Deepening EU-Moldovan Relations
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Deepening EU-Moldovan Relations

What, Why and How?

Michael Emerson, Denis Cenusa

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eBook - ePub

Deepening EU-Moldovan Relations

What, Why and How?

Michael Emerson, Denis Cenusa

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About This Book

For Moldova, the signing of the Association Agreement and the DCFTA with the European Union in 2014 was an act of strategic geopolitical significance. Of all the EU’s eastern neighbours, Moldova is objectively the most European on several counts, including sharing a common history, language, culture and border with EU member state Romania. These provide a positive foundation for a successful Agreement, notwithstanding the major political challenges that confront contemporary Moldova. The purpose of this Handbook is to make the complex political, economic and legal content of the Association Agreement readily understandable. This second edition, published two years into the Agreement’s implementation, adds new value, charting Moldova’s progress in putting the Agreement into effect. Two teams of researchers from leading independent think tanks, CEPS in Brussels and the Expert-Grup in Chi?in?u, collaborated on this project, with the support of the Swedish International Development Agency (Sida). This Handbook is one of a trilogy examining similar Association Agreements made by the EU with Ukraine and Georgia.

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PART I. POLITICAL PRINCIPLES, RULE OF LAW, AND FOREIGN POLICY

1. POLITICAL PRINCIPLES

Provisions of the Association Agreement
The entire Association Agreement is premised on a common commitment to modern European democratic political values, recognised in the preamble:
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[T]he 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 begoverned 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 and established direct presidential elections by the citizens. The elections held in October-November 2016 resulted in the victory of an openly pro-Russian candidate. This sparked tensions between different branches of power – the pro-EU-oriented government and parliamentary majority, and the pro-Russia presidential office.
In October 2017, the Constitutional Court allowed the possibility of a “temporary suspension” of the President, if he refused to fulfil his constitutional obligations, in particular the promulgation of laws. The same ruling entitled the Prime Minister or the Speaker of the Parliament to temporarily assume the role of the President on specified issues. Furthermore, in October 2017, with the temporary suspension of the President, the parliamentary majority appointed the Defence Minister, renewed the government’s composition and in January 2018, adopted the anti-propaganda legislation. Under these circumstances, the Court started to reshape the political environment through its rulings, indirectly disadvantaging the opposition in many respects.
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 law enforcement, prosecution and the anti-corruption institutions. This phenomenon has seriously undermined the rule of law and good governance, particularly since 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. In line with this law and according to the annual budgetary laws, the Central Electoral Commission approved the allocation of about MDL 39 million in 2016 and MDL 40 million in 2017 for political parties based on the results of national and local elections in November 2014 and June 2015, respectively. Political parties with legal status that participated in the elections are eligible to access state subventions. Independent candidates are not eligible.
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 parliamentary elections: five regular elections and three early elections on account of the inability of parliament to elect the president. Moldova held direct presidential elections in 1996 and 2016. 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 comments on the local elections of June 2015, notably regarding unbalanced media coverage, legal inconsistencies and the independence of the Central Electoral Commission.7
Numerous earlier objections raised by the OSCE remained pertinent in the presidential elections of October/November 2016, in particular regarding the verification of signatures, the financing of the electoral campaign, unbalanced media coverage, etc. The ruling of the Constitutional Court of December 2016 confirmed some of these deficiencies. It also emphasised that the supporters of the Russia-subordinated Moldovan Metropolitan Church committed abusive interference in the presidential electoral campaign and used “extremist, xenophobic, homophobic and sexist language against a candidate”. Additionally, the Court objected to the lack of legal actions sanctioning the religious cults for electoral interference.8
In 2017, civil society organisations requested the creation of a Working Group 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.9 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.10 However, there is a very little progress in establishing electronic voting, although the increasing level of emigration requires some urgent tools to facilitate voting by Moldovan citizens living abroad. The introduction of a State Register of Voters in 2014 led to some improvements of the electoral lists,11 but more efforts are needed to eliminate the problem entirely.
The introduction in April 2017 of the mixed-voting system by the Democratic Party supported by the Party of Socialists was seen as a major drawback for the national electoral system. This resulted in the creation of uninominal constituencies from which 51 MPs will be elected, including three from the diaspora, two from the Gagauzia Autonomy and two from Transnistrian region. The remaining 50 MPs will be appointed based on the previous party list principle. The Venice Commission advised against the new electoral system, in particular because it exposes local candidates to influence from the business people.12 The political preconditions of the EU’s macro-financial assistance promised to Moldova in November 2017 also referred critically to the changed voting system. As a result of the contested decision by the Moldovan courts to invalidate the mayoral elections in Chisinau that took place in June 2018, the European Parliament promptly passed a Resolution advocating suspension of macro-financial assistance for which a tranche had been scheduled for July 2018.
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.
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 758 in 2017 from 1,354 in 2013 and 1,011 in 2015.13 The number of applications filed against Moldova between 1998 and 2017 totals 13,400, of which 1,348 are still pending. Moldova ranked at fourth place in terms of its number of applications per capita in 2017. By December 2017, the ECtHR had issued 354 rulings on Moldova,14 costing approximately €17 million.
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 remedy. 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 2018, 13 judgments concerned the Transnistrian region and charged both Moldova and Russia with breaching the right to education, the right to life, the prohibition of inhuman or degrading treatment, and the right to liberty and security.15 However, the majority of these rulings have not been executed.
Significant progress has been made in the enforcement of ECtHR judgments and fulfilment of the European Convention on Human Rights, however, and also in the activity of mediators to promote the inclusion of people with disabilities, and victims of torture and ill treatment. Although the authorities have undertaken measures to fight discrimination, this remains a serious problem regarding the poor, those who are HIV-positive or LGBT, Roma and women.
Since 2016, the National Council for the Prevention of Torture has been active. It is presided over by the Ombudsman. The competences of the Council are limited to performing field visits and issuing recommendations. It lacks any enforcement mechanism and adequate financial resources for the members of the Council.
A newly established Council on the Prevention and Elimination of Discrimination started examining cases in 2013. Although the Council is very active, with approximately 140 decisions issued on discrimination cases only in 2016, it is severely limited in its mandate. The legislation does not allow the Council to apply sanctions, nor can it lodge complaints to the courts. This gives its decisions merely a declarative or prescriptive character. Additionally, the Council faces institutional shortcomings and a high turnover of personnel. According to its 2016 activity report, the areas of discrimination reported were access to public services (49%), the labour market (25%), dam...

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