Article 46 of the constitution, which regulates the right to private property and its protection, stipulates in part 5 that "the right to private property requires the observance of the environmental protection requirements... which are imposed by law on the proprietor." A similar environmental provision for public properties is laid out in Article 59, which states that "environmental protection, preservation and protection of historical and cultural monuments is a duty of every citizen."
Certain rights indirectly connected with the environmental rights themselves are also mentioned in the constitution. For example, Part 1 of Article 36 of the constitution guarantees "the right for health protection," while Part 1 of Article 47 requires the state to "take measures to ensure every person a deserved living level, adequate for the maintenance of health and prosperity of a person and his or her family."
Moldova has not made any reservations to these conventions. As a result, these conventions are observed in Moldova's territory to their full extent.
As of March 1998, Moldova had not agreed to the Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, adopted at Lugano, Switzerland, on June 21, 1993.
Taking into account the accession of Moldova to the above mentioned international environmental conventions, the Presidential Decree of November 27, 1996, established the National Commission on Realization of International Environmental Conventions within the structure of the Department on Environmental Protection. This decree also approved the regulations of this commission. According to points 1 and 2 of the regulations, the commission is a permanent organization composed of the representatives of ministries, departments and scientific institutions. The commission is entitled to enlist the representatives of any agencies, organizations and associations, including nongovernmental associations, in its efforts to maintain and expand Moldova's participation in the implementation of international environmental conventions.
The tasks of the commission, which are outlined in point 2 of the regulations, include the following:
To understand the nature and obligatory character of international conventions signed and/or ratified by Moldova, it is necessary to understand that according to Article 8 of the Constitution of Moldova, "the Republic of Moldova is obliged to follow the Charter of the United Nations and the other treaties to which it is a party, and to build its relations with other states on the commonly recognized principles and norms of international law." In other words, when a conflict arises between the international treaties to which Moldova is a party and the country's own laws, priority must be given to international documents, i.e. the provisions of the international conventions. Articles containing similar provisions are usually included in all the laws.
Moldova agreed to the Sofia Guidelines on October 25, 1995, when the general director of the Moldovan Department of Environmental Protection signed the Sofia Declaration at the conference in Bulgaria. A press conference on its results was held soon afterward.
However, since signing the agreement, the Government of Moldova has done little to make the Sofia Guidelines known to the public. All information related to the Sofia Guidelines was accessible to the public only with help of NGOs. The full text of the Sofia Guidelines was not published in Moldova by the Government or by NGOs. Instead, in October 1996 a Russian-language version of the Sofia Guidelines, together with the text of the draft of the Law on Access to Environmental Information, elaborated by the ecological society Biotica, was mailed to all environmental NGOs in Moldova. The same documents together with some abstracts of the Sofia Declaration were given to NGO representatives and members of the Moldovan Parliament at the Open Parliaments Meeting on October 15, 1996. The texts were also distributed to about 150 NGO representatives, environmental activists and environmental lawyers from Moldova and other CIS countries who participated in the Environmental Advocacy Conference in Calarash, Moldova, organized by ABA/CEELI-Moldova and the Soros-Moldova Foundation in May, 1997. These documents, together with the first version of the report, were again distributed to participants of national round-table on January 28, 1998, organized by Counterpart-Moldova and devoted to the draft of the Public Participation Convention to be adopted at the Ministerial Conference in Aarhus.
The Government of Moldova has not officially expressed a point of view regarding the country's position on the Sofia Guidelines. The government representative who participated in negotiating the draft of the Public Participation Convention in January 1998 expressed a positive attitude toward the Sofia Guidelines; however, the opinion of one representative is not enough to evaluate the official position of the national government, especially in light of other government actions. For example, the government of Moldova twice (in October 1996 and March 1997) rejected the draft of the Law on Access to Environmental Information elaborated by the ecological society Biotica that was in strict conformity with the Sofia Guidelines. The government insisted on the necessity of a general law on information instead of the law on access to environmental information. The draft did not receive a positive evaluation from the government until October 1997, four months after Member of Parliament Ilya Trombitsky reminded the government of its obligation to report on the implementation of the Sofia Guidelines. The mandated report was never prepared, but Mr. Trombitsky's inquiry clearly changed the government's position and helped bring about governmental support for the previously rejected law.
Still, there were no legislative initiatives by the Government to ensure public participation in decisionmaking on the legislative level or to improve the access to justice for NGOs. The only progress came from legislation drafted by an NGO. The Law on Public Associations, which was drafted by the ecological society Biotica and passed by the Parliament on May 17, 1996, gave NGOs the right to go to court to protect public interests, i.e. interests not specifically connected with the direct interests of the group's members.
However, it should be taken into account that local laws adopted in the territory of Gagauzia cannot contradict the constitution of Moldova, and these laws must conform to the general legal aspects of the legislation of Moldova.
Administration for the rest of the country adheres to the Law on Local Public Administration, passed on December 7, 1994. According to that law, the public administration of local territorial units (i.e. villages or communes, towns or municipalities, and regions) is based on the principles of local autonomy, decentralization of public agencies, elected authorities and consultation with citizens on the most significant issues of local importance while taking into account public interests and conformity with the constitution of Moldova. In this way, according to Article 17 of the law, village councils, town councils and regional councils are entitled to make decisions on all issues of local importance except those already administered by national public authorities. Therefore, an organ of local public administration (i.e. a council) is entitled to approve local programs on restoration and protection of the environment. In turn, the executive organs of a local council - a mayor's office in villages and towns or a regional executive committee - may "take measures on environmental protection in conformity with the decisions of central organs." Despite the legal possibilities, the provisions of this law, especially the section regarding local public finances, hinder the ability of local and regional administrative entities to enact or enforce any serious environmental regulations without the support of the national government.
