On 29 June 2021, the European Court of Human Rights (ECtHR) issued a judgment on the case No 4711/07, Manole and Postica vs. Republic of Moldova and Russian Federation finding that Ion Manole and Alexandru Postica were victims of unlawful detention by Russian soldiers located at the peacekeeping checkpoint No 9 on the bridge over the Nistru river, connecting Vadul lui Voda town and Cosnita village.  

It was thus noted that on 19 July 2005 at about 8.10 p.m. two members of Promo-LEX Association, Ion Manole and Alexandru Postica, who were travelling back from a working visit made to localities across Rabnita-Tiraspol road, were detained at the peacekeeping checkpoint located on the left bank of the Nistru river, in Cosnita village. The reason for detention was the fact that a passenger travelling those two allegedly made a picture of an advertising board in the vicinity of checkpoint No 9 with the inscription “Farewell – Dubasari district”. After the vehicle was stopped, the Russian officer, who was the head of the peacekeeping group, ordered to destroy the picture taken.

When asked that detention grounds be explained and proper documentation be prepared, the Russian officer became very aggressive, treating roughly and threatening the detained persons, as well as inviting by phone his superiors from Dubasari to come on the site. He used special equipment to block the vehicle, which resulted in a huge traffic jam.

Though a number of representatives of law enforcement bodies and witnesses from several organisations came to the site, the Russian military staff continued their aggressive behaviour towards the peaceful persons and, in spite of the insistent requests of the latter, the soldiers refused to de-block the vehicle of the persons detained abusively. Suddenly, with no reason, a Russian soldier made two shots from his machine gun. This severe incident, which could have ended up with victims and deaths, was overcome only thanks to the professional intervention of a road police officer from Dubasari district.

The incident was resolved only after midnight, when the applicants were allowed to leave.  The peacemakers neither prepared a protocol on the incident, not justified their behaviour by any lawful decisions. The subsequent requests filed by the applicants failed to produce any outcomes.

The ECtHR Judgment of 29.06.2021 found the violation of Article 5 § 1 and Article 5 § 4 of the Convention due to the lack of any lawful grounds for applicants’ detention and lack of any remedies to appeal against this arbitrary detention. The Court ruled that the Russian Federation shall pay EUR 3,000 to each applicant in respect of non-pecuniary damage and EUR 1,500 in respect of costs and expenses. The Judgment can be accessed here.

The applicants represented themselves, and at the observations stage they were assisted in the Court by Gerald Staberock and Lemetre Roemer, OMCT (World Organisation Against Torture).

On 16 June 2020, the Supreme Court of Justice issued a Decision by which it is found a violation of the right to liberty for a period of 36 days to the applicant Vladimir Karatun, represented by the lawyer of the Promo-LEX Association, with full compensation of material and moral damages.

The applicant was to be released from detention on 9 August 2019. However, due to the fact that the decision of the Chisinau Court (Ciocana headquarters) was not sent immediately for execution to the penitentiary institution, Vladimir Karatun was released from detention, only on 18 September 2019.

In these circumstances, the magistrates found that the detention of the applicant between 9 August and 18 September 2019, was arbitrary and unjustified, contrary to the provisions of art. 5 of the European Convention of Human Rights.

The applicant claimed that he had been detained over time and had the right to compensation for non-pecuniary damage caused by illegal detention and estimated this damage at 72,000 MDL (two thousand MDL for each day of illegal detention).

By the decision of 31 October 2020, the Chisinau Court (Centru headquarters), partially admitted the action. The violation of the applicant’s right, provided by art. 5 § 1 of the European Convention on Human Rights (ECHR), as a result of the delay in his release from detention for 36 days. Therefore, the court ordered the collection of the amount of 15,200 MDL as moral damage for the benefit of the applicant.

In November 2020, both the applicant and the National Administration of Penitentiaries (ANP) appealed against the first instance decision. However, they were rejected by the Chisinau Court of Appeal, by the decision of 11 March 2021, maintaining the decision of the Chisinau Court (Centru headquarters) of 31 October 2020.

In April 2021, the applicant and the ANP appealed against the decision of the Chisinau Court of Appeal of 11 March 2021. In the motivation of the appeal, the National Administration of Penitentiaries invoked the illegality of the decision of the court of appeal and indicated that the applicant does not have the right to request pecuniary compensations in view of the provisions of Law no. 1545 of 25 February 1998.

On the other hand, Vladimir Karatun expressed his disagreement with the court’s solution and noted that the amount of compensation of 72,000 MDL is a fair and equitable reward for the suffering caused to him and his family members. Thus, the court, when determining the amount of compensation for the moral damage suffered by him, was to take into account the decisions of the ECHR in which, for violating the art. 5 of the Convention, the Court granted a compensation of approximately 2,000 MDL for each day of illegal detention.

By the decision of the Supreme Court of Justice of 16 June 2021, the appeal of the ANP was rejected, the decision of the Chisinau Court of Appeal of 11 March 2021 was amended, but also the decision of the Chisinau Court (Center headquarters) of 31 October 2020. At the same time, it was ordered to repair the material and moral damage and to compensate the court costs, by collecting from the state budget the amount of 72,000 MDL considered by the magistrates as fair for the benefit of Vladimir Karatun.

According to the lawyer of the Promo-LEX Association, Donica (Gamurari) Victoria: “In the court acts of disposition, we note that regarding the plaintiff, the violation of the provisions of art. 5 paragraph 1 of the Convention was found, as a result of unlawful deprivation of liberty for a period of 36 days, with the direct application of the Convention. It is gratifying that the Supreme Court of Justice took into account, when determining the amount of compensation, the amount of just satisfaction granted by the ECHR in similar situations for violating art. 5 of the Convention. ”

Details about a similar case can be found here

The European Court of Human Rights (ECHR) delivered its judgment on the case Baban v. Moldova, no. 83718/17. The case concerns the application of inhuman and degrading treatment in detention and the consequent award of small amounts for non-pecuniary and pecuniary damage, without regard to the moral and physical suffering caused to the applicant and the ECHR’s practice of granting non-pecuniary compensation in similar cases.

