Strasbourg, 30 June 1999

CG/BUR (6) 16

Report on the mission of a CLRAE Delegation to the Republic of Moldova to monitor the local and regional elections of 23 May 1999, the laws on administrative subdivision of the territory and local public administration1, and the situation regarding local and regional democracy

Rapporteurs: Mr George LYCOURGOS (Cyprus, L),
Mr Claude CASGRANDE (France, L)

Document approved by the Bureau of the Congress uring the meeting on 17June 1999

I. INTRODUCTION

At the invitation of the Ministry of Foreign Affairs of the Republic of Moldova, a Congress delegation visited the country in order to monitor the local and regional elections held on 23 May 1999.

The delegation consisted of five Congress members, two experts (representing the Congress and the Venice Commission respectively) and three members of the Secretariat (representing the Congress, the Venice Commission and the department responsible for ADACS-LODE).

A complete list of the delegation members is given in Appendix I to this report.

As well as monitoring the elections, the Congress delegation had two other aims:

- to examine with the representatives of the Venice Commission the law on administrative subdivision of the territory and the law on local public administration recently enacted by the Parliament ("Area-based Administrative Organisation Act" and "Local Government Act"), with a view to the adoption by the Commission of an official opinion at its next plenary meeting (Venice, 18-19 June 1999).
- to survey the situation regarding the development of local and regional self-government n Moldova, with a view to finalising the Congress report on local and regional democracy in this country in accordance with CLRAE Resolution 59 (1998).

The delegation's visit was organised by the Secretariat of the Congress in conjunction with the Moldovan Ministry of Foreign Affairs. The programme of encounters arranged by the Ministry appears in Appendix II.

Apart from the official programme mentioned above - relating to the election day (23 May 1999) and the meetings which took place on Saturday 22 May and Monday 24 May 1999, on Friday 21 May 1999 the delegation met:

- Mr Evans, Head of the OSCE Mission to Moldova, and other representatives of the Mission;
- Mr Di Gregorio and Mr Tudoran, representatives of the International Foundation for Election Systems (IFES)2;
- Ms Calancea, Director of the Council of Europe Information Centre;
- A number of journalists and representatives of local NGOs concerned by the electoral process.

Also on 21 May, in the evening, the delegation met Mr Perebinos, President of the Association of Mayors of the Republic of Moldova and candidate for election to the Chisinau city council.

On 22 May, following the official programme prepared by the Ministry, the delegation met all candidates for the office of Mayor of Chisinau except Mr Urecheanu, the outgoing (appointed) Mayor who sent a representative. This meeting was particularly difficult owing to the aggressiveness of the candidates, irked by the flouting of the rules on access to the media (see below)

On the afternoon of 24 May, Mr Bucci met Ms Stoionova, Director of the Department of National Minorities and Language Use.

On Tuesday 25 May the delegation leader Mr Lycourgos met Mr Munteanu, President of the Viitorul Foundation, a very active NGO in the local government sector.

The Secretariat was able to arrange a contact with Ms Poalelungi and Mr Cretu, Vice-Ministers of Justice respectively in charge of legislative affairs and relations with Parliament. The discussions held during this meeting bore chiefly on the examination of the laws on territorial subdivision and local public administration recently enacted by the Parliament (see below). The representatives of the Venice Commission naturally took part in these discussions.

The delegation regretted that the Ministry of Foreign Affairs was unable to confirm the meeting with a delegation of the Bulgarian community initially scheduled for 24 May 1999.

The information gathered by the delegation from all the above encounters is presented in the various chapters of this report.

II. THE GENERAL SOCIAL, ECONOMIC AND POLITICAL SITUATION

Several representatives of civil society whom the delegation met (freelance journalists, NGO representatives, candidates for the office of Mayor of Chisinau) drew attention to a situation of very severe economic recession and increasing widespread corruption. They informed the delegation that the situation had been condemned by the International Monetary Fund (IMF) which rated Moldova among the very lowest in the classification of European countries according to wealth per inhabitant. In certain respects, Moldova was considered by the IMF to be in an even more critical socio-economic condition than Albania.

The difficulty of the country's economic situation is not really perceptible in Chisinau, which the delegation's informants often described as a kind of façade. On the other hand, economic problems are very obvious in the other towns, in the villages and in all the rural areas where electricity is supplied for only 4-6 hours daily, newspapers are not available every day, virtually no telephones are provided (except public ones), and there is a generally run-down atmosphere attended by frankly poverty-stricken living conditions.

1. Situation in Transnistria

The situation in Transnistria is far from being resolved, and the local and regional elections were not held in that region. It would appear that the Tiraspol authorities want the Moldovan authorities to agree to make Moldova a true confederation with Transnistria as its most autonomous federated entity.

The Moldovan Government is not prepared to make concessions to Transnistria beyond those made to Gagauzia. Meanwhile the OSCE, Russia and Ukraine are continuing discussions to find a solution acceptable to both parties without putting the constitutional equilibrium of the State in jeopardy. In this connection, it should be noted that the OSCE was not invited to monitor the elections.

2. Situation in Gagauzia

According to the information obtained by the delegation during the meeting with Mr Tabunscis, Governor of Gagauzia (Bashkan), the political situation in the region is evidently calm and there is no particular tension. There are fairly relaxed relations with the central authorities including the President of the Republic. Formidable economic problems persist.

The Gagauz authorities have signified their agreement to the process of devolution and administrative division of the territory promoted by the Government and approved by Parliament, but have pointed out that certain provisions of the laws on local public administration and territorial subdivision are liable to ruin this highly positive state of affairs. The main issue is that the provisions in question institute a Prefect in Gagauzia to represent the central government and ensure that the national laws are upheld in the region.

The delegation felt that the proposed appointment of a Prefect was not really compatible with the wide autonomy granted to Gagauzia, and that conflicts of jurisdiction might arise between the Prefect and the region's autonomous institutions (especially the Governor, also a member of the regional government and of the People's Assembly).

According to information received by the delegation, the government and parliament declined to consider the Gagauz Governor's opinion when the laws in question were being drafted and enacted. However, the President of the Republic showed some understanding of the Gagauz authorities' viewpoint. At all events, the proposed Prefect has yet to be appointed.

The Gagauz authorities would furthermore consent to the introduction of machinery for verifying the conformity of laws enacted in Gagauzia with the Constitution of Moldova. The Constitutional Court could in fact do this itself, but the People's Assembly of Gagauzia has reportedly never been consulted in the matter3.

Still concerning the law on administrative subdivision of the territory, the delegation noted that certain villages excluded from the Gagauz region and incorporated in other Moldovan judete (counties or regions) under the law, had held a referendum for their annexation to Gagauzia. The Bashkan wished to point out that the referendum was not considered lawful by the central authorities and was not initiated by the authorities of Gagauzia.

Despite these difficulties the elections in Gagauzia proceeded normally, though of course they only concerned the election of to mayors and local councils together with the referendum proposed by the President of the Republic on wider presidential powers (see below). Elections to the People's Assembly and the regional government will be held on 22 August 1999.

