RFI Effective Justice Final_November 26.pdf

4 Igor Sikorsky Street, Kyiv 04112, Ukraine; Phone: +380 (44) 521 5000; Fax: 521-5245; http://ukraine.usaid.gov

REQUEST FOR INFORMATION (RFI)

Subject: Request for Information No. RFI-117-20-000001 Issued Date: November 15, 2019 Comments Due Date: December 06, 2019 Comments Due Time: 4:00 PM Chisinau, Moldova Local Time

Reference: Effective Justice

The United States Government, represented by the U.S. Agency for International Development (USAID) in Moldova, is in the process of designing a new Effective Justice activity that includes a Model Court Initiative. We are seeking public comments on the DRAFT Statement of Work (SOW) to inform the design process. Responses to this request for information are not binding on the U.S.

Government and do not obligate USAID to issue a solicitation, nor do they commit USAID to pay any cost incurred in the preparation and submission of comments and responses.

Brief Project Description The goal of the proposed Effective Justice activity is to foster an efficient, accessible and transparent justice system that uniformly applies the rule of law. Effective Justice will be implemented nationwide, including national level institutions based in Chisinau, in courthouses, with legal professionals at all levels, and with justice service users throughout Moldova. USAID is considering utilizing an indefinite-delivery, indefinite-quantity (IDIQ) type contract for this activity in order to maintain flexibility and manage the uncertainties in the operating environment.

The purpose of the proposed Model Court Initiative (proposed Task Order 1) is to improve the performance of courts in delivering effective justice services. Work under the Task Order will be conducted in the city of Chisinau and partner court locations throughout the country. National level reforms improve the overall functioning of the justice system, but trust and confidence in the judiciary begins primarily where citizens interact with service providers. A number of factors influence court function, from leadership, court planning and resources allocation, hiring and staffing, and case flow management tools. This activity will establish and pilot an effort to establish metrics and standards for judicial management, court administration, information technology, training, and public outreach and support selected courts to intensify their efforts in these areas to become Model Courts.

Requested Information

In order to inform the design of its planned Model Court Initiative activity and maximize potential program impact, USAID invites constructive feedback on the proposed Statements of Work (SOW). In addition to general feedback, USAID would like to receive comments related, but not limited, to the questions listed below. These comments will be taken into consideration in the design of a final activity.

Comments in response to this RFI must be submitted via email to the Contracting Officer, Maria Televantos at mtelevantos@usaid.gov with a copy to moldovasolicitations@usaid.gov with the subject entitled: “Request for Information (RFI): Effective Justice,” no later than the date and time stated above.

Thank you for your interest in the subject request for information.

Sincerely, ______/s/______

Maria Televantos Contracting Officer mailto:cbertolin@usaid.gov mailto:moldovasolicitations@usaid.gov

Model Court Initiative Activity

RFI-117-20-000001

RFI QUESTIONS:

General

1. USAID is considering utilizing an indefinite-delivery, indefinite-quantity (IDIQ) type contract for this activity in order to maintain flexibility and manage the uncertainties in the operating environment. USAID is interested in industry feedback on the use of this type of mechanism.

Is there a different mechanism you would suggest for this activity? If so, please explain your rationale.

IDIQ SOW

2. Does the results framework for the proposed IDIQ represent a clear logic framework to make justice more independent, effective, accessible and transparent in Moldova?

3. Does the proposed IDIQ statement of work provide adequate leeway reflective of a fluctuating environment for judicial reform?

4. Under Objective 2, are there additional areas where courts and communities connect that should be incorporated into the scope?

5. Under Objective 3, in addition to ADR are there other initiatives in the justice sector that would improve the business enabling environment?

Task Order SOW

6. Are there other components or actors that should be considered for a model court program?

What additional incentives for courts to undertake improvement plans should the Mission consider in the scope of work?

IDIQ Statement of Work

Goal and Scope The goal of Effective Justice is to foster an efficient, accessible and transparent justice system that uniformly applies the rule of law. Effective Justice will be implemented nationwide, including national level institutions based in Chisinau, in courthouses, with legal professionals at all levels, and with justice service users throughout Moldova.

Background and Context Moldova is a small Eastern European country strategically located between Ukraine and Romania.

Historically, Moldova has been a part of greater Romania, the former Soviet Union, and, since 1991, an independent republic. After declaring independence in 1991, the country has undertaken several series of judicial reforms to harmonize national legislation and practice with international norms, particularly regarding rule of law, human rights and fundamental freedoms. The Republic of Moldova is a civil law country and has been a party to the European Convention on Human Rights (ECHR) since 1997 and of the International Covenant on Civil and Political Rights since 1993.

According to Moldova’s Constitution the country is governed, “by the rule of law, is a democratic State in which the dignity of people, their rights and freedoms, the free development of human personality, justice and political pluralism represent supreme values that shall be guaranteed."