Decision of the European Court

According to the Decision, the Court received declarations of amicable settlement, signed by the parties, on the basis of which the applicant agreed to waive any other claims against the Republic of Moldova regarding the facts that gave rise to this request, subject to the government’s commitment to pay him 9000 Euro.

The factual circumstances which led to the delivery of the Decision

The applicant, in the Baban case, was detained in Penitentiary No.2 from Lipcani, where he was abused and humiliated by the guards repeatedly. He was denied medical assistance, but also the request for special food insurance, according to national legislation, based on the medical problems he has. The applicant was suffering from digestive disorders. In response to all his requests, he was punched and kicked multiple times by the guards.

Although he sent a complaint to the Briceni District Prosecutor’s Office, in connection with the acts of ill-treatment, for two years the Prosecutor’s Office refused to initiate a criminal case. However, a criminal case was initiated and the investigation of the case lasted another two years.

There have been several years in which the applicant fought for his rights in the courts. By the sentence of the Military Court of June 2015, the guards who mistreated him were acquitted. Subsequently, by the decision of the Criminal College of the Chisinau Court of Appeal, they were found guilty and convicted, but released from criminal liability in connection with the intervention of the limitation period. In June 2016, the case was sent for retrial by the hierarchically superior court, and a conviction was subsequently issued. As non-pecuniary damage, the applicant was granted the amount of 14,000 MDL, and the court did not motivate the solution in any way.

According to Promo-LEX lawyer,  Vadim Vieru, director of the Human Rights Program: “considering the jurisprudence of the ECHR in Moldovan cases, there is a tendency for national courts to award reduced amounts of moral damages up to 10 times less than ECHR in similar cases. In those circumstances, the applicants continue to be victims of a violation of Article Three of the Convention.”

Judicial practice of national courts vs. Jurisprudence of the European Court of Human Rights

In other similar cases, national courts have granted small amounts as non-pecuniary damage, referring only to “constant practice” without taking into account the specific criteria and circumstances of each case and the ECHR case law on similar cases.

For example, in the case of Ciorap no.2, the Supreme Court offered the applicant the equivalent of 600 Euros as non-pecuniary damage, compared to 4,000 Euros granted by the ECHR. In the case of Gavrilita both applicants received approx. 900 euros from the national court, compared to 9,000 euros and 10,000 euros granted by the European Court. The same goes for the Morgoci and Grecu cases, 958 Euro and 3,200 Euro as non-pecuniary damage offered by the Supreme Court of Justice, compared to 11,000 Euro and 11,800 Euro respectively granted by the High Court of Strasbourg.

The Promo-LEX Association recommends that national courts and, in particular, the Supreme Court of Justice take into account in the process of assessing the amount of non-pecuniary damage the ECHR case-law in similar cases and Recommendation no. 6 on just satisfaction prepared by the Supreme Court of Justice.

The use of administrative resources, involvement of religious denominations in the election campaign, undeclared financial expenses, as well as intimidation/use of violence against candidates. These are the main findings of the Promo-LEX Observation Mission, reflected in Report No 4 on monitoring the early Parliamentary Elections of 11 July 2021.

In addition to the findings identified by monitoring the electoral activities carried out by the 23 candidates registered in the electoral race, Promo-LEX OM draws the attention of the competent authorities – the Central Electoral Commission, the Government of the Republic of Moldova and the Ministry of Foreign Affairs and European Integration on the need to urgently identify solutions to ensure the proper conduct of the election, both in the country and abroad.

Achievements and shortfalls in the work of electoral bodies

During the period under observation, the CEC registered the last six candidates. Thus, for the early Parliamentary Elections of 11 July 2021, a total of 23 candidates are registered, of which: two electoral blocs, 20 parties and other socio-political organisations and one independent candidate. Thusly, we confirm a competitive nature of the elections.

In view of the difficulties reported by the law enforcement bodies, the CEC revised its previous decision to open 44 polling stations for the transnistrian region voters, excluding the 3 polling stations established on the territory that is not controlled or is partially controlled by the constitutional authorities.

As to the opening of polling stations abroad, we note that this process was contested, being examined and resolved within 11 days (the delay in this case seems to be justified, given the large number of participants in the process, the large number of appeals filed by parties, the rejection of the exception of unconstitutionality, as well as the complexity of the subject under consideration.

However, on 17 June 2021 the Chisinau Court of Appeal partially annulled the CEC Decisions of 5 June and 8 June 2021, for the establishment of 139 PSs and 146 PSs respectively. It should be noted that in the reasoning of its judgement, the Chisinau Court of Appeal considered several arguments, namely that the CEC and MFAEI had the obligation to cooperate effectively and efficiently, to identify the information required by the legislator and establish with maximum accuracy the required number of polling stations abroad (based on the legal criteria laid down in Articles 30 and 31 of the Electoral Code), thus contributing to the creation of real rather than illusory opportunities for the voters abroad to exercise their right to vote.

Afterwards, the judgement issued by Chisinau Court of Appeal was upheld by the Supreme Court of Justice as a result of CEC appeal. On 23 June 2021 CEC met again and decided to set up 150 PSs abroad. We underline in this context that the deadline for setting up polling stations was 5 June 2021, hence the intense efforts made by CEC and MFAEI to ensure a good organisation and conduct of overseas voting is praiseworthy.

Promo-LEX OM also found a higher number of accredited observers (+160), compared with the same stage of the Presidential Elections of 1 November 2020. There are 1,201 observers overall, of whom 1,019 are national observers and 182 are international experts.

Other problematic aspects related to the operation of electoral bureaus include partial compliance by PEBs with the working schedule (104 (29%) of the 356 bureaus visited were closed), PEB premises inaccessible for persons with physical impairments (of the 233 PEBs assessed, only 98 (42%) are accessible), and existence of a gender imbalance in the PEB membership, where 84% are women.

Worrying findings related to electoral contenders

With the advancement of the election campaign, the number of electoral activities noticed has literally doubled (1 111 activities), compared with the previous monitoring period. At the same time, we point out the lack of campaign activities attended by candidates in transnistrian region. On the other hand, the contenders organised at least 11 electoral meetings abroad, that were attended by candidates.