Mr Pasali, President of the Gagauz People's Assembly, also impressed upon the delegation the importance of having at least one Gagauz member of the People's Assembly (a native of the region) in the Moldovan CLRAE delegation4.

On 9 June 1999, the Secretariat received a letter from Mr Pasali concerning the Constitutional Court's decision on the unconstitutionality of section 20 of the 1994 law on the special status of Gagauzia. The People's Assembly saw this decision (substantially contested, moreover, in a public statement of which the Secretariat has received a copy - see Appendix VI) as an attempt by the government to curtail the region's political autonomy. This new dispute only confirms that the various statutes enacted at national level and in Gagauzia are often imprecise, even contradictory, and no doubt require clarification.

3. Situation in the former Taraklia district

In this former district, about 60% of the population (some 50 000 people) are ethnic Bulgarians. This population component (distributed over 26 villages as well as in the town of Taraklia) has expressed opposition to Moldova's new territorial subdivision under which this former district is to be incorporated into the new judet of Cahul. Their dissent was voiced during a local referendum organised in January 1999 by the authorities of the former Taraklia district following the Moldovan Parliament's approval (on second reading, on 25 December 1998) of the bill on administrative subdivision of the territory. It should be noted that the Parliament enacted the law after the President of the Republic had refused to countersign it on 12 December.

80% of the resident population of the areas concerned turned out for the referendum; 92% were in favour of retaining the former district as an independent judet and against its incorporation into the judet of Cahul. The national authorities declared this an illegal act and did not recognise the results of the referendum5.

After the referendum, the local authorities of the former Taraklia district decided to boycott the elections by withholding their co-operation from the Central Electoral Commission for the provision of polling stations in the predominantly Bulgarian communes (9 out of 26, plus the town of Taraklia). As a result, the elections were not held in these communes. For citizens wishing to vote in the commmunes without polling stations, the Central Electoral Commission arranged for voting in neighbouring communes.

The central authorities reportedly intend to deal with this situation by extending the term of office of the local councillors and mayors elected in 1995, but no decision has been taken for the time being.

Complications have arisen over interference by the Bulgarian Government, which is backing the claims of the representatives of the former Taraklia rajon. There are unconfirmed rumours that the authorities in Sofia want to put pressure on Chisinau to allow transit of nuclear waste from the Bulgarian power plant at Kozloduy through Moldova to Ukraine. Owing to this situation, since the beginning of this year the Bulgarian government has imposed a visa requirement on Moldovans wishing to enter Bulgaria.

As already mentioned, the delegation regretted that the scheduled meeting with the Bulgarian minority could not be arranged by the Ministry of Foreign Affairs. The only contact which the delegation was able to establish with this minority was while monitoring the elections in the area concerned.

It must therefore be emphasised that most of the opinions in the matter which the delegation was able to note were stated by representatives of the central authorities (parliament and government) and were invariably opposed to the idea of creating a judet corresponding to the former Taraklia district. The only opinion in favour of it was expressed by Mr Petrache, Head of the Private Office of the President of the Republic, when he met with the members of the Secretariat on 8 June 1999 in Strasbourg.

Conversely, as the delegation noted during the meeting with Mr Diacov, President of the Parliament (accompanied, during the meeting with the CLRAE representatives, by other parliamentarians whose names are listed in Appendix III), the reason for including the former Taraklia rajon in the new judet of Cahul are founded on the principle that it is impossible to create regional authorities for every minority ethnic community in the country. The Ukrainian community (still larger than the Bulgarian) and the Gypsy community were alluded to in that connection.

Mr Diacov stressed that the judet of Cahul had existed before the Soviet period and at that time also included the town of Taraklia and the adjacent villages. In addition, he laid considerable emphasis on the fact that during the drafting work on the territorial subdivision bill, the government and parliament had consulted most of the local authorities concerned by the alteration of the old district boundaries. This also answered the question whether Article 5 of the European Charter of Local Self-Government on protection of the boundaries of the authorities concerned had been observed during the enactment of this statute6. The President of the Parliament also stated that the opinion of the inhabitants of the former Taraklia district other than members of minority ethnic communities, making up the majority in the communes where these minorities live (18 or perhaps 17 out of 26 villages) was also taken into account during the aforementioned consultation.

Mr Diacov wished to emphasise the intention of the central authorities to take all steps to guarantee that the minority communities could further their own culture and maintain their traditions, including linguistic ones (administration, schools, cultural centres, festivals, social rights, etc.)

At several points during the meeting with the Parliament, it was stressed that in the process of territorial reform the interests of the population at large should be considered, and not solely those of minorities. According to the Moldovan central authorities, this principle needs to be applied for the sake of the country's economic development, which must not be impeded by specific demands and interests.

The Deputy Prime Minister made concurring statements on the subject, adding that it was not economically feasible to create a judet of Taraklia, that its size and potential would be too small compared to the other judete, and that its existence would be liable to upset the political and economic balance of the entire country.

He wished to recall that the government had always respected these communities' traditions and culture, which it intended to foster by appointing a sub-prefect (Russian-speaking) based at Taraklia, so that the residents of the areas concerned need not apply to the Romanian-speaking prefect of Cahul; at all events, as the political discussions are still in progress, the sub-prefect has not yet been appointed by the Chisinau authorities7.

While monitoring the elections in the area concerned, the delegation could observe that in the former rajon of Taraklia most residents, apart from the very old, spoke Russian and not Bulgarian.

All informants of the CLRAE representatives strongly hinted that the Bulgarian minority's demand was prompted by economic and political interests. Regarding these economic interests (wine marketing networks, trade in cigarettes, administration of former kolkhozes), the Bulgarian community allegedly wishes to establish a privileged contact with Chisinau and bypass the decentralised State authorities based in Cahul.

According to the information obtained by the delegation (in Moldova) and by the Secretariat (at the meeting in Strasbourg with the Head of the President's Private Office), a solution to the problem over the former rayon of Taraklia could emerge from a fresh parliamentary debate to amend the law on administrative subdivision of the territory. The purpose of the debate would be to create a judet for the area corresponding to the former rajon of Taraklia; in this connection, Mr Petrarche informed the Secretariat that two appropriate bills were before Parliament.

III. LEGISLATIVE REFORM PROCESS IN RESPECT OF LOCAL SELF-GOVERNMENT: LAWS ON LOCAL PUBLIC ADMINISTRATION AND ADMINISTRATIVE SUBDIVISION OF THE TERRITORY

1. Introduction

Appendix VII to this report contains a legal opinion on the two statutes.

Furthermore, during its mission the delegation was informed by Mr Vartic, Head of the Public Administration Unit of the State Chancellery (see information in Appendix IV) that the bills concerning local finance, municipal property, status of elected representatives and administrative disputes had already been referred to Parliament and that the Government was drawing up outline regulations on the functioning of local councils together with other instruments which would aid the implementation of the basic legislation on self-government.