Over the past decade, Moldova has made progress reforming legislation that governs the judiciary, but complete implementation of many of these reforms has proven difficult. Subservience of the judiciary to political interests, both in actuality and in perception remains a challenge. Institutional impediments to complete judicial independence remain, including a five-year probation period for new judges, non-transparent and non-merit-based promotion and transfers, the threat of criminal prosecution for decisions, and political influence over the hierarchy of justice sector institutions. In practical terms, the lack of judicial independence is reflected particularly in high profile cases where political or commercial interests are present. The situation has resulted in low public trust in the judiciary with Transparency International Global Corruption Barometer (GCB) survey indicating that 71 percent of Moldovans perceive that there is corruption in Moldovan courts. This perception is exacerbated by events of the past several years. In late 2014, $1 billion or approximately 12% of the country's gross domestic product disappeared from the banking system and few people have been prosecuted. In addition, Moldovan courts played a prominent role in facilitating the global laundromat scheme, whereby upwards of $20B in illicit funds were transferred from Russia to banks in Europe and the United States. Later in 2018, political control of the courts was used to overturn the results of the election for the mayor of Chisinau, prompting major donors to suspend budget support.

2019 has seen the beginning of a new wave of judicial reform attempts, including, as of this writing, development of draft legislation proposing the creation of an extraordinary judicial vetting commission which would evaluate leadership of Moldova’s judicial institutions, in particular the judges of the Supreme and Appellate courts and other bodies of justice (the Superior Council of Magistracy and its colleges; the Superior Council of Prosecutors and its colleges; the National Integrity Authority; and the National Anticorruption Center). Efforts towards these reforms have been incremental and highly politicized, slowed by the complexity and sometimes obstructed by embedded interests. This SOW is designed with the recognition that as the situation in Moldova develops, there remains an opportunity to improve accessibility, quality and accountability of justice.

Whether these attempts are macro level and systemic or micro-level targeted at the end-user, will be determined by the operating environment. As current events allow, this IDIQ will enable the issuance of Task Orders to respond to both ongoing efforts as well as respond to windows of opportunity.

Structure of the Judiciary The Superior Council of Magistracy (SCM) is the main governing body of the judiciary, with responsibility for judicial appointments, evaluation of judicial performance, promotions, inspection and disciplinary matters. Currently, the SCM is composed of 12 members, including three ex officio members: the President of the Supreme Court of Justice (SCJ), the Minister of Justice (MJ), and the Prosecutor General (PG); three law professors elected by Parliament; and six judges elected by the General Assembly of Judges representing all court levels. At the time of this writing legislation has been proposed to add two additional law professors selected by the Ministry of Justice that would increase the total council members to 14, as well as reform the procedure for the election of judicial members. This reform is occurring while an active effort by a group of judges is underway to remove and replace the judicial members of the SCM.

The Moldovan court system is organized in three levels: first instance district courts (15), appellate courts (4) and the SCJ. Moldova has approximately 2,600 judges and court staff among these levels.1 Law number 76, passed in 2016, stipulates the process for complete reorganization of the judiciary. It sets out a ten-year process (2017-2027) for complete restructuring, reducing the number of district courts to the current level to collapse the jurisdiction of 44 district courts to its current level. Each court (trial, appellate and the SCJ) is headed by a President of the Court (Chief Judge), who coordinates the work of other judges, and appoints a head of administration. By law, Moldovan judges are independent, impartial and immovable in the exercising of their authority. In practice, this independence is constrained by other laws, policies, norms and pressures, which are discussed further below.

Challenges The last decade can be characterized by the declared intention of a succession of Moldovan governments to undertake drastic judicial reforms. In 2011, the Justice Sector Reform Strategy (JSRS) 2011-2016 was developed and adopted. In 2016, the JSRS was extended for an additional year to allow for the implementation of unfulfilled activities, as well as the drafting of a new strategy, both of which were not completed. Although implementation is incomplete, one of the most visible outcomes of the Justice Sector Reform Strategy was increasing judges’ salaries. These increases occurred in three stages, in 2014, 2016 and 2018 salaries for judges are now triple those of 2013.

While this is an improvement for what was once the lowest salaries of any Council of Europe member it is still below recommendations of the European Charter on the Statue of Judges which calls for a level of remuneration to “shield them from pressures intended to influence their decisions or judicial conduct in general, impairing their independence and impartiality.”2

During the years of the JSRS, improvements were made in the legislative and regulatory environment of the judicial sector. Moldova is now considered to have a relatively well-developed legal framework which, if properly enforced, would support a well-functioning justice sector. However, adoption and implementation of these reforms has been limited. This is in large part resulting from obstructive efforts by key actors in the system, as well as the lack of political will of successive governments to actually and meaningfully reform the system. Additionally, systemic difficulties of resource allocation, adequate infrastructure, data collection, staff turnover, access, and transparency hinder the effectiveness of Moldova’s rule of law institutions.