However, the number of violations reported by Promo-LEX observers is increasing. During the reference period, at least 61 cases were reported that could be considered as the use of administrative resources for electoral purposes, by: BECS – 28 cases, PDM and BERU – 9 cases each, PPPDA – 5 cases, PAS – 4 cases, PPȘ – 3 cases, PDCM – 2 cases and AUR – one case.

Promo-LEX observers also reported a case that could be considered as an act of offering gifts with electoral impact, that targeted a PPPDA candidate. Five cases were reported as well (three – PAS and one case each – BECS and AUR) where images/state symbols of the Republic of Moldova or other states were used.

We point out at least six cases of campaign activities that targeted religious cults. Among them, four cases targeted BECS and one case each – AUR and PAS.

Unfortunately, the election campaign continues to be marked by intimidation and use of violence, with at least 7 such cases identified. AUR is involved in 5 cases – in 3 cases they were assaulted, and in 2 cases AUR was held responsible for intimidation/violence. BECS and PACE are targeted as intimidated parties in one case each.

The electoral contenders still do not report their actual expenses

From the beginning of the election campaign and until 18 June 2021, 15 electoral contenders (PACE, PPCC, BERU, PPȘ, PAS, BECS, PDM, PPPDA, PUN, PDA, AUR, PDCM, PLD, PPPO, PVE) declared total revenue of MDL 19,140,890. On the other hand, the declared expenses total at MDL 16,890,374. Most of the reported expenses covered electoral advertising – 54% and promotional materials – 30%.

At the same time, Promo-LEX estimated at least MDL 4,114,217 as non-reported expenses: BECS – MDL 1,332,446, PAS – MDL 542,992, PPPDA – MDL 494,816, AUR – MDL 381,102, PPS – MDL 341,683, PPCC – MDL 327,365, PDM – MDL 310,654, PACE – MDL 199,425, BERU – MDL 98,106, PUN – MDL 56,771, PDCM – MDL 16,345, PDA – MDL 7,960, PPN – MDL 2,333, PVE – MDL 1,000, PPM – MDL 600, PLD – MDL 600. Most of the estimated non-reported expenses referred to promotional materials (52%), secondment/detachment of persons (21%) and outdoor and mobile advertising (12%).

However, it is important to note here that the electoral contenders that have expenses not covered by the information they submitted to CEC (expenses estimated by Promo-LEX as not reported) are expected to report further expenses in next reports filed to CEC, and the total expenses during the election campaign will be included in the final report to be submitted to the electoral authority by 9 July 2021 (two days before the election day).

Other organisational activities in the context of the early parliamentary election

During the reference period, the Government passed two decisions relevant for this election. The first one ensures a higher access to vote by obliging the Public Services Agency to issue the ID cards requested during the past month before the election no later than two days before the election date, regardless of the requested issuance period.

The second Decision (No 93) increased the appropriations to the Government’s reserve fund by over MDL 25 million. However, this Decision does not guarantee that the appropriated funds will be used to cover the costs of election. In this context, Promo-LEX OM reiterates its opinion that the Government must pass, as a matter of urgency, a decision providing additional funds for the organisation of the election.

Unfortunately, we still find drawbacks in the LPAs’ performance related to their duty to ensure a transparent and correct electoral process, though these indicators have slightly improved, compared to the previous period.

At the same time, Promo-LEX OM regards as abusive the decision of Orhei Mayors Office of 21 June 2021 that prohibits meetings with voters by setting up temporary constructions (tents).

Election campaign with hate and discrimination messages

During 8-21 June 2021, the observers reportedly identified at least 30 cases of hate speech and incitement to discrimination in the public space, in the media and online in the Republic of Moldova. Thus, four electoral contenders used non-tolerant expressions: Igor Dodon – 2 cases (BECS), Vladimir Voronin – 2 cases (BECS) and Dorin Chirtoaca – 1 case (AUR).

Of the 30 cases of non-tolerant messages identified by Promo-LEX, 12 targeted six electoral contenders: (Igor Dodon ( BECS) – 4 cases, Vladimir Voronin (BECS) – 4 cases; Igor Grosu (PAS), Marina Tauber (PPS), Marc Tkaciuk (PPCC) and Vlad Bilețchi (AUR) – one case each. Other two cases affected supporters of PAS and BECS. And the remaining 12 cases targeted LGBTI persons, women, migrants, Roma and other social groups.

The report is developed as part of the Observation Mission for the Early Parliamentary Elections of 11 July 2021 conducted by Promo-LEX Association with the financial support of the United States Agency for International Development (USAID) via the ‘Democracy, Transparency and Accountability’ Program, of the Council of Europe through the project “Support for the civic observation of the early parliamentary elections of 2021 in polling stations created abroad”, as well as the Embassy office of the Kingdom of the Netherlands in Moldova through the project “Support for informing citizens and civic observation of Early Parliamentary Elections in 2021 in the polling stations created by voters in the Transnistrian region”. ‘Hate speech’ component is supported by Justice and Human Rights Department of Soros Foundation Moldova under ‘Consolidation of a platform for the development of activism and education in the area of human rights in Moldova – stage IV’ Project.

For more details, please contact:
Inga Stegarescu, Press Officer of Promo-LEX Association;
GSM: 069 26 96 84;
E-mail: [email protected]

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ABBREVIATIONS

NIA – National Integrity Agency

LPA – Local Public Authorities

Art. – Article

AUR — ‘ALLIANCE FOR THE UNION OF ROMANIANS’ Political Party

EB – Electoral bloc

BECS — Electoral bloc of Communists and Socialists

BERU — Electoral bloc ‘RENATO USATII’

PEB – Precinct Electoral Bureau

BRP — Bureau for Reintegration Policies

CEC – Central Election Commission

DEC – level-two District Constituency Council

CICDE – Centre for Continuous Electoral Training

NEPHC – National Extraordinary Public Health Commission

SCS — Supreme Council of Security

JCC — Joined Control Commission

let. – letter

MFAEI — Ministry of Foreign Affairs and European Integration

MIA – Ministry of Internal Affairs

OM – Observation Mission

Bindmans LLP Law office in London, Bindmans LLP acted for Andrian Tabuncic, one of the appellants, in the proceedings before the High Court in the case Tabuncic & Coev / Moldova [2021] EWHC 1269 (Admin). Mr Tabuncic’s extradition was requested by Moldova and was successfully challenged by Bindmans on the grounds that it violated his rights not to suffer inhuman or degrading treatment or punishment under Article 3 of the European Convention on Human Rights (ECHR).

