Recommendation 38 (1998)1 on the situation of local and regional self-government in the Republic of Moldova
1. Recalling the visit to monitor the Referendum on the status of regional autonomy for Gagauzia in January 1995 and the monitoring of local elections in the Republic of Moldova in spring of the same year;
2. Having taken note of the findings of the expert delegation sent by the Council of Europe to the Republic of Moldova in May 1997 to assist in the drawing up of bills on regional planning, local government and local elections;
3. Having sent a delegation made up of its
· two co-rapporteurs, Mr Lycourgos (Cyprus) and
· Mr Muller (France), a consultant and a member of the Secretariat, from 4-6 December 1997, and taken note of their report;
4. Welcoming the ratification by the Moldovan parliament of the European Charter of Local Self-Government on 1 July 1997 and anxious to ensure that the Charter’s principles are fully implemented in the country;
5. Bearing in mind the interim report prepared by its two co-rapporteurs on the situation of local and regional democracy in the Republic of Moldova, examined by the Chamber of Local Authorities and the Chamber of Regions;
6. Having taken note of the opinion prepared by Mr de Bruycker, consultant, on the most recent versions of the bill on local government and the bill on regional planning of the Republic of Moldova, both of which have been submitted to the parliament;
7. Considers it necessary forthwith to address the following considerations and recommendations to the parliamentary and governmental authorities which will emerge from the forthcoming parliamentary elections in the Republic of Moldova:
7.1 Regarding the local authorities’ democratic basis
7.1.1 States that the present situation, in which 92 local authorities – accounting for 10% of Moldova’s local authorities but representing a large share of the population nonetheless because they include the capital, Chisinau, and other major cities – are deprived of any democratic representation in the form of a local council or a mayor, is incompatible with Article 3.2 of the European Charter of Local Self-Government;
7.1.2 Considers that this situation, resulting from the fact that the minimum turnout of 50% was not reached in both rounds of the local elections, in spring 1995, should have been resolved as the result of a decision of the Constitutional Court of 6 November 1995, calling for the unconstitutional rule whereby the government appoints the mayor if the turnout is less than 50% to be amended within 4 months and the legal consequences of the provisions of the law declared unconstitutional to be notified;
7.1.3 Regrets that, although the electoral law was amended within 4 months, in accordance with the instructions of the Constitutional Court, two years after this amendment, 92 towns and municipalities still find themselves without democratically elected local councils;
7.1.4 Recommends that the Moldovan government and parliament organise local elections in the 92 towns and municipalities deprived of elected without delay.
7.2 Regarding the supervision of local authority activities and institutions
7.2.1 Recommends that all forms of controls on expediency (contesting decisions and elected representatives alleged to be acting against the public interest) be abolished and that administrative supervision be confined to ensuring compliance with the law in accordance with Article 8 of the European Charter of Local Self-Government;
7.3 Regarding the municipal secretaries, who are currently appointed by the Government, recommends that the Moldovan authorities adopt a statute in accordance with the principles of administrative independence provided for under Article 6 of the European Charter of Local Self-Government.
7.4 Regarding local finances
7.4.1 Notes that the present situation is not compatible with Article 9 of the European Charter of Local Self-Government, particularly in view of the extreme paucity of local authorities’ own resources and the lack of clear and transparent rules on financial transfers to local authorities;
7.4.2 Recommends that the Moldovan governmental and parliament pass a law on local finances honouring the commitments entered into on ratification of the European Charter of Local Self-Government and abiding by the opinions of the Council of Europe’s experts on the subject.
7.5 Regarding regionalisation
7.5.1 Notes that the present situation, with 37 districts, 4 municipalities outside the districts, and the autonomous region of Gagauzia, does not meet the standards of regional self-government applied in western Europe, particularly in view of the fact that the executive body is controlled by the state authorities and is not accountable to an elected council;
7.5.2 Welcomes the determination of the Moldovan government to set up 8 new regions which, along with the city of Chisinau, would replace the 37 districts, thereby equipping the country with a modern system of regional government based on the fundamental principles of the draft European Charter of Regional Self-Government;
7.5.3 Welcomes the political consensus among Moldovan associations of local authorities concerning the regionalisation project;
7.5.4 Recommends that the Moldovan parliament adopt the bill on regional planning tabled by the government.
7.6 Regarding transfrontier co-operation
7.6.1 Welcomes the commitment expressed by the government and the associations of local authorities towards encouraging transfrontier co-operation between local and regional authorities;
7.6.2 Recommends that the government and the parliament adopt the necessary measures – either as part of a general law on local self-government or through a specific law – to establish a legal framework governing transfrontier co-operation between local and regional authorities based on the Outline Convention of the Council of Europe and the protocol to it.