2. The law on administrative subdivision of the territory

Mr Paduraru, Minister of Justice, informed the delegation that the law was the outcome of a protracted effort in response to the country's imperious economic development needs, and also to the Council of Europe recommendations.

As far as the delegation could understand, the Minister acknowledged that the law had sparked numerous disputes concerning Gagauzia and the former rajon of Taraklia. In that respect, he conceded that there was room for improvement to the text. These disputes moreover account for the fact that the government has not yet appointed the Prefect of Gagauzia or the Sub-Prefect of Cahul, responsible for the Taraklia district.

Mr Paduraru informed the delegation that the government might put a proposal to Parliament for amendment of the text in order to resolve the disputes which it had caused in relation to Gagauzia and the former rajon of Taraklia. He also recalled that his Minister had originated the government bill (which envisaged the preservation of the former district as a new judet), thrown out by the Parliament at the end of 1998.

The effect of the law on the special status of Gagauzia is discussed in the second part of the legal opinion presented in Appendix VII.

Regarding the effect of the law on the former Taraklia district, it should be emphasised that in its memorandum on this legislation, the Secretariat of the Venice Commission considered that changing administrative boundaries in such a way as to integrate the Taraklia region into a larger administrative unit reduced the proportion of the minority population in the region; this situation might raise problems vis-à-vis the Framework Convention for the Protection of National Minorities (1 February 1995), to which Moldova is a Contracting Party. Article 16 of this Convention lays down that "the Parties shall refrain from measures which alter the proportions of the population in areas inhabited by persons belonging to national minorities and are aimed at restricting the rights and freedoms flowing from the principles enshrined in the present framework Convention".

In the same memorandum the Secretariat of the Venice Commission recalls that on acceding to the Council of Europe Moldova agreed to base its policy on minorities on the principles set out in Recommendation 1201 (1993) of the Parliamentary Assembly of the Council of Europe. Article 11 of the draft Protocol appended to this recommendation provides that " in the regions where they are in a majority the persons belonging to a national minority shall have the right to have at their disposal appropriate local or autonomous authorities or to have a special status, matching the specific historical and territorial situation and in accordance with the domestic legislation of the state". In interpreting this provision, the Commission has pointed out that it is "necessary for States to take into account the presence of one or more minorities on their soil when dividing the territory into political or administrative subdivisions as well as into electoral constituencies" (Opinion on the interpretation of Article 11 of Recommendation 1201 (1993) of the Parliamentary Assembly of the Council of Europe, CDL-INF (96) 4).

In the light of the information concerning the motives behind the Bulgarian community's demand for the creation of a judet coinciding with the former rajon of Taraklia (see above), and having regard to the general political situation, the Congress delegation can neither confirm nor contest that the new law on administrative subdivision of the territory raises problems in relation to the Framework Convention for the Protection of National Minorities and Parliamentary Assembly Recommendation 1201.

The fact remains that the Bulgarian community's demands should be closely examined by the central authorities in order to find a political solution guarding against the outbreak of a fresh conflict which might further destabilise the country. A further mission seems desirable to allow consultation of the representatives of the minority as well.

3. The law on local public administration

The delegation observed that certain provisions of the law apparently encroach on the exclusive powers of the Gagauz region's institutions.

As the delegation was informed during discussions with the Parliament, the Ministry of Justice and the State Chancellery, in Gagauzia this law assigns different functions to the Prefect and to the Bashkan, who Bashkan is in fact elected by and politically represents the population of the region and is an ex officio member of the government in the same way as the Mayor of Chisinau, whereas the Prefect is required to manage the decentralised State administration in Gagauzia and can in no circumstances review the expediency, only the legality, of the acts of the Gagauz authorities.

In that connection, according to the President of the Parliament, the Deputy Prime Minister and the Minister of Justice, the appointment of the Prefect to Gagauzia cannot involve any form of interference by the central authorities in the public business which the Gagauz authorities are entitled to conduct independently.
But it should be observed that, as far as the delegation could gather, the Minister did not frankly deny that the Prefect might possibly "trouble" the independence of the Gagauz authorities and that with this possibility in mind it might be advisable to revise the law accordingly.

During their encounter with the Vice-Ministers of Justice, the representatives of the Congress and the Venice Commission also drew attention to the contradictions between the law in question and the provisions relating to Gagauzia, pointing out that the contradictions could be mitigated by application of the principle "lex specialis derogat lege generali".
After a thorough technical discussion, the Vice-Ministers of Justice explained that in order to resolve this kind of conflict it was necessary to apply section 2 paragraph 2 of the law on local public administration prescribing the applicability of the aforementioned principle8. This being so, in the event of conflict the requirements of Gagauzia's laws and regulations should, as special statutes in relation to general provisions, override the law on local public administration.

The provisions of the law dealing with the Prefect's powers would be applicable in so far as they do not conflict with the law on the special status of Gagauzia.
Considering that the earlier opinion expressed by the same authorities appeared quite the reverse, the Secretariat of the Congress feels that the question warrants further consideration.

In addition, Mr Vartic described the oversight applied by the administrative courts as no more than verification of the lawfulness of acts.
He also stated that the secretaries of commmunes and regions (judete) were appointed by the respective councils at the proposal of the mayor (communes) and the judet council president (regions).

IV. THE LOCAL AND REGIONAL ELECTIONS AND THE REFERENDUM

1. Introduction

During the meeting on Saturday 22 May, the Central Electoral Commission gave the delegation the following information:

- 22 of the 24 political parties were contesting the election and had put up a total of 35 000 candidates;
- there were 1 693 independent candidates;
- constituents were to elect 443 mayors;
- an average of 5.5 candidates stood for each post of mayor;
- constituents would be required to elect the mayor, the municipal council and the judet council, and to vote in the referendum on extension of the powers of the President of the Republic (see below);
- municipal councils would be elected under a proportional voting system, and mayors under a majority system;
- for election to the office of mayor, a candidate must gain the specified majority of votes cast and one additional vote. If no candidate obtained an absolute majority in the first round, a second round would be held on 6 June 1999;
- the stipulated quorum for the elections to be valid was one-third of the citizens entitled to vote. If the quorum was not reached, the elections would be held again in the constituencies concerned. For the second poll, no majority was specified;
- except in the special cases of Gagauzia and Transnistria, voters would receive 4 separate ballot papers for the mayor, the municipal council the judet council and the referendum. In the Chisinau ward, voters would receive an additional paper for the election of the city mayor. As already mentioned, in Gagauzia the People's Assembly would be elected in August; in Transnistria, no local and regional elections were held;
- 2 400 000 voters were on the electoral registers;
there were 1 300 different types of ballot paper;
- 10 000 000 ballot papers were printed;
- 1 933 polling stations were to be opened on polling day9;
- there were 654 electoral boards;
- 23 000 persons were employed for the elections;
- 2 200 local observers were accredited (mainly representing the political parties contesting the elections) and 56 foreign observers (including some 30 Romanian nationals, representatives of the IFES, and the Council of Europe delegation).

