Report on regional democracy in Moldova - CPR (7) 4 Part II
Rapporteur: Nicolae RADU (Romania)
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EXPLANATORY MEMORANDUM
I. INTRODUCTION
Having adopted Recommendation 38 (1998) based on the report on local and regional democracy in Moldova and having forwarded it to the Moldovan governmental and parliamentary authorities, the Congress, in its Resolution 59 (1998), instructed "the Working Group on the situation of local democracy (in member countries) and the Working Group on regionalisation (and democratic stability in Europe) to continue examining local and regional self-government in the Republic of Moldova and submit a final report as soon as possible".
In 1999 and 2000, in order to implement this decision, the above-mentioned Working Groups organised several visits to Moldova1 and prepared a variety of technical studies, in co-operation with the Council of Europe's Commission on Democracy through Law (Venice Commission).
The first visit by Congress representatives after adoption of the aforementioned report took place during the first regional elections. These elections were held on 23 May 1999 together with the local elections, and were observed by a Congress delegation2.
Following these elections, 9 new regions (judeţe) were introduced, to replace the 37 existing districts (raioane) in accordance with the Law on territorial administrative organisation adopted by the Moldovan Parliament in November 1998 (see below). These regions were joined by the city of Chişinău, the State Capital, which is now an administrative entity comparable, particularly in connection with its powers, to a regional authority.
The various visits to Moldova by Congress representatives in 1999 and 2000 produced detailed information on the difficulties of implementing the above-mentioned Law and the Law on local public administration, which was also adopted by the Moldovan Parliament in November 1998 (see below).
This report will attempt to take stock of progress in the regionalisation process on the basis of the aforementioned legislation and information. In particular, the report comprises sections dealing with Moldovan legislation on regional democracy, concentrating especially on the autonomous territory of Gagauzia and the micro-region of Taraklia, created by the Moldovan Parliament at the end of 1999. Furthermore, the representative bodies of this micro-region are being established following the by-elections on 23 February 2000, which were also observed by a Congress delegation3.
Where local aspects are concerned, the need was felt for further information on the actual functioning of local authorities in Moldova. The Working Group on the Situation of Local Democracy in Member States accordingly decided to postpone finalisation of the report on local democracy, which will therefore be presented to the Chamber of Local Authorities at a later juncture.
II. THE PROCESS OF REGIONALISATION IN MOLDOVA WITHIN THE NATIONAL SOCIO-POLITICAL CONTEXT
1. The socio-economic context
It must be acknowledged that since 1990 Moldova has made real progress in the area of democratic institutions. On the other hand, the Moldovan economic has been in constant decline.
The International Monetary Fund (IMF) has placed Moldova near the bottom of the classification of European countries by wealth per head of population. The IMF considers that in some respects Moldova is in an even more critical socio-economic condition than Albania.
Agriculture is the main economic resource in Moldova. It is the only means of sustenance in the countryside.
Industry is concentrated in a number of towns and cities, including Chişinău, which has a higher standard of living than the rural areas.
Moldova cannot afford to pay its debts for energy imports, which means frequent cuts in electricity and gas supplies from Romania, the Russian Federation and Ukraine.
The economic difficulties are leading to situations liable to destabilise the State and its newly established democratic institutions. This applies in particular to crime and corruption, which are constantly increasing, especially in the towns and cities.
Against this background, Moldova also has a thriving black economy, and many young people are emigrating to Romania and western Europe (particularly after the opening of negotiations aimed at admitting Romania to the European Union).
2. The political situation
There have been several reformist governments since the 1998 general elections. In the light of the aforementioned economic circumstances and under international pressure (inter alia from the Council of Europe), these governments agreed with Parliament to introduce a series of practical reforms, particularly in the fields of local public administration, territorial organisation and privatisation.
However, in November 1999 the economic decline finally had the political effect of helping topple the reformist government led by Mr Ion Sturza. This event, coupled with the new Government's attitude, created tensions with the IMF and the World Bank, which saw these moves as a change of tack in Moldova's economic policy (at the time of writing this report, the draft laws on the 2000 budget and privatisation had been blocked).
The political instability is coupled with difficulties in relations between Parliament and the President of the Republic, a problem confirmed in the extremely tense debates on constitutional changes. Three bills tabled by different political parties are currently before Parliament: the first is aimed at making Moldova a presidential republic, the second at increasing the government's powers and the third at introducing a full parliamentary system, under which the president would be elected by the National Assembly.
The President of the Parliamentary Assembly of the Council of Europe, Lord Russell-Johnston, mentioned this problem during his visit to Moldova on 6 and 7 December 1999. H e made an urgent appeal to the President of the Republic and the Parliament of Moldova to agree on a compromise solution to the constitutional dispute on how to strengthen the executive. As the President of the Parliamentary Assembly pointed out, "The prolonged deadlock on the issue has been negatively affecting the overall political situation in the country, disturbing the functioning of its democratic institutions and preventing Moldova from dealing effectively with serious economic and social challenges".
A compromise solution on these various proposals is expected by May 2000.
In connection with the situation in Transnistria, which, because of the aforementioned conflicts, is liable to slip down the scale of national political priorities in the eyes of the Moldovan authorities, OSCE is continuing its efforts to identify a solution to the serious conflict between the central authorities and those in Tiraspol (the administrative centre of Transnistria).
The Committee of Ministers issued a decision at the beginning of the year to enable the Council of Europe to take part in these efforts, with a view to devising a special status for Transnistria acceptable to the above-mentioned authorities. Meanwhile, the "small feasible steps" policy proposed by OSCE is still considered the best strategy, because it should, in principle, lead to an otherwise inconceivable rapprochement.
Nonetheless, the Transnistrian authorities are systematically violating the agreements on which this policy is based, making it, in fact, extremely difficult to implement.
Therefore, despite the few hopeful signs emerging from recent agreements between the Transnistrian authorities and Chişinău on specific points, all in all the situation cannot really be said to have significantly advanced in this respect.
It must be stressed that the Transnistrian authorities are flouting democracy and constantly infringing human rights. They have permitted the installation of a wholly illegal free trade area to be set up, which they have an economic interest in perpetuating.
The concept of self-government is still on the agenda in talks between both sides. The Tiraspol authorities continue to interpret the word "self-government" as "self-determination", whereas the Chişinău authorities take this word to mean "self-administration".
3. The importance of the regionalisation process for the country's democratic stability
Moldova is a country of competing cultures and political identities. The collapse of the USSR changed the situation of the peripheries. One of the major problems following the demise of the former Soviet empire has been the linguistic meltdown, which has prompted several prominent authors to refer to the regional intricacies in Moldova solely in ethnic or purely ideological terms, accepting a clear-cut split between "a nationalist Chişinău” and a "pro-Russian Transnistria” or a "Gagauz South”. This has been used as a kind of justification for aggressive involvement by the minorities' surrounding homelands (Russia, Ukraine and Turkey).
The realities are, however, much more complex. There is a growing belief in Moldova that solutions to the current territorial and administrative disagreements are to be found through regional organisation and development of regional identities, while still maintaining the provisions of the Constitution of the Republic of Moldova as a unitary and democratic State.
Central Government policy does not appear to be interested in opposing the emerging regionalisation and should therefore be encouraged to consolidate this process as a means of securing a regional consensus on the elements which would best define the national interests, with regional and local self-government fostering a participatory democracy and active citizenship.
Before December 1998 it was more or less impossible to speak of regional development in Moldova, as the old "raioane" (second-level territorial administrative units) were too small to act as regional nuclei.
With an area of 33,700 km² and a population of over 4,3 million, Moldova inherited a rather unwieldy structure for territorial administration from the former Soviet regime. The approximately 40 "raioane" had primarily been used as control centres for the CPSU, and covered an average population of about 86.000 (although some of them had under 40.000 inhabitants).