The Divisional Court, consisting of LJ Stuart-Smith and Judge Holgate, allowed the appeal, and found that the extradition orders must be cancelled. 

Legal issues:

The issues considered by the Divisional Court in this case were: whether there are substantial grounds for believing that there is a real risk of infringement of appellants’ rights under Article 3 of the European Convention on Human Rights (ECHR) due to the material conditions of imprisonment, and , in particular, violence between prisoners; if and to what extent could the assurances given by Moldova be based.

Judgment

Lawyers from London also indicated that the British court found based on the evidence administered that the Moldovan penitentiary system is run by a strong criminal subculture, which is tolerated by the penitentiary authorities. The Divisional Court accepted evidence from the European Committee for the Prevention of Torture (CPT) that this problem remains as “acute as ever” and it led to the fact that prisoners were subjected to extortion, violence and prolonged periods of arbitrary isolation. It noted that the problems of violence between prisoners were “endemic”. Moldova has offered assurances that if extradited, Mr Tabuncic will be detained in cells compliant with in Article 3 and will be protected from violence by other detainees. Based on the above and based on the evidence obtained regarding the “substantial” breaches of insurance granted to the first individual extradited from Great Britain to Moldova, the Divisional Court found that the assurances given in connection with Mr. Tabuncic cannot be accepted because the Republic of Moldova does not respect them.

Conclusion

By its  decision of 14 May, the Divisional Court concluded that:

“The extradition system applied by the courts in this jurisdiction is based on mutual trust and respect. The failure of the defendant (in this case, the Government of the Republic of Moldova) to provide any admissible information in response to the issues raised by the appellants is a matter of real concern. The statements made by the Defendant (Republic of Moldova) in future cases will have to be examined very carefully”.

Bindmans LLP Associate Jessica Skinns, who represented Mr. Tabuncic:

“This decision clearly shows that there are very real problems regarding the conditions of detention in the Republic of Moldova and, in particular, those arising from violence between prisoners. This decision may have a wider impact on other cases of extradition of the Republic of Moldova. Moldova is likely to be required to provide further updated assurances in these cases, which undoubtedly will be examined with “special attention” by lower courts. It remains to be seen whether such decisions and judicial criticism from the United Kingdom will have a material impact on the appalling conditions for Moldovan detainees. ”

The issue of subculture and penitentiary violence is an increasingly worrying problem in the Republic of Moldova. The Promo-LEX Association has assisted and is assisting detainees, victims of violence between detainees and the penitentiary subculture. The European Court has previously ruled in the case I.E. v. Republic of Moldova, Complaint no. 45422/13. Promo-LEX lawyers are in the process of documenting other serious cases related to the prison subculture and violence between detainees.

Andrian Tabuncic was represented by Jessica Skinns, associate in the Crime and Extradition team at Bindmans LLP. She assisted lawyers Ben Keith and David Josse QC of 5 St Andrews Hill, independent expert George Tugushi, but also expert Vadim Vieru from Promo-LEX.

The decision can be accessed here

At its meeting on 9 June 2021, the Committee of Ministers of the Council of Europe examined the measures taken by the Republic of Moldova to enforce the judgments of the group of cases I.D. v. Moldova (10 judgments of the European Court of Human Rights (ECHR) which mainly refers to poor detention conditions and lack of access to adequate health care during detention). The Committee has issued binding recommendations for the Government of the Republic of Moldova, that need to be implemented.

Previously, the Promo-LEX Association (including in partnership with EPLN – European Prison Litigation Network) sent communications on the implementation of general measures in this group of cases. The communications were sent on 20 May 2019 (see DH-DD (2019) 635), 20 April 2020 (see DH-DD (2020) 384), 28 April 2021 (see DH-DD (2021) 481). These communications described current problems in the field of ensuring detention conditions in accordance with CoE and UN standards, the quality of healthcare (including in the context of the COVID-19 pandemic), overcrowding in the penitentiary system and significant delays in the construction of a penitentiary.

In its communication, Promo-LEX also expressed concern about the implementation of the new preventive and compensatory remedy to challenge the precarious conditions of detention (including the ineffectiveness of the preventive remedy, the excessive length of the examination of detainees’ complaints in court and insufficient financial sums offered as compensation), including the consequences of the temporary suspension of the preventive and compensatory mechanism by the authorities.

The Committee of Ministers took into account the information and recommendations presented in the communication of the Promo-LEX Association. The Committee expressed its concern about the application of the preventive and compensatory mechanism by the courts (in particular, about the deadlines for examining cases in court), but also indicated that the current amount set by law as financial compensation for a day of detention in poor conditions (approx. 2.55 EUR) is too small. The Committee was also concerned about the high incarceration rate and the delay in the construction of the new penitentiary.

With regard to healthcare, the Committee appreciated the measures taken by the Government in the context of preventing COVID 19 in the penitentiary system, and encouraged these efforts to continue. However, the Committee called on the Government to ensure CPT standards on the provision of healthcare in the penitentiary system.