The Chairman of the Central Electoral Commission said that constituents realised the importance of the elections and were well-informed. These claims were contested by other informants of the delegation (journalists, university lecturers, representatives of interested NGOs, candidates).

2. The referendum on extension of the powers of the President of the Republic

At the proposal of the President of the Republic (who regards the government as incapable of solving the country's serious economic problems on its own), a consultative referendum on extension of presidential powers was organised to coincide with the local and regional elections. Being consultative, its results cannot have immediate legal effects. The political parties and the members of the government were all opposed to organising the referendum. They thought that the question submitted to referendum was not of present relevance and caused confusion regarding the local and regional elections. The political parties also took the view that the government's inability to improve the economic situation was no reason to change the Constitution and increase the President's powers.

Despite these opinions, the government officially backed the referendum proposed by the President and, on being questioned about possible confusion between the referendum and the elections, replied that there were insufficient funds to hold the referendum separately from the local and regional elections.

3. The election campaign

Several of the delegation's informants (journalists, candidates and members of interested local NGOs) emphasised the bias of the election campaign. For the post of Mayor of Chisinau in particular, equal access to the media was not secured. Mr Urecheanu, Mayor of Chisinau, was accused by his political opponents of taking advantage of his (appointed) mayoral office to advertise himself (free of charge) on television, in the press, in city shops, on taxis, at ceremonies, etc. They claimed that Mr Urecheanu used each of his official appearances on television as an opportunity for personal election propaganda.

The same opponents also accused Mr Urecheanu of having been outrageously supported (politically, materially and financially) by the government and the President of the Republic; the whole political apparatus, they claimed, had worked for Mr Urecheanu's election. In this matter, a large number of complaints were lodged with the Central Electoral Commission, which either ignored protests or took Mr Urecheanu's part.
The delegation was amazed at the Deputy Prime Minister's assertion that, as Mr Urecheanu was a very active member of the Moldovan delegation to the Congress, the Congress should want him to win on polling day.

Mr Urecheanu's political opponents claimed that the central authorities wanted him to be elected in order to preserve the linkage between the secret dealings and the corruption-related activities going on at local and national level.

It would seem that no public funds were granted to political parties for their election campaign. Consequently, only the financially strongest parties could meet the campaign expenses. These parties were able to buy advertising space in privately owned newspapers. The delegation was informed that most of these newspapers favoured the political parties which had financed them, and sometimes tried to pass the candidates' election propaganda off as information about the election process. This situation was aggravated by the existence of a statutory provision enabling members of parliament to take legal action against journalists expressing political opinions of a defamatory nature.
Moreover, voters not resident in the capital could not be informed of the importance of the elections and of the relevant procedures because of the power cuts (no television) and the non-delivery of newspapers outside Chisinau.

In conclusion, the delegation gained the impression that the Central Electoral Commission was not sufficiently strong and independent to cope with all the problems.

4. The poll

The delegation was able to visit 75 polling stations out of a total of 1933. The polling stations visited by the delegation were situated in each of the newly established regions (judete), as well as in Gagauzia and in the former district of Taraklia.
During the monitoring, the delegation observed that generally, in the polling stations visited, the poll was conducted in an orderly manner. It nevertheless noted the following abnormalities:

1. The presence of uniformed or plain-clothes police officers in some polling stations (particularly in towns);
2. The presence, in some polling stations, of persons whose participation in the voting procedure was not provided for in the Electoral Code (Article 55, paragraph 9) to;
3. Polling booths being used by more than one person at a time, particularly in rural areas;
4. In the polling stations, the number of ballot boxes did not tally with the number of different ballot papers distributed to voters, and they were not always under proper surveillance;
5. At certain times, too many people congregated in the polling stations;
6. The number of persons registered on supplementary voting lists was too high (in some cases, up to 10% of voters);
7. Too many completed ballot papers were considered void, even where the voter's intention was clearly expressed.

The same comments were passed on to the Central Electoral Commission, and were the subject of a press release made in Chisinau (local and foreign press) and in Strasbourg (Council of Europe) (see Appendix V).

5. The results

Three days after the end of voting, the Central Electoral Commission had not yet communicated the final results of the elections. This prompted the Permanent Bureau of the Parliament to refer the matter to the Parliamentary Commission on Control and Petitions. The Bureau of the Parliament asked the Commission to verify forthwith the Central Electoral Commission's observance of the Electoral Code.

a) The elections

According to information transmitted to the Secretariat (unofficially) by the Minister for Foreign Affairs, the election results were announced by the Central Electoral Commission on 28 May 1999.

Results according to parties registered:

1. CAS (Communists, Agrarians and Socialists) - 38.1% (118 mandates). 2. ACM (Centrist Alliance, pro-presidential) - 20.45% (64 mandates). 3. Democratic Convention, right-wing) - 12.49% (42 mandates). 4. PFD (Democratic Forces Party, right-wing) - 7.02% (25 mandates) 5. FPCD (Christian Democrat Popular Front, right-wing) - 6.0% (24 mandates). 6. USD (Social Democrat Union, centrist) 16 mandates. 7. PNI (National Liberal Party, right-wing) 11 mandates. 8. Independent candidates - 5.47%.

In the elections 209 mayors were returned, 60 of them independents.
(CAS 42, CDM 47, ACM 33, PFD 19, FPCD 9, PNL 5). On 6 June 1999 the second round was to be held in 413 localities and elections would be re-run in 5 localities. In its parallel inquiry, the Parliamentary Commission on Control and Petitions found that in two rural localities the mayor was not validly elected. It reserved the right to decide as to the validity of the elections in a number of localities.

Final result for the Chisinau local authority

1. The independent candidate Serafim Urechean was elected Mayor with 51.05% of voted validly cast, polling 105 702 votes. 2. Vasile Iovv (CAS- Communist) 46 961 votes = 22.68%. 3. Iurie Roþca (FPC) 23 527 votes = 11.36%. 4. Ion Muþuc (USD) 15 933 votes = 7.72%. 5. Valeri Klimenko (Ravnopravie) 8 460 votes = 4.10%. 6. Mircea Rusu (PNL) 5 732 votes = 2.66%. 7. Valeriu Zubko (New National Party) 659 votes = 0.32%.

Final result in the election of the Chisinau municipal council according to the parties registered:

1. CAS - 13 mandates 5. USD - 3 mandates
2. CDM - 6 mandates 6. PFD - 1 mandate
3. FPCD - 5 mandates 7. PNL - 1 mandate
4. ACM - 5 mandates 8. Ravnopravie - 1 mandate

The results for the Chisinau local authority as initially released, also including ballot papers declared void, were strongly criticised too. After rectification, the outgoing mayor had 51% of votes and was therefore considered elected. The Chairman of the Parliamentary Commission on Control and Petitions questioned the propriety of the election process and on 3 June the Commission submitted a report confirming these misgivings to the parliamentary plenary session.

b) The referendum

In the referendum there was a 58.33% turnout; 1 393 457 persons received ballot papers, of which 192 153 (14%) were declared void. 768 905 voters were in favour of the presidential system and 427 706 against.