Secondly, the constitution contains a special section (Article 37, Parts 2 and 3) that stipulates the right to environmental information. Part 2 "guarantees every person the right to free access to trustworthy (adequate) information on the state of the environment, living and working conditions, quality of nutrition products and things of everyday use and the right to distribute it." According to Part 3, "concealing or distortion of information on factors which are harmful to people's lives is prohibited."
There is no specific law regarding access to or provision of information in Moldova. However, it is possible to gain the information through the Law on Presenting Petitions, passed on July 19, 1994.
Likewise, Moldova currently has no separate law guaranteeing the right to access environmental information. However, Article 30 of the Law on Environmental Protection passed on June 16, 1993, stipulates that the State must ensure for all natural persons the universal, opportune and free access to information on the environment and public health.
In addition, a draft Law on Access to Environmental Information has already been elaborated by the ecological society Biotica. This law was drafted for Moldova and takes into account all basic provisions of the Sofia Guidelines and the draft of the Public Participation Convention. The law is necessary because even though the right to environmental information is fixed in the constitution and laws of Moldova, it is very difficult to get information in practice. This is mainly because there are no concrete mechanisms and conditions for collection, preservation and provision of such information; the concept of environmental information as such is still misunderstood; and the liability for non-implementation of duties by the officials does not exist in the legislation.
The draft of the law was presented to the Parliament on October 1, 1996. It received a poor response from the government, which insisted on changes and new wordings that contradicted the Sofia document (for example, changing the law to restrict the right to information to the citizens of Moldova only, to deny access to initial data, and to increase the list of exemptions in provision of information; disagreement with the possibility of criminal punishment for non-provision of information, etc.). A new government instated in March 1997 continued the position of the previous one. However, by October 1997 the government had softened its position and was viewing the law with only minor reservations.
The Parliamentary Commission on Social Protection, Health and Environment had rejected the draft in April of 1997 and rejected it again in December 1997, requiring to restrict access to environmental information to foreigners and apatrides, as well as to NGOs so that they would be prevented from receiving profits by publishing data received from the governmental agencies. As a result of the absence of a final conclusion of the Commission, it was impossible to bring the draft to the plenary session of the Parliament.
However, this draft of the law had been presented to the CIS Inter-Parliamentary Assembly (IPA) in November 1996 as a model for CIS countries. It was discussed at four meetings of the IPA Commission on Environment, at which the comments of the State Duma of the Russian Federation, the supreme councils of Ukraine and Belarus, the Parliament of Kazakhstan and the Federation of CIS trade unions were considered. Taking into account their comments, which did not add any new provisions for the law, the draft was approved by the CIS Commission on Environment. It was passed by the 10th session of the Inter-CIS Parliamentary Assembly on December 6, 1997. Thus, the CIS countries have an opportunity to use the given document to elaborate national laws even before the ratification and implementation of the Public Participation Convention.
Taking into account the fact that Moldova currently does not have a separate law concerning information in general or environmental information specifically, the draft of the Law on Access to Environmental Information elaborated by Biotica defines environmental information to be "any information, written or oral, on the state of waters, air, soils, fauna, flora, natural zones and on the activities or measures, which do or can unfavorably influence on them, as well as on activities and measures aimed at the protection and rational use of the environment."
Conditions for Obtaining the Information
It is possible to receive general information and/or environmental information under the Law on Presenting Petitions, passed on July 19, 1994. This law interprets petitions as "any requests, claims, suggestions or statements presented in written form to any state organs of public administration, ministries, departments and agencies, as well as to enterprises, institutions and organizations with any form of property" (Articles 1, 4 and 5 of the law). The right to make petitions belongs to citizens of Moldova, to foreign citizens, to "stateless" residents of the country, and to any lawfully created organizations. While individuals can make petitions only on their behalf, legally incorporated entities can do so on behalf of collectives which they represent (Article 52 of the constitution, Article 2 of the Law on Presenting Petitions).
According to this law, all organs of public administration of Moldova (ministries, departments), enterprises, and institutions with any form of property must give information in response to a formal request or petition within one month of the registration of a petition. If a petition does not require additional consideration, the information should be given immediately or within 15 days. In extraordinary circumstances, the term of considering the petition can be prolonged by the governor of the administrative organ which received the petition, but the extension can last no longer than one month and the petitioner should be informed about the extension (Article 8, point 2).
The constitution guarantees the equality of citizens of Moldova before the law and state authorities irrespective of race, nationality, ethnic origin, language, religion, sex, opinions, etc. (Article 17, Part 1). It also has a provision that foreign citizens and stateless residents of the country have the same rights and obligations as the citizens of Moldova with some exclusions stipulated by the legislation (Article 19, Part 1). Even so, the fact that the Law on Access to Environmental Information would provide information to citizens and foreigners alike was strongly opposed by the government. The government and the parliamentary commission did not approve of having to release environmental information to foreign citizens and legal persons, even though such a provision is mentioned in the Sofia Guidelines and despite the fact that foreigners are already able to acquire such information under the Moldovan Law on Presenting Petitions. Further, the Law on Presenting Petitions does require an applicant to prove his or her interest in the information.
Petitions concerning issues of national security, rights and lawful interests of large groups of citizens or containing suggestions on amending the legislation or on changing the decisions of the bodies of public administration can be sent to the President of Moldova, to the Parliament or Government of Moldova (Article 6 of the Law).
Petitions appealing against an act, decision, action or inaction of any lower-level administrative organ or public official who violated the rights and lawful interests of a petitioner are sent to a higher governmental organ. In other words, the law prohibits sending petitions directly to agencies or officials whose actions or decisions are being appealed against.
