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AMICUS CURIAE

With effect to the electoral system and its effect on citizens voting from
abroad.

Adresat: VENICE COMMISSION


EUROPEAN COMMISSION FOR DEMOCRACY THROUGH
LAW

Authors: Disaporas Lawyers (Moldovan citizens living outside Moldova):

1. Veronica Mihailov-Moraru, lawyer , Lawyers Suite


Mihailov-Moraru Veronica, Chiinu, Republica
Moldova, veronicamihailov.moraru@gmail.com
2. Eduard Digore, Lawyer, Lawyers SuiteDigore Eduard,
Chiinu, Republica Moldova,
eduard@avvocato.md
and
3. Mihail Dru, Moldovan citizen civil activist, ex-deputy in the
first established Parliament of R. of Moldova, residing in Parma,
Italy , druta.mihail@yahoo.com

Data: 10 May 2017


I. Introduction:

The socio- economic impact of Moldovan citizens working abroad.

II. Parliament voting from 2016.

Evidence to the limitations of exercising the right to vote at polling


stations outside Moldova.
Court case: Diaspora v R. Moldova.
The decision of the Constitutional Court of Moldova on 13.12. 2016
and addresses made to the Parliament of Republic of Moldova with
regard to the necessity to modify ( by improving) electorate
legislation.

III. The influence of law reform working groups on the modification of the
electoral system and potential effect on voting citizens living abroad.

Law reform working group nr.60 din 14.03.17 registered by the


Democratic Party of Republic of Moldova with respect to the changing
of the voting system from the current system to a majoritarian system
(first past the post).

Law reform working group no. 123 from 19.04.17 registered by the
Socialist Part of R. of Moldova on changing the current electoral system
to the majoritarian system (mixed)
Declaration and Decisions from the Offline meeting of the Diaspora
from the 19. 03.2017 and its complete rejection of the proposed changes
to the electoral system (first past the post).
Debates and discussion reports regarding the opportunity of the project
and its necessity to modify and improve electoral legislation. (The
absence of a social and political agreement).
Reasoning of fact and law against the reform of the current electoral
system to a majoritarian system (first past the post or mixed.

I. Introduction
The necessity to present this amicus curiae was determined by the registration of an
amendment bill in the Parliament of R. of Moldova of the proposed law amendment
no. 60 on the 14.03.2017 proposed by the parliamentarians of the Democratic Party,
with respect to the initiative of reforming the current electoral system, from a
proportional one into to a system of majoritarian first past the post. However on the
19.04.2017 the parliament registered reform project in law no.123 proposed by
members of the parliament from the Socialist Party of Republic of Moldova with a
proposal to introduce a mixed electoral system.

These events have awakened suspicion and confusion in the wider society and the
proposed law reform projects would bring about a number of problems including
issues related to the assurance of voting and the adequate representation of
Moldovan citizens living abroad.

The socioeconomic impact of Moldovan citizens living aboard.

Republic of Moldova is a country with a very high current migration


phenomenon. Emigration has had a significant impact of economic development of
the country especially through the financial support provided from family members
who still live in Moldova, through acquisition of goods and services through
investment made in Republic of Moldova. Altogether these have a sustaining
economic impact on the state. According to the recent official reports the current
debt/GDP ratio is at 21.7% for the year 2016, which places our country in the top 7
Government debt1.
According to a source from the World Bank from 2015, the R. of Moldovas
diaspora relieves the state of 1.54 billion dollars annually returning TVA in the sum

of at least 4 billion MDL2. On average an emigrant returns approximately 3,230


euro annually (Source: IASCI, CIVIS, 2013).

1http://www.regionalmms.org/images/sector/MigrationandDevelopment_April_2017
.pdf
2https://www.facebook.com/CPRMoldova/photos/rpp.581144555407685/616543218
534485/?type=3&theater
The catalyst of the settling of Moldovan migrants abroad comes out of the
need to find additional financial sources from temporary work by living and
working abroad. This important fact places a necessity for the adequate measures to
be in place to facilitate the right to vote by Moldovan citizens living abroad.
Moreover the guaranteed right to vote is inclusively a tool through which the State
should play an active role in maintaining close political links with members of the
diaspora. The state should maintain all measures necessary to encourage migrant
citizens to vote, which would overall constitute as a guarantee in the forming of a
legitimate and independent body of political actors.

II. Parliament elections of 2016

Findings relating to the inability of citizens to vote in polling stations outside


Moldova.

According to art. 2 (3) Electoral Code of R. Moldova:


Citizens of Moldova who are residents outside the country can still benefit from
their right full rights of voting with conditions according to this provision. The
diplomatic bodies and consultation offices are obliged to create the appropriate
conditions for citizens to be able to exercise their right to vote.