According to an unofficial disclosure of the Ministry of Foreign Affairs, the delegation noted the following post-election statement by the Central Electoral Commission:

- although fewer than three-fifths of the electorate voted (58.2%), under the combined provisions of Articles 168 and 171 of the Electoral Code, the referendum must be considered valid as the majority of electors on the electoral registers cast their votes;
- the "yes" option in favour of strengthening presidential powers prevailed (54.2% of votes validly cast) over the "no" option (35.8%)

Following the Central Electoral Commission's decision and the referral of the matter to the Parliamentary Commission on Control and Petitions (which found the referendum to have been proposed, organised and conducted in breach of the Constitution), Parliament requested the National Audit Office to verify the legality of the financial resources used for organising and conducting the referendum, and applied to the Public Prosecutor for a review of the legality of the poll and the correctness of the final result as announced by the Central Electoral Commission.

A member of parliament stated his intention to appeal the Central Electoral Commission's decision before the Supreme Court of Justice, on the ground that the Commission should have declared the referendum "invalid" as the quorum required for it to be valid was not fully attained.

The Head of the Private Office of the President of the Republic drew attention to Article 171 of the Electoral Code, whose terms are that where the quorum of three-fifths of the electorate is not attained, the Central Electoral Commission may declare the referendum invalid. But the consultative referendum was in fact declared valid because the quorum was almost attained and the voters' intention was clearly expressed.

V. CONCLUSIONS

The information contained in this report makes it possible to conclude that Moldova's political, social and economic situation displays weaknesses and causes of conflict which could seriously destabilise the country in future.
It is certain that the development of local and regional democracy in this country could help the public authorities overcome the difficulties.
In this connection, the Bureau might take the following specific initiatives:

1. Take the necessary steps to finalise the report on the situation regarding local and regional democracy, a provisional version of which was presented at the 1998 Plenary Session and provided a basis for adopting Recommendation 38 (1998) and Resolution 59 (1998). It should be noted that the Resolution advocates finalisation of the report in question.

2. Inform the President of the Parliament of the Republic of Moldova that the Congress is prepared to offer its support with a view to organising an international conference on local and regional democracy to be held in Chisinau in the year 2000. The conference, in which the Parliamentary Assembly might also participate, should provide a political opportunity to highlight the importance of consolidating local and regional self-government in Moldova.

3. Take appropriate steps to support the efforts of the Viitorul Foundation with a view to forming an association representing regional councillors and possibly also local ones; indeed, the associations of local authorities are not truly representative and effective.

4. Transmit this report:

    - to the Parliamentary Assembly's Committee on the Honouring of Obligations and Commitments by Council of Europe Member States;
    - to the Venice Commission to be taken into account in its future activities relating to the Republic of Moldova.

In order to put items 1, 2 and 3 above into effect and keep track of discussions regarding the amendment of the laws on local government and on administrative subdivision of the territory (with specific reference to the problems over the former rajon of Taraklia and the Region of Gagauzia), the Bureau might ask the Rapporteurs of the Congress for Moldova to visit Chisinau during the summer to meet the representatives of the authorities concerned.

APPENDIX I - LIST OF MEMBERS OF THE DELEGATION OF THE CONGRESS OF LOCAL AND REGIONAL AUTHORITIES OF THE COUNCIL OF EUROPE INVITED TO OBSERVE THE LOCAL AND REGIONAL ELECTIONS HELD IN THE REPUBLIC OF MOLDOVA ON 23 MAY 1999

Members of the Congress of Local and Regional Authorities

Mr Joseph BORG (Malta),
Mr Moreno BUCCI (Italy),
Mr Claude CASAGRANDE (France), Delegation Rapporteur,
Mr Alan LLOYD (United Kingdom),
Mr George LYCOURGOS (Cyprus) Head of Delegation.

Members of the Council of Europe Secretariat:

Ms Artemizia CHISCA (CLRAE Secretariat),
Mr Riccardo PRIORE (CLRAE Secretariat),
Mr Serguï KOUZNETSOV (Secretary to the Venice Commission),
Mr Arkadï SYTINE (ADACS-LODE Department).

Experts for the Congress

Mr Philippe DE BRUYCKER (Belgium),
Mr Igor PELLICIARI (Italy).

Experts for the Venice Commission

Mr Kaarlo TUORI (Finland).

APPENDIX II - PROGRAMME of Council of Europe Delegation Visit to Moldova (May 22-24, 1999)

Saturday, May 22

9.00 - Meeting with the Members of Parliament Juridical Commission;

10.00 - Meeting with Mr Dumitru DIACOV, Chairman of the Parliament of the Republic of Moldova;

11.00 - Meeting with Mr Vasile NEDELCIUC, Head of the Parliament Commission for Foreign Policy, and members of Parliamentary Delegation of the Republic of Moldova to the Council of Europe Parliamentary Assembly;

12.00 - Meeting with Mr Nicolae ANDRONIC, First Deputy Prime-Minister of the Republic of Moldova;

15.00 - Meeting at the Central Election Board;

16.00 - Meeting with Mr Ion PADURARU, Minister of Justice of the Republic of Moldova.

Sunday, May 23

Election Observation

Monday, May 24

10.00 - Meeting with members of Local Public Administration Unit of State Chancellery of the Republic of Moldova;

11.00 - Meeting with representatives of Gagauz and Bulgarian minorities;

14.00 - Meeting at the National Relations Department;

15.00 - Meeting at Central Election Board;

16.00 - Press Conference

APPENDIX III - LIST OF MOLDOVAN DELEGATION - MEETING AT THE PARLIAMENT

May 22,1999

1. Mr Dumitru DIACOV, Chairman of the Parliament of the Republic of Moldova;

2. Mr Vasile NEDELCIUC, Head of the Parliament Commission for Foreign Policy, Head of Parliamentary Delegation of the Republic of Moldova to the Council of Europe Parliamentary Assembly;

3. Mr Vladimir Voronin, MP, Member of Parliamentary Delegation of the Republic of Moldova to the Council of Europe Parliamentary Assembly;

4. Mr Vladimir Solonari, Head of the Parliament Commission for Human Rights and National Minorities, Member of Parliamentary Delegation of the Republic of Moldova to the Council of Europe Parliamentary Assembly;

5. Mr Eugen Rusu, Head of Juridical Parliament Commission;

6. Mr Anatol Ciobanu, Member of Juridical Parliament Commission;

APPENDIX IV

May 24, 1999

Meeting at State Chancellery – 10.00 a.m.

    1) Mr Vasile Vartic – Head of Public Administration Section;
    2) M. Ion Mihăiluţă – Deputy Head of Public Administration Section

Meeting with Gagauz representatives – 11.00 a.m.

    1) M. G. Tabunşcic - Governor (Bashkan) of Gagauz Administrative-Territorial Unit ;
    2) M. D. Paşalî – Chairman of the Popular Assembly of Gagauz Administrative-Territorial Unit.

