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Congress of Local and Regional Authorities of
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CG (9) 6
Part II
NINTH SESSION
(
Draft Report
on
the situation of local and regional democracy in Moldova
Rapporteur: Claude CASAGRANDE
(France)
and Yavuz MILDON (Turkey)
---------------------------
EXPLANATORY MEMORANDUM
A. SUMMARY AND CONCLUSIONS OF THE REPORT
1. In CLRAE Recommendation 84 (2000), the
Congress welcomed the progress made by the Moldovan authorities in strengthening
local and regional self-government in
2. In particular, the Congress congratulated the Moldovan parliament on setting up regional self-governing administrative bodies, which it considered to be a very important contribution to resolving the problems of integrating the peripheral regions into the social, political and economic life of the country. The creation of new regions was welcomed as a first step in this direction.
3. This positive impression started to dissipate when, in summer 2001, the Moldovan government formed after the parliamentary elections of February 2001 confirmed its intention of passing and implementing a counter-reform of local and regional government, some aspects of which are, in the eyes of the Congress, incompatible with the spirit and the letter of the European Charter of Local Self-Government, which the Moldovan government ratified in 1997.
4. The aim of this reform was to replace the 10 regions (judets) set up in 1998 by 32 districts (raiony). By introducing substantial changes in the status and method of election of local and regional elected representatives and in the system for supervising them, it places those elected representatives under the authority, in practice, of central government. The reason the Moldovan authorities have given for these changes is the desire to introduce a “vertical line of power”.
5. The Rapporteurs made several attempts during their official visits to Chisinau to dissuade the Moldovan authorities from approving and implementing this reform. To this end, the Rapporteurs pointed out that:
a) the need to bring government closer to the citizens and reduce the number of public officials – arguments used by the Moldovan government to justify the reform – should not be incompatible with democratic principles and European standards in such matters.
b) the fact
that there were shortcomings in the legislation in this field was no reason to
sweep away the existing system, particularly since it had in the first place
been established not without difficulty and with the political and financial
support of the entire international community working in
6. The Congress became even more concerned when it was informed that the reform bills had been drafted without prior consultation of the associations representing local and regional elected representatives and that in order to implement the reform, the Moldavian authorities intended to end the terms of office of the existing elected representatives prematurely by holding early elections.
The Bureau of the Congress pointed out to the Moldovan authorities that it was unacceptable in a democratic state that such a wide-ranging reform should be decided on without genuine, open and official consultation of the institutions concerned and implemented through early elections. The Rapporteurs also expressed their concern at the substantial cost to the Moldovan authorities of implementing the administrative changes required by the reform.
7. Unfortunately, in December 2001, the Moldovan parliament, ignoring all the CLRAE recommendations, passed the reform laws. Moreover, the Moldovan authorities failed to consult the Council of Europe on the laws in question before enacting them, despite promises to do so.
However, in
February 2002, in the light of the CLRAE’s observations, the Constitutional
Court of the
8. This did not prevent the Rapporteurs
from pointing out that, at least as regards the underlying reasoning, the new
administrative sub-division of the territory was at variance with the basic
principles set out in the European Charter of Local Self-Government. This was borne out by the statements made by
the first Deputy Prime Minister of
9. With regard to the political expediency of the decision to reintroduce the districts (raiony), the Rapporteurs, while reaffirming that the Moldovan authorities were totally free to do as they saw fit in this area, pointed out that the decision to reintroduce the districts (raiony) was probably based on a poor assessment of the underlying problems.
Indeed, the main reason given by the Moldovan authorities for reintroducing the districts was that the citizens had asked that public services be brought closer to where they lived. The Rapporteurs are convinced that this objective could have been attained simply by decentralising services by making use of existing structures in the former districts. In deciding to replace the 10 existing regions by 32 districts, the Moldovan authorities have, on the contrary, de jure and de facto, increased the number of decision-making bodies and, consequently, the amount of bureaucracy involved.
10. From the practical standpoint and with
regard to the near future, it is a positive sign that the above-mentioned
decisions of the
11. In view of the Court’s decisions, the
Prime Minister of the
They also suggested that, in future, these districts might be treated purely as "administratively decentralised" offshoots of the state, which would make it possible to keep the regions (judets) as autonomous, "politically decentralised" authorities.
12. In this context, the Prime Minister promised the Congress Rapporteurs that, in future, the Government would submit all prospective new legislation on local public administration and territorial organisation drafted by the Parliament to the Council of Europe for an opinion.
13. Moreover, in the light of Article 4.6 of the Charter, the Rapporteurs stressed that it was very important that the associations representing local and regional authorities in Moldova should be consulted in future on any reform (or issue) directly affecting them. Such consultation should take the form of an institutional dialogue based on regular meetings and exchanges of information and official documents.
14. In view of the above, it was proposed that the Congress organise a meeting of all the parties concerned in Chisinau in the next few months to facilitate the establishment of a working environment conducive to dialogue with the above-mentioned representatives and foster the inception of such co-operation, in a climate of trust.
15. With regard to the autonomous region of Gagauzia, the Rapporteurs took note of the proposals for constitutional reform concerning the status of Gagauzia made by the relevant government committee. The Chair of this committee has asked the President of the Congress for an opinion on these proposals.
Since the Venice
Commission was already preparing an opinion on the proposals, the Rapporteurs
forwarded their comments to the Commission, so that it could take them into
account when adopting its opinion. The Venice Commission's opinion, taking into
account the CLRAE’s comments, was finally adopted at the meeting on 8 and
16. With regard to the conflict caused by the holding of a referendum in Gagauzia with the aim of removing the Governor of the region (Bashkan) from office, following a fact-finding visit to Gagauzia, the Rapporteurs concluded that:
a) no official decision to hold a referendum had been taken by the People's Assembly of Gagauzia in accordance with the relevant legal provisions;
b) no decision on the holding of a referendum had been published in the Official Gazette of the People's Assembly, in accordance with the relevant legal provisions;
c) the time-limits laid down by law for organising a referendum had not been observed;
d) the charges against the Bashkan concerning his management record and responsibilities should be clarified before a competent court in accordance with the legislation in force, or before the People's Assembly in accordance with its procedures and rules. It was therefore surprising that the highest Moldovan authorities had called on the population of Gagauzia to participate in the referendum aimed at removing the Bashkan from office, when it had no legal basis.
e) it was to be deplored that the attempt to organise the referendum had given rise to violence.
17. Moreover, with regard to the examination
of the credentials of national delegations to the CLRAE, the Rapporteurs
believe that, in future, particular attention should be paid to the renewal of
the delegation of the
In this context, they consider it important to make sure that the Moldovan delegation systematically comprises local and regional representatives elected at proper elections, in compliance with the rules set out in the Charter and the CLRAE Rules of Procedure.
18. For the same reasons, it is also important to ensure that,
each time the delegation of the
19. In view of the above-mentioned points and the facts described
in the remainder of the report, the Rapporteurs propose that the Congress adopt
a recommendation and a resolution on local and regional democracy in
20. It is also suggested that, once these texts have been adopted,
they should be forwarded to the Moldovan presidential, parliamentary and
governmental authorities, together with this report, and to the Committee of
Ministers and the Parliamentary Assembly of the Council of Europe for
information. A copy of these documents
could also be sent to the relevant authorities of the European Commission, the
OSCE, the IMF, the World Bank and the UNDP.
B. REPORT
I. INTRODUCTION
1. Latest developments in the political
and socio-economic situation in the
1. In the February 2001 parliamentary elections, the Communist
Party of Moldova (CPM) secured an absolute majority in Parliament (71 seats out
of 101). Parliament subsequently elected
Mr Vladimir Voronin, leader of the CPM, President of the Republic. The government formed as a result of these
elections corresponds to the new political direction of the country.
2. The parliamentary opposition is now represented by the
Braghis Alliance (led by Mr Dumitru Braghis, the former Prime Minister),
which has 19 seats, and the Christian Democrat People’s Party (CDPP), led by Mr
Iurie Rosca, which has 11 seats.
3. This major political change has had an important impact on
the political course now being taken by
4. These changes have caused a large amount of social unrest,
leading to almost permanent demonstrations against the government’s
decisions. The strongest protests have
been against the government’s decisions concerning the compulsory teaching of
Russian in primary schools and the replacement of the expression “the history
of Romanians” by “the history of
5. The conflicts have been aggravated by the Moldovan
authorities’ decision to suspend the CDPP (a decision which was subsequently
revoked as a result of the pressure exerted by the international community) and
by the Prosecutor General of Moldova’s repeated requests to Parliament to lift
the parliamentary immunity of the representatives of the opposition involved in
the social unrest and to prosecute them in the criminal courts for their
participation in the organisation of street demonstrations. This was the context in which one of the main
representatives of the CDPP was kidnapped.
6. These conflicts have gone hand in hand with a
rapidly-spiralling economic crisis. Foreign investors, concerned at the
extremely difficult social and political climate, are increasingly reluctant to
invest money in
7. In the field of public administration and local and regional
self-government, several of the Moldovan authorities’ decisions signify a
sudden change of course.
These decisions, the process
whereby they were adopted and the measures proposed by the Congress
representatives for restricting the negative impact of the decisions on the
local and regional authorities and the functioning of local and regional
democracy in
The report also endeavours to
make constructive proposals for the future to encourage the Moldovan authorities
to implement the reforms they have recently adopted in compliance with the
democratic principles set out in the European Charter of Local
Self-Government. A summary of these
proposals can be found in the conclusions to this report. They are also set out
in the recommendation and resolution on local and regional democracy in
2. The origins of the report and the drafting
procedure
8. Following the
9. A first report drawn up by Mr George Lycourgos (
10. Given the changing situation of local and regional democracy
in
11. Consequently, on the occasion of its 7th Session in
2000, the Chamber of Regions of the CLRAE examined a second report on regional
democracy in
12. It should be noted that in Recommendation 84 the Congress
warmly welcomed the fact that, in November 1998, the Moldovan parliament had
been able to pass a law on the administrative organisation of the country
enabling ten new regions (judets) to be established.
13. In this rather positive context, the Congress pointed out that
the setting up of self-governing bodies on a regional basis constituted a very
important contribution to resolving the problems of integrating the peripheral
regions into the social, political and economic life of the country. The creation of new regions was to be
welcomed as a first step in this direction.
14. The Congress also pointed out that the regionalisation process
could create the necessary foundation for the economic development of the
entire country, which continues to be one of the Moldovan authorities'
priorities.
15. Further comments in Recommendation 84 concern the situation in
the autonomous region of Gagauzia. The
Congress found that the implementation of legislation on local government and
the organisation of local and regional authorities posed particular problems
with regard to Gagauzia and its special status.
16. The Congress therefore concluded that it was necessary for the
Moldovan parliament to confirm the special autonomy of Gagauzia and specify
once and for all the institutional nature of this autonomy and the powers of
the elected bodies in Gagauzia under the Moldovan legal system.
17. In Resolution 103 the Congress instructed the Institutional
Committee of the Chamber of Local Authorities to prepare a third monitoring
report on
18. Following the adoption of these official texts, in accordance
with the monitoring reports procedure, the Moldovan governmental authorities
were invited to attend the CLRAE mini-sessions to describe the measures they
had taken or intended to take to implement the Congress recommendations.
Most of these invitations
remained unanswered. In 2000 and up to November 2001 the Moldovan authorities
did not send any representatives to the CLRAE mini-sessions. Initially the Congress leaders thought that
19. Nevertheless, in June 2001 the Congress, alarmed by
information on the new Moldovan authorities’ intentions with regard to local
and regional democracy, confirmed its decision to prepare a third monitoring
report on
20. Mr Claude Casagrande (France, L) and Mr Yavuz Mildon (
During their visits to
Chisinau and Gagauzia the Rapporteurs were also assisted by
Ms Lilia Snegureac, Director of the Council of Europe Information Office in
21. The Rapporteurs wish to thank these people for their readiness
to help as and when required during the various visits and for their
co-operation in the preparation of the various working documents. They would also like to thank Mr Alexandru
Codreanu, who is in charge of Council of Europe activities at the Moldovan
Ministry of Foreign Affairs, for the help he provided in organising the visits.
22. The appendices to this report include a legal opinion on the
reform laws passed by the Moldovan parliament in December 2001 on territorial
organisation and local public administration.
This opinion, which was drawn up by Professor John Loughlin from March
to April 2002 under the Rapporteurs’ direction, was discussed with the Moldovan
authorities during the Rapporteurs’ most recent visit to Chisinau (4 April
2002). The Rapporteurs drew up the
present report following this visit, in the light of the Moldovan authorities’
comments.
23. On the basis of these documents they also prepared a
preliminary draft recommendation and a preliminary draft resolution on the
situation of local and regional democracy in
24. Subsequently, in the light of the report, the Congress was
invited, at its 9th Plenary Session, to adopt the recommendation and
resolution with a view to forwarding them to the parliamentary, governmental
and presidential authorities of the
II. THE COUNTER-REFORM PROCESS WITH REGARD
TO TERRITORIAL ORGANISATION AND PUBLIC ADMINISTRATION APPROVED BY THE MOLDOVAN
AUTHORITIES IN DECEMBER 2001
1. The first official visit by the Rapporteurs
to Chisinau, following the requests for assistance from the associations of
local and regional authorities
25. The Institutional Committee of the Congress, whose attention
had been drawn in October 2001 by the associations representing local and regional
authorities in Moldova to draft legislation reforming the territorial
organisation of Moldova to the detriment of the autonomy of local and regional
elected representatives[3],
instructed the Rapporteurs to travel to Chisinau to determine the facts.
26. During this visit, which took place on 29 and
a) Further to a proposal by the parliamentary
committee responsible for public administration, the Moldovan parliament had
discussed draft legislation designed to abolish the 10 regions (judets)
set up between 1999 and 2000[5] and replace them by 32 districts (raiony)
that would be placed under the supervision of central government.
b) At the request of the CLRAE Rapporteurs, Mr
Iovv, Chair of the parliamentary committee in question, undertook to consult
the CLRAE officially on all draft legislation concerning the territorial
organisation of
c) Instead of being consulted, the Congress Secretariat
was informed in early December 2001 that the Moldovan government had
approved the draft legislation prepared by the above-mentioned committee. This draft legislation had also already
received the Parliament’s preliminary approval.
Despite promises made by the Moldovan authorities, the local and
regional elected representatives concerned were apparently not officially
consulted either. The Secretariat was
also informed that, following this reform, all mayors would be removed from
office and new mayors elected by the municipal assemblies. According to the information gathered,
Parliament was to vote on all changes before the end of 2001.
d) During summer 2001, the Moldovan parliament
amended the law on local public administration, thus reducing the financial
powers of local and regional authorities.
The transfer to the prefect of any decision-making powers with regard to
these authorities’ expenditure has, de jure and de facto, already
deprived the local and regional authorities of any degree of autonomy.
27. The fears of the associations of local and regional
authorities with regard to the holding of early local elections were
well-founded. During the first visit, it
transpired that several possible dates were being discussed by central government
with the aim of securing the election of new mayors with a more “positive”
attitude to the reform.
28. In view of the foregoing, the Rapporteurs took the
opportunity, during their visit, to inform the Moldovan authorities that they
must respect the principles to which they had committed themselves under the
European Charter of Local Self-Government.
They also drew the authorities’ attention to the importance of
implementing the Congress recommendations concerning local and regional
democracy.
29. In particular, the Rapporteurs pointed out that the return to
former districts would, in the Congress’s opinion, constitute:
a) an institutional change contrary to the
principles promoted by the Congress with regard to regional democracy, as set
out in CLRAE Recommendations 38 (1998) and 84 (2000);
b) an opportunity to increase control over the
mayors and thus reduce the political, administrative and financial autonomy of
the local authorities concerned[6].