Petitions appealing the decisions of organizations that do not have a higher organ or the decisions of local public authorities are to be sent to the court of first (lowest) level (Article 7 of the Law). If a petition relates to the competence of an organization other than the one that received the petition, the recipient must forward the petition to the proper agency within five days and must notify the sender of this transfer.
The response to a petition must be based on appropriate legislative considerations, and the reply must specifically identify that legislation.
Petitioners who feel their rights are still violated after they present a petition have a right to go to the court of first (lowest) level within one month of receiving a response. If a petitioner does not receive a reply within the stipulated term, the one-month grievance period begins from the deadline the organization had to answer the initial petition.
Though the law on petitions only mentions written and oral forms of information, practice and legislation in Moldova allow for environmental information to be requested and/or given in many forms: reports, comments, certificates, photos, films, videotapes, computer data, telegraph data, mass media materials, etc.
The legislation does not address any fees or other payments for the provision of environmental information. In practice, the fees depend on the ministerial document or act, and sometimes high fees become a barrier to receiving the information. For example, a subscription to the bulletin of the Hydro Meteorological Service costs considerably more than the price of reproducing the newsletter and is therefore not accessible to most NGOs.
Refusal to Provide Information
The Law on Presenting Petitions allows organs of public administration to refuse to present information only in two cases:
The concept of a public interest test is not clearly developed in the legislation of Moldova. However, the possibility to request the release of state secret information through public initiative exists in the Law on State Secrets of May 17, 1994. Article 14 of the law gives citizens, enterprises, institutions, organizations and public administrative bodies the right to file an inquiry about the withholding of information that is declared a state secret or was unreasonably restricted. An inquiry can be filed with the Interministerial Commission on the Protection of State Secrets or with enterprises, institutions, organizations or state archives. All inquiries must be considered within three months. If the authority that receives an inquiry is not empowered to settle the issue about disclosure, the authority must transmit the inquiry to the authorities that do have such power or to the Interministerial Commission on the Protection of State Secrets. The designation of information as state secrets can be appealed against in the court.
Informal Guidelines for Agencies and the Public
There are no detailed guidelines on how public authorities, except the parliament, shall provide general or environmental information in Moldova, with exception of the procedure established in the Law on Presenting Petitions. Official information on laws and resolutions adopted by the Parliament of Moldova is found in the official collected edition of all basic acts of the country, "Monitorul Oficial al Republicii Moldova," which is published in Moldovan/Romanian and Russian languages. This edition also contains all official acts adopted by the government, the National Bank, and the ministries and departments because, according to the legislation of Moldova, acts are not considered valid unless they are published in this bulletin.
In addition, in Resolution No. 951, adopted on October 14, 1997, the government ensured access to information and public participation by approving an important set of regulations for territorial planning and town construction activities. The regulations mandate consultations with the population at both the drafting stage and at the time of approval of the documentation of territorial planning and construction activities. Local authorities entitled to approve projects therefore must consult with the public before allowing projects to proceed. The cost of this consultation should be included as part of the expense of procuring the necessary documentation.
The Law on Public Associations, passed on May 17, 1996, states that public associations have a right "to receive from the organs of public administration the information that is necessary for the realization of the activity stipulated in the statute" (Chapter II, Article 26, Point e). Besides that, public organizations and natural persons can request information according to the previously discussed rules of the Law on Presenting Petitions. There are no other guidelines or manuals.
Specific Institutions/Officials to Provide Information
All supreme organs of public administration - parliament, government, president - have press departments that are responsible for disseminating general and/or environmental information to the public. According to the Law on Presenting Petitions, any citizen or legal entity of Moldova, as well as foreign citizens, can petition these press departments for information if their request concerns the rights and lawful interests of large groups of citizens or contains suggestions on improving legislation. Further, the Department of Environmental Protection employs two public servants solely responsible for dealing with the public and with NGOs. However, the legislation does not specifically regulate the flow of information.
If an Authority Does Not Possess the Information
According to Article 9 of the Law on Presenting Petitions, if an application or request relates to the competence of another organization, the recipient organization shall forward the petition to the appropriate office within five days of its registration and shall notify the petitioner (applicant) of this transfer. The petition in this case will not be considered by the recipient office and will instead be handled by the organization that has competence in the matter.
It is prohibited to forward a request to those agencies or public officials whose actions or decisions are being appealed. Also, the law states that public administrative agencies cannot refuse to answer an applicant, and public officials who do not adhere to this law can face disciplinary, administrative or criminal liability.
Information Held in Public Registers
The issue of information held in public registers and available to the public is not regulated in legislation in any precise and clear way. The availability of such information and data depends mainly on the will of officials. For example, in autumn of 1996 the Department of Environmental Protection concluded a memorandum with environmental NGOs of Moldova. One of the points of this memorandum covered the provision of environmental information to NGOs. However, it is not yet clear if NGOs must participate in this memorandum in order to receive environmental information. If they do not then there seems to be no necessity for the memorandum as such.
One small bit of legislation regarding the release of such information appears in the Law on Registers, passed by the Parliament on September 25, 1997. This law unifies the rules of composing registers in different spheres. It states that unless another legislative provision exists, the Registrar is obliged to give information from the register in the volume requested to any person within three working days from the day of the request, either free of charge or with payment.
Costs of Obtaining Public Information
There is no legislation regulating payment for public information. The Law on Presenting Petitions does not regulate or limit payment for information because the law is not necessarily aimed at ensuring the provision of information. Some environmental information is provided regularly; for example, hydro meteorological information is published on a subscription basis. However, subscription cost for such bulletins is considerably higher than reproduction and postal expenditures, and it is too expensive for most NGOs.