Major challenges faced by the Moldovan judiciary include the following:

1. The system for selection and promotion of judges has major deficiencies.

Despite recent changes to legislation to strengthen a merit-based selection and appointment process, the most recent selection committee to fill position vacancies held in August of 2019, while improved, still did not fully follow procedures. The SCM conducted more than 50 interviews consisting of only three questions in a single day. When final results were published, candidates with the highest scores

1 World Bank Report No. 124516-MD. Improving Access to Justice: From Resources to Results. 2018.

http://documents.worldbank.org/curated/en/683491537501435060/Main-Report 2 https://rm.coe.int/16807473ef http://documents.worldbank.org/curated/en/683491537501435060/Main-Report https://rm.coe.int/16807473ef before interviews were supplanted by interviewees with personal connections with the committee.

The decision providing final scores did not provide sufficient justification for these results.

Moreover, judges are still appointed for an initial mandate of 5 years before having to reapply for a permanent career appointment, a condition that may seriously affect their independence. In addition, the Parliament continues to play a dominant role in appointing judges of the Supreme Court, which politicizes the appointment of SCJ judges.

2. The mechanism for disciplining judges is flawed.

The present mechanism for disciplining judges is not effective. The Judicial Inspection Board is severely under resourced to adequately review the number of disciplinary cases and there are not enough judicial inspectors. There are also questions of conflict of interest, as the same officials who initially review cases are also members of the final Disciplinary Board and vote on cases they previously heard. Judicial Inspectors are current or retired judges calling into question whether they can fully be impartial when reviewing cases involving current and former colleagues. Anecdotal stories emerged for cases where inspectors were inclined to dismiss errors among people they know as inadvertent mistakes, thus avoiding sending incidents for further disciplinary review. There is a widespread public perception that the SCM and its review mechanism does not act uniformly in dealing with disciplinary cases, favoring certain judges over others.

3. Transparency and accountability of courts are negatively affected by excessive anonymization of court judgments.

In particular, since 2016, the courts have started anonymizing court judgments (using “XXX” in place of names) of the parties involved in the trial, including legal entities, and, in some cases, even redacting the names of judges, prosecutors and state authorities. Such practices contradict the standards on data protection representing a severe barrier for investigative journalists, civil society and interested citizens and diminishing transparency and accountability.

4. Court resources are limited.

Although Moldova’s court system receives a comparatively high percentage of government expenditures relative to other countries in the region, currently at 0.48 percent of GDP, the country’s persistent poverty provides only EUR 8 per inhabitant leaving courts chronically under resourced and well below the EUR 52 per inhabitant median for the region.3 Equipment utilized within the courts has largely been provided by international donors. Although the equipment is maintained to remain operational, there is no adequate budget for their replacement resulting in dated equipment that is beyond their useful life span and often unable to run modern software.

5. IT infrastructure is not appropriately planned.

In addition to upgrading physical locations, Moldova plans to modernize its justice sector information systems. The World Bank’s recent assessment4 indicated that advances in technology and good practices from neighboring countries, if adopted in Moldova, could reduce corruption and performance issues while reducing operational costs. However, current GOM information and communication technologies (ICT) modernization plans address each sector entity individually and are not taking the opportunity to develop solutions in coordination with relevant justice entities or leveraging existing applications and capacities. Moldova’s current justice sector ICT environment has numerous stakeholders, objectives and activities that are not aligned under a single ICT sector

3 https://rm.coe.int/rapport-avec-couv-18-09-2018-en/16808def9c 4documents.worldbank.org/curated/en/683491537501435060/pdf/Moldova-JSPEIR-English-Version- Sep-13-2018.pdf https://rm.coe.int/rapport-avec-couv-18-09-2018-en/16808def9c.

http://documents.worldbank.org/curated/en/683491537501435060/pdf/Moldova-JSPEIR-English-Version-Sep-13-2018.pdf http://documents.worldbank.org/curated/en/683491537501435060/pdf/Moldova-JSPEIR-English-Version-Sep-13-2018.pdf strategy. Implementers find a fragmented and complex organizational structure to operate in with the MOJ and its Agency for Court Administration (ACA), the SCM, the SCJ and the Center for Special Telecommunications (CST) all tasked with different aspects of implementing an e-justice system.

Domestic funding in this area does not match the level of priority the government claims. Annual allocations are currently inadequate for medium-to-long-term planning and there is no allocation for maintaining, supporting and enhancing existing systems.

6. Access to justice is limited.

Access remains an issue for vulnerable groups. The report of the UN’s Special Rapporteur5 on the right of person with disabilities found that persons with disabilities face a number of issues when dealing with the court system. Issues include denial of procedural accommodations, accessibility of court buildings even after renovation, lack of court staff understanding appropriate accommodations for persons with disabilities, and access to legal assistance. In addition to those with disabilities, Moldova’s population is still primarily rural, which directly increases the difficulty of accessing justice. The planned reduction in courthouses and the preference for judges to be located in Chisinau create shortages outside urban areas. Outside of a few locations, the majority of physical court facilities are in disrepair and not suitable for modern court operations. Chronic overcrowding and a shortage of dedicated courtrooms in Moldova’s courts regularly lead to hearings in judges’ offices, where they cannot benefit from existing audio recording systems nor be uploaded to the Integrated Case Management System (ICMS), reducing transparency and integrity. The GOM’s current strategy is to build new central courthouses. However, this process is expected to take ten years and resources for construction have not been identified.