30. At the end of their first official visit to
In endeavouring to convince
the Moldovan authorities that they should not enact legislation that was
contrary to the spirit and letter of the Charter, the Rapporteurs also pointed
out that:
a) the need to bring government closer to the
citizens and reduce the number of public officials – arguments used by the
Moldovan government to justify the reform – should not be incompatible with
democratic principles and European standards in such matters;
b) the fact that there were shortcomings in
current legislation in this field was no reason to sweep away the current
system, particularly since it had in the first place been established not
without difficulty and with the political and financial support of the entire
international community working in
c) it was unacceptable that such a wide-ranging
reform should be decided without genuine, open and official consultation of the
parties concerned and implemented by early elections.
31. As the Rapporteurs did not receive any further information on
the proposed territorial reform following their visit and as they were
concerned about parliamentary decisions that appeared to be incompatible with
the above-mentioned principles and recommendations, they decided to draw the
situation to the attention of the Bureau of the Congress so that urgent measures
could be taken.
32. On
2. The Rapporteurs’ second official visit
to Chisinau following the final enactment and promulgation of the reform laws
33. The second official visit was to Chisinau and Comrat from 28
to
This visit gave the
Rapporteurs the opportunity to take a close look at the final enactment (by the
Moldovan parliament on 24 January 2002) of Law 764-XV of 27 December 2001
on the Territorial Organisation of Moldova (which replaces the previous law of
12 November 1998 of the same name) and Law 781-XV of 28 December 2001 amending
Law 186 of 6 November 1998 on Local Public Administration.
34. In passing these laws the Moldovan parliament ignored the
Congress recommendations. The laws:
a) were subsequently promulgated by the
President of the Republic on
b) are now published in Volume 16 of the Official
Gazette of the Republic of Moldova, dated
35. The Rapporteurs informed the Moldovan authorities (President
of the Republic, Speaker of the Parliament and Prime Minister) that, as far as
the enactment procedure was concerned, the new laws were contrary to a number
of provisions set out in the European Charter of Local Self-Government (which
36. In this respect it was noted that, contrary to the rules set
out in Article 4 paragraph 6 of the Charter, the central authorities had not
taken any official steps to consult or inform the representatives of local and
regional authorities in the country about the draft legislative reform.
Moreover, the Rapporteurs were unable to ascertain whether Article 5 of the
Charter had been properly implemented[8].
The Rapporteurs pointed out
that it was unacceptable in a democratic state that such a wide-ranging reform
should be decided on without genuine, open and official consultation of the
institutions concerned.
37. Moreover, the Rapporteurs expressed their regret that the
Congress had not been consulted on the laws being prepared, despite the
promises made by Mr Iovv, Chair of the relevant parliamentary committee. They
took note of the apologies from the Speaker of the Moldovan Parliament. While
they were in Chisinau they were able to consult the laws which had already been
enacted, promulgated and published.
38. Although the Rapporteurs were unable to examine the laws in
detail during their visit, they nevertheless reiterated their fears with regard
to:
a) the Moldovan authorities’ assertions as
regards the concept of a "vertical line of power" on which the laws
in question are based; in this respect, the Rapporteurs reminded the Moldovan
authorities that this was contrary to the spirit of the European Charter of
Local Self-Government;
b) the negative consequences (in socio-economic
and democratic terms) that this ill-considered repeal of the 1998 reform, which
was based on the recommendations made by the Council of Europe and other
international organisations might have;
c) the new administrative subdivision of
d) the ill-considered increase in the number of
municipalities;
e) the fact that decentralised government and
local government responsibilities rested with the same person (the district
president);
f) the conditions under which the Parliament
reserves the right to use its authority to revoke the powers of the municipal
authorities;
g) the substantial cost to the Moldovan
authorities of implementing the ensuing administrative changes (approximately 4
million USD according to the Speaker of Parliament).
39. The Rapporteurs asked Professor John Loughlin to draw up a
detailed legal analysis of the conformity of the laws in question with the
European Charter of Local Self-Government (see below).
40. During their second visit the Rapporteurs also strongly
criticised the Moldovan authorities’ intention (of which they were officially
informed by the President of the Republic, the Speaker of Parliament and the
Prime Minister) of holding early local elections before the statutory expiry
(in 2003) of the terms of office of the existing local and regional elected
representatives in order to implement the newly enacted laws rapidly.
41. The Rapporteurs pointed out to the Moldovan authorities that
the holding of these elections (which, according to the President of the
Republic, would take place on
42. The fact that the Constitutional Court of Moldova, taking
account of the observations made by the President of the Congress on behalf of
the CLRAE Bureau, subsequently set aside the decision to hold early elections
is a positive sign (see below).
43. It should be pointed out that, during their second visit, the
Rapporteurs on Moldova representing the Parliamentary Assembly of the Council
of Europe, the Ambassadors of two EU member states (France and Germany), the
Head of the OSCE mission in Chisinau and other representatives of international
organisations working in Moldova told the Rapporteurs that they intended to
take account of the CLRAE’S conclusions (particularly those concerning the
conformity of the new laws on territorial organisation and local public
administration with the European Charter of Local Self-Government) in their future
decisions concerning the Republic of Moldova.
3. The rapporteurs'
third and last official visit to Chisinau following the decisions by the
44. The rapporteurs made
their third and last official visit to Chisinau on
This visit provided the rapporteurs with an opportunity to hold talks
with the Moldovan government authorities concerning the content of Professor
Loughlin's draft opinion on the new laws on territorial organisation and local
public administration[12].
45. Following the visit
Professor Loughlin prepared the final version of his opinion, taking account of
the Moldovan authorities' observations.
This text appears in Appendix 7 to this report. On 11 April 2002 Mr Vasile Tarlev, Prime
Minister of Moldova, sent the Congress an official document setting out
additional comments on certain elements of Professor Loughlin's draft
opinion. This document is to be found in
Appendix 11. Professor Loughlin's expert opinion also takes account of
recent decisions by the
46. The Constitutional Court
indeed gave three decisions during the second half of February and the first
half of March 2002. These related to:
a)
The Moldovan parliament's
decision (No. 807-Xv of
b)
Law No. 764-XV of
c)
Law No. 781-XV of
i. the (indirect) election of mayors by local councillors[14];
ii. the fact that mayors would simultaneously hold office as mayor and president of the local council;
iii. abolition of procedures making it possible to remove mayors from office by public referendum;
iv. introduction of procedures making it possible for mayors and deputy mayors to be removed from office by the council of the next highest public authority (i.e. the district council);
v. Parliament's power to suspend a local council on a proposal from the mayor, the president of the district executive committee or the government;
vi. the fact that the same person would simultaneously hold office as president of the district executive committee and president of the district council;
vii. the power of Parliament or the government to remove from office the president, vice-presidents and secretary of a district executive committee;
viii. election of the president, vice-presidents and secretary of the district executive committee from among district councillors;
ix. the fact that presidents of district executive committees would be representatives of both the state and the local authority[15].
47. On the whole the
48. With regard to these laws, the main difference in the opinions given by, on one hand, the Congress rapporteurs and expert and, on the other hand, the Constitutional Court concerns the decision to reinstate the districts, in accordance with Law No. 764-XV (2001) on territorial organisation. On this subject, the Constitutional Court, unlike the CLRAE representatives, came out in favour of Parliament's decision to replace the ten regions (judets) established in 1998 with 32 districts (raiony).
49. The rapporteurs stressed that, questions of political expediency apart, although the decision to reinstate the districts is lawful from a constitutional standpoint[16], it is incompatible, at least as regards the underlying reasoning, with the spirit of the European Charter of Local Self-Government, in particular Article 4.3 thereof[17].
According to the rapporteurs this is borne out by statements made by Mr Iovv, who, in his new capacity as First Deputy Prime Minister, is responsible for local public administration and has confirmed that restoration of the districts is intended to help consolidate the "vertical line of power" between central authorities and local authorities.
50. Apart from the statements made by the First Deputy Prime Minister of the Republic of Moldova, further confirmation of a breach of the Charter lies in the Constitutional Court's recent decision [see paragraph 46 c) above] finding that a significant number of the provisions of Law No. 781-XV (2001) on local public administration are unconstitutional.
51. The court unhesitatingly criticised the provisions of that law which, with the clear intention of organising relations between public authorities along hierarchical lines, stipulate that:
a) Since they have the status of both elected representatives and civil servants, presidents of district executive committees and mayors, at a functional level, shall come under the authority of central government.
b) Mayors and deputy mayors may be removed from office by the council of the next highest public authority (i.e. the district council).
c) Parliament shall be empowered to suspend mayors on a proposal from, inter alia, the president of the district executive committee.
52. This law breaches the European Charter of Local Self-Government because, having its basis in the concept of interaction of the representative and executive powers and introducing substantial changes in the status and method of election of local elected representatives, it places those elected representatives under the authority of central government both in law and in fact. This is contrary to Article 7.1 of the Charter, which provides: "The conditions of office of local elected representatives shall provide for free exercise of their functions."
Similarly, the provisions making it possible for local authorities' elected bodies to be dissolved or suspended by higher (or central) authorities without any judicial decision are in breach of Article 8 of the Charter.
It is hardly
surprising that the
53. As regards the political expediency of the decision to reinstate the districts, while reiterating that the Moldovan authorities are entirely free to do as they see fit in this area, the rapporteurs underlined the fact that this decision was probably based on misinterpretation of the underlying problems.
The main ground given by the Moldovan authorities for restoring the districts is linked to public pressure to bring provision of services closer to the citizen.
The rapporteurs are convinced that this result is achievable through a mere decentralisation process. The operation could quite easily have been carried out on the basis of the structures already existing in the former districts.
54. However, by deciding to replace the current ten regions with 32 districts, the Moldovan authorities have multiplied the number of decision-making bodies, both in law and in fact, thereby increasing bureaucracy.
What is more, as already pointed out, apart from frustrating the expectations of the international community, which had already begun to channel investments and financial aid to the judets established in 1998, the process of replacing the judets with the districts will be extremely costly and could worsen the country's already difficult economic situation.
55. In this respect, the rapporteurs also
pointed out that the size of a sub-national administrative authority must
always be consistent with its powers and responsibilities. It has been noted that, throughout
56. Still on the issue of powers and responsibilities, the rapporteurs noted that the new law on local public administration has exacerbated the confusion that reigns because of the overlapping of central, regional and local government powers and responsibilities in a number of areas (for example payment of civil service pensions and salaries).
The rapporteurs emphasised the importance of proper separation of legislative powers with a view to guaranteeing genuine self-government founded on full democratic legitimacy and clear answerability vis-à-vis the public.
57. With regard to local authorities' financial resources, the legislation in question no longer makes clear mention of the right of local authorities to fix local taxes. In this connection, the rapporteurs drew attention to Article 9.3 of the European Charter of Local Self-Government, providing: "Part at least of the financial resources of local authorities shall derive from local taxes and charges of which, within the limits of statute, they have the power to determine the rate."
58. In practical terms, as regards the
immediate future, it is to be welcomed that the decisions of the Constitutional
Court referred to above prevent the holding of early elections at the lowest
level of local government and oblige the Moldovan authorities to respect the
term of office of the representatives at judet level, which, as already
stated, does not expire until 2003.
Furthermore, it must be said that, with its recent decision on Law
No. 781‑XV (2001), the
59. In view of these constraints, Mr Tarlev, the Prime Minister, confirmed to the rapporteurs that the term of office of existing local and regional authorities would be respected. On this subject, he said that he was ready to take account of the Congress's recommendations concerning decisions to be made regarding the implementation of the territorial reform passed by Parliament.
60. Mention has been made of the committees recently set up by the government to wind up the regions (judets) before the districts are established.
On this subject, the rapporteurs drew attention to the need to ensure that any preliminary steps to establish the district administrative authorities did not undermine the autonomy of the existing local and regional authorities.
61. In future the Moldovan authorities might consider the possibility of treating these districts as purely "administratively decentralised" offshoots of the state, which would make it possible to keep the regions (judets) as autonomous, "politically decentralised" authorities. Territorial organisation along these lines could moreover be confirmed through a revision of the Constitution in due course. The Congress could offer the Moldovan authorities assistance in taking such steps.
62. The Prime Minister has given his word to the rapporteurs that the government will in future refer to the Council of Europe for an opinion any further bill on local public administration or territorial organisation to be brought before Parliament[18].
63. Moreover, in the light of Article 4.6 of
the Charter, the rapporteurs stressed that it was essential in future to
consult all associations representing local and regional authorities in
64. The rapporteurs noted that the main
associations of local and regional authorities in
65. In this connection, the rapporteurs also noted that the President of the Republic has decided to institute a "Social Pact" with the people, which will take the form of meetings between the President and various civil society groups, including NGOs, the business community and cultural players, not forgetting local and regional authorities.
66. In view of the above, to facilitate the establishment of a working environment conducive to dialogue with the above-mentioned representatives and foster the inception of co-operation in a climate of trust, the rapporteurs proposed that the Congress organise a meeting of all the parties concerned in Chisinau in the next few months.
III. PROBLEMS
CONCERNING THE AUTONOMOUS REGION OF GAGAUZIA
1. Introduction
67. The region of
Gagauzia was established by a constitutional law, passed by the Moldovan
parliament in December 1994, which granted the region special status as an
autonomous territorial entity within the unitary state of the
68. The regional authorities now in power were elected in August 1999 for a four-year term. Mr Dumitru Croitor, the Bashkan of Gagauzia, elected by direct suffrage, is also automatically a member of the Chamber of Regions of the Congress[19]. The next elections should take place in 2003.
2. The legal framework and the constitutional reform process
69. At present autonomy is dealt with in just one article of the Constitution of the Republic of Moldova - Article 111, which provides that "special forms of autonomy may be granted under special status arrangements adopted under organic laws", which must be passed by a three-fifths majority of members of the national parliament.
70. A draft constitutional reform bill, referring
to the autonomous status of Gagauzia, was prepared by a government committee in
late 2001 and was referred to the Congress, the Venice Commission and the
The autonomous
status of Gagauzia was established under an organic law of
71. Given the recent tensions concerning removal of the Bashkan from office (see below), it is interesting to note that Article 14 of this law contains provisions on the subject, viz. paragraph 9, which provides that "the Governor of Gagauzia shall be removed from office, before expiry of the term, if he or she fails to respect the Constitution of the Republic of Moldova, this law, local laws or decisions of the People's Assembly, or if he or she has committed an offence" and paragraph 10, which provides that "the decision to remove the Governor of Gagauzia from office shall be taken by a two-thirds majority of the elected members of the People's Assembly …".
72. The Legal Code of Gagauzia, constituting
the supreme regional legislative instrument, was adopted by the People's
Assembly on
Article 70 of the Code also deals with removal of the Bashkan from office, reiterating the provisions of Article 14, paragraph 9, of the law on special status, while adding that allegations of committal of an offence must be substantiated by a court decision. In addition, a decision by the People's Assembly to remove the Bashkan from office must be confirmed by a referendum, organised within not more than thirty days.
73. The requirement of holding a referendum is additional to the provisions of the law on special status and is justifiable since the final decision on dismissal must lie solely with the people, who elected the Governor to office.
74. The rapporteurs noted that the Prime Minister of Moldova had asserted that Gagauzia's autonomy would not be affected by the reform laws mentioned in the first part of this report.
75. Following
this presentation of the main legal provisions concerning Gagauzia, before we
describe the tensions relating to the Bashkan's removal from office, we
consider it appropriate to comment on the proposed constitutional reform, in so
far as it concerns the autonomous status of Gagauzia.
3. The rapporteurs' opinion on the
proposed constitutional reform
76. The rapporteurs have taken note of the proposals for
constitutional reform concerning the status of Gagauzia, made by the relevant
government committee. The Chair of this
committee sent the President of the Congress a request for an opinion on these
proposals[20].
Since the Venice Commission was already preparing an opinion on the
proposals, the rapporteurs decided to forward their comments to the Commission
so that it could take them into account when adopting its opinion.
77. In their opinion the rapporteurs pointed out that, as already stated in its Recommendation 84 (2000), the Congress had noted that:
"The
implementation of legislation on local government and the organisation of local
and regional authorities poses particular problems with regard to Gagauzia and
its special status."
