By Leo van Doesburg & Anca Bulica
The Moldovan Ministry of Justice proposed a new law to prevent and to fight against discrimination. The purpose of the proposed law was to create an instrument that allows the prevention of any kind of discrimination on Moldovan territory and to bring all the provisions together under one piece of legislation. However, because of the confusion at the Ministry of Justice about the goal of the new legislation, the proposed law became very controversial and it raised serious concerns about the freedom of faith and conscience. Nevertheless, active neo-liberal EU lobbyists and diplomats stated that this was the only way for the lifting of the visa barriers. Unjustified pressure from some official EU diplomats combined with a confused Ministry of Justice seemed to form the basis for a controversial law that brings fundamental freedoms in Moldova in serious danger.
This article that I wrote together with Anca Bulica (policy officer Care for Europe) gives a deep analysis about the situation in Moldova and will be published in a special ECPM publication about "the freedom of faith and conscience" in the beginning of August.
This article that I wrote together with Anca Bulica (policy officer Care for Europe) gives a deep analysis about the situation in Moldova and will be published in a special ECPM publication about "the freedom of faith and conscience" in the beginning of August.
Introduction: the Moldovan political context
On the political level, Moldova has always been a country that has found itself at the crossroads between Russia and the European Union. Throughout the last decade, their politics have been mainly determined by the Communist Party which had a large enough majority to determine the main political direction of the country, which has been mainly focused on priorities dictated by Russia. However, beginning with 2009 the situation seemed to be changing. The elections of April 2009 brought the Communist party a little less than 50% of the votes. Consequently, they lost the absolute majority of seats they had had until then, which were necessary for choosing the president. These elections were followed by riots and political unrest on the streets of Chisinau. Although the opposition united, it was not possible to choose a new president with their small majority. New elections were organized in July 2009 where the communists lost again and the opposition parties (the Liberal Democratic Party, the Liberal Party, the Democratic Party and the “Our Moldova” Alliance) together got a slight majority of 51.3%, enough to form a new government, but still not enough seats to choose a new president. New elections were therefore held in November 2010. The opposition united in the “Alliance for European Integration (AEI)” and the parties of this coalition (Liberal Democrats, Democrats and the Liberals) gained 7 more seats and therefore had a total of 59 seats (out of 101). Although this was a majority, it remained a fragile one and still not enough to elect a president. The communists remained with their 42 seats the single biggest party and a strong opposition. The majority formed through all the parties within the Alliance was only bound together by anti-communistic feelings and the urge to enter the European Union as soon as possible (as the name of the Alliance, in fact, suggests). The ongoing possibility of new elections, a weak coalition based on one big issue (European integration) and a strong opposition (the Communist Party) has created a very fragile political situation. Consequently, every issue concerning European Integration easily becomes a political issue and every remark or observation of EU representatives or diplomats can have an enormous impact and significant consequences on the Moldovan society and politics.
Action Plan on Visa Liberalization
The European Union did not turn a blind eye to developments in Moldova and promptly reacted to these by taking negotiations with Moldova for an even closer relationship with the EU a step further. Therefore, on 16 December 2010, the Council of the European Union (also called the Council of Ministers) endorsed the European Commission’s proposal for a visa liberalization action plan for Moldova with the purpose of creating visa-free travel between the EU and Moldova. The European Commission presented this Action Plan to Moldova in January 2011. A similar visa-liberalization plan was presented to Ukraine. It is interesting to note that there seems to have been no room for negotiations about the conditions that Moldova has to accomplish, as the Action Plan presented to them was a unilateral document. This aspect is clearly illustrated by the choice of words used in a letter from the Moldovan Ministry of External Affairs and European Integration to the Alliance to Save the Families in Moldova on 12 May 2011. This letter explains that the European Union simply “handed over” (in Romanian: ‘a inmanat’) to Moldova this action plan. The letter states that “through this Action Plan, the European Union imposes on the Republic of Moldova a set of compulsory requirements that need to be fulfilled in order to make visa-free travel within the Schengen space possible for Moldovan citizens. The Action Plan is part of a series of unilateral documents from the European Union concerning the liberalization of visas for third countries”. It is mentioned that the same thing applies for documents that have to do with visa liberalization for other EU Neighbourhood countries, namely Albania, Bosnia Herzegovina, Macedonia, Montenegro, Serbia and for the Action Plan issued to Ukraine. The letter makes it very clear that“The contents are not subject to negotiations but represent an offer of the European Union addressed to a certain number of countries, in this case the Republic of Moldova”. This statement underlines that no negotiation had taken place but this Action Plan was an EU product, drafted by the European Commission and approved by the Council of the European Union (also called the Council of Ministers).