According to Article 42 of the Law on Local Public Administration of December 7, 1994, "the decisions of mayoral offices and executive regional councils which involve a public interest shall be made known for citizens by means of mass media." In addition, the Law on the Way of Publishing and Coming into Force of Official Acts states that laws and other acts of the Parliament, decrees of the president; international acts, resolutions and instructions of the government, and acts of ministries, departments and the national bank must be published in the "Monitorul Oficial al Republicii Moldova" in order to become effective. The journal is printed in the Moldovan language with a Russian translation. Once an act has been published in "Monitorul Oficial," it may be publicized on radio and television.
The Department of Environmental protection is also mandated to "inform the public on the state of the environment," according to Chapter II of the departmental regulations adopted by the government on December 5, 1994 (Resolution No. 891). The regulations establish the agency as the central organ of public administration in the sphere of protection of the environment and the use of natural resources. The department recently presented to the government a draft of regulations on environmental monitoring which will be the basis of its mandate.
Unfortunately, despite the direct provision in the law concerning the need to inform the public about the state of environment, the organs of public administration insufficiently perform their duty to disseminate this information. In fact, no organ of public administration in Moldova makes official statements on the state of environment. Some information is disseminated, but this comes mainly from MPs, environmental public associations (i.e. NGOs) and sometimes journalists. These statements primarily deal with the problems of protection and restoration of flora and fauna, the levels of soil pesticides and pollution, oil products pollution, the level and quality of underground waters, injurious sewage, air wastes, and violations of the approved storage and use of pesticides and mineral fertilizers.
The Law on Environmental Protection of June 16, 1993 requires the government, together with the Department on Environmental Protection, to compose an annual survey of the nation's natural resources. It also requires the government to propose to Parliament by December 1 each year a program for the improvement of the environment for the following year (Article 8, Points b and f).
The main tasks of the Department of Environmental Protection include organizing and providing complex environmental monitoring, reporting on the state of natural resources, and informing the public about the state of the environment (Article 15, Points b, c and i). The department is obligated to present to the Parliament by December 1 each year a report on the state of the environment in the country and a report on the department's activities (Article 14). In practice, only a few copies of these annual reports are distributed, and this therefore cannot be considered as their "publication." They are available to the public only in the places they are stored (i.e. government, parliament and environmental department offices). Other governmental publications regarding the environment are the National Program of Strategic Actions for the Environment and the National Environmental Action Plan, published by the government in 1995 in both Moldovan and English languages.
Consistent with the low level of public disclosure, public authorities of Moldova do not generally inform the public about the ability to report the non-implementation of international agreements to the international bodies.
In the case of an emergency, responsibility for gathering and/or disseminating environmental information lies with the Department of Civic Protection and Extraordinary Situations. The department has functioned as one of the central organs of public administration in Moldova since 1992. According to the latest version of its regulations, approved by the Governmental Resolution No. 541 of October 2, 1996, this department is obliged to disseminate information, including environmental information, in extraordinary situations (Chapter III "Functions"). Following the U.N. declaration on the International Decade on the Reduction of Calamities' Danger, the government of Moldova adopted its own program for the reduction of calamities' danger on May 17, 1995. The program includes a number of measures to prevent or reduce the danger of extraordinary natural and technical crises. All ministries and departments are required to report the work done under the program to the national commission by December 1 each year.
In addition, the Law on Civic Protection of November 9, 1994, outlines the system of state measures which should be undertaken in peace time and during war to ensure the protection of people and property in the face of calamities, catastrophes, environmental catastrophes, accidents, fires or other disasters. In order to ensure the implementation of this law, the government established a network of monitoring and laboratory control agencies that continually monitor the levels of radioactive, poisonous and virulent toxic substances and bacteriological (biological) substances in the environment (Resolution No. 474, adopted on August 29, 1996).
Methods of Dissemination
There is no systematic practice of presenting substantiated and accurate information, including environmental information, for certain set periods in Moldova. This is because the various organs of the public administration (i.e. the Department of Environmental Protection) do not systematically gather, summarize and publish this type of statistical data. Instead, most information about the state of the environment in Moldova is delivered in speeches given by officials who govern the various branches of the public administration. These speeches are then reported in newspapers, radio and television.
Electronic Means of Dissemination
There are no laws, governmental acts, ministerial instructions or governmental contracts setting forth an obligation to spread general or environmental information electronically in Moldova. However, there are no prohibitions to doing so. Even so, there is currently no information available on the World Wide Web regarding Moldova's environment.
Nongovernmental Centers
Although there is no single NGO in Moldova that actively provides full and permanent distribution of environmental information, there are a few environmental periodicals. A special environmental newspaper called "Natura" is published monthly in the Moldovan language. The periodic bulletin "Heredity" published by the environmental agency Altair includes some news and also documents related to the environment. In January-March 1998, the Environmental Movement of Moldova, Kishinev section, published the first two issues of its bulletin on the state of the environment in both Russian and Moldovan languages. There are also several active independent information agencies in Moldova (i.e. Basa-press, Interlic, Flux, etc.), which sometimes cover environmental issues. Other nongovernmental organizations occasionally publish articles in newspapers and organize TV and radio reports. Finally, the Opinia Center of Sociological Studies also can be named as a nongovernmental distributor of environmental information.
The standard bookkeeping practice of recording detailed spending categories makes it possible to determine how much is spent by individual private sector enterprises on environmental protection or on fees for violating environmental regulations. The quarterly and annual reporting is mandatory for all businesses.