78. In this connection, the Congress had made the following comments and recommendations:
"- it is not desirable for Gagauzia to be considered, by law or interpretation, to be a second tier of regional government in the same way as the other nine regions and the city of Chisinau, despite its special status recognised by the Constitution (see the Venice Commission's opinion in this regard), (...)
- the law
on the special status of Gagauzia can only be amended by a special majority;
accordingly, it is part of the corpus of constitutional law, and its provisions
take precedence over other Moldovan laws in keeping with the hierarchy of legal
rules (principle of lex superior),
- from a
political and legal point of view, it would be necessary for the Moldovan
parliament to confirm the special autonomy of Gagauzia and specify once and for
all the institutional nature of this autonomy and the powers of the elected
bodies in Gagauzia under the Moldovan legal system. On this basis alone will it be possible to
interpret and amend the legislative provisions concerned, which now seem to be
in conflict. The Congress is prepared to
participate with the Venice Commission in the efforts of the working group
established by the Moldovan authorities for this purpose; (…)".
79. In the relevant explanatory memorandum the Congress rapporteur expressed the following opinion:
"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 of 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 (…).
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. (…).
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 muddle.
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."
80. In view of the above, the rapporteurs
concluded that the initiative to amend the provisions of the Constitution of
the
81. They accordingly welcomed the Venice Commission's preliminary findings concerning the political expediency of a revision of the Constitution on the subject of Gagauzia and concurred with the following points:
a)
a constitutional reform, aimed
at reinforcing the special status of the autonomous territorial units (by
virtue of their substantial powers and responsibilities) while preserving the
unitary nature of the state of
b) formal recognition should be given to the "special" nature of the organic law of 1994 on Gagauzia (this was already pointed out in the explanatory memorandum to Recommendation 84 (2000)); this special nature means that the 1994 law cannot be amended by ordinary laws or "ordinary" organic laws;
c) in the event of a clash, the regional Gagauz legislation (passed by the People's Assembly) takes precedence over ordinary laws and "ordinary" organic laws.
82. Moreover, regard being had to the document setting out the proposals for a revision of the constitutional provisions concerning Gagauzia, the rapporteurs stressed that:
a) Article 110 (1) should clearly mention that the special status of Gagauzia must be guaranteed by a special organic law;
b) Article 111 (1 and 2) might make reference to the Gagauz "legislative, executive and judicial" bodies (in any case, the wording of Article 111 (2) is not really clear);
c) the proposals concerning the first paragraph of Article 111-1 (6) could give the impression that any change in laws (including ordinary laws and "ordinary" organic laws) may result in amendments to the "special" organic law on Gagauzia. The provision concerning the special majority required to amend that law (second paragraph) does not really lift this ambiguity.
To clarify matters the term "legislation" should be replaced by "special autonomous status of Gagauzia".
83. The
4. The recent tensions concerning the
holding of a referendum aimed at removing the Governor of Gagauzia from office
84. At the request of Mr Dumitru Croitor,
Governor (Bashkan) of the autonomous region of Gagauzia, and after
consulting the President of the Congress, the secretariat organised a
fact-finding visit from 18 to
The main purpose of the visit was to ascertain the lawfulness of a referendum aimed at removing the Bashkan from office, initiated by a number of members of the People's Assembly. The Congress delegation for this official visit consisted of Mr Yavuz Mildon, Mr Günter Mudrich, Secretary to the Chamber of Regions, and Mr Dan Medrea[22].
The main facts concerning the attempt to remove the Bashkan from office can be summarised as follows[23]:
85. On the basis of a report by the Court of Audit, the Bashkan is alleged to have embezzled public funds. To date he has had no opportunity to defend himself in court.
On 31 January a
group of 21 members of the People's Assembly tabled a motion for the Assembly
to vote on the holding of a referendum concerning the Bashkan's
dismissal. Despite failing to obtain the
required two-thirds majority, the group subsequently decided, at a meeting on 8
February, to go ahead and hold the referendum on
86. The voting process within the Assembly and the decision by the group of members to hold a referendum were not validated by the Speaker of the People's Assembly or its legal service.
The Bashkan, relying on the principle of the presumption of innocence, argues that the action taken against him is an attempt by the Communist central government to remove him from the political arena, since he does not always toe the government's line (for example, Gagauzia refused to hold the early local elections called by central government for 7 April, which have now been declared unconstitutional by the Constitutional Court).
87. Although the central government authorities have always maintained that this is a local, or regional, issue to be resolved in Gagauzia itself, both the President of the Republic and the Minister for Foreign Affairs intervened directly by making statements in early February in support of the referendum against the Bashkan.
Envoys from the
European Union, the Council of Europe and the
Although the regional executive came out against a referendum, the group of People's Assembly members opposed to the Bashkan decided to hold it nonetheless, relying in particular on the backing of Communist mayors at municipal level.
88. The referendum was held on
On 27 February the Prosecutor General of the Republic initiated proceedings against the Bashkan, Mr Croitor, the Speaker of the People's Assembly, Mr Kendigelean, and the head of the Assembly's legal service, Mr Burgudji, for abuse of power having entailed significant losses for the public purse (charges quoted by OSCE sources). According to OSCE information, dating back to 7 March 2002, an armed group of unknown persons abducted the head of the Assembly's legal service, Mr Ivan Burgudji, regarded as one of those responsible for having tried to prevent the holding of the referendum, and took him to an unknown destination.
89. In the light of the evidence before it, the Congress delegation came to the conclusion that the referendum was devoid of any legal basis. Its holding was unlawful. A press conference was organised in Chisinau on 20 February and was attended by about 30 journalists from the press, radio and television. The rapporteur described the various stages of the visit, presented the delegation's findings and answered questions. He appealed for the conflict to be solved by legal means (see Appendix 4 to document CPR/Bur (8) 14).
90. On that occasion, the rapporteur stated in particular that:
a) no official decision to hold a referendum
had been taken by the People's Assembly of Gagauzia in accordance with the
rules of procedure laid down by law;
b) no decision on the holding of a referendum
had been published in the Official Gazette of the People's Assembly, in
accordance with the relevant legal provisions;
c) the time-limits laid down by law for
organising a referendum had not been observed;
d)
the
charges against the Bashkan concerning his management record and
responsibilities should be clarified before a competent court in accordance
with the legislation in force, or before the People's Assembly in accordance
with its procedures and rules. It was
therefore surprising that the highest Moldovan authorities had called on the
population of Gagauzia to participate in the referendum aimed at removing the Bashkan
from office, when it had no legal basis.
Following the release of a
statement by the press service of the President of the
91. In conclusion, the rapporteurs consider that the holding of a
referendum in the circumstances described above was devoid of any legal basis
and constitutes a breach of the principle of the rule of law. The authorities should on no account approve
or condone this action, which could politically destabilise the entire
region. For further information, reference
should be made to the report set out in document CPR/Bur (8) 14 of the Bureau
of the Chamber of Regions.
APPENDIX 1
RECOMMENDATION 38 (1998)1
on the situation of
local and regional self-government in the
The Congress,
1.
Recalling the visit to monitor the Referendum on the status of regional
autonomy for Gagauzia in January 1995 and the monitoring of local elections in
the
2.
Having taken note of the findings of the expert delegation sent by the Council
of Europe to the
3.
Having sent a delegation made up of its
two
co-rapporteurs, Mr Lycourgos (
Mr
Muller (
4.
Welcoming the ratification by the Moldovan parliament of the European Charter
of Local Self-Government on
5.
Bearing in mind the interim report prepared by its two co-rapporteurs on the
situation of local and regional democracy in the Republic of Moldova, examined
by the Chamber of Local Authorities and the Chamber of Regions;
6.
Having taken note of the opinion prepared by Mr de Bruycker, consultant, on the
most recent versions of the bill on local government and the bill on regional
planning of the Republic of Moldova, both of which have been submitted to the
parliament;
7.
Considers it necessary forthwith to address the following considerations and
recommendations to the parliamentary and governmental authorities which will
emerge from the forthcoming parliamentary elections in the
7.1
Regarding the local authorities’ democratic basis
7.1.1
States that the present situation, in which 92 local authorities – accounting
for 10% of Moldova’s local authorities but representing a large share of the
population nonetheless because they include the capital, Chisinau, and other
major cities – are deprived of any democratic representation in the form of a
local council or a mayor, is incompatible with Article 3.2 of the European
Charter of Local Self-Government;
7.1.2
Considers that this situation, resulting from the fact that the minimum turnout
of 50% was not reached in both rounds of the local elections, in spring
1995, should have been resolved as the result of a decision of the
Constitutional Court of 6 November 1995, calling for the unconstitutional rule
whereby the government appoints the mayor if the turnout is less than 50% to be
amended within 4 months and the legal consequences of the provisions of the law
declared unconstitutional to be notified;
7.1.3
Regrets that, although the electoral law was amended within 4 months, in
accordance with the instructions of the Constitutional Court, two years after
this amendment, 92 towns and municipalities still find themselves without
democratically elected local councils;
7.1.4
Recommends that the Moldovan government and parliament organise local elections
in the 92 towns and municipalities deprived of elected without delay.
7.2
Regarding the supervision of local authority activities and institutions
7.2.1
Recommends that all forms of controls on expediency (contesting decisions and
elected representatives alleged to be acting against the public interest) be
abolished and that administrative supervision be confined to ensuring
compliance with the law in accordance with Article 8 of the European Charter of
Local Self-Government;
7.3
Regarding the municipal secretaries, who are currently appointed by the
Government, recommends that the Moldovan authorities adopt a statute in
accordance with the principles of administrative independence provided for
under Article 6 of the European Charter of Local Self-Government.
7.4
Regarding local finances
7.4.1
Notes that the present situation is not compatible with Article 9 of the
European Charter of Local Self-Government, particularly in view of the extreme
paucity of local authorities’ own resources and the lack of clear and
transparent rules on financial transfers to local authorities;
7.4.2
Recommends that the Moldovan governmental and parliament pass a law on local
finances honouring the commitments entered into on ratification of the European
Charter of Local Self-Government and abiding by the opinions of the Council of
Europe’s experts on the subject.
7.5
Regarding regionalisation
7.5.1
Notes that the present situation, with 37 districts, 4 municipalities outside
the districts, and the autonomous region of Gagauzia, does not meet the
standards of regional self-government applied in western Europe, particularly
in view of the fact that the executive body is controlled by the state authorities
and is not accountable to an elected council;
7.5.2
Welcomes the determination of the Moldovan government to set up 8 new regions
which, along with the city of Chisinau, would replace the 37 districts, thereby
equipping the country with a modern system of regional government based on the
fundamental principles of the draft European Charter of Regional
Self-Government;
7.5.3
Welcomes the political consensus among Moldovan associations of local
authorities concerning the regionalisation project;
7.5.4 Recommends
that the Moldovan parliament adopt the bill on regional planning tabled by the
government.
7.6
Regarding transfrontier co-operation
7.6.1
Welcomes the commitment expressed by the government and the associations of
local authorities towards encouraging transfrontier co-operation between local
and regional authorities;
7.6.2
Recommends that the government and the parliament adopt the necessary measures
– either as part of a general law on local self-government or through a
specific law – to establish a legal framework governing transfrontier
co-operation between local and regional authorities based on the Outline
Convention of the Council of Europe and the protocol to it.
7.7
Regarding the local government and regional planning bills tabled before the
parliament
7.7.1
Welcomes the generally high standard of the text, which covers both local and
regional authorities and represents a major step towards setting up an
institutional framework for local and regional democracy in accordance with the
principles upheld by the Congress;
7.7.2
Recommends that the Moldovan parliament adopt these bills as quickly as
possible while taking account of the following proposals aimed at making them
clearer and fully compatible with the European Charter of Local Self-Government:
–
clarify the terminology used in the bill on the organisation of local and
regional authorities, particularly as regards the term "district",
with reference to the opinion set out in the appendix to this draft;
– take
account of the opinion on the bill on local government also set out in the
appendix, concentrating on the following points:
•
clarifying the functions of communes and municipalities on the one hand and
districts on the other to avoid the overlapping of responsibilities;
•
establishing the right of local authorities to co-operate in accordance with
Article 10 of the Charter;
•
restricting the possibility of dissolving local councils, which should only be
considered for very serious cases where the council cannot function or is incapable
of functioning;
•
confirming supervision over local authorities to a review of lawfulness by
doing away with "administrative and budgetary supervision" and above
all preventing the authorities from taking account of the "general
interest of the citizens", which amounts to supervision of expediency and
is therefore contrary to the Charter;
•
seeing to it that the power to appoint and dismiss municipal and district
secretaries falls to the local and regional authorities and not the government;
•
deleting Section 98, which provides for limits to financial independence, in
breach of the Charter;
•
giving details, in Section 88, of the objective criteria to be used to
calculate financial transfers to local and regional authorities so as to avoid
arbitrary decisions;
•
clarifying the functions of the "administrative commission" referred
to in Sections 117 et seq with a view to ensuring that it does
not encroach on the powers d regional authorities;
•
deleting Section 121, which states that conflicts between the central
authorities and the local and regional authorities shall be settled by the
government and is contrary to Article 4.4 of the Charter.
8. In
order to complete the legislative and administrative framework necessary for
the development of local and regional self-government
8.1
Recommends that the Moldovan government and parliament draw up and pass a law
on local finances, a law on the property of local and regional authorities, and
a law on local government officers.
9.
Regarding the training of local and regional government staff
9.1
Recommends that the Committee of Ministers release the funds needed to help the
Moldovan authorities to set up special training for local and regional
government staff with the assistance of ENTO.
10.
Regarding the autonomous region of Gagauzia
10.1
Welcomes the fact that the new status of the autonomous region of Gagauzia has
made a decisive contribution towards settling the political conflict in this
region, thanks to the restraint both of the Moldovan authorities and of the
regional authorities;
10.2
Considers it necessary for certain provisions of the Statute to be revised,
particularly those relating to the definition of the powers and
responsibilities of the autonomous region;
10.3
Therefore welcomes the fact that the European Commission for Democracy through
Law (the Venice Commission) is working in co-operation with the Congress to
provide the Gagauz regional authorities with assistance in drawing up the
"Legal Code of Gagauzia" provided for under Article 12 of the statute
on the special legal status of Gagauzia.
11.
Regarding the situation in Transnistria
11.1
Regrets the fact that the 1995 agreement between the Moldovan government and
the Prime Minister of the Russian Federation providing for the gradual
withdrawal of the Russian 14th Army from Transnistrian territory has not been
ratified and implemented so as to enable a fair statute on the autonomy of the
Region to be drawn up;
11.2
States its willingness to assist in the drafting of a Statute on autonomy for
the Region of Transnistria, once the political situation so permits and
provided that the Moldovan authorities so request.
Appendix
Opinion of the two bills of the
I. Introduction
It
would seem that considerable progress has been made since the previous versions
of the texts on the organisation of local and regional authorities and on local
government were submitted and dealt with in an expert report by the Council of
Europe in May 1997 and that many of the observations made at that time have
been taken into account. The fact remains that quite important comments still
need to be made concerning the latest versions.
II.
Opinion on the bill on the organisation of local and regional authorities
The
bill on "the organisation of local and regional authorities" is
clearly a general text which deals with the various levels of local and
regional authority in the
It is
regrettable that the concepts used in Moldovan law do not make the necessary clear
distinction between decentralised state authorities and entirely self-governing
local authorities. The fact that Part XI of the bill on local government also
covers arrangements for the "sectors (areas)" when these are clearly
local offices of the State authorities (or even subdivisions of the
municipalities) reflects this. The concept of "local and regional
administrative bodies" used to describe the villages, communes, towns,
municipalities and districts does not fully reflect their independence unless
this is simply a question of poor translation. The Moldovan authorities might
do better to use the term "local authority" so as to avoid any
confusion with the local offices of the State authorities. Furthermore, the
distinction between villages, communes, towns and municipalities seems to be
just as complex as lacking in any real legal effect. It might be suggested
therefore that, in order to simplify matters, a single generic term could be
used to cover all the basic local authorities.