According to the Program Director of the Promo-LEX Association, Vadim Vieru, the Committee of Ministers stated:

• “the importance of ensuring that the practical application of internal remedies complies with the requirements of the Convention, including the length of examination of detainees’ complaints and the amount of monetary compensation granted, and invited the authorities to provide information on preventive remedies and up-to-date statistics on the application of the compensatory remedy;
• reiterated its call on the authorities to keep the Committee of Ministers informed in due time of all developments in the process of reforming the punishment reduction system and to work closely with the secretariat in this regard;
• noted with concern that, despite a certain decrease in the prison population in 2018, prison overcrowding remains a major challenge and strongly urged the authorities to adopt, as a matter of priority, a comprehensive strategy to combat prison overcrowding, in particular by adjusting prison sentences, promoting the use of alternatives to imprisonment and reducing the use of pre-trial detention; in this process, encouraged the authorities to take full advantage of the technical assistance available in the Council of Europe Action Plan for the Republic of Moldova 2021-2024;
• noted with concern that the material conditions of detention in some prisons, including Penitentiary no. 13, remained unsatisfactory and encouraged the authorities to continue their efforts to make further progress in this area, taking all necessary measures until the situation is fully resolved; recalled that combating overcrowding and improving material conditions of detention are vital;
• deeply regretted that no progress had been made in building the new penitentiary in Chisinau, which was seen as a solution to the problem of overcrowding and poor material conditions of detention in prison no. 13, with construction costs partly covered by the loan from the Council of Europe Development Bank and partly from the state budget; called on the authorities to provide, by 31 December 2021, information on the measures taken to overcome the current difficulties in implementing the project and to provide a timetable for the construction of the new penitentiary, as well as to ask the authorities to allocate the necessary resources to complete this project without additional delays;

By Decision of the Committee of Ministers of 9 June 2021 (CM / Del / Dec (2021) 1406 / H46-19) it was decided to continue supervising the execution of the general measures formulated in the group of cases H46-21 I.D. v. Republic of Moldova (Complaint No. 47203/06). Thus, the Committee invited the authorities to provide, by 31 March 2022, information on the following issues:

• the practical application of the preventive and compensatory remedy;
• information on alternative measures applied to improve precarious detention conditions;
• measures taken to further improve healthcare in detention facilities;
• the practice of the criminal investigation body and the courts for examining the detainees’ requests regarding the approval of meetings with family members.

The next evaluation of the measures undertaken by the Government of the Republic of Moldova in the group of cases I.D. v. Moldova, will be resumed at one of the sessions of the Committee of Ministers planned for 2022.

At its meeting on 7-9 June 2021, the Committee of Ministers of the Council of Europe issued a new decision on the group of cases Catan and others v. Russian Federation (no. 43370/04). The group of cases refers to the violation of the right to education of students in schools with Latin script in the Transnistrian region of the Republic of Moldova.

Why Russia? The European Court found that, “by virtue of the ongoing military, economic and political support provided by the Russian Federation to the de facto administration from Tiraspol, which otherwise could not survive, Russia assumes responsibility under the Convention for the violation of the applicants’ right to education. ” Thus, Russia is the one that has the necessary influence on the administration from Tiraspol and should intervene to ensure respect for human rights.

Mother-tongue education. The Committee of Ministers reiterated the fundamental importance of primary and secondary education for the personal development and future success of each child and insisted on the rights of students to continue the educational process in their mother tongue, without obstacles and harassment.

Compensation was not paid. The Committee of Ministers has found that the victims have so far not received any form of compensation for the violations suffered, including the payment of just satisfaction. The Committee of Ministers therefore strongly insists on the unconditional obligation of each respondent State, under Article 46 § 1 of the Convention, to comply with every final judgment in the cases to which it is a party, including by paying any just satisfaction awarded by the Court.

The CoE Secretariat will address the Ministry of Foreign Affairs of the RF. Due to the fact that the Russian Federation has not prepared any action plan setting out the concrete measures taken or envisaged by the Russian authorities for the implementation of the decisions, the Committee of Ministers invited the Secretary General to write a letter to the Minister of Foreign Affairs of the Russian Federation, to emphasize both the fundamental importance of the right to education and the unconditional obligation to comply with the judgments of the Court, including the payment of just satisfaction to the applicants in judgments relating to this case.

Tougher measures follow. If no tangible progress will be made on enforcement measures in the case of Catan and others until the next examination by the Committee of Ministers (December 2021), the Committee of Ministers has decided to consider all appropriate means to ensure the implementation of the Decision on this case. The Promo-LEX Association submitted several communications inviting the Committee of Ministers to adopt a decision on the referral to the European Court regarding the refusal of the Russian Federation to comply with the binding force of ECHR judgments.

Brief history. Judgment of the European Court of Human Rights (ECHR) in Catan and Others v. Moldova and Russia on  19 October 2012. This found a violation of the right to education for students and parents in Romanian-teaching schools in the Transnistrian region of the Republic of Moldova.

At the same time, the Court ruled that the Russian Federation must pay, within three months, EUR 6000 for each applicant as non-pecuniary damage and EUR 50 000 as representation costs and expenses.

We remind you that in the “file of schools” with teaching in Romanian in the Transnistrian region there are two other cases: Bobeico and others; Iovcev and others.

The case Bobeico and others  is similar to the Catan case, the same violations being found.

In the case of Iovcev and othersthe ECHR found a violation of the applicants’ rights as a result of pressure from the de facto structures of the “RMN” in a campaign of harassment and intimidation against Romanian-teaching schools in the Transnistrian region of the Republic of Moldova during 2013-2014.

We remind you that on the left bank of the Dniester there are still provisions sanctioning the use of Latin spelling.

Promo-LEX identifies an increasing number of gaps in the organisation and conduct of the election campaign for the early Parliamentary Elections of 11 July 2021. During the reporting period (26 May 2021 – 8 June 2021), a series of positive aspects were identified, as well as many concerns about the electoral process. 

The activity of electoral bodies: achievements and problems during the reporting period

Promo-LEX OM found an acceleration of the observers’ accreditation process, during the reporting period being accredited a number of 734 (91%) out of 811 observers. The management of DECs was also elected by the legal deadlines, with observance of the gender balance for management positions, except for the position of DEC secretary, 84% of which being held by women.

One of the issues in DEC activity is the failure to meet the work schedule. Thus, out of 83 visits made in the working hours, during seven visits (8%) the DEC II offices were closed. Another problem is related to the non-accessibility of DEC II offices for people with disabilities, as only 17 (46%) out of 37 premises are accessible to people with mobility impairments.