The right to a referendum is clearly spelled out in the legislation of Moldova. According to Article 75 of the constitution, "The most important issues in relation to society and state functioning are to be decided upon referendum. The results of referenda have the supreme legal force."
Details regarding the process of referendum are contained in Part IV of the Electoral Code of Moldova, which parliament adopted on November 21, 1997 and went into effect on December 8, 1997. According to the code, the constitutional court must first approve issues that are going to be decided by a national referendum. The Parliament has six months from the day it receives the suggestion to decide whether to carry out the referendum and to set a date for the voting. The date of a local referendum is set by the council of a village (commune) or town (municipality) or by the regional council or the representative authority of an administrative territorial entity with special status (i.e. in the case of the autonomous region Gagauzia a local referendum is set by the Popular Assembly of Gagauzia).
According to Article 145 of the Electoral Code a national referendum cannot take place during the establishment of an extraordinary, siege or military state nor can it be held within the first 120 days after their cancellation. A national referendum also cannot be held at least 120 days before or 129 days after parliamentary, presidential or general local elections or another national referendum.
A local referendum carries similar restrictions. It cannot be held during an extraordinary, siege or military state, and it cannot be held within 120 days of any election or referendum in the same territory unless they occur at the same place and time.
The following are the parties eligible to initiate a national referendum, as outlined in Article 144 of the Electoral Code:
A local referendum can be initiated by the following parties (Article 180 of the Electoral Code):
Article 146 of the Electoral Code states that a national referendum can be called to settle issues regarding adoption of the Constitution of Moldova and some constitutional laws, adoption or cancellation of laws and/or provisions of laws, resignation of the president, or other issues of national importance. According to the last phrase, if an environmental issue can be shown to be of national importance, then it should be eligible for referendum. However, Article 147 of the Code states that a national referendum cannot be held in particular under the issues "of extraordinary and urgent measures to ensure the public order, health and safety of the population." The analogous restriction exists in Article 178 of the Electoral Code in relation to local referendum.
Issues related to the environment are clearly subject to local referendum, however, because according to Article 177, a local referendum can deal with issues which have particular importance for a certain locality and relate to the powers of the local public administration authorities.
Despite this framework, there has been no national referendum in Moldova since the country became independent in August 1991, except for a national poll to gather public sentiment about the internal and external policy of the president in 1994. On the local level, the autonomous region of Gagauzia held a referendum in 1995 to determine which localities would enter into this autonomous structure and to decide on an administrative center for the region.
Finally, the results of a national referendum have supreme legal force, do not need any approval and apply throughout the whole territory of Moldova (Electoral Code, Article 142, Part 4).
Right to Initiative
Article 73 of the constitution states that legislative initiative belongs only to the members of parliament, the president and the government of Moldova. This applies to all laws, environmental or other. However, the issue of a legislative act can be the subject of a referendum. Consequently, all the aforementioned referendum considerations are fully applicable in the case of legislative initiative regarding the environment, but public initiatives are rarely used in practice.
Public authorities are empowered to make decisions on their own. Consequently, individuals or NGOs have no right to veto a decision. In addition, the legislation of Moldova does not regulate the frequency of individual or NGO participation in the work of public authorities. Practice shows that drafts of laws that are of great interest to all citizens of Moldova are usually published in the mass media for common discussion. For example, the draft of the Law on Local Public Administration was highly publicized.
When a draft the of a law is published, every citizen, group of citizens or NGO can express an opinion about the draft and can publish its comments in the mass media or present them directly to the parliament or the public administrative body, which is then obligated to consider these comments. Moreover, as previously mentioned, according to Article 6 of the Law on Presenting Petitions, any individual or NGO has a right to file petitions concerning the rights and interests of a large group of citizens, including environmental issues, to the president, parliament and government of Moldova. This provision exists for nearly all legal acts related to the environment. However, in practice, it happens that the public is not aware of the majority of drafts.
Usually in cases when comments, opinions or suggestions made by individuals or NGOs are substantiated and concern a large group of citizens, these suggestions and comments are taken into consideration by public authorities. When a public authority decides to actively gather public input, this public authority (including parliament, the president, the government and local public administrative bodies) can form temporary or permanent commissions to study a certain issue. These commissions often include representatives of the public, NGOs and selected experts. There is no special procedure for determining experts; they are usually prominent people well-known for their expertise in a certain field who are independent in their opinions. Some NGOs, for example the Center for Strategic Studies of Moldova, choose their consultants from among the pool of leading scientists in the country.
Each year from 1994 to 1997, parliament formed two to five temporary commissions including representatives of the public and NGOs to consider decisions on different issues. During the same period, the government of Moldova formed 10 to 15 temporary commissions and three to six permanent commissions to involve the public and NGOs in the preparation of different issues.
In local matters, authorities must gather public input before constructing anything that can significantly influence the local environment, according to a governmental decree from 1997. However, the local authorities are not necessarily obligated to decide in accordance with the collected public opinion.
Because there is no legal framework for considering public opinion on the local or national level, officials often mistake reports in the mass media or the opinions of small but vocal groups operating within the administration for true public sentiment. This arbitrary, unregulated form of public influence can have a negative impact on the content of decisions because it does not reflect the opinion of large segments of the public, but instead furthers the interests of small groups that promote their own narrow and sometimes mercenary self-interests.
Still, the opinion of the public at large has influenced some decisions. The case dealing with the construction of an oil terminal in Djurdjuleshti, on the Danube River, can be considered to some extent to be a positive example.
In summer 1993, the government of Moldova decided to construct a 350,000-ton oil products terminal along the 450 meters of Danube River that belongs to Moldova. After taking into account the input of state environmental expertise in 1993, the planner decided to seriously expand the capacity of terminal to 2,1 million tons. This required significant revisions to the draft schemes, especially with regards to the environmental impact.