—
Section 2 of the bill, which simply reproduces Article 109 of the Constitution,
should be deleted. Moreover, unless there has been an error in the numbering of
the Articles of the English version of the Constitution sent to me, I cannot
understand why Section 1 does not refer to Article 109 but only to Articles 110
and 111.
— The
meaning of Section 7, paragraph 2, according to which "The municipality
may include within its structure independent local and regional administrative
bodies" is not clear. Unless this stems from a mistake in translation,
there is some confusion between Section 7, paragraph 4, under which
"Municipalities may be divided into sectors", and Section 9,
paragraph 3, according to which "Districts can be divided into sectors
(areas)". The term "sector" should be reserved for only one of
these levels of local authority. Part XI of the local government bill on the
"sector or area" only serves to add to the confusion of the reader.
What is needed is a clear explanation of what exactly is covered by the notion
of a sector.
—
Section 9, according to which "the district is a local administrative
entity made up of villages (communes), towns and municipalities – which are the
basic building blocks for the organisation of local and regional authorities in
the Republic", is a particularly muddled clause. It would seem that the
district is the second tier of authority in
—
Assuming that this is not a mistake in translation, a question mark can be put
over the use of the term "district" to describe the intermediate tier
of local authority. This term is rarely used [at least in French] and evokes
[in French] the idea of a decentralised state authority1; accordingly, the
Moldovan authorities could be questioned on the meaning of this term in
Moldovan and possibly advised to use the word "region" instead, all
the more so because this word is used to describe the elected district
authority referred to as "conseil régional" (or regional council) in
the French translation of the local government bill.
—
Section 16, paragraph 2, which provides that a village can only be described as
such if it has a population of 1 000 or more, conflicts with Section 14,
paragraph 1 of the local government bill, which states that the local council
for places with a population under 1 000 shall have 7 members.
III.
Opinion on the local government bill
Right
from the outset it should be said that the bill is along the right lines and
represents an admirable effort to implement the principles of the European
Charter of Local Self-Government. Some provisions, such as Sections 8,
paragraph 2, 9 and 86, paragraph 2, are obviously modelled directly on the
Charter. The bill covers local and regional self-government quite
comprehensively; it is particularly satisfying that it contains provisions
relating to property and finance, even though they still have to be supported
by further legislation.
—
Paragraphs 1 and 3 of Section 2, which simply reproduce Article 109 of the
Constitution, should be deleted.
—
Section 13, paragraph 3 is already covered by Section 9 and should be deleted.
— It
should be checked whether the "local council" referred to in Section
6 is the same as the "administrative commission" referred to in
Section 117 and, if so, the same terminology should be used if this is not just
a translation problem. Furthermore, it is not clear why this provision insists
on "co-ordination of the activity of the local councils with a view to
providing public services benefiting the region and municipality", nor
exactly what is meant by this: does this mean co-operation between
municipalities, or the provision of regional services, bearing in mind that it
cannot cover the provision of municipal services, which is of course the
responsibility of the municipalities. It is also striking that the bill
contains no mention of the right of local authorities to form associations to
co-ordinate activities. This represents a shortcoming with respect to the
European Charter of Local Self-Government.
Regarding
the basic local authorities in particular:
— The
attempt to define the functions of the local authorities in the law establishing
them should be saluted, because, as the recent work of the group monitoring the
implementation of the Charter has shown, this is very rarely done. However, the
functions of the basic local authorities and the districts are not always
defined clearly enough and, above all, they overlap. For instance, both tiers
of local government are responsible for "public hygiene",
"health protection", "social problems and social welfare centres
and institutions" and "social welfare and the upkeep of social welfare
and health establishments". At the very least a clearer distinction should
be drawn between the responsibilities of each tier.
—
According to Sections 18 and 41, deputy mayors are appointed by the local
council on the mayor’s proposal. It should be stipulated whether they must be
selected from among the members of the local council or not. Under Section 41,
deputy mayors are politically responsible to the council, by contrast with
mayors. It should be checked whether the differential system thereby imposed on
the local executive is coherent overall.
— It
is odd that Section 19 provides on the one hand that the local council elects
its chair and on the other that the local council shall be convened by the
mayor. It would seem more logical for the council to be convened by its chair
so as to emphasise that the chair can act as the counterweight to a directly
elected mayor.
— The
bill does not make it clear whether the mayor is directly elected by the
people. This point should be clarified.
—
Paragraph 2 of Section 24 requires that a 2/3 majority be achieved for certain
decisions to be taken, assuming that this is not just simply a rule concerning
a quorum. Attention should be paid to this issue because it may cause certain
impediments which could hinder the smooth running of the local authority.
— It
should be ascertained whether the time-limit stipulated in Sections 21,
paragraph 5, and 30 paragraph 5, does in fact apply to the notification of
elections and not just to the decision taken on the matter.
— The
bill contains many detailed provisions on the forms of direct supervision over
the members of local councils. Section 30 is particularly important in this
respect. Paragraph 1 should only allow the dissolution of the council in very
serious cases and should not establish the right to suspend its activities. It
is particularly important to do away with any penalty imposed on councils in
the event of an abuse of authority. Moreover, since the scrutiny of local and
regional authorities is supposed to be confined to lawfulness, we cannot see
how a court could be bound to set aside a decision on the ground that it was
"not in keeping with the overall interests of the village, commune, town
or municipality". Likewise, the possibility provided for in paragraph 6 of
dismissing a councillor if he or she "violates the constitution or other
rules, goes against the interests of the local authority or takes part in
unconstitutional activities" should be withdrawn even though confirmation
by a court is required. As in Section 43 on the mayor, the rule should cover
only the most serious cases.
—
There are just as many provisions relating to the supervision of decisions.
Sections 26, paragraphs 2, 30, 109, 111b and, above all, 112 stipulate that
this supervision is carried out by the courts at the request of the prefect. A
more appropriate solution may be to entrust administrative supervision of the
local authorities to the prefects, limiting this strictly, as stipulated in the
Charter, to a review of lawfulness, combined with a special right of appeal to
the courts for the local authorities. In addition to this, the notion of
"administrative and budgetary supervision" used in Section 111.i. is
too vague and should be clarified, particularly as regards how it differs from
the review of lawfulness. Likewise, the meaning and scope of Section 123 should
be clarified as regards the "supervision of the performance of the mayor’s
duties".
— The
meaning of Section 38.i. should be clarified in the light of Section 49.
— The
status and the means of appointment of the local or municipal secretary should
be reviewed on the basis of the fundamental principle that this senior official
is indeed an organ of the local authority and that he or she should therefore
be appointed and, where appropriate, dismissed by the local authority, even if
it means that he or she has a status governed by the central authorities and
the right to appropriate means of appeal.
Regarding
districts in particular:
Generally
speaking, we can only congratulate the Moldovan authorities on their decision
to establish strong regional authorities, which represents a major step forward
in view of the present situation of the districts. Particular emphasis should
be placed on the fact that the future regions will have their own assembly and
a genuine executive body (the chair of the regional council and the standing
committee), since the role of the prefect in the running of the regions will be
strictly limited. Section 109, paragraph 2 usefully stipulates that "there
shall be no subordinate relationship between the heads of the state authorities
(the prefects) on one hand and the local and regional councils and the
— It
is not clear why Section 55 insists on "the co-ordination of the activity
of village (or communal) councils with a view to providing public services
benefiting the region", nor exactly what is meant by this: does this mean
co-operation between municipalities, or the provision of regional services,
bearing in mind that it cannot cover the provision of municipal services, which
is of course the responsibility of the municipalities? This provision should
include a clause giving overall powers to the districts in line with the draft
European Charter of Regional Self-Government.
— The
existence of a secretary at district level prompts the same comments as that of
a secretary at local level.
—
Section 66 calls for the same comments as
Section
30.
— It
is essential for Section 88 on financial transfers to the regions and local
authorities to state explicitly that these must be carried out according to a
number of objective criteria so as to remove any element of arbitrariness in
the distribution of funds. Explanations should also be sought regarding the
precise meaning of this provision.
—
Section 93, paragraph 2 requires an explanation.
—
Section 98 should probably be deleted. It is impossible to force the local
authorities to adapt their own budget to fit in with the state budget without
seriously undermining local self-government.
— The
concept and the exact role of the "administrative commission"
referred to in Section 117 et seq should be clarified. With respect to
the local and regional authorities, this should only be a co-ordinating body,
for it cannot take any binding decision concerning their activities without undermining
their autonomy. Section 121, which states that "conflicts between the
central authorities and the local and regional authorities shall be settled by
the government", is not admissible.
— Care
should be taken to ensure that the personal legal liability of local
representatives (including civil liability) provided for in Section 132 does
not prevent them from performing their duties freely. The law should also
provide for a form of direct liability for local authorities as legal entities.
Footnotes:
1.
Discussed and adopted by the Standing Committee of the Congress on
2. English translator’s note: The word "district" is more commonly used in English than in French and therefore may not be so entirely inappropriate in an English translation of the bills in question. Nonetheless, even in the English the word "region" may be a better and much clearer solution for all concerned.
The Congress of Local and Regional
Authorities of
4th SESSION (Addendum)
RESOLUTION 59
(1998)1
on the
situation of local and regional self-government in the
The Congress,
1.
Having regard to the interim report on the situation of local and regional
democracy in the
2.
Having regard to Recommendation No. 38 on the same subject;
3.
Recommends that the national associations of local and regional authorities
provide all the assistance they can to the new Moldovan associations (the
Federation of Local and Regional Authorities and the Association of Mayors) in
their efforts to set up effective structures and promote local self-government
at a practical level in their country;
4.
Calls on the Moldovan associations of local and regional authorities to
consider setting up separate associations for the local authorities and the
regions once the law on the 8 new regions has been passed;
5.
Instructs the Working Group on the situation of local democracy in
Footnotes:
1.
Discussed and adopted by the Standing Committee of the Congress on
The
Congress of Local and Regional Authorities of
APPENDIX 2
Congrès des Pouvoirs Locaux et Ré
gionaux
de l'Europe
Congress of Local and Regional Authorities of
SEVENTH SESSION
(
RECOMMENDATION 84
(2000)[24]
on
REGIONAL DEMOCRACY IN
The Congress, having before it a proposal from the Chamber of Regions,
1. Recalling:
a. its Recommendation (38) 1998 on the situation
of local and regional self-government in the
b. its Resolution (59) 1998, in which it decided to continue monitoring
the development of local and regional democracy in
2. Having taken note of the results of the
official visits to
3. Having regard to the report prepared by
Mr Nicolae Radu (
4. Having taken note of the opinion prepared by Professor Philippe De Bruycker, consultant, on the legislation mentioned below;
5. Commends the Moldovan Parliament for
responding positively to its recommendation to pass the bill prepared by the
government on the country's new organisation of local and regional authorities;
in this connection, it is pleased that in November 1998 the Parliament enacted:
a. a law on the organisation of local and regional authorities enabling nine new regions (judets) to be established;
b. a law on local government (also concerning the regional level);
6. Welcomes the passage by the Moldovan Parliament of other legislation on local financing, local property and the status of regional elected representatives which also refer to the regional level;
7. Concerning Gagauzia, is of the opinion that its special autonomy should be reflected not only in laws and regulations but also in practice, in conformity with the proposals contained in paragraph 15.e of this recommendation;
8. Is pleased that the discussions concerning the former district (raion) of Taraklyia have been concluded with the creation of a new region in addition to the nine others created by the law on the organisation of local and regional authorities; that is a clear sign of the Moldovan authorities' determination to respect the rights of national minorities and testifies to their efforts to develop pluralist democracy at regional level;
9. Welcomes the fact that, following the creation of the ten regions, Moldovan citizens were able to choose directly the representatives of these new regional administrative entities in democratic elections;
10. Thanks the Moldovan central authorities for inviting it to observe these elections, including those concerning Gagauzia and Taraklyia;
11. Is pleased that in July 1999, following its recommendations, the representatives of the new regions and Gagauzia created an association representing their interests (Association for Regional Development through Local Self-Government);
12. Considers that the creation of this association constitutes an important element in promoting co-operation between these regions and their representation in dealings with the central authorities;
13. Is convinced that a settlement of the
conflict between the Moldovan authorities and the authorities of Transdniestria
must remain a national priority in the context of preparations for
14. Recalls that it is prepared, if the Moldovan authorities so wish, to lend assistance, in conjunction with the Venice Commission, in defining a special autonomous status for Transdniestria;
15. Concerning the establishment and development of regional democracy in the country, considers it necessary to make the following comments and recommendations to the Moldovan governmental and parliamentary authorities:
a. The setting up of self-governing structures on
a regional basis constitutes a very important contribution to resolving the
problems of integrating the peripheral regions in the social, political and
economic life of the country. From this
point of view, the creation of new regions must be welcomed as a first step in
this direction;
b. It must also be pointed out that the regionalisation process can create the necessary foundation for the economic development of the entire country, which continues to be one of the Moldovan authorities' priorities;
c. It is urgently necessary to put into place a specific and distinct legal framework for the recently created regions as well as the city of Chişinau, which have been experiencing problems and have needs that very often differ from those of local municipalities in the strict sense (towns and villages);
d. The law on local government may be said to be on the right track, because it covers a large number of questions that concern regional self-government. However, it needs to be improved upon in order to:
i.
clarify the relationship between the local authorities and the new regions;
from this point of view, there is reason to doubt the appropriateness of giving
the regions general powers for co-ordinating municipal activities,
ii. spell out the status of prefects whose functions – despite the fact that the law states that there is no relationship of subordination between the prefects and local government bodies – do not seem to be well accepted by the recently created regional authorities,
iii. increase the number of meetings of regional councils during the year: four meetings do not seem to be sufficient,
iv. define the links between the adoption of the regional budget and the adoption of the national budget,
v. provide for civil and criminal liability for regional authorities as legal entities alongside the direct personal liability contemplated for elected representatives;
e. Finds that the implementation of legislation on local government and the organisation of local and regional authorities pose particular problems with regard to Gagauzia and its special status. In this context, it wishes to formulate the following comments and recommendations:
i. it is not desirable for Gagauzia to be considered, by law or interpretation, to be a second tier of regional government in the same way as the other nine regions and the city of Chişinau, despite its special status recognised by the Constitution (see the Venice Commission’s opinion in this regard),
ii. the institution of a prefect in Gagauzia does not seem to be in keeping with the autonomy granted this entity; this comment also flows from the status of the Governor of Gagauzia (Bashkan) who, as ex officio member of the government, represents it in the region in which he was elected,
iii. conflicts might arise in the future between the prefect and the Gagauzia authorities that jeopardise the balance achieved after long and difficult negotiations between the central authorities and the Gagauzia authorities,
iv. the law on the special status of Gagauzia can only be amended by a special majority; accordingly, it is part of the corpus of constitutional law, and its provisions take precedence over other Moldovan laws in keeping with the hierarchy of legal rules (principle of lex superior),
v. from a political and legal point of view, it would be necessary for the Moldovan Parliament to confirm the special autonomy of Gagauzia and specify once and for all the institutional nature of this autonomy and the powers of the elected bodies in Gagauzia under the Moldovan legal system. On this basis alone will it be possible to interpret and amend the legislative provisions concerned, which now seem to be in conflict. The Congress is prepared to participate with the Venice Commission in the efforts of the working group established by the Moldovan authorities for this purpose;
f. From a general point of view, recommends that the new legislative and administrative machinery for regional self-government be improved and revised to take account of the above-mentioned problems;
g. On this basis, the requisite measures should be taken to implement this legal framework so that the regional authorities can:
i. govern their regions within the limits of the autonomy recognised by law and the Constitution, in particular as concerns reconciling financial resources and powers,
ii. establish far-reaching relations with authorities in other
European countries and become involved in associations representing them at
international level.