For victims of domestic violence, once inside the court system other challenges remain. Those suspected of committing offences are by law, but not always in practice, provided legal representation for free if they cannot afford it. Additionally, judges, prosecutors and law enforcement often harbor dismissive attitudes to female victims of domestic violence.

7. The career progression of judges is not merit-based.

A merit-based system of appointing candidates is an essential condition for ensuring an independent, responsible and professional judiciary, yet the current structure of judicial hiring enables both outside and inside influence and reduces independence. As noted in the World Bank’s recent assessment6, the system for selecting and promoting judges is flawed. Two issues emerge from the current process:

ignoring impartial candidate scoring and reserving slots for non-competitive appointments.

Currently, the SCM appoints judges through a Selection Board after applicants have successfully completed several stages, including testing. However, the SCM frequently selects candidates who do not have the highest scores and fail to justify the decision. Although the legal framework is generally in line with European standards, its implementation results in a non-merit-based system for selecting judges. Recent reforms have reduced the SCMs ability to affect final scores but implementation by enacting officials remains an issue.

Hand-picking candidates and reserving slots for preferred judges is an issue at all levels of the Judiciary. In recent years, the majority of court leadership positions (court presidents and vice presidents) have been noncompetitively filled. A single candidate was considered in 65% of appointments at first instance courts, 83% in courts of appeal and 100% of appointments to the SCJ.7 The prevalent belief is that these positions are retained for those with political connections. This belief

5 undocs.org/en/A/HRC/31/62/Add.2 6documents.worldbank.org/curated/en/683491537501435060/pdf/Moldova-JSPEIR-English-Version- Sep-13-2018.pdf 7 http://crjm.org/wp-content/uploads/2017/12/CRJM-Selectia-si-cariera-jud-2017-ENG.pdf http://undocs.org/en/A/HRC/31/62/Add.2 http://documents.worldbank.org/curated/en/683491537501435060/pdf/Moldova-JSPEIR-English-Version-Sep-13-2018.pdf http://documents.worldbank.org/curated/en/683491537501435060/pdf/Moldova-JSPEIR-English-Version-Sep-13-2018.pdf http://crjm.org/wp-content/uploads/2017/12/CRJM-Selectia-si-cariera-jud-2017-ENG.pdf is supported by the lack of sufficient reasoning and reporting by the SCM on their decisions.

8. Access to information is restricted.

Given the apparent influence of interest groups over the judiciary it is not surprising that surveys indicate that more than 60 percent of citizens and businesses feel that an ordinary citizen or a businessman is unlikely to get a fair trial8. The World Bank assessment found income levels are a determinant in accessing information and resources related to the justice sector. Lower-income individuals had the least access to information and found cost to be a barrier.

It is not only the public facing limited information. During the selection process, a mandatory integrity assessment is conducted by the intelligence service. These reports are not shared and a candidate is unable to refute accusations or appeal a decisions. Under this procedure, candidates without connections can be removed from consideration without explanation and a sitting judge to be dismissed with no reason offered to the public record.

In terms of information on particular cases, measures have been undertaken to increase the transparency of the judicial system. Utilizing the Integrated Case Management System Version 5, trial decisions are made publicly available through web portals of Moldova’s courts and each courtroom has the ability to audio-record hearings. However, steps are often taken to work around these constraints. The Group of States against Corruption’s (GRECO) fourth evaluation9 noted that the rule on public disclosure of decisions has not been consistently implemented with “numerous” links to decisions leading to a blank page. High-profile cases are held in private hearings for “national security reasons.” In other cases, information is redacted from court decisions citing the law on data protection. Reports have noted that the SCM and the Supreme Court of Justice do not release nor provide sufficient reasoning in cases involving the disciplining of judges.

USAID’s grantee Legal Resources Centre of Moldova (LRCM) found that the SCM does not have a written and publicly available policy on the criteria and procedure for granting bonuses for jubilees, professional holidays and non-working holidays in the judiciary. Even the drafting of the sector’s budget is not transparent. Court presidents and judges are not involved in budgetary planning and drafting, nor is the draft budget published to allow for public consultation and comments, a phenomenon criticized in evaluation reports.10

9. Use of Alternative Dispute Resolution is limited.

Legislation establishing mediation and arbitration as a means to resolve commercial and civil disputes was codified only in the last decade. While use of ADR has increased year on year, it represents only a small percentage of reviewed disputes compared to the number of lawsuits filed in courts. For instance in 2018, there were 4,589 commercial cases submitted to courts of first instance, and 372 commercial cases submitted to the Mediation Council (only 8%).11 With no formal mechanism for disputes to be mediated before trial, Moldova’s courts have seen an increase in their case backlog in recent years. This represents a missed opportunity for disputes to be quickly resolved both reducing resource demands on courts and facilitating rapid resolution of commercial disputes to enable an improved business and investment climate.

