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2007 Assessment

Moldova: Integrity Indicators Scorecard

Moldova: Integrity Scorecard Report > Sub-Category: Executive Accountability
Indicators		Score
23	In law, can citizens sue the government for infringement of their civil rights?	100
24	Can the chief executive be held accountable for his/her actions?	44
25	Is the executive leadership subject to criminal proceedings?	100
26	Are there regulations governing conflicts of interest by the executive branch?	50
27	Can citizens access the asset disclosure records of the heads of state and government?	42
28	In practice, official government functions are kept separate and distinct from the functions of the ruling political party.	25

Indicator and sub-Indicator Details

In law, can citizens sue the government for infringement of their civil rights?

23: In law, can citizens sue the government for infringement of their civil rights?

Score:

YES

Comments: Art.5 of the Civil Code stipulates the free access of citizens to justice in case their rights, individual freedom or legitimate interests are infringed upon. Legal protection shall be provided to all citizens, and nobody could be deprived of legal protection against any kind of abuse. Only judiciary decisions may confirm the existence of a situation in which citizens are affected or not, and therefore citizens can sue public authorities/state agencies if they think their civil rights have been affected/jeopardized/threatened by these authorities.

References: Civil Code (No.225-XV of 30.05.03);

Constitution (1994) Art. 25 - Individual freedom and individual security are inviolable. Art. 26 - The right to appropriate defense is protected by the Constitution.

Peer Review Comments: Its one thing to say they have resort to an appeal. But its another to say that government officials can be sued (in court) which is how I interpret this question. Naturally, as in most Continential systems, government officials are immune from prosecution in the course of their official functions... and the government is also immune from court cases.

Can the chief executive be held accountable for his/her actions?

24a: In practice, the chief executive gives reasons for his/her policy decisions.

Score:

100

Comments: Between 2001 and 2004, the prime minister did not present any kind of reports in Parliament. As the evidence proved, control of the legislative over executive policy was merely a formal and ineffective instrument. Civil society participation has been propelled only by internationl organizations working in Moldova, and aimed to encourage a participatory framework of actions/interactions between civil society and governmental agencies on key-country priorities, such as: EGPRSP (2004) and NDP (since 2007). There are two executive chiefs of the executive: the prime minister and the president. The president has the majority party control, and therefore is the major player, using the government as its field of influence. Very often, decision taken by the president for the whole government (cut-offs of the civil service by 70 percent in 2005, capital and fiscal amnesty law in 2007, etc) had received no impact analsis or feedbacks from the citizens, and are largely populistic.

References: Democratic Audit (IDIS) - 2003, Sofia, 2005 www.iris-bg.org

24b: In law, the judiciary can review the actions of the executive.

Score:

YES

Comments: By law, every citizen that feels that some of his/her rights were damaged by any public authorities, by administrative decisions or by inaction in the provided by law terms, may address this case in a court of justice in order to get the act cancelation, recognition of the right that has been affected and the compensation for the damage caused by this action. The Administrative Code (adopted in 2000) aims to reduce the area of abuses produced by public authorities against citizens of Moldova and provides a quite sophisticated/complex instrument regulating the actions of citizens against administrative decisions. Nevertheless, in 2001, the Administrative Code was amended, and thus there are major exceptions by which governmental, parliamentary and presidential acts, individual acts of the same authorities, appointment of officials, diplomatic acts, other decisions of the government and normative acts, cannot be reviewed by judiciary courts (art.4).

References: Law on Administrative Code (Contenciosul administrativ) - No.793-XIV of 10.02.2000 Civil Code - No.225-XV of 30.05.2003

24c: In practice, when necessary, the judiciary reviews the actions of the executive.

Score:

100

Comments: In 2001, the Administrative Code was amended, and thus there are major exceptions by which governmental, parliamentary and presidential acts, individual acts of the same authorities, appointment of officials, diplomatic acts, other decisions of the government and normative acts, cannot be reviewed by judiciary courts (art.4).

References: Administrative Code (2000)

Peer Review Comments: Recently, Vitalia Pavlicenco MP took to court President Voronin for defamation and the court refused to hold a trial for President cannot be taken to court, by judges interpretation.

Peer Review Comments: Yes, survey results show that people dont feel as though they can complain or appeal government decisions.

24d: In practice, the chief executive limits the use of executive orders for establishing new regulations, policies, or government practices.

Score:

100

Comments: The highest obstacles in business development are general bureaucracy, the burden created by the proliferation of the new regulations established by the ministries, corruption and instability of the economic policies (micro and macro-policies). Unstable policy framework of the state has many times negatively impacted over the positive incentives reached by fiscal encouragements. Many legal decisions and acts, instructions adopted at the level of executive agencies (ministries, fiscal inspectorate, other departments) conflict with the norms of the main/basical legislation that run business activities (Constitution, Fiscal and Civil Codes). In 2004, over 300 acts were assessed as 'normative acts adopted at the departmental level' which represent an extra-legal field, overpassing the laws adopted in business development. Unfortunately, the 'guilottine law' passed by the parliament in 2002 has failed to simplfy to a desired level the functional framework for business.

