Withdrawal from the vetting process: Legal implications and consequences

The external evaluation of judges in the Republic of Moldova is regulated by Law 26/2022, Law 65/2023, and Law 252/2023. Under Laws 26/2022 and 65/2023, both judges and non-judges are subject to evaluation, whereas Law 252/2023 applies exclusively to judges. Depending on the law governing the evaluation process, the effects of withdrawing from the evaluation or resigning differ.

Withdrawal of candidates from the evaluation process under Law 26/2022

All subjects of Law 26/2022 hold the status of candidates. These may include both sitting judges and professionals from other legal or non-legal fields. Any candidate may withdraw from the competition voluntarily or be removed by the entities responsible for organizing the competitions, namely the Superior Council of Magistracy (SCM), the Ministry of Justice, or Parliament. Withdrawal may occur both before and after the initiation of the evaluation process, that is, from the moment the Commission sends the five-year declaration and the ethics questionnaire forms.

If a candidate voluntarily withdraws after the evaluation has initiated, the Commission issues a decision acknowledging the withdrawal from the competition. The Constitutional Court and the Supreme Court of Justice (SCJ), in the Gavrilenco v. Commission case, have confirmed the correctness of this practice.

Regarding the withdrawal of candidates whose evaluation was initiated by the entities responsible for organizing the competitions (e.g., in cases where a candidate joins a political party), the Commission has so far acknowledged such withdrawals. As a relevant case (Teleuca v. Commission) is currently pending before the SCJ, the Commission is awaiting its ruling before taking further action.

A candidate's voluntary withdrawal, regardless of the reason invoked, is legally equivalent to failing the evaluation. However, the only legal consequence in this case is the candidate’s inability to participate in the competition. The law does not establish a prohibition on participating in future contests.

Withdrawal of judges from the evaluation process under Laws 65/2023 and 252/2023

Judges serving on the SCJ, Courts of Appeal, and first-instance courts who hold or have held leadership positions and are being evaluated by virtue of their positions cannot withdraw from the evaluation process.

Laws 65/2023 and 252/2023 both stipulate that judges evaluated by virtue of their positions may submit their resignation within 20 days of receiving notification regarding the initiation of the evaluation. Submitting a resignation after this deadline, regardless of the reason invoked, is legally equivalent to failing the evaluation.

These judges may only be removed from the evaluation process by the SCM (e.g., if they are dismissed from office under other circumstances). In such cases, the Commission acknowledges the withdrawal but does not issue a decision, ruling, or report. Under Laws 65/2023 and 252/2023, final decisions are made by the SCM in the form of rulings.

Withdrawal of candidates from the evaluation process under Laws 65/2023 and 252/2023

Apart from sitting SCJ judges, candidates for these positions are also evaluated under Law 65/2023. Under Law 252/2023, evaluations apply to judges serving on Courts of Appeal and those holding leadership positions in first-instance courts, as well as candidates for these positions.

If a candidate voluntarily withdraws after being notified by the Commission of the initiation of the evaluation, the Commission acknowledges the withdrawal and does not issue a decision, ruling, or report. Under Laws 65/2023 and 252/2023, final decisions are made by the SCM in the form of rulings.

If the SCM withdraws a candidate from the evaluation process (e.g., the candidate has lost eligibility due to resignation from a judicial position), the Commission acknowledges the withdrawal and does not issue a decision, ruling, or report. The decision is made by the SCM through the adoption of a ruling.

Neither voluntary withdrawal nor withdrawal by the SCM is legally equivalent to failing the evaluation. The only legal consequence is the candidate’s inability to participate in the competition. The law does not impose prohibition on participating in future competitions.

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