Translation from Romanian

MOLDOVA – HUMAN RIGHTS: 105 OF 120? Policy paper on the ratification of the First Optional Protocol

to UN ICCPR.

Centrul de Resurse pentru Drepturile Omului Al. Hajdeu 95 "A", CHISINAU, MD 2005, Moldova

(373 22) 212 816, fax (373 22) 225 257 CReDO@CReDO.md, www.CReDO.md

Developed by: Serghei Ostaf

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TABLE OF CONTENTS 1. Executive summary ................................................................................... 4

Objectives .......................................................................................................... 4 Realities ............................................................................................................. 4 Existing alternatives ........................................................................................... 4 Conclusions and Recommendations .................................................................... 4

Acronyms ....................................................................................................... 6 2. Introduction ................................................................................................ 7

Historic background ........................................................................................... 7 Methodology and constraints .............................................................................. 8 Definition of the context of the studied dilemma ................................................. 8 Identification of intentions ................................................................................ 10 Structure of study ............................................................................................. 10

3. Situational analysis.................................................................................. 11

3.1 The Effects of Ratification .......................................................................... 11 3.1.1 Correlation between different mechanisms ........................................... 11 3.1.2 Correlating existing obligations under ECHR and additional obligations under 1AP of CCPR...................................................................................... 12

3.2 Comparative Analysis of Obligations .......................................................... 16 3.2.1. CCPR material obligations as compared to ECHR, which exceeds the guarantees of the latter .................................................................................. 16 3.2.2 CCPR material obligations additional to ECHR obligations ................. 19

3.3 Comparative Statistical Analysis, Scenarios ................................................ 21 3.3.1 Comparative statistics from West European countries [11], [12], [13] .. 22 3.3.2 Comparative statistics from Central European countries ....................... 23 3.3.3 Comparative statistics from CIS countries ............................................ 24

4. Discussing Options ................................................................................. 26

4.1 The dilemma of ratification ......................................................................... 26 4.1.1 Status-quo: non-ratification of 1AP ...................................................... 26 4.1.2 Ratification of 1AP .............................................................................. 27

4.2 Performing ratification ................................................................................ 27 4.2.1 Reservation Rationae Tempore ............................................................. 27 4.2.2 Reservation Ratione Locie ................................................................... 28 4.2.3 Reservation Ratione Materia ................................................................ 28 4.2.4 Implementing Options ...................................................................... 30 4.2.5 Analiza opţiunilor de implementare ............................................... 32

5. Conclusions, Recommendations ........................................................... 34 5.1 Conclusions ................................................................................................ 34 5.2 Recommendations [14] ............................................................................... 34

5.2.1 Decision to ratify.................................................................................. 34

6. Annexes .................................................................................................... 36 1. General comparison of material provisions: .................................................. 36 2. Comparative perspective from European Countries: ...................................... 37 3. Excerpts from the International Covenant on Civil and Political Rights ........ 44

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7. References ................................................................................................ 51

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1. Executive summary Public policies regarding the adherence to the international human rights treaties require more consistency and consequence. Remarkable is in that sense the practice of the ratification of the instruments for individual complaints. As the assessment shows, Moldova has lost the opportunity to ratify the Additional Protocol prior to the ratification of the individual complaints procedure of the European Convention on Human Rights.

The nowadays situation represents the continuation of loosing the opportunity to consolidate governmental policies, prepare the legal framework and public authorities for the important European integration aspirations. In conclusion, the assessment recommends the ratification of the First Optional Protocol to the UN ICCPR.

Objectives The paper has several objectives:

a) estimate the feasibility of the adherence to the First Optional protocol to UN ICCPR;

b) offer the real alternative options for the ratification and implementation;

c) offer the viable consequences and impact of the ratification.

Realities Moldova has become the member of UN and has ratified the ICCPR in 1992. The Covenant codifies the universal civil and political rights standards. At the time of the ratification and afterwards, Moldova avoided the ratification of the First Optional Protocol that creates a mechanism to review the individual complaints by the UN Human Rights Committee. This review mechanism of the individual complaints complements the practice of the revision by the Human Rights Committee of the general human rights reports presented by Moldova.

National Human Rights Action Plan elaborated and adopted by the Parliament of the Republic of Moldova puts the ratification of the Protocol as one of the priority measures to enhance the human rights protection mechanism in Moldova. The paper provides the framework and the necessary estimations for the realization of this objective.

Existing alternatives The paper studies two existing alternatives: 1) ratification and 2) non-ratification (status quo) of the protocol. The ratification alternative is studied comprehensively from the point of view of the possible ratification options.

The alternatives (ratification or status-quo) are evaluated against the two objectives: a) contribution to the respect and practice of human rights in Moldova and b) overall maximization of the benefits of the society as well as the creation of the added social value. Based on these considerations, the paper draws the conclusion on the ratification of the Protocol.

The ratification alternative is studied comprehensively from the point of view of the available options of ratification. Specifically the options of the ratification include the following generic reservations: rationae materiae, rationae loci;, rationae temporis. These options are estimated against a) creation of the integrated social value and benefit maximization of the Protocol’s implementation stakeholders, b) capacity of the public authorities to respect and effectively manage the additional human rights obligations. Based on these estimations, the conclusions are drawn on the best possible ratification forma of the Protocol.

Conclusions and Recommendations Experience of other countries as well as the comprehensive analysis of the realities of Moldova suggests a clear preference of the alternative of the ratification of the Protocol.

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The ratification creates an added social value for the society, the ratification maximizes the benefits of the citizens in the view of officering a better enforcement of individual human rights. The ratification can also have a positive effect to consolidate the benefits for the human rights public policies as well as the political governance. From the standpoint of the new obligations as well as existing ones, the consolidation of the relevant public policies could have a profound educational impact and would eventually make Moldovan policies more prepared to the standards of the EU.

The paper concludes that the format of the ratification should reflect the following: 1) the de facto situation of the territory out of control by the constitutional authorities, 2) reduced institutional capacity of the public authorities to effectively implement certain human rights obligations, thus temporarily limiting the scope of the obligations, 3) avoiding some parallelism of the existing already instruments in Moldova: European and International.

The Implementation of the additionally assumed obligations requires a profound involvement in the consolidation of the institutional capacity of the public authorities. In this context, there should be taken actions, with the external technical assistance from UNDP and other actors, to bring necessary legislation in compliance, strengthen professional capacity of the public authorities.

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Acronyms UN – United Nations;

UN GA – UN General Assembly;

CCPR – International Covenant on Civil and Political Rights;

1AP – First Additional Protocol to the CCPR;

ComHR – Commission for Human Rights, issuer of notices on 1AP;

ECHR – European Convention for the Protection of Human Rights and Fundamental Freedoms or European Court for Human Rights (depending on context);

ECOSOC – UN Economic and Social Council;

CAT – Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;

CRC – Convention on the Rights of the Child;

ICESCR – International Covenant on Economic, Social and Cultural Rights;

CoE – Council of Europe;

PACE – Parliamentary Assembly of the Council of Europe;

CPT – European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment;

FCNM – Framework Convention for the Protection of National Minorities;

CERD – International Convention on the Elimination of All Forms of Racial Discrimination;

ECRI – European Commission against Racism and Intolerance;

EU – European Union;

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2. Introduction

Historic background The Republic of Moldova is Party to the majority UN human rights international treaties. It has ratified CCPR in 1992 undertaking the responsibility to observe the provisions of the main UN document on civil and political rights [10]. CCPR provisions establish an important framework for harmonising the legislative standards of the Republic of Moldova in the field of civil and political rights. CCPR forms a point of reference for implementation practices of civil and political rights in Moldova. ComHR jurisprudence and comments adopted exemplify and clarify some CCPR provisions which are not sufficiently precise

1AP has been adopted by Resolution 2200 A (XXI) of the UN GA, has been applied since 23 March 1976 together with CCPR, turning the latter into a human rights instrument. 1AP creates a mechanism of vindication of the rights stipulated by CCPR. 1AP supplements the guarantees offered by CCPR and was designed by the UN GA for this purpose. Since its adoption by the UN GA, 1AP has been ratified by 104 countries, several countries have signed it and are in the process of ratification.

1AP and CCPR form a comprehensive framework of accession to universally accepted standards and of correction of deviations from these standards. The Parties to the UN Charter have declared adherence to universally accepted values on human rights and freedom, have encoded them into CCPR, and have developed a mechanism for their implementation through 1AP. Thus, the adherence of any state to CCPR constitutes a guarantee for the observance of human rights and the assurance of an appropriate behaviour of authorities towards citizens, and the adherence to 1AP constitutes the application of these intentions into practice.

CCPR and 1AP constitute a reference set of values and principles at international level, their juridical statute in any country measures the degree of adherence, dedication and the real commitment to declared values. The statute of 1AP in a country represents, in fact, a measuring of the seriousness of declarations of adherence to CCPR. Or, the declaration and adherence to certain values and principles have a practical and material effect only in view of the benefit for the citizens of the respective country. Good intentions are easily transformed into words and declarations in the absence of a monitoring and control mechanism exercised by citizens in regards of adherence declarations.

A present, 104 out of 120 states which have ratified CCPR, have reconfirmed adhesion to CCPR values and principles by ratification of 1AP. All EU countries are Parties to 1AP1. All member states of the Council of Europe have reconfirmed the adherence to CCPR provisions by ratifying 1AP. All western CIS member states have ratified 1AP2. The overwhelming majority of developing countries have ratified 1AP. A great part of African countries have become Parties to 1 AP. This situation proves once again a tendency and a demonstration of the real intention on behalf of the developing countries and emerging democracies, as well as of the developed countries with strengthened democracies. Or, the failure of ratification proves lack of real intention to adhere and put into practice the universally accepted standards.

For those states, 1AP has become an instrument of facilitating the application and practice of universally accepted human rights standards. ComHR resolutions serve as grounds and guidance in identifying state policies, which are incompatible with standards, thus facilitating the exclusion of deficiencies, resolutions presenting a particular moral acknowledgement and incontestable professional appreciation. To this day there is no precedent for a state not to comply with a ComHR recommendation. At the same time, ComHR resolutions have generated important changes in determining of standards and have promoted many institutional reforms all over Western Europe, the Americas and other parts of the world. The ComHR activity is accepted by the UN GA, is unanimously acknowledged by decision makers and by the civil society representatives, etc.

1 Except for England, which signed but did not ratify it yet. 2 Including Republic of Belarus.

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Methodology and constraints The study makes use of various approaches in achieving proposed objectives: social cost analysis and comparison [1], constructing development scenarios [7], producing a legal comparative analysis of the national and international legal provisions [5], generating an analysis of costs and financial involvement [6], making a description of political and governmental actors’ options on the ratification of 1AP. The study has used primary statistical data publicly available and kept by CoE (European Court for Human Rights) and ComHR [10, 12], as well as statistical data offered by specialized centres [11]. Primary data was subject to classification and interpretation, keeping the methodology clear, transparent and easily restorable.

At the same time, the study does not examine the possible impact of ratifying Protocol 12 to the ECHR. It does not examine the impact of the CRC additional protocol (creation of the competitive mechanism), neither does it analyse the material provisions of CCPR, but a comparison of their provisions with ECHR provisions is done in view of generation of complaints under CCPR obligations which exceed ECHR provisions and, therefore, having the ability to generate individual complaints separate from ECHR complaints.

It is assumed that public policies and the governmental practices, in what concerns their influence on the human rights situation in Moldova, will not undergo dilapidation will hopefully remain at least on the same level.

Definition of the context of the studied dilemma The human rights action plan adopted by the Parliament of the Republic of Moldova stipulates the high priority adherence to 1AP. The feasibility exercise is derived from the human rights action plan developed through a participatory effort of public authorities and the civil institutions of Moldova. The process is supported by the UN Human Rights Action, whilst the political support of the process is ensured by current political actors of the Parliament of the Republic of Moldova. The implementation of the process is accomplished through the project’s implementation unit with the participation of representatives of specialized non-governmental organisations and direct coordination on behalf of the head of the Human Rights Commission of the Parliament and the deputy speaker of Parliament. The role and share of executive bodies is achieved through individual participation of representatives of respective bodies. This participation does not have a continuous aspect.