A number of 2149 PSs were set up for the early Parliamentary Elections of 11 July 2021, including 1959 by DEC II. On the other hand, many problems are related to the CEC work in the context of adopting decisions on establishing polling stations for the voters in the transnistrian region – 44 PSs and abroad – 146 PSs.

Therefore, though a smaller number of voters from the transnistrian region participated in the 2020 Presidential Elections in comparison with 2019 Parliamentary Elections, for the election of 11 July 2021 2 more PSs were arranged. We also note that 2 PSs were set up in Bender and 1 PS in Corjova village, and given that Government authorities did not get an efficient control over these communities, there could be significant risks (expressed by the Security and Intelligence Service and Bureau for Reintegration Policies) for the security of the electoral process and its participants.

Regarding the polling stations for the voters outside the country, CEC first constituted on 5 June 2021 only 139 PSs, without considering the legal criteria for their establishment provided in Electoral Code. As a result of the social and political pressures, CEC reviewed its decision, and, on 7 June 2021 it decided to set up 146 PSs. According to Promo-LEX OM, CEC had to start from 150 polling stations, as it was set in its expenditure estimate, with potential increase of their number if MFAEI/the Government granted the availability of sufficient funds.

More active electoral contenders — more incidents

The activity of electoral contenders enhances along with the increase in the number of registered contenders, as well as with the progress of the election campaign. Thus, by 8 June 2021, three days before the expiry of the deadline for the submission of registration applications, CEC registered a total of 17 electoral contenders, with two other applications being under examination. In comparison with Parliamentary Elections of 24 February 2019, there was a total of 15 contenders in the national constituency. During 26 – 8 May 2021, at least 673 electoral activities conducted by nine electoral contenders were reported, with BECS – 357 (53%) activities and PAS – 177 (26%) activities as the most active.

There is also an increase in the number of violations reported by Promo-LEX observers. Thus, during the reference period, at least 42 cases that can be regarded as use of administrative resources (involving public employees in election campaign activities – 27 cases; taking credit for works/services performed from public funds – 3 cases; organisation of electoral meetings within state institutions with their employees, during their working hours – 12 cases) were reportedly carried out by:  BECS – 34 cases, PDM – 4 cases, PAS – 2 cases, BERU and PDCM – 1 case each.

Report No 3 of Promo-LEX OM also includes one case that may be regarded as gifts with electoral impact, involving the BECS candidate (a playground for the community Parcani, Slobozia). There were also eight cases of using the image/state symbols of the Republic of Moldova and other states for electoral promotion purposes (4 – PAS, 2 BECS and by 1 case – PPPDA and PUN).

We draw attention to two cases of campaign activities engaging religious cults. On the one hand, one case was reported where representatives of religious cults engaged directly in the PDM election campaign, on the other hand, BECS used the image of religious cults in promotion activities.

Expenses not reported by the electoral contenders amounting to MDL 1 922 687.

During 21 May – 4 June 2021, seven electoral contenders (PPCC, BERU, PPS, PAS, BECS, PDM and PPPDA) reported a total revenue amounting to MDL 9 551 708. On the other hand, the amount of the declared expenses is about MDL 5 880 932. Most of them were reported to be used in political advertising – 39%, for promotion materials – 34% and for the organisation of electoral events – 16%.

At the same time, Promo-LEX OM estimated at least MDL 1.922.687 as undeclared expenses during the first two weeks of the election campaign, of which PAS – MDL 1.068.194 (56%), BECS – MDL 457.335 (24%), PPPDA – MDL 119.860 (6%), PPCC – MDL 91.909 (5%), PACE – MDL 86.249 (4%), PPS – MDL 81.509 (4%), PDM – MDL 13.185 (1%), BERU – MDL 4.447. The costs for advertising materials (56%), and outdoor and mobile advertising (18%) have the biggest share of the unreported expenses.

Activities of other public institutions in the context of the early parliamentary elections

On 28 May 2021, the Presidency held a meeting of the Supreme Security Council, one of the subjects on its agenda being related to the risks of corruption in the process of financing political parties and election campaigns. PROMO-LEX supports the need to ensure lawful and transparent financing of parties and electoral contenders, but we draw the attention of public authorities to the importance of refraining during the electoral period from actions that can be interpreted as interfering or influencing the electoral process.

Though with a delay, the National Extraordinary Public Health Commission approved the Instruction on Organisation and Conduct of Elections by Central Electoral Commission amidst the COVID-19 Pandemic. We however express our concern that some of the unclear provision of the Institution, found during the presidential election, have not been corrected.

Unfortunately, we still find gaps in the way LPAs fulfil their duties of ensuring a transparent and accurate electoral process. For this election as well, the Chisinau Municipal Council failed to approve the nomination of PEB members by local public authorities. In this context, we draw the attention that using the CEC’s Register of Electoral Officials as a replacement of the LPA powers to appoint PEB members undermines the transparency of the electoral process and raises concerns about the integrity of procedures.

At the same time, PROMO-LEX  OM is worried about the information shared by the Congress of Local Authorities from Moldova (confirmed by other sources, as well) that a number of mayors reported unplanned checks started by investigation and control authorities during the electoral period, including at the request of two MPs, electoral contenders.

Notifications not addressed in a swift manner and high rate of rejected complaints

During the monitored period, 5 complaints and 4 notifications were filed to CEC, most of them being against electoral contenders. The notifications were not addressed within the maximum period stated by the law, and 3 of the 5 complaints filed were rejected by CEC.

Other at least 10 complaints were filed with the Chisinau Court of Appeal against CEC actions and decisions. Until 8 June 2021, the Chisinau Court of Appeal issued its resolution on 5 complaints, within the legal term, rejecting them due to the lack of actual harm to the personal right of voter or electoral contender. Regarding complaint rejection, PROMO-LEX regards the rationale invoked as ungrounded, as any electoral violation affects the voters’ right to form an opinion or the electoral contenders’ right to run for elections on equal terms.

Hate speech and incitement to discrimination are not sanctioned during this election either

In spite of the Code of Conduct on the conduct and media coverage of the election campaign for the Parliamentary Elections of 11 July 2021, Promo-LEX monitors found at least 36 cases of hate speech and incitement to discrimination – by about 33% more compared to the previous monitoring period.