Congrès des Pouvoirs Locaux et Régionaux
de l'Europe
Congress of Local and Regional Authorities of
SEVENTH SESSION
(
RESOLUTION 103 (2000)[25]
on REGIONAL DEMOCRACY
IN
The Congress, having examined the proposal of the Chamber of Regions,
1. Recalling:
a. its
Recommendation (38) 1998 on the situation of local and regional self-government
in the
b. its Resolution (59) 1998, in which it decided to continue monitoring the development of local and regional democracy in that country with a view to producing a final report;
2. Having taken note of the results of the official visits to Moldova in 1999 and 2000 by the rapporteurs of the relevant working groups in order to observe the various local and regional elections and implement the above-mentioned decision;
3. Having taken note of the report drafted by Mr Nicolae Radu (Romania, R) on regional democracy in Moldova, instructs its Bureau to address the recommendation which it adopted on the basis of this report to the governmental and parliamentary authorities of Moldova;
4. Concerning local aspects, welcomes the establishment by the above-mentioned authorities of a general legal framework for the full exercise of local self-government;
5. However, in view of the findings of the official visits by Mr George Lycourgos (Cyprus, L), rapporteur on the situation of local democracy in Moldova, concludes that it is not yet possible to finalise a report in this regard owing to the following circumstances:
a. other legislative instruments, for example the law on administrative disputes, have to be published and given effect in order to supplement the above-mentioned legal framework;
b. the specific legislative instruments already passed by Parliament (laws on local financing, the municipal heritage, the status of local elected representatives, etc.) are not yet fully operational, which makes an objective assessment of their scope and effectiveness particularly difficult;
6.
In view of the above, instructs
the Institutional Committee of the Chamber of Local Authorities to resume
consideration of local self-government in the
7.
Instructs its Bureau to
consider organising a colloquy in
8. Is prepared to participate with the Venice Commission in the activities of the working group on Gagauzia set up by the Moldovan authorities.
APPENDIX 3
|
|
Congrès
des Pouvoirs Locaux et Régionaux de l'Europe
Congress of Local and Regional Authorities of
INSTITUTIONAL COMMITTEE
Appeals
from the National League of the Associations of Mayors
and
from the Agency for the Development of Regional
Self-Government
through Local Democracy
of
the
Liga Naţională a Asociaţiilor de Primari
Chişinău,
Stefan cel Mare 119, Et.2, B.14,
Telfax (373-2) 235 53297, e-mail: lnapm@mail.md
Attn.: To
the Congress of Local and Regional Authorities of the Council of Europe
Appeal of the National League of the
Associations of Mayors of the
Dear Sirs,
In
line with the statutory decision of the National League of the Association of
Mayors of the Republic of Moldova concerning the need to adopt adequate
measures to the recent policies of the central Government that try to diminish
the content of the local autonomy in our country affecting the core interests
of the elected local public authorities, we hereby appeal to the Congress of
Local and Regional Authorities of the Council of Europe with the request to
protect our rights against the abuses and discriminations from the state
authorities that oppose to the most important provisions of the European
Charter of Local Self-Governance.
We
would like the Congress to delegate a special
Sincerely,
Vasile Balan
President of the National League of the
Mayors Association
Mayor of the Telesheu Mayoralty, Orhei
District
30 august, 2001
Note
of the National League of the Associations of
Mayors of the
The
General Meeting of the National League of the Associations of Mayors observes
that the Parliament and the Government of the Republic of Moldova do not act in
full compliance with the provisions of the European Charter on Local
Self-Government, ratified in 1996 and accepted as a set of general norms for
the legislation and fundamental principles in the Constitution of the Republic
of Moldova.
The
most important violations of the above mentioned principles and norms were
especially registered after the recent power-shift in February 2001, when the
Communists gained absolute majority in the Parliament of the
In
particular, the Parliament of the
It
is expected that the Parliament will apply these new plans and intentions as
soon as they will adopt the new amendments to the Election Code and Law on
Local Public Administration will be enforced. Accordingly, the Parliament of
the Republic of Moldova is currently looking at the possibility to announce
anticipated local elections (presumably – in the end of November, 2001) and
thus – to brake the 4-years mandate of the current elected officials that has
been delegated to them after the last May 1999 Local Elections (both mayors and
local councillors). This contradicts with the will of the electorate and with
the free exercise of the public competencies delegated to the election
officials by free, universal, general vote.
A
similar trend is registered within the local public finances. Thus, on
The Government of the Republic of
Moldova and the Parliament of the Republic of Moldova ignored and essentially
did not addressed the requests and declarations adopted by various associations
of the mayors that belong to the National League of the Association of Mayors.
The majority of the requests for discussing these all issues with the
key-governmental officials and representatives of the Presidency and Parliament
of the
It
should be mentioned that the National League of the Associations of Mayors is
deeply concerned about the way how these intentions and plans are formulated by
the Government and Parliament Officials, as the elected officials have not any
possibility to express their opinions and to influence the process of adjusting
the legislation. In addition to the un-transparent and procedures used by the
Parliament for producing their plans, there is not any possibility to express
independent opinions about this process in the public mass media, now – totally
controlled by the ruling party. Public opinion is generally unaware about the
changes initiated in the media and largely ignored by the key-officials,
announcing fundamental changes to the existing system of local public
administration.
Contrary
to the Constitutional provisions stating that every imperative mandate is
nullified, the acting Election Code (Article 177, paragraph 2) stipulates a
possibility to revoke Mayors by local referendums while the provisions for the
revocation are very unclear and easy to misunderstand. In fact, this provision
is misused by the central administration to get rid from the most active Mayors
that disagree or publicly contested their decisions.
The National League of the
Associations of Mayors regrets that central authorities in the
Currently,
Mayors are required by order, and occasionally threatening letters, to collect
all taxes, including social taxes (notwithstanding current legislative
requirements to the contrary). In practice the budgetary approval and
allocation process does not allow mayors to reserve taxes collected for local
fees and services. They want tax collection to be the responsibility of the
government fiscal agents, except for local fees and taxes specified in the tax
code. Similarly, there is strong need to
clarify the respective roles and
improve the link between the Judet Councils and the local public authorities
and strengthen the system related to the financing of public services with a
minimum guarantee for education, health, culture and state subsidies as it is
perceived that insufficient funds are passed down to cover costs. The
local level is expected to finance services for which they have no tax base to
cover.
With
all these considerations in mind, the National League of the Associations of
Mayors is addressing the Congress of Local and Regional Authorities of the
Council of Europe with the request to assess the compatibility of these recent
trends with the commitment of the central authorities of the Republic of
Moldova with the European Charter on Local Self-Governance and, or with other
international documents. We are ready to assist whatever documentation mission
you may consider to undertake in the
September 3,
2001
Chisinau,
Phone:
(373-2) 21 36 32
Secretary
of the National League of the Associations of Mayors
Victor
Mocanu
|
|
L’Agence pour le Development
Regionale par l’Autonomie Locale
Chişinău, 2004-MD, Mateevici 89/6,
telefax: ( 373-2)
24.22.25, fax: ( 373-2) 234 – 22048; E-mail: forum@moldova.md
Re:
Violation of regional autonomy in the Republic of Moldova
Chisinau, September
7, 2001
Dear Sir,
You may like to
remember that in 1998, the Moldovan Parliament adopted new laws on local
autonomy and territorial organization aimed at decentralizing the state power
in the
Consequently,
new regions have been created with elected bodies enjoying some degree of
autonomy. The Congress welcomed the reform and encouraged the central
authorities of the
Unfortunately,
we should notify you that during the recent months a number of negative
tendencies directed to re-centralize the power from the local and regional
level to the central administration have been initiated by the central
government. Regions in the
The Bureau of the Associations of Regions (ADRAL) remains very concerned as their appeals have not been taken into consideration by the central authorities and their prospective initiatives are likely to get into force very soon (e.g. October, 2001).
We would be grateful if we could take the appropriate dispositions to examine within the Congress’ specific bodies – and if need be alongside with advised experts and Moldovan representatives – the current situation of regional democracy in the Republic of Moldova and its compliance with the European Charter of Local and Regional Democracy.
We rely very much upon Congress expertise and lobbying disponibilities and thank you in advance for your kind cooperation. Sincerely yours,
Anatol
Chetraru
Chairman of
the Lapushna Judet Council
President of
ADRAL (Agency for Regional Development Through Local Autonomy)
Str. Mihalcea
Hincu, 126, Hincesti, Judetul Lapusna,
Tel: (373-2) 234
– 22650
To: Mr. Llibert Cuatrecasas
President of the
Congress of Local and Regional Authorities of the Council of
Co: Mr. Risto Koivisto, President of the Chamber of Regions Mr. Rinaldo Locatelli, Chief Executive of the Congress Mr. Gunter Mudrich, Secretary of the Chamber of Regions
APPENDIX 4
Programme of the Congress delegation's visit to the
Monday, 29 October
9.00 Meeting with Mr Vasile Balan and Mr Renita, respectively the President and a member of the National League of Associations of Moldovan Mayors
11.00 Meeting with Mr Georges
Diener, Counsellor for co-operation and cultural affairs at the French Embassy
in the
14.45 Meeting with Mr Serafim
Urechean, Mayor General of the City of
16.00 Meeting with Mr Anatol
Chetraru, President of the Ungheni regional authority (Judet) and
Chairman of the ADRAL, the association of regional elected representatives of
the
17.00 Meeting with her Excellency
Dominique Gazuy, French Ambassador to the
Tuesday, 30 October
9.00 Meeting with Mr Pantelei Tiltu, Director of the State Chancellery, Ms Alla Popescu, Deputy Director of the State Chancellery, and Mr Vladimir Cusnir, Head of the Directorate of Public Administration at the State Chancellery
12.00 Meeting with Mr Vasile Iovv,
Chairman of the Committee on Public Administration of the Parliament of the
15.00 Meeting with Mr Victor Doras,
adviser to the President of the
16.00 Press conference
17.30 Meeting with Mr
Gottfried Hanne and Mr Andrej Klimcwyk, members of the OSCE Mission to
APPENDIX 5
Programme
of the
official visit to the
(
26th and 27th of January
Arrival of the CLRAE Rapporteurs and Experts to Chisinau.
Mr. Riccardo Priore,
Prof. John Loughlin,
Mr. Claude Casagrande,
Mr. Yavuz Mildon,
Accommodation at
the hotel “
(135,
Monday, 28th of January 2002
09.00 Meeting with Mr. Vasile BALAN and Mr. Valeriu RENITA, President and member of the Bureau of the National League of Mayors’ Association
10.00 Meeting with Mr. Anatol CHETRARU, president of Lapusna County Council and President of ADRAL, (Regional Development through Local Autonomy Association)
11.00 Meeting
with Mme Amb. Dominique GAZUY, Ambassador of the
14.00 Meeting
with Mr. Serafim URECHEAN, Mayor General of Chisinau, President of Local and
Regional Authorities Federation of the
15.15 Meeting
with Mr. Pantelei TILTU, Director of State Chancellery of the
16.00 Meeting
with Mr. Vasile TARLEV, Prime-Minister of the
Tuesday, 29th of January
09.00 Meeting
with Mrs. Eugenia OSTAPCIUC, Speaker of the Parliament of the
10.00 Meeting with Mr. Vadim MISIN, President
of the State Commission for Gagauzia
11.00 Meeting with Mr.Vasile IOVV, President of parliamentary Commission for public administration
14.00 Meeting
with Amb. Michael ZICKERICK, Ambassador of
16.00 Meeting with Mr. Vladimir VORONIN, President
of the
(to be confirmed)
Wednesday, 30th of January 2002
09.00 Meeting
with Ms Stela MOCANU, Project Co-ordinator "Local Agenda 21 in
10.00 Meeting
with Mr. Ivan BORISAVLJEVIC, Head of the European Commission Delegation in the
11.00 Meeting
with Mr. David SWARTZ, Head of the OSCE Mission in the
14.00 Meeting
with Mr. Dumitru CROITOR, Governor of TAU Gagauzia,
Departure of Prof. Loughlin (
30th and 31st of January 2002
Departure of the CLRAE Rapporteurs from Chisinau.
Mr. Claude Casagrande,
Mr. Yavuz Mildon,
Mr. Riccardo Priore,
APPENDIX 6
PROGRAMME
of the visit to the
of the Rapporteurs of the
Congress of Local and Regional Authorities of
COUNCIL OF
(
Arrival of the CLRAE Rapporteurs and experts to Chisinau.
Accommodation at the hotel "
tel:
(373 2) 232.251, fax: (373 2) 234.647)
9.00 Meeting with Mr. Vasile BALAN and Mr. Valeriu RENITA, President
and member of the Bureau of the National League of Mayors’ Association as well
as with Mr. Anatol CHETRARU, president of Lapusna County Council and President
of ADRAL, (Regional Development through Local Autonomy Association)
10.00 Meeting with Mr. Vasile IOVV, First Deputy Prime-minister of the
11.00 Meeting with Mr. Vasile
TARLEV, Prime-Minister of the Republic of
12.00 Lunch offered by Mr. Pantelei TILTU, Director of State Chancellery
of the
14.00 Meeting with Mr. David SWARTZ, Head of the OSCE
15.00 Meeting with Mr. Serafim URECHEAN, Mayor General of Chisinau,
President of Local and Regional Authorities Federation of the
16.00 Meeting with Mme Amb. Dominique GAZUY, Ambassador of the
17.00 Meeting with Mr DORACH,
President’s Administration
Departure of the CLRAE Rapporteurs and experts from Chisinau.
APPENDIX 7
OPINION
ON THE
Laws
of the
764-XV
on territorial organisation of
781-XV
on local public administration of
(Modifying
the Law 186-XV of 6 November 1998)
By
John LOUGHLIN
Professor
of Political Science,
Visiting Professor, Institut d’Etudes Politiques
de Paris
Visiting
Fellow, European University Institute,
Expert
to the Congress of Local and Regional Authorities
of the Council of
I. INTRODUCTION
This is the third occasion when the Council of Europe has asked for an expert opinion on two laws on the administrative subdivision of the territory and the law on local public administration (local government) in Moldova. The first two opinions were given by my colleague expert of the Congress of Local and Regional Authorities of the Council of Europe (henceforth the Congress), Professor Philippe de Bruycker. In his first opinion, delivered in February 1998, Professor de Bruycker stated that these two laws represented important steps by the Moldavian authorities in the direction of installing institutions of regional and local democracy in that country, in conformity with the principles of the European Charter of Local Self-government (henceforth the Charter), which the Moldavian Parliament had signed and ratified in 1997. At the same time, he pointed to a number of aspects of the two laws, which required further clarification and improvement. In his second opinion, delivered in June 1999, on the basis of the texts finally adopted by the Moldavian Parliament, he remarked that many of these clarifications and improvements had been made by the Parliament, although there remained some outstanding matters to be dealt with, mainly concerning the constitutional status of the Autonomous Region of Gagauzia
The main
innovations of the 1998 laws with respect to the previous system of local and
regional self-government in
In February 2001, the
Moldavian Communist's Party achieved an overall majority in the Parliament and
its leader also won the Presidency of the country. The new government emanating
from these elections and the parliamentary majority supporting it decided to
modify significantly the 1998 legislation by the adoption of the laws of the
Republic of Moldova 764-XV on territorial organisation of 27 December 2001
(repealing Law 191-XIV of 12 November 1998) and 781-XV on local public
administration of 28 December 2001 (modifying the Law 186-XV of 6 November
1998).
These laws abolished the newly
established regions (judets) and the
metropolitan region of Chisinau and restored the districts (raiony), although the number of the
latter would be slightly less than under the old system (32 as opposed to 37).
In this respect, it is significant that the chairman of the parliamentary
committee responsible for making these changes, Mr Iovv, informed Mr
Casagrande and Mr Mildon, Congress Rapporteurs visiting Moldova in
October 2001, that it was the new authorities’ intention to restore a
“vertical hierarchy” (la verticale du
pouvoir) (CG/Bur (8) 95).
Other major changes introduced
by the new laws were the abolition of the system of directly elected mayors.
