos Press. According to him, judge Bonello is a person of high moral and a highly qualified lawyer who has encyclopaedic knowledge. His opinion is respected and reckoned in the European Court. There exists an opinion that the present speaks with the language of judicial decisions and the future speaks with the language of dissenting opinions. They permit to open slightly a secret curtain of judicial deliberation.

"The national authorities must thank judge Bonello for such opportunity. Instead, I see how many of their representatives launched a large-scale campaign to discredit him. I find such an approach counter-productive. Moldovan authorities, as I think, have to show more tolerance to other people's opinions, especially when we talk about an European Court's judge. First of all this refers to the Supreme Council of Magistrates - the body, whose one of the main tasks is to protect legitimate interests of judges."

"I know very well and respect Mr. Muruianu. I have no doubts in his professionalism and impartiality as a judge. However, I need to make a remark. According to the European Court's practice impartiality can be subjective and objective. From subjective point of view Mr. Muruianu's impartiality raises no doubts. The Objective impartiality implies how an act of justice is perceived by people. And here judge Bonello found a problem that he decided to make public. Even if somebody did not agreed with him it would be impossible to disagree with his words that "justice must not only be done, but should manifestly be seen to be done". In his dissenting opinion judge Bonello used the documents that had not been argued or contested by the Government. And this sense, even though the majority of judges did not supported him, he had a full right to raise the issue of existing, in his opinion, shortcomings of Moldovan judicial system in the light of objective impartiality".

I think this is an excellent approach. Instead of trying to blame someone we all, and first of all the authorities, had to rethink the current situation in our judiciary. This dissenting opinion could have been a a starting point for changes. Unfortunately, it had not.

Citing again judge Bonello's opinion, "I thought this was the right time for the Court to start panicking. This a self-evident opportunity to detox an administration of justice. Instead I had to witness the Court allowing the Moldovan judiciary the widest margin of depreciation".


All accentuations in the text of the post are mine - A.Ghertescu.

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At Wednesday, September 05, 2007 8:25:00 AM, Anonymous Anonymous said...

And some people claim law is dry and boring ... Over the entrance to the High Court building in my country there's an old inscription "With law the land shall be built" and to my mind that is exactly what is at stake here: The unquestionable rule of law. Can the Moldovan judiciary be expected to reform itself?


At Wednesday, September 05, 2007 10:21:00 AM, Blogger Alexei Ghertescu said...

"And some people claim law is dry and boring..." It's definitely not. By way, reading some of the ECHR's judgments helps to understand how beautiful indead law can be sometimes. :)

"Can the Moldovan judiciary be expected to reform itself?" It the situation must change. It's not about introducing significant modifications into the rules of procedure, or about some technical issues (though I admit the necessity to improve some rules and technical equipment in courts).

It's all about changing mentality. There is no other way for any significant improvements. And I hope (sometimes even sure) the changes will take place. But they will take time. The most important question is how much time?...

At Monday, September 24, 2007 12:59:00 PM, Anonymous Anonymous said...

Bravo Alexei! I am very impressed!

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At Tuesday, April 15, 2014 2:28:00 PM, Anonymous Anonymous said...

The links to the articles in the newspapers don't seem to lead anywhere. Is it possible to get the links to the original newspaper articles?


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