Several relevant mechanisms for monitoring and implementation of international obligations are currently operational in Moldova. We can name the following mechanisms comparable with 1AP:

• competitive mechanisms,

• non-competitive mechanisms.

ECHR implements a concurrent mechanism; therefore it will be discussed in detail throughout this study. CAT, CRC, CERD, CCPMN, PDESC, CPT and others implement non-compitive mechanisms. The essence of monitoring and inspection mechanisms of CAT, CRC, CERD, CCPMN, PDESC, CPT, ECRI involves either regular reports given by Moldova on the implementation of relevant obligations (CAT, CRC, CERD, CCPMN, PDESC) or regular report given by relevant specialised international bodies. In both cases specialised bodies examine the mentioned reports and other information forwarded to them, adopt resolutions, conclusions and recommendations for corresponding states. The CoE mechanisms additionally envision political monitoring procedures through the Committee of Ministers of the CoE.

All mentioned non-concurrent mechanisms can have just a complementary role to the 1AP mechanism. The complementarity of mechanisms is manifested through:

a) selective tangency (overlap) of material provisions,

b) compatibility of carrying out parallel procedures,

c) the individual effect vs. general effect.

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The bilateral comparison between material provisions of CCPR and material provisions of every mentioned non-competitive mechanism uncovers a certain degree of overlap or interference, the conclusion being, in general, that CCPR material provisions are either inferior or more declarative and, therefore, more general than provisions of specialised non-competitive mechanisms. This reality can cause the deviation of certain situations towards non-competitive mechanisms and, as a result, can create an effect of slight decrease of utilisation of the 1AP mechanism. The 1AP procedure and the procedures of mentioned non-concurrent mechanisms do not exclude each other; there is no link, correlation or mutual obligation from the procedural point of view or in what concerns a possible assertion of the specialised mechanism body. The particularity of the mentioned specialised mechanisms, in comparison with a possible assertion of ComHR in accordance with 1AP, provides for a general assertion of the situation, of the tendency of incompatibility with material standards formulated commonly and generally, whereas the 1AP procedure provides for a personalised assertion of the concrete situation. The overlap of statements does not have an exclusive effect, but a complimentary one. This fact fails to justify the need for the detailed examination of 1AP, as compared to non-concurrent mechanisms.

The ECHR mechanism is qualitatively substantially distinguished from other mechanisms of monitoring and inspection of undertaken obligations. If we take non-concurrent mechanisms approach as reference point, the concurrent ECHR mechanism for examination of individual complaints can be classified as follows:

a) contains important overlap of material provisions,

b) is incompatible in view of carrying out parallel procedures,

c) impact and comparative efficiency of mechanisms, inherent inciters of mechanism.

From author’s point of view, these criteria are determinative for the object and aim of the feasibility exercise.

CCPR obligations and ECHR obligations are overlapping considerably, however, the former exceed the latter in some important parts. As this exercise will demonstrate, the overlap of CCPR and ECHR obligations can have several different consequences with a positive and negative effect. For infringements of overlapped provisions the choice of a more efficient mechanism is stimulated, depending on the petitioner’s goal. This conclusion determines the need for a comparative examination of the efficiency of ECHR and 1AP mechanisms in relation to the goals of possible petitioners and the consequences of these for Moldova.

The composition of ECHR and 1AP mechanisms generates the interdiction of carrying out parallel ECHR and 1AP procedures. The 1AP mechanism stipulates explicitly the ineligibility of petitions which are in the process of examination with ECHR, but at the same time it provides for the possibility to apply to the 1AP mechanism after the ECHR resolutions is pronounced. The ECHR mechanism excludes the examination of petitions already examined within 1AP. This conclusion determines the need to foresee scenarios and situations for petitioners either preferring 1AP (excluding ECHR), or applying additionally to 1AP once the ECHR procedure is over, in terms of generating consequences for Moldova.

The ECHR redress mechanism can generate considerable costs as a result of failure to meet obligations undertaken by the state. The ECHR mechanism can result in the need for institutional reorganisation, allocation of financial resources for payment of penalties, compensations, etc. and the 1AP mechanism can generate such actions, as well. These effects, the elucidated particularities determine and stimulate various implications of interested actors, thus having different consequences for Moldova. This aspect needs a separate examination.

Governmental policies on implementing human rights standards are subordinated to competitive policies and are strongly influenced by insufficient institutional capacity. Moldova makes use of inconsistent policies regarding the accession to international human rights standards.

Institutionalised and coherent arrangements for the analysis, prevision and prevention of infringements are missing, the lack of practices for systematic identification of defective

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policies (legal, institutional, financial aspects) which generate human rights infringements, demonstrate lack of a clear vision of the political class and lack of necessary institutional capacities. This aspect can have a strong impact for Moldova, but it exceeds the goals of this paper.

Moldova accepts monitoring and implementation mechanisms of those human rights standards which are implicit to the respective strictly necessary treaty/document. There is lack of systematic and participatory practices of carrying out feasibility analysis prior to adhering to international human rights documents. This aspect can have a strong impact for Moldova, but it exceeds the goals of this paper.

Identification of intentions This study has several main goals:

a) to estimate the aspect of adhering to 1PA,

b) to offer real alternative options and methods of implementing adhesion in case of a positive outcome in terms of the previous goal,

c) to offer a viable forecast on the effects and impact achieved by implementing 1AP for Moldova; especially from the perspective of the public authorities (public policies) and the perspective of the citizens of Moldova.

The study is designed first of all for decision makers within executive and legislative authorities, hoping that this research will form a critical, constructive awareness of the need to adhere to 1AP to CCPR from the viewpoint of implementing universal human rights standards. In parallel, his study is appeals to the political, public and sectoral factors in order to facilitate the construction of a constructive approach towards creating a positive and applicative environment for future discussions on the given subject.

Structure of study Chapter 1 represents an executive summary containing a brief presentation of the paper; this part forms a general understanding of the paper.

Chapter 2 is an introduction informing the reader of the paper’s context, used methodology, need of paper, as well as it traces author’s intentions.

Chapter 3 represents a detailed analysis of the situation, different analysis and comparison instruments and approaches are used, the necessity and effects of ratification, the correlation between different mechanisms, interests involved in the ratification process, additional obligations and need for harmonising legislation are discussed.

Chapter 4 contains the discussion of options – it offers a detailed discussion of alternative ratification options, alternative options of ratification methods, etc.

Chapter 5 systematises conclusions and recommendations – it offers author’s opinion on the discussed situation. A concrete and detailed recommendation for ratifying the given instrument is presented.

Additionally, the paper contains a detailed list of references and several documents in the annex.

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3. Situational analysis The goal of the feasibility study is to offer a detailed presentation of the existing alternatives in this area. A detailed presentation involves a thorough analysis of alternatives for government policies, highlighting the advantages and disadvantages of each identified alternative, determining the usefulness of alternatives in relation to directly and indirectly involved and interested parties and groups. Most important it analyses their usefulness for the Republic of Moldova in relation to the integral social value of the identified alternatives, which could form the grounds for a government policy [1].

The integral social value of the action is the most important criterion for determining Moldova to ratify 1AP. The integral social value is a long-term indicator placing a major emphasis on the development of society. The integral social value is cumulatively measured by the following indices:

a) consolidation of public authorities’ capacities to manage the process of ratification and practical implementation of 1AP (beneficiaries – governmental actors and political leaders);

b) offer a remedy for the cases of human rights infringement (to the direct benefit of citizens),

c) increased efficiency of public policies relevant for human rights (to the benefit of society, actors indirectly involved).

According to above-listed indices, the actors or constituents of the ratification and practical application of the provisions of CCPR and 1AP are:

a) Relevant public authorities and political leaders (the government);

b) People reporting human rights infringements

c) The entire society (members of society who are not directly involved).

Maximizing the benefits of all specified actors in a particular situation represents a situation when integral social value is achieved for a particular situation. This represents an important indicator for determining preference for one of the existing specific alternatives. Therefore: will ratification bring integral social value; if so, in what format? The answers to this question will be sought under the following aspect.

3.1 The Effects of Ratification

3.1.1 Correlation between different mechanisms The various mechanisms listed in the introduction are overlapping, even though there is a total cumulative effect; every protection mechanism has its own share. The behaviour and effect of each mechanism will be reviewed under producing additional consequences for actors/constituents involved in this process.

A useful and explanatory parallel line

In general, the situation can be modelled as follows, there is a receptacle (Republic of Moldova) containing various substances (public policies). Substances interact between each other and produce desired effects and sometimes, undesired effects (problems in the area of human rights). Our objective is to prevent the destruction of the receptacle or negative effects on the receptacle and, on the other hand, to ensure formation of necessary products (social cohesion) out of the existing substances. There are several instruments, tools (international human rights protection mechanisms) that can be used to process and transform (reviewed negative effects, problems can be improved and settled and the situation ameliorated) existing substances. Each instrument has its own usefulness and in some situations certain tools are more useful than others. Some instruments can be used to carry out more operations when compared to others (with larger competence) and there are instruments that can be used only in very few specific situations. This description is to prove that the number of instruments doesn’t determine the existing situation and which is

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formed in the receptacle, but, using these instruments could facilitate certain processes in achieving proposed goal.

The ECHR procedure for individual complaints and the 1AP procedure for individual complaints have a lot in common and therefore, have a lot of communalities, whereas other mechanisms are rather different from each other. It was shown that the existence of other mechanisms contributes to a slight decrease in using ECHR mechanisms and 1AP mechanism. At the same time, other mechanisms are particularly important for certain situations.

The parallel existence and functioning of the ECHR mechanism and 1 AP mechanism also contributes to the substantial decrease of using the entire 1AP mechanism. This happens, as further will be proved, due to the fact that the ECHR mechanism has certain relative advantages. On the other hand, this produces the effect of customising the 1AP mechanism to certain specific situations, something that the ECHR mechanism is not suitable.

In situations when the 1AP mechanism was implemented prior to introducing the ECHR mechanism there are substantially less cases of using the 1AP mechanism in favour of ECHR mechanism. In situations when the ECHR mechanism was implemented prior to introducing the 1AP mechanism, when the latter was introduced, as demonstrated, a slight increase of total number of cases is projected due to various cases for which the 1AP mechanism is more suitable.

To illustrate this general discussion we will examine gradually and comparatively the ECHR and 1AP mechanisms.

3.1.2 Correlating existing obligations under ECHR and additional obligations under 1AP of CCPR Since earlier we have stated the competition between the 1AP of the CCPR and ECHR, we will further examine in detail their advantages and disadvantages from the standpoint of the claimant, of the respondent state, analysing how the situation of human rights observance in Moldova can be improved.

The comparative analysis of procedures emphasises the following advantages of the ECHR procedure:

a. the mechanism of remedying individual breaches of rights is more efficient (reputation);

b. offers material compensation (financial and non- financial damages);

c. compensates legal and representation costs;

d. the decision is binding;

e. supervision and execution monitoring mechanism;

f. offers the possibility to submit memories (third parties intervention);

In parallel, the petitioners and other interested parties could opt for the 1AP mechanism for the following reasons:

a. the mechanism of remedying individual breaches of rights is more time efficient;

b. higher competence (especially, articles 25, 26, etc.);

c. allows petitioning following the ECHR procedure;

d. there is no prescription term after the final decision.

Comparative Table: ECHR and 1PA procedures [3], [4]:

Element of comparison ECHR CCPR

A. Competence (see section 3.2)

Much narrower from the moment of the ECHR ratification

More extended upon ECHR ratification or upon

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1AP ratification

B. Implementation mechanism

Economic leverages (fine), political leverages (supervised by the Committee of Ministers of CoE)

Moral and reputation related leverages, in UN GA particular cases, UN GA

C. Interests of the petitioner

Acknowledging the infringement, financial (material) and non-financial (moral) compensation

The defendant state ascertains the infringement

D. Accessibility and complexity levels

5% of cases are accepted, access is difficult, whilst the enormous number of petitions burdens the examination of cases; the duration of case examination is of 3-5 years, the term of 6 months from the final decision in the respective state cannot be exceeded

50% of petitions of cases are accepted, access is less difficult and the duration of case examination is 2-3 years

E. Interests of third parties

Compensating representation costs on international and national levels

N/A

F. Actions taken to facilitate decision making

Verbal appeals, direct evidence submitted by invited parties, written pleadings, usually approaching equality of arms with vast discretion for the respondent state

Written appeals, based on information submitted exclusively by parties; usually, approaching equality of arms, but emphasis is placed on „probation assignments” of the respondent state

G. Links to other mechanisms

Excluded Excluded (in case of reservation) Not excluded

Further on we shall discuss each of the conclusions and the comparative table.