The new EIA procedure was finished in May 1996. At the same time, a number of environmental NGOs took part in the discussion of the draft organized by the drafters, and the NGOs carried out their own EIA. They concluded that there was a danger of a change in the course of the river and that the facilities for emergency collection of oil did not meet international standards.
The investors, however, were supported by the local residents, who expected to gain jobs and have infrastructure in the region. The construction was approved by parliament in summer 1995, and in summer 1997 it agreed to pay its share of the costs for the construction. The construction of terminal then began in summer 1997.
In this case, the NGOs were not able to prevent the construction of the terminal, partly because the public wanted the economic benefits and energy resource independence the terminal would bring to the area. However, the NGOs contributed to the detailed elaboration of the draft and to the removal of serious environmentally dangerous defects.
However, there is one official procedure for all decisions adopted by all central public authorities in Moldova. This is established by the Law on the Way of Publication and Coming into Force of Official Acts of June 6, 1994. According to this procedure, all laws and other acts of the Parliament, decrees of the president, texts of international acts, acts of the constitutional court, resolutions and instructions of the government of normative character, normative acts of ministries, departments and the national bank are published in the "Monitorul Oficial al Republicii Moldova." which is published at least once a week. All acts come into force only after they first appear in "Monitorul Oficial."
The international environmental conventions, as is the case with the majority of other international documents, are not published in this newspaper despite the requirement of the law. The "Monitorul Oficial" usually contains only the parliamentary resolutions on the ratification/accession of international treaties. That is why the public is normally not aware of the content of ratified treaties. It should be mentioned that international environmental conventions were published in a special brochure by the ecological society Biotica in the Russian language in April 1998. The Moldovan version of the brochure is still under preparation.
The weekly editions of "Monitorul Oficial" form the official collection of laws and normative acts and are printed in two languages. Everyone in the country has access to these volumes and is able to use them when necessary. The "Monitorul Oficial" is the most assured way for individuals and NGOs in Moldova to find out about official decisions. In some cases, the groups are updated on the decisionmaking process, but this rarely happens and generally is not regulated by the legislation. The only exception in this context can be the above mentioned Regulations on consultations with the population in the process of drafting and approval of the documentation on territorial planning and town construction activities, approved by the Governmental Resolution No. 951 from October 10, 1997.
The legislation of Moldova does not regulate the issue of involvement of the public from neighboring countries which might be affected by the activity concerned in the process of decisionmaking. However, it seems to be possible in the process of public environmental expertise. The law on Environmental Expertise and EIA of May 29, 1996, gives citizens and public associations the right to request from state authorities information about the results of an environmental assessment. However, while the law allows the publication of the information, it does not require it.
The inadequacy of procedures to notify the public of governmental decisions and the lack of transparency in the decisionmaking process are apparent in the following example. In December 1996, the mayor's office in Kishinev decided to allow construction of a chain of McDonald's restaurants. At the time of negotiations the company was not even registered in Moldova. Among the planned restaurants was one store to be built on a small public garden in a highly populated residential part of the city.
The decision to allow the restaurants was not publicized. Local residents realized some sort of construction was going to take place only after a wall appeared around the garden. They began to protest, and they were told that no construction would take place without their agreement.
At that time, the legislative framework of Moldova already included provisions about mandatory consultations with the public in such cases (Law on the Basis of Town Construction and Territorial Planning, May 17, 1996; Law on Environmental Expertise and EIA, May 29, 1996). Meanwhile, the law that outlined Kishinev municipality status contained no provision about consultations with the public - according to that law, input from residents was neither required nor banned.
On the night of May 11-12, 1997, city workers attempted to saw down the trees in the public garden to make way for the construction. Local residents, awakened by the buzz of electric saws, rushed to the park and saved most of the trees. The residents moved the trees that were already cut down onto the central main transport line and stopped traffic for half a day. The vice prime minister of Moldova arrived and promised not to allow any further felling. The issue then went before parliament, and the national government immediately adopted a resolution canceling the decision of the city mayor's office. The resolution also ordered the mayor's office to restore the public garden.
A group of MPs who supported the restaurant construction asked the constitutional Court for its opinion. The court ruled at the end of 1997 that the governmental resolution was not constitutional and had no legal force because it was an intervention into the competence of local authorities.
Looking back on the situation, it is evident that the residents and NGOs should have gone to the court in the first place because the mayor's office violated environmental legislation and EIA procedures from the start. A few legal opinions appeared in the press suggesting the court as an option, but still no one went to the only institution competent to settle the issue. This case shows how citizens of Moldova have yet to accept the idea of going to court to protect their rights
In the end, the mayor's office and the company were forced to set up meetings that are still going on with local residents, who refuse to back down. Ideally, these meetings would have taken place in the beginning and the issue would have been settled by now.
There are a few provisions that allow for outsiders to attend and/or participate in official meetings. According to the Law on the Regulations of Parliament of April 2, 1996 (Article 96), it is possible for citizens, and thus representatives of NGOs, to be present at open parliamentary plenary sessions if they receive permission or an invitation from the Parliamentary press department. According to Article 18 of this law, when preparing the agenda for a parliamentary commission meeting, the chairman of the commission has a right to invite other people to work with the commission when necessary. In practice, these people are usually experts, scientists, well-known politicians, lawyers, economists or specialists in certain fields.
According to the regulations of the Popular Assembly of the autonomous region Gagauzia, approved by the governor of Gagauzia in 1995, invited people can be present at the sessions of the Popular Assembly (Article 57 of the regulations). The meetings of commissions of the Popular Assembly are, as a rule, closed (Article 20). However, according to Article 22(1), the commission can invite to its meetings interested persons and individuals from state bodies or specialized organizations. The same rules exist for meetings of elected and executive organs in the system of local public administration.
