ACHIEVEMENTS AND SHORTCOMINGS CONCERNING THE IMPLEMENTATION OF THE EUROPEAN UNION STANDARDS ON DEMOCRACY, HUMAN RIGHTS, RULE OF LAW

AND JUSTICE IN THE REPUBLIC OF MOLDOVA

Veaceslav Ion Balan, PhD Student, Academy of Economic Studies of Moldova veaceslav_balan@yahoo.com

Abstract: The European Union strives to promote prosperity, solidarity, security and sustainable development. One of the main goals is to make the values of liberty, democracy, human rights and fundamental freedoms and the rule of law a central part of partnership programmes in the region. Republic of Moldova has assumed certain international commitments on human rights and the national context is regularly monitored by the international community institutions, such as Council of Europe, European Union, United Nations, Organization for Security and Co-Operation in Europe. Reviewing such reports and analysis produced by international experts I have outlined in this article the main achievements and shortcomings in the implementation of the EU standards on justice and human rights.

Keywords: Justice, human rights, governance, development, rule of law, security, fundamental freedoms, liberty, corruption, growth.

Regional context In order to renew efforts of peacekeeping and cooperation between countries throughout the European region, it was founded three regional organizations: the Council of Europe, the European Union and the Organization for Security and Cooperation in Europe. These organizations serve as forums for dialogue and exchange within the European continent, each having its purpose: The Council of Europe promotes the rule of law, human rights, and democracy; The European Union was devised as an institution for promoting trade and economic stability for its members; The Organization for Security and Co-operation in Europe (OSCE) was founded to maintain peace and military security within Europe (European Human Rights System, www.hrea.org.)

National context Since the Republic of Moldova has assumed certain international commitments on human rights, the national context is monitored by the international community institutions. According to 1

the findings of rapporteurs, and final observations of the international organizations, the national human rights situation remains a problem despite the adoption of several laws and action plans. Human rights violations of particular persons or groups still persist in Moldova. Particularly, women and children face various forms of exclusion and multiple forms of discrimination and violence. The National Human Rights Institutional system remains weak. Police, prosecutors, and the judiciary do not yet effectively frame action in terms of providing effective remedy for human rights violations. The weakness of institutional capacity is mainly due to the slow implementation of the reform agenda, which is constrained by many complex and interlinked factors such as frequent elections, insufficient budgets, substantial brain drain, significant staff turnover caused by insufficient civil service salaries and career development incentives. The justice system in Moldova is perceived to be weak by citizens. The weakness in the justice system is partly due to lack of independence of the judiciary in practice, as well as lack of efficiency of courts, characterized by insufficient training and awareness in applying international and European law, inadequate skills, and insufficient self-regulating mechanism. With support from international community laws and policies in the area of gender equality and domestic violence, human trafficking, workers rights, public assembly, sexual and reproductive health, protection of refugees and asylum seekers, integration of foreigners and the judiciary have developed significantly in recent years. A justice sector reform strategy is now formulated and it is designed to improve independence, efficiency and access to fair legal process and combat corruption. Despite the progress, however, human rights enforcement remains weak.

European Union As a global player, the EU promotes its norms, values and interests through various instruments, ranging from the Common Foreign and Security Policy (CFSP), assistance and trade to the external dimension of the EUs internal policies. In particular, the EU strives to promote prosperity, solidarity, security and sustainable development worldwide. The EU maintains that the enlargement door remains open to any European country that fulfils the EUs political and economic criteria for membership (European Union Enlargement, 2012). According to the Maastricht Treaty, Republic of Moldova, as a European country may apply for EU membership if it meets a set of core political and economic criteria, known as the Copenhagen criteria. These criteria for require candidates to achieve stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities; a functioning market economy, as well as the capacity to cope with competitive pressure and market 2

forces within the Union; the ability to take on the obligations of membership, including adherence to the aims of political, economic, and monetary union. (European Council Conclusions, Denmark, 1993) Republic of Moldovas cooperation with the EU has been very dynamic ever since the EUMoldova Action Plan was launched in 2005 in the framework of the European Neighbourhood Policy (ENP). Since May, 2009 Republic of Moldova is participating in the Eastern Partnership initiative as an active contributor to both multilateral and bilateral dimensions. The negotiations of 2009 on the Association Agreement agreed on the chapter of Justice, Liberty and Security which gives more legal certainty on the Justice and Home Affairs cooperation between EU and Moldova. The European Union is a major donor to the Republic of Moldova and has allocated more than 500 million to Moldova since 1991. For the period 2010 - 2013 the same amount of 500 million is foreseen to support the countries EU integration objectives. In other words the EU has stepped up its assistance substantially (www.eeas.europa.eu/delegations/moldova.) This leads to mention about the more for more principle of Eastern Partnership: the more reforms the partners do, the more support they get from European Union.1 An indicative amount of 273.14 million has been allocated to Moldova for its 2011-13 National Indicative Programme (NIP) financed under the European Neighbourhood and Partnership Instrument (ENPI), according to the NIP released by the European Commission. The overall objectives of bilateral EU assistance for Moldova are agreed in the Country Strategy Paper Country Strategy Paper (2007-2013).

