Deepening EU-Moldovan Relations

What, Why and How?

Michael Emerson, Denis Cenusa

• Publisher: Centre for European Policy Studies
• Year: 2016
• ISBN:
  9781786601759
• Edition: 1
• Topic: Politica e relazioni internazionali
• Subtopic: Relazioni internazionali

s ‘ European choice ’. Of all the EU ’ s eastern neighbours, Moldova is objectively the most European on several accounts, including sharing a common history, language, culture and border with its direct neighbour and now EU member state Romania. This signifies highly positive foundations for making a success of the Agreement, notwithstanding the major political and economic challenges that contemporary Moldova faces.
The purpose of this Handbook is to make the legal content of the Association Agreement clearly comprehensible. It covers all the significant political and economic chapters of the Agreement, and in each case explains the meaning of the commitments made by Moldova and the challenges posed by their implementation.
A unique reference source for this historic act, this Handbook is intended for professional readers, namely officials, parliamentarians, diplomats, business leaders, lawyers, consultants, think tanks, civil society organisations, university teachers, trainers, students and journalists.
The work has been carried out by two teams of researchers from leading independent think tanks, CEPS in Brussels and the Expert-Grup in Chi?in?u, with the support of the Swedish International Development Agency (Sida). It is one of a trilogy of Handbooks, with the other two volumes examining similar Association Agreements made by the EU with Ukraine and Georgia.

PART I.

POLITICAL PRINCIPLES, THE RULE OF LAW AND FOREIGN POLICY

1. POLITICAL PRINCIPLES

Provisions of the Agreement

The entire Association Agreement is premised on a common commitment to modern European democratic political values, recognising in the preamble that,

the common values on which the European Union is built – namely democracy, respect for human rights and fundamental freedoms, and the rule of law – lie also at the heart of political association and economic integration as envisaged in this Agreement.

These principles are repeated in Art. 2 and are declared “essential elements” of the Agreement. This links up to Art. 455, which states that in the case of violation of these principles the Agreement may be suspended. Political dialogue and cooperation on “domestic reform” should be conducted with respect for these same principles (Art. 6). This political dialogue is conducted through regular meetings at different ministerial and senior official levels.

On the substantive implementation of the basic principles, the jointly agreed Association Agenda text of 26 June 2014 is more explicit. Priority matters for action include institutional questions guaranteeing democracy, the judicial sector, and human rights and fundamental freedoms. These challenges are addressed in considerable detail in the Agenda.

Democratic institutions. The Association Agenda sees the strengthening of the institutions as essential to guaranteeing respect for democracy and the rule of law. There is a specific call for a comprehensive revision of the constitution to clarify the competences of the president and to prevent potential conflict through institutional deadlocks. Furthermore, Moldova has committed itself to clarifying the appointment procedures and competences of the Constitutional Court, and to upgrading the legislation on party financing and advancing decentralisation.

Judicial sector. To ensure the impartiality of the judiciary, prosecution and law enforcement bodies, and their freedom from political interference and corruption, Moldova is expected to ensure the independent functioning of the National Anti-corruption Centre, review the appointment procedures of judges, strengthen the independence of the judiciary, establish zero tolerance of corruption for the legal profession, and reform legislation of the prosecutors, judges and lawyers. In a subsequent statement the EU stresses the urgent need for key reforms: “The reform of the judicial sector and the fight against corruption need real decisive action. It will be moreover crucial for the new government to act resolutely on the serious crisis in the banking sector.”²

Human rights and fundamental freedoms. In the Association Agenda, Moldova has committed itself to ensuring the rights of the most vulnerable groups and national minorities, implementing the Law on Ensuring Equality, and guaranteeing the effective implementation of the judgments of the European Court of Human Rights. In the latest EU–Moldova human rights dialogue, the EU “encouraged the Moldovan government to ratify the European Charter for Regional or Minority Languages as well as to adopt a national strategy dedicated to national minorities”.³

The Association Agenda addresses freedom of expression and focuses on the freedom and pluralism of media, and protection of journalist sources. It also envisages the protection of children’s rights and guarantees the implementation of legislation to prevent domestic violence. In an effort to improve gender equality, Moldova is expected to ensure equal treatment in social, economic and political life, and in decision-making.

Implementation perspectives

The constitution. According to the constitution of 1994, Moldova is an independent, sovereign and indivisible state. The country must be governed according to the supreme values of the rule of law, democracy, human rights and fundamental freedoms, justice and political pluralism. Moldova has a parliamentary form of governance, with limited presidential powers. This is a result of the contested constitutional reform carried out through Law No. 1115-XIV of 5 July 2000, which ended the semi-presidential form of governance. The changes established that the president be elected by a large majority of the members of parliament (61 out of 101 votes or three-fifths of the total number of MPs); failure to elect a president requires new elections in the national assembly. In March 2016,⁴ the Constitutional Court declared the changes introduced in 2000 unconstitutional, so henceforth the president will be elected by the citizens. The presidential elections are set for 30 October 2016.

The Court has been criticised by the opposition for allegedly having exceeded its jurisdiction, issuing politicised decisions and accepting age restrictions on the candidates in the presidential race. Organised in the platform ‘Truth and Dignity’, some of the opposition has demanded further constitutional changes and called for a reduction in the number of members of parliament and for lifting MPs’ immunity. The platform collected 400,000 signatures, which is more than double the amount of signatures needed to trigger a referendum.

However, the Central Electoral Commission rejected the platform’s demand for a referendum on the grounds that the conditions laid down in Art. 141 of the constitution (over the number of signatures per administrative unit required) were not met. This decision by the Commission was contested by the opposition, and the Chișinău Court of Appeal annulled it, but the annulment was subsequently overturned by the Superior Court of Justice. Therefore, the original decision still stands.