The report is developed as part of the Observation Mission for the Early Parliamentary Elections of 11 July 2021 conducted by Promo-LEX Association with the financial support of the United States Agency for International Development (USAID) via the ‘Democracy, Transparency and Accountability’ Program, of the Council of Europe through the project “Support for the civic observation of the early parliamentary elections of 2021 in polling stations created abroad”, as well as the Embassy office of the Kingdom of the Netherlands in Moldova through the project “Support for informing citizens and civic observation of Early Parliamentary Elections in 2021 in the polling stations created by voters in the Transnistrian region”. ‘Hate speech’ component is supported by Justice and Human Rights Department of Soros Foundation Moldova under ‘Consolidation of a platform for the development of activism and education in the area of human rights in Moldova – stage IV’ Project.

For more details, please contact:
Inga Stegarescu, Press Officer of Promo-LEX Association;
GSM: 069 26 96 84;
E-mail: [email protected]

7 June 2021

The Civic Coalition for Free and Fair Elections condemns the illegal and irresponsible decision of the Central Electoral Commission to open only 139 polling stations abroad for the early Parliamentary Elections of 11 July 2021.

The Civic Coalition for Free and Fair Elections requests CEC to:

• urgently amend Decision No 4966 of 5 June 2021 on the establishment of polling stations abroad;
• apply in good faith the three criteria provided for in the Electoral Code for establishing at least 150 polling stations abroad, with the possibility of increasing their number if the MFAEI/Government provides enough budget to CEC for this purpose;
• publish all the documents related to the process of setting up polling stations abroad, including the recommendations and the prior consent of the MFAEI.

The Coalition’s assessment of the CEC Decision No 4966 of 5 June 2021 on the establishment of polling stations abroad, as well as the above requests are based on the following findings and arguments:

1. The Central Electoral Commission did not take into account the three criteria[1] laid down in the Electoral Code for the establishment of polling stations abroad. The CEC’s disagreement with the criteria established by the legislator for setting up polling stations abroad or the lack of clarity in relation to them does not entitle the Commission to not use them. These criteria had to be applied compulsorily, taking into account the positive practice of the 2020 Presidential Elections, when the CEC gave each criterion an equal weight[2].
2. According to the Electoral Code (Article 31(2)) polling stations shall be established for voters abroad for each individual election. Despite this legal provision, according to the statements of some CEC members, is was decided to establish 139 polling stations on the basis of the principle of preserving the number and locations of the polling stations established for the 2020 Presidential Elections.
3. There is an uneven interpretation and application of the legislation in force by CEC. Thus, for example, in the context of adopting Decision No 4965/2021 on the establishment of polling stations for the voters from the communities on the left bank of the Nistru River (Transnistria) for the early Parliamentary Elections of 11 July 2021, in order to justify the need for more polling stations than in the 2020 Presidential Elections, the rapporteur presented among other reasons the following: a) an LPA requesting to set up a polling station in the locality; b) during the presidential elections many instances of voters queuing in front of the polling stations were registered and there is a need to streamline the flow of voters.

In contrast, compared to the establishment of PSs for the voters in the transnistrian region, where fewer voters voted in the 2020 Presidential Elections (31,784 voters in the second round) than in the 2019 Parliamentary Elections (37,257 voters) and the number of polling stations was increased by 2 PSs, in the case of the polling stations for the voters abroad, even though in the 2020 Presidential Election (second round) almost four times more voters voted (263,177 voters) than in the 2019 Parliamentary Elections (about 76,600 voters), the number of polling stations was not changed.

4. If we use the data published on inregistrare.cec.md and www.cec.md and verify the application of the calculation formula that led the CEC to the approval of the CEC Decision No 4966/2021, maintaining the maximum number of 139 polling stations, established by the CEC, serious discrepancies a noticed between the number of polling stations approved by CEC and the number obtained according to the calculation formula (see Annex 1). These discrepancies show that the Central Electoral Commission acted contrary to the Electoral Code and its own arguments presented in the rationale of Decision No 4966/2021.
5. The CEC deliberately acted against the interests of voters abroad, who clearly expressed their intention to vote. In this context, we remind that in the second round of the Presidential Elections in November 2020, voter turnout abroad was unprecedented, of 263,177 voters. At the same time, as of 26 May 2021, the results of the pre-registration showed 100050 declarations submitted online or on paper, of which 39940 registrations made in 2021. Thus, CEC has completely ignored the problems faced by our citizens in the last elections in United Kingdom, France, Germany, Italy and other countries (insufficient ballot papers, very long queues in front of polling stations, the enormous efforts and expenses incurred by citizens to go to the polls).
6. The resolution part of the CEC decision No. 4966/2021, in particular the annex, does not correspond in terms of logic and content to the descriptive part of the decision. Particularly, the descriptive part refers to: a) the organization of 150 polling stations, the expenses of which were provided in the estimated expenses developed by CEC; b) the organization of 190 polling stations, based on the embassies proposals; c) the organization of 162 polling stations, a list of which was sent for approval to the Government and MFAEI.

From the complete text analysis of the CEC decision but also the manner how the meeting took place, we can say that the initial meaning of the draft decision (which proposed the setting up of 162 polling stations) was abruptly diverted and without justification by the author and supporters of the amendments that led to the establishing of 139 polling stations abroad.

7. The CEC did not take into account its own decision No 4816 of 30 April 2021 by which it adopted the estimate of expenses for the organization of elections, including for the setting up of 150 polling stations abroad. Although the Government has so far allocated only about 56% of the amount estimated in the estimate of expenses (MDL 125,046.7 thousand), it showed its willingness to allocate to the CEC the additional necessary financial means, starting with 20 June 2021. The lack of effective communication on expenditure for polling stations abroad is imputed to both the Central Electoral Commission and the Government. However, as long as the necessary financial means are identifiable, the failure of the Government to provide an answer in short time cannot be a reason to limit the number of polling stations.

