Politics

The return to KGB practices or The Law on Verification of Public Office Holders and Candidates for a Public Office

On the eve of parliamentary elections, the President of the Republic of Moldova, Vladimir Voronin, signed the decree on promulgation of the Law on Verification of Public Office Holders and Candidates for a Public Office adopted by the Moldovan Parliament in December 2008.
Denis CENUSA, 26 February 2009, 16:38

Evaluation of this Law aims at determining the degree of legality, as well as the extent, to which this legislative act meets the democratic standards and guarantees the functionality of fundamental human rights and freedoms in the Republic of Moldova.

The attributed nature of organic law implies major responsibility for the legal/regulatory framework the Law is supposed to regulate after its enforcement. Consequently, the defective and inadequate wordings identified in the Law could lead to its inappropriate interpretation and functioning, which will definitely have negative effects on the democratic environment and on the situation of human rights in the Republic of Moldova.

One of the most serious challenges of the Law in question is that the principles of legality and observance of human rights and freedoms proposed as limitations of the force of law, in reality legalize flagrant violation of human rights and democratic values guaranteed by the Constitution of the Republic of Moldova and other international treaties. The scope of this Law itself, which consists in checking information on Moldovan citizens who run for or hold public office, contradicts the concepts of "legality" and "human rights". This reasoning is based on the fact that the verification procedure stipulated by this Law neglects and even openly violates the provisions of the Constitution of the Republic of Moldova, the European Convention on Human Rights, the International Pact on Civil and Political Rights. At the same time, the Law on Verification of Public Office Holders and Candidates for a Public Office overlaps or contravenes a series of national legislative acts in different fields: the Law on Corruption Prevention and Combating, the Law on the Code of Conduct of the Public Servant, the Law on the Information and Security Service of the Republic of Moldova. In addition, the Law in question stipulates introduction of special provisions that would be more appropriate for the Law on the Status of the Information and Security Officer.

Basic Values of the Law

Verification of public office holders and candidates for a public office is a restrictive measure both by its essence and goal, capable of leveling down democracy and human rights in any state. From the viewpoint of exercise of people's civil and political rights, such action could be qualified as a threat to the inviolability and viability of democracy and human rights. The act of verifying personal data (including financial and family information) of special categories of public servants, in compliance with this law, is a serious violation of the following provisions of national and international regulations:

 Given that the Law on the Information and Security Service integrally corresponds to the needs of security in the Republic of Moldova, the Law on Verification of Public Office Holders cannot be regarded as an action aimed at consolidating the state safety of the Republic of Moldova, but as an attempt to legalize the increased interference of this service in the affairs of public institutions. In fact, this law contravenes Art.17 of the European Convention on Human Rights, which stipulates inadmissibility of interpretation of its provisions to the detriment of human rights or freedoms. Thus, if there are special security laws, launching of an additional legislative act guaranteeing the security of the Republic of Moldova (the Law on Verification of Public Office Holders), which stipulates fulfillment of non-democratic actions violating human rights, is qualified as violation of the Constitution of the Republic of Moldova (Art. 54) and the European Convention on Human Rights (Art. 17).

Conclusion No.1 The Law on Verification of Public Office Holders contravenes the provisions of the Constitution of the Republic of Moldova and other international acts, violating the principles of legality and observance of fundamental human rights and freedoms.

The lack of solid arguments on the need to implement this law, as well as the a priori existence of an adequate legal framework in this sense shows that under the pretext of consolidating state security and preventing corruption the intention is in fact to advocate for a broader authority of the Information and Security Service (ISS). This will additionally contribute to intensification of political pressure on public servants, which is used to make people loyal and/or eliminate those who resist or represent a threat for central authorities. This law is part of the measures applied to toughen the requirements for public servants, among which the obligation to renounce double citizenship, as well as part of the actions aimed at setting interdictions for people holding multiple citizenship to run for a mandate in Moldovan Parliament.

Goal of the Law

 The intention of this law is to start the procedure of control (verification) in order to

(Art. 3, Law on Verification of Public Office Holders and Candidates for a Public Office):

 "Prevent and combat corruption among public authorities;

Prevent people presenting a threat to the national security from holding public office;

Determine the extent, to which public office holders and candidates for a public office meet the requirements for compliance with the restrictions set by the law on prevention and combating of corruption among public authorities;

Establish the authenticity of information reported by public office holders and candidates for a public office in documents filed for appointment in public office;

Prevent, identify and exclude risk factors (conflicts of interests, actions to the detriment of the Republic of Moldova, disclosure of state secrets);

Carry out measures stipulated by law, aimed at excluding facts that may endanger the interests of national security".