Under the new legislation the local councils will elect mayors. The district
councils will, like the local councils, elect their presidents. However, a key
change with regard to both mayors and district presidents is that they will
also be functionaries of the state directly responsible to the central
authorities. The district president will also take over most of the
responsibilities of the prefect, although the proposed amendments are not very
clear on the new role of the latter. The Moldavian authorities’ have justified
these changes in the position of the mayors and district presidents by the
principle of the “interaction of the representative and executive powers”. They claim that this will assist the
functioning of local government in the country. Finally, the current Moldavian
authorities have called anticipated local elections, which, by the nature of
the case, would occur before the expiry of the mandate of the currently elected
regional and local politicians. The associations representing the current
regional and local authorities have claimed that the modified laws on local
government and administration are in serious breach of both the Moldavian
Constitution and the Charter, which
Concerning the other changes in the 1998 laws, the Congress has asked me, in my capacity as one of its independent experts, to make a study of the new laws and to deliver an opinion with regard to their conformity with the Charter. Before analysing in detail these changes, it is useful to distinguish between their substance and the procedures with which they have been adopted as both substance and procedure are covered by the Charter.
With regard to the procedure, there is a prima facie case that there have been serious breaches of the Charter. Art. 4, [6] of the Charter states that “Local authorities shall be consulted, insofar as possible, in due time and in an appropriate way in the planning and decision-making processes for all matters which concern them directly”. Art. 5 of the Charter states that “Changes in local authority boundaries shall not be made without prior consultation of the local communities concerned, possibly be means of a referendum where this is permitted by statute”.
During the visit
to
The Moldavian
authorities, on the other hand, referred to “hundreds of thousands” of
signatures reaching the parliament demanding the abolition of the regions.
However, evidence of these signatures was not produced nor was it made clear
how they were collected. It would seem that no referendums had been held among
the populations concerned, even if this is allowed by the Constitution of the
In order to analyse the substance of the 2001 Laws and to assess their conformity or otherwise with the Charter, it will be useful, in this Opinion, to follow the structure of the previous two Opinions delivered by Professor de Bruycker. This will make it easier to compare the evolution of the laws and to evaluate to what extent the 2001 versions constitute a significant break with those of 1998 and to what extent they are in conformity with the Charter.
II. OPINION ON THE LAW ON ADMINISTRATIVE SUBDIVISION OF THE TERRITORY
The Charter does not require those countries, which have signed and ratified it to adopt any particular form of regional and local government. Furthermore, local autonomy does not mean independence and the Charter recognizes the right of each state to preserve its territorial integrity. Each state is free to organise its system of territorial government and west European states have a variety of systems. Nevertheless, the Charter, aware that regional and local democracy are essential elements of democracy in general, advocates the adoption and implementation of a number of principles and practices which it regards as enshrining this aspect of democracy. The two Opinions by Professor de Bruycker and the two Congress Recommendations made clear that the 1998 Laws largely respected these principles of regional and local democracy particularly through the abolition of the 37 districts (raiony) and the setting up of the ten regions (judetsy), the metropolitan region of Chisinau and the other autonomous regions, even if there was still room for improvement in certain details of the laws.
The law 764 - XV
of
The authorities have justified this restoration on the grounds that the 1998 reforms, in breach of the Charter, were adopted without consultation of the population, produced no positive results, and were excessively expensive and contravened Art. 4 [3] of the Charter by creating a gap between the population and the state.
This states that “Public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen. Allocation of responsibility to another authority should weigh up the extent and nature of the task and requirements of efficiency and economy”. It seems to me that using this article to justify the restoration of the old districts is a fundamental misunderstanding of its meaning.
The districts,
as will be clear from the analysis of Law 781-XV of 2001 on Local Public
Administration seem to be primarily a means by which the central government can
reach into local affairs. The principle underlying Art. 4, [3], however, is the
exact opposite of this, that is, it is based on the principle of subsidiarity,
which, in its usual meaning, states that no decision should be taken by a
higher authority which can taken by a lower one. Furthermore, subsidiarity
allocates particular tasks to particular levels of government so that certain tasks
may be attributed to a regional level if smaller and more local units are
unable to carry these out for reasons of efficiency or economy. This
necessitates a fairly clear division of competences between the different
levels of government. However, in no country of western Europe, including the
regionalised unitary states of
Although the wording of the 2001 Law is almost identical to that of 1998, the abolition of the judets and the metropolitan region of Chisinau, the restoration of the districts and the interpretation given by the Moldavian authorities based on the principles of “vertical hierarchy” (“la verticale du pouvoir”) and “the interaction of the representative and executive powers” (“l’interaction du pouvoir représentative et le pouvoir exécutive”) make clear that the new law represents a step backwards in Moldova’s transition to democracy and are difficult to reconcile with the provisions of the Charter.
The principle of “vertical hierarchy” seems to be in conflict with Art. 3 (1) of the Charter, which states that “Local self-government denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population”. With regard to “the interaction of representative and executive powers”, it is difficult to reconcile this with Art. 3 [2] of the Charter which states that “This right [of local self-government] shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and which may possess executive organs responsible to them”. The executive power referred to in “the interaction of representative and executive power” underlying the new Moldavian legislation refers to the executive power of the central state of which the mayors and the presidents of the new districts are henceforth functionaries.
As already mentioned, in order to provide a complete judgement on the conformity of this law with the Charter it is worthwhile examining its provisions in relation to Law 781-XV on Local Public Administration. In fact this law clearly indicates the legal meaning, the political orientation and the modus operandi of Law 764-XV on Territorial Organisation. With this in mind, the final judgement on Law 764-XV will largely rely on the judgement concerning Law 781-XV.
III OPINION ON THE LAW ON LOCAL
PUBLIC ADMINISTRATION
These reservations are reinforced by a detailed analysis of the Law 781-XV of 2001 on Local Public Administration. Professor de Bruycker’s opinion on the 1998 Law was that it was “a step in the right direction and a commendable effort to put the principles of the European Charter of Local Self-Government into practice”, while still pointing to some areas in need of improvement. The 2001 Law, however, introduces major changes into the 1998 version. These changes are outlined in the amendments to Art. 1: the replacement of the region (judets) by the district (raion); the change in the method of electing the mayors of the lower level (villages and towns) from direct election by the population to election by the councils; the replacement of the prefect by the “president of the executive of the district council”, who is also elected by the district council; the change in the status of both mayors and presidents of the district councils who are both elected representatives and functionaries of the central state; the words déconcentrés and décentralisés (see the French translation of the Law) are suppressed from the phrases “services publics déconcentrés” and “services publics décentralisés”. Other changes concerning the distribution of competences across the two levels of local government. There is also less clarity with regard to the local finance regime.
With regard to local
authorities (level 1) in particular:
The key changes here are: the mode of election of the mayor, previously directly elected by the people, now elected from within the council (Art. 1); the legal position of the mayor and deputy mayors, who become state functionaries and whose activities are regulated by the Law on Public Service (Art. 33 [3]); the means by which a council may be suspended by Parliament, which may now occur, under certain conditions, on a proposal by the mayor, the president of the district, or the Government (Art. 30 [2]).
· The switch from direct election by the population to election by the council is not necessarily in violation of the Charter, although the general tendency in western Europe has been towards direct elections as a mean of separating the representative and executive branches and increasing the accountability of the latter to the people rather than to the central state.
· The Law 781-XV by making the mayor and deputy mayors state functionaries, based on the principles of vertical hierarchy and the interaction of the representative and executive powers, where the latter in fact means the central executive, risks seriously compromising the autonomy of the local authorities. This impression is compounded by the suppression of the terms “décentralisés” and “déconcentrés” from the phrase “services publics” in the Law. Art. 109 [1] of the Moldavian Constitution, states that “Public administration in the administrative/territorial units is based on the principles of local autonomy, of the decentralization of public services …”, and [2] states that “The concept of autonomy encompasses both the organization and functioning of local public administration, as well as the management of the communities represented by that administration”. Taken together, the amendments to the Law seem to lead in the opposite direction of such decentralisation and local autonomy. Art. 8 [2] of the Charter states: “Any administrative supervision of the activities of local authorities shall normally aim only at ensuring compliance with the law and with constitutional principles. Administrative supervision may however be exercised with regard to expediency by higher-level authorities in respect of tasks the execution of which is delegated to local authorities”. Art. 7, [1] of the Charter also states that “The conditions of office of local elected representatives shall provide for free exercise of their functions”. The hybrid position of the mayors and vice-mayors being both representatives and functionaries, based on the notions of vertical hierarchy and the interaction of representative and executive powers, would seem to violate the principle enunciated in these two articles, since the mayors and vice-mayors, while representing the council will also be under the control of their superiors in the administrative hierarchy. The latter, presumably, will be able to exercise administrative supervision over them as the mayor will be responsible for administering the “services publics [no longer décentralisés or déconcentrés] constitués dans les unités administratives territoriales de premier niveau” (Art. 1).
In its decision of
·
Similar to the previous point
it is worrying to find out that following the law in question, in some cases,
mayors (and their deputies) can be dismissed by higher authorities without any
judicial decision. This was also sanctioned by the
· The change in the means by which a council may be suspended is also worrying. This was covered by Art. 30 [2] of the 1998 Law which, in the French translation, states that “La suspension de l’activité du conseil local s’effectue par le parlement à la proposition motivée du préfet, basée sur la décision définitive d l’instance judiciaire”. The 2001 Law changes this to read that the Parliament may suspend the council on the basis of a proposal from the mayor, the district president or the Government. There is no reference to a decision by a judicial authority. This seems to be in breach of Art. 11 of the Charter, which states that, “Local authorities shall have the right to a judicial remedy in order to secure free exercise of their powers and respect for such principles of local self-government as are enshrined in the constitution or domestic legislation”. It is difficult to see how this principle can be applied if the council can be suspended on proposals from the mayor, the district president or the Government, all in a hierarchical relationship with each other, and in the absence of any judicial safeguards.
· A change also occurs in Art. 11 of the 2001 Law where the reference to the “droit à instituer des impôts et taxes locales” of the 1998 version is omitted. Art. 9 [3] of the Charter states that “Part at least of the financial resources shall derive from local taxes and charges of which, within the limits of statute, they have the power to determine the rate”. The original version of Art. 11 in the 1998 Law was clearly in accordance with this principle and it is regrettable that the reference to this right should be omitted from the 2001 version. Art. 18 [2] (f) of the 1998 Law, dealing with the powers of the local council, also makes reference to local taxation and states simply that one of these powers is “établir les impôts et les taxes locales, dans les conditions de la loi”. The 2001 Law, Art. 18 [2] (i) changes this to read: “décide la mise en application et la modification, dans les limites de ses compétences, des quotas, du mode et des délais de paiement des taxes locales, ainsi que l’octroi des facilités au cours de l’année ficale, effectue les modifications respectives dans le budget local”. It is less clear in this rather convoluted sentence than in the 1998 Law that it is the local council which has the right to fix local taxes and charges or whether these are part of the central state budget.
· Professor de Bruycker, in his Opinion on the 1998 Law, remarked that there was some overlapping of powers between the lower and intermediary levels of government although in second Opinion, he noted an improvement in the amended version of this Law. The 2001 Law is a serious regression in this regard with an even greater confusion of powers between the two levels than was the case in the 1998 Law. This constitutes a violation of Art. 4 [4] of the Charter, which states that “Powers given to local authorities shall normally be full and exclusive. They may not be undermined by another, central or regional, authority except as provided for by the law”. The following are some examples of this confusion of powers between the two levels:
* The 1998 Law (French translation), distinguishes between “l’aménagement du territoire, les problèmes de l’urbanisme, la gestion des localités et des territoires adminstratifs”, which is a competence of the local level (Art. 13 [1] (a) ) and “le développement social-économique du territoire”, which is a competence of the regional level (Art. 13 [2] (a)) . In effect, the competence of socio-economic development of the territory is a more general one and, following the tendency in most west European countries, is appropriately exercised at the regional level, while more specific or localised programmes are exercised at the lower level. The 2001 Law attributes exactly the same competence - “le développement socio-économique” - to both levels.
* The same confusion of responsibilities applies to road construction and maintenance. While not entirely satisfactory, the 1998 Law (French translation) distinguished between “la voirie …. et la circulation routière … dans les limites des localités”, the responsibility of the lower level (Art. 13 [1] (b)) from the “routes d’importance” at the level of the judets and Chisinau (Art. 13 [2] (b)). The 2001 Law attributes to the second level, the district, responsibility for “la construction et l’entretien des routes locales”, while retaining the 1998 phraseology for the lower level. This could be construed to mean that the district level might intervene in this sector also at the local level.
* In the 1998
Law there is a clear distinction between the attribution of responsibilities
for education between the local and the regional levels: the lower level is
responsible for “l’assurance du fonctionnement des institutions d’éducation, y
compris les écoles primaires séparées, les maternelles et les crèches” (Art. 13
[1] (i)); the regional level is responsible for “l’enseignement secondaire
général et secondaire professionel” (Art. 13 [2] (n)). The 2001 Law, by
contrast, attributes almost exactly the same functions to the lower and higher
levels in its Arts. 13 [1] (h) and 13 [2] (i). The wording of the two articles
is identical except for the addition of the phrase “la protection des jeunes
familles” to the attributions of the district. This is clearly against the
principles of the Charter, Art. 4, [4] as well as out of line with the practice
of most west European states which assign different levels of education to
different levels, with responsibility for more advanced levels being attributed
to higher levels of authority.
· The provision in Art. 49 [3] of the 1998 Law, which prohibited the secretary of the local council being a member of a political party or other socio-political organisation is suppressed in the 2001 Law. In the 1998 version, the secretary was appointed by the council on the basis of a proposal from the mayor and following a public competition. The 2001 Law, Art. 50 [1] stipulates that his nomination will now follow the same process as the election of deputy mayors as allowed for in Art. 41. This means he will be appointed by the council rather than on the basis of a public competition. The previous reference to “stabilité dans la fonction” of the secretary in the 1998 Law, Art. 50 [2] is suppressed in the new law. These changes, taken together, signify a reduction in the independence of the council secretary and increase the possibility of his falling under the control of political parties or socio-political organisations. It is also regrettable that the reference to stability has been removed as the council secretary should represent a continuity within the council whatever the changes in the political complexion of the council might be.
The net effect of these confusions of responsibilities, besides weakening the effectiveness of the particular policy areas and infringing the principle of subsidiarity which is the basis of Art. 4 [3] of the Charter, will be to strengthen the grip of the higher over the lower levels of government, thus leading to increased centralisation rather than greater autonomy for the lower levels. The 1998 Law was by no means perfect in this regard, but the amended version did move in the right direction of attributing “full and exclusive powers” to the lower level as demanded by the principles of the Charter. The 2001 Law, Art. 50 , by contrast, is in net regression in this regard.
With regard to districts (level 2) in particular
We have already made clear that, although the change from regions to districts may be compatible with the principles of the Charter in the sense that each country is free to choose its own system of local and regional government, in this particular case, combined with the other changes that have been noted, the return to the districts by the Moldavian authorities has a distinctively centralising aspect. The attempts by the Moldavian authorities to justify this change by reference to the Charter are unconvincing. Other justifications, on the grounds of tackling the problems of economic crisis, crime and corruption are, properly speaking political and fall outside the scope of this Opinion, which is concerned with the juridical aspects of the changes and their conformity or otherwise with the Charter.
Much of what has been said with regard to the local authorities applies also to the districts:
· The “president of the executive committee of the district council” (henceforth “district president”) has a status similar to that of the mayor, in that he is elected by the council (Art. 1) and is its representative (Art. 66, [2]) but is also a public functionary (Art. 66, [4]). It is also worrying that he replaces the prefect as the “représentant du Gouvernement sur le territoire” (Art. 66, [8]). It is unclear in the new legislation what will be the future role of the prefect. There is thus the same ambiguity with regard to the autonomy of this level of government as exists at the local level and with regard to the position of the mayor. Taking into account the same principles of vertical hierarchy and the interaction of representative and executive powers, it must be concluded that the ambiguity is resolved in the direction of increased centralisation rather than autonomy.