The aforementioned examples show that the decisionmaking process seems to be relatively transparent in parliament, in the Popular Assembly of Gagauzia and among local authorities. However, in practice, there is very little chance for the public to influence the decision. The EIA and environmental expertise procedures present the better option. Through these procedures the public can gain influence by presenting alternative experts and analysis. Even so, real public influence in the decisionmaking process is still not assured.
Openness of Parliamentary Committees
It is possible for private individuals and representatives of the public to be present at the sessions of the Parliament if they receive permission or an invitation from the parliamentary press department (Regulations of the Parliament, Article 83, part). Experts, consultants and representatives of the public can be invited to the meetings of permanent parliamentary commissions, and invited parties are allowed to express their point of view on the issue discussed.
At the parliamentary sessions and meetings of permanent commissions, NGO representatives can view the meeting in progress. They can also submit written comments if they are asked to. The representatives can also speak to express their point of view or the point of view of their NGO, if they are asked and given permission according to the parliamentary agenda. Although this is all possible, in practice such cases are rare because there is no tradition of inviting NGOs and no information is available for them about the agendas of committee sessions.
One positive example of lobbying for environmental interests is the actions regarding the Novodnestrovskaya Hydro Accumulation Electric Power Station (HAEPS), situated in the Mogiliov-Podolsk region of Ukraine.
In the early 1990s, Ukraine introduced plans to expand the power station and sought funding from the World Bank. The existing facility had already caused damage to the environment surrounding the Dniester River in Moldova, and the prospect of an expansion prompted Moldovan environmentalists to begin lobbying to protect the environment.
In 1995, newspapers began publishing articles from scientists and NGOs aimed at educating the government of Moldova about the necessity of a comprehensive approach to the problems of the central part of the Dniester. The Odessa region of Ukraine also suffered environmental damage from the plant, and local NGOs there also supported the initiative.
Scientists from Moldova and Ukraine went on a World Bank-sponsored joint expedition on the Dniester River and agreed their HAEPS was damaging the environment. However, Ukrainian officials would only discuss the possible negative effects of the construction and exploitation of the second part of the HAEPS and refused to discuss the negative impact of the existing facility because the plant was built when Moldova and Ukraine were still part of the USSR. The evident necessity of the international EIA required by Moldova was not taken into account.
The best solution would be to restructure the whole HAEPS. However, that would prove extremely costly for Ukraine. A less expensive option would be for Ukraine to pay a cash compensation to Moldova to reverse the damage caused by the HAEPS, but Ukrainian officials did not agree to the deal.
The HAEPS was not a major governmental priority until lobbying by the ecological society Biotica and scientific community resulted in a special resolution by the Parliament of Moldova. The resolution acknowledged the bad environmental state of the river, placed priority on the problem and directed the government to negotiate a bilateral convention with Ukraine on preserving the biodiversity of the Dniester River and its surrounding territories.
The permanent links between the MPs of the two countries soon led the Ukrainian parliamentary commission on environmental policy to adopt several analogous decisions regarding the river. Of course, more lobbying will still be necessary to ensure the resolution is fully carried out.
There are no national projects to support public participation in the activity of public authorities in Moldova. Consequently, there is no funding by public authorities of any events focused on public participation in administrative activities. Such projects are usually supported by foreign funds (e.g. USAID, TACIS, etc.).
The Department of Environmental Protection has a section that is responsible for contacts with the public. This section can give advice about how to draft projects, and it can provide contacts within other sections of the Department.
In terms of governmental support for educational institutions and media for promotion of public participation, some governmental financial support from the National Environmental Fund was given to the newspaper Natura, which covered some aspects of public participation. In general, the funds for such activities are provided by foreign grants.
A specialized economic court considers the disputes on economic and financial issues which involve only legal entities. Article 114 of the Constitution of Moldova states that "justice is realized only on behalf of the law and only by judicial institutions." Article 20 of the constitution stipulates that "every person has a right to effective remedy by the competent courts in case of the violation of his rights, freedoms and lawful interests. No law can restrict the access to justice."
Justice in Moldova is imposed based on the following principles:
Moreover, Article 45 of the Civil Procedure Code of Moldova provides the right to participate in a trial for citizens and public associations that protect the rights of other persons.
The constitution does not contain provisions that directly stipulate the right to go to court on the issues of denial of access to environmental information, failure to allow public participation, or other environmental issues. However, it is evident that the provisions of Article 20 of the constitution, stipulating the right to go to court, are applicable to any violation of rights, freedoms and lawful interests of a person. They certainly can be applied in case of violation of Article 37 of the constitution (the right to a favorable environment), Article 52 of the constitution (the right to present petitions), Article 34 (the right to information), whereas concrete terms and conditions of the right to go to court are stipulated in the Civil Procedure Code of Moldova and specific laws. For example, Article 16 of the Law on Presenting Petitions states, "A petitioner who considers his rights to be violated and does not agree with the decision of an organ or public official who has considered the petition has a right to go to court within one month from the day when he was informed about the decision. In case a petitioner was not informed about the answer within the prescribed term, then within one month of when he should have been informed."
Since August 1995, when the judicial system of Moldova was formally reorganized, there has been no trial in any judicial institution concerning the violation of a constitutional right of Moldova's citizens for favorable environment (Article 37 of the constitution) or concerning the right of the public to participate in the realization of justice (Article 20 of the constitution and Article 45 of the Civil Code).