Recent developments in the EU-Moldova cooperation The Second Joint Progress Report on Negotiations of the EU-Moldova Association Agreement, produced on 11 April 2011, states that the Justice, Liberty and Security chapter is close to provisional agreement. Both sides have agreed on provisions on the rule of law and respect for human rights; protection of personal data; cooperation on migration, asylum and border management; fighting organised crime, corruption and other illegal activities; combating illicit drugs; money laundering and terrorism financing; combating terrorism; and legal cooperation. The Article on movement of persons remains to be agreed. It was noticed that Moldova has shown the readiness to approximate the EU standards by adopting and implementing EU demands before were asked by the Union. The cooperative way to act of Moldova has given opportunities to launch the outstanding initiatives in the migration sphere, being the Mobility Partnership (January, 2008) and the Common Visa Application Centre.

A Statement of Mr. Stefan Fle, European Commissioner for Enlargement and European Neighbourhood, Speech at the EuroNest Parliamentary Assembly EuroNest Parliamentary Assembly Baku, 3 April 2012

Moldovan side conceived it as an instrument to come closer with the EU and also as a further step towards the top priority of visa liberalisations. In 2010 a Visa Liberalization Dialogue was launched. In January 2011 Moldova received the Action Plan on visa liberalization that includes benchmarks, that once implemented will lead to a visa free travel regime. Moldova foresees to have approved the legislative framework necessary to move forward to the second phase on implementation of Visa Liberalisation Action Plan, ensuring fundamental rights. Implementing the reforms is challenging and Moldova has to prove that there is effective action beyond Moldovas will to come closer to EU. The objectives of promotion of democracy and good governance, the rule of law and human rights lie at the heart of European Neighborhood and Partnership policy. The European Neighborhood Policy Progress Reports underlined the need to strengthen in practice the existing democratic structures, local democracy and decentralization, the rule of law (including in the business and investment area) and respect for human rights, and to democratize the functioning of state institutions, in line with Moldovas international commitments. Measures under the (NIP) Rule of law, human rights and security seek to ensure the sustainability of reforms in the areas of justice, freedom (including the consolidation and protection of human rights) and security (including in particular the reform of the penitentiary sector and assistance on border-related issues). These measures aim not only to foster the active participation of civil society in Moldovas public and social life, without limiting such involvement to human rights issues, but also to strengthen the states capacity to support civil society organizations development and capacity building through an appropriate subsidization system and by putting in place an inclusive interaction and consultation process with civil society. These measures are closely coordinated with complementary initiatives by other donors in the area, principally the Council of Europe, the OSCE, and the UNDP, which are generally involved in activities for reform of the justice system and support for reform of the media sector, and are build on the achievements of the EC Democracy Support Package for Moldova. The measures will contribute to enhancing compliance with Council of Europe and OSCE standards and recommendations.

Council of Europe The Council of Europe and the European Union sharing common values have run the Joint Programme on increased independence, transparency and efficiency of the justice system of the Republic of Moldova, during the period of 2006 - 2010. The overall objective of this successful Joint Programme was to improve the independence, transparency and efficiency of the justice system in the Republic of Moldova and guarantee a fair access to justice for all citizens, based on 4

rule of law and respect of common European democratic values and standards, in line with the provisions in the second chapter of the EU-Moldova Action Plan. (www.coe.md) It strived to bring the national legal framework on the judiciary in line with European standards; to adopt and implement the legislation on the selection, training, recruitment, appointment and promotion of judges and prosecutors; to increase capacities of the National Institute of Justice; to improve the administration of justice; to strengthen the capacity of the Superior Council of Magistracy and Ministry of Justice with regard to the administration of justice; to reinforce the transparency of the judicial system; to increase the citizens' confidence in justice; to improve the access of citizens to justice; to adopt a free legal aid system; to strengthen the capacity of auxiliary court personnel (court clerks, judges' councilors, registrars, etc.); to reinforce lawyers' profession; to reform the Prosecutor General Office and improve the enforcement of judicial decisions.