The right to vote is a Constitutional right (Article 38) as well as an


international human right according to the International Declaration for
Human Rights Treaty, which Moldova has ratified with respect to civil and
political rights

In autumn of 2016 Republic of Moldova held its Presidential Elections in two stages.
We observed a significant, unprecedented civil presence from Moldovan citizens
living abroad who sought to exercise their right to vote. In the second round on the
13.11.2016 over 138,000 citizens voted at polls located outside Republic of
Moldova. Beside this fact in the 14 polling sections abroad a significant portion of
citizens did not get the chance to exercise their right to vote as a result of there being
a shortage of polling cards (the legal limit of minimum polling cards per polling
station is 3000 in accordance with article 49 subsection3 Electoral Code of R. of
Moldova). Citizens did not get the opportunity to present themselves to other polling
stations as a result of distances needed to travel between polling stations and as a
result of time running out. It became apparent through social media platforms that
citizens living abroad (unofficially (aveti in vedere care sunt illegal peste hotare ?
atunci illegal, citizens roughly about 1.5 million ) who are in close ties with relatives
living at home in Moldova and are active and interested in domestic developments
who also have the capacity to contribute to financial investments and to analyse the
economic and social development of Republic of Moldova. ( F o r e x a m p l e The
online Group Adopt un Vot Adopt a Voting Citizen , has circa 100.000
individuals; web: http://www.offlinea uv.info/).

Out of these sources it became apparent that there were significant regulatory
errors with respect to the electoral process established for enabling citizens
abroad to vote. Such disparities are a result of the errors apparent in the statistics
available for the calculation of the real number of citizens who have emigrated .
This figure being lower then the reality resulted in the reduced number of polling
cards allocated to polling stations. Furthermore the process to pre register to vote
was non functioning, buletine limitate per secie, a procedurii de
nregistrare prealabil nefuncional, al procesului electoral de contestare la
organele electorale extrem de anevoios i ineficient etc.).

The judicial case Diaspora v Republic of Moldova

A first for Republic of Moldova in 2016 was the judicial review proceedings take
against electoral state organs regarding the procedural infringement of the right to
vote, additionally a case was put forward against the Government of Republic of
Moldova for breaches of the right to vote, this was known publicly under the name
Diaspora v Republic of Moldova. Through this case it was established that there is
a strong force of civil determination from citizens residing abroad, which could have
a major impact on the changing of the current political regime and it could positively
affect the development of the country.
In this way, 134 citizens began the court case alleging that their right to vote was
infringed at 14 polling stations (Polling Stations in issue no 1/355, nr.1/359, nr.
1/350, 1/314, 1/325, 1/336, 1/335, 1/336, 1/318, 1/346, 1/347, 1/349, 1/375
From Italy, Germane, Great Britain, Canada, France during the presidential elections
in round II on the 13.11.2016. Additionally, a claim that the right to benefit from fair
elections was infringed despite being a fundamental right under art. 38 of the
Constitution and art. 2 (3) Electoral Code; it was further argued that there was direct
discrimination towards residents living aboard by the electorate bodies who omitted
to take the reasonable steps to rectify given the direct obligation on the Electorate
Body to eliminate voting infringements and to reassure a fair voting system.
At the same time a further 4031 pleadings of wrongdoing were submitted at polling
stations but did not take further legal action.

The outcome of the pleadings was that national judicial bodies rejected the of the
findings based on procedural grounds and found the fact that on the 13.11.2016, in
14 polling stations from aboard citizens of R. of Moldova werent able to exercise
their right to vote as a result of a shortage of polling cards which ran out before
the polling day had elapsed. During the case it was apparent that there were
substantial legal problems in the system which provoked the inability to secure the
right to vote by the Government: the significant disparity between the number of
polling stations opened and the actual real number of citizens who are established
abroad; ambiguous criterias in place for the opening of polling stations: pre
election registration and outcomes of previous parliamentary elections, ambiguous
and confusing legislation CEC (Central Electoral Commission) operated a
number of modifications before the elections.

The decision of the Constitutional Court of R. of Moldova from the


13.12.2016 and its address to the Parliament of R. of Moldova regarding the
necessity to modify (improve) the electorate legislation.

On the 13.12.2016 the Constitutional Court of R. of Moldova adopted the


decision regarding the confirmation of the electoral results and validated the
Presidential mandate.

Every Constitutional court judge gave significant appreciation to the importance


of the matter and referred to the votes of citizens who reside outside Republic of
Moldova 3 : the fact that electoral bodies and judiciary bodies rejected the high
number of judicial proceedings on the basis that they were outside their
jurisdiction (point 91); the fact that electorate, despite the pleadings submitted on
the election day at polling stations outside Moldova, the Central Electoral
Commission instead of solving the situation regarding the established findings/ lack
of breach of right to vote, it declined use its competence on the basis that above
them the Constitutional Court would oversee and evaluate the merit of the overall
result .

3 http://www.constcourt.md/libview.php?l=ro&idc=7&id=926&t=/Media/Noutati/Rezultatul-scrutinului- prezidential-
confirmat-de-Curtea-Constitutionala-Sesizarea-nr-139e2016, (ro) http://www.constcourt.md/libview.php?
l=en&idc=7&id=926&t=/Media/News/Results-of-Presidential-Election- Confirmed-by-the-Constitutional-Court-of-
Moldova (eng)
The Court was willing to address the Parliament of Republic of Moldova regarding
the need for clarification of legislation which addressed the examination of
pleadings submitted addressing the procedural aspect of the elections, in the power
it has to scrutinize over electoral outcomes etc.

The Concluded that it did not have jurisdiction as a result of incompetence to find if
there was a reduced number of polling stations abroad because this attribution
resides with the Government/ MAEIE, considering that findings regarding the
number of polling stations abroad was not successfully contested by the plaintiffs of
the case.