·
The concern expressed in
relation to the possibility that mayors and their deputies can be dismissed by
the district authorities without any judicial decision, also refers to the
right of the parliament to dismiss the district authorities. In this respect,
it is worthwhile observing that the
· There is the same lack of clarity with regard to the tax-raising powers of the district council an attribution which was contained in 1998, Art. 59 n but which has disappeared from 2001, Art. 59. Chapter X of the 1998 Law dealt with the “Administration of Public Finances” and Art. 92 [1] within this chapter explicitly states that at least part of the revenues of the local and regional authorities would come from local taxes fixed by them. I assume that this Chapter will remain in the 2001. Would the Moldavian authorities confirm that this will be the case?
· The same changes outlined above with regard to the position of the secretary of the local council have been introduced with regard to the secretary of the district council and the critical remarks made above apply here as well.
With regard to Gagauzia in particular
The 2001 law makes no explicit reference to Gagauzia that is different from the 1998 version but clearly the above amendments to the 1998 Law, if also applicable to Gagauzia will have serious implications for the autonomy of that region. This is something that needs clarification from the Moldavian authorities.
On the occasion of the official visits of the Congress Rapporteurs the Moldavian authorities declared that the autonomy of Gagauzia will not be affected by these laws.
In this respect, it should be observed that a draft law modifying the Constitution in relation to Gagauzia (prepared by an Ad hoc state committee) was recently examined by the Venice Commission (Consolidated Opinion on the Law on Modification and Addition in the Constitution of the Republic of Moldova, doc. CDL (2002) 40, 101/2001).
In general, by this text the Venice Commission expresses a positive judgement on the draft law in question. However, it also refers to a number of criticisms indicating possible improvements.
The
APPENDIX 8
|
|
Congrès
des Pouvoirs Locaux et Régionaux de l'Europe
Congress of Local and
Regional Authorities of
CG/INST (8) 50
INSTITUTIONAL
COMMITTEE
Draft law on modification
and addition to the Constitution
of the
concerning the Gagauzia
status
The Parliament is adopting the present constitutional law.
General Article
- the Constitution of the
1. Article 73 will have the following content:
"Article
73
Legislative
Initiative
The right to
legislative initiative belongs to members of Parliament, the President of the
1. Chapter VIII will be made-up of two sections.
After the Chapter's title there are the words "Section I The Central Public Administration". After Article 108 there are the words "Section II The Local Public Administration".
2. Article 110 will have the following content:
"Article 110
Administrative-Territorial Organisation
1) The
territory of the
2) Districts
on the left bank of the
3) The
status of the capital of the
3. Article 111 will have the following content:
"Article
111
Territorial
Autonomy Authorities
1) The
territorial autonomies have representative and executive bodies according to
the law.
2) The
supreme officials of the territorial autonomies are elected according to the
special organic laws, which determine their status.
3) Control
over the observance of the Constitution and Legislation of the
4. After Article 111 there is a new Article 111 - 1 with the following content:
"Article 111 - 1
Territorial Autonomy Gagauzia
1) Gagauzia
is a territorial autonomy with special status, which, as a form of gagauzian
auto-determination, is an integral and inalienable part of the
2) Within
the territory of the territorial autonomy Gagauzia, all rights and freedoms
stipulated in the Constitution and legislation of the
3) Land,
subterranean and water resources, flora and fauna, other natural resources
which are situated on the territory of the territorial autonomy Gagauzia, are
the property of the people of the Republic of Moldova and, at the same time,
are an economic basis of the territorial autonomy Gagauzia.
4) The
budget of the territorial autonomy Gagauzia is formed according to the norms
stipulated in special organic law, which determines the status of Gagauzia.
5) If
the
6) The improvement of the legislation of
the
President of the Parliament
ANNEXE 9
|
|
<cdl\doc\2002\cdl\ 040-e.doc> CDL
(2002) 40
Or. Eng.
191 / 2001
EUROPEAN COMMISSION FOR
DEMOCRACY THROUGH LAW
(
CONSOLIDATED OPINION
ON THE LAW
ON MODIFICATION AND ADDITION
IN THE CONSTITUTION
OF THE
based on comments by:
Mr James HAMILTON (
Mr
Kaarlo TUORI (Member, Finland)
Mr Joan VINTRO (
I. Introduction
1. On
2. On the invitation of the Moldovan
authorities a group of Rapporteurs and two members of the Secretariat of the
Venice Commission visited
3. In order to place the proposal in its context it is necessary to refer to certain current legal provisions concerning the autonomous region of Gagauzia, their place in the Moldovan legal order and certain key provisions of the Constitution of Moldova.
II. Current legislative framework
A. The Constitution of the
4. Article 1 of the Constitution
establishes the
5. Article 60 provides that Parliament is
the sole legislative authority of the State in the
6. The Constitution is, by virtue of
Article 7, the supreme law of the country.
No laws or other legal acts and regulations in contradiction with its
provisions may have any legal power.
Article 135 empowers the
7. Article 72 classifies the laws into
three categories: constitutional, organic and ordinary. Constitutional laws are aimed at revising the
Constitution. The revision, under
Article 141, must be initiated by popular initiative, by one-third of the
Parliament, or by the Government. A
revision may not be allowed if it results in the suppression of fundamental
rights or their guarantees (Article 142 (2)). The
8. Article 111 of the Constitution provides that special forms of autonomy, according to special statutory provisions of organic law, may be granted to (a) “the places on the left bank of the Nistru river” (Transdniestria) and (b) “certain other places in the south of the Republic of Moldova” (this refers to Gagauzia). Article 111 goes on to provide that “amendments to the organic laws establishing special status” for these places require a three-fifths majority in Parliament. Article 111.2 implicitly provides for “special” organic laws regulating the status of autonomies.
B. The Law on the Special Legal Status of
Gagauzia
9. Gagauzia was established as an
autonomous territorial entity by an organic law of
10. The 1994 Law establishes Gagauzia as
comprising localities where Gagauzes constitute more than 50% of the
population, together with other localities where a majority in a local
referendum wish to be included in Gagauzia.
(Article 5). The 1994 Law provides that “land, mineral deposits, water
flora and fauna, other natural resources and movable and immovable property situated
in Gagauzia shall be the property of the people of the
11. Article 1 (4) of the 1994 Law provides that in the event of a change in the status of Moldova as an independent State, the people of Gagauzia shall have the right to external self-determination.
12. The 1994 Law establishes a representative body in Gagauzia (“the People’s Assembly”) with power to adopt legal Acts within the limit of its competence (Article 7). It can adopt legal local laws by a simple majority (Article 11 (1)) in the fields of science, culture and education; housing and public services and utilities; health care, physical culture and sport; local budgetary, financial and fiscal activities; the economy and ecology; and labour relations and social security (Article 12 (2)).
13. The People’s Assembly also has powers in relation to regional planning, boundaries of regions, towns and villages, place-names, local elections and referenda, symbols and awards (Article 12 (3)). It has power to adopt, and has adopted, a legal code (Article 11 (2)).
14. The texts do not make it clear what the respective powers of the People’s Assembly and the national Parliament to make laws in these areas are, and what place such laws have in the hierarchy of norms. It would seem, from answers given to the delegation in the course of discussions, that the People’s Assembly’s competence to make laws in the area where it is empowered to legislate are not exclusive, that is, that laws of the national Parliament may continue to apply, but that in case of conflict that laws of the People’s Assembly prevail.
15. The People’s Assembly can ask the
Constitutional Court to declare invalid legal Acts of the legislative and
executive authorities of the Republic of Moldova, which infringe the powers of
Gagauzia (Article 12 (3)(i)). Legal acts
of Gagauzia that contradict the Constitution may also be declared invalid
(Article 12 (6)), but the 1994 Law sets out no special procedure to regulate
applications to do so. The initiative to bring such a matter before the Court
is determined by the law regarding the
16. The 1994 Law also provides for an executive Head (Bashkan) of Gagauzia, and an Executive Committee. The Executive Committee has responsibility, inter alia, for local budgetary and financial arrangements, local taxation, and drawing up a budget. By Article 18 the budget is to consist of such receipts as shall be determined by national legislation and by the People’s Assembly.
17. The 1994 Law also established a Court of Gagauzia as an appellate court and as a court of first instance for complicated civil, administrative and criminal cases (Article 20). Gagauzia has its own Procurator and its own Departments of Justice, National Security and the Interior, whose heads are appointed and dismissed by their national counterparts on a proposal from the People’s Assembly or the Bashkan with the approval of the People’s Assembly. Responsibility for the appointment and dismissal of senior police officers is shared between the central authorities and Gagauzia.
* * * * * * *
18. Taking into account the current legislative provisions and the consensus of all parties that constitutional changes should be made on the basis of the 1994 Law and in full respect of constitutional provisions, it can be presumed that constitutional amendments should be drafted on the following principles and criteria:
a) compatibility
between the unitary character of the
b) political, rather than administrative, nature of territorial autonomies such as Gagauzia;
c) possibility to use special symbols of the autonomies and a special status (official) of other language(s) in use on the territory alongside the State and national languages established by the Constitution of Moldova;
d) special organic law is the legal basis for the functioning of the autonomy; Law of 1994 can be already considered as such law in the light of Article 111.2 (see p.10);
e) “special organic law” should be distinguished from organic laws on both material and formal levels[27];
f) the Constitution of Moldova and special organic laws represent a constitutional basis, which determines the development of all other norms – no piece of legislation or other normative act can be in conflict with the provisions of the Constitution and the special organic law; organic and ordinary laws can be implemented in Gagauzia if they do not contradict the Constitution and provisions of the special law on the status of Gagauzia;
g) The
Constitutional court of the
III. The Proposed Constitutional Law
A. The current situation with regard of the status of the Gagauz
autonomy.
19. It is important to emphasis that both the Moldovan authorities whom the Commission delegation met and the Gagauzian representatives who were critical of the proposed law expressed themselves generally satisfied with the workings of Gagauzian autonomy as provided for in the provisions of the 1994 Law. The question therefore arises whether the proposed constitutional law is necessary and whether it might not be wiser to leave well alone given that the present system appears to have worked now for eight years. The present proposal may run the risk of upsetting the balance with a constitutional law that has proved to be controversial.
20. The answer, which was given to this
question by supporters of the proposal, is that a constitutional underpinning
of the existing arrangements is both desirable and necessary. It was suggested
that aspects of the 1994 Law might be in conflict with the Constitution. For
example, the
21. The establishment of an autonomous region
in Gagauzia falls far short of converting
22. However, the extent of the powers
conferred on the Gagauzian autonomous institutions is very striking. The range
of matters on which the People’s Assembly can legislate is almost fully
comprehensive. It is difficult to see any important area, which is
excluded from their competence apart from defence and foreign policy. Even here
the 1994 Law contains an express right for the People’s Assembly to participate
in the implementation not only of the home policies but also the foreign
policies of the Republic of Moldova with regard to matters affecting the
interests of Gagauzia (Article 12 (3)(b)). The range of executive
responsibilities is equally comprehensive. In addition to budgetary powers, the
Executive Committee can regulate property relations, management of the economy,
social and cultural systems, social security, remuneration, local taxation,
environmental protection, and the use of natural resources. It has
responsibility for the implementation of legal acts of the People’s Assembly
which, as already seen, can cover a comprehensive range which includes
education, housing, public services and utility, health and labour relations.
23. There are, therefore, aspects of the
current arrangements under the 1994 Law, which are difficult to square with all
of the constitutional provisions, notwithstanding that the Constitution, in
Articles 72 and 111, expressly envisaged the creation of local autonomous
institutions. It is difficult, for
example, to see that the creation of a legislature in Gagauzia whose laws are
capable of ousting the national laws is consistent with Article 60 in its
conferring of sole legislative competence on the national Parliament, or with
Article 66 which empowers Parliament to ensure legislative unity of regulations
throughout the country.
24. More fundamentally, if the solution
arrived at in 1994 is intended to represent a lasting solution to the problem
of Gagauzian autonomy and self-determination, it would represent a better
protection for the legal order established by the 1994 Law if the essential
features of that law (and not merely the right to make such a law) were
reflected in the Constitution. Unless
and until this is done the 1994 Law remains vulnerable to further incursion by
decisions of the
25. It seems, therefore, that there are good
reasons why the 1994 Law should be given a constitutional underpinning, both to
avoid any question about its compatibility with the constitutional framework
and possibly to avoid the essential features of it being altered without the
consent of the people of the autonomous region.
26. From the beginning of the process of
drafting the amendments in 2001 there were two different approaches to the
future provisions of the Constitution with regard to Gagauzia. One draft was
presented by a special Commission on constitutional amendments created by the
parliament of
27. The second proposal of constitutional
amendments had been drafted by a group of members of the Popular Assembly of
Gagauzia and was presented during the visit of the delegation of the Venice
Commission to Chisinau in February 2002. This draft law aims at transforming
Moldova into a federative state with the present Republic of Moldova and
Gagauzia as its constitutive (and equal) entities. As such, the draft law can
be considered an unrealistic basis for any further discussions. Given the
various national and ethnic minorities in
B. Law on modification
and addition in the Constitution of the
28. When analysing the
law it should be pointed out that it contains a number of positive features.
These could be identified principally as follows:
a) The clarification of Article 73 is useful and important and has been generally supported. According to the proposed Article 73, the Popular Assembly of Gagauzia would be granted the right to legislative initiatives. As it is the case in most countries with territorial autonomies the final decision on the initiative belongs to the national parliament. If the intended amendments are to cover not only a status of Gagauzia but autonomies in general it could be completed with the phrase ‘(Gagauzia) and other legislative Assemblies of autonomies’.
b) The amendment of Article 110 to make specific provision for the Gagauzian autonomy is a positive step.
c) Similarly,
the idea of the new Article 111-1, which makes detailed provision for Gagauzian
autonomy, setting out a number of key provisions of the 1994 Law in the
Constitution, is a positive step. In
particular, the giving of constitutional expression in paragraph (5) to the
right of self-determination of Gagauzia in the event of a change of status of
29. There are, however, a number of
shortcomings in the draft which could be identified as follows:
a. Articles
110(1), 111(2), 111-1(4) and 111-1(6) refer to “special organic laws” which
would apparently constitute a new hierarchical level between the Constitution
and “ordinary” organic laws in the legal order of
Article 111
b. The proposed
new Article 111(1) makes no reference to the existence of legislative bodies
since its wording is “the territorial autonomies have representative and
executive bodies according to the law”. The term “representative” could be
replaced by “legislative”. The constitutional change should underline rather
political than purely administrative character of the autonomy. The text needs
to make specific provision for legislative powers and to address the possible
conflict with the existing Articles 60 (Parliament as the Supreme
Representative Body and Legislative authority) and 66 (Basic Powers). If the
scope of the proposed modification of the Constitution is upheld, Articles 60
and 66 should be modified in the light of the law of 1994. The paragraph 1 of
this Article should also mention judicial bodies[30].
c. Article 111
(2) should provide for the legislative nature of the assembly of the autonomy
and the democratic character of territorial institutions. It could provide that
a territorial autonomy has a legislative assembly and executive bodies
democratically elected in accordance with the Constitution and the special
organic law.
d. The
reference in the proposed Article 111(3) that the control over the observance
of the Constitution and legislation of the
Article 111-1
e. The meaning
of the expression “within the law’s framework” is unclear in Article 111-1(1).
It seems that such changes would continue to have to be made by an organic law.