The democratic institutions are generally perceived to be fragile because of the strong influence of oligarchic groups. The politicisation of the institutions (ministries, agencies, local public administrations, etc.) is widespread. It covers various areas, but in particular the law enforcement, prosecution and anti-corruption institutions. This phenomenon has seriously undermined the rule of law and good governance, in particular after July 2009, when the institutions started to be partitioned in line with the political weight and interests of governing political parties.

Political parties. The political system is dominated by two types of political parties: those subordinated to local oligarchic groups and those suspected of being financed by external sources (Russia). To ensure a fairer and more competitive environment for political parties, the authorities passed Law No. 36 of 9 April 2015⁵ (on financing political parties), which introduces the possibility of financing political parties through individual contributions as well as public funds (up to 0.2% of the state budget revenues). Of the public funds, 50% should be provided proportionally to performance in parliamentary elections and 50% in relation to local elections. Allocations should be envisaged in the annual budget law, which also provides for the improvement of reporting on electoral campaign expenses and capping donations from individuals and business representatives. The law also prohibits the use of funds earned abroad, which affects the right of Moldovans abroad interested in funding political parties during the electoral campaigns. According to this law, about MDL 39 million was foreseen for political parties based on the results of national and local elections in 2014, but the effective transfer of this money depends on the adoption of the annual budget law.

Electoral processes. Although the electoral process is competitive, it is marred by irregularities that prevent it from being considered truly fair and free. Since the declaration of independence, Moldova has organised eight national elections: five regular elections and three early elections on account of the inability of parliament to elect the president. The OSCE reported that the latest early parliamentary elections of November 2014 were marred by irregularities. Among the main concerns, the OSCE underscored the following problems: deficiencies of the new electronic system for processing voters, political interference in the mass media and the exclusion of one party from the elections (Patria).⁶ The OSCE made various remarks about the local elections of June 2015, notably regarding unbalanced media coverage, legal inconsistencies and the independence of the Central Electoral Commission.⁷

An inter-institutional working group was created to amend the Electoral Code, taking into account recommendations by OSCE and the Office for Democratic Institutions and Human Rights on the previous parliamentary elections. The Central Election Commission undertook to extend the online registration period for voters from abroad in order to increase the number of registered voters and improve the transparency of the process.⁸ A preliminary feasibility study conducted with financial support from Norway and Sweden pointed out that Moldova implements the preconditions for a gradual introduction of electronic votes.⁹ The introduction of a State Register of Voters in 2014 led to some improvements of the electoral lists,¹⁰ but more efforts are needed to eliminate the problem entirely.

The excessive use of government resources, vote-buying practices and disproportionate access to mass media constitute the main factors that distort the outcome of elections, combined with the effective powers of political parties supported by the oligarchic groups. Geopolitical factors continue to have a divisive effect on elections, with voters choosing between pro-Western and pro-Russian political parties.

Justice system. The Justice Sector Reform Strategy for the years 2011–16¹¹ has aimed at anti-corruption legislation and institutional reform, but its implementation lacks transparency and coherence, and deadlines have been missed.¹² Although the Ministry of Justice has enough mechanisms for implementation of the strategy, the authorities established in 2015 the Centre for Reform of the Judicial System (CRSJ), seemingly to deviate from rather than implement the reforms prescribed by the strategy. The EU Delegation and civil society organisations have complained that the CRSJ¹³ has not ensured sufficient transparency and public consultation in preparing a series of draft laws. The main criticisms concern i) establishing specialised courts for examining corruption-related offences, instead of creating the mechanisms for the specialisation of judges in the existing courts; ii) restructuring the Superior Court of Justice by replacing 16 out of 33 career judges with representatives from academia, the legal profession and civil society; and iii) conferring to the Superior Council of Magistracy the right to check judges’ assets, therefore overlapping the competences of the National Integrity Commission.

Draft amendments to the constitution are currently being prepared by the Ministry of Justice on the appointment of judges to the Supreme Court of Justice, and the role of the Superior Council of Magistracy.

So far, the EU has invested approximately €30 of 60 million intended for justice system reform. The remaining amount is dependent on the pace and quality of the reforms.

Reforming the Prosecutor’s Office. The Justice Sector Reform Strategy led to a new Law on Prosecution adopted in February 2016, after numerous delays in 2015. The law refers to the functioning of the General Prosecutor’s Office and of the Superior Council of Prosecutors, along with the appointment, transfer and promotion of prosecutors, and reduced layers of hierarchy. It also provides for the president to appoint the prosecutor general, upon the proposal of the Superior Council of Prosecutors, as opposed to the current appointment by the parliament. The prosecutor’s mandate will now last for seven years instead of five. The law will enter into force on 1 August 2016, but in order to make it fully functional, secondary legislation and the law on specialised prosecutor offices need to be adopted. Also, amending the constitution is necessary in terms of the conditions of election of the general prosecutor.¹⁴

Human rights. Moldova has adhered to the European Convention on Human Rights and Fundamental Freedoms and must implement the rulings of the European Court of Human Rights (ECtHR). Overall, the number of cases filed against Moldova in Strasbourg decreased to 1,011 in 2015, from 1,354 in 2013 and 1,105 in 2014.¹⁵ Moldova holds third place in terms of its number of applications per capita in 2015. By December 2015, the ECtHR had issued 316 rulings on Moldova,¹⁶ costing €17.5 million.¹⁷ Most violations refer to the right to fair trial, inhuman or degrading treatment, and the right to respect of private life.

The most common infringements refer to pre-trial procedures and conditions of detention, the prohibition of inhuman or degrading treatment and torture, and the lack of effective investigation. The Strasbourg Court also ruled on judgments linked to the violation of the freedom of expression, freedom of religion and the prohibition of discrimination. Up until January 2016, three judgm...