OSCE Mission to Moldova The first task in the Missions Mandate is to help resolve the protracted Transdniestrian conflict in all its aspects, preserving the territorial integrity of the Republic of Moldova with a special status for the Transdniestrian region. The conflict remains an obstacle to the political and economic development of the Republic of Moldova and to the consolidation of the countrys independence and sovereignty. The unresolved conflict continues to pose a risk to regional security and stability. The resolution of the Transdniestrian conflict is the most important and challenging task for the OSCE Mission to Moldova. Alongside Russia and Ukraine, the OSCE Mission acts as mediator in a negotiation process aimed at finding a final, comprehensive, durable settlement of the Transdniestrian conflict. The European Union and the United States joined the process as observers in autumn 2005; collectively the group (including the Sides) is known as the 5+2. The process of confidence building between the sides was broadened in 2008 with the start of meetings of expert working groups of the sides on issues of mutual concern in social and economic areas. The Mission facilitates these meetings and in 2009 was instrumental in widening the process to include the law enforcement bodies of the sides. In line with the 1990 Copenhagen Document on the Human Dimension of the CSCE, full respect for human rights and fundamental freedoms, pluralistic democracy and rule of law are prerequisites for lasting peace and security; thus they are also prerequisite to progress in the settlement of the Transdniestrian conflict. As part of its mandate, the OSCE Mission to Moldova advises the authorities in Moldova on human rights and democratization issues, in particular on combating torture and ill-treatment, 5

electoral reform, the promotion of rule of law, freedom of religion, freedom of assembly and minority and language rights. The Mission closely monitors Moldova's legal reforms in the field of human rights and rule of law, provides expertise on draft legislation and follows closely its implementation. The Missions Anti-Trafficking and Gender (ATG) Programme contributes to the implementation of the democratization and human rights mandate of the Mission by providing advice, expertise and capacity building on human rights issues related to trafficking in human beings and discrimination. The ATG Programme, in line with Article 41 of the Charter for European Security, adopts a comprehensive security approach to combating trafficking in persons and other forms of violence against women and children, and to promote gender equality, nondiscrimination, and womens and girls rights in line with relevant OSCE documents

United Nations The UN supporting agencies focuses on ensuring that difficult and complex reforms in the areas of institutional strengthening of government institutions and the justice sector remain on track, and that support is provided to move from policy and legislative formulation to practical implementation with resources, capacity, mechanisms, and instruments. In doing so, it aims to advance the realization of human rights, and increase the efficiency, transparency and accountability of public authorities in governance and service delivery, with particular attention to equality and non-discrimination, the rights of minorities, and marginalized and vulnerable people, including migrants and persons in need of international protection. The UN in Moldova is a neutral actor with international experience in promoting justice sector reforms. In addition, it has been a leading proponent in human rights and justice sector reform with strong credibility in this area. The programmes seek to ensure that all people, including the most vulnerable, have better and equitable access to justice; assure an accountable, efficient, predictable justice system able to effectively remedy human rights abuses, corruption and related crimes; narrow gaps between practices of domestic courts and international human rights law; and build public confidence in the justice system (United Nations Republic of Moldova Partnership Framework 2013 2017.)

Governments response The government has specifically acknowledged the need to progress in the area of human rights and stated that addressing human rights represents one of its long-term, durable, and primary commitments. Strategic objective of the government is to create an efficient, professional and transparent public administration aligned with democratic principles and able to provide high value 6

services to Moldovas people. The government has also acknowledged that local governance and decentralization represent essential items on the countrys reform agenda, especially important given the countrys aspirations of integration into the European Union. The objectives are to improve resource management and bring quality services closer to the people based on their rights and needs; to strengthen the system of local fiscal autonomy in line with European Union standards; to give more decision-making powers to the local governments following the principles of transparency, legality, efficiency, responsibility and administrative solidarity; Justice reform represents a major objective of the Moldovan Government, reflected prominently in the government programme European Integration: Liberty, Democracy, Welfare, 20112014 as well as in Moldova 2020, Rethink Moldova, EU-Moldova visa liberalization Action Plan, National Human Rights Action Plan 20112014, the Justice Sector Reform Strategy for 20112016, and other sector strategies. The reform measures include observance of the principle of separation and independence of the legislative, executive and judicial powers, as well as an even and correct enforcement of laws and equality of all citizens before the law. Furthermore, the government in its international and regional commitments to the EU, the Council of Europe, and in various United Nations processes, has made concrete commitments to human rights reforms. Good governance is not just essential for the exercise of personal freedom or the stability of the state. It is an essential requirement for economic growth, innovation and prosperity.