As has already been mentioned, the references to a “special” organic law seem
to refer to the current Article 111(2), which requires a three-fifths majority
to amend organic laws concerning autonomy, but since there is otherwise no
reference to “special” organic laws it would be desirable that this be
clarified in the text. In addition, the effect of putting certain provisions in
the Constitution will be to further entrench them since amendments to the
Constitution require a two-thirds majority. It is therefore a safeguard for the
Gagauzian autonomy that the key provisions of the 1994 Law should appear in the
Constitution.
f. The
proposed Article 111-1 (3) concerning natural resources differs from the text
of the 1994 Law. It is not clear why
this should be so.
g. According to the proposed Article 111-1(4), the budgetary process in Gagauzia shall be regulated through the special organic law determining the status of Gagauzia. This is the only issue, which Art 111-1 on “the Territorial Autonomy Gagauzia” explicitly requires to be regulated through the special organic law. It is essential for the constitutional protection of the autonomy of Gagauzia that the issues, which belong to the exclusive scope of regulation of the special organic law, are enumerated in the Constitution.
h. It may be
appropriate to give some consideration as to how future amendments to the
system of Gagauzian autonomy should be made. The proposed Article 111-1(6)
contains a provision on the qualified majority required for changes and
amendments to the special organic law on Gagauzia. A question in need of
further consideration is whether the appropriate location for such a provision
in this Article or in Chapter Three, Section Three of the Constitution. For
example, in
Other
observations
In order to facilitate control through the Constitutional Court, the appropriate Moldovan authority, such as the Government of the Republic of Moldova or the Prime Minister, should have the power to submit to the Court any legal act adopted by the Popular Assembly of Gagauzia which the authority considers to exceed the powers of the Assembly. At present, the law on the Special Legal Status of Gagauzia only gives the Popular Assembly of Gagauzia the power to submit to the Constitutional Court legal acts adopted by the legislative or executive authorities of the Republic of Moldova which it considers to infringe the autonomous powers of Gagauzia (Article 12(3), par. i). Article 135 (1) of the Constitution of Moldova could be amended with corresponding provisions giving the power to central authorities to challenge the constitutionality of the normative acts of the autonomy.
IV. Conclusion
The proposed draft law on constitutional amendments
concerning Gagauzia is a positive development since it recognises the existence
of the autonomy and determines its competences at the level of the Constitution
of the
APPENDIX 10
PROGRAMME
of the Congress delegation's official visit to the
18-20 February 2002
MONDAY 18 FEBRUARY
2002 - CHISINAU
11.00 Meeting with the Turkish
Ambassador to
Turkish Embassy
14.00 Meeting
with Mr Gottfried HANNE, member of the OSCE Mission to
16.15 Meeting with Ms Regina LOCHNER,
Assistant to the Ambassador
Embassy of the
17.00 Meeting
with Mr Julien DERUFFE, Chargé d'affaires at the French Embassy in
18.30 Meeting
with Mr Piotr PASHALI, President of the Chamber of Commerce and Industry of
Gagauzia and former Speaker of the People's Assembly of Gagauzia
TUESDAY 19 FEBRUARY 2002 - GAGAUZIA
Office
of the Bashkan of Gagauzia in Comrat
09.30 Meeting
with:
§
Mr Dumitru CROITOR, Bashkan
of Gagauzia
§
Mr Mihail KENDIGELAN, Speaker
of the People's Assembly of Gagauzia
§
Mr Sergey DEMOGLU, Deputy
Speaker of the People's Assembly of Gagauzia
§
Mr Nikolai STOIANOV, President
of the Executive Committee of Gagauzia
§
Mr Valerii IANEOGLU,
Vice-President of the Executive Committee of Gagauzia
§
Mr Ivan CALCIU, Head of the
Justice Directorate for Gagauzia, Ministry of Justice of the
§
Mr Ivan BURGUDJI, Director of
Legal Affairs and Protocol, People's Assembly of Gagauzia
People's Assembly of
Gagauzia, Comrat
11.30 Meeting
with members of the Assembly opposed to the Bashkan:
§
Mr Ivan KRISTIOGLU, member of
the People's Assembly of Gagauzia, Chairman of the Committee on Rules of
Procedure, Ethics and Petitions
§
Mr Ivan TOPAL, member of the
People's Assembly of Gagauzia, Chairman of the Committee for Legal and Civic
Affairs
§
Ms Evghenia CIORBA, member of
the People's Assembly of Gagauzia, Chairman of the Committee on Social Problems
§
Mr Feodr TERZI, member of the
People's Assembly of Gagauzia, Deputy Chairman of the Committee on Use of
Languages and Interethnic Relations
§
Mr Ivan CEBAN, member of the
People's Assembly of Gagauzia, Chairman of the Budget Committee
§
Ilia CIOLAC, member of the
People's Assembly of Gagauzia
14.00 Meeting with Mr Stepan VARBAN, Rector of the
15.30 Meeting
with Mr Konstantin TAUSANCI, Mayor of Comrat -
17.15 Meeting with Mr Stepan TAKA, Head of Legal Department,
People's Assembly of Gagauzia
People's Assembly of Gagauzia
WEDNESDAY 20 FEBRUARY 2002 - CHISINAU
08.30 Meeting with Mr Ion MOREI, Minister of Justice of the
09.15 Meeting with Mr Ion STAVILA, Deputy Minister of
Foreign Affairs of the
10.15 Meeting with Mr Dumitru BRAGHIS, former Prime Minister
and Member of the Parliament of the
11.30 Meeting with Mr BALAN and Mr Valeriu RENITA,
respectively the President and a member of the National League of Associations
of Moldovan Mayors - Council of Europe Information and Documentation Centre,
Chisinau
13.00 Press
conference - Infotag Agency, Chisinau
14.00 Meeting with her Excellency Pamela SMITH
16.00 Meeting with Mr Ivan BORISAVLJEVIC, Head of
the Office of the European Commission Delegation in
17.00
Meeting with Mr Vasilii IOVV, First
Deputy Prime Minister of
The Congress of Local and
Regional Authorities
of Europe
APPENDIX
11
1311-149 from 11.04.2002
According to the agreement between the Head
of the Government of the Republic of Moldova and the Mission of The Congress of
Local and Regional Authorities of Europe following its visit to Chisinau
from 4 April 2002, we are sending you
enclosed the Commentary on some points of the Draft Opinion worked out by
Professor John Loughlin, expert of the Congress of Local and Regional
Authorities of Europe.
Respectfully,
Prime Minister of
Vasile TARLEV
of
the
Commentary on some
points of the Draft Opinion
by Pr. Jon Loughlin of
As mentioned in
the State Chancellery’s message of 1 April, 2002, no.1311-129 both Laws (the
Law of the Republic of Moldova 764-XV of 27 December 2001 on
administrative-territorial organization of the Republic of Moldova and the Law
of the Republic of Moldova 781-XV of 27 December 2001 on completing and
amending the Law 186-XIV of 6 November 1998 on local public administration),
which have been commented on by Pr. Jon Loughlin in his Draft Opinion of March
7, 2002 (henceforth the Draft Opinion) have been subject to assessment of their
constitutionality by the Constitutional Court of the Republic of Moldova.
In this Commentary
we will thus refer only to those points of the Draft Opinion that have not been
considered by the
Law on
administrative-territorial organization of the
In compliance with
paragraph (4) of Art.26 of the Law of the
In line with the
idea of the provision cited above, as well as the constitutional stipulations
on the Constitutional Court (Art.134 [3], Art.135 [1] (a), Art.140 of the
Constitution of the Republic of Moldova) we can conclude that any comments on a
law that the Constitutional Court recognized as being constitutional are
groundless.
Thus the aspects
revealed in the Draft Opinion concerning Law 764-XV of
Law 781-XV of
·
The key
changes here are: the mode of election of the mayor, previously directly
elected by the people, now elected from within the council (Art.1); the legal
position of the mayor and deputy mayors, who become state functionaries and
whose activities are regulated by the Law on Public Service (Art.33[3]); the
means by which a council may be suspended by Parliament, which may now occur,
under certain conditions, on a proposal by the mayor, the president of the
district, or the Government (Art. 30 [2]).
The mode of
election of the mayor by the local council is already acknowledged as
unconstitutional and the necessary amendments will be made to the Law on Local
Public Administration and Election Code.
The juridical
status of the mayor and deputy mayors is regulated by the Law on the status of
the locally elected no.768-XIV of
·
“This …. is
compounded by the suppression of the terms “decentralises” and “deconcentres”
from the phrase “services publiques” in the Law. Art. 109 [1] of the Moldovan
Constitution, states that “Public Administration in the
administrative/territorial units is based on the principles of local autonomy,
of the decentralization of public services …”, and [2] states that “The concept
of autonomy encompasses both the organization and functioning of local public
administration, as well as the management of the communities represented by
that administration”. Taken together, the amendments to the Law seem to lead in
the opposite direction of such decentralization and local autonomy.
It is worth
mentioning that the purpose of these amendments to the Law on Local Public
Administration, including the elimination of words “decentralises” and
“deconcentres”, is to significantly improve the mechanisms of legal regulation
of the public administration reform, ensure the consolidation of the vertical
executive power, eliminate the administrative chaos, enforce the discipline and
monitor the compliance to the law of the acts issued by the local public
authorities.
·
A change
also occurs in Art. 11 of the 2001 Law where
the reference to the “droit a instituer des impots et taxes locales” of
the 1998 version is omitted. Art. 9 [3] of the Charter states that “Part at
least of the financial resources shall derive from local taxes and charges of
which, within the limits of statute, they have the power to determine the
rate”. The original version of Art.11 in the 1998 Law was clearly in accordance
with this principle and it is regrettable that the reference to this right
should be omitted from the 2001 version. Art. 18 [2] (f) of the 1998 Law, dealing with the powers
of the local council, also makes reference to local taxation and states simply
that one of these powers is “ etablir les impots et les taxes locales, dans les
conditions de la loi”. The 2001 Law Art. 18 [2] (i) changes this to read: “decide la mise en
application et la modification, dans les limites de ses competences, des
quotas, du mode et des delais de paiement des taxes locales, ainsi que l’octroi
des facilites au cours de l’annee fiscale, effectue les modifications
respectives dans le budget local”. It is less clear in this rather convoluted sentence than in the 1998 Law
that it is the local council which has the right to fix local taxes and charges
or whether these are part of the central budget.
As it has been
previously mentioned in this Commentary, in conformity with Art. 7 of the
Fiscal Code of the
Art. 1, paragraph
1of the Law no. 186-XIII of 17 November 1992 also stipulates all the local
taxes (the collocation “local taxes” has been removed from the fiscal
legislation) that are applicable in the Republic of Moldova.
From what has been
stated above we can conclude that the provisions of Art. 18 [2] (i) of the Law
on Local Public Administration is in perfect line with the whole fiscal
legislation in force in the
·
Professor de
Bruycker, in his Opinion on the 1998, remarked that there was some overlapping
of powers between the lower and intermidiary levels of government although in
second Opinion, he noted an improvement in the amended version of this Law. The
2001 Law is a serious regression in this regard with an even greater confusion
of powers between the two levels than was the case in the 1998 Law. This
constitutes a violation of Art. 4 [4] of the Charter, which states that “Powers
given to local authorities shall normally be full and exclusive. They may not
be undermined by another, central or regional authority except as provided for
by the law”. The following are some examples of this confusion of powers
between the two levels.
In this context,
the Draft Opinion invokes the following provisions of Art. 13 of the Law on Local
Public Administration: [1] (a), [2] (a);
[1] (b), [2] (b), [1] (h), [2] (j).
We acknowledge the
fact that when introducing the amendments to the Law on Local Public
Administration in its 2001 version there were some overlaps and uncertainties
regarding the delimitation of competences of local public administration
authorities of the first level (villages, comunes, towns and municipalities)
from those of the second level (raions, municipality of Chişinău and
the autonomous territorial unit of a special status).
At present we have
initiated amendments concerning a more clear delimitation of competences of
local public administration authorities, provided for in Art. 13 of the Law on
Local Public Administration, Thus, the Government of the Republic of Moldova
approved Decision no. 379 of 29 March 2002 “Concerning the approval of the
Notice on the Draft Law to amend the Law on Local Public Administration no.
186-XIV of 6 November 1998”. This Draft Law foresees the delimitation of
competences of local public administration authorities of the first and second
levels of educational institutions (Art.13
of the Law on Local Public Administration). This delimitation will
harmonize the budgetary relationship between the territorial-administrative
units of the first and second levels while financing the educational
institutions in compliance with the Law on Local Public Finances.
It is supposed
that necessary amendments will be also introduced in other paragraphs of
Art. 13 of the Law on Local Public Administration, which will enable us to
avoid duplication and overlapping in competences of local public administration
authorities.
·
The
“president of the executive committee of the district council” (henceforth
“district president”) has a status similar to that of the mayor, in that he is
elected by the council (Art.1) and its representative (Art. 66 [2]) but is also
a public functionary (Art. 66 [4]). It is also worrying that he replaces the
prefect as the “representant du Gouvernement sur le territoire” (Art. 66 [8]).
It is unclear in the new legislation what will be the future role of the
perfect. There is thus the same ambiguity with regard to the autonomy of this
level of the government as exists at the local level and with regard to the
position of the mayor. Taking into account the same principles of vertical
hierarchy and the integration of representative and executive powers, it must
be concluded that the ambiguity is resolved in the direction of increased
centralisation rather than autonomy.
Based on the Decision
of the Constitutional Court no. 13 of
It is presumed
that the representative of the Government - prefect’s institution will be
liquidated, still some of his duties will be taken over by the president of the
executive committee of the raion council. At the same time, taking into account
the fact that the president of the executive committee of the raion council is
no longer the local representative of the Government (the relevant provision of
Art. 68 [8] of the Law on Local Public Administration is recognized as
unconstitutional), we do not exclude the possibility to return to the prefect’s
institution.
In our opinion and
in view of the Decision of the Constitutional Court no. 13 of 14 March 2002 the
vertical hierarchy of and the interaction of
representative and executive powers will not affect the principles of local
autonomy provided for in the European Charter of Local Self-Government and the
Constitution of the Republic of Moldova.
·
There is the
same lack of clarity with regard to the tax-raising powers of the district
council an attribution which was contained in 1998, Art. 59 n but which has
disappeared from 2001, Art. 59. Chapter X of the 1998 Law dealt with the
“Administration of Public Finances” and Art. 92 [1] within this chapter
explicitly states that at least part of the revenues of the local and regional
authorities would come from local taxes fixed by them. I assume that this
Chapter will remain in the 2001. Would the Moldovan authorities confirm that
this will be the case?
It is worth
mentioning that, Chapter X “Administration of Public Finances” of the Law on
Local Public Administration has been amended and its new version is included in
Law no. 1101-XIV of 30 June 2000, owing the fact that these provisions
constitute the objective of settling the Law on Local Public Finances, Law on
Local Taxes, Law on Fiscal System Basis and other financial regulations.
As it was
mentioned above in this Commentary, in conformity with Art.7 of the Fiscal Code
of the Republic of Moldova, Art.1 [2] of the Law on Local Taxes no.186-XIII of
19 July 1994 and Art.7 [2] of the Law on Fiscal System Basis no. 1198-XII of 17
November 1992, local taxes are applied by the local public administration
authorities (village (comune), town and municipal councils) in the limits of
their competences and in compliance with this Law. The maximal amount of local
taxes is approved by the Parliament.
Similarly, the
competence of the raion council with regard to “ collection of taxes ” is
reiterated in (m) of Art.59 of the Law on Local Public Administration which
reads:
“m) decides upon
the application local taxes, change, in limits of their competences, of the
quotas, mode and terms of payment of these taxes, as well as the provision of
facilities; operates, throughout the fiscal year, the adequate changes to the
raion budget.
We can conclude
that the competences of the local public authorities with regard to the
administration of local public finances have not been affected by the
amendments to the Law on Local Public Administration by Law no. 781-XV of
·
The same
changes outlined above with regard to the position of the secretary of the
local council have been introduced with regard to the secretary of the district
council and the critical remarks made above apply here as well.
As regards the
status of the raion council secretary we state that in conformity with the
Decision of the Constitutional Court no. 13 of 14 March 2002 (Art.63 [2] of the Law on Local Public Administration) they will
not be elected from the raion counselors, Thus, the raion council secretary
will further be a public functionary whose status is regulated by the Law on
Public Service.
(NOTE: In the
letter from April 1, 2002, of the State Chancellery to the Ministry of Foreign
Affairs it is mentioned that both Laws ( the Law of the Republic of Moldova
764-XV of 27 December 2001 on administrative-territorial organization of the
Republic of Moldova and the Law of the Republic of Moldova 781-XV of 27
December 2001 on completing and amending the Law 186-XIV of 6 November 1998 on
local public administration), which have been commented by Prof. John Loughlin
in his Draft Opinion of March 7, 2002 have been subject to assessment of their
constitutionality by the Constitutional Court of the Republic of Moldova. It is
also mentioned that the