Regarding the Diasporas case it was disputed and cited the illegality of this decision
through which the number of polling stations was established. The positive outcome
of this is that the Court, proceeding out of a large number of citizens who could not
exercise their right to vote, took a proposal to the Parliament of Republic of Moldova
in proposing to modify the voting mechanism for citizens living abroad and proposed
the introduction of a supplementary criteria to adequately calculate the number and
geographical distribution of polling stations abroad.

In addressing the reduced number of polling cards, the Court (by analyzing a
number of criterias and aspects regarding the opening of polling stations and the
number of polling cards per station) concluded that there is no objective reasoning to
find that authorities had acted in bad faith ( pct.138). However at the same time the
Court beginning from the presumption of judicial pleadings before it regarding
the inability of citizens to exercise their right to vote, adopted another further
address to the Parliament of Republic of Moldova and proposed the modification fo
the electoral system aboard and the introduction of supplementary criterias for the
number and distribution of votes aboard inclusively suggestion a reserve of polling
cards for voting stations. (para. 141)

The Courts appreciations regarding the evasion to examine the evasion of pleadings
by the electoral bodies, likewise the poor interpretation of electoral legislation by
the establishing courts, the failure to ensure efficient judicial control, the failure to
ensure adequate protection for the right to vote have all left a reasonable suspicion
in the society towards the Central Electoral Commission (CEC) and towards the
judicial courts who have failed to exercise judicial discretion adequately and
objectively and most importantly independent of the political branch.
Despite the legal obligation to inform within 3 months 4 on the steps taken the
Parliament of r. of Moldova has avoided and not complied with the requirement
to address the 3 Issues as outline by the Constitutional Court, regarding the
steps necessary to be taken to improve the electoral procedural aspect as to
avoid electoral problems in 2018 for the diaspora voters. This omission has
awakened and refueled a suspicion of the lack of good faith and diligence from
the national authorities.

III. T h e i n f l u e n c e o f l a w r e f o r m p r o j e c t s w i t h r e g a r d t o
modifying the current electoral system and its effects on
citizens voting from abroad.

Law reform project no.60 from the 14.03.2017 registered by the


Democratic Party of Republic of Moldova addressing the changing
of the current electoral system to a majoritarian system (first past the
post)

On the 14.03.2017 the Moldovan Parliamentary Democratic Party, without any


evidence of investigations, proposed a bill to the society named: Legislative
Initiative Project no. 60 registered on the 14.03.20175 addressing Law reform
project on completing and modifying statutory acts (Electoral Code art.1, 22, 26
s.a; Law on deputies in Parliament art. 2). This project instead of seeking to
improve the electoral existing system by taking into account issues evident in the
Parliamentary election 2014 and Presidential elections of 2016, such as attempting
to eliminate gross malpractices as observed in the case Diaspora v Moldova and
issues raised by the Constitutional Court or other civil organizations; instead as a
matter of urgency it was proposed to modify the current electoral system by
transitioning to a majority (first past the post) system. This reasoned to be as a result
of fears by the current political regime of future parliamentary elections, which are
due to be help in 2018 .

4 Legea cu privire la Curtea Constituional a R. Moldova


5http://parlament.md/ProcesulLegislativ/Proiectedeactelegislative/tabid/61/LegislativId/3653/langu
age/ro- RO/Default.aspx
Law Reform Project no 123 dated 19.04.2017 registered by the
Socialist Part of R. of Moldova addressing the changes to the current
electoral system to a majoritarian (mixed) system.

With similar intentions on the 19.04.2017,in Parliament the Socialist Party without
having any debates over the proposed bill registered its bill: Initiative Project no 123
registered on 14.03.20176 addressing the Law reform project for modifying and
completing statutory acts (Electoral Code art. 1, 4, 10 S.a Law on Deputies status
in Parliament art 2.) , relating to the proposed changes of the current electoral
system to a majoritarian (mixed) system.

Actions taken by the current political class demonstrates specific elements of


concentrated organized action, which is contrary to public opinion and goes against
the identified and examined negative risks apparent for the wider society of R. of
Moldova which at the moment is not a consolidated and stable one from a cultural,
judicial or political perspective.

The societies concerns are further elaborated by the fact that these electoral reform
projects have both been proposed by the 2 parties. Democratic Party of Moldova
(PDM) and Socialist Party of Moldova (PSRM) both of which at present hold the
majority Parliament seats and have conflicting interests with wider societies as they
are attempting to change the rules of the game while playing the game.

Official Declaration and Conclusions from Offline Diaspora Meeting


19.03.2017 on the complete disagreement with proposed changes.

On the 18th-19th of March 2017 in Venice, Italy the first civil meeting was held with
Moldovan citizens which are residents outside Moldova settled in 19 different
countries but included citizens living in Moldova also, all active representatives of
their respective communities and represent Diasporas interests. The meeting aimed
to bring together this active civil association in order to discuss problems facing R,
of Moldova and to discuss and socioeconomic and political developments for
Moldova. Participants at this meeting Offline Adopt a Vote7 implemented a

6http://parlament.md/ProcesulLegislativ/Proiectedeactelegislative/tabid/61/LegislativId/3723/language/ro
-RO/Default.aspx
7 The name is after the organisers of online platform Offline Adopt a vote, wich consists of almost 97.000 members.
Declaration regarding its disapproval of the changes proposed to the current
electorate system to a majoritarian system, first past the post of mixed8.