An additional obstacle stemming from the old organisation of the country was the unequal distribution of economic units across the country. According to 1996 data from the Finance Ministry, only 4 of the former 37 "raioane" were financially independent of Central Government subsidies.
As suggested by the Congress in its Recommendation 38 (1998), the territorial administrative reorganisation of the country was supposed to be effective both in terms of economic growth and in building up a genuine system of regions.
III OVERALL ASSESSMENT OF THE REGIONALISATION PROCESS
1. Law on territorial administrative organisation
Moldova still has no special Law on regionalisation to provide the new regions with technical assistance in adapting to the various forms of transboundary and inter-regional co-operation or improving current relations with the central authorities, which some officials consider have not greatly changed since the old days of State paternalism.
The Constitution of the Republic of Moldova does not explicitly refer to regionalisation, as even Article 109 (decentralisation of the public services and local autonomy) only applies this principle to local government. Article 112 defines local self-governing authorities as elected local councils and mayors. Where the "raion" council is concerned, Article 113 provides only that this body is entitled "to co-ordinate the work of the city, town and village councils in order to ensure the provision of public services".
However, the first steps towards regionalisation were taken by the Law on territorial administrative organisation, adopted by the Moldovan Parliament on 12 November 1998.
As already pointed out in the introduction, this law confirmed the existence of villages and towns, and went on to introduce 9 new regions4 (judeţe) to replace the 37 old raioane. There are also the cities and larger towns (municipalities). Being the capital and also a municipality, Chişinău has a special status comparable to that of a region.
Article 4 (2) of this Law acknowledges the special status of "a number of localities in the south of the Republic which form a territorial administrative unit with a specific status defined by the organic law"5. We might assume that this applies to Gagauzia, in accordance with the Law on the special status of Gagauzia. Article 8 (1), which lists the towns holding municipality status, includes Komrat, the administrative centre of Gagauzia. Appendix 3 to this Law enumerates the localities belonging to the autonomous territorial unit of Gagauzia, whose territory breaks down into three counties.
2. The Law on local public administration
One of the advantages of this Law, which was adopted on 6 November 1998, is that it also lays down fairly full regulations on regional self-government. It very appropriately comprises provisions on powers, ownership and financing, although further legislation is still needed to flesh them out. A provision on the right of both local and regional authorities to form associations for co-operation purposes was included in the text, which makes good the omission noted in the previous versions of the laws.
Moreover, in summer 1999 this provision led to the creation of a new Association for the Development of the Regions through Local Self-Government (ADRLSG). The Congress helped with setting up this association and took part in the seminar which the latter organised in Chişinău on 31 July 1999.
This seminar was intended by many of the regional representatives elected at the latest elections (23 May 1999). The exact aims of the seminar were to:
a. take stock of the regionalisation process in western, central and eastern Europe;
b. publicise the CLRAE's draft European Charter of Regional Self-Government;
c. found the ADRLSG as an association representing elected representatives of all regions of Moldova.
It should be noted that the regions how have an elected assembly and a genuine executive (the President of the Council and the Standing Bureau), while the Prefect's duties are confined to administering the region. The relevant Law very appropriately stipulates that "there is no relation of subordination between the prefects and the local public administrative bodies", and that "the Prefect may attend the meetings of the Standing Bureau". This is a major improvement on previous legislation.
The Law on local public administration goes further than the Constitution in implementing the principle of local self-government and decentralising a large number of public services to the Councils of the Regions. In particular, Article 13 of this Law clearly delimits the powers of the local and regional councils, while Article 8 stipulates that relations between the local and regional public authorities must comply with the principles of local self-government, legality and co-operation with a view to solving common problems.
Therefore, the provisions of the Law on local administration relating to regional powers are more clearly specified than in the previous version of the text, which is a good thing, even if there is still some overlapping between the local and regional levels. On the other hand, the Law unfortunately fails to clarify relations between the existing local authorities and the new regions.
Moreover, it is doubtful whether regions ought to be given blanket powers to co-ordinate local authority activities. In cases where certain local authority activities need to be co-ordinated, it might be better to assign the said activities directly to the regions; conversely, responsibilities which should obviously be dealt with at local level should be shielded from any regional influence.
Where supervision is concerned, the provisions of Articles 196 and 197 deal with the attributions and functions of the Prefect as the Government representative in the region. Prefects are mandated to supervise the functioning of public services in all ministries, departments and other agencies of the Central State as devolved to the regional level.
It is obvious, therefore, that the development of the new regions is based on two separate authorities: the regional councils, which manage decentralised public services, and the Prefects, who control public services devolved to the regions. However, there have already been a number of disputes between these two regional authorities both on account of the vagueness of the Prefects' status and because the country has not yet had sufficient experience of democracy. These disputes are aggravated by tensions caused by the economic crisis which has taken on very worrying proportions in regions which have just been created.
More specifically, we might note that:
more than just four automatic meetings of the Council of the Region per year should be scheduled;
it might have been better to extend the staffing powers of the Chair of the Standing Bureau to the whole Standing Bureau;
although it was right to delete the old article of the draft enabling the regions to be forced to adopted their own budgets according to the State budget, the new Law still provides that Municipal Councils and Regions must approve their budgets after adoption of the State budget, without specifying the links between the two decisions, except in connection with receipts. Further information is needed on the exact implications of these two provisions;
the central supervisory authorities have no specific power to supervise the regional budgets. This omission might lead to difficulties liable to be subsequently used as an argument for reducing the regions' self-governing powers;
incurring the elected representatives' personal liability (particularly in connection with civil law) must not interfere with the free exercise of their mandate, and the regional authorities should also have some form of direct liability as legal entities.
3. Other legislation affecting the regions
During their repeated visits to Chişinău the CLRAE representatives were informed that since July 1999, following the adoption of the Law on the status of elected representatives at the end of 1998, the following texts had been adopted: the Law on local finances (which will come into force on 1 January 2000), and the Law on municipal property (which was published only recently).
It should be noted that the Law on local finances will also apply to the Regions, and will permit the authorities concerned to levy taxes. Again, the Law on municipal property (which also applies to the regions), entitles these authorities to own any property which they use in discharging their duties.
The draft Law on administrative proceedings has already been adopted in Parliament and is waiting to be promulgated by the President of the Republic. This Law will constitute effective application of Article 11 of the European Charter of Local Self-Government, because it will enable local and regional authorities to challenge unjustified administrative decisions by the central authorities6.
IV. THE SITUATION IN GAGAUZIA FOLLOWING THE ADOPTION OF THE NEW LEGISLATION ON SELF-GOVERNMENT AND TERRITORIAL ORGANISATION
1. Introduction
Parliament has found it quite difficult to reconcile the demands for recognition of independent statehood for Gagauzia with the concept of an indivisible Moldovan State. It was not until 1994, after the adoption of the new Constitution and renewal of Parliament, that a visible rapprochement finally took place between the Gagauz leaders and Chişinău. However, in order to achieve this, Chişinău had to accept new conditions (ie recognition of a national territory entitled to have its own legislative and executive bodies, enshrined in a Gagauz Statute). The Gagauz, too, had to abandon their demands for separate statehood, agreeing to pursue their ethno-territorial interests exclusively within the constitutional framework of a unitarian indivisible country.
This rule, which does not seem to have resolved all the problems, was only possible once moderate Gagauz leaders had prevailed over the hard-liners. According to the final arrangements, Komrat agreed to leave economic, foreign and defence affairs under the jurisdiction of Chişinău, while retaining the right to enter into trade relations with foreign countries and conduct international cultural exchanges.