A. The Competence of 1AP as compared to ECHR The provisions of CCPR comprise more obligations as compared to ECHR, additional obligations differ by a less clear formulation which enables more liberal interpretation of certain rights in CCPR as compared to ECHR, but not by including new, essentially different, important obligations. Overlaps and new obligations are discussed in detail in section 3.2. The most important additional obligations refer to articles 1 (right to internal and external self determination), 24 (procedure rights of the children’s procedural rights), 25 (political rights), 26 (equality and non-discrimination).

In addition to those, 1AP varies from ECHR through a provision of article 2 of 1AP, which stipulates that only physical entities may submit complaints (not including legal entities as for ECHR), thus, excluding legal entities, mass-media, NGOs, etc.

Another aspect of ratifying 1AP constitutes the situation on the territory that is not controlled by constitutional authorities. Moldova ratified ECHR in 1992 without any reservation and later didn’t use the possibility of limiting obligations, which actually creates a certain inconsistency3. The reservation is formulated in compliance with international law, otherwise, it runs the risk of not being considered a reservation, but a mere declaration with

3 Countries practice introducing limitations for certain periods, territories, subjects informing the UN about it. The Soviet Union and later, Russia, used this procedure frequently in 1992 and later in relation to Cecenia, Osetia, etc.

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no legal effect4. Ratifying 1AP only for the territory controlled by constitutional authorities would represent a precedent in the practice of CCPR since 1 AP stipulates the instrument of using CCPR obligations and material reservations can be established in relation to CCPR. On the other hand, the territorial, the time, etc. reservations should be formulated in anticipation and for a finite period of time that can be renewed or extended. Hence, out of the following 2 options regarding the ratification of 1AP 1) ratification of 1AP together with the ratification of CCPR and 2) ratification of 1AP on the same date as adopting 1AP, the first option could have more consequences producing legal, political, etc. uncertainties.

In the context of adopting the procedure of individual complaints together with the ratification of 1AP it is recommended to formulate a reservation for the CCPR.

Conclusion:

Thus, the broader competence of CCPR as compared to ECHR motivates petitioners to use 1AP for complaints that are not included in ECHR or for CCPR obligations which exceed those stated in the ECHR. The broader obligations of CCPR force the state to take additional actions to approximate legislation and bring practice in concordance with additional obligations.

At the same time, a large number of complaints from legal entities will not take the 1AP, including for provisions and obligations not stipulated by ECHR.

In what concerns the situation on the territory that is not controlled by the constitutional authorities of Moldova, it has several options:

• Option 1 to ratify 1AP with no reservation and therefore to accept the competence of ComHR for the entire territory of Republic of Moldova;

• Option 2 to ratify 1AP with a reservation specifying the impossibility of guaranteeing observance of (certain) CCPR obligations on the territory that is not efficiently controlled by constitutional authorities.

If selecting the latter option, ratification could be accompanied by an additional reservation related to observing (certain) CCPR obligations on the territories not controlled by constitutional authorities.

B. Implementation mechanism As distinguished from ECHR, the decisions of ComHR based on 1AP are not binding. Respondent states are invited to inform ComHR in 180 days on actions and measures taken and it has no economic and political supervision and political leverages comparable to ECHR. ECHR can use significant political instruments: the Committee of Ministers and GA of CoE, which is supervising the execution of ECHR rulings. At the same time, due to their quality, equidistance and significance of ComHR members, the rulings of the latter have gained an undisputable reputation. These rulings are generally binding, being a moral obligation of the respondent state. In certain rare situations, ECOSOC, the UN GA (through the Commission for Human Rights) adopts resolutions and takes political action. A special position was created – Special Informative Agent for Monitoring ComHR decisions.

C. The interests of the petitioner Unlike ECHR, where the claimant receives acknowledgment of his/her rights infringement and financial and non- financial compensations, the procedure of 1AP provides only for ascertaining the infringement. The ECHR procedure offers more advantages to petitioners. Thus, the pecuniary compensation determines more people to use the ECHR procedure. For a certain category of plaintiffs ascertaining the infringement may not be a sufficiently efficient remedy for complaints which are not included in ECHR, but are included in CCPR, taking also into consideration that representation costs are not compensated.

4 The active position of ECHR in interpreting and assessing the declaration/reservation of the state to give it a legal effect is another difference as compared to the role of 1AP and ComHR in this area. The latter is more passive and doesn’t have an active position in this regard.

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Thus, the 1AP procedures for provisions comparable to ECHR and CCPR motivated people to apply ECHR procedure, and in case of additional provisions of CCPR they could be insufficiently attractive and hence, this implicit factor contributes to decreasing the number of complaints submitted following the 1AP procedure.

D. Admissibility and complexity Unlike ECHR, the provisions of article 3 of 1AP contain fewer requirements for admissibility and, in addition to that, ComHR is relatively more liberal in interpreting these requirements. The rate of admissibility is at least 10 times higher for ComHR than for ECHR. 50% of all petitions are admitted for examination by ComHR and 5% at ECHR. What one should consider is that the number of petitions submitted to ECHR is thousand times bigger that to 1AP – see statistical data in section 3.3 and [3]. The incomparably small number of petitions submitted to 1AP makes it possible for ComHR to settle cases in 2-3 years as compared to 3-5 years at ECHR.

As opposed to ECHR, the 1AP procedure doesn’t contain the time limit (provisional prescription) for submitting a petition. The obligation to observe the provisions of CCPR is usually acquired by the country when ratifying CCPR and not when ratifying 1AP, except for cases when the state formulates a reservation on this matter.

In contrast to ECHR, which provides that the state is responsible for the actions of the state agents, including outside the country, the requirement of 1AP ratione loci, usually, imposes the obligation of the state only for the actions of state agents carried out on the territory of the respondent state.5

Thus, petitioners are favoured by the liberal interpretation of admissibility requirements, petitioners are motivated by the lack of time limit, shorter period of examination. At the same time, the number of petitions is limited by the fact that cases for actions occurred outside the territory of Moldova are not accepted.

In this regard, Moldova has several options:

• To ratify 1AP with no reservation and thus accept the competence of ComHR from the date of CCPR ratification;

• To ratify 1AP with a reservation specifying that the competence of ComHR is accepted on the date 1AP is ratified.

E. The interests of third parties, representative As distinct from ECHR, the 1AP procedure doesn’t provide for the compensation of representation costs derived from legal services at national level – domestic procedure – at international level at ComHR. This factor could have a discouraging effect, especially for lawyers or people / organisations that earn a living only by providing this kind of legal services or the functions of which can be overtaken by a practicing lawyer. The ECHR procedure recognises national representation costs and ECHR representation costs as legitimate and provides them depending on each case based on reasonable and justifiable approvals.

Thus, the 1AP procedure, in relation to the provisions of CCPR comparable to ECHR, motivates third parties mentioned above to use the ECHR procedure.

F. Actions taken to facilitate decision making According to article 5 of 1AP, the Government is invited several times to get involved in written form in the process of examining the petition. Any lack of annotations from the government is qualified as a violation of international legislation. The government is obliged to submit annotations on the decision of approval (commenting on the facts and legislation, and all the counts of the complaint). In certain situations, where there is lack of the necessary information, the ComHR may require the Government, which is positively 5 2 different situations: 1) “illegitimate” actions of state agents outside the territory of the state – are not accepted due to lack of substance; 2) the “legitimate” actions of state agents outside the territory of the state – are not acceptable in most cases, except actions of diplomatic representatives;

16

obliged to submit additional information in order to demonstrate “probation assignments”. This obligation ensures that the general rule of the 1AP, when the Government has the “probation assignment” concerning the complaints submitted by the petitioners. The government may have to collect information, facts and carry out additional investigations.

Under this aspect, taking into consideration the ECHR mechanism, 1AP procedures are more demanding on the state in comparison to those of the petitioner. This could incur additional costs for intervention personnel and material costs for carrying out additional investigations.

G. Links to other mechanisms As distinct from ECHR, ComHR examines the petitions that have been examined by other specialised international bodies, except for when these are still in the process of examination in the first reading. In this regard, the Committee of Ministers of CoE adopted a recommendation proposing the ratification of CCPR and respectively 1AP with a reservation as to the last institution to exclude the examination of petitions by ComHR, if it was examined in the last resort (all aspects or only certain aspects). The jurisprudence of ComHR demonstrates that this provision of article 5 of 1AP is liberally interpreted. As a result, several states of CoE ratified 1AP following this recommendation (Austria, Italy, etc.), and others (the Netherlands) ratified 1AP with no reservations for this matter stating that CCPR and ECHR have, in essence, different competencies.

Thus, In this regard, Moldova has several options:

a. To ratify 1AP with a reservation following the recommendation of the Committee of Ministers of CoE;

b. To ratify 1AP with no reservation;

3.2 Comparative Analysis of Obligations General discussion and explanation.

3.2.1. CCPR material obligations as compared to ECHR, which exceeds the guarantees of the latter Further on we shall discuss in detail the additional differences and obligations of the CCPR and asses the arising differences. This section will stipulate Moldova’s additional obligations and their consequences.

Comparative table: CCPR and 1AP – comparable provisions [3], [4]

CCPR ECHR conclusion

Article 26 (equality, prohibition of discrimination)

Article 14 (non-discrimination by ECHR articles)

ECHR standards are inferior, require legislative actions, may generate numerous individual complaints

Article 8 (prohibition of slavery)

Article 4 (forced labour) ECHR standards are inferior, require legislative actions, may generate individual complaints

Article 13 (protection of foreigners against arbitrary expulsion)

4P4, 1P7 ECHR standards are comparable, but could be interpreted in a narrower way, may generate individual complaints

Article 18 (freedom of religion)

Article 9 (freedom of religion), 2P1

ECHR standards are inferior, require legislative actions, may generate individual complaints

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Article 25 (political rights) 3P1 ECHR standards are inferior, require legislative actions, may generate individual complaints

Article 26 (equality, non-discrimination) Petitioners from states that ratified CCPR and ECHR claim most frequently violation of this article. These obligations considerably exceed ECHR comparable obligations.

This article stipulated equality before the law, prohibition of discrimination basing on any reason. Article 14 of ECHR, which is comparable, has a secondary meaning for ECHR, and aims at protecting against discrimination during exercising rights stipulated by ECHR. Article 26 is an additional independent right. It stipulates once again positive obligations for non-discrimination of any person exercising any right, obligation, benefit, access to public service, etc. Thus, the entire Moldovan legislation will have to be reviewed to ensure that all legal provisions don’t contain various unjustified treatments.

At the same time, article 26 provides additional obligations for the state to intervene through regulation and practical action in a situation where private actors exercise semi-public functions (restaurants, shops, pools, transportation, schools, employment, etc.) and where employers apply unjustified discrimination practices.

The article also provides for a positive obligation to take action for the mitigation (compensation) of the situation where certain groups of people due to historic events and circumstances, find themselves in an unjust and disadvantaged position. Thus, the effect of the article exceeds a strictly individual obligation and imposes obligations towards groups of people, etc. Such situations call for the state to adopt new legislation and temporary measures to create favourable conditions for a historically disadvantaged group to come to a position of non-discrimination. This obligation is valid for the state and private actors. The lack of these actions or “effective protection” may constitute in its-self a violation of article 26.

Thus, In this regard, Moldova has several options:

• adopt comprehensive legal provisions prohibiting discrimination and setting forth equality before the law;

• adopt comprehensive legal provisions regulating the object, conditions and implementation of special temporary measures adopted (privileges) to ensure efficient protection of historically disadvantaged groups’ rights, etc.