These provisions repeat the provisions of the organic law on preventing and combating corruption (LAW on Corruption Prevention and Combating, No. 90, of 25.04.2008, Art 1. stipulates "actions of corruption prevention and combating, ensuring protection... of national security and eliminating consequences of acts of corruption"). In fact, this legislative act is much more complex and efficient in terms of addressing and solving corruption-related issues. The superiority and importance of this law in relation to verification of current and potential public servants consists in the fact that it prescribes broad participation of the civil society (Art. 9), broad cooperation between private and public sectors (Art. 10), as well as broad competences for the Center for Combating Economic Crimes and Corruption (CCECC) (Art. 13). In addition, the Law on Corruption Prevention and Combating implies organization of activity of public authorities (Art. 6) necessary to exclude cases of corruption and situations that threaten national security. A significant contribution to this field is made by the Preliminary Country Program, funded by the US Government through the Millennium Challenge Corporation, which provides for allocation of financial assistance amounting to 24.7 million US dollars for capacity building of the judicial system in preventing and combating corruption; improvement of the monitoring capacity of the civil society and the media; prevention and combating of corruption in health care; prevention and control of corruption in tax, customs and police administration; reform and optimization of the activity of the Center for Combating Economic Crimes and Corruption.

In addition, the Law on the Code of Conduct of the Public Servant (LAW No. 25 of 22.02.2008), that will come into effect in 2009 and the provisions of which are mandatory, stipulates multidimensional accountability of public authorities both with regard to prevention of acts of corruption and identification and combating of cases of conflict of interests (as well as other risk factors).

Conclusion No.2 The effect of the Law on Corruption Prevention and Combating, the further activation of the Code of Conduct of the Public Servant, as well as the impact of the Preliminary Country Program in combating corruption, cover the whole range of issues that the Law on Verification of Public Office Holders is supposed to address in relation to annihilation of the corruption phenomenon (conflicts of interest), responsible and efficient functioning of public authorities, partially the issue of national security. Thus, the Law on Verification of Public Office Holders is illogical and useless, as its scope overlaps the scope of preceding legislative acts (including different organic laws).

Object of the Law

According to the Law, different categories of public servants will be verified, including people employed in the military and diplomatic fields. Despite the fact that the Law stipulates corruption prevention and combating (Art. 13), introduces the obligation to observe the activity of all public servants (from high officials to ordinary public servants), the Law on Verification of Public Office Holders and Candidates for a Public Office ignores these provisions. Distinguishing public servants in the diplomatic and military fields, the authors of this law try to create a separate scope for this law, realizing that the object of this legislative act is not only addressed by state regulations on combating corruption, but also in the Law on Information and Security Services of the Republic of Moldova. At the same time, this provision replaces the internal regulations in the military and diplomatic fields, which imply a special order of verification and appointment in the position.

Conclusion No.3 The object of the Law is defined according to the formula required to make a deliberate distinction between the Law on Verification of Public Office Holders from other existing legislative acts. The same is the purpose of the intention to substitute the existing methods of appointment and verification of state officials both in the public sector and in the military and diplomatic fields.

The Verification Body

This Law indicates the Information and Security Service as the institution that will carry out the verification procedures. Although the range of issues and obligations vested with ISS based on the Law on Information and Security Service is extremely broad and diverse, this law seems to extend and/or prioritize the authority over this service in terms of the multilateral monitoring of public servants' activity. This is demonstrated by the Law on Corruption Prevention and Combating, which empowers the ISS to identify and prevent cases of corruption, etc., together with the Center for Combating Economic Crimes and Corruption and other state institutions. However, under the pretext of combating corruption, the authors of the law intend to legalize and facilitate the interference of this service in the process of selection, appointment and removal of persons who represent a threat for the national security, according to the Law.

According to the Law on the Information and Security Service, state institutions must cooperate with this service in order to improve the activity of preventing and solving issues related to protection of national security and make it more operational, etc. Despite the above mentioned, the Law on Verification of Public Office Holders says that public authorities are obliged to report to the ISS on any deviation of public servants from the current legislation. Thus, this legislative act exempts the ISS from the responsibility to investigate and identify cases of violation of anti-corruption and security regulations individually, assigning clear prerogatives to public institutions in this regard.