8documents.worldbank.org/curated/en/683491537501435060/pdf/Moldova-JSPEIR-English-Version- Sep-13-2018.pdf 9 www.cna.md/public/files/grecoeval4rep20166_moldova_en.pdf 10 http://crjm.org/wp-content/uploads/2016/08/CRJM_Raport-CSM-2016-ENG-WEB.pdf 11 https://csm.md/files/Statistica/2018/9_luni/Judecatori.pdf http://documents.worldbank.org/curated/en/683491537501435060/pdf/Moldova-JSPEIR-English-Version-Sep-13-2018.pdf http://documents.worldbank.org/curated/en/683491537501435060/pdf/Moldova-JSPEIR-English-Version-Sep-13-2018.pdf http://www.cna.md/public/files/grecoeval4rep20166_moldova_en.pdf http://crjm.org/wp-content/uploads/2016/08/CRJM_Raport-CSM-2016-ENG-WEB.pdf https://csm.md/files/Statistica/2018/9_luni/Judecatori.pdf

10. Rights and protections for underage victims and witnesses

The Moldovan justice system has traditionally treated children in contact with the law as adults, applying the same investigative and interviewing techniques. This approach is also applied to adolescent victims of violence and abuse potentially furthering mental harm. Surveys indicate Moldovan youth face higher levels of sexual and physical violence then are reported to authorities.

Victims express the stigma, fear of additional trauma during legal procedures, low levels of prosecution, and lack of support as reasons for not reporting crimes.12

Opportunities Renewed reform efforts: Over the past several months, steps have been taken to investigate allegations of corruption, reform the process for selection of the Prosecutor General, and review the sale and leasing of state assets. In addition, at the time of this writing, there is draft legislation to reform the Supreme Court of Justice (SCJ) in both its mandate and size. As part of the reform, judges in the SCM, SCJ and Court Presidents will go through a process of an extra-judicial evaluation. The “vetting” bodies will consist of international experts and members of civil society in addition to members of Moldova’s judicial and legal systems. If performed correctly, the reform has the potential to remove judges with integrity issues from leadership positions within the judiciary and enable judicial institutions to function appropriately in disciplining malfeasance through regular mechanisms.

In addition to extra-judicial vetting, additional resources are planned for the active monitoring of judicial institutions in their functions related to the hiring, selection, promotion and disciplining of judges thus furthering the process of creating a genuine merit-based cadre of judges.

Utilization of IT Solutions: Successive years of USAID programming have provided various IT solutions that if fully implemented and thoughtfully deployed in a whole of system approach will bring greater transparency and efficiency to the judiciary. However, too many initiatives remain disjointed and do not function as a whole. Version 5 of the ICMS enables interoperability with other E-governance databases expediting administrative processes and reducing human errors. At the same time, every courtroom has been equipped with audio recording equipment for transparency and record keeping but has yet to be integrated with the ICMS. Each courthouse has also been provided with video conferencing equipment. During piloting, the equipment showed great potential to decrease costs of transporting detainees and improve scheduling. However, regulations creating uniform practices and ensuring protections of litigants’ rights are still in development and the equipment is underutilized. Advances in technology and proven practices from neighboring countries suggest that Moldova could mitigate many corruption and performance issues if ICT-based solutions were harnessed appropriately.

Building on past reforms and programs: Between 2011 and 2017, an ambitious Justice Sector Reform Strategy JSRS was put in place as part of the Association Agreement with the EU. Although the strategy was not fully implemented, a number of important legislative and regulatory reforms were passed. Moldova is now considered to have a legal structure substantially in line with international best practices and EU norms. Previous USAID programming assisted the NIJ, SCM, and ACA in building a basic structure for human capital development, resource allocation, and regulatory framework. If there is sufficient political will, the opportunity exists to continue the progress made during the JSRS.

Engagement by the International Community: International donors are highly engaged in the justice sector in Moldova. While this creates challenges in coordinating efforts and the potential for duplication of effort, the increase in resources and the priority of the justice sector provides an

12 VACS Moldova 2019, Draft CDC Report To be published March 2020 opportunity for a whole-of-sector approach to reforming judicial institutions.

Linkages to USG Policies and Strategies

As stated in the USAID Policy Framework: Ending the Need for Foreign Assistance13, facilitating equitable access to security and justice, building social and economic ties among communities, and strengthening mediation and alternative dispute-resolution mechanisms are parts of the multi-pronged approached required to confront the underlying dynamics of fragility and prevent crises.

