FRIEDRICH-EBERT-STIFTUNG THE PRE-VETTING PHASES: THE UNSEEN FACE OF JUSTICE REFORM closed session, it was clarified that it was about a representative of the Pre-Vet­ting Commission, in the context of appealing the Commission’s decision to fail the candidate to the positin of Supreme Court judge. AND NOW – ATTENTION! To this argument of the candidate, an international member of the Commis­sion, Mrs. Victoria Henley from the USA, asked the candidate why he did not recuse that person during the session of the SCJ?!!!(!!!) When the candidate explained that you cannot recuse such a participant in court, that member’s second question followed, which left me speechless, and I quote:“If there was a situation of incompatibility with that person, why did you not recuse yourself from the trial?”(!!!!) I don’t know, maybe in the US the parties can recuse themselves or each oth­er’s lawyers, which is not possible in our system and seems unlikely to be pos­sible in other legal systems. Anyway, let’s admit that the first question stems from a lack of understanding of our legal system. But to ask a plaintiff why he didn’t recuse himself from his own lawsuit really takes the cake. Perhaps she had in mind that he should have withdrawn his action, so as not to disrupt the process of representing the interests of the Pre-Vetting Commission before the Supreme Court!!!! But either way, the candidate, having been a plaintiff in the lawsuit, one whose action was admitted and on that basis was remanded to the Commis­sion for re-evaluation, was put in an interesting procedural position by the Commission members. This experience shows us that we always have some­thing new to learn – if not the Commission which seems to know it all, then we should learn from this all-knowing Commission.” the Commission by the subjects of the evaluation. The pro­cedure put in place by the Commission provides for a limited possibility to submit recusals‘as soon as possible’ and pre­scribes that the decision on the recusal shall be taken in the presence of the recused member, and, if a quorum is required, that he/she may even vote on his/her own recusal. 81 However, this is expressly prohibited by Moldovan law, the codes of civil and criminal procedure, the Administrative Code and the CC’s interpretation of the rules on recusals, which clearly prohibit a judge from participating in the judgment of his/her own case. Similarly, in the Republic of Moldova, the examination of a case is impossible before the examination of requests for recusal made orally or in writing by the participant in a civil, criminal, or administrative procedure, which can be submitted at any stage before deliberation. Only after the recusal has been examined without the participation of the recused par­ticipant and the reasoned solution has been communicated to the participant who has expressed his distrust by recusal may the procedure continue. In pre-vetting proceedings, all these rules have been reversed by the Rules of Organization and Operation of the Pre-Vetting Commission and the prac­tices of the Commission. 4.8 Self-regulation of the Pre-Vetting Commission’s activity exceeding legal limits In addition to the legislation of the Republic of Moldova, the Pre-Vetting Commission can regulate its activity by its own rules of organization and functioning. 78 In the hierarchy of the sources of law applicable in the Republic of Moldova, the Commission’s Regulation cannot amend, extend, or abolish provisions of the legislation in force. Such situations were encountered by candidates, however. Many times, during the hearings in which the evaluation subjects invoked the provisions of the Constitution and other laws, the interpreta­tions of the CC and the decisions of the SCJ, the Pre-Vetting Commission applied, by derogation, the provisions of its own organization and functioning regulation. Moreover, the Commission amended its regulations four times within 1.5 years. 79 For example, Law 26/2022 stipulates, among the obligations of the members of the Pre-Vetting Commission, the require­ment to refrain from any activity in the event of a conflict of interest, from any activity that could generate a conflict of interest, and from any actions incompatible with membership of the Commission, and to refrain from actions that could dis­credit the Commission or cause doubts about the objectivity of its decisions. 80 The Commission’s Regulation establishes the procedure for the examination of the recusal of members of CASE STUDY 9. Candidates Marina Rusu and Victor Sandu submitted recusals to the members of the Pre-Vetting Commission, which were examined with the participation of the recused candidates Hearing in the re-evaluation of candidate Marina Rusu on 1 July 2024 82 At the beginning of the hearing in the re-evaluation, candidate Marina Rusu verbally declared the recusal of the Chair of the Pre-Vetting Commission, Her­man von Hebel, because he had given an interview in the Dutch press, which allegedly showed loyalty and bias towards the ruling party and the country’s President, Maia Sandu, when the Commission should be independent. How­ever, the Commission announced that it would continue to hear the candi­date despite her request for recusal, with the participation of the Commis­sion member who was requested to recuse for lack of trust. At the same time, the Commission allowed the candidate to submit the request for recusal in writing after the hearing, confirming that the recused member – the Com­mission’s Chair, Herman von Hebel – would also participate in the examina­tion of the request for recusal, as otherwise the Commission would not have a quorum(to be deliberative, the Commission needs at least four members, and two out of six members of the Commission have resigned previously). The candidate criticized the Commission for a lack of ethics in its work and warned that such regulations are contrary to Moldovan law. Re-evaluation hearing of candidate Victor Sandu on 15 July 2024 (published on 17 July 2024) 83 Three days before the hearing, the candidate Victor Sandu submitted a writ­ten request for recusal to the Pre-Vetting Commission, expressing distrust of the Commission’s Chair, Herman von Hebel, for similar reasons to those in­voked by the candidate Marina Rusu, related to the interview in the Dutch press, in which Herman von Hebel repeatedly praised the ruling party and, 78 Law 26/2022, Art. 4 para(2). 79 The Rules of Organization and Functioning were adopted at the Commission meeting on 22 April 2022, and amended on 12 May 2022, 11 July 2022, 23 December 2022, and 6 September 2023. See here: https://vetting.md/wp-content/uploads/2023/09/RoP_ROM_amended_09.2023.pdf: 80 Art. 7, lit. d) and e) of Law 26/2022 on Pre-Vetting. 81 Art. 10, points 2 and 3 of the Commission’s Rules of Organisation and Functioning. 82 https://vetting.md/en/marina-rusu-candidata-la-functia-de-membra-in-csm-audiere-in-cadrul-evaluarii-reluate/ 83 https://vetting.md/prevetting/en/evaluare-reluata-audierea-publica-a-judecatorului-victor-sandu/ 34