Strasbourg, 19 September 2002
Monitoring Report 2002 CG/BUR (9) 29 revised
Report on the fact-finding mission in Moldova
(12-14 September 2002)
Bureau of the Congress (Strasbourg, 19 September 2002)
Rapporteur: Yavuz MILDON (Turkey)
I - THE MISSION
1. Following requests from OSCE with regard to the difficult situation in Gagauzia and papers submitted by Moldovan local government organisations, it was decided that the rapporteur on Moldova, Yavuz Mildon (Turkey, Chamber of Regions), should visit the country on a fact-finding mission.
2. The mission took place to Chisinau and Comrat from 12-14 September 2002. The mission to Comrat was organised as a joint venture with OSCE. Andrzej Klimcyk participated.
3. The programme of the meetings is appended. The Permanent Representation of Moldova with the Council of Europe, as well as Government and Parliament authorities in Chisinau must be thanked for having facilitated the organisation of the mission. The same goes for the Embassies of certain member States in Chisinau (France, Germany, Turkey, United Kingdom).
4. The rapporteur was accompanied by Ulrich Bohner, Deputy Chief Executive of the Congress, Professor John Loughlin, Cardiff University, and Dan Medrea, Consultant.
5. The present report draws preliminary conclusions from the mission and could be made public after having been presented to the Bureau.
6. Professor Loughlin will, in due time, present a more detailed analysis of a serious number of legal problems and ambigüities encountered during the mission.
7. The rapporteurs of the Parliamentary Assembly visited Moldova on 11-12 September, only in Chisinau. Contacts with the Assembly mission were established on 12 September (evening). In conformity with its mandate, the Congress mission focussed its attention on matters of local or regional interest.
8. It has not been possible to get a firm answer to the letter addressed to the Prime Minister for a dialogue at the mini-session in November. Indeed, although Prime Minister Tarlev and Deputy Prime Minister Iovv were on the initial programme of the visit, it turned out that they were not available to meet the Congress rapporteurs.
9. Upon request, certain other texts can be made available such as:
- memo of the National League of the Associations of Mayors of 16 July 2002
- memo handed out to the Congress on 14 September by Mr Serafim Urechean, Mayor General of Chisinau
- Constitutional Court decision on Law 764-XV of 05.03.2002 no. 12
- OSCE draft Agreement between the Republic of Moldova and Transnistria
- faction of the People’s Assembly of Gagauzia – 31 July 2002.
II - MAIN FINDINGS
At first sight, there would seem to be several positive elements concerning the development of the local and regional democracy in Moldova, at least on three issues: the forthcoming election of the Bashkan of Gagauzia, the draft Agreement between Moldova and Transnistria, and the creation of a working group to study the implementation of Congress Recommendation 110. Taking a closer look, however, they are overshadowed by a number of worrying trends, raising serious doubts with regard to the intentions of the President, the Government and the Parliament to consolidate and develop local and regional democracy in the country.
A. The forthcoming election of the Bashkan (Governor) of Gagauzia on 6 October next – for which the Congress received an invitation from the GPA – Gagauz Popular Assembly) could, as a democratic election, put an end to long months of imbroglio and doubtful or illegal action in this autonomous region.