7.7 Regarding the local government and regional planning bills tabled before the parliament
7.7.1 Welcomes the generally high standard of the text, which covers both local and regional authorities and represents a major step towards setting up an institutional framework for local and regional democracy in accordance with the principles upheld by the Congress;
7.7.2 Recommends that the Moldovan parliament adopt these bills as quickly as possible while taking account of the following proposals aimed at making them clearer and fully compatible with the European Charter of Local Self-Government:
– clarify the terminology used in the bill on the organisation of local and regional authorities, particularly as regards the term "district", with reference to the opinion set out in the appendix to this draft;
– take account of the opinion on the bill on local government also set out in the appendix, concentrating on the following points:
• clarifying the functions of communes and municipalities on the one hand and districts on the other to avoid the overlapping of responsibilities;
• establishing the right of local authorities to co-operate in accordance with Article 10 of the Charter;
• restricting the possibility of dissolving local councils, which should only be considered for very serious cases where the council cannot function or is incapable of functioning;
• confirming supervision over local authorities to a review of lawfulness by doing away with "administrative and budgetary supervision" and above all preventing the authorities from taking account of the "general interest of the citizens", which amounts to supervision of expediency and is therefore contrary to the Charter;
• seeing to it that the power to appoint and dismiss municipal and district secretaries falls to the local and regional authorities and not the government;
• deleting Section 98, which provides for limits to financial independence, in breach of the Charter;
• giving details, in Section 88, of the objective criteria to be used to calculate financial transfers to local and regional authorities so as to avoid arbitrary decisions;
• clarifying the functions of the "administrative commission" referred to in Sections 117 et seq with a view to ensuring that it does not encroach on the powers d regional authorities;
• deleting Section 121, which states that conflicts between the central authorities and the local and regional authorities shall be settled by the government and is contrary to Article 4.4 of the Charter.
8. In order to complete the legislative and administrative framework necessary for the development of local and regional self-government
8.1 Recommends that the Moldovan government and parliament draw up and pass a law on local finances, a law on the property of local and regional authorities, and a law on local government officers.
9. Regarding the training of local and regional government staff
9.1 Recommends that the Committee of Ministers release the funds needed to help the Moldovan authorities to set up special training for local and regional government staff with the assistance of ENTO.
10. Regarding the autonomous region of Gagauzia
10.1 Welcomes the fact that the new status of the autonomous region of Gagauzia has made a decisive contribution towards settling the political conflict in this region, thanks to the restraint both of the Moldovan authorities and of the regional authorities;
10.2 Considers it necessary for certain provisions of the Statute to be revised, particularly those relating to the definition of the powers and responsibilities of the autonomous region;
10.3 Therefore welcomes the fact that the European Commission for Democracy through Law (the Venice Commission) is working in co-operation with the Congress to provide the Gagauz regional authorities with assistance in drawing up the "Legal Code of Gagauzia" provided for under Article 12 of the statute on the special legal status of Gagauzia.
11. Regarding the situation in Transnistria
11.1 Regrets the fact that the 1995 agreement between the Moldovan government and the Prime Minister of the Russian Federation providing for the gradual withdrawal of the Russian 14th Army from Transnistrian territory has not been ratified and implemented so as to enable a fair statute on the autonomy of the Region to be drawn up;
11.2 States its willingness to assist in the drafting of a Statute on autonomy for the Region of Transnistria, once the political situation so permits and provided that the Moldovan authorities so request.
Opinion of the two bills of the Republic of Moldova on local and regional self-government
It would seem that considerable progress has been made since the previous versions of the texts on the organisation of local and regional authorities and on local government were submitted and dealt with in an expert report by the Council of Europe in May 1997 and that many of the observations made at that time have been taken into account. The fact remains that quite important comments still need to be made concerning the latest versions.
II. Opinion on the bill on the organisation of local and regional authorities
The bill on "the organisation of local and regional authorities" is clearly a general text which deals with the various levels of local and regional authority in the Republic of Moldova whereas the bill on "local government" deals with their organisation. The title of the second text should perhaps be amended so as to give a better idea of its content and, in particular, to make it clear that it is complementary to the first bill.
It is regrettable that the concepts used in Moldovan law do not make the necessary clear distinction between decentralised state authorities and entirely self-governing local authorities. The fact that Part XI of the bill on local government also covers arrangements for the "sectors (areas)" when these are clearly local offices of the State authorities (or even subdivisions of the municipalities) reflects this. The concept of "local and regional administrative bodies" used to describe the villages, communes, towns, municipalities and districts does not fully reflect their independence unless this is simply a question of poor translation. The Moldovan authorities might do better to use the term "local authority" so as to avoid any confusion with the local offices of the State authorities. Furthermore, the distinction between villages, communes, towns and municipalities seems to be just as complex as lacking in any real legal effect. It might be suggested therefore that, in order to simplify matters, a single generic term could be used to cover all the basic local authorities.