Representatives of the Meeting of the diaspora hereby, through this Declaration,


have explicidly opposed any proposals to modify the current electoral system by
adopting a majoritarian system, first past the post or a mixed. The diaspora also
has serious concerns at the procedure political parties have adopted in moving this
bill with urgency without giving much thought to its consequences. The legislative
initiative, as proposed including the mixed version, is one which is not suitable to
the political and social system, it is further without any adequate judicial support and
is one with serious political consequences attacking the democracy of the lawful
state9:
At the same time on the 19.03.2017 at the same event a official Resolution10 was
adopted with a concrete plan to contribute to the development of the country.
One of these action plans was set up to address elections (Election Group) which
will formulate a resolution addressing the changes proposed to the electorate system
and will argue against the proposed changes. Lawyers Digore Eduard and Mihailov-
Moraru Veronica were given a mandate to represent the interests of the diaspora in
relation with authorities in acions relating to the improvement of electoral
legislation with the support of local experts and experts from the diaspora.

Through this Statement it is formally requested from the national authorities to


improve electoral legislation, without the proposed changes to the voting system
from the current system to that of majoritarian, mixed or first past the post, before
the parliamentary elections of 2018. 11

Debates and Discussions regarding the opportunities of the proposed


project to modify (improve) electoral legislation. (Lack of a social
and political consensus).
8 http://offlineauv.info/wp-content/uploads/2017/01/Declaratia-offlineauv_EN.pdf

9 http://offlineauv.info/wp-content/uploads/2017/01/Declaratia-offlineauv_EN.pdf

10 http://www.offlineauv.info/rezolutia/(ro)
11 http://offlineauv.info/wp-content/uploads/2017/01/Resolution-Offlineauv-en.pdf
On the 31.03.2017 the Parliament of R. of Moldova announced its debates relating to
the Law reform project no. 60 from the 14.03.2017. In the light of this event
Diaspora representatives proposed to the President of the Parliament (A. Candu) a
Opinion expressing the disapproval of the Law reform Project, which in its
current proposed state, is against democratic principles of the state as a result of the
following reasons:

a) The majoritarian system, first past the post or mixed will deteriorate
dramatically the proportional representation of the diaspora and will
significantly reduce its representation; The law reform project does not
regulate the mode in which it will polling stations abroad will operate and how
many will be opened to have a proportionate number based on the real number
of Moldovans which reside outside the Country. Those two criterias
mentioned as reference points, regarding the pre election registration
requirements and the number of voters previously are not efficient and real
representations of the actual situation, take for example the Presidential
elections from the 13.11.2016. At the same time, there is no regulation as to
the procedure by which polling stations are to be opened in Transnistria.
b) The first past the post system or the mixed majoritarian system proposed, does
not solve any of the actual problems as identified by the Constitutional Court
through its decision on 13.12.2016 regarding the necessity to modify electoral
legislation regarding electoral procedure which addresses the identification of
required criteria to be in place stating regulation of proportionate requirements
of polling stations abroad, regulation of polling cards required abroad. All of
theses issues have been left unresolved and has maintained the artificial
limitations to the right to vote which will also impact parliamentary elections
in 2018.
c) The modifications proposed to the electoral system, are justified by its authors
as giving citizens the right to dismiss a deputy. This statement has little
potential and is a non-functioning practice and is contrary to the Constitution
of R. of Moldova Art. 2, art. 68.
d) In the current conditions, there is a real absence both socially and politically
which is necessary for adequately reforming a electoral system which will be
both correct and freely chosen in relation to adopting a first past the post or
mixed system. The majority of political parties in R. of Moldova do not
support such a legislative proposal, as they themselves will face the risk of
being eliminated from the political sphere in R. of Moldova; moreover the
wider society is not prepared or adequately informed of the real consequences
of this proposed electoral system.
e) The first past the post or the mixed system, will create conditions which will
discriminate against women and will limit their right to be represented equally.
This is contrary to the International Conventions and R. of Moldovas own
legislation. The required gender quota of 40% representation for women in
political sphere will be impossible given the fact that it will create unequal
representation conditions.
f) The majoritarian system, first pas the post as proposed discourages the
consolidation of current political parties emerging and understates the role of
the opposition party as an indispensible force of a functioning democratic
society by giving an advantage to big political parties which have obtained a
particular consolidated function giving them the key to administer public and
central locations. At the same time, the selection of certain local
representatives as deputies, will not guarantee a adequate proportionate
representation of all voting citizens.

Initially, there was a much higher representation of the civil society which were
completely against the law reform project proposed who asked for the evaluation of
different electoral options, or at the very least to abandon the proposed electoral
reforms until after the 2018 elections. These requests have been ignored and
Parliament representatives and the mass media have inadequately reflected the true
public debates on this topic and have portrayed the changes as being beneficial and
advantageous. Furthermore there were a 2 additional rounds of short debates in
Parliament which continued with persistence the discussions of this reform project,
without assuring an adequate debate by excluding the opposition groups to this
project and not giving them a chance to express their views.
Factual and legal reasons against adoption projects submitted regarding
the change of the current electoral system in the majority (First past the Post
or mixed).