However, this perspective is marred by at least three elements:
1. since the February referendum to depose the then Bashkan Mr Croitor, considered illegal by the Congress but accepted as legal by Courts of Justice in Moldova, several doubtful or illegal actions have occurred in the context of the separation of the legislative and executive branches of the Gaugazian political system of autonomy. The events which followed the referendum are extremely confused and each party gives a different account of what happened and each claims its actions were legal and the opponents were illegal. To some extent, as the Gagauzian Prosecutor informed the delegation, this is a result of ambiguities in the law. What seems to have occurred is the following. Given the extreme difficulties the Assembly and Executive had in working together, the Executive Board appointed by Mr Croitor first resigned to attempt to resolve the situation. This resignation was approved by 16 deputies (out of a total of 34). The Croitor faction claimed that 18 votes are necessary something contested by the anti-Croitor faction. The Executive then claims to have withdrawn its resignation. At this point Mr Croitor resigned and claims to have handed over powers of Chairing the Executive to the First Deputy Chair. At this point, the Assembly appointed its President as interim Chair of the Executive. This was subsequently reversed and the head of the security services in Gaugazia, Mr Mola was subsequently appointed. It was also claimed that several members of the Croitor Executive went on sick leave, making it necessary to replace them. In any case, a new Executive was appointed by the Assembly, including some members of the old Executive but with several new faces. Thus at present there seems to be two Executives (the Croitor Deputy Chair is still in his office although facilities such as telephone have been removed) in existence although these overlap. These events need detailed investigation and a legal opinion should be drawn up by the Congress to ascertain to what extent they are illegal. All of this has led to a situation of paralysis of the Gaugazian political system.
To summarize, the key elements are:
- the election of a new President of GPA might be acceptable but is contested by the previous President;
- after the resignation of the previous Bashkan, the GPA elected its new President as interim Chairman of the Executive Board, thus combining executive and legislative powers;
- this manoeuver having failed following action taken by the Gagauz Prosecutor, the GPA elected to this post the former Head of Security of the area. It would seem, however, that such a post is not foreseen in the legislation and that this function should normally be exercised by the Deputy Bashkan. Although he is present in Comrat and willing to exercise this fonction, the GPA considered that the Executive Committee had resigned previously and that he would therefore not be entitled to exercise these functions, although he was expressly appointed to it by the outgoing Bashkan. This election is therefore not recognised by OSCE;
- the GPA elected new members of the Executive Board, a task reserved to the Bashkan.
2. The candidature of the outgoing Bashkan was not registered by the Gagauz Central Electoral Committee, based on disputable legal arguments concerning the necessity to present 5000 signatures and/or a presentation by a political party or citizen initiative. The electoral law seems to be ambiguous, as even the Gagauz Prosecutor admits. It would seem however that no appeal will be lodged against this decision, as opposition circles claim that they have little confidence in the Courts.
3. Although six candidates have been registered, it clearly appears that the Moldovan President favours publicly one of them. Fears were voiced that this support would not only be in speeches, but also through excessive material support by government means, both from Chisinau and at local level. Fears have also been expressed concerning possible electoral fraud (stuffing of ballot boxes) and printing of voting sheets by one candidate). If such fears were to become reality, the eventual election of this candidate could seriously hamper democratic and, as a consequence, economic development of the region.
B. The draft Agreement between Moldova and Transnistria proposed by OSCE, Russia and Ukraine, could eventually offer a considerable perspective for solving the longstanding conflict between these two parts of Moldova through dialogue and in a peacful way, thus restoring the Government’s authority over the whole country and creating a high level of regional autonomy, perhaps even a federal structure (in a unitary State ?).
1. However, some well informed international observers seem to doubt whether such an Agreement will ever be accepted by the conflict parties, however desirable it may be for the international community.
2. In Gagauzia, fears have been uttered from all sides (including the Chair of GPA, close to the Chisinau Government) that the Agreement could lead to a situation that would be completely inacceptable for Gagauzia, if Transnistria were to become a federal entity and Gagauzia become a mere autonomous region within the other federal entity (rest of Moldova). Any solution that would give a minor status to Gagauzia as compared to Transnistria could not be accepted in Comrat. It would create the feeling that those who have taken violent action would be favoured compared to those who accepted a peaceful solution based on dialogue. The Council of Europe who had favoured the Gagauz autonomy should closely monitor these developments. Government sources in Chisinau denied any intention of using this process for diminishing the Gagauz autonomy.