Conclusion No.4 Given the objectives of this law abounding with the issue of national security and the fact that the issue of corruption is comprehensively addressed by the Law on Corruption Prevention and Combating, we can see that the interest of the authors of this law is to give maximum authority to the ISS and its interference in the activity of public authorities, especially in the field of staff employment and/or dismissal, as well as monitoring of the overall activity of all the top and middle officials. At the same time, this Law aims at obliging public authorities to report on violations related to corruption or national security committed by the servant to the ISS. This does not only intensify the executive superiority of this service in relation to public institutions, but also diminishes the independent nature of public administration clearly subordinating it to the ISS.

Verification Procedure and Methods

According to the Law, the ISS will have the right to request initiation of the public servant verification procedure at any moment. One of the necessary conditions refers to "existence of solid reasons to consider that office holding could be incompatible with the interests of that office". Also, competent public authorities shall have a possibility to initiate additional verification "by notifying the verification authority (ISS)". These provisions stipulate unlimited competences for ISS and public authorities that are impossible to be interrupted and/or minimized. Consequently, these institutions will be able to relieve any "suspicious" person on the basis of invented and/or unverified evidence. This will, thus, exclude the imperative of the presumption of innocence, while disapproval of incriminations will be possible only by accepting initiation of the verification procedure, which implies violation of a large range of human rights and freedoms in its turn.

This law implies contestation of verification results in court, however the period allocated for these procedures, as well as the broad competences of ISS in terms of identifying and proving guilt are against the interests of public servants again.

Given the fact that the ISS activity is monitored by the Parliament (in line with the Parliament Regulations, Art.28), which is currently run by the communist majority, it will be difficult to restore public servants whose rights have been violated by ISS as a result of the verification procedure to their rights. At the same time, the influence of the majority parliamentary party (or of it in coalition with other friendly parties) suggests that it is most unlikely to have an unbiased, equitable and non-discriminatory treatment of public office holders and candidates for a public office in the process of implementing the Law on Verification of Public Office Holders.

Just as important is the fact that for reporting of false information, the information and security officers are subject to the following forms of punishment: warning, reprimand, severe reprimand, demotion, warning on partial non-compliance with the position, dismissal (Art. 32, Law on the Status of the Information and Security Officer), while public servants, for incompatibility with the interests of the position (Art. 15, Law on Verification of Public Office Holders and Candidates for a Public Office) or unwillingness to provide personal information, can be dismissed, refused employment or demoted (Art. 9, (4) and (5), Art. 15, Law on Verification of Public Office Holders and Candidates for a Public Office).

Besides, verification of public office holders and candidates for a public office is a serious deviation from democratic standards and seriously violates fundamental human rights and freedoms. While the request to fill in a questionnaire regarding family and financial situation of the public servant is an obvious interference in their private life (Art. 9, (2) Law on Verification of Public Office Holders and Candidates for a Public Office). What worries is that such procedures are typical of recruitment of information and security officers for the ISS of the Republic of Moldova (a similar practice is applied by secret services of other countries). Thus, verification of data on family members, property and incomes of the public servant, etc. (Art. 10, on security verification, Law on the Status of the Information and Security Officer) can be logical and legal only for future security officers who comply with the obligations and commitments required to ensure the efficient and productive functioning of ISS. However, the Law on Verification of Public Office Holders and Candidates for a Public Office creates prerequisites for transfer of ISS practices in the activity of public administration, which can lead to reduced independence of public authorities and a latent centralization of power in Moldova.

Conclusion No.5 The Law on Verification of Public Office Holders and Candidates for a Public Office provides for clear interference in the private life of public servants, which, according to national legislation, corresponds to the modality of recruiting information and security officers. This shows the obvious intention of the authors of this law to connect the activity of public administration to the ISS activity and to continue centralization of power in the state by minimizing independence of public institutions in the Republic of Moldova. This legislative act also contravenes the principles of presumption of innocence. Thus, even if there is no evidence of the involvement of the public office holder or candidate for a public office in illegal acts against the security of Moldova and/or corruption, they would still have to undergo the verification procedure according to this law. Despite the fact that this is a violation of human rights, public servants who avoid or are found incompatible with the position will be dismissed or demoted in special cases. Consequently, the rights of public office holders and candidates for a public office will be violated, irrespective of whether they are granted or refused appointment.

Because of close links of the current governing party with the ISS, independent and equitable activity of this institution is impossible, which can lead to politicization of the Law on Verification of Public Office Holders and its defective implementation, even if the CPRM does not obtain a comfortable majority in the next Parliament (but will still remain an influential political force).

Risks

The Law on Verification of Public Office Holders and Candidates for a Public Office implies the following risks:

   Recommendations

 To forward this law to the Council of Europe Venice Commission for close examination and further review.

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