This section will refer to a legal analysis by the authors of the law reform project
on the change of the current proportional representation electoral system in
Moldova mostly uninominal, also called the law project proposed by the
Democratic Party of Moldova (DPM). In the meantime, the Socialist Party
(PSRM) of R. of Moldova registered in the Parliament, the law reform project
regarding the change of the current proportional electoral system to a
majoritarian mixed; the authors will also provide some references on that latter.

It should be noted that in 2013, at the Venice Commission it had been lodged a
proposal to reform the electoral legislation in Moldova by introducing the mixed
system through in which the deputies are supposed to be directly elected on lists of
the parties proportionally, from The Democratic Party of Moldova, and on 20 / 21-
22.03.2014 the Venice Commission provided a Common Opinion (No. 749/2014)
with the status OSCE Office for democratic institutions and human rights.

On the 11th point of this opinion it has been positively assessed the current
electoral framework (EC), which in order to consolidate democracy and stability of
the electoral law could be improved on the side which is to provide a clear method
of allocation of seats and the electoral threshold. However, frequently changing
rules that are complicated and radical can create voters' confusion12.

Thus the conditions of the Code of Good Practice are still reiterated and actually in
practice today:

1) The electoral system should not be changed for less than a year until the
elections:
At the beginning of March 2017, as a result of initiatives to change the electoral
proportional system to a first past the post system or mixed majority, the social-
political situation in the Republic of Moldova at the moment shows that there is in
fact a political pressure to urge the promotion of this "Electoral reforms". The
parliamentary elections are due to take place in 2018, being at this stage within one
year before election. This initiative has surprised civil society and we are
witnessing at manipulation of public opinion about the so-called urgent need for

12 CDL-AD (2002) 023rev, explanatory report, paras. 2.b, 64, 65.


changing the electoral system. In actual fact society of R. of Moldovan is not
informed legally or conscientiously prepared on to deal with the consequences and
risks of changing the electoral system. As a result of the media being under the
monopoly of certain political individual, who support the electoral changes, it has
hindered real objective debates and has limited the real awareness of the winder
population as to the consequences of these changes.

All the more, the refusal to discuss other options of electoral systems by the
current deputies, for 2022 (at the next election) creates a situation of conflict of
interest for current political governance. All this, as well as the failure to offer time
and real possibilities to submit to the debates of a wider circle of society
representatives, already creates an apparent suspicion and manipulation of society13
as it is intended to change the "rules of the game while playing the game".

2) Public debates
Contrary to the explanations given in the 2014 be the Joint Opinion (No.
749/2014), the public debates of up to this moment are extremely selective and
few, without providing real analysis and understanding of all the advantages and
disadvantages. Moreover, at the 3 debates organized by the Parliament has
practically automatically put up the discussion to improve some of the issues
which were abandoned by the proposed law project (example of first past the post
constituencies, imperative mandates), but ignored addressing the comparative
aspects, the necessity, the opportunity, the essence of the change of the system
from current to a first past the post system. Thus, civil society does not have public
participation and an opportunity to contribute objectively to debates on these
projects, and has no trust in the adoption of the proposed electoral legislation .
Concerning the risks of the mixed electoral system, the Commission indicated the
possible negative influence at a local level, whereby local businessmen or civil
actors could influence independent candidates with different interests.

Similarly, there is a current consensus of the need to change the system, as it is


necessary to regulate electoral legislation on political parties and electoral funding
campaigns need to be conducted in a transparent and accountable manner.

3) Social and political consensus.


The broad consensus of civil and political society could take place when the
reform process is initiated and debated by the general public and notorious experts.
The mentioned law projects do not offer an evaluation by leading experts in the

13 Par. 2, 63-65 of the Code of Good Practice


country our from aboard . The opinions and conclusions of experts have
nonetheless become apparent and show a disapproval of the proposed projects to
introduce the first past the post or mixed majoritarian voting system for the 2018
elections coming out of the actual context of R. of Moldova.

We strongly agree that the election of the electoral system is a decision for the
sovereign of the State, however it is not the parliamentarians who are the state, but
the PEOPLE who chooses them. Point 2 of the Code of Good Practice in
Election, adopted at the 52nd Plenary Session (Venice, 18-19 October 2002)
indicates the fact that "The five principles underlying basic principles of European
electoral systems are the universal principles of equal, freedom of expression, in
private and direct, and equal suffrage within the meaning of the Code includes:
"equality of vote: each voter has the right, in principle to one vote; Equality of
electoral power and equality of chances ".

This is reiterated by art. 21 of the Universal Declaration of Human Rights,


adopted by the UN General Assembly on 09.10.1948 according to which
"Everyone has the right to take part in the government of his country's public
affairs, either directly or through free elected representatives..., the will of the
people must be the basis of state power; this will have to be expressed through
non-sanctioned elections that take place periodically and are universal, equal and
expressed by secret ballot or by the procedure of free voting ".