The 1994 Law on the special status of Gagauzia defined the latter as a "national-territorial autonomous formation”, but also as an integral part of the Republic of Moldova7. A referendum was held in spring 1995 in order to incorporate in to the new ethno-territorial autonomous region those towns and villages, at least 50% of whose population were Gagauz, while those where this percentage exceeded 50 were automatically included. A "Bashkan" (Governor) and a "Halk Toplushu" (Popular Assembly) were elected in 1995 to represent the Executive and Legislative Chamber of the Region, where Communist leaders governed up to the local elections in April 1995. The "Bashkan" was automatically included in the Government, while the Gagauz leaders have complained that the one-chamber Parliament in Chişinău does not reflect their concerns and have demanded that the Moldovan President help secure seats for Gagauz deputies8.
2. The attitude of the Gagauz authorities to the latest reforms
In connection with the recent reforms in the fields of autonomy and territorial organisation, the Gagauz authorities have recorded their agreement with the process being promoted by the Government with Parliamentary approval, but they have pointed out that some of the provisions of the legislation on local public administration and territorial administrative organisation are liable to mar this very positive situation.
The provisions in question concern the installation of a Prefect to represent central Government in Gagauzia, responsible for ensuring compliance with national legislation in this Region.
In this connection, the Congress representatives noted the following opinions and facts during their interviews in Moldova:
1) the Governor (Bashkan) of Gagauzia, elected on 22 August 1999, considers that the Law on local public administration and the Law on territorial organisation contradict the Law on the Status of Gagauzia and the Legal Code on Gagauzia adopted in 1994. In his view this contradiction emerges specifically from the roles played by the Prefect in the region. He is convinced that a Prefect is unnecessary in Gagauzia because the Bashkan is a member of the Government and is therefore in an excellent position to fulfil the role assigned to the Prefect in the new judeţe.
The Bashkan considers that Gagauzia will never have a Prefect, but that if the Government were to persist and appoint a Prefect the situation could become explosive. Apparently, the Bashkan is intending to do his utmost to ensure that the Laws on local public administration and territorial organisation are amended to comply with Gagauzia's self-governing status under the Constitution. He feels that amendments are also needed to other Moldovan laws at variance with the rules set out in the Law on the Status of Gagauzia and the Constitution.
On the basis of these contentions, the Congress representatives began checking whether the introduction of the Prefect in Gagauzia really was incompatible with the extensive autonomy granted to the territory, and whether any clashes of jurisdiction were likely between the Prefect and the Region's self-governing bodies (including the Bashkan, who is also a member of the Government and of the Region's People's Assembly).
At all events, the latest news is that no Prefect has yet been appointed to Gagauzia.
2) In June 1999 the Secretariat of the Congress received a letter from the Speaker of the People's Assembly of Gagauzia on the decision by the Constitutional Court declaring Article 20.2 of the 1994 Law on the special status of Gagauzia unconstitutional. This decision removes the Gagauz authorities' entitlement to forward nominations to the President of Moldova with a view to the appointment of judges within their territory.
Following this decision, the Gagauz authorities are apparently increasingly concerned that the central authorities want to limit Gagauz autonomy (de jure and de facto) and treat Gagauzia as a region (judeţe) like any other.
More precisely, the Gagauz authorities are worried that the central authorities are whittling away at the special autonomous status secured for Gagauzia under Article 111 of the Constitution, by means, inter alia, of Constitutional Court decisions. Gagauz elected representatives apparently accuse the Constitutional Court of being highly politicised, an instrument used by the governmental authorities to get round the "supremacy" of the Law on the special Status of Gagauzia over other Moldovan legislation referring to local and regional autonomy.
Despite these difficulties, the 23 May elections in Gagauzia went off smoothly, although they only concerned mayors and municipal councils. The elections for the People's Assembly and the regional government took place on 22 August 1999. These elections were again properly run, and were also observed by the Congress9.
3. Between legal contradictions and political conflicts
In view of the foregoing comments, I consider (as already pointed out in the legal opinion prepared by Professor Philippe De Bruycker, presented to the Venice Commission on 16 October 1999 on behalf of the Congress) that all these problems stem from clashes between, on the one hand, the Moldovan and Gagauz statutes on the special autonomous status of Gagauzia (the 1994 Law on the Special Status of Gagauzia and the Legal Code on Gagauzia adopted by the People's Assembly) and, on the other, the Moldovan legislation on local autonomy and territorial organisation (the Law on local public administration and the Law on territorial administrative organisation of November 1998)10.
The Law on territorial administrative organisation regards Gagauzia as a second-level territorial authority like the other regions and the City of Chişinău.
We might reasonably wonder whether Gagauzia should really be treated as an ordinary region, as apparently posited by the Law on local public administration. This interpretation, which is surprising in the light of the Congress' analysis of the situation so far, would seem to reflect the position of the Moldovan central authorities. Under this interpretation Gagauzia is a straightforward judeţ, a second-level authority. This begs the question why this community has a special autonomous status within the unitarian State.
For their part, the Gagauz representatives claim that in conferring a special status on their region Moldova was initiating a federalisation process.
There is evidently a fundamental divergence of views here between the Moldovan and Gagauz authorities on the nature of the Moldovan State. While the legal texts are sometimes rather vague about the nature of the State, the uncertainly about this vital point is bound to have implications11 for the future replies to any legal questions which do not derive directly from the texts themselves.
The Law on local public administration also raises major difficulties as regards its impact on Gagauzia. Some of the provisions of this Law do appear to be applicable to Gagauzia, even if they do not simultaneously exclude the application of the Moldovan Law on the special status of Gagauzia.
This again begs the question whether the Moldovan Parliament has not encroached on Gagauz jurisdiction. While this question might appear slightly academic, it has become a burning issue since the Gagauz assembly adopted a text on local authorities and published it on 22 June 1999. Therefore, in order to secure an overall solution to the problems of relations between the Moldovan central authorities and Gagauzia, we must also determine the exact status of the rules which the Gagauz assembly is entitled to adopt, within the limits of its jurisdiction.
There is no easy answer to this question. According to Professor De Bruycker, the main problem is a clash of jurisdiction rather than conflicting rules. In the opinion on the Legal Code of Gagauzia which it produced in 1998, the Venice Commission put forward the idea that the region apparently "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".
4. Conclusions
The foregoing comments confirm that there is indeed a great deal of legal confusion surrounding this issue, and the Moldovan authorities must attempt to sort out the muddle12.
The problems arising out of the relation between the Moldovan Law on the special status of Gagauzia and the other organic laws on local administration and territorial organisation call for a political decision rather than legal clarification.
The legal confusion concerning the relationship between the various constitutional and legislative provisions on special autonomous status, local administration and territorial organisation cannot be cleared up on the sole basis of general legal principles. Neither the principle of lex specialis nor, in all likelihood, that of lex superior (which principles are mentioned in the relevant Opinion of the Venice Commission, October 1999) can be considered the sole solution to the problem.
Parliament should lay down, once and for all, possibly by a specific law on regionalisation, the institutional nature of Gagauzia's autonomy and its powers under the Moldovan legal system. A pronouncement from Parliament would facilitate interpretation of, or indeed an amendment to, the legislative provisions in question.
V. SOCIAL AND INSTITUTIONAL DEVELOPMENTS IN THE TARAKLIA COMMUNITY
The administration of the old district of Taraklia, feeling aggrieved that the central authorities in Chişinău had granted much greater autonomy to the Gagauz community, while the loyalty of the Bulgarian community to the principle of State unity and indivisibility had not been rewarded13, launched a campaign against the inclusion of Taraklia within a wider district ("judeţ") of Cahul. It should be emphasised that Taraklia was only separated from Cahul after border changes and administrative “gerrymandering” during the Soviet period; historically, all Bulgarian localities from Leova, Cahul, Komrat and Vulcanesti "raioane" had combined to form the historic District of Cahul, which had existed until 1945. In fact, the population of Taraklia (including Ukrainians, Russians and Gagauz) had merely wanted its administration to demand a form of administrative, rather than ethno-territorial, autonomy, as the latter status would be much more difficult to achieve or even justify14.