There were some cases connected with the right to make petitions (Article 52 of the constitution), but they had no relation to the issue of obtaining information by means of the right to petition. There were no trials concerning the right to information (Article 34 of the constitution).
| TABLE 1: Administrative Standing | ||
|---|---|---|
| In the administrative decisionmaking process | In the administrative appeal of administrative decisionmaking process | |
Individuals |
||
| every person | - | - |
| interested/affected | x | x |
NGOs |
||
| everyone | - | - |
| interested/affected | x | x |
The minimum duration for consideration of the petitions of citizens and public associations in all public authorities is 15 days from the day of the registration of a petition with the public authority. The maximum term is 45 days. The average duration of the consideration of petitions of citizens and public associations in public authorities, enterprises and organizations is one month (Law on Presenting Petitions, Articles 7 and 8).
An administrative punishment can be imposed no later than two months from the day of committing an offense. When the offense is lasting, the punishment can be imposed within two months from the day of discovery of the offense. For example, if the administrative offense consists of damaging the forest with sewage, chemical substances or injurious wastes (Article 72 of the Code on Administrative Offenses), the fine for public officials (up to 25 minimum salaries) shall be imposed not later than two months from the day of discovery of this fact by the Environmental Inspection. The average duration from the day of registration of an offense until the imposition of a fine is 1.5 months. In this case, the public official has right to appeal the administrative punishment to a judicial institution.
The right to participate in the civil procedure belongs to every natural or legal person in case of violation of rights, freedoms or lawful interests of this person (constitution, Article 20, Civil Procedural Code, Article 4). In addition, according to the Law on Public Associations of Citizens from May 17, 1996, public associations are empowered to protect in courts not only the interests of their members but also the public interests in the sphere of their activities.
According to the Law on Economic Judicial Institutions from July 24, 1996, the right to legal standing in the economic court belongs to legal persons and citizens occupied with entrepreneurial activity without creating a legal entity with the status of an entrepreneur (businessman). But keeping in mind that the participation of citizens in economic courts is caused only by the specifics of Moldova's legislation on status and forms of entrepreneurial activity, the question of a citizen or NGO taking on government activity in an economic court cannot be given a positive answer.
According to the Law on Constitutional Court from December 13, 1994 (Article 25), the right to be heard in the Constitutional Court of Moldova is reserved for the president of Moldova, the government, the minister of justice, the supreme court chamber, the economic court, the general prosecutor, a member of parliament or a parliamentary faction.
The enforcement of laws by the officials is regulated by ministerial official instruction acts in which the rights and obligations of public officials of a ministry or department are determined. If a public official fails to carry out his or her duties as determined by the official instruction act, these duties are transferred to another public official.
If a public official performs his or her duties in an incorrect or unacceptable way, the actions of this public official can be appealed against following the conditions of the Law on Presenting Petitions. Such appeals would go to a higher official or to the courts according to the Civil Procedural Code of Moldova. The higher official or the court can then force the public official to carry out his or her duties in a right and proper way.
| TABLE 2: Legal Standing Against Government | |||||
|---|---|---|---|---|---|
| Special administrative procedure | Civil court | Criminal court | Arbitration court or special economic courts | Constitutional court | |
Individuals |
|||||
| every person | - | - | - | - | - |
| interested/affected | - | x | x | - | - |
NGOs |
|||||
| everyone | - | - | - | - | - |
| interested/affected | - | x | x | x | - |
| TABLE 3: Legal Standing Against Polluters | |||||
|---|---|---|---|---|---|
| Special administrative procedure | Civil court | Criminal court | Arbitration court or special economic courts | Constitutional court | |
Individuals |
|||||
| every person | - | - | - | - | - |
| interested/affected | - | x | x | - | - |
NGOs |
|||||
| everyone | - | - | - | - | - |
| interested/affected | - | x | x | x | - |
The Court can impose several types of provisional measures. However, their joint cost shall not be more than the cost of the case.
When the Court imposes a provisional measure, it has a right to ask the plaintiff for bond requirements. The defendant, after the coming into force of the court's decision where the plaintiff's request was rejected, has a right to ask the plaintiff to recover damages caused by the provisional measures required by the plaintiff.
The institute of judicial enforcer, also known as the bailiff, exists and effectively functions in Moldova to ensure implementation of judicial decisions. For instance, if a person is ordered by a court to carry out a certain action (e.g. to hand over a piece of real property, to pay a fine, to recover losses, etc.) and that person refuses to voluntarily carry out the demand of the court, the other person who is interested in the implementation of judicial decision (usually the plaintiff) may ask the court to implement the decision forcefully. The judge who made the ruling then empowers the bailiff to enforce the judicial decision (i.e. to confiscate the property and sell it to compensate the debt or to seal up the office in order not to allow a public official to implement his duties, etc.) When a judicial decision involves financial penalties, a judge hands an "order" to the applicant (plaintiff or victim), and the applicant transmits this order to the bank. The bank then reviews the order together with the judicial decision and transfers the relevant sums from the account of defendant to the account of plaintiff.
The forced implementation of judicial decisions can be sought by citizens (plaintiffs) as well as upon the initiative of the court which ruled the decision. However, if the court which ruled on the decision refuses to give an order to implement the decision forcefully (theoretically, it is possible), the interested person (whether natural or legal) has a right to send an appeal within 10 days to the next level judicial institution, which will review the arguments of the lower court and make a decision on the forced implementation.
The legislation of Moldova does not provide any privileges or exemptions from any of these expenditures. A party that wins a case can receive compensation for damages and losses, as well as compensation for moral damage. If the parties of a case had a contract, the winner can receive compensation for non-implementation or inadequate implementation by the other party of the conditions of the contract. In all cases, the judicial expenditures are recovered from the losing side upon winning a case.