By Decision no. 16 of March 29, 2001, the Constitutional Court established


that: "National sovereignty means, according to the Constitution, the absolute and
perpetual power of the people, which is exercised through the representative bodies
elected to the state power, of which is sovereign. In this sense, national sovereignty
is inalienable, as it is only the exercise of the representative bodies. Exercising
sovereignty directly by the people is achieved by participating in referendums and
elections as well as direct decision making. ".

That is why the authors of the law projects should have taken into account the
principle of the higher interest of its citizens to participate in state affairs directly
and efficiently.

1. Principles of establishing the electoral constituencies, first past the post:


The law project of the Democratic Party is not determined by the specific
criteria in organizing constituencies; which will cause confusion in the
functioning of electoral system.

Art. 74 (2) of the Electoral Code (hereinafter - EC) states that "constituency
boarders will be formulated by looking at the demographic territory of the area
However it further states in the same paragraph, it indicates another principle: "The
calculation basis for the formation of constituencies is the number of voters
registered in electoral lists at each polling station registered at the last national
elections ". And in paragraph (3) of Article 74 as already mentioned a third
principle - the territorial-administrative one (Similar provisions are in Socialist
party project). This blur is inadmissible in content of EC because the number of
inhabitants and the number of voters in electoral lists does not necessarily give the
same results on the award number of seats. (For example, according to official
statistics, Balti has 150 200 inhabitants and only 108 630 voters, and the region
Nistreana - 475 665 inhabitants and only 221 600 voters. If we are looking for the
territorial demographic principle, Balti has right to formation a 3.76 constituency
and the Nistrian Region - 11.91 and proceeding from number of voters, Balti has
only- 3.39 and Nistrian Region only - 6.9.)

2. The administrative-territorial division of Moldova and the electoral


power of constituencies:

Given the limited territory, the small number of people, including the citizens
with the right to vote and current territorial-administrative structure of Moldova,
majority system, first past the post does not provide equal electoral
constituencies power or a fair distribution of parliamentary seats.

According to official data of the National Statistics Office, on January 1, 2015, the
republics population numbered 3.5552 million inhabitants. And if we consider the
number of 475 665 inhabitants, established for the Eastern districts as a result of
the census of 2015, the Moldova's total population is of 4,030,865 people.

According to the same data from the National Statistics Office, on August 22,
2016, in the State Register of voters in Moldova, 3,237,032 were registered voters,
of which 221 600 live in the eastern districts and 161 630 voters dont have
residence.
Based on PDM project, with reference to Article 74, para. (1) EC to be "101
permanent constituencies covering the entire country, including polling stations
abroad (Polling stations abroad are not located within the Republic - MD) and for
settlements located on the left side of River Nistru" and considering that the total
population of Moldova, including the eastern districts, is 4,030,865 persons, results
that the average electoral power of constituencies is 39 909 inhabitants, including
minors. And if we take as a basis for the establishment of the 101 constituencies
number of 3,237,032 voters, then that average constituency electoral power is
32,050 citizens entitled to vote.

In accordance with the Code of Good Practice in Electoral Pratices, I, 2.2, iv.
Stipulates that mandates should be distributed equally to all constituencies, and
"admissible deviation from the norm should not exceed the limit of 10% and the
15% confidence (...) ".

The project referred to in Article 74 (3) EC "for a more optimal organization ",
provides the possibility of forming constituencies in different localities of
administrative territorial units. This shows that the drafters are aware of the
problem of determining the boundaries of constituencies, but it lacks the certainty
in ways of solving these.

To reach a common denominator, some administrative units will have to give way
to others - to receive a certain number of voters and even whole villages, which
will result in totally unrepresented localities, resulting in a gerrymandering effect.

Problems can occur even in districts (Glodeni and Dubasari), where the number of
voters exceeds the number of inhabitants as well as the number of voters without
residence, because according to the Project, with reference to Article 85 (2) EC
'voters who are not resident in that constituency do not participate in parliamentary
elections. "

Both the PDM project as well as that of SPRM clearly do not clarify how to
determine the number and the way of determination of uninominal constituencies
(Acts consisted in pt. 31 of the 2014 Joint Opinion on the proposal to introduce a
mixed electoral system14).

14 http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2014)003-e
3. The Diasporas problems (Moldovan citizens living abroad):

The adoption of PDM project will drastically impede Diaspora citizens'


constitutional right to vote, ignoring this way their role in social, economic
and political life of R. of Moldova and the only real solution to align the
country with European Values.

Despite the number of 805 509 Moldovan citizens living abroad, released publicly
by the MFA, (Realistically this figure is much higher, about 1.5 million) currently
is not known the exact number of voting citizens who are outside the Republic of
Moldova or their geographical distribution in other countries. As witnessed by the
presidential election results, which demonstrated that there is a large discrepancy
between the numbers of Moldovans indicated by the MFA as residents in some
foreign countries and the actual number of voters who voted at polling stations in
respected countries. A clear example which demonstrates the extend of the
statistical discrepancies is observed in France whereby MAEIE showed that 3,127
citizens are residents in France, however on the 13th of November 2016 in this
country around 12,000 voted at polling station 347 Paris nr.349 Villeneuve Saint
Georges nr.350 Montreuil and thousands more were left without a polling card to
vote. Similar examples have been encountered in the United Kingdom, Belgium,
Sweden, Netherlands, Ireland and Romania.