The reason behind the moves to achieve such administrative separation, however, was a complex interplay of economic, political and social interests that forged, by the end of 1998, a strong impetus for the existence of a separate territorial-administrative unit. This entity, whether it was to be a "judeţ" or a "raion", was supposed to protect the status of the Tvarditsa and Taraklia economic areas, which are strategically positioned along the border with Ukraine and enjoy excellent conditions for trading (including black market) operations. The social interests of the Taraklia inhabitants concerned the fact that they enjoyed a higher standard of living than the populations of both Cahul District and Gagauzia15. The Taraklia district administration usually explains this by the fact that most of the existing collective farms were maintained as they were (in contrast with most of the Cahul District, where collective farms disappeared as a result of land privatisation).
Finally, the local branch of the Communist Party argued that "Bulgarian culture had to be preserved”. It should be noted that according to the information gathered, the CPUS (the old Soviet communist party), which the local communist party had succeeded, had done its utmost to close all Bulgarian schools, cut the local Bulgarian community's links with its “historic Motherland” and prevent local Bulgarians from developing culturally and socially. Despite the determination of the ruling coalition in Chişinău not to allow the creation of a new “ethnic enclave”, international pressure16 and internal political motivations combined to force through an amendment to the Law on the territorial administrative organisation of the Republic of Moldova, leading to the decision to create a separate Taraklia District.
The Congress representatives were all the more surprised at this decision in that when they had visited the country prior to this development (in May and July 1999), all the chairs of the parliamentary committees concerned had expounded the many reasons for their opposition to the creation of this new judeţ for the Taraklia territories.
The Law setting up the Judeţ of Taraklia was adopted on 22 October and published on 29 October 1999. This Law therefore amends the Law on territorial organisation by adding a tenth judeţ to the nine existing ones and Gagauzia.
This region is now mainly populated by ethnic Bulgarians (64.2%). Molodovans make up 15.2% of the population, the rest being Russians, Ukrainians and other nationalities.
The main data on the new Taraklia Judeţ are:
. area: 64 400 hectares
. population: 46 400
. administrative bodies: 9 communes and 1 municipality (26 settlements)
. administrative centre: Taraklia, pop. 15 550.
From the administrative angle, it should be noted that the Taraklia community does not have a special status like that of Gagauzia, and that the only difference from the other nine judeţe is its size and number of inhabitants, which are much smaller in Taraklia than in the other nine regional entities and Gagauzia. Accordingly, the reference norms for this new Judeţ are laid down in the Law on local administration and the Law on territorial organisation.
During talks with the Congress representatives, the representatives of the communes of the new Taraklia Judeţ confirmed that the new entity would improve prospects for the area's economic development. This would enable the new Judeţ authorities to provide optimum protection for their people's interests. Some examples were provided as regards redistribution of receipts from agriculture (viticulture) and the industrialisation process, which can now be broached and developed in a situation of full institutional autonomy.
The mayors from the Taraklia area who met with Congress representatives after the adoption of the law creating the new Judeţ confirmed that it had not involved any ethnic considerations. On the other hand, the mayors did not deny that linguistic factors had been taken into account, but stressed that the Judeţ would henceforth implement a linguistic policy of integration into the Moldovan State, because the Bulgarian-speaking population was "patriotic" and very much attached to Moldova. They accordingly affirmed that Romanian would probably replace Russian in the long term as the lingua franca17. Bulgarian will (probably) remain the most common language at home and at work, but will be a "taught" language, like other foreign languages, and at official level at least, will never become a "lingua franca".
Where Bulgarian culture is concerned, the Taraklia representatives drew the CLRAE representatives' attention to the fact that by preventing the dispersal of the population the new Judeţ would certainly help this culture to survive.
The Taraklia population was invited to elect the representatives of their new Judeţ on 23 January 2000 (decision taken by the Central Election Committee on 12 November 1999). At these elections (to which the CLRAE sent an observer team18), the Taraklia population elected the Judeţ Council and the municipal councils and mayors19 of the ten communes in question.
Following the elections, the new government will appoint the prefect and sub-prefect, as in all the other judeţe20.
The holding of these elections is a matter of great satisfaction, being a clear sign of the Moldovan authorities' determination to respect the rights of national minorities. It also reflects their efforts to develop pluralist democracy at the regional level. It can now be hoped that the bodies of the micro-region of Taraklia will also commit themselves to respect the rights of the other ethnic populations residing in the judet and ensure their participation in public life at regional level.
VI. CONCLUSIONS
Broadly speaking, several facts confirm that the Moldovan governmental and parliamentary authorities have indeed reinforced their country's regional structures. Examples of measures to achieve this have been: the Law on Special Status for Gagauzia, the Legal Code of Gagauzia adopted by the Gagauz People's Assembly, the new territorial organisation, which now comprises genuine regions, the adoption of the Law on local public administration, which also concerns the regions, the adoption of laws on local and regional finances, local and regional property, the status of local and regional councillors, the organisation of new regional, general and by-elections, and the creation of a separate association for the judeţe and Gagauzia.
All this progress was made on the basis of the proposals put forward by the Congress in Recommendation 38 of May 1998. I think the Congress can genuinely congratulate the Moldovan authorities on the progress they have made.
However, I hope that the new legislative apparatus and the new structures set up on this basis will help Moldova put the progress made in regional autonomy into practice. The Congress representatives who visited the country noted that the regional institutions are still not really operational several months after the elections. The judeţe apparently still depend completely on the central authorities for funding, and some of them even lack a financial department. It should be noted that some regional councillors advocate amending the Law on local administration to reduce the powers of the prefects, and complain that the resources earmarked for prefects should have gone to the new judeţe.
Where Gagauzia is concerned, as already pointed out (see conclusions in Section IV.4), it is important that Parliament should clarify once and for all the institutional nature of Gagauzia's autonomy under the Moldovan legal system. Drawing on such a pronouncement from Parliament, it should be possible to interpret, or indeed amend, the conflicting legislative provisions.
Moreover, where the international aspects and exchanges of experience are concerned, the regional authorities should have the effective right and the means of forging solid links with communities in other countries and to join associations representing them at the international level.
For its part, the Chamber of Regions is pleased to welcome in the representatives of the new judeţe in accordance with the provisions of the Charter of the Congress.
APPENDIX I
Document CG/BUR (6) 16
BUREAU OF THE CONGRESS
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 ADMINISTRATION21,
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
during the meeting on 17June 1999
TABLE OF CONTENTS
I. INTRODUCTION
II. THE GENERAL SOCIAL, ECONOMIC AND POLITICAL SITUATION
1. Situation in Transnistria
2. Situation in Gagauzia
3. Situation in the former Taraklia district
III. LEGISLATIVE REFORM PROCESS IN RESPECT OF LOCAL SELF-GOVERNMENT: LAWS ON LOCAL PUBLIC ADMINISTRATION AND ADMINISTRATIVE SUBDIVISION OF THE TERRITORY
1. Introduction
2. The law on administrative subdivision of the territory
3. The law on local public administration
IV. THE LOCAL AND REGIONAL ELECTIONS AND THE REFERENDUM
1. Introduction
2. The referendum on extension of the powers of the President of the Republic
3. The election campaign
4. The poll
5. The results
V. CONCLUSIONS
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)22;
- 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 matter23.