3. Regardless of whether or not such an Agreement will be eventually adopted, the ongoing discussions will have the effect of putting on ice a development considered as very important by the Gagauz people: the integration of their status of autonomy into the Constitution of Moldova, thus lifting a number of existing ambiguities. This constitutional reform is at present still under scrutiny by the Constitutional Court and has been the subject of a well argumented opinion given by the Venice Commission in close co-operation with the Congress.
C. After adoption of Recommentation 110 by the Congress, the Moldovan Government has created a working group to discuss improvements to the local government legislation, including the laws that have been partly rejected by the Constitutional Court. Furthermore, it has asked the competent Council of Europe Directorate to provide legal assistance to this work.
If these elements appear to be positive, some doubts have also been raised:
1. The working group has been created in late August, at the very moment when the Government had learned about the Congress fact finding mission.
2. The decision to create the working group has not been made public (official monitor) and carries no serial number.
3. The working group includes few senior government officials, and only three representatives of local government. In particular, it does not include a representative of the most widespread local government association, the National League of the Associations of Mayors of Moldova, despite a request from its President to take part in the Group. The Congress rapporteur has therefore made it clear that the composition cannot be considered as guaranteering the formal consultation of local government, requested under the European Charter of local self-government for such reforms. Contrary to the opinion expressed by some Parliamentarians (Mr Misin), the Raporteur maintains that such consultation should be made through formal contacts between Government and, where appropriate, Parliament, and all interested local and regional government associations.
4. The time for reform is very short, as it should be adopted well before next year’s local elections (23 May 2003?), as citizens should have a right to be informed on the structures and competences of the local authorities which they elect. The working group has been asked to present proposals for 1st October 2002. This leaves little time for serious discussions or consultations.
5. It would seem that (on 24 May 2002?) the Parliament has adopted fresh legislation, creating again the disputed districts – as a non democratically elected structure (and dissolving the democratically elected judets or provinces). Whilst admitting that any sovereign country is free to abolish democratic regional structures and to create deconcentrated State structures at local level, such changes in local government structures are detrimental to democratic developments. This measure also constitutes, in the view of the rapporteur, a serious drawback in local democracy, and resembles previous structures of vertical command. The opposition fears that forthcoming changed in the composition of the Constitutional Court could lead to a situation where the Court would accept, in future, legislation that it had rejected in the past. The Congress rapporteur has not been informed about this new legislation by Government or Parliament representatives.
6. Without proper legal basis (after the Constitutional Court’s decision, the Government has – admittedly – recently created and appointed three or more subprefects with territorial competences in each judet, thus prefiguring the districts to be created. Local government representatives further indicate that these subprefects are already building up their local administration, without legal basis. In general, a kind of “witch hunt” is at present underway in the government structures, according to opposition sources.
7. The Government has failed to set up a representative local government council, a longstanding request from local government associations. The Congress favours this request for an institutional dialogue, regardless of political differences of opinion.
III - OTHER FINDINGS
1. Direct election of mayors
In the spirit of the local authority associations, the Moldova Constitution guarantees the right of the people to elect mayors directly (which they see guaranteed in Article 112, para 3). Furthermore, this key provision of the Constitution would not be changed following Article 142, para 2 of the Constitution.
We had to indicate to the local government representatives that this request could not derived from the European Charter of local self-government, but that of course the Moldovan Government and Parliament will have to respect their own Constitution.
Mr Mildon indicated that, on a personal basis, he was in favour of direct elections.
Mr Misin accused the Congress delegation of having recommended to Moldova direct elections of mayors.
Such a request does not appear in the Congress Recommendation.
2. Consultations with Parliament
The members of the Parliamentary delegation, including Mr Misin and Mr Neguta, President of the Moldovan delegation to the Parliamentary Assembly, indicated to us that it would not be sufficient to hold consultations on draft laws or on modification of existing laws with the Government but that in Moldova this was under the responsibility of the Parliament. The Parliament should therefore be a key partner in such consultations.
