There is a well-known principle in law – justice must not only be done; it must be seen to be done. In other words, it is not enough to do justice fairly. Participants involved in trials (who want to be sure that they have been heard) and society in general should be able to see that judicial decisions are justified, well-reasoned, explained in sufficient detail and supported with strong and coherent arguments. This is one of the key principles on which the trust* in justice system is based upon.
Moldovan courts have long faced the issue of inadequate and insufficient reasoning/argumentation of judicial acts.** It represented an issue of major concern for the whole judicial system – there was a number of cases in which the European Court of Human Rights (ECHR) found Moldova in violation of its obligations under the European Convention on Human Rights because of insufficient reasoning provided by Moldovan courts for its decisions.
Recently, we performed, with the financial support of the U.S. Government, an analysis on the way judicial decisions in Moldova are drafted in the Republic of Moldova. We evaluated the way judgements are drafted by the national courts in Moldova and the style of reasoning employed by judges. The training on legal writing provided by the National Institute of Justice (NIJ) to future judges and prosecutors was also evaluated.
Lengthy and blurry reasoning
The results of our study showed that many judgments are written in overly long and complex sentences which makes them hard to comprehend. Like in the passage below:
“In order to express its view, the first instance court has found that Guzun Tudor, acting as a criminal investigation officer of the Criminal Investigation Unit of the Police Station of Riscani District of the General Police Station of the municipality of Chisinau, having the special rank of senior lieutenant of police, therefore under the provisions of art. 123 para. (2) of the Criminal Code, being an official, that is to say, a public functionary with special status, who pursuant to art. 13 para. (1) let. a), i) of Law on the Status of Criminal Investigation Officer no. 333 of 10.11.2006, has the obligation to perform his official duties in strict compliance with the legislation as well as have a dignified conduct in society and refrain from actions which would compromise the dignity and honor of a criminal investigation officer, accepted money which are not due to him from Smirnova Tatiana, not to carry out actions in the exercise of his office and stating that he had influence on the decision makers from Riscani Prosecutor’s Office, municipality of Chisinau, claimed and received money, in the following circumstances.”
The evidence is presented without a sufficient assessment of how different pieces of evidence relate to each other. Instead of actually analysing and corroborating the evidence, some judges tend to resort to standard phrases when they uphold or rule out a certain piece of evidence. Thus, people reading the decisions find difficult to understand the relevance the court attaches to specific evidence in relation to the law and facts.
Our report has identified several other deficiencies in the way many Moldovan judges articulate their reasonings. Most of the judgements simply quote legal provisions and do not explain how these provisions apply to the facts of the case. As a result, it is often difficult for the reader to understand the court's position on the legal issues of the case.
Also, many judgements invoke legal provisions without clarifying their importance and relevance to the case. Some Moldovan judges often fail to address substantial and potentially decisive legal arguments. It sometimes makes it difficult to understand what were the actual problems and issues that the court had to resolve. All these factors may become a real hindrance to ensuring the right to a fair trial.
Why does it happen?
Some of the possible reasons for these deficiencies that the study identified are:
- Extreme workload. The workload of judges makes it very difficult (or almost impossible) to dedicate sufficient time to analysing the case and drafting the judgement properly.
- Another reason is the lack of training on legal drafting in the course of university legal training and continuous professional training programmes provided by the National Institute of Justice (NIJ).
Even if the legal writing is not expressly taught as a separate subject, most of the NIJ training is provided through simulations, which also include writing assignments. However, the report concludes that this methodology has its limitations because the number of such written assignments are insufficient to enable trainees to acquire fundamental drafting and legal writing skills.
Also, sometimes trainees do not receive appropriate feedback on the quality of their written submissions and the feedback sessions are mostly focused on certain formal aspects of the conduct in a trial. As a result, not enough attention is dedicated to such essential aspects as coherence and persuasiveness of judgements.
Legal writing is a must for magistrates
Our report comes with several recommendations that suggest the need for a substantive reform of the legal drafting training system in Moldova. Legal writing is a fundamental skill that any legal (whether it’s a judge, a prosecutor or a defence lawyer) must possess. However, Moldovan universities do not provide such training (which is among the basic subjects in many law schools around the world).
Therefore, it is recommended to introduce a separate course on legal writing at the NIJ. It should be provided not only as part of the programme of initial training for future specialists, but also as continuous professional training for incumbent judges and prosecutors, as well as legal assistants (court clerks). On top of that, mock trial sessions conducted at the NIJ should involve more writing assignments and extensive feedback sessions accordingly.
Another suggestion refers to the creation of working groups designed to develop recommendations and best practices on judgement-drafting. It would also be of use to integrate international components into the NIJ training, such as carefully analysing judgements by ECHR or other international courts or involving trainers and professionals from other countries who have considerable experience in this area.
You can read the complete report by following the link.
* According to the Barometer of Public Opinion (October 2020), only 19% of the general public have trust in the justice system of Moldova.
**“Only an empty shell”. The Undelivered Promise of an Independent Judiciary in Moldova, Report by International Commission of Jurists (2019).