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 delegation24.
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 referendum25.
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 statute26. 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 authorities27.
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 principle28. 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 day29;
- 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 the Council of Europe Delegation visit to Moldova (22-24 May 1999)
APPENDIX III
List of Moldovan Delegation
Meeting at the Parliament
22 May 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 the Parliamentary Delegation of the Republic of Moldova to the Council of Europe Parliamentary Assembly
3. Mr Vladimir VORONIN, MP, Member of the Parliamentary Delegation of the Republic of Modlova to the Council of Europe Parliamentary Assembly
4. Mr Vladimir SOLONARI, Head of the Parliament Commission for Human Rights and National Minorities, Member of the Parliamentary Delegation of the Republic of Modlova to the Council of Europe Parliamentary Assembly
5. Mr Eugen RUSU, Head of the Juridical Parliament Commission
6. Mr Anatol CIOBANU, Member of the Juridical Parliament Commision
APPENDIX IV
24 May 1999
Meeting at State Chancellery – 10.00 am
1. Mr Vasile VARTIC, Head of the Public Administration Section
2. Mr Ion MIHĂILUŢĂ, Deputy Head of the Public Administration Section
Meeting with Gagauz representatives – 11.00 am
1. Mr G. TABUNŞCIC, Governor (Bashkan) of the Gagauz Administrative Territorial Unit
2. Mr D. PAŞALÎ, Chairman of the Popular Assembly of the 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 6 May 1999, the Constitutional Court of the country examined the appeal of the Ministry of Justice to recognise provision of article 20 (2) of the law of the Republic of Moldova "On special legal status of Gagauzia (Gaguz 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 recognised provision of article 20 (2) of the law of the Republic of Molova "On special legal status of Gagauzia (Gaguz Yeri)" unconstitutional. Bearing in mind 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 23 December 1994, the Parliament of the country passed the law "on the special legal status of Gaguzia (Gagauz Yeri)". It was after 5 months that is passed the new Constitution of the country. That time no-one has contested the provisions of the law "on the special legal status of Gagauzia (Gagauz Yeri)" as it recognised 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 cannot 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 the special legal status of Gagauzia (Gagauz Yeri)".
4. Removal of 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, destroyal of substance of article 1 (2) of the law "on the special legal status of Gagauzia (Gagauz Yeri)", which confirms that "Gagauzia within its competence shall decide questions of the political, economical and cultural development in the interests of all the population".
5. The Ministry of Justice, instead of inserting of this proposal to the Parliament of the country and co-ordinating this question with the Head and the People's Assembly of Gagauzia and looking for an acceptable decision, without restricting the interests of autonomy, chose a way of contempt both with the Parliament and with the authorities of autonomy.
6. The procedure of the consideration of the question in the Constitutional Court was not 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 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 comptence 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 People's Assembly of Gagauzia states that the attempts to revise the law "on the special legal status of Gagauzia (Gagauz Yeri)" are very dangerous precedent violating the political stability and agreement in the region and in the Republic as a whole. The People's Assembly expresses serious anxiety in connection with autonomous territorial formation of Gagauzia as the constitutional autonomous territorial formation and intends to defend steadily the interests of autonomy attached in the law "on the special legal status of Gagauzia (Gagauz Yeri)", the Code of Gagauzia, to counteract any encroachment on the constitutional legal status of autonomy and asks the President of the Republic of Moldova, the constitutional Court, the Parliament, the Government for the observance of article 25 of the law "on the special legal status of Gagauzia (Gagauz Yeri)" – to become the guarantor of the full and unconditional realisation of the powers of Gagauzia.
It is a guarantor of the 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
19 May 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 questions30 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 Minorities31.
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 detail32.
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.
APPENDIX II
Document CG/BUR (6) 131
BUREAU OF THE CONGRESS
REPORT BY THE CLRAE OBSERVATION DELEGATION OF THE LOCAL ELECTIONS IN THE TARACLIA JUDET (MOLDOVA) HELD ON 23 JANUARY 2000
__________
Document prepared by the Congress Secretariat
Introduction
Upon receipt of an official invitation from the Ministry for Foreign Affairs of the Republic of Moldova to observe local election in Taraclia judet (county) on 23 January, a CLRAE delegation was sent to Moldova from 20 to 25 January 2000. The delegation, which was chaired by Mr Nicolae RADU, Rapporteur on local and regional democracy in Moldova (Romania, R), also comprised Mr George LYCOURGOS (Cyprus, L) and Mr Davide ZAFFI, expert (Regional Administration of Trentino Alto Adige, South Tyrol, Italy).
The delegation was accompanied by the CLRAE Secretariat, Mr Ivan Volodin.
Programme of the visit
The programme of the visit was drawn up by the Ministry for Foreign Affairs of the Republic of Moldova and included a number of meetings with the officials of the executive and legislative bodies of the Republic of Moldova, as well as the representative of local and regional government associations and national minorities. (See the detailed programme of the visit).
The CLRAE delegation wishes to express appreciation to the authorities of the Republic of Moldova for their assistance and co-operation during the course of observation.
The delegation had complete freedom to change its schedule and did so on the first day of its visit: it was decided to divide into two groups. The first stayed in Chisinau and continued with the meetings envisaged by the programme, while the other went strait away to Taraclia to meet local officials and to visit polling stations in the county.
In Chisinau, the delegation had meetings with the Mayor of Chisinau, Mr Stefan URECHEANU; Director of European Integration Department, Ministry for Foreign Affairs of the Republic of Moldova, Mr Oleg UNGUREANU; President of the Legal Committee, National Assembly of the Republic of Moldova, Mr Grigore RUSU, President of the Central Election Commission, Mr Dumitru NIDELCU; the representative of the Directorate of Public Administration; State Chancery Office, Mr Vasile VARTIC
In Taraclia, the delegation met the President of the Judet Election Committee, Mr Victor ARNAUT; the Secretary of the Judet Election Committee, Mr Pavel RAZGRADSKY, as well as the President of the Helsinki Human Rights Committee in Moldova, Mr Stefan URATU and the President of the Human Rights League in Moldova, Paul STRUTZESCU and some other officials.
Because of bad weather (the roads were snow-bound) the delegation was not able to meet the representatives of the Bulgarian Renaissance Foundation and the Association of Regional Authorities on 24 January.
The Head of the CLRAE delegation, Mr RADU who is also a Rapporteur on regionalisation in Moldova, had earlier visited the country and the Taraclia Judet and had had the opportunity to get acquainted with the situation and problems in the country when he took part, together with Mr Davide ZAFFI, in the Seminar on “Autonomy on Linguistic and Ethnic Basis” held on 2 – 4 December 1999. In the framework of the Seminar, Mr RADU had also met the members of the Parliament, Parliamentary Committee and officials from Ministries, mayors and councillors, representatives of local and regional authorities, including Taraclia and Autonomous Territorial Gagauz Yeri, as well the representatives of various NGOs and political parties.
New meetings provided the opportunity for the members of the delegation both to update the information on the state of local and regional democracy in the country and to get better acquainted with the situation in the Taraclia judet in a run-up period and on polling day.
Political background
The national political climate was controversial, as reflected in a discussion on constitutional changes that different political parties seek to achieve in the country. Just on the eve of the CLRAE delegation’s visit, Moldavan mass media carried reports on three conflicting bills drafted by opposing political parties: one seeking to turn Moldova into a Republic run by the President; another granting more powers to the Government, and still another seeking to establish a full-fledged parliamentary system, with the President elected by the House.
With practically no chances for the presidential draft to get the overwhelming support of the Parliament, it was not easy to discern any prospect for an end to the constitutional conflict.