• require technical assistance for the implementation of these obligations.

In conclusion, this article will have a deep educational effect that will encourage Moldova to prepare the legal framework and legal practice for ratification of Protocol 12 to ECHR, which contains obligations comparable to those set forth by article 26. The majority of petitions will be generated based on claims of violation of the provisions set by article 26.

In this context, Moldova needs technical assistance for all sectors: legal, developing the capacities of public authorities, the judiciary, executive bodies and application of laws.

Article 8 (prohibition of slavery, forms of slavery) Article 8 provides for the positive obligation of the state to prohibit by legislation all forms of slavery, exploitation, to stipulate criminal sanctions for violation and law enforcement instruments. Legislation should cover all forms of slavery, including forms occurred as a result of private people / actors’ actions. The article sets forth specifically women and children trafficking for sexual exploitation and other purposes. ECHR comparable provisions are inferior not due to the stipulated purposes, but due to lacking focus on the legal framework and in the adoption of positive measures by the state.

Thus, in this regard, Moldova should:

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• Adopt a comprehensive legal framework to punish all forms of slavery, make amendments of the Penal Code and of the Administrative Contraventions Code, etc.

The human trafficking phenomenon is broader that the average in the region, on the other hand the jurisprudence of ECHR includes this phenomenon, but, at the same time, the positive obligation aspects of CCPR are superior to ECHR, hence, a limited number of petitions based on this article can be projected.

In this regard, Moldova already benefits from technical assistance, but continues to need it.

Article 18 (freedom of religion) The right to religion of article 18 is a non-derogatory right (no conditions justify the temporary suspension of exercising this right). Thus, the right to religion is comparable to the right to life in ECHR. This is different from ECHR, which may not be so representative for Moldova. At the same time, unlike article 9 of ECHR, article 18 provides limitation of the right to religion only in relation to active manifestation of this right and doesn’t provide any limitation in relation to passive exercise of the right to religion (ECHR provides justifiable limitations to the passive manifestation of this right).

Allowed limitations to this right in CCPR are narrower as compared to ECHR, especially referring to lack of “national security” as a reason for limiting this right.

Thus, in this regard, Moldova should:

• Modify the law on exceptional situations to approximate it to article 18;

• Adopt explanatory decisions of the Parliament on the interpretation of article 54 of the Constitution;

• Fundamentally review the Law on cults;

ECHR jurisprudence includes a large part of CCPR provisions. That is why, it can be projected that this article will generate a very limited number of petitions, even though the situation in Moldova is far from being similar to Central European countries.

Article 25 (political rights) Article 3P1 of ECHR contains only the obligation to organize periodically general elections characterised by the right to a secret vote. In addition to this provision, article 25 of CCPR includes various political rights and obligations:

• the right to be elected to public administration bodies,

• the right of a person to vote and be elected in legislative bodies, councils and other comparable bodies (paragraph b)) whereas ECHR provides this right only in relation to Parliament.

• distinct obligation of non-discriminate access to public functions (paragraph c)) and to procedural aspects, an additional obligation to introduce procedural guarantees into corresponding legislation.

Thus, in this regard, Moldova should:

- review laws on public official and provide for comprehensive procedural guarantees.

In conclusion, this article will also have a deep educational effect on Moldova for the preparation of legal framework and legal practice to create a modern and accountable public service. An important share of petitions will be generated claiming violation of the provisions of this article.

Even though this rather sensitive from the politics point of view, Moldova needs technical assistance for all sectors: legal, developing the capacities of public authorities, the judiciary, executive bodies and application of laws.

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3.2.2 CCPR material obligations additional to ECHR obligations Ratification of CCPR brings a set of additional norms and obligations.

Comparative Table: ECHR and 1 AP – additional provisions

CCPR ECHR conclusion

Article 10 (minimal standards of detention of inmates)

3, jurisprudence Requires legal action, may generate numerous individual complaints

Article 16 (recognition as a person before law)

11 Requires legal action, may generate individual complaints

Article 20 (prohibiting propaganda for war, etc.)

- Requires legal action, may generate individual complaints

Article 24 (children’s rights) - Requires legal action, may generate numerous individual complaints

Article 27 (minorities protection)

- Requires legal action, may generate numerous individual complaints

Article 22 (freedom of association and trade union association)

11 Requires legal action, may generate individual complaints

This section contains a comparative discussion of CCPR provisions and comparative problem analysis.

Article 10 (minimal standards of detention of inmates) Article 10 provides, in addition to the provisions of article 3 of ECHR, the positive obligation of the state to ensure an adequate behaviour of the personnel in relation to convicts, the government should ensure adequate conditions of detention to meet the minimal basic needs (nutrition, clothing, sanitary norms, hygiene and sanitary facilities, communication with the outer world, illumination, movement opportunities and private life) of the convicts. These provisions also oblige the government to take into account the dignity of the individual.

Paragraph 2 imposes additional obligations related to differentiated conditions for people executing criminal punishment and for people under criminal investigation. These two categories of convicts should be kept under detention separately, by rule.

The same paragraph provides distinct obligations for the treatment of juvenile offenders and their social rehabilitation. This obligation particularly provides for urgent judiciary processing of these cases, and detention of juvenile offenders in separate facilities.

Thus, in this regard, Moldova should:

- adopt special procedures on criminal and administrative procedures related to juvenile delinquents;

- perform modifications to the law on preventive detention;

- take substantial measures for improving the conditions of preventive detention and the conditions in provided by the environment where the execution of criminal sanctions takes place.

Taking into consideration that the real situation in Moldova is far from being acceptable, the general conclusion is that this article will also have a deep educational effect on Moldova. This will make the practice of respecting the rights of the convicts consistent and in

20

accordance with the provisions of this article. A considerable number of will be generated as a result of violation of the provisions of this article.

Article 20 (Prohibiting propaganda for war, etc.) The article provides for the positive obligation of the state to interfere efficiently into horizontal relations between private people and avoid war propaganda actions, etc. Legislation should provide for restrictions on formulating objectives and goals of entities propagating war, inciting discrimination, etc.

ECHR jurisprudence doesn’t include all these provisions; nevertheless a limited number of petitions based on this article are projected.

Article 22 (freedom of association and trade union association) Unlike article 11 of ECHR, this article provides for an additional positive obligation of ensuring an adequate legal framework for the creation and registration of legal entities. This article clearly stipulates that the state is obliged not to obstruct the formation of other associations (political, trade unions, religious, etc.), which could have goals and mission statements similar to the existing or predominant associations.

As compared to ECHR, which contains a total restriction for members of armed forces and of the police to exercise their right to peaceful assembly, this article doesn’t provide any limitation of the right to peaceful assembly of members of armed forces and of the police, but only possible restrictions, in certain circumstances, to the right of association into trade unions, etc.

Thus, in this regard, Moldova should:

- modify the law on trade unions in order to clearly and consistently regulate free, decentralised and adequate formation and function of trade union associations;

- modify the Law on religion in order to stipulate liberal registration of religious associations, including those which might have similar goals;

- take into consideration adopting a reservation on the right to peaceful assembly of members of armed forces and of the police;

- or modify the respective provisions of the Constitution and respective legislation.

Article 24 (children’s rights) This article provides for a series of special rights that should be ensured to children and hence involves positive obligations of the state: a) the state guarantees registration of new-born children, b) the state will ensure confidentiality of adoption or genetic and medical circumstances related to the birth of the child, c) the state will respect the option of parents in choosing a name for their children, d) the right of children with no citizenship to the citizenship of the state where they were born.

Thus, in this regard, Moldova should:

• modify the Law on identity papers to stipulate clearly the option of parents to choose names for their children and to insure application of this provision;

• modify the Law on identity papers to stipulate the free issuance of birth papers of children;

• modify the Law on citizenship to stipulate facilitation of gaining citizenship for new-born children with no citizenship (including for their parents) or clear preferences of parents based on justifiable reasons.

Article 27 (minorities protection) The rights stipulated by this article are not contained by the provisions of ECHR. These are clearly distinct from other provisions of the ECHR due to protection ensured to people

21

belonging to national minorities to preserve their linguistic, religious, cultural, ethnic, etc. identity in a community of other members of the minority group, but not individually. Basing on this article the state has the negative obligation not to interfere with the aspirations and intentions of people who belong to national minorities to preserve and practice their special identity through culture, language, religion, etc. in common.

Thus, it is provided not only prohibition of discrimination, but also ensuring, de facto, the right to their own identity and a privileged treatment of people belonging to national minorities to preserve and maintain their identity in common. Special rights which imply positive obligations of the state authorities constitute unhindered exercise of minority cultures. This includes the right to preserve and transmit own identity to future generations by establishing private schools, including state support to public schools for minority identity education. This article provides for the rights of people belonging to national minorities to use their national language in private and public life. Any actions and measures that could endanger the existence and lead to forced assimilation of minorities are clearly prohibited.

This article has also horizontal effect on public authorities related to private people’s actions to assimilate forcefully national minorities and to preserve and develop their own identity.

Thus, in this regard, Moldova should:

• modify the Law on Education, the chapter on liberalising and delegating to local authorities national minorities education, to provide promulgate private and public bi (multi)-lingual schools, especially in the areas of compact minority population speaking minority languages.

• modify the Law on public officials to provide for using minority languages in areas with compact minority population;

• public authorities should practice actions that will de facto contribute to preserving and developing the identity of people belonging to national minorities so that their rights are exercised together.

In conclusion, this article will also have a deep educational effect for Moldova to develop the legal framework and practice so that they fulfil the requirement of the international standards. A considerable number of petitions will claim violation of the provisions of this article.

Although this chapter is rather sensitive from a political point of view, Moldova continues to need technical assistance for all sectors: legal, in the development of the capacities of public authorities, the judiciary, executive bodies and application of laws.

3.3 Comparative Statistical Analysis, Scenarios This section presents various statistical arguments: comparisons of these two mechanisms from the perspective of countries and regions, from the perspective of time, from the perspective of existence and non-existence of parallel mechanisms functioning.

This information is built and compiled in an analytical form on primary data available to the general public.

The following table graphically proves preference for ECHR mechanism as compared to 1AP mechanism. This statement is valid for all countries under discussion:

• countries with strong democracies and sound experience of parallel and independent functioning of these mechanisms (West European countries: the Netherlands and Austria);

• Central European countries currently undergoing the process of democratic consolidation and also experiencing more than a decade of parallel functioning of the ECHR and 1AP mechanisms;

• countries with 4-5 year experience of parallel functioning of ECHR and 1AP mechanisms, their situation and problems of human rights are rather comparable to the situation in Moldova (Ukraine and Russia).

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All these cases show that countries with a stronger tradition of development and consolidation have accumulated more experience. The better these two protection mechanisms function in a country, the more cases are submitted to ECHR as compared to 1AP mechanism.

At the same time, it becomes clearer that the 1AP mechanism is specialised in cases and situations that are not included in the competence of ECHR mechanism.

3.3.1 Comparative statistics from West European countries [11], [12], [13] The data presented below show that articles 24 and 26 are predominant in countries with strong democracies. This could be explained by the lack of comparable provisions in ECHR and the lack of individual complaint mechanism.