USAID/Moldova’s Country Development Cooperation Strategy14 asserts that by working to consolidate Moldova’s democratic institutions and processes, the country can expedite its economic potential for the benefit of all citizens. At the same time, without improvements in Moldova’s ability to control corruption and give citizens an active voice in government, there is little hope of increasing investor confidence and strengthening the country’s private sector. This activity falls within CDCS Development Objective 1: More Accountable and Effective Democratic Governance.

USAID/Moldova aims to foster an efficient, accessible and transparent justice system that uniformly applies the rule of law. The development hypothesis supporting this objective is that in Moldova, if citizen demand for good governance, enforced by a fair and impartial judicial system, meets with strengthened local government capacity, then more effective and accountable democratic governance will result.

Technical Approach and Expected Results

The goal of the activity is to improve the effectiveness, accessibility, quality, independence and transparency of justice in Moldova. The willingness of key partners to engage in reforms and benefit from technical assistance as well as the potential issuance of a new justice sector strategy, and accompanying implementation plan will guide implementation. EJ will remain dynamic and responsive to the progress and setbacks made in the broader environment of judicial reform.

The contractor must be skilled in providing technical assistance in the following areas:

● Workflows for efficient operations of courts;

● International and European Union standards for transparency of court data;

● Utilizing ICT in the Justice Sector;

● Capacity building of judges and court clerks

● Judicial decision-making and reasoning

● Legal Aid;

● Capacity building of CSOs to monitor court activities;

● Use of data analytics and measurement to facilitate management decisions.

Rapid collection of baseline information, development and maintenance of monitoring and evaluation (M&E) systems, will be essential.

13 https://www.usaid.gov/sites/default/files/documents/1870/WEB_PF_Full_Report_FINAL_10Apr2019.pdf 14 https://www.usaid.gov/sites/default/files/documents/1863/moldova-CDCS-FY13-17_updated20202.pdf https://www.usaid.gov/sites/default/files/documents/1870/WEB_PF_Full_Report_FINAL_10Apr2019.pdf https://www.usaid.gov/sites/default/files/documents/1863/moldova-CDCS-FY13-17_updated20202.pdf

The components outlined below are used for demonstrating the breadth of possible activities under EJ.

Each Task Order will use its own combination of these components, depending on the specific issues that are being addressed.

Component/Result 1: Improve the performance of courts in delivering quality justice services The Contractor will work to strengthen Moldovan courts’ ability to meet the needs of citizens by taking a service-led approach to justice. The Contractor must understand the nuances of Moldova’s justice sector including internal and external interest groups that prevent the uniform application of the law. Through the life of EJ, the Contractor may support courts with varying levels of capabilities and existing resources (financial, human, operational, and structural).

Under Component One, the Contractor may assist courts in meeting their workforce development needs by partnering with National Institute of Justice to develop a sustainable model to identify and resource the skill sets needed for court personnel. Courts also have technical needs in forecasting the resources necessary for the proper functioning of courts and to forecast for the replacement and upgrading of depreciating equipment.

Illustrative activities under component 1 may include assisting courts with performance improvement plans across an array of skills and practices, technology and tools for transparency, strengthening merit-based hiring procedures for court staff, facilitating increased use of statistics to inform management decisions, human, financial, and technological need forecasting, working with SCM and MOJ to ensure that court statistics and data are available to the public, creating a forum/mechanism to make recommendations and provide feedback to the ACA on needed legal reforms and/or policy guidance and improving budget forecasting to ensure adequate resources for the functioning of the courts.

Component/Result 2: Strengthen connection between courts, justice service providers, and communities As part of EJ, the Contractor may provide significant attention to conducting public outreach activities within partner courts and the communities they serve. These interventions will be designed to bring the courts and community together and to demonstrate to the public that the courts are there to work with and for them. To support a wide range of outreach activities, grants under contract will be authorized so that civil society organizations may receive grant funding to advocate for stronger justice institutions and/or increasing public awareness and engagement in promoting the rule of law.

Specific attention will be given to organizations working with young people, women and minority groups. Funding from this grant program could enable the targeted organizations to: (a) establish partnerships with courts, judges, MOJ, SCM and other justice system actors to improve their communication, outreach and responsiveness; (b) monitor specific trials and investigations to advocate for improved performance; (c) produce specialized reports and concrete policy proposals;

(d) conduct advocacy campaigns and coalition building for the adoption of specific legal and/or policy reforms; and (e) carry out activities geared towards raising public awareness of their rights and responsibilities, the judiciary’s functions as well as any pressing legal and policy reform issues.

Illustrative activities under Component 2 include advancing web portals and other IT solutions to enable citizens’ access to information, increasing interactions between courts and local civil society regarding access for people with disabilities, creation of community councils within courts to facilitate connections with civil society and the communities they serve, holding community meetings to discuss court restructuring and its impact on citizens, assisting courts to ensure appropriate facilities and procedures for juvenile witnesses in keeping with national laws and international standards, conducting public opinion surveys, working with relevant national commissions and parliamentary committees to review, and improve if necessary, legal frameworks that protect the rights of juveniles and other vulnerable persons.