This problem was referred to by the Council of Europe Parliamentary Assembly President Lord RUSSEL-JOHNSON during his visit to Moldova from 6 to 7 December 1999, who had launched a pressing appeal to the President of the Republic and the Parliament of Moldova to agree on a compromise in the constitutional conflict on how to strengthen the Executive. “The prolonged deadlock on the issue has been negatively affecting the overall political situation in the country, disturbing the functioning of its democratic institutions and preventing Moldova from dealing effectively with serious economic and social challenges,” stressed Assembly President
Following are some major points raised by the Moldavan officials the CLRAE delegation met during its visit to Moldova:
Mr Serafim URECHEANU, Mayor General of Chisinau, informed the CLRAE delegation about attempts to change the Mayor’s status. The representatives of the Communist Party and the Christian Democratic Popular Front in the Parliament have been seeking to introduce an amendment to the legislation that would altogether eliminate the term of the Mayor General of Chisinau and his official status as member of the Central Government. This amendment might lead to a situation where the Mayor will be brought, in terms of administration, under the supervision of the President of the Chisinau Municipal Council.
Mr Serafim URECHEANU expressed his apprehension about possible negative implications for local finance after the Bill on Public Local Finance was passed by the Parliament. According to his estimation, Chisinau received only 25 % of the revenues raised by the city while the latter amounts to 65 % of the revenues of the national budget. The city would have faced a budget deficit of 200 % if all its real needs had been met.
According to the Law on Property passed in 1999, high schools, maternity schools, hospitals and clinics as well as public services are part of the municipal property but they are still run by the central Government . Privatisation also falls under the Government’s competence.
The relationships between the Mayor of Greater Chisinau and the Prefect of the Region are considered to be good.
According to Mr Oleg UNGURANU, Chief of European Department of the Ministry for Foreign Affairs of the Republic of Moldova, the Central Government has been supporting the process of democratisation and regionalisation. By establishing the Tarclia Judet, it has made certain concessions to ensure regional stability. The Government has demonstrated its will to grant a broad autonomy to the Transnistria but the presence of the Russian Army blocks the progress on this issue.
The Republic of Moldova needs the support of the Council of Europe, to implement a democratic reform at local, regional and national levels;
According to Mr CIOBANU, member of the Juridical Committee of the Parliament, Moldova regards Transnistria as a region represented by the Russians, Moldavians and Ukrainians. At the same time, the Taraclia judet is not considered to be an ethnic region because there are more Bulgarians living in the Gagaus Yeri than in Teraclia. Gagauz Yeri is an exceptional case because it is populated by Christian Turks.
The members of the Parliament among whom was present the Chairperson of the Juridical Committee, Mr RUSU, stated that the reasons behind the establishment of the Taraclia Judet are not political but administrative, especially if one takes into account the fact that Bulgarians live as well beyond the boundaries of the Taraclia judet - in Cahul and the Gagauz Yeri. The creation of the judet will allow for the Government to provide assistance to the Bulgarian community in preserving its culture and language.
Both the elected and appointed officials agree that the use of a native language together with the official state language, i.e., Moldavian, will facilitate better interethnic relationships in the country.
We have been able to take note of an unprecedented economic crisis, which is also acknowledged by the Government. There are some villages absolutely deprived of any public services (shops, schools, medicaid centres). Most of the settlements get electrical supply for about four hours a day.
In the meetings with the President of the Central Election Commission, Mr Dimitu NIDELSU presented a general overview of the local elections in the Taraclia Judet and the activities undertaken by the Commission to prepare for them.
Legal framework
From the point of view of the legislation on local public administration, 1999 is considered by the Moldavian authorities to be the most fruitful year. The adoption of the Law on the institution of a Prefect who represents the Government at local level and supervises decentralised public services provided by the ministries was cited as a good example of this progress. Furthermore, the Government and the Parliament of the Republic of Moldova have undertaken to elaborate a package of necessary bills to implement a genuine local and regional autonomy that would comply with the European standards and values, as was made clear by Mr VARTIC, representative of the Local Government Department of the Chancery State Office. Some of them have already been introduced in the Parliament:
Bill on Public Local Finance
Bill on Public Property
Bill on the Statute of Elected Officials
Bill on Administrative Grievances
Amendments to the Law on Administrative-Territorial Organisation
The Taraclia judet was established on 22 October 1999, following the adoption by the Parliament of an amendment to the Law on Administrative-Territorial Organisation of the Republic of Moldova. The region is populated predominantly by the ethnic Bulgarians (64,2 %°). The Moldavians constitute 15,2 %, the rest are Russians, Ukrainians and some other nationalities.
The major characteristics of the newly established Taraclia judet are as follows:
Territory - 64,400 hectares
Population - 46,400 inhabitants
Administrative units - 9 communes and
1 municipality
(26 settlements)
Administrative centre - Taraclia
- 15,550 inhabitants
Number of voters registered - 30,251
Number of seats/ candidates:
- Taraclia judet council - 27/ 173
- Taraclia municipal council - 15/ 84
- Taraclia municipality mayor - 1/ 5
- Commune councils - 81/ 352
- Commune mayors - 9/ 35
Number of polling stations set up: - 32
It should be reminded that all but one village in the Taraclia judet had boycotted the May, 1999 local elections in protest of inclusion of the territory in the Moldovan-dominated Cahul County in the 1998 administrative-territorial reform.
To improve the organisation of the elections and to guarantee a free vote, the Parliament passed several amendments to the Electoral Code of 1997 by the law No 268-XIV of 4 February 1999. The Central Election Commission published a Guide and turned out ballot papers in three colours for every voter. Part of the ballot papers was published in Moldavian, but the majority was in Russian.
Electoral Commissions in all precincts were formed on a non-party basis, with a consultative vote accorded to the representatives of political parties. The Central Election Commission organised a seminar for all the election commissions in the judet.
All necessary measures were taken to ensure normal conditions for the elections, including those to guarantee non-stop electrical power supply to all the settlements. In the organisation of the elections, local authorities got the support of the central bodies.
According to the Electoral Code, the right to put forward the candidates in the elections has been granted to:
political parties and public organisations registered in accordance with the
legislation;
electoral blocs;
citizens of Moldova registered as independent candidates if they get the support of at least 2% of the voters registered in a respective constituency but not less than 50 persons for those who are standing for the mandate of a councillor; the candidates running for the post of a mayor should have the support of at least 5 % of the voters, but not less than 150 persons and not more than 10 000 people.
In compliance with the Constitution (Art. 38), the right to be elected has been granted to the citizens of the Republic of Moldova who are 18 years of age on election day (Electoral Code, Art. 124).
All in all, nine political parties and blocs took part in the elections. These were as follows:
Agrarian Democratic Party (ADPM) - 136 candidates
Communist Party of the Republic of Moldova (CPM) - 139 candidates
Social-Democratic Party (SDP) - 52 candidates
Socialist Party (SP) - 16 candidates
Christian Democratic Popular Party (CDPP) - 9 candidates
Centre Alliance of Moldova (CAM) - 100 candidates
Plai Natal Movement (PNM) - 56 candidates
Democratic Convention (DCM) - 34 candidates
Furnica-Speranta Union (FSU) - 53 candidates
Independents - 14 candidates
Run-up to the Election
On January 22, the CLRAE delegation visited 7 polling stations and met the President and Secretary of the Taraclia Judet Election Commission as well the Presidents and members of a number of Precinct and Territorial Election Commissions.