3. Hierarchy of norms
There seems to be a lot of confusion in the mind about the hierarchy of norms within the country. Whereas in Gagauzia many people pretend that any Gagauz legislation is preceeding over any Moldovan legislation and even the Constitution, some people in Chisinau, including the general Prosecutor, take the view that any Moldovan legislation preceeds over any texts concerning Gagauzia, including the statute of autonomy of Gagauzia which however has been adopted by the Moldovan Parliament with a qualified majority. These are exactly the questions that should be solved by the adoption of constitutional changes and a new statute for Gagauzia, based on the opinion given by the Venice Commission. It could be useful to have further discussions on these issues with the Moldovan authorities.
4. OSCE – excuse
At the meeting of the acting President of the Gagauz Popular Assembly, it was requested from OSCE to present excuses for false evaluation of the legal situation in Gagauzia. However, the OSCE representative was in now way ready to present such excuses.
5. Burgudji case
Mr Misin bitterly complained about the fact that Mr Burgudji was mentioned with his name in the Congress Recommendation. He indicated that Mr Burgudji is a “bandit”. Mr Mildon replied that in view of the presumption of innocence, Mr Burgudji should not be considered guilty as long as no condemnation by a court of justice exists. Mr Misin later admitted that they would be ready to co-operate even with Mr Burgudji, should he win the elections for Bashkan in Gagauzia.
6. Composition of the Congress delegation
On several occasions, the Congress delegation was accused of the fact that Mr Croitor was a member of that delegation. We had explained that the delegation was appointed by the Moldovan governmental authorities after consultation with local self-government and that there was a rule of 6 months after the loss of mandate. Moldova would therefore be free now to replace Mr Croitor in the delegation to the Congress or at least to take him out of the delegation. We recommended however that they might wish to wait for the outcome of the elections to the Bashkan before appointing a new member. We had also to make clear to them that the Moldovan authorities have the choice between appointing the Bashkan himself or a member of the Gagauz Popular Assembly.
7. Raïoni in Gagauzia
It can be seen from Appendix 4 of the Law of 27 December, it was not the Government’s intention to create districts or raïoni in Gagauzia at this stage. However, the Communist candidate for the post of Bashkan, Mr Tabunshik, has made the statement that he would, in case of victory, create raïoni also in Gagauzia.
8. The consultation of local government
Mr Misin indicated that he would raise formal complaints about the “false statement” included in the Congress Recommendation 110 about lack of consultations with the Parliamentary Assembly and with the Secretary General at his forthcoming visit to Chisinau. Mr Mildon indicated that this issue could also be raised at the mini-session and that the Congress rapporteurs stand ready to reply.
9. Political climate
The Congress rapporteur noted a difficult climate between the different political forces in Moldova. This could be detrimental to the perspective of solutions for the country’s important transition problems in many fields. More stability and more dialogue are badly needed. This requests openness and efforts from all sides.
IV - PROPOSALS FOR ACTION
1. The Congress should observe the upcoming elections for the Bashkan of Gagauzia, as massively as posible. Their conduction (and outcome) will be crucial for future developments in the region and in Moldova.
2. The Congress should request to be closely associated with the legal advice exercise with regard to Moldovan legislation – conducted by the Directorate of Co-operation for Local and Regional Democracy.
3. The Congress should prepare the mini-session (debate with the representatives of the Moldovan Government) with questions related to the present report and the legal analysis that will be provided by Professor Loughlin.
4. The President of the Congress should present key elements of the findings to the Parliamentary Assembly on 26 September next.
5. After the mini-session, and if possible before the end of the year, the Congress should organise the meeting announced in Recommendation 110 in order to promote political dialogue between the Government and local authorities in Moldova.
6. The Congress rapporteurs should continue their fact-finding mission to Moldova as often as possible.
PROGRAMME of the visit to the Republic of Moldova of the Rapporteurs of the Congress of Local and Regional Authorities of Europe (12-14 September 2002)