On the other hand, there is sufficient evidence to conclude that in other countries,
(for example Belarus) the number of Moldovans citizens is indicated higher than it
actually is. This conclusion may refer to Russia, where there is not a certain
system of that records the residence of foreign citizens. A sure proof of this is the
small number of Moldovan citizens who voted in the two rounds of presidential
elections at polling station no. 1/323 Sochi (137 and respectively 325 voters), No.1
/ 322 Nizhnevartovsk (42 and respectively 92 voters), no. 1/324 Kursk (97 and
respectively 131 voters). In this context, it should be noted that the economic crisis
of recent years in the Russian Federation has influenced a growing number of
Moldovan citizens to move to Western European countries.

A characteristic feature of the Moldovan diaspora in recent years is increasing its


active involvement in national elections. The number of voters at polling stations
abroad increased from 17 544 persons in 2009 to 73 329 in 2014 and 138 720 in
the second round of November 13, 2016 in the presidential election. And it is
indisputable that the number of voters on 13 November 2016 would have been
much higher if voting rights were not obstructed by limits to the number of polling
stations and imposing a maximum of 3000 ballots per polling station.

PDM project do not ensure the functioning of the majority, first past the post
system to operate efficiently for hundreds of thousands of Moldovan voters that are
temporarily outside the state. It is not determined how many constituencies will be
established for this category of voters, and which will be their borders etc.
Moreover, unlike the constituencies located in Republic of Moldova,
constituencies abroad with no clearly defined boundaries between them draws a
conclusion based on permissions of the collected signatures to support the
candidates in any of the districts (article 79,para. (5).

The determination of the conditions and organization of elections for voters of the
Diaspora is at the discretion of the CEC, which is nonfunctioning as a result of a
lack of transparency and political independence (CEC is largely politically
manipulated) according to Article 74, para. (1) and (5) provides that the CEC will
be providing a number of constituencies for polling stations abroad and according
to par. (5) establishes that for their creation "will take into account, in particular,
the criteria of art. 29 (3) to be applied accordingly. Therefore, the CEC would have
a mandate from the Parliament to decide where and how many constituencies will
be establshed having the right to arbitrarily interpret the data "preliminary
registration of citizens abroad and the number of voters who participated in
elections previous".

We note that in the Case Diaspora v R. of Moldova it transpired that polling


organizators found that voting abroad is determined by the CEC which follows
regulation from the Governments, in collaboration with the Minister for Foreign
Affairs and European Integration and other authorities of central government.
Therefore, the MFA has contributed directly to determine the number and location
of polling stations abroad. Authorities have more tools to find where to open
polling stations abroad. In the court case neither Government officials nor those
from MFA could provide us with the reasoning if statistical data on which they
took the decision to allocate polling stations and ballots in the matter that they did.

Moldovan citizens abroad have the right to be treated equally by public authorities
as their fellow citizens, both at home and abroad. However on 11.13.16, public
authorities treated foreign citizens differently than their fellow citizens on the
territory of Moldova by inadequately organizing the polling stations abroad and
limiting the number of ballot papers. This led to a violation of the right to vote.
These actions are most likely to be repeated in the 2018 elections, unless they take
action to regulate as appropriate and if the proposals of the two projects are
enacted it will further limit Diaspora voting access and will limit their
representation.

Taking into account electoral scrutiny, which shows that in 2014 and 2016 only
2404 and 3570 respectively, preambles were registered for voters residing outside
R. of Moldova, it can be concluded that at the next elections the number wont be
much higher. Taking also into account the number of 138 720 voters abroad in
previous elections, there is a legal possibility and a real danger that the CEC could
decide to set up abroad only 4-5 constituencies. Or it will be a even higher limit on
electoral rights of Moldovan citizens abroad which, even with proposed conditions
which obstruction their right to vote in the previous elections, managed to get
around 8.6% of the total votes that could be converted into 8-9 seats. Based on the
above, we can conclude that the establishment of an insufficient number of
constituencies abroad will be an act of injustice to hundreds of thousands of
Moldovans living abroad who make a significant contribution to the States budget
by ensuring the "flowing line" of Moldova itself, this fact inevitably means a
restriction on fundamental rights and freedoms15.

Noteworthy, is that the number of constituencies from abroad could be determined


only when the preliminary registration of voters abroad will end, in other words
during the electoral campaign and right before the election date. Only after that, it
will be possible to establish the exact number of constituencies across the country,
with inevitable inherent conflicts related to the demarcation of constituency
borders. Presumably, the CEC will make a decision how to make prior registration
in an earlier period, however, changing constituencies either abroad or in the
country, should not occur during the election year, especially not during the
electoral campaign.

Joint Opinion of the Venice Commission in 2014, reiterated in point 41, the
important issues faced by voters living abroad for Moldova which was based on
the extremely high number of citizens living abroad16. Similalrly given that voters
abroad are eligible to vote in parliamentary elections and they must ensure equality
of voting power abroad based on the number of voters abroad for a proper and
representative formation of the number of constituencies. Currently both law

15 Convention for the Protection of Human Rights and Fundamental Freedoms (CETS No .:
005), available at: www.conventions.coe.int/Treaty/en/Treaties/Html/005.htm. 3
16 http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2014)003-e
reform projects do not offer such fair and equal right to voters living abroad and
similarly there are inadequate provisions for representing accurately the number of
citizens living abroad to be adequately represented in line with the high number of
those actually living abroad, such difficulties will be apparent during the electorate
campaign as well as showing that issues arising out of financing of candidates
abroad.