At polling stations visited, the delegation was able to see voter registers, which were in good order, and ballot papers just received. It was noted that some polling stations, in contradiction to the Law on the Use of Languages, did not have ballot papers in the Moldavian language though there were Moldavian-speaking voters on the registers
The interview with voters and representatives of political parties and candidates conducted in a run-up period and on election day, did not reveal any restriction places on citizens or political parties, wishing to take part in the election or stand up for the election to local representative bodies or chief executive posts. They seemed to be quite satisfied with the running of the election campaign, stressing that all parties enjoyed freedom to advertise and publish their views
The voters had been provided diverse information on the candidates to the communal and judet councils. Nevertheless, as our interviews indicated, they still had some difficulty in identifying their positions on the vital questions of political and economic development of the region.
Political parties or international observers before or during the elections registered no complaints with regard to the registration of candidates or the running of the election campaign. On the whole, their assessment of the election campaign was positive.
Observation of the elections
On election day, the CLRAE Delegation, diveded into two groups, visited 18 polling stations out of 32. It also observed the counting of the votes at two polling stations and at the Judet Election Commission.
Despite snow and cold, voter turnout was reported quite satisfactory: over 75 per cent of the electorate registered. The voting and counting procedures occurred in a calm, orderly and overall correct manner.
Precinct and Territorial Electoral Commissions performed professionally during the elections and tried to do their best to ensure full compliance of the electorate procedure with the law. The counting and announcement of the results at the polling stations were conducted in accordance with the legal provisions
The Taraclia Judet Electoral Commission is to be commended for the professional handling of the problems that arose during the polling.
Nevertheless, the CLAE delegation observes a number of irregularities. These were as follows:
Family voting;
Contradictory interpretations of electoral regulations in some polling stations;
Non-availability of ballot papers in the Moldavian language in some polling stations where Moldavian-speaking voters were registered;
Voting without identification papers by some old-aged persons, who were nonetheless recognised by the members of PCs
Intrusive behaviour of domestic observers with the work of the Precinct Electoral
Commissions and the voters at some polling stations.
Agitation placards still on the walls in some places on polling day.
It should be pointed out that such irregularities as family voting or ballots handed over to some people without identification papers but known to the members of a PC were rather due to local cultural features and not aimed at influencing the vote. There was also a high proportion of people registered on supplementary lists which was in the main the result of high mobility of the population, in particularly youths.
The observation of the elections in Taraclia Judet was done also by the Centre of Independent Observers of Local Elections in the Taraclia Judet, which included the Helsinki Human Rights Committee in Moldova and the Human Rights League in Moldova. These two organisations had about 70 observers spread around all the polling stations in the region. Domestic and international observers were present in all 32 polling stations.
OSCE Mission members did not observe the vote. The Helsinki Human Rights Committee was reported to have later issued a public statement claiming serious irregularities in the voting. However, the Moldavian Central Election Commission called these charges “highly exaggerated” and assessed the Taraclia elections as orderly and without serious improprieties.
Results of the elections
The CEC validated the Taraclia polls, stating that more than one third of the eligible voters cast their ballots to elect the county council, communal councils and mayors of the ten settlements. (According to Moldavian laws, a local poll is valid if at least one third of the voters cast their ballots). The final results of the elections made public by the CEC are as follows:
Number of votes (in per cent) / seats won by the parties in the Taraclia Judet Council, Taraclia Municipal Council and Communal Councils:
1. Communist Party 39/ 12 58/ 10 36/ 33
2. Agrarian Democratic Party 35/ 11 16.6/ 2 42.3/ 40
3. Plai Natal Movement 7.9/ 2 17.2/ 3 4.2/ 3
4. Centre Alliance 3.5/ 1 3.8/ 0 4.1/ 1
5. Democratic Convention 2.9/ 0 0 / 0 3.5/ 3
6. Furnica-Speranta Union 2.7/ 0 2 / 0 3.8/ 1
7. Social-Democratic Party 0.8/ 0 1.7/ 0 1.1/ 0
8. Socialist Party 0.3/ 0 0/ 0 0/ 0
9. Christian Democratic Popular Party 0 / 0 0/ 0 0.3/ 0
10. Independent candidates 7.2/ 1 0/ 0 2.8/ 0
The Taraclia Judet Council numbers 27 councillors and the Taraclia Municipal Council has 15 members. The electoral barrier is four per cent for all participants.
Following are the new elected mayors (name, settlement, party affiliation):
1. Stepan Solov - Taraclia town, communist;
2. Vladimir Terzi - Budei, agrarian;
3. Victor Ceban - Cairaclia, communist;
4. Nicolai Burgurov - Cortin, agrarian;
5. Piotr Mitkov - Tvardita, independent;
6. Vasile Voda - Vinogradovca, communist.
In four settlements - Albota de Sus, Albota de Jos, Aluat and Valea Perjei - where none of the candidates gained a simple majority, a second round was set for February 6.
The mayor’s office in these villages are claimed by four communists, two agrarians, an independent candidate and a representative from the Democratic Convention.
Conclusions
The CLRAE delegation welcomed the elections in the Taraclia Judet as a clear signal from the Moldavian authorities to respect national minority rights in the region and as part of their effort to further develop pluralist democracy at local and regional level.
The delegation took not that:
irrespective of their ethnical background or mother tongue, the citizens of the Taraclia judet have been able to express their political will in a free, secret and direct vote;
the Central Election Commission is to be commended for the effort to assist free elections and strengthen a democratic process by publishing an Election Guide, in co-operation with the International Foundation for the Electorate Systems (IFES);
interethnic relationships in Chisinau are good and the Moldavian-Russian relations have been improving;
the Moldavian authorities should be commended for preserving ethnic structures in the course of democratic reform;
mass media provided in general a satisfactory coverage of local elections, though there was a lack of information on voting procedure;
in compliance with the Electoral Code, young conscripts on active service in the Taraclia judet did not take part in the election, which provides a good reason to assess the election results as fair and objective;
basing on a comparative study of the population structure in the new county before 1995 and the present time, the delegation state that the ethnic balance of the population has not changed and the authorities respect resolution 1201;
both the Parliament and the Government undertake to comply with CLRAE Resolution 83/1999, and the step to establish the Taraclia judet goes to illustrate their desire to ensure peaceful co-habitation of ethnic majority and minorities;
there is a real desire and will on the part of the Moldavian authorities to integrate the republic of Moldova to the European structures, and to go ahead with democratisation and regionalisation processes as is reflected in the modifications introduced to the Electoral Code of 1999;
with reference to Resolution 59/1998 on local and regional democracy in the Republic of Moldova, it should be noted that there is a Association of regional and local authorities which is catering for 8 regions in the country;
a number of bills has been introduced to the Parliament of the Republic of Moldova which are aimed at strengthening real autonomy of the existing administrative entities and gradual decentralisation of public services and simultaneously providing financial resources to achieve these goals.
In conformity with the Constitution of the Republic of Moldova (Art. 13), the Moldavian language is a state language and the state recognises and defends the use of Russian and other languages spoken in the territory of the country.
Promotion of the Moldavian language (Romanian ) as a state language of the Republic of Moldova encounters difficulties because both the majority- the Moldavians - and the minorities – Gagauzes, Bulgarians, Ukrainians, Jews and Turks - have considerably been effected by the process of Russification, including forced changes in the ethnic structures of the population (it is to be noted that the Moldavian authorities have established a very flexible approach, accepting the use of mother tongues (Russian and Bulgarian) by the officers employed in Public Administrations.
Absence of classes teaching both the official and minority languages as well as lack of finance necessary for funding the training of teachers and education in general represents a major obstacle on the way to consolidating and strengthening democracy in the country.
Education and training is badly needed for elected and appointed local and regional authorities of Moldova. The growing demand in this field could only be met by a special training programme, which must be incorporated into joint programme of the Council of Europe and the European Union for Moldova.