The Netherlands, ratified 1AP in 1978, #case-year-articles

Austria, (ratified 1AP in 1988) #case-year-articles

1 case (1996/2003): 23, 24, 14 (after ECHR) 1 case (1999/2002): 26, 14 1 case (2000/2004): 26, 1 case (2000/2004): 26 1 case (1997/1999): 26, 14 1 case (1998/1999): 7, 8, 9, 26 1 case (1998/2001): 26 1 case (1998/2001): 14, 17, 18 1 case (1998/1999): 14, 1 case (1996, 2002): 9, 24 1 case (1996/1999) 5, 26 1 case (1996/1999): 5, 26

1 case: (2002/2003): 5, 7, 10, 14 1 case (2001/2004): 5, 22 (after ECHR, negative) 1 case (2000/2004): 5, 26 (after ECHR, inadmissible, Austria reservation, same subject) 1 case (2000/2003): 5, 6, 14 (after ECHR, inadmissible, Austria reservation, same subject)) 1 case (2000/2002) 5, 25 (after ECHR, non-violation), 26 3 cases inadmissible – domestic proceedings 1 case (1996/2002): 5, 26 (after ECHR,

Comparative statistics of cases

87

100

7364

35

73

167

28

13 124 2 0 3 00

20

40

60

80

100

120

Austria Check Rep.Slovakia Bulgaria Romania Ukraine Russia

countries

Num

ber o

f cas

es

ECHR 1AP

23

1 case (1996/2000): 5, 10 1 case (1996/1999) 14 1 case (1995/1999): 15, 18 1 case (1995/1995): 14, 19 1 case (1995/1997): 14, 26 1 case (1994/1996): 26 1 case (1994/1996): 14, 17, 26 1 case (1993/1995): 9 1 case (1993/1995): 14, 26 1 case (1992/1993): 2,6, 7 5 cases inadmissible: 14

inadmissible), Austria reservation - inadmissible 1 case (1996/1999): 5, 26 (after ECHR, inadmissible, Austria reservation, but other aspects were not examined by ECHR 1 case (1995/1997): 7, 14 1 case (1994/1996): 26 1 case (1990/1992): 26

In 10 years 28 cases were examined following the 1AP procedure, from which 12 (40%) indicating the violation of article 26 and 2 cases indicating the violation of article 24 (1%) and the remaining cases are comparable to ECHR. The Netherlands adhered to ECHR in 1954. For the comparable period from the date of ratification of 1AP in 1978 until now, 87 cases were examined and rulings announced 5% of admissibility. The Netherlands has not ratified the Additional Protocol to the Convention on the Elimination of All Forms of Racial Discrimination yet.

In 10 years 13 cases were examined following the 1AP procedure, from which 6 (45%) pertaining to violation of article 26 and the remaining cases are comparable to ECHR. Austria adhered to ECHR in 1958. For the comparable period from the date of ratification of 1AP in 1988 until now, 100 cases were examined and rulings announced; 5% of admissibility. Austria ratified the Additional Protocol to the Convention on the Elimination of All Forms of Racial Discrimination.

3.3.2 Comparative statistics from Central European countries This data proves that that complaints based on violation of articles 24 and 26 are predominant in these countries as well as 1AP procedure. This is explained by the lack of comparable provisions in ECHR.

Slovakia, Ratified CCPR and 1AP in 1993 #case-year-articles

Check Republic, Ratified 1AP in 1993 #case-year-articles

1 case (1999/2001): 5, 25 1 case (1994/1997): 17, 26 2 cases – inadmissible

1 case (1997/2001): 26 4 cases – inadmissible, insignificant 1 case (1996/2000): 14, 26 1 case (1997/1999): 5, 26 1 case (1994/1996): 26 1 case (1993/1996): 26 1 case (1993/1996): 26 1 case (1996/2000): 26 1 case (1996/2000): 26

Slovakia ratified 1AP in 1993. In 10 years only 2 cases were examined following the 1AP procedure, from which 1 pertaining to violation of article 25 and 1 case pertaining to violation of article 26. Slovakia adhered to ECHR in 1995. For the comparable period from the date of ratification, 64 cases were examined and rulings announced; 5% of

Czech Republic ratified 1AP in 1993. In 10 years 12 cases were examined following the 1AP procedure, from which 8 (60%) pertaining to violation of article 26 and the remaining cases are comparable to ECHR. Check Republic adhered to ECHR in 1993. For the comparable period from the date of ratification, 73 cases were examined and

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admissibility. rulings announced; 5% of admissibility.

Romania Romania ratified 1AP in 1993. In 10 years no cases were examined following the 1AP procedure. Romania adhered to ECHR in 1994. For the comparable period, 73 cases were examined and rulings announced; 5% of admissibility.

Bulgaria Bulgaria ratified 1AP in 1992. In 10 years, only 2 cases were examined following the 1AP procedure basing on articles comparable to ECHR. Bulgaria adhered to ECHR in 1992. For the comparable period, 35 cases were examined and rulings announced; 5% of admissibility.

3.3.3 Comparative statistics from CIS countries This data proves that that complaints based on violation of articles 25 and 26 are predominant in these countries as well as.

Ukraine adhered to 1AP in 1991; rulings were made in 3 cases (2002-03), petitions submitted before ECHR (adhered to in 1997) became applicable;

Russia adhered to 1AP in 1992, rulings were made in 7 cases (2000-03), petitions submitted before ECHR (adhered to in 1998) became applicable;

1 case (1996/2002): 10(1), 7, 9, 14 1 case (1997/2003): 14 1 case (1998/2003): 14

1 case (1996/1999): 6, 7, 10 1 case (1996/2003): 14, 1 case (1997/2001): 26, 14 2 cases (1997/1999): 14 1 case (1996/2000): 9, 14 1 case (1996/2002): 6, 7, 10.

Ukraine ratified 1AP in 1991. In 10 years only 3 cases were examined following the 1AP procedure, from which 1 case referring to non-comparable article of ECHR and the remaining were comparable. Ukraine adhered to ECHR in 1997. For the comparable period of validity of both instruments, 16 cases were examined and rulings announced by ECHR (5% of admissibility) and 1 case according to 1AP.

Russia ratified 1AP in 1992. In more than 10 years 6 cases were examined following the 1AP procedure, from which 1 case referring to comparable article of ECHR and the remaining were non-comparable. Russia adhered to ECHR in 1998. For the comparable period of validity of both instruments, 16 cases were examined and rulings announced by ECHR (5% of admissibility) and no cases according to 1AP.

Comparative statistics from countries that are not parties to a regional protection mechanism Data are presented for two countries with advanced democracies, which are not parties to regional protection mechanisms for a period of 10 years, which is comparable to the period of statistical data presented above. It can be noticed that less than 25% of all cases refer to the provisions of articles 25 and 26, from which almost one half contain complaints on violation of other provisions in the area of human rights.

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Data on the progress of number of cases for countries members of the Council of Europe for the 1AP procedure.

Optimistic and conservative (pessimist) scenarios The above figures prove with certainty the general trend of decreased use of 1AP mechanism by countries that can use the ECHR mechanism. The number of cases varies from country to country from 0-1 to 4-5 per year, with a grace period (!) of 2-3 years, when cases should be received by ComHR. For comparison, Canada and Australia offer significant indices on cases that are of exclusive competence of 1AP and that would not be eligible for ECHR, their number varies between 8% and 20% of total number of cases submitted to ComHR and this is the actual situation in advanced countries comparable to Austria and the Netherlands in the European context.

The table demonstrates a slight increase of the number of cases submitted under the 1AP mechanism. This increase is not comparable to the radical augmentation of cases submitted under the ECHR mechanism.

Based on this information we could project a conservative (pessimist) scenario with very few cases a year and an optimistic scenario with at most 5-6 cases per year in 2-3 years after the ratification of 1AP. Cases will be focused on articles that refer to the exclusive competence of CCPR.

Comparing countries outside the ECHR system

40 39

10

5

0

5

10

15

20

25

30

35

40

45

Canada Australia

countries

num

ber o

f cas

es

case

s

all cases are not parties to ECHR

123456

1993 1994 1995 1996 1997 1998 1999 2000

years

Statistical data on cases following 1AP procedure

# of cases

Holland Austria Czech Rep. Slovakia Romania Ukraine

0

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4. Discussing Options Further on we shall discuss two opposite alternatives: 1) ratification, or 2) non-ratification of the Additional Protocol. The alternative of ratification presents in detail the multiple options (format) of ratification.

The first two alternatives (ratification or non-ratification) are assessed depending on their ability to achieve the following goals: a) integral added social value, b) maximizing benefits to citizens, c) maximizing the benefit of relevant public authorities. Based on these assessments one will be capable to decide whether the First Additional Protocol to the Covenant on Civil and Political Rights should be ratified.

The basic decision on ratification shows that it is necessary to examine the options (format) and specific ways of ratification of the First Additional Protocol to the Covenant on Civil and Political Rights, among which: reservation rationae materiae; reservation rationae loci; reservation rationae temporis. These options are assessed depending on a) creation of integrated social value and maximizing benefits to all stakeholders resulting from application of human rights standards, b) the capacity of public authorities to comply with and manage additional obligations assumed under the gradual implementation of these standards. Based on these considerations it will be possible to decide on the specific format of ratifying the First Additional Protocol to the Covenant on Civil and Political Rights.

Comparative table

Criterion Non-ratification (status-quo) Ratification

Social value Deprive of the opportunities of improvement

Gradual improvement

Benefits to citizens Disadvantages the citizen Recovery opportunities

Benefits to public policies

Lack of incentives to improve Reasonable costs of improvement

4.1 The dilemma of ratification The first dilemma that should be discussed is the dilemma of ratification. Based on the information discussed above, can the conclusion be that Moldova will acquire additional social value as a result of 1AP ratification and that the benefits of the Moldovan citizens will increase? Will there be a positive impact on relevant policies and will public authorities have the sufficient capacity to access the necessary technical assistance, to gradually develop these capacities?

4.1.1 Status-quo: non-ratification of 1AP Integrated social value: The reputation of Moldova abroad, creating an environment favourable for application of democratic principles, market economy, rule of law represent the elements of integrated social value of this action. Practical guarantee of these values is achieved through various modalities, including by offering the possibility to appeal and review a specific situation by a body specialised in human rights. Non-ratification means depriving the state of this instrument if improving public policies.

Benefits to citizens: There will be no positive change for the citizens. Benefits to citizens remain unchanged or even diminished, since the citizens of other states from this region may benefit from increased benefits related to access to a mechanism of settling individual complaints. With the time, this difference changes the comprehension levels about the quality of life of the citizens who belong to one state. This could contribute to determining the disadvantages of the life standards of the people and could change the public life of that certain state.

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Benefit to public policies: It is obvious that consolidating and improving public policies is a permanent objective. There are several ways through which public policies can be improved. Above all, there should be an understanding of the need to improve them. The rulings of international bodies specialised in settling specific situations could represent an indicator of the need to improve certain aspects. Of course, when there are no such indicators, we can’t speak about a positive role and thus, there is no maximization of benefits to political policies.

4.1.2 Ratification of 1AP Integrated social value: The international reputation, a legal environment that is more sensible and more compatible with the principles of human rights and with the rule of law contributes to construction a more adequate environment for protecting individual freedoms and facilitating the development of the society, by making it more appealing and more likely to encourage the rise of life standards.

Benefits to citizens: Creating a mechanism of reviewing each individual situation represents a prominent advantage for citizens. Of course, not every complaint results in ascertaining violation of rights. On the contrary, most complaints do not refer to violation and this confirms the adequacy of the applied public policies. This positive message for public authorities is important for the modelling of other public processes, etc. On the other hand, a ruling stating violation of rights enables an individual to “make justice” and allows public authorities to rectify a situation / public policy applied, thus, maximizing benefits to other people. In this case, benefits to citizens are certain.

Benefit to public policies: Public policies become more efficient, correct and adjusted to international standards and people’s needs. The specific trait of 1AP mechanism is that it actually is less strict, it does not impose sanctions or penalties, but it offers a vision on how a specific situation should be modified to comply with international standards. This specific and definite recommendation implies a reasonable cost when compared to the costs encountered by many people who suffer the negative consequences of an inadequate policy that violates human rights.

The ruling could contain recommendations that could stimulate and lead to institutional changes generating financial costs, additional resources, special preparation. These are the objective impediments in implementing rulings. Limited capacities and lack of necessary resources may be efficiently approached through technical assistance available to Moldova, including UNDP bi-lateral programmes.

Finally, taking into consideration the comparative competence of 1AP and ECHR, it is proven that 1AP mechanism is a better way to improve legislation, public practices and policies in areas („equality, discrimination”, „children’ rights”, etc., see section 3.2) that will soon become compulsory basing on ECHR and EU international standards.

4.2 Performing ratification The second important dilemma is the way of performing ratification of the 1AP, since the major concern is and remains the capacity of relevant public authorities to implement their obligations and namely application on the territory which is not controlled by constitutional authorities of Moldova.

