The Venice Commission has found in a legal brief published on Monday that the Moldovan Law on Professional Integrity Testing leaves room for interference with judicial independence and intrusion into the private lives of judges. The amicus curae brief comes in response to a request by the Constitutional Court President Alexandru Tanase.
In particular, the Commission said that “a law that establishes a body with such a broad mandate in relation to judges of the Constitutional Court and those of ordinary courts raises concern with respect to judicial independence (and the intrusion into the private lives of judges) – and should therefore be more clearly defined and provide criteria for the evaluation of the performance of professional duties of judges.”
Further, the Commission believes that it seems unjustified to establish a body responsible for the evaluation of the professional conduct of judges (including judges of the Constitutional Court) that duplicates the function of the Disciplinary Board (or other similar bodies).
The Commission has also reminded that protection against the disproportionate application of surveillance measures is guaranteed by Article 8 of the European Court on Human Rights, and since the Law expressly provides that testers may use covert means for testing and that audio/video record testing is mandatory, this could indeed constitute an intrusion into the private life of a judge.
The Commission has noted that the use of undercover agents and more specifically when used as agents provocateurs, is examined by the European Court of Human Rights not only from the angle of a potential violation of the fair trial principle under Article 6.1 ECHR, but also from the angle of a potential violation of the right to private life under Article 8 ECHR.
On 20 June 2014, a group of MPs including Galina Balmos, Maria Postoico, Artur Resetnicov and Igor Vremea challenged in the Constitutional Court the lawfulness of some provisions of the Law. The Court decided to request the opinion of the Venice Commission, after the Law's drafters failed to respect a commitment assumed by Moldova to submit all the bills concerning justice and the functioning of democratic institutions to be assessed before adoption by the relevant Council of Europe bodies, in this case the Venice Commission.