References: System of Unofficial Taxation, edited by IDSI in 2007: www.viitorul.org;

Legal Framework and the Investment Climate in Moldova elaborated by the Coalition for Rural Economic Development: www.infotag.md/f2004_5.ro

Peer Review Comments: If you will read a law passed by parliament and compare it to an executive order, there is no comparison. Civil servants dont do anything without detailed and specific instructions from the head of the agency or higher. Like in most FSU countries, even small decisions must be taken at CabMIn level...

Is the executive leadership subject to criminal proceedings?

25a: In law, the heads of state and government can be prosecuted for crimes they commit.

Score:

YES

Comments: Pplitical instability brought a high rate of mobility of governments in the first decade after the Independence of Moldova (1991), while after 2001, with the Communist Party winning in general elections, the government became a very stable though rigid body, with ministers being expelled from by decrees of the head of state, even without the consent of the Parliament.

References: Constitution of RM (1994) President of RM can be impeached when it is found that he broke the provisions of the Constitution by two thirds of the MPs. Proposal of impeachment can be launched by one third of MPs and be submitted to the oresident, while the [resident can provide explanations to the Parliament and to the Constitutional Court on all facts that have motivated the initiative. The prime mInister can be dismissed by a no-confidence vote brought in Parliament by the majority of MPs (dismissal can be called by at least one fourth of the MPs out of 101 existing).

Peer Review Comments: There were even cases when the Prime-minister found out from journalists that certain ministers were sacked by President. Presidential advisers are known for deciding over ministerial and ambassadorial bids.

25b: In law, ministerial-level officials can be prosecuted for crimes they commit.

Score:

YES

Comments: Art.30 of the Civil Service Law provides the reasons for which civil servants and ministerial-level officials can be prosecuted, in terms of disciplinary, material, administrative or penal responsibility. In case civil servants prove their rights in a court of justice or dismiss the accusations brought to them at their dismissal, they are paid off for the damages received from these actions. The legislation against corruption provides a variety of forms of prosecuting ministerial-level officials from crimes that they have committed (art.11).

References: Civil Service Law (No.443 - XIII of 04.05.95) Law on Fighting Corruption and Protectionism (No.900 of 27.06.1996)

Are there regulations governing conflicts of interest by the executive branch?

26a: In law, the heads of state and government are required to file a regular asset disclosure form.

Score:

YES

Comments: There is a Central Commission that oversees incomes declared by officials of the government of Moldova. On Aug. 25, 2006, it presented a short report on the declarations submitted by the governmental officials, although mass media contested the results. The law on disclosure of properties and incomes of the top officials stipulates the obligativity and the formal procedures through which civil servants and politicians disclose their earnings, properties, although frequently in the past, the overnment simply delayed or postponed for unspecified periods of time the presentation of declarations, or, when they have been presented to the Commission created by the government, it showed up only partial and unconclusive information on the real earnings. The custom is that large family properties are transferred to the members of the family or close relatives for the duration of the mandate, or are simply ignored, and there is no systematic and objective oversight of these issues.

References: Civil Service Law (No.443-XIII of 04.05.1995) Law on the Disclosure of Incomes by Physical Persons (Nr.662-XIII din 23.11.95) Association Adept - [ LINK ] Law on the Control of Incomes of the Top-officials (No.1264-XV of July 19, 2002)

26b: In law, ministerial-level officials are required to file a regular asset disclosure form.

Score:

YES

Comments: Formal requirements abound, although they are rarely implemented. A new civil service law is under consideration in 2007, and it incorporates a large number of amendments derived from the anti-corruption commitments and legislation adopted recently by the Parliament.

References: Law on the Declarations and Control of the Incomes and Properties Belonging to the Top-level (ministerial) Officials (No.1264-XV of 19.07.2002) Civil Service Law (No.443-XIII of 04.05.1995)

26c: In law, there are regulations governing gifts and hospitality offered to members of the executive branch.

Score:

YES

Comments:

References: Civil Service Law Law on Government (No.64-XII of 31.05.1990)

Peer Review Comments: If we talk about the regulatory level, there are no clear guidelines about what is a gift versus bribe. For example, in US, civil servants can only take a lunch or other presents up to $25. No such limits are currently defined.

26d: In law, there are requirements for the independent auditing of the executive branch asset disclosure forms (defined here as ministers and heads of state and government).