4. First past the post constituencies in light of the Code of Good Practice in
Electoral Practices:
Law reform projects mentioned above are contrary to the electoral law
established in Code of Good Practice in Electoral Matters of the Venice
Commission17.

Law Projects ignore the Code of Good Practice in Electoral Matters compartment
of guidelines on elections , chap. II, par.2, letter a) "election regulationon the right
to vote should at least have a legislative procedural basis "and at point b)
"Fundamental elements of electoral law, in particular the proper electoral system,
should consist of electoral commissions and establishment of constituencies,
shouldnt be established within less than one year before election, or should not be
entered into constitution or made into the form of legislation with a higher status
than of an ordinary law. "

Thus, the law provisions of the electoral constituencies should not be amended
within one year before the election. Moreover the establishment of constituencies
must be established through legislative act with a higher status than of an ordinary
law bill, i.e. through an Election Code, which has the status of natural law or even
enshrined in the Constitution, which has a overall status of fundamental law of the
state. Contrary to Parliament's legislative powers established by Constitution 18 , as
the only public authority invested with the power to create legislation the CEC has
been delegated with the complete discretion to implement law by taking into
account statistical figures, geographical and population coverage, to set up first
past the post electoral constituencies.

17 Venice Commission of the Council of Europe, Code of Good Practice in Electoral Matters,
Adopted by the VeniceCommission at its 52nd session (Venice, 18-19 October 2002, CDL-AD
(2002) 023rev), available at: www.venice.coe.int/webforms/documents/?pdf=CDL-
AD(2002)023rev-e.

18 The Constitution of Moldova


Conclusions:

- None of the mentioned projects provide a clear methodology on drawing the


constituencies.
- These projects do not solve the problem of representation of citizens from
abroad, and it does not provide a clear legal framework for implementing
effective solutions.
- Both proposed projects require changing the electoral system into the
majoritarian first past the post or mixed one, but in the current context in
Moldova it is inappropriate and does not provide answers to expectations or
the problems raised by Constitutional Court of Republic of Moldova from
12.13.2016.

Reference sources:

1. European Convention on Human Rights, Article 3 of the First Protocol;


2. Code of Good Practice in Electoral Matters;
3. Convention for the Protection of Human Rights and Fundamental Freedoms
(CETSNo .: 005), available at:
www.conventions.coe.int/Treaty/en/Treaties/Html/005.htm .
4. Venice Commission of the Council of Europe, Code of Good Practice in
Electoral
Matters Adopted by the Venice Commission at its 52nd session (Venice, 18-19
October 2002, CDL-AD (2002) 023rev), available at:
www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2002)023rev-e .
5. The Constitution of Moldova;
6. The Electoral Code as of 17 January 2012
18 The Constitution of Moldova
7. DECISION on confirming and validating election results warrant of the
President of the Republic of Moldova (notification no. 139e / 2016),
http://www.constcourt.md/libview.php?
l=en&idc=7&id=926&t=/Media/News/Results-of-Presidential-Election-it
Confirmed-by-the-Constitutional-Court-of-Moldova
8. 19.03.2017 Declaration "Offline Adopt a vote" Venice, Italy
http://offlineauv.info/wp-content/uploads/2017/01/Declaratia-offlineauv_EN.pdf
9. Resolution, 03/19/2017 "Offline Adopt a vote" Venice, Italy
http://offlineauv.info/wp-content/uploads/2017/01/Resolution-Offlineauv-en.pdf .
10. More information about the event from 18-19.03.2017 "Offline Adopt a Vote"
Venice, Italy, http://www.offlineauv.info/
11.http://www.regionalmms.org/images/sector/MigrationandDevelopment_April_2
017.pdf
12. Law project on amending and supplementing certain acts (Electoral Code-
article 1, 22, 26, S, S .; Parliament-law on status of Article 2) .Nr.60 of 14.03.2017
(PDM).
http://parlament.md/ProcesulLegislativ/Proiectedeactelegislative/tabid/61/Legislat
ivId/3653 / language / en-US / Default.aspx
13.Legislative initiative law project. 123 registered on 04.19.2017 on " Law
Project amending and supplementing certain laws (Election Code - Article 1,4, 10,
etc .; Law on MP status - Article 2). (SPRM)
http://parlament.md/ProcesulLegislativ/Proiectedeactelegislative/tabid/61/Legislat
ivId/3723 / language / en-US / Default.aspx

Authors:
Veronica Mihailov-Moraru
Eduard Digore

Mihail Dru

This amicus curiae addressed to the Venice Commission is supported by


Associations of Moldovans living outside the Republic of Moldova:
1.__________________________________________________
2. __________________________________________________
3. __________________________________________________
4. __________________________________________________
5. __________________________________________________
6. __________________________________________________
7. __________________________________________________
8. __________________________________________________
9. __________________________________________________
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