APPENDIX V - Final Declaration of the Delegation of the Council of Europe's Congress of Local and Regional Authorities invited to observe the local and regional elections which took place in the Republic of Moldova on 23 May 1999

In response to the invitation of the Ministry of Foreign Affairs of the Republic of Moldova, a Delegation of the Congress of Local and Regional Authorities of Europe (CLRAE), accompanied by two representatives of the Venice Commission, went to Moldova from 20-25 May 1999, in order to observe the local and regional elections which took place on Sunday 23 May 1999.

The Delegation visited 75 polling stations out of a total of 1,933. The polling stations visited by the Delegation were situated in all the newly established regions of the country ("Judets"), as well as in Gagauzia and in the former district of Taraklia.

    The Delegation made a number of specific remarks based on the observation carried out in the polling stations visited and on contacts which took place before, during and after the elections.

a. The Delegation underlined the paramount importance of these elections for the development of local and regional democracy in the Republic of Moldova;

b. Concerning the running of the electoral campaign, the Delegation was informed of a number of cases witnessed which seems to indicate that equality of access of candidates to the media had not been respected, notably in the Chisinau sector;

c. Concerning the voting procedure, the Delegation noted that, generally, in the polling stations visited, the voting process took place normally. The Delegation, however, wished to make the following remarks:

1. the presence of police officers, either in uniform and/or plain clothed, in some polling stations (particularly in towns);
2.  presence, in some polling stations, of persons who had not been foreseen within the electoral code (Article 55, paragraph 9) to participate in the voting procedure;
3. the simultaneous presence of a number of people in the booths, particularly in rural zones;
4. in polling stations, the ballot boxes did not correspond to the number of ballot papers distributed to voters and they were not always under surveillance to a sufficient degree;
5. on some occasions, too many people were gathered in the polling stations;
6. the number of persons registered on supplementary voters lists was too high (in some cases, up to 10% of the votes cast);
7. too many voting slips were considered void, even in some cases where the intention of the electors had been clearly expressed.

d. After the elections, the Delegation noted that, three days after the end of voting, the Central Electoral Commission had not yet communicated the final results of the elections. The Permanent Bureau of the Parliament duly informed the Parliament Commission on Control and Petitions of the Republic of Moldova of this. The Bureau of the Parliament asked the above Commission to proceed immediately to a verification of the respect of the Electoral Code by the Central Electoral Commission.

During its mission, the Delegation had several meetings which will allow it:

- to express an opinion, in co-operation with the Venice Commission, on the newly adopted laws on local public administration and on territorial subdivision,
- to finalise the report on the situation of local and regional democracy in Moldova.

This report will also include the results of the election observation and will lead to a Recommendation to be adopted by the Congress which will be forwarded to the Committee of Ministers of the Council of Europe.

APPENDIX VI

STATEMENT,

of the People's Assembly of Gagauzia.

On May, 6 1999 the Constitutional Court of the country examined the appeal of the Ministry of justice to recognize provision of article 20 (2) of the law of the Republic of Moldova "On special legal status of Gagauzia (Gagauz Yeri)" unconstitutional. According to this article the judges of juridical authority shall be appointed by the President of Moldova's Decree and by the proposition of the People's Assembly of Gagauzia, co-ordinated with the Supreme Council.

The Constitutional Court satisfied the claim of the Ministry of Justice and recognized provision of article 20 (2) of the law of the Republic of Moldova "On special legal status of Gagauzia (Gagauz Yeri)" unconstitutional. Bearing in wind that Decree of the Constitutional Court is final and carries no right of appeal the People's Assembly of Gagauzia considers necessary to state:

1. On December, 23 1994 the Parliament of country passed the law "On special legal status of Gagauzia (Gagauz Yeri)". It was after 5 months that it passed the new Constitution of the country. That time no one has contested provisions of the law "On special legal status of Gagauzia (Gagauz Yeri)" as it recognized the special status of autonomy.

2. In its Decree the Parliament charged the Government to present to the Parliament propositions how to bring the legislation of the country into line with this law. But during 4,5 years no one law of the Republic of Moldova was brought into line with the law on the status of Gagauzia.

3. Some interested forces in the country can't resign themselves with the formation of Gagauz autonomy and with its special legal status, what is indicated in article 111 of the Constitution of the Republic of Moldova. The first attempt of some forces to revise the special legal status of Gagauzia failed. But the second was successful. And it was the Ministry of Justice who did it. The Ministry of Justice had to execute the Decree of the Parliament and to bring the legislation of the country into line with the legal status of autonomy, but it began to revise the law “On special legal status of Gagauzia (Gagauz Yeri)”

4. Removal the representative and executive authorities of the autonomy from formation of the personal of juridical authorities is the grossest infringement of the constitutional status of Gagauzia, restriction of its rights and powers, destroyment of substance of article 1 (2) of the law "On special legal status of Gagauzia (Gagauz Yeri)", what confirms that “Gagauzia within its competence shall decide questions of the political, economical and cultural development in interests of all population”.

5. The Ministry of Justice instead of insertion of this proposal to the Parliament of country and co-ordination of this question with the Head and the People's Assembly of Gagauzia and looking for acceptable decision, not restricting the interests of autonomy, chose way of contempt and with the Parliament and with the authorities of autonomy.

6. The procedure of question's consideration in the Constitutional Court wasn't observed. The People's Assembly according to the law on the Constitutional Court and the Code on the constitutional jurisdiction is the subject of the Constitutional Court and must be informed in cases of examination of laws, decrees, acts of the Parliament, decrees of the President, decrees and instructions of the Government, international treaties of the Republic of Moldova if the matter is subject to the competence of Gagauzia. But neither the Ministry of Justice, nor the Parliament, nor the Constitutional Court informed about the forthcoming examination of the question concerned the autonomy. The sitting of the Constitutional Court was without representatives of the autonomy.

The Peoples Assembly of Gagauzia states that the attempts to revise the law "On special legal status Gagauzia (Gagauz Yeri)" are very dangerous precedent violating the political stability and agreement in region and in republic at whole. The People's Assembly expresses serious anxiety in connection with the further formation of Gagauzia as the constitutional autonomous territorial formation and intends to defend steadily the interests of autonomy attached in the law "On special legal status Gagauzia (Gagauz Yeri)", the Code of Gagauzia, to counteract any encroachment on constitutional legal status of autonomy and asks the President of the Republic of Moldova, the Constitutional Court, the Parliament, the Government for observance of article 25 of the law "On special legal status of Gagauzia (Gagauz Yeri)" - to become the guarantor of the full and unconditional realisation of the powers of Gagauzia.