Score:

YES

Comments: Art.11 of the law establishes a Central Control Commission within the government, which is entitled to oversee the declarations on incomes received from the public officials. The CCC is constituted on a parity format: three from the presidency, three from the Parliament, and three from the government.

References: Law on the Declaration and Control of the Personal Incomes and Properties of the Public Officials (No.1264-XV of 19.07.2002)

Peer Review Comments: There has been no independent auditing of the executive branch in the past years. The official Auditors Chamber (Curtea de Conturi) files regular reports, which are then published in the Official Gazette, but no law enforcement body reacts to the irregularities signalled by the Auditors Chamber, unless the top leadership orders - and particularly President Vladimir Voronin takes an interest in the issue.

26e: In law, there are restrictions on heads of state and government and ministers entering the private sector after leaving the government.

Score:

YES

Comments: Art.11 prohibits the public officials to undertake entrepreneurial activities, or to simmultaneously have managerial capacity in private or public business companies. There are no explicit cases of prohibiting entrepreneurial activity to be performed by former state officials, which of cause generate a propensity to 'prepare' their leave long in advance, or visibly give an advantage those companies that would help them later to set their business.

References: Civil Service Law (No.443 - XIII of 04.05.1995)

Peer Review Comments: Generally, the Constitution bans the head of state and the premier to hold any paid position during the office. No restrictions exist after leaving the public service.

Peer Review Comments: A draft law on conflict of interests was submitted to the Parliament for CSOs; however, Communist MPs told one member of the Anticorruption Alliance that this is not a priority in terms of readings. The draft law is dealing, inclusively, with this sort of situations.

26f: In practice, the regulations restricting post-government private sector employment for heads of state and government and ministers are effective.

Score:

100

Comments: No such provisions exist in the current legislation, or in the drafts currently prepared.

References: S.Tatarov, head of the coordinational unit for the implementation of the RAC (Central Administration Reform Strategy) - June 2007

Peer Review Comments: Yes, but these provisions are not so important in Moldova where officials use their jobs to earn money. So they dont need to rely on jumping into the private sector like we do in the EU!

26g: In practice, the regulations governing gifts and hospitality offered to members of the executive branch are effective.

Score:

100

Comments: Art. 13 of the Law on Civil Service specifically states that 'public officials are prohibited to receive gifts or services for the fulfilment of the obligations they are in charge', excepting symbolical ones, that are generally recognized as forms of politeness and hospitality. The law does not define what is the value of the hospitality gifts, and leaves it to interpretation. The law equally prohibits civil servants to open up accounts in foreign banks, although there is little confidence in the declaration of revenues/incomes that have been presented by the governmental officials in the last decade. There are important privileges that are delivered to the top-ministerial officials (Administrative Board Memberships, 'green-zone' corridors for export/import operations, land plots offered free of charge, apartments) without any possibility for the public to oversee these kind of gifts.

References: Lilia Carasciuc, Transparency International: www.transparency.md

Peer Review Comments: No one really deals with the gifts and hospitality for government in Moldova. The media signalled a number of grave abuses with lodging among parliament and executive members. A block of apartments meant for public officials in Corobceanu street in Chisinau was literally captured by Transnistrian war veterans a few years ago. No such incidents repeated this year. This year, however, the Timpul and Jurnal de Chisinau newspapers reported on the illegalities with apartments in the Parliament Hotel - a building offering temporary home to legislators who do not own a home in the capital. They said acting Minister of Culture and Tourism Artur Cozma is among the beneficiaries there, though he was not entitled by law to be granted lodging in that building.

Peer Review Comments: Comments above, that I fully support, are closer to 0 grade, in my opinion, since there is basically no control over gifts received; rather, there is a general public tolerance, as these are seen as part of "Moldovan hospitality".

Peer Review Comments: The TI report the reviewer cites provided hard data about gift acceptance...

26h: In practice, executive branch asset disclosures (defined here as ministers and above) are audited.

Score:

100

Comments: Law on the Incomes of Physical Persons (23.11.1995) - obligativity to declare everything above minimum salary Law on civil Service (Nr.443 of 04.05.1995) - stipulating that hiring in the civil service is preceded by the obligation of the civil servant to provide, according to the law, a declaration on the incomes, properties and finances, in RM as well as abroad. Presentation of inconclusive data would bring imediate suspension of the position in the administration. Law on Curbing Corruption and Protectionism (Nr.900/27.06.96), art.10 stipulates that employment is preceded by regular (annual) presentation of a declaration on incomes/revenues, estate properties, banking accounts and value obligations, i.e. abroad. Fiscal Code sets on its own turn the obligation of annual declaration of revenues by all physical persons, Election Code (No.796-XV din 25.01.2002) stipulates that CEC, as well as the precinct election commissions) request declaration of revenues from the candidates running for public positions for the previous two years before the election year, as well as their origin-, i.e. incomes from investment funds, bank loans or renting of estate properties. Law on the Declaration and Control of Revenues and Properties (No1264-XV) was adopted in 2002, at strong pressures from the international organizations, although the willingness to increase the level of transparency and accountability of the top-level officials is quite low and is rather politicized.