— Section 2 of the bill, which simply reproduces Article 109 of the Constitution, should be deleted. Moreover, unless there has been an error in the numbering of the Articles of the English version of the Constitution sent to me, I cannot understand why Section 1 does not refer to Article 109 but only to Articles 110 and 111.
— The meaning of Section 7, paragraph 2, according to which "The municipality may include within its structure independent local and regional administrative bodies" is not clear. Unless this stems from a mistake in translation, there is some confusion between Section 7, paragraph 4, under which "Municipalities may be divided into sectors", and Section 9, paragraph 3, according to which "Districts can be divided into sectors (areas)". The term "sector" should be reserved for only one of these levels of local authority. Part XI of the local government bill on the "sector or area" only serves to add to the confusion of the reader. What is needed is a clear explanation of what exactly is covered by the notion of a sector.
— Section 9, according to which "the district is a local administrative entity made up of villages (communes), towns and municipalities – which are the basic building blocks for the organisation of local and regional authorities in the Republic", is a particularly muddled clause. It would seem that the district is the second tier of authority in Moldova, falling between the lowest level and the local level. The aforementioned Section raises the question of what autonomy the district has with respect to the basic authorities from which it seems to emanate. Considering that the intention seems to be to make the district an authority in its own right, as confirmed in Section 7 of the local government bill, Section 9 should be amended to state simply in paragraph 2 that the geographical boundaries of districts shall be based on those of villages, communes, towns and municipalities. The same comment can be made regarding Section 10, which is probably intended for Gagauzia; this should be expressly stated to make the text more understandable.
— Assuming that this is not a mistake in translation, a question mark can be put over the use of the term "district" to describe the intermediate tier of local authority. This term is rarely used [at least in French] and evokes [in French] the idea of a decentralised state authority1; accordingly, the Moldovan authorities could be questioned on the meaning of this term in Moldovan and possibly advised to use the word "region" instead, all the more so because this word is used to describe the elected district authority referred to as "conseil régional" (or regional council) in the French translation of the local government bill.
— Section 16, paragraph 2, which provides that a village can only be described as such if it has a population of 1 000 or more, conflicts with Section 14, paragraph 1 of the local government bill, which states that the local council for places with a population under 1 000 shall have 7 members.
III. Opinion on the local government bill
Right from the outset it should be said that the bill is along the right lines and represents an admirable effort to implement the principles of the European Charter of Local Self-Government. Some provisions, such as Sections 8, paragraph 2, 9 and 86, paragraph 2, are obviously modelled directly on the Charter. The bill covers local and regional self-government quite comprehensively; it is particularly satisfying that it contains provisions relating to property and finance, even though they still have to be supported by further legislation.
— Paragraphs 1 and 3 of Section 2, which simply reproduce Article 109 of the Constitution, should be deleted.
— Section 13, paragraph 3 is already covered by Section 9 and should be deleted.
— It should be checked whether the "local council" referred to in Section 6 is the same as the "administrative commission" referred to in Section 117 and, if so, the same terminology should be used if this is not just a translation problem. Furthermore, it is not clear why this provision insists on "co-ordination of the activity of the local councils with a view to providing public services benefiting the region and municipality", nor exactly what is meant by this: does this mean co-operation between municipalities, or the provision of regional services, bearing in mind that it cannot cover the provision of municipal services, which is of course the responsibility of the municipalities. It is also striking that the bill contains no mention of the right of local authorities to form associations to co-ordinate activities. This represents a shortcoming with respect to the European Charter of Local Self-Government.
Regarding the basic local authorities in particular:
— The attempt to define the functions of the local authorities in the law establishing them should be saluted, because, as the recent work of the group monitoring the implementation of the Charter has shown, this is very rarely done. However, the functions of the basic local authorities and the districts are not always defined clearly enough and, above all, they overlap. For instance, both tiers of local government are responsible for "public hygiene", "health protection", "social problems and social welfare centres and institutions" and "social welfare and the upkeep of social welfare and health establishments". At the very least a clearer distinction should be drawn between the responsibilities of each tier.
— According to Sections 18 and 41, deputy mayors are appointed by the local council on the mayor’s proposal. It should be stipulated whether they must be selected from among the members of the local council or not. Under Section 41, deputy mayors are politically responsible to the council, by contrast with mayors. It should be checked whether the differential system thereby imposed on the local executive is coherent overall.
— It is odd that Section 19 provides on the one hand that the local council elects its chair and on the other that the local council shall be convened by the mayor. It would seem more logical for the council to be convened by its chair so as to emphasise that the chair can act as the counterweight to a directly elected mayor.