There are situations and factors that obviously require special examinations during the process of ratification. These factors, from the perspective of 1AP, cannot implicitly make a positive contribution to the creation of integrated social values and cannot contribute to maximizing the benefits of the citizens and improving public policies. These situations should be excluded from the process of application of 1AP, for specific and restricted periods, whilst these factors continue to exist and persist. A good example is the situation in uncontrolled regions or policies that are no longer relevant, etc.

4.2.1 Reservation Rationae Tempore In this regard, Moldova has two clear options:

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a) ratify 1AP with no reservations and hence accept the competence of the ComHR from the moment of ratification of the CCPR;

b) ratify 1AP with reservation clearly stipulating acceptance of ComHR competence from the date of 1AP ratification

Option a) could bring a benefit to Moldovan citizens through offering access to a mechanism of settling violations of individuals’ human rights committed since 1992 – when the CCPR was ratified. On the other hand, public policies and relevant legislation have been modified so frequently and quickly that a great share of complaints won’t have a positive effect on improving existing policies due to the simple fact that these don’t exist anymore. It is not clear if this option of ratification would have a positive impact on creating integral social value.

Option b) is less acceptable for maximising the benefits of citizens complaining about current situations. There is a benefit to public policies clearly determined through rectifying policies currently applied. Political leadership has a direct interest in this aspect.

In regard with this aspect there are 2 options:

a) ratify with reservation following the recommendation of Committee of Ministers of CoE;

b) ratify with no reservation;

These options don’t have a major significance and impact on respective public policies because both specialised bodies provide opinions and make decisions of comparable quality. From the standpoint of reduced management capacity it is preferable to limit doubling of jurisdictions. Thus, option a) is certainly preferable.

4.2.2 Reservation Ratione Locie As to the situation on the territory not controlled by Moldovan authorities, Moldova has several options:

a) ratify 1AP without reservation and accept Com HR competence for the entire territory of Republic of Moldova;

b) ratify with a reservation clearly specifying that it is impossible to guarantee compliance of (some) CCPR obligations on the territory that is not effectively controlled by constitutional authorities;

c) finally, ratification could be accompanied by an additional reserve related to honouring (some) CCPR obligations on the territory not controlled by constitutional authorities.

Option a) brings an explicit benefit to the people living in Transnistria whose human rights are violated. On the other hand, little can be done to improve the constitutional authorities’ public policies on the territory that are not in their control. Constitutional public authorities would have little influence on these processes in order to remedy individual situations. At the same time, unconstitutional authorities don’t have a legitimate status in the international law, and other states responsible for the situation in this region cannot be held accountable in virtue of the provisions of 1AP (see above).

Options b) and c) represent “comforting” options that tend to maximise as much as possible the benefits of the inhabitants on that territory, at least for the situations where it is possible for the constitutional national and Transnistrian authorities to cooperate. This requires an additional analysis and efforts of political leadership.

4.2.3 Reservation Ratione Materia Several material provisions require detailed analysis in order to formulate a reservation.

Below, considerations for the need to align legislative standards in relation to additional obligations generated by CCPR are presented. This is based on the assumption that this legislation is generally in conformity with the CCPR requirements.

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There are two options for formulating reservations: a) to formulate reservations by interpreting the interest of material provisions (in terms of state understanding or in terms of other ECHR mechanism understanding) and exclude application of certain provisions, or b) avoid formulation of reservations.

Probably, the most vulnerable obligations, taking into consideration the situation in Moldova, are referred to in articles 24, 25, 26, 27.

From the date of ratification there are several alternatives: a) to adopt recommended modifications to legislation and gradually, take action for their practical implementation and b) to avoid adopting any amendments and wait until cases are submitted to ComHR; and finally to make efforts that would alleviate the situations.

Alternative a) allows receiving bilateral assistance, including from UNDP, especially at the moment of ratification, alternative b) excludes this possibility. Alternative a) provides accountability of authorities for assistance provided.

Article 26 (equality, non-discrimination) Thus, in this regard, Moldova should:

• adopt comprehensive legislative provisions on prohibiting discrimination and enforcing equality before the law;

• adopt comprehensive legislative provisions regulating the object, conditions and implementation of adopted temporary special measures (privileges) to ensure efficient protection of historically disadvantaged groups, etc.

• require technical assistance for the implementation of these obligations.

Article 18 (freedom of religion) Thus, in this regard, Moldova should:

• Modify the law on exceptional situations in order for it to comply with article 18;

• The Parliament should adopt explicative decisions on interpreting article 54 of the Constitution;

• Fundamentally review the law on cults;

Article 25 (political rights) Thus, in this regard, Moldova should:

- Review laws on public official and provide comprehensive procedural employment guarantees and appeal procedures.

Article 10 (minimal detention standards for inmates) Thus, in this regard, Moldova should:

- adopt special procedures on criminal and administrative procedure for juvenile delinquents;

- make modification to the law on preventive detentions as explained above;

- take action for considerable improvements of conditions of detention in preventive detention facilities and punishment execution facilities;

Article 22 (freedom of association and trade union association) Thus, in this regard, Moldova should:

- modify the law on trade unions in order to clearly and consistently regulate free, decentralised and adequate creation and functioning of trade unions;

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- modify the law on religion in order to provide free registration of religious associations, including of those which may have similar goals;

- consider the ratification of the proviso on the right to peaceful gathering of policemen and the military.

Article 24 (children’s rights) Thus, in this regard, Moldova should:

• modify the law on identity documents to clearly stipulate that choosing the name of the child is a parental right; and to implement this provision;

• modify the law on identity documents to stipulate free issuance of children’s birth certificates.

Article 27 (minorities protection) Thus, in this regard, Moldova should:

• Modify the law on education chapter on liberalisation and delegating authorities to local authorities in the aspects of education of national minorities, provide for the proliferation of private and public bi(multi)-lingual schools, especially, in the ethnically diverse areas, with a multilingual character.

• Modify the law on public officials to serve the ethnically diverse areas, with a multilingual character.

• Public authorities will apply in practice actions that de facto will contribute to maintaining and developing the identity of people belonging to national minorities.

4.2.4 Implementing Options În această secţiune vom analiza, din punctul de vedere al cadrului instituţional şi criteriilor enunţate în secţiunea precedentă, cîteva opţiuni de realizare a funcţiilor de reprezentare în faţa ComDO:

- în cadrul Ministerului Justiţiei, Direcţia Agentul Guvernamental, - în cadrul Minsiterului Afacerilor Externe (Departamentul Cooperarea

Multelaterală sau Departamentul Drept Internaţional) , - Comisiei Naţionale pentru elaborarea rapoartelor privind

implementarea tratatelor internaţionale. În acest scop, vom oferi informaţii şi date despre resonsabilităţile şi funcţiile unităţilor şi instituţiilor discutate6.

- Ministerul Justiţiei Direcţia Generală Relaţii Internaţionale şi Integrare Europeană (funcţiile)

- Realizarea obligaţiilor în materie de cooperare juridică internaţională sau în alte domenii ale justiţiei şi asigurarea împreună cu alte direcţii ale ministerului, precum şi cu alte ministere interesate a participării RM în structurile europene şi internaţionale - Cooperare în realizarea atribuţiilor sale cu celelalte subdiviziuni ale ministerului, precum şi cu celelalte instituţii şi autorităţi naţionale - Avizarea proiectelor de tratate internaţionale în domeniul asistenţei juridice elaborate de către alte ministere şi departamente.

6 În baza rezultatelor analizei funcţionale în cadrul Reformei APC

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Direcţia Agentul Guvernamental (DAG) (funcţiile)

- Elaborarea observaţiilor Guvernului Republicii Moldova cu privire la admisibilitatea şi fondul cererilor aflate pe rolul Curţii Europene a Drepturilor Omului depuse înmpotriva Republicii Moldova - Colectarea probelor necesare întocmirii observaţiilor şi comentariilor Guvernului la cererile aflate pe rolul Curţii Europene. - Notificarea în numele Agentului Guvernamental a autorităţilor naţionale interesate cu privire la modalităţile de evitare a noilor violări ale Convenţiei pentru apărarea drepturilor omului şi libertăţilor fundamentale. - Asigurarea informării din numele Agentului Guvernamental a judecătorilor, procurorilor şi funcţionarilor publici cu privire la jurisprudenţa Curţii Europene a Drepturilor Omului. - Formularea propunerilor referitoare la armonizarea legislaţiei interne pentru asigurarea compatibilităţii cu obligaţiile asumate prin Convenţia europeană pentru apărarea drepturilor omului şi libertăţiulor fundamentale.

Directia Tratate si Integrarea Europeana (DTIE) (funcţiile)

- Avizarea proiectelor de tratate internaţionale. - Asigurarea cooperării cu CoE şi cu alte organizaţii internaţionale. - Coordonarea procesului de implementare a Planului de Acţiuni Republica Moldova – Uniunea Europeană. - Asigurarea participării la lucrările din cadrul organizaţiilor internaţionale, ale comisiilor bilaterale şi multilaterale, precum şi în cadrul altor autorităţi şi instituţii în domeniul justiţiei.

- Ministerul Afacerilor externe

Departamentul Cooperare Multilaterală (DCM) (funcţiile)

- Asigură reprezentarea MAEIE la reuniuni şi conferinţe ale ONU, OSCE, Consiliul Europei, NATO, precum şi ale altor organizaţii internaţionale - Urmăreşte procesul de monitorizare a Republicii Moldova de către Consiliul Europei şi elaborează şi înaintează propuneri privind înlăturarea deficienţelor constatate şi implementarea recomandărilor formulate de către experţii europeni - Asigură realizarea unei politici externe unice în domeniul drepturilor omului în raport cu organizaţiile internaţionale relevante (Consiliul Europei, ONU, OSCE, etc.) - Iniţiază şi avizează acte normative prin care sunt aplicate în dreptul intern diverse norme adoptate în cadrul organizaţiilor internaţionale, inclusiv ONU, OSCE şi Consiliul Europei - Reprezintă MAEIE în relaţiile cu oficiile structurilor din sistemul ONU, OSCE, Consiliului Europei, ale altor organizaţii internaţionale în Republica Moldova.

Departamentul Drept Internaţional (DDI) (funcţiile)

- Pregătirea propunerilor privind soluţionarea problemelor în dreptul internaţional, participarea la elaborarea concepţiilor cu caracter de drept internaţional - Avizarea tratatelor internaţionale şi alte documente cu element de extraneitate - Avizează proiecte de acte normative elaborate de autorităţile naţionale - Îndeplinirea acţiunilor ce ţin de intrarea în vigoare a tratatelor bilaterale: notificarea altor state despre aprobarea/ratificarea de către partea moldovenească a tratatelor - Sistematizarea informaţiilor parvenite de la autorităţile publice centrale privind implementarea tratatelor bilaterale şi informarea Guvernului Republicii Moldova semestrial - Evaluarea compatibilităţii actelor normative naţionale cu tratatele internaţionale.

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- Comisia Natională (CN) pentru elaborarea rapoartelor initiale si periodice privind implementarea conventiilor internationale la care Republica Moldova este parte7.

Comisia este imputernicita sa elaboreze rapoartele periodice privitor la stadiul de implementare a tratatelor internaţionale. Comisia, nu este subordonată Ministerului Afecerilor Externe sau Ministerului Justiţiei.

4.2.5 Analiza opţiunilor de implementare În această secţiune vom analiza comparativ opţiunile posibile de implementare instituţională a funcţiilor de reprezentare a statului în faţa ComDO. Vom lua în consideraţie:

- practica europeana de realizare (concluziile din secţiune 5.1, care includ funcţiile similare în aceiaşi instituţie, realizarea cuplată a funcţiile de examinare a plîngerilor individuale în diferite instituţii publice) , şi

- criteriile de implementare (elaborate în secţiunea 5.1 care sunt: capacitatea instituţională actuală, eficienţa, eficacitatea realizării funcţiei).