It is guarantee of consolidation of the political system, territorial unity, peace and prosperity of our common house – the Republic of Moldova

Passed unanimously at the session of the People's Assembly of Gagauzia
May, 19 1999
Comrat town

APPENDIX VII - SECOND OPINION ON TWO LAWS OF THE REPUBLIC OF MOLDOVA

(second version of June 1999, updated on the basis of the texts finally adopted by the Moldovan Parliament)

by

Philippe DE BRUYCKER

Director of the Centre for Public Law
Université libre de Bruxelles
Expert to the Congress of Local and Regional Authorities
of the Council of Europe

1. INTRODUCTORY NOTE

For the second time, the texts of two laws have been submitted to me for an opinion: the law on administrative subdivision of the territory and the law on local public administration (local government), elsewhere referred to as the Area-based Administrative Organisation Act and Local Government Act. This opinion updates the one which I delivered in February 1998, so as to highlight the subsequent developments in the two texts. For convenience sake, the structure adopted for the first opinion has been retained. Numerous questions10 remaining open in the initial version of this memorandum are cleared up in the analysis of the final versions of the texts adopted by the Moldovan Parliament on 4 June 1999. Note that the successive versions of the laws delivered to me show quite wide variations in English translation.

II. OPINION ON THE LAW ON ADMINISTRATIVE SUBDIVISION OF THE TERRITORY

This very general statute requires but few comments, except as regards its effect on the situation of minorities.

. The Moldovan authorities are to be commended for setting out to establish strong regions; this represents a considerable advance over the current situation of the districts. At a purely formal level, it is perhaps regrettable that in section 10 of the law the legislator saw fit to depart from Article 110 of the Constitution by using the term "county" in place of "district". It can also be remarked that section 2 of the text, which merely recapitulates the terms of Article 109 (1) of the Constitution, should have been omitted.

. It would be of interest if the Moldovan authorities supplied figures for the number of communes before and after the enactment of the new law.
. The impact of the law on the fate of the Taraklia district, abolished through its incorporation into the new county (judet) of Cahul, prompts numerous comments owing to the presence of a Bulgarian minority in the Taraklia district. The question has been raised whether, in this matter, the Moldovan authorities have infringed Article 16 of the Framework Convention for the Protection of National Minorities11.

While it cannot be denied that the law in question has had a definite impact on the position as regards representation of the Bulgarian community in the new county, it is important to observe that Article 16 of the Framework Convention does not recognise a right of national minorities to form a self-governing territorial community. Only where measures altering the proportion of the population are intended to restrict the rights and freedoms that follow from the Framework Convention, are they contrary to this provision. The demarcation of the new Cahul judet incorporating the former district of Taraklia does not appear incoherent and comes under an overall operation to redraw Moldavia's internal boundaries in order to constitute a second tier of strong intermediate territorial entities. In the absence of evidence that the boundaries of Cahul were established with a view to restricting the rights of the Bulgarian minority, it seems difficult to argue that Article 16 of the Framework Convention was infringed by the Moldovan authorities.

It is important to note that the Moldovan authorities took into account the special circumstances of the Bulgarian minority within the new county of Cahul by inserting two specific provisions into the new law: section 64.2 institutes, within the executive of the county, a Vice-President responsible for matters pertaining to the Bulgarian minority, and section 107 provides for a second Sub-Prefect to be based in Taraklia. It remains to be seen whether these provisions meet the requirements of Parliamentary Assembly Recommendation 1201.

The Moldovan authorities furthermore assert that they carried out a consultation, as required by Article 5 of the European Charter of Local Self-Government, with the authorities of the Taraklia district before incorporating it into the county of Cahul. In view of the question's wide implications, it would seem advisable to ask the Moldovan Government officially to explain how this consultation was conducted and what remarks were made by the Taraklia district authorities.

. The impact of this law on Gagauzia raises complex legal questions which are difficult to answer because the texts lack clarity.

In sections 4.4 and 11.1 of the law, Gagauzia is regarded as a second tier of territorial authority on a level with the counties and the City of Chisinau. The meaning of section 11.2 does not meet the eye, for translation reasons. One wonders whether Gagauzia should really be regarded as a county, as would appear to follow from the law on local public administration. This interpretation is nevertheless contradicted by the fact that the status of Gagauzia was determined, under Article 11 of the Constitution, by the law on the special status of Gagauzia and the Legal Code adopted by the Gagauz authorities themselves. Irrespective of the fact that these statutes, in conjunction, may raise certain difficulties, attention should be drawn to the stipulation that the status of Gagauzia must be approved by a three-fifths majority of the Moldovan Parliament; this does not seem to have been the case with the law on administrative subdivision of the territory of the Republic of Moldova. Nor is it possible to grasp the purport of section 4.2 of the law, apparently an unnecessary provision in the light of Article 111 of the Constitution.

Thus, quite plainly there is in fact a complete legal imbroglio requiring clarification by the Moldovan and Gagauz authorities. A Council of Europe delegation will not be able to attempt a clarification of the issue without going to the country for special discussions with the Moldovan and Gagauz authorities. My own opinion is that ideally a conference on this issue should be organised in Moldova with the contribution of Moldovan experts and academics specialising in constitutional law.

III. OPINION ON THE LAW ON LOCAL PUBLIC ADMINISTRATION

It can be observed from the outset that the draft law represents a step in the right direction and a commendable effort to put the principles of the European Charter of Local Self-Government into practice. The law quite comprehensively regulates local and regional self-government. It happily contains provisions on property and finance, although these have still to be supplemented by other legislation. A provision on the right of territorial authorities to enter into associations for purposes of co-operation has been inserted into the text, applying to communes and counties alike and thereby filling a gap observed in the previous version.

The provisions on the powers of counties and communes appear to have been clarified in relation to the previous version of the text, which is pleasing to note, although there are still some areas of overlap between the two tiers. The law nevertheless has the shortcoming of failing to clarify the relations between local authorities and counties. Section 7.1 provides that the county “co-ordinates the activity of local councils with a view to ensuring public services at county level”. Section 59.a reiterates this provision while specifying the county's other functions. The expediency of giving counties general powers to co-ordinate the activities of the communes is questionable. If it is absolutely necessary to co-ordinate certain activities carried out by the communes, it would seem advisable for such activities to be assigned to the county itself; conversely, there should be safeguards against the county's encroachment on functions which are clearly to be performed by the communes. Only on that condition can section 7 be made compatible with section 8 which bases relations between counties and communes on the principle of autonomy.

Again, section 3 merely reproduces the text of Article 109 of the Constitution and should have been omitted.

With regard to local authorities in particular:

· Oddly, section 19 provides that the local council elects its chair whereas section 20 provides that the local council is convened by the mayor. Convening by its chair would seem more logical.

· Section 24.3 stipulates a majority of two-thirds of the council's membership for the adoption of the budget. This may result in certain deadlocks prejudicial to the administration of the commune.

· In sections 21.3 and 4 and in section 30.3, a time limit for calling elections should be fixed.