References: Transparency International Reports: www.transparency.md

Peer Review Comments: It's just that I have not seen any audit of the top leaderships' properties, therefore even 25 is too much.

Peer Review Comments: There were no audits undertaken in respect to asset disclosures. Everybody agrees that these are merely a formality and do not reflect the real situation, since the assets' values is indicated at the purchase rate, and not the market current rate. So, there are absurd figures such as $500 per 2 bed-room flat, while the market price is around $50.000.

Peer Review Comments: Increasing, Moldova's medium-term financial framework comes under the scrutiny of the Bank and Fund in their evaluations. Moreover, EU budget support is also audited, so its not true that the Moldova state can indescriminately "lose" assets...

Can citizens access the asset disclosure records of the heads of state and government?

27a: In law, citizens can access the asset disclosure records of the heads of state and government.

Score:

YES

Comments: Art.13 stipulates that all declarations presented by the president, members of the government, MPs, chairmen of the National Bank, Auditing Court, Intelligent Service, etc. be presented to the mass media.

References: Law on Declaration and Control of the Revenue of Top-level Officials (No.1264-XV of 19.07.2002)

Peer Review Comments: I have been asking for hours the records in the Fiscal Service (which deals with the issue), but they give me one phone number after another, and my effort to obtain the information has led nowhere for five hours. However, I have copied and pasted the information from Monitorul Oficial and now I own those records.

27b: In practice, citizens can access the asset disclosure records of the heads of state and government within a reasonable time period.

Score:

100

Comments: Reports presented by the public officials include irelevant data, while Central Commission for Control of Declarations (CCC) is but a decorative body, aimed to show up some signs of openness. The critics are generally related to the value of the estate indicated by the civil servant, which are far below market prices, the lack of monitoring and regulatory instruments to ensure full confidenciality/transparency of the estimations, the independence of the monitoring body, the timing of presentations (when state bodies may decide on their own to suspend or ignore the deadlines set for the presentation of the declarations), the lack of coordination among these declarations with the fiscal declarations, the ambiguities related to the transfers of properties to the family members, etc.

References: Transparency International: www.transparency.md;

"Monitorizarea accesului la informacie în Republica Moldova". Jurnal de Chi_inu (Nr.447 din 20.01.2006; Nr.380 din 20.05.2005; nr. 405 din 16.08.2005); Ziarul de gard (Nr.51 of September 8, 2005); Timpul (nr.473 of August 30, 2006); Centre for Investigative Journalism - www.investigatii.md

Peer Review Comments: I have been asking for hours the records of the president in the Fiscal Service (which deals with the issue), but they gave me one phone number after another, and my five-hour effort to obtain the information has led nowhere. Last year, in response to the publication of the financial information of executive and legislature members in Monitorul Oficial, I asked the Fiscal Service to give me that information, but it demanded a formal application from my newspaper (in spite of the fact that the records were already in Monitorul Oficial !). The secretary of the Central Control Commission [...] was not available for comment either on the fixed-line phone or cellular. Nevertheless, as I said, I have obtained the records.

27c: In practice, citizens can access the asset disclosure records of the heads of state and government at a reasonable cost.

Score:

100

Comments: Except press releases issued by the governmental body in charge with the declarations of incomes of the public central officials, there are no other possibilities to get acquainted with the situation of their incomes. Declarations are kept secret. Some investigative mass media series have been issued, bringing the controversy to the public discussion, but officials have ignored or rejected accusations providing no additional information. Official websites do not have any information of this kind.

References: www.transparency.md www.investigatii.md

In practice, official government functions are kept separate and distinct from the functions of the ruling political party.

28: In practice, official government functions are kept separate and distinct from the functions of the ruling political party.

Score:

100

Comments: Formally, civil servants shall be no members of political parties. In practice, they cannot be employed if they have not displayed favorable positions towards the ruling party, while the civil service legislation is badly implemented and managed. The on-going reform of the central public administration is making only the first steps towards professionalization of the service, having not yet achieved the 'depoliticization' of the service.

References: Adept Association: [ LINK ];

IDIS Economic Statewatch, 2004, 2005, 2006, 2007: www.viitorul.org

Peer Review Comments: President Vladimir Voronin is also First Secretary of the Communists' Party, while the common understanding is that s/he should be the President of all people. The Communists ideology (in terms of history, language, culture) became official governmental line - History was reviewed with inserts from Soviet-era manuals, for example. This brought criticism from the Council of Europe that recommended a moratorium on language/historical issues to be imposed (April 2002).