Component/Result 3: Facilitate multiple pathways to justice and dispute resolution Facilitating pathways to justice means ensuring people can access justice, receive a fair and timely hearing, and ensuring proper legal representation for citizens in their legal matters. Although Moldova’s constitution has provisions for legal aid to provide assistance to those who cannot afford it, not all of those who qualify for legal aid assistance receive it. Many people are not aware that they qualify for legal aid and their rights in this regard. Under EJ, the Contractor may support courts and civil society to identify and assess gaps and difficulties utilizing legal aid. Activities in this component would be structured to support systemic improvements to ensure the process is fair, non-discriminatory, and that the eligibility criteria are clear.

Timely processing of case files and prompt scheduling of hearings is impacted by case backlogs.

Broader use of alternative dispute resolution (ADR) is one means to transfer low level disputes to mechanisms outside of the formal judicial system, fostering earlier resolution and reducing demands on the court system. The contractor may work to increase the utilization of ADR in Moldova by creating effective mechanisms for case referral from the courts to ADR providers. Activities under this component will relate to existing USAID and previous British Embassy funded work to increase public awareness of ADR and would coordinate with USAID’s existing ADR program through EBRD to enhance impact.

Illustrative Component 3 activities include gap analysis of legal aid provisions, strengthening the capacity of legal aid providers, establishing transfer mechanism between courts and ADR providers, assessments on the potential use of judicial mediation, and ensuring legal compliance with enforcing decisions made in arbitration.

Component/Result 4: Support to Central Judicial Institutions to Strengthen Judicial Independence USAID, through a current grant with the Legal Resources Center of Moldova, funded a recent assessment which examined the independence of Moldova’s judiciary. This report, prepared by the

International Commission of Jurists15 found a “judiciary that could be, but is not yet, fully independent.” Influence over the judiciary is achieved through various legislative, structural, and administrative means. Through EJ, the Contractor may continue to support the reform process to strengthen the transparency and independent operations of judicial structures.

Ongoing efforts are already underway, although moving slowly, to abolish the five-year “probational” appointment period for new judges and remove the criminal liability of judges for unlawful decisions under article 307 of the criminal code. An extensive informal connection network also influences independence and objectivity. Judicial review despite ongoing personal and professional relationships is commonplace. Under USAID’s current Open Justice project, scheduled to end in June 2020, a Commission on Ethics and Professional Conduct was established under the SCM. The Commission aims to prevent violations of professional ethics before they occur and to promote the standards of professional conduct of judges. The Contractor may continue development of the Commission as an effective body to support judicial professionalism.

Another overarching issue affecting the independence of Moldova's judiciary is the inability of established mechanisms to remove officials who have conducted professional misconduct. The prevailing perception is a hierarchy of control, whereby connected judges are protected and promoted through the system. At the time of this writing, it is expected that in the near future an extra-judicial committee will be established to evaluate the judges of the SCM, SCJ and others, for integrity and professionalism. Experience in other countries of the region has shown numerous challenges with the functioning of these committees. EJ may support the bodies created for the evaluation of judges where appropriate to establish effective and accountable judicial leadership.

The ability of the general public, journalists, academics and other civil society actors to follow and examine these processes and court proceedings is a cornerstone of judicial integrity. Currently, over-anonymization and the lack of enforced procedures is restricting or preventing the public’s access to information. Under EJ, the Contractor may support Moldova’s courts in the transition to digital record keeping and subsequent policies that follow international best practices in expanding public access to court information while at the same time protecting personally identifiable information in appropriate situations.

Illustrative activities to strengthen the independence of the judiciary under component 4 could include support to extra-judicial evaluation bodies, enabling or supporting the reform of legislation to reduce influence on the judiciary, developing uniform procedures for the public release and redaction of data, and strengthening judicial ethics practices.

Management and Coordination

Flexibility in implementation: The contract will be implemented in a complex environment. The justice sector in Moldova is both reforming and resistant to change. USAID has endeavored to design a program with a scope to encapsulate activities that fit within the broad array of justice sector gaps and needs, and can be implemented in varying ways dependent on political will. The overarching environment, however, is likely to change and the Contractor must be flexible to navigate these changes.

Political sensitivities: The Contractor must steer activities in a clear and consistent direction even while working with multiple layers of government that may disagree on key issues and in the face of evolving reform initiatives.

15 https://crjm.org/wp-content/uploads/2019/03/2019-ICJ-Rep-Moldova-Judiciary_ENG.pdf https://crjm.org/wp-content/uploads/2019/03/2019-ICJ-Rep-Moldova-Judiciary_ENG.pdf

Coordination with USG and Other Donor projects:

Various USG and International Donors continue to support multiple segments of Moldova’s justice sector. Donors involved in the justice sector The Council of Europe, The World Bank Group, UK Good Governance Fund, and Soros Foundation. Within the United States Embassy team, programs include a variety of initiatives under the International Narcotics and Law Enforcement Bureau. The Contractor’s knowledge of and coordination with these other international donors and other U.S.