The economic crisis affecting the Republic of Moldova undermines the processes of democratisation, regionalisation and privatisation. In this context, the Republic of Moldova needs economic and financial support, which should be aimed at facilitating trade exchanges with the EU countries.
APPENDIX I
PROGRAMME of CLRAE Delegation’s Visit to the Republic of Moldova
(January 21-24, 1999)
APPENDIX III
Document CG/BUR (6) 58
BUREAU OF THE CONGRESS
MONITORING OF THE LOCAL ELECTIONS IN GAGAUZIA (Republic of Moldova)
22 August 1999
Declaration by the delegation
Information Document
examined by the Bureau of the Congress on 3 September 1999
Final Declaration by the delegation of the Council of Europe’s Congress of Local and Regional Authorities of Europe which helped to monitor the elections of the Governor (Bashkan) and the People’s Assembly of the Autonomous Territorial Unit of Gagauzia (Republic of Moldova), which were held on 22 August 1999
In response to the invitation from the Ministry of Foreign Affairs of the Republic of Moldova and the request by the Gagauz authorities, and as part of its efforts to further the development of genuine local and regional democracy in the Republic of Moldova, the Congress of Local and Regional Authorities of Europe sent a delegation to the Republic of Moldova from 20 to 24 August 1999 to help monitor the elections of the Governor and the People’s Assembly of the Autonomous Territorial Unit of Gagauzia (ATUG), which were held on 22 August 1999.
The delegation was able to obtain information about the current electoral system and the run-up to the election, observed 11 polling stations out of 62 on Election Day and also took note of the first results.
In-depth discussions with members of the OSCE Mission who had carefully monitored these elections helped the CLRAE Delegation to carry out its work and confirmed the specific observations it had made.
There is good reason to be satisfied with the running of these elections, which the delegation considers to be of paramount importance for the development of pluralist democracy in the ATUG.
As regards the elections, the delegation noted that, on the whole, electors were able to vote freely, the ballot was secret and the standard of organisation of the ballot and the counting of the votes was satisfactory.
Furthermore, many improvements were noted in the voting procedure as a result of the comments sent to the Moldovan authorities by the CLRAE after it had monitored the local elections of 23 May 1999. These comments concerned the presence in polling stations of persons who had not specifically been provided for in the electoral code, the number of electors gathering in the polling stations, the number of people registered on supplementary lists, surveillance of the ballot boxes and publication of the election results.
Nevertheless, a few anomalies must be pointed out and a number of improvements can still be made. In particular:
1. there were contradictory interpretations of the electoral regulations;
2. the delegation received several accounts of the running of the electoral campaign and candidates’ access to the media which suggested that there had been unequal treatment;
3. defamatory material was disseminated;
4. police officers were present in all the polling stations visited by the delegation despite the remarks made by the CLRAE on this very subject following its monitoring of the local elections of 23 May 1999;
5. electors’ identities were not rigorously verified in accordance with the electoral code in some of the polling stations visited by the delegation;
6. improvements could be made to the handling of ballot papers by electoral officials and the counting of votes (especially regarding the exactness of the total number of votes cast, despite recommendations on this point having been made to the Moldovan authorities on several occasions by observers of other elections);
7. better training was needed for polling station officials and observers.
The detailed observations made by the delegation will be sent to Bureau of the CLRAE, which will examine them and decide whether or not they should be included in the final report on local and regional democracy in the Republic of Moldova that the CLRAE will submit to the Council of Europe Committee of Ministers after it has been adopted.
1 Visits by the Rapporteur on local democracy in Moldova: 21-24 May 1999, 30 and 31 July and 16 and 17 November 1999. Visits by the Rapporteur on regional democracy in Moldova: 2-5 December 1999 and 23 February 2000.2 The report on the observation of these elections by the CLRAE is reproduced in Appendix 1 to this report.
3 The report on the observation of these by-elections is reproduced in Appendix 2 to this report.
4 Balti, Edinet, Soroca, Orhei, Ungheni, Chisinau, Lapusna, Tighina, Cahul
5 The same approach is adopted in Article 4 (3), which apparently refers to Transnistria as "a number of localities on the left bank of the Dniestr".
6 The CLRAE representatives were informed that the European Charter of Local Self-Government had been incorporated directly into the Moldovan legal system (Moldova might here be said to be applying the monistic system vis-à-vis domestic/international law). As a source of international law the European Charter of Local Self-Government therefore takes precedence over domestic law and can thus be invoked by the territorial authorities in question before administrative or constitutional courts if they consider a given administrative decision or piece of legislation contrary to its provisions.
7 This Law secures the right for Gagauzia to separate from Moldova should it "decide to give up its independence in order to unite with any foreign State”.
8 It should also be noted that many Gagauz are dissatisfied with the current self-government policy inside the Region, complaining that their leaders are reluctant to carry through the reforms and that the use of the Gagauz language is still taboo. The scope for autonomy is still very limited, indeed embryonic, and many intellectuals and artists have been forced to leave the Region. Some representatives describe the regime in place in this small Moldovan province as a "regional dictatorship" and consider that it stifles any expression of democracy. They also claim that the Region's economic difficulties and the relative weakness of civil society is encouraging the regional leaders to maintain a kind of "running battle" with the central Government, which is the only way it has of keeping the people behind it and diverting attention from the real problems.
9 See press statement in Appendix 3 to this report.
10 The Gagauz elected representatives would also agree to a new mechanism to examine the conformity with the Moldovan Constitution of texts adopted in Gagauzia. Indeed the Constitutional Court itself might conduct such examination, but the People's Assembly would appear not to have been consulted on the matter. It is true that the Moldovan Constitution does not provide for such consultation, but it must be remembered that the Constitution was adopted before the adoption of the Law on the special status of Gagauzia in 1994. These difficulties also concern the relationship between the aforementioned Law and the 1998 Law on local public administration.
11 Particularly in connection with the nature of the powers (legislative or statutory?) to be attributed to the Gagauz representative assembly.
12 In this context I agree with the expert that it might be useful to organise a conference on this matter in Moldova, with the active co-operation of the Moldovan and Gagauz authorities and with contributions from national experts and academics specialising in constitutional law.
13 Declaration of the meeting in Taraklia, November 7 1998, addressed to the President, the Speaker of Parliament and all members of Parliament of the Republic of Moldova.
14 Declaration adopted by all the Taraklia district and local councillors, November 2 1998.
15 In fact, this economic advantage was why the Bulgarians and Gagauz did not demand immediate unification with Gagauzia, which highlights the social inequalities in southern Moldova.
16 The Venice Commission has raised the question whether or not the Moldovan authorities have infringed Article 16 of the Outline Convention for the Protection of National Minorities by incorporating the old Taraklia district into the Cahul region.
17 The Congress representatives met the former Vice-Minister of Justice, who explained, in connection with a legal framework for the national languages, that a 1989 Law stipulated that Romanian was the official State language, but that in order to cater for national minorities, the State language could be officially translated (this includes Russian). The final provisions of the Constitution provide that this Law cannot be amended before 2001 (seven years after the Constitution came into force).
18 The observation report is reproduced in Appendix 2.
19 All the villages except one in the Taraklia Judeţ had boycotted the May 1999 local elections in protest at the incorporation of the Judeţ territory into Cahul county, with its Moldovan ethnic majority, as provided for in the 1998 reform of territorial administration.
20 The Moldovan prefect represents the government, not the State and its continuity as in France. Therefore, prefects are replaced at every change of government.
21 A technical opinion on the laws is given in Appendix VII to this report.
22 The Foundation also took part in the election monitoring.
23 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.
24 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?
25 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.
26 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).
27 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.
28 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.
29 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).
30 Such as the appointment of the commune secretary.
31 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".
32 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.