Note that the MFAEI State Secretary confirmed, at the CEC meeting of 05.06.2021, the possibility to identify the needed funds in the MFAEI budget, including for the establishment of 191 polling stations. We also draw the attention to the fact that, the costs estimated for the organisation of the previous elections were as a rule by 20% higher than the actual/final costs incurred by CEC. We are hence convinced that there are the necessary preconditions for CEC to set up at least 150 polling stations abroad, with the possibility of increasing their number if the Government provides enough budget to CEC.

8. The process of deciding on the polling stations to be established abroad was not transparent, with the relevant decision taken on 5 June 2021 without any public consultations with interested stakeholders. Neither the initial draft CEC decision (envisaging 162 polling stations abroad), nor the recommendations of the Ministry of Foreign Affairs and European Integration on the number and location of polling stations abroad were made public.

ANNEX: 1

Algorithm for calculating the number of polling stations abroad, on the basis of the three criteria stated in Article 31 of Electoral Code[3]

where:

A1, B1, C1, D1 stand for the number of voters abroad who participated in the last national election in the country of reference.

T1 stands for the total number of voters abroad who participated in the last national election.

A1V, B1V, C1V, D1V stand for the radio of voters abroad, in the country of reference, who participated in the last national election to the total number of voters who participated in the last election.

A2, B2, C2, D2 stand for the number of preliminary registrations made by voters who are abroad, in the country of reference.

T2 stands for the total number of preliminary registrations made by voters who are abroad, in their countries of reference.

A2V, B2V, C2V, D2V stand for the ratio of preliminary registrations made by voters who are abroad, in the country of reference, to the total number of preliminary registrations.

A3, B3, C3, D3 stand for the number of voters abroad, in the country of reference, according to the information presented by the Ministry of Foreign Affairs and European Integration.

T3 stands for the total number of voters abroad, according to the information presented by the Ministry of Foreign Affairs and European Integration.

A3V, B3V, C3V, D3V stand for the radio of voters abroad, in the country of reference, who participated in the last national election to the total number of voters who participated in the last election.

W,X,Y,Z is the total value/share of each individual state, calculated on the basis of the 3 (three) criteria.

The total value/share of each individual state is calculated as an average of the three criteria. The total value/share will be the basis for determining the total number of polling stations to be established in that country.

N stands for the total number (150) of the polling stations to be established abroad by the Central Electoral Commission.

PS No (number of polling stations) is the ratio of the total number of polling stations to be established by CEC to the value/share of each country.

* If data are not available for one of the three criteria for a certain country, 0 will be used as the initial value for the criterion concerned. Thus, for example, no polling station was set up in Country 1 at the previous election because no voter had registered preliminarily. Hence, the first criterion for Country 1 will amount to 0 — the number of voters who participated in the previous national election.

www.alegeliber.md – The Civic Coalition for Free and Fair Elections is a permanent, voluntary entity consisting of 35 Moldovan NGOs, which aims at developing democracy in the Republic of Moldova by promoting and conducting free and fair elections according to the standards of ODIHR (OSCE), Council of Europe and specialised affiliated institutions.

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[1] (1) voter turnout at the previous election, (2) the results of the preliminary registration and (3) the number and place of the residence of the citizens with the right to vote abroad, based on the information obtained by the MFAEI from the competent authorities of the countries of their residence.

[2] The calculation formula was proposed by Promo-LEX Association and adopted by the Association for Participatory Democracy ADEPT.

[3] CEC used this algorithm to determine the number of polling stations abroad for the 2020 Presidential Elections, and reportedly (because de facto the CEC members who voted for the decision totally neglected the algorithm) this algorithm underpinned the decision on the polling stations set up for the early Parliamentary Elections of 11 July 2021.

Today, 4 June 2021, the Buiucani Court issued a new sentence on the case of Andrei Braguta, a victim of inhuman and degrading treatment, who died in prison in August 2017. According to the sentence, 5 out of 13 officers of the remand prison of the Chisinau Police Directorate were sentenced to imprisonement, and another 8 – sentenced to parole.

We remind you that the 13 officers of the remand prison caused physical and mental suffering to Andrei Braguta, who was in public custody, which represents inhuman and degrading treatment. These actions were committed taking advantage of the obvious state of helplessness of the victim, which is due to a mental illness and disability, committed by several people, who recklessly caused the death of the victim.

According to the forensic report of September 2017, Andrei Braguta died due to a purulent bronchopneumonia. In this sense, the defendants admitted the placement of Andrei Braguta in isolation cell naked without clothes, socks and shoes, without being provided with a mattress and duvet. These conditions caused the victim an effective bodily injury by overcooling the body and favored the development of bilateral purulent bronchopneumonia.

The Promo-LEX Association has repeatedly warned the state about the problems faced by people with mental disabilities, including those in the custody of the authorities.

In this sense, the case of Andrei Braguta is a complex one that highlights system problems related to: detention, behavior and case management involving people with disabilities, abusive application of the preventive and arrest measure, torture, inhuman and degrading treatment in detention, the quality of medical care, the inefficiency of the torture reporting mechanism, the poor quality of legal aid provided by some lawyers. Through the actions of all participants in the process, these issues have been reconfirmed. It is vital that the problems identified in this case be addressed as a matter of priority.

According to the lawyer of the Promo-LEX Association, Victoria Donica (Gamurari), “We are satisfied with the sentence issued.” At the same time, the lawyer specified that “the victim’s family considers that the guilty persons should be punished with the harshest punishment and after studying the motivated sentence, but also after consulting with the injured party’s successor, the sentence will be appealed to the Court of Appeal for the individualization of the punishment ”.

As previously reported, Chisinau City Court rendered the operative part of the sentence in connection with the acts of torture, inhuman and degrading treatment and medium body injuries committed in respect of Andrei Braguta. Thus, the court decided to convict Andrei Braguta’s fellow detainees. At the same time, the court decided to convict 3 police officers involved in this case.

The Promo-LEX Association reiterates the importance of examining the case, implementing the UN Convention against Torture as soon as possible, but also of measures to prevent systemic problems in prisons, highlighted in the recommendations of the People’s Advocate report and Promo-LEX reports, in order to prevent the occurrence of situations similar to the case of Andrei Braguta in the future.