Tabel comparativ de realizare instituţională a funcţiei instituţionale de reprezentare a statului în faţa ComDO:

criteriile DAG-MJ DTIE-MJ

DDI-MAEIE

DCM-MAEIE

CN

1.Capacitatea instituţională pentru funcţia dată

Bună, experienţa instituţională pentru funcţii similare – CEDO, profesionalismul angajaţilor

Bună, există experienţa de lucru cu norme şi tratate internaţionale

Bună, există experienţa de lucru cu norme şi tratate internaţionale

Bună, există experienţa de lucru cu norme şi tratate internaţionale

Foarte limitată, lipseşte

2.Eficienţa în exercitarea funcţiilor similare

Funcţiile similare de lucru cu plîngeri individuale CEDO

Nu are funcţii similare de examinare a plingerilor

Nu are funcţii similare de examinare a plingerilor

Nu are funcţii similare de examinare a plingerilor

Mică nu are funcţii similare

3.Eficacitatea în baza poziţiei şi pîrghiilor instituţionale

MJ este tradiţional perceput ca actor puternic instituţional

MJ este tradiţional perceput ca actor puternic instituţional

MAE este o instituţie de coordonare a eforturilor altor ministere, mai puţin în fond la moment

MAE este o instituţie de coordonare a eforturilor altor ministere, mai puţin în fond la moment

Poziţia instituţională slabă

7 HG nr. 225 din 01.03.2006

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4.Practica europeană

Există în cazul găzduirii ambelor proceduri de plîngeri individuale

Există în cazul găzduirii ambelor proceduri de plîngeri individuale

Există în cazul găzduirii ambelor proceduri de plîngeri individuale, va necisita transferul funcţiei examinare CEDO

Există în cazul găzduirii ambelor proceduri de plîngeri individuale, va necisita transferul funcţiei examinare CEDO

lipseşte

concluzia recomandată

Analiza comparativă ne demonstrează că cea mai bună soluţie din alternativele examinate şi în baza criteriilor propuse este crearea funcţiei date în cadrul DAG-MJ (Direcţiei Agent Guvernamental al Ministerului Justiţiei) a unei secţii care va lucra cu cazurile respective şi va reprezenta Guvernul la ComDO. A două soluţie după calitate de realizare poate fi transferarea funcţiilor de reprezentare în faţa CEDO şi crearea funcţiei instituţionale respective pentru ComDO în cadrul DDI-MAEIE. Pentru primă soluţie toate argumentele sunt în favoare:

- existenţa experienţei, profesionalismului pentru funcţiile similare, - existenţa funcţiilor similare, - poziţia MJ ca actor important în promovarea politicilor, în spcial în

domeniul drepturilor omului, - practica europeană de a găzdui ambele procese de reprezentare î faţa

CEDO şi în faşa ComDO. Unicul dezavantaj reprezintă lipsă personalului suficient pentru a face faţa cazurilor în procesul de examinare la CEDO. Aceasta poate fi realizat prin intermediul creării unei secţii specializate şi altor acţiuni descrise în recomandări. A două soluţie este inferioară primei în cîteva privinţe:

- nu are experienţa instituţională de lucru cu plîngeri individuale în faşa organismelor internaţionale,

- suferă de ineficienţă, prin dispersarea funcţiilor similare în diferite instituţii,

- există puţină practică instituţională pentru astfel de realizare.

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5. Conclusions, Recommendations

5.1 Conclusions The experience of other countries and the detailed analysis of the situation in Moldova suggest that it is preferable to ratify the First Additional Protocol to the Covenant on Civil and Political Rights. Ratification will create added social value for the society, maximise the benefits of citizens to observe additional rights. Ratification may maximise benefit to public authorities in order to consolidate relevant public policies and bring benefits to political leadership. Consolidating public policies to comply with additional undertaken obligations will have a deep didactic effect and will gradually contribute to preparing Moldova for the standards of the Council of Europe and of the European Union.

The author considers that 1AP should be ratified with reservations formulated below, especially, on ratione tempore, rationae locie. As to possible reservations on rationae material, the author prefers to formulate specific recommendations after discussing during a seminar attended by several experts; in this regard, the author has expressed his opinion on the most important obligations.

Actions implementing assumed obligations require considerable involvement in consolidating the institutional capacities of public authorities and in this context, improve legislation, educational measures in areas named are recommended. In this context, technical assistance provided by UNDP and other development agencies are indispensable.

5.2 Recommendations [14]

5.2.1 Decision to ratify

A. Rationae tempore • a) ratify with a reserve formulating accepting ComHR competence from the

date of ratifying the 1AP

• b) ratify with a reserve following the recommendation of the Committee of Ministers of CoE;

For example:

The Republic of Moldova, pursuant to article 1 of the Optional Protocol, recognizes the competence of the Human Rights Committee to receive and consider communications from individuals subject to the jurisdiction of the Republic of Moldova, in respect of situations or events occurring after the date on which the Protocol entered into force for the republic of Moldova.

Moldova makes a reservation to article 5, paragraph 2(a), specifying that the Human Rights Committee shall not have competence to consider a communication from an individual if the same matter is being examined or has already been considered under another procedure of international investigation or settlement.

B. Ratione locie • ratify with a reserve clearly stating that it is impossible to guarantee observance of

(some) CCPR obligations on the territory that is not effectively controlled by constitutional authorities;

For example:

"The Government of Moldova declares that the provisions of the article 1 of 1AP shall not apply to the territory that is not controlled de facto by the constitutional authorities (to mention the territory) unless and until they inform the Secretary-General of the United Nations that they are in a position to ensure that the obligations imposed by the Covenant in respect of that territory can be fully implemented."

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C. Ratione materia See section 2.4.3

D. Institutional capacities The following actions are necessary for this compartment:

1. Establish a special section in the Ministry of Justice that will work with individual complaints (within the Government Agent), technical assistance for the functioning of ComHR;

2. ComHR will be involved in the process of implementing additional provisions and in the process of preventing these cases;

3. To establish under ComHR with the participation of the Ministry of Justice, the Supreme Court of Justice, the Constitutional Court, specialised organisations, etc. a special division in charge of carrying out systematic analyses of problem situations in the area of human rights to phrase recommendations for the improvement of public policies;

4. Carry out training for public officials, judges, etc. on additional obligations stipulated by CCPR;

E. Financial aspects Ratifying the 1 AP could incur additional expenditures for the government, which will be conditioned mainly by:

1. Costs related to processing the answers of the Government (depend on each case);

2. Costs related to possible investigations required by the Commission for Human Rights;

These costs should be estimated by the Government Agent within the Ministry of Justice in order to reflect as close as possible the existing needs.

As it was said, ratification and implementation of CCPR provisions will require approximation of identified legislation, developing capacities of public officials, etc. These costs could be estimated in general outline and consist of remuneration of international and national experts. But these costs can be generated through the UNDP programme, through cooperation, and through bilateral assistance. This hopefully, will not represent an additional burden on the state budget.

Additional costs can relate to 2-3 additional people in the division of the Government Agent and processing cases.

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6. Annexes

1. General comparison of material provisions: CCPR ECHR

Article 6 (right to life) Article 2 (right to life)

Article 7 (prohibition of torture) Article 3 (prohibition of torture)

Article 8 (prohibition of slavery) Article 4 (forced labour)

Article 9 (right to liberty and security of person) Article 5 (right to liberty and security of person)

Article 10 (minimal standards for inmates) N/A

Article 11 (prohibiting imprisonment for) 1P4 ()

Article 12 (liberty of movement) 1P7, 2P4

Article 13 (protection of foreigners against arbitrary expulsion)

4P4

Article 14 (procedural guarantees in criminal and civil trial)

Article 6 (fair and impartial trial)

Article 15 (prohibition of retroactive application of criminal laws)

Article 7

Article 16 (recognition as a person before the law) N/A

Article 17 (private life) Article 8 (private and family life)

Article 18 (freedom of religion) Article 9 (freedom of religion)

Article 19 (freedom of expression) Article 10 (freedom of expression)

Article 20 (prohibiting propaganda for war, etc.) N/A

Article 21 (right of peaceful assembly) Article 11 (freedom of association)

Article 22 (freedom of association and trade union association)

Article 11

Article 23 (right to found a family and to marry) Article 12 (right to found a family)

Article 24 (children’s rights) -

Article 25 (political rights) 3P1

Article 26 (equal protection of the law and prohibition of discrimination)

Article 14 (rights and freedoms set forth by ECHR secured without discrimination)

Article 27 (minorities rights protection)

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2. Comparative perspective from European Countries:

Subject: UN instruments and European Court of Human Rights

Dear Sir/Madam,

I am doing a comparative research in the benefit of Moldova EU-Moldova Action Plan implementation. The research investigates the practice that exists in EU countries with regard to the representation of the national Government before:

1. European Court of Human Rights (Strasbourg) ? individual complaints, 2. UN individual complaints Committees (UN Human Rights Committee, CERD, CRC, etc), 3. Court of Justice (Luxemburg) ? individual complaints 4. Reports for UN Human Rights bodies ? providing reports and presenting them at the relevant bodies 5. Reports for Council of Europe conventions (Framework Convention, etc) ? providing reports

Could you please provide me with the simple answer which governmental body is responsible to deal with these bodies in your country? Is it the same Ministry of Foreign Affairs or in some cases in your country you have established different institutional set up?

I appreciate very much your answer even if it is just a few lines.

Sincerely,

Serghei Ostaf

Centrul de Resurse pentru Drepturile Omului Resource Center for Human Rights (CReDO) ostaf@CReDO.md, CReDO@CReDO.md www.CReDO.md, leadership.CReDO.md, online.CReDO.md, CReDO.md/library, CReDO.md/policy Impreuna spre o generatie noua de lideri civici! Educating a new generation of civic leaders! Tel: (373-22) 212 816, Fax: (373-22) 225 257 95 "A" Al.Hajdeu str., CHISINAU, MD2005, Moldova

38

Austria

From: Gerda.RUZSICSKA@bmaa.gv.at [mailto:Gerda.RUZSICSKA@bmaa.gv.at] Sent: Monday, 28 August, 2006 11:21 To: ostaf@credo.md Subject: Serghei Ostaf/Moldova;UN, CoE human rights bodies, BMaA-XX.8.19.11/0008-I.7/2006

Cehia From: Petr_Hnatik@mzv.cz [mailto:Petr_Hnatik@mzv.cz] Sent: Wednesday, 02 August, 2006 11:31 To: ostaf@credo.md Subject: RE: UN instruments and European Court of Human Rights

Dear Mr. Ostaf,

I am responding to your e-mail of 7 July 2006 by which you requested information regarding the representation of the Czech Republic before certain international organizations or their bodies.

1. With regard to the European Court of Human Rights in Strasbourg (?ECHR?) and the UN Human Rights Committee, the Czech Republic is represented by the Government Commissioner for Representation before the ECHR (?the Commissioner?). The office of the Commissioner (or the ?Agent of the Government? in the terminology of the ECHR) is a part of the organizational structure of the Ministry of Justice. (http://www.justice.cz/)

2. Regarding the remaining three Human Rights Treaty Bodies which are entitled to deal with individual complaints (CERD, CAT, CEDAW) and the ?1503? procedure: The Government Council for Human Rights which is a part of the Office of the Government of the Czech Republic (www.vlada.cz) would probably be responsible for co-operation with the above mentioned international bodies with respect to individual complaints directed against the Czech Republic. However, since there are no pending complaints at the moment, the question of a competent body would be resolved in due course.

3. The Government Commissioner and Head of the Department of EU Law of the Ministry of Foreign Affairs represents the Czech Republic before the Court of Justice in Luxembourg. (http://www.mzv.cz/)

4. and 5.

With respect to the different reports for the UN Human Rights Bodies and the Council of Europe, it very much depends on the subject matter of each report. Such reports are usually prepared or the preparation is co-ordinated by the different consultative bodies of the Government of the Czech Republic (e.g. Government Council for Human Rights, Government Council for National Minorities). Some reports are presented directly by different ministries (e.g. Council of Europe reports regarding education by the Ministry of Education, Youth and Sports /www.msmt.cz/). Preparatory works may sometimes be co-ordinated by the Ministry of Foreign Affairs.

Reports are usually submitted and presented to the relevant bodies and organizations by Permanent Missions of the Czech Republic to International Organizations (Strasbourg, New York, Geneva).

I hope that the above answers are sufficient and will help you with your research.