· There are quite numerous and detailed provisions on procedures for direct supervision of members of local authorities. Section 30 is particularly important in this respect. Its first paragraph should provide only for the dissolution of the council in serious cases and not allow suspension of its activities. In particular, the liability of the council as a whole to any sanction for exceeding its powers should be removed. Furthermore, as supervision of local authorities is purely concerned with the lawfulness of their actions (see section 112), it is hard to see how a court could repeal decisions because they “run counter to the general interests of [the] village (commune), city [or municipality]…”. Similarly, section 31.b should no longer offer the possibility of removing a councillor from office if he “is committing actions that run counter to [the] Constitution, laws or interests of local collectivities [or participates in the activities of unconstitutional bodies]” despite the confirmation by a judicial authority which is stipulated. As in section 43 for mayors, the provision should concern only the most serious cases.

· According to sections 12, 109, 111 and 112, supervision is carried out by the judiciary at the request of the prefect. Notwithstanding the comments made by the first group of experts in their May 1997 report, it is uncertain that a system of judicial supervision as sophisticated as the French model is the best solution in a new democracy where the aim is merely to build local self-government. Another solution might be to give prefects the responsibility of applying administrative supervision to local authorities, ensuring that the process is strictly limited, as prescribed, to review of lawfulness, and that it is accompanied by an appeal procedure specially designed for territorial authorities.

· Sections 38.i and 52.2 empower mayors to appoint and suspend local authority staff; this is a significant responsibility which should arguably be entrusted to the local assembly.

· Section 55, which vests the central authorities with sole responsibility for drawing up staff regulations, is a distinctly centralist provision; perhaps it would have sufficed to prescribe that the central authorities lay down the general principles for staff regulations and to give the local council authority to supplement the general principles with more specific provisions.

With regard to counties in particular:

It is particularly important to note that the counties have an assembly and a genuine executive body (the council president and the permanent office), the role of the prefect being extremely limited in the regional administration. Article 98, para. 2 fittingly specifies that “there are no relations of subordination between … the chiefs of the administration (prefects), on one hand, and the local government bodies on the other hand”. Section 65 simply provides that “at the sessions of the permanent office, … the prefect … can be present”.

· It seems insufficient that section 61 provides for only four mandatory county council sessions a year.

· The powers granted under section 67.g to the chair of the permanent office with regard to staff should instead have been entrusted to the permanent office as a whole.

· Section 69 calls or the same comments as 30 and 31.

· It is gratifying to note the deletion of the former section 98 of the draft law, under which territorial authorities could be compelled to align their budget to the central government budget. However, under section 99 it still stands that municipal and county councils shall approve their budgets after the adoption of the state budget, without the links between these acts being further specified except as regards the revenue under section 100. The exact implications of these two provisions call for some explanations. Questions might also be raised as to the supervisory authorities' apparent lack of specific controlling power over the budgets of territorial authorities. This gap is likely to create difficulties which could in future be used as an argument to justify reduction of local autonomy.

· Attention is drawn to the fact that the personal liability of local elected representatives (particularly in civil law matters) provided for in section 118 does not interfere with their freedom to perform the duties for which they were elected, and that provision should also be made for direct liability of territorial authorities as legal entities.

. With regard to Gagauzia in particular

The law on local public administration, as regards its impact on Gagauzia, raises questions of the same kind as the law on territorial subdivision (see above).

It is clear from section 2.2 that the law is indeed applicable to Gagauzia.

It is nevertheless arguable whether the Moldovan Parliament has thereby encroached on the region's powers. The Moldovan law on the special status of Gagauzia does indeed appear to provide that categories and boundaries of local authorities (section 12.3.a) and local budgets and local taxes (section 17.c) are for the region to establish. Gagauzia's own Legal Code has the same purport, while going into greater detail12.

It is far from easy to answer this question. In the opinion on the Legal Code of Gagauzia which it produced in 1998 following the discussions of a working group consisting of Mr Malinverni and myself, the Venice Commission guardedly put forward the opinion that apparently the region "possesses legislative power within the limits of sole jurisdiction, which means that Moldovan laws are no longer operative in such matters within the territory of Gagauzia. (…) This question, which is extremely important for gauging the extent of the Gagauz region's autonomy, ought to be clarified, because a reading of the Moldovan Constitution is liable to leave one in some doubt about the matter".

The Moldovan authorities, however, seem to consider that the conflicts should be resolved on the basis of the principle "lex specialis derogat generali", giving precedence to the law on the special status of Gagauzia. But this opinion carries little weight because the law on the special status of Gagauzia was enacted by a special majority and is thus part of the constitutional core so that its provisions are binding on the Moldovan legislator by virtue of hierarchy of legislation and not the aforementioned principle. Without claiming to offer a real answer to a question that requires detailed discussion with Moldovan and Gagauz experts, it seems that both the Moldovan and Gagauz authorities regard the powers of Gagauzia and Moldova as actually concurring, so that Moldovan laws are applicable in Gagauzia subject to the special provisions which Gagauzia may adopt. Thus we again come to the conclusion that there is still the need to specify the major principles governing the limitation of Gagauzia's autonomy and the exact position of this special status region in the state structure of Moldova. The creation of a post of Prefect to Gagauzia, whose powers may clash with those of the Governor of Gagauzia, illustrates the kind of conflicts which may arise in practice and which furthermore are causing difficulties at present between the national authorities and the Gagauz authorities.

1 A technical opinion on the laws is given in Appendix VII to this report. 2 The Foundation also took part in the election monitoring. 3 Granted, the Moldovan Constitution does not provide for such consultation, but it should also be observed that the Constitution was adopted before the enactment of the 1994 law on the special status of Gagauzia. These difficulties also apply to the relationship between the aforementioned law and the 1998 law on local public administration. 4 The Moldovan delegation in fact includes Mr Costantin Fucedji, Vice-President of the People's Assembly of Gagauz-Yeri; are we to assume that he was not chosen by its authorities? 5 Article 178, paragraph 1 of the Moldovan Electoral Code provides that questions relating to change in the territorial and administrative subordination of localities cannot be the subject of a local referendum. 6 In this connection, the representatives of the Venice Commission also remarked that according to the legislation in force at the time when the law was enacted, consultation of the population affected was mandatory before any measure to alter a region's administrative boundaries (Rules on matters relating to the territorial and administrative organisation of the Republic of Moldova, enforced under Law 741-XIII of 20 February 1996). 7 Section 107, paragraph 2 of the law on local public administration provides that in the judet of Cahul the prefect is assisted by two sub-prefects. 8 Its terms are that the organisation and operation of local government in the autonomous territorial entities shall be determined by the present law and by the laws defining their status. 9 As already mentioned, in 9 localities of the former Taraklia district the polling stations were not set up, and in Transnistria only 6 (for the referendum). 10 Such as the appointment of the commune secretary. 11 To recall the terms of this provision, "The Parties shall refrain from measures which alter the proportions of the population in areas inhabited by persons belonging to national minorities and are aimed at restricting the rights and freedoms flowing from the principles enshrined in the present framework Convention". 12 See section 52 for the administrative and territorial organisation of Gagauzia (paragraph 2), conditions governing the organisation and activity of local authorities (paragraph 3), determining the taxes and revenue of local authorities (paragraph 11), overturning the decisions of local authorities (paragraph 16), and also section 91 concerning local public administration.

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