Shortcomings The parliamentarians shall keep the government accountable and to ensure that the will and expectations of the people are taken on board when political decisions are being made. Parliament shall advocate more for reforms, to promote democratic values and to defend citizens rights. Poor governance has the potential to destabilise a state both economically and politically. The government needs to continue its efforts in addressing issues such as torture, discrimination and intolerance vis--vis ethnic, religious, linguistic and sexual minorities and foreigners. In view of the lack of a proper legal framework in Moldova despite provisions in the Moldovan Constitution and the UN Convention on civilian and political rights and Council of Europe conventions on human rights signed by Moldova, adoption of the anti-discrimination law is required. Since it should provide a basis for non-discrimination on the grounds of sexual orientation, for instance, this law is quite sensitive among the Moldovan public opinion (Moldovas Foreign Policy Statewatch, July 2011)

Women have an unequal status in health, education, economy, and representation in public life and decision-making. Patriarchal attitudes are also the root cause of violence against women and limited access to reproductive health services. Migration. One of the negative consequences of migration includes a massive brain- and skills-drain, affecting the public and the private sectors. Remittances peaked at USD 1.7 bn at a ratio of 34 percent to GDP. While remittances support the country through value added tax and consumption- led growth, their productive investment remains at less than 10 percent. At the same time, migration carries with it certain risks such as trafficking in human beings and children and elderly left behind. Corruption remains a major issue, with increases observed over the past years. Corruption is especially rampant in the education and health sectors, as well as the judicial system. High-level corruption is expected, and not prosecuted, except for political reasons. Anticorruption measures have been put in place, but have largely been a failure. The state shall identify areas for further improvement and co-operation to reach the goal of improved governance and transparency, and eradication of corruption for the benefit of sustainable socio-economic development, stability and security. A weak correlation between central public authorities and local authorities in policy development and implementation, and the lack of proactive engagement of the civil society and private sector in public service delivery. In addition, efforts are needed to bring the institutional and operational framework of the public administration in line with European standards. Civil society organizations, while diverse and growing, are often institutionally weak, and heavily dependent on sporadic, project-based support. It is widely acknowledged that media and civil society are key pillars of democratic order, holding public authorities accountable, and thus promoting investment, free and fair market competition, and sustainable and inclusive economic growth. The goal shall be to create the conditions for a stronger dialogue between civil society and the authorities. The frozen conflict with the breakaway region of Transnistria continues to pose a silent threat to the stability of Moldova. Political dialogue has now restarted and it is considered highly unlikely that open conflict will re-emerge. For the Government of Moldova the reintegration of the country remains a fundamental stated objective. The stability of Moldova is influenced by many internal and external factors, such as its fragile political governance; the effect of global food, energy and financial crises on a growing economy dependent on export and remittances; and varying consistency in implementation of the reform agenda and in meeting expectations of the people. Economic stability needs sustainable and inclusive growth. That is why there is a need to develop small and medium size enterprises, to fight 8

against corruption and to further regular approximation to EU standards in order to attract investments and make business in the country more transparent. Not only are the reforms critical to combat corruption and further enhance the business and investment environment: they are also needed to strengthen social cohesion after the April 2009 events and create an environment conducive to economic development in response to the economic and financial crisis.

REFERENCES Implementation of reforms in the context of EU-Moldova cooperation, Evaluation of the progress during October December 2011, Euromonitor, # 4 (22), Edition VI, produced by ADEPT and Expert-Grup within the project of Soros Foundation EU-Moldova Action Plan, available at http://ec.europa.eu/world/enp/pdf/action_plans/moldova_enp_ap_final_en.pdf European Neighborhood and Partnership Instrument, Republic of Moldova, Country Strategy Paper 2007-2013, available at http://ec.europa.eu/world/enp/pdf/strategy/strategy_paper_en.pdf Progress Reports on Implementation of the European Neighbourhood Policy, Republic of Moldova 25 May 2011, accessed on February 2012 at http://ec.europa.eu/world/enp/documents_en.htm European Convention on Human Rights as amended by Protocols No. 11 and 14, Council of Europe Treaty Series, No. 5, available at http://conventions.coe.int/ OSCE Annual Report 2011, available at http://www.osce.org/sg/89356 David S. Bassiouni (Team Leader), Evaluation Report, United Nations Development Assistance Framework Moldova, June 2011 United Nations Republic of Moldova Partnership Framework, 2013 2017, available at http://www.un.md/key_doc_pub EU-Republic of Moldova Visa Dialogue, 16 December 2010, accessed on February 2012 at http://www.eumission.mfa.md/justice-en, available at http://www.gov.md/doc.php?l=en&id=3397&idc=447 Ral Hernndez I Sagrera (July 2011) Moldova: Pioneering Justice and Home Affairs Cooperation with the EU in the Eastern Partnership? Moldovas Foreign Policy Statewatch, Kristin Archick, Specialist in European Affairs (January 2012), European Union Enlargement, Congressional Research Service, accessed on February 2012 at www.crs.gov