Sincerely,

Petr Hnatik

Human Right Department

Ministry of Foreign Affairs of the Czech Republic

Finlanda From: Tornkvist Martina MA [mailto:Martina.Tornkvist@formin.fi] Sent: Thursday, 20 July, 2006 11:48 To: ostaf@credo.md Subject: UN instruments and European Court of Human Rights Dear Mr. Ostaf,

40

I enclose here the reply of the Finnish Government concerning your questions on the representation of the Government before international human rights organisations and the European Court of Justice. If you have any further questions, please do not hesitate to contact the Unit for Human Rights Courts and Conventions at oik-31@formin.fi. Martina Törnkvist Unit for Human Rights Courts and Conventions Ministry for Foreign Affairs P.O. Box 176, FIN- 00161 Helsinki tel: +358 9 1605 5704 fax: +358 9 1605 5951 e-mail: martina.tornkvist@formin.fi

20.7.2006

Serghei Ostaf Resource Center for Human Rights CReDO Response to your Questions concerning the UN Instruments and European Court of Human Rights

Dear Sir,

Concerning your questions on the representation of the Finnish

Government before international human rights organisations and the

European Court of Justice, the Government of Finland states that the

Ministry of Foreign Affairs represents the Government before the

above-mentioned organisations.

The Agent of the Government of Finland on behalf of the Unit for

Human Rights Courts and Conventions of the Foreign Ministry

represents the Finnish Government before the European Court of

Human Rights in Strasbourg, as well as before the UN

Committees. Besides the individual complaints, the Unit for Human

Rights Courts and Conventions of is responsible for the development

of human rights, participating into the activities of human rights -

related international organisations, execution relating to human rights

complaints and international preparation of any human rights

documents, as well as any legal counselling and giving of expert

opinions and legal statements. The Unit also prepares and presents the

41

periodic reports on the international human rights instruments for the

UN Human Rights bodies and the Council of Europe.

Before the Courts of the European Union, the Government is

represented by the Agent of the Government of Finland on behalf of

the EU Litigation of the Ministry of Foreign Affairs.

Sincerely,

Martina Törnkvist Unit for Human Rights Courts and Conventions Ministry of Foreign Affairs of Finland

Slovenia From: Mateja.Mrak-Thorne@gov.si [mailto:Mateja.Mrak-Thorne@gov.si] Sent: Wednesday, 19 July, 2006 16:45 To: ostaf@credo.md Cc: Andraz.Pernar@gov.si Subject: UN instuments and European Court of Human Rights Dear Mr Ostaf, Thanks for your query. The Government of the Republic of Slovenia is represented before the above-mentioned bodies as follows: - European Court of Human Rights: responsibility of the Attorney General as the Agent of the Government of the Republic of Slovenia before the Court; - Cout of Justice: equally the responsiblity of the State Attorney's Office; - UN Committees: - Human Rights Commission, CERD, CAT, International Covenant on Civil and Political Rights: responsibility of the Ministry of Foreign Affairs; - Convention on the Rights of the Child and Protocols: responsibility of the Ministry of Labour, Family and Social Affairs; - International Covenent on Economic, Social and Cultural Rights: responsibility of the Ministry of Labour, Family and Social Affairs; - Convention on the Elimination of all Forms of Discrimination against Women: responsibility of the Government Office for Equal Opportunities; - Reports for Council of Europe conventions and other mechanisms: - Framework Convention for the Protection on National Minorities: responsibility of the Ministry of Foreign Affairs;

42

- European Charter for Regional or Minority Languages: responsibility of the Ministry of Foreign Affairs; - Commissioner for Human Rights: responsibility of the Ministry of Foreign Affairs; - ECRI: responsibility of the Ministry of Foreign Affairs. In the hope that the above explanation is satisfactory, I remain, Yours sincerely, Mateja Mrak Thorne Olanda From: Arnoldus, Peter [mailto:peter.arnoldus@minbuza.nl] Sent: Wednesday, 12 July, 2006 09:31 To: ostaf@credo.md Subject: RE: Antwrden Postbus 51 ________________ Dear Serghei Ostaf, With regard to your questions concerning the representation of the Dutch Government I can give you the following answers: 1- For the European Court of Human Rights - individual complaint, the Dutch Government is represented by its Agents, working at the Ministry of Foreign Affairs Legal Department -International Law division. 2- For the UN individual complaints Committees the Dutch Government is represented by its Agents, working at the Ministry of Foreign Affairs Legal Department -International Law division. 3- For the Court of Justice - individual complaints, the Dutch Government is represented by its Agents, working at the Ministry of Foreign Affairs Legal Department -European Law division. 4- For reports for UN Human Rights bodies - providing reports and presenting them at the relevant bodies, the Dutch Government is represented by high-level government representatives from the capital or depending on the topic, for example, by the permanent representative in Geneva. 5- For reports for Council of Europe conventions - providing reports the representation of the Dutch Government (again) depends upon the topic of the report. Sincerely, P.Arnoldus Information Department Ministry of Foreign Affairs

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The Netherlands Danemarka From: David Mouyal [mailto:davmou@um.dk] Sent: Tuesday, 11 July, 2006 10:52 To: ostaf@credo.md Cc: Albert Bruun Birnbaum; JTEU Subject: UN instruments and European Court of Human Rights Dear åØåMr. Serghei OSTAF Thank you very much for your inquiry concerning the above mentioned instruments. The answers to your questions are as follows: 1. The European Court of Human Rights is administered by the International Law Department in the Ministry of Foreign Affairs. 2. The UN individual complaints Committees are administered by the Human Rights Department in the Ministry of Foreign Affairs. 3. The Court of Justice is administered by the EU Law Department in the Ministry of Foreign Affairs. 4. The Reports for UN Human Rights bodies are administered by the Human Rights Department in the Ministry of Foreign Affairs. 5. The Reports for Council of Europe conventions are administered by the Human Rights Department in the Ministry of Foreign Affairs. Med venlig hilsen/kind regards David Mouyal Royal Danish Ministry of Foreign Affairs Head of Section, LL.M EU law department Asiatisk Plads 2 1448 København K Tlf: +45 33 92 01 85 Fax: +45 33 92 03 03

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3. Excerpts from the International Covenant on Civil and Political Rights Ratified by Decision of the Parliament nr.217-XII of 28.07.90, Published in the official edition "International Treaties", 1998, volume 1, page 30.

Adopted on December 16, 1966 in New York.

Adopted and open for signature by the UN General Assembly on December 16, 1966. Came into force on March 23, 1967, cf. art.49, except for dispositions of art.41; on March 28, the dispositions of art.41.

The CCPR has entered into force in Republic of Moldova on April 26, 1993.

Preamble

The States Parties to the present Covenant,

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Recognizing that these rights derive from the inherent dignity of the individual ,

Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights,

Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms,

Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant,

Agree upon the following articles:

PART I Article 1 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no situation may a people be deprived of its own means of subsistence.

3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

PART II Article 2

1. The State Members to the present Pact, oblige themselves to respect and guarantee the rights of all the citizens of the state territory as implied and interpreted by the Pact, without discriminating on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth grounds.

2. Where not provided for by existing legislative or other measures, each State Party to the present Covenant is obliged to take the necessary steps, in accordance with its

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constitutional processes and with the provisions of the present Covenant, to adopt such laws or measures in order to apply the rights recognized in the present Covenant.

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized is violated shall receive help, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, which will develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.

Article 3

The States Members to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.

Article 4

1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on race, colour, sex, language, religion or social origin grounds.

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

3. Any State Member to the present Covenant availing itself of the right of derogation shall immediately inform the other States Members to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date when it terminates such derogation.

Article 5

1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.

2. There shall not restrict or derogate from any of the fundamental human rights recognized or existing in any State Member to the present Covenant that follows the law, the conventions, the regulations or the custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.

PART III Article 6

1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.

3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way

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from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.

4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.

Article 7

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

Article 8

1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.

2. No one shall be held in servitude.

3. (a) No one shall be required to perform forced or compulsory labour;

(b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court;

(c) For the purpose of this paragraph the term "forced or compulsory labour" shall not include:

(i) Any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention;

(ii) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors;

(iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of the community;

(iv) Any work or service which is part of normal civil obligations.

Article 9

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Article 10

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1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

2. (a) Accused persons shall, apart from exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as persons who are not convicted;

(b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication. 3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.

Article 11

No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.

Article 12

1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2. Everyone shall be free to leave any country, including his own.

3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

4. No one shall be arbitrarily deprived of the right to enter his own country.

Article 13

An foreigner lawfully found on the territory of a State Member to the present Covenant may be expulsed only in pursuance of a decision reached in accordance with law. This person (except where compelling reasons of national security otherwise require) shall be allowed to submit the reasons against his expulsion and to have his case reviewed and be represented in front of the competent authority or the person/ persons especially nominated by the competent authority.

Article 14

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires. This can also take place in special circumstances where publicity would prejudice the interests of justice. But any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choice; to be informed, if he does not have legal assistance, of this rights; and to have legal assistance assigned to him, where the interests of justice require so, and without payment by him in any such case if he does not have sufficient means to pay for it;

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(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

4. In the case of juvenile persons, the procedure shall take into account their age and the desirability of promoting their rehabilitation.

5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

7. No one shall be liable to be tried or punished again for an offence for which he has already been convicted or acquitted in accordance with the law and penal procedure of each country.

Article 15

1 . No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.

2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

Article 16

Everyone shall have the right to recognition everywhere as a person before the law.

Article 17

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

Article 18

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief through worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

4. The States Members to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Article 19

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1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either vocally, in writing or in print, in the form of art, or through any other informative way of his/ her choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

Article 20

1. Any propaganda for war shall be prohibited by law.

2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

Article 21

The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

Article 22

1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.

3. Nothing in this article shall authorize States Members to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.

Article 23

1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.

3. No marriage shall be entered into without the free and full consent of the intending spouses.

4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

Article 24

1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

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2. Every child shall be registered immediately after birth and shall have a name.

3. Every child has the right to acquire a nationality.

Article 25

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth grounds.

Article 27 In those States in which ethnic, religious and cultural minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

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7. References [1] David L. Weimier, Adrian R. Vining, Policy Analysis: Concepts and Practice, 1989 (Romanian translation/edition, Analiza Politicilor Publice: Concepte şi Practică, ARC publishing house, 2004);

[2] Joseph E. Stiglitz, Economics of the Public Sector, 1999;

[3] Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, 1993;

[4] P. van Dijk, G. van Hoof, Theory and Practice of the European Convention on Human Rights, 1989;

[5] Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, 12 May 2004, HRI/GEN/1/Rev.7;

[6] The Policy Paper: Structural and Textual Ellements, Local Government and Public Service Reform Initiative, OSI Budapest, 2002

[7] Gill Ringland, Scenarios in Public Policy, 2002.

[8] Human Rights at the Turn of the New Millenium, Moldovan Helsinki Committee for Human Rights, 2001, 400 pages, edited by Serghei Ostaf (Romanian translation/edition, Human Rights in Moldova Post Millenium Outlook);

[9] Human Rights in Moldova: Post Millenium Outlook, edited by Serghei Ostaf Moldovan Helsinki Committee for Human Rights, 2001, 500 pages.

[10]http://www.ohchr.org/english/bodies/docs/RatificationStatus.pdf, http://www.ohchr.org/english/bodies/hrc/stat2.htm, Data base of the UN Committee for Human Rights, Reservations related to CCPR http://www.hri.ca/fortherecord2000/documentation/reservations/optional1.htm, and reservations related to 1AP http://www.hri.ca/fortherecord2000/documentation/reservations/ccpr.htm

[11] http://sim.law.uu.nl/SIM/Dochome.nsf?Open, Data base of the SIM Documentation Site, the Netherlands

[12] http://www.echr.coe.int/Eng/EDocs/DatesOfRatifications.html, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en HUDOC, search engine of thr data base of the European Court for Human Rights.

[13] http://www.europarl.eu.int/comparl/libe/elsj/charter/un_legislation_en.htm#1

[14] http://www.un.org/law/ilc/reports/1998/chp9.htm Legal framework and the data base for reservations ro UN treaties.