Embassy activities will be essential to focus resources where they have the greatest potential for impact.

Assumptions and Risks Success of initiatives depends on a number of assumptions and therefore, will entail a degree of flexibility and adaptability. The most important assumption is that there is continued political will for judicial reform. A second assumption, essential for the continuation of activities is the continued openness of judicial leadership to receive support. Since the annulment of the Chisinau Mayor election of 2018, there has been extensive criticism of judicial decisions. This coupled with recent criminal investigations of high-profile judges may reduce the judiciary’s acceptance of initiatives they deem potential threats. Emigration continues to reduce Moldova’s skilled workforce, resulting in personnel shortages in all sectors. The inability of judicial institutions to recruit will reduce their ability to absorb support and delay or prevent the implementation of activities. The Contractor must put in risk mitigation measures to prevent delays in programming.

Cross-Cutting Considerations Gender Equality and Female Empowerment Moldova has laws in place to promote gender equity and over the past twenty years the country has continued to experience positive changes in increased opportunities for women. However, sufficient measures are not in place to ensure full implementation of gender equity provisions. Women are under-represented in leadership positions in local and national government, in the legislature, among judges, senior civil servants, senior foreign servants, and in the media. 16 Judges are not required in civil and administrative cases to record their rationale for making a decision, which may particularly impact female victims of domestic violence. The USAID Moldova Country Cooperation Development Strategy notes that a special emphasis on supporting full integration of women into the political domain and business community is key to reaching Moldova’s development goals. The USAID gender assessment found that one of the most pressing gender issues in Moldova is weak economic empowerment for women, which is exacerbated when women face discrimination in the courts. There are gains that can be made toward gender equality on both fronts if development assistance is carefully targeted toward promoting greater inclusiveness. Interventions implemented by the Contractor must be responsive to gender considerations, and seek to ensure that the assistance provided and the results achieved are beneficial to both genders. Gender monitoring and reporting requirements will be included in Task Orders.

16 World Bank Moldova Country Gender Action Plan

TASK ORDER DRAFT STATEMENT OF WORK

Statement of Work

PURPOSE

The purpose of this Task Order is to provide technical support to the justice sector of Moldova through creation and piloting of a Model Court Initiative.

SCOPE

The goal of this Task Order is to improve the performance of courts in delivering effective justice services. This supports Result #1 under the Results Framework in the Effective Justice IDIQ. Work under the Task Order will be conducted in the city of Chisinau and partner court locations throughout the country. National level reforms improve the overall functioning of the justice system, but trust and confidence in the judiciary begins primarily where citizens interact with service providers.

Shortcomings in the justice system often manifest in the delivery of services, in terms of quality, accessibility, and even and consistent application of the law without bias or influence. A number of factors influence court function, from leadership, court planning and resources allocation, hiring and staffing, and case flow management tools. This activity will establish and pilot an effort to establish metrics and standards for judicial management, court administration, information technology, training, and public outreach and support selected courts to intensify their efforts in these areas to become Model Courts.

BACKGROUND AND CONTEXT

The inability of the Moldovan justice system to efficiently and transparently meet the needs and resolve the legal issues of Moldovan society and citizens endangers the rule of law, constrains the business climate, and leads to low levels of confidence among citizens in the Moldovan government.

Progress has been made in recent years--normative frameworks have been adopted and key institutions and actors responsible for the administration of the justice system are in place. Several rounds of reforms, including the most recent Justice Sector Reform Strategy, have brought legislative improvements but limited implementation has prevented a sustained well-functioning justice system and services that are people-centered, user friendly and solution- oriented. Justice service providers, including the courts, lawyers, and the legal professions are insufficiently responsive to the citizens and communities they are intended to serve. Prevailing corruption undermines the expectation of a fair hearing and opens the judiciary to undue political and economic influence. This ongoing situation limits the keystone position rule of law must play in Moldova’s journey to self-reliance and path toward a more just, prosperous, and cohesive society.

The World Bank’s recent assessment of the justice sector highlights that while donor initiatives have improved the legislative framework and provided courts with several management and ICT solutions, full implementation has remained an issue.17 As a counterpoint, this Task Order proposes a bottom up approach to focus assistance at the court level, where selected beneficiaries are provided assistance in utilizing the various donor initiatives, as well as supplemental support to improve court performance. The court would then be used as a model of efficiency and transparency for other courts to emulate and would build on the restructuring institutions of the court system. Continued

17 MOLDOVA Improving Access to Justice: From Resources to Results. World Bank, 2018, MOLDOVA Improving Access to Justice: From Resources to Results, documents.worldbank.org/curated/en/683491537501435060/pdf/Moldova-JSPEIR-English-Version-…