— The bill does not make it clear whether the mayor is directly elected by the people. This point should be clarified.
— Paragraph 2 of Section 24 requires that a 2/3 majority be achieved for certain decisions to be taken, assuming that this is not just simply a rule concerning a quorum. Attention should be paid to this issue because it may cause certain impediments which could hinder the smooth running of the local authority.
— It should be ascertained whether the time-limit stipulated in Sections 21, paragraph 5, and 30 paragraph 5, does in fact apply to the notification of elections and not just to the decision taken on the matter.
— The bill contains many detailed provisions on the forms of direct supervision over the members of local councils. Section 30 is particularly important in this respect. Paragraph 1 should only allow the dissolution of the council in very serious cases and should not establish the right to suspend its activities. It is particularly important to do away with any penalty imposed on councils in the event of an abuse of authority. Moreover, since the scrutiny of local and regional authorities is supposed to be confined to lawfulness, we cannot see how a court could be bound to set aside a decision on the ground that it was "not in keeping with the overall interests of the village, commune, town or municipality". Likewise, the possibility provided for in paragraph 6 of dismissing a councillor if he or she "violates the constitution or other rules, goes against the interests of the local authority or takes part in unconstitutional activities" should be withdrawn even though confirmation by a court is required. As in Section 43 on the mayor, the rule should cover only the most serious cases.
— There are just as many provisions relating to the supervision of decisions. Sections 26, paragraphs 2, 30, 109, 111b and, above all, 112 stipulate that this supervision is carried out by the courts at the request of the prefect. A more appropriate solution may be to entrust administrative supervision of the local authorities to the prefects, limiting this strictly, as stipulated in the Charter, to a review of lawfulness, combined with a special right of appeal to the courts for the local authorities. In addition to this, the notion of "administrative and budgetary supervision" used in Section 111.i. is too vague and should be clarified, particularly as regards how it differs from the review of lawfulness. Likewise, the meaning and scope of Section 123 should be clarified as regards the "supervision of the performance of the mayor’s duties".
— The meaning of Section 38.i. should be clarified in the light of Section 49.
— The status and the means of appointment of the local or municipal secretary should be reviewed on the basis of the fundamental principle that this senior official is indeed an organ of the local authority and that he or she should therefore be appointed and, where appropriate, dismissed by the local authority, even if it means that he or she has a status governed by the central authorities and the right to appropriate means of appeal.
Regarding districts in particular:
Generally speaking, we can only congratulate the Moldovan authorities on their decision to establish strong regional authorities, which represents a major step forward in view of the present situation of the districts. Particular emphasis should be placed on the fact that the future regions will have their own assembly and a genuine executive body (the chair of the regional council and the standing committee), since the role of the prefect in the running of the regions will be strictly limited. Section 109, paragraph 2 usefully stipulates that "there shall be no subordinate relationship between the heads of the state authorities (the prefects) on one hand and the local and regional councils and the municipality of Chisinau on the other". Section 61 simply provides that "the head of the state authorities (the prefect) may attend the sessions of the standing committee". Provided that it is clear that the prefect is not entitled to vote at these sessions, this provision does not undermine the autonomy of the region. However, it could be argued that the existence of a district administrative commission is enough to ensure that there is co-ordination between the state authorities and the districts.
— It is not clear why Section 55 insists on "the co-ordination of the activity of village (or communal) councils with a view to providing public services benefiting the region", nor exactly what is meant by this: does this mean co-operation between municipalities, or the provision of regional services, bearing in mind that it cannot cover the provision of municipal services, which is of course the responsibility of the municipalities? This provision should include a clause giving overall powers to the districts in line with the draft European Charter of Regional Self-Government.
— The existence of a secretary at district level prompts the same comments as that of a secretary at local level.
— Section 66 calls for the same comments as
— It is essential for Section 88 on financial transfers to the regions and local authorities to state explicitly that these must be carried out according to a number of objective criteria so as to remove any element of arbitrariness in the distribution of funds. Explanations should also be sought regarding the precise meaning of this provision.
— Section 93, paragraph 2 requires an explanation.
— Section 98 should probably be deleted. It is impossible to force the local authorities to adapt their own budget to fit in with the state budget without seriously undermining local self-government.
— The concept and the exact role of the "administrative commission" referred to in Section 117 et seq should be clarified. With respect to the local and regional authorities, this should only be a co-ordinating body, for it cannot take any binding decision concerning their activities without undermining their autonomy. Section 121, which states that "conflicts between the central authorities and the local and regional authorities shall be settled by the government", is not admissible.
— Care should be taken to ensure that the personal legal liability of local representatives (including civil liability) provided for in Section 132 does not prevent them from performing their duties freely. The law should also provide for a form of direct liability for local authorities as legal entities.