Reviewing the Action Plan on Visa Liberalization
A closer look at the contents of this Action Plan for visa liberalization reveals the inclusion of some surprising requirements. Point 2.4 of the “EU’s Visa Liberalization Action Plan for Moldova” calls on Moldova to ensure that unjust restrictions and discriminatory measures based on “any ground such as sex, race, color ethnic or social origin, genetic features, health status (including HIV/AIDS), language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation” do not infringe upon freedom of movement within its territory. Article 2.4.3. makes it compulsory to adopt “comprehensive anti-discrimination legislation as recommended by UN and Council of Europe monitoring bodies to ensure effective protection against discrimination” and ratify “relevant UN and Council of Europe instruments”. It is interesting that these particular requirements be part of an EU Action Plan on Visa Liberalization at all as they refer to non-EU institutions and the adoption of unspecified Council of Europe and UN human rights instruments. Furthermore, there is no mention within the requirements on anti-discrimination of the necessity to comply with existing EU law in this area. There are EU directives that deal with the topic of anti-discrimination and equal treatment: Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and Council Directive No. 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. Instead of a reference to these pieces of EU legislation, there is mention of recommendations from UN and the Council of Europe. Consequently, the impression given is that Moldova is expected to do more than what is required of EU member states. This choice of formulation of the mentioned requirements on anti-discrimination in the visa liberalization plan may have also given the impression to Moldova that a new law on anti-discrimination needs to be drafted and that it would not be sufficient to adapt the current legislation in order to be in line with the EU directives.
Confusion within the Ministry of Justice concerning the precise purpose of the anti-discrimination law results in controversial wording of the proposed law
Shortly after Moldova was handed the Visa Liberalization Plan, the Moldovan Ministry of Justice drafted a proposal for a new law on preventing and combating discrimination. However, there seems to have been some confusion within the Ministry of Justice about the exact purpose of the proposed law. It appears that multiple objectives were being pursued through the elaboration of the anti-discrimination law, such as the adoption of EU acquits, satisfying the requirements of the visa liberalization plan and bringing together already existing provisions for anti-discrimination in the national legislation into a single piece of legislation. The rather broad and vague declared purpose of the law reveals some confusion within the Ministry of Justice itself as to what the precise intention of this legislative proposal was. Was it the implementation of the 2000 EU directives? Consolidating the existing national anti-discrimination legislation? Implementing measures in order to meet the requirements in the Visa Liberalization Action plan?
The fact that the exact purpose and objective of the legislation have not been clearly expressed has created a lot of confusion. The result is a controversial law proposal on preventing and combating discrimination that one can argue goes much further than provisions within existing EU legislation and, most importantly, does not offer sufficient protection for the right of freedom of expression, freedom of conscience and freedom of religion. Therefore, the proposed law, in some ways, goes both too far and not far enough.
Why is the proposed law on preventing and combating discrimination problematic?
The proposed law is problematic because some of the provisions within the text of the proposed legislation are worded in a way that provides opportunities for infringement upon freedom of conscience, freedom of expression, in particular that of religious institutions and organizations.
Article 1 of the proposed legislation lists a number of grounds of discrimination without offering any reasonable exemptions for particular cases anywhere in the remainder of the legislative text for any of the listed grounds of discrimination. This could easily lead to a clash of rights in a number of situations and is also inconsistent with the texts of the EU directives. As mentioned earlier in the article, the only adopted EU directives on equal treatment are Council Directive 2000/43/EC of 29 June 2000, implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation that aims to combat discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation. In order to ensure that churches and religious organizations retain the right to employ people who are well suited for working in religious institutions, this directive contains a religious ethos exemption, which is missing from the Moldovan law.
Article 2: the definitions of the terms concerning discrimination are vaguely worded and leave a lot of room for subjective interpretation, in particular the definition of harassment, indirect discrimination, instigation/instruction to discriminate, victimization and positive action. The definition of instigation to discrimination could be interpreted in a way that undermines freedom of conscience and expression and is unnecessary within the law as it is not included in any of the adopted EU equal treatment directives. The definition of indirect discrimination is also problematic and incomplete. In the two mentioned EU directives, there is an exception to the application of indirect discrimination for cases when the practices can be objectively justified; the proposed Moldovan bill contains no such exception. The definition of positive action can also be potentially problematic because it goes far beyond the provisions of the two directives and it has an unclear meaning which may lead to actions that encroach upon freedom of conscience.
Article 4, in particular 4.b and 4.c can potentially lead to actions undermining freedom of expression because it tries to define serious forms of discrimination with amongst others: promoting/supporting discrimination through mass media (4b) and placing discriminatory messages and symbols in public spaces (4c).
Article 8 covers anti-discrimination measures in the area of employment. Although it is taken almost word for word from the 2000/78 directive is does not include the special religious ethos exemption from the directive, only a general, vaguely worded exemption. Therefore it is an incomplete implementation of the provisions in the 2000/78 directive. It is easy to imagine what the consequences of this can be.
Article 10 on non-discrimination in the provision of public goods and services lists a number of so-called “public goods” that makes it unclear what ‘public goods and services’ actually refers to. Moreover it has no exact correspondence in the two directives which in fact do not cover provision of goods and services. Article 10 is seems to be based on a not-adopted general equal treatment directive that focuses on provision of goods and services. This general directive never has been accepted by the EU because it is controversial and a similar legislative attempt recently failed in Austria.
Article 11 on prohibition of discrimination in the sphere of education is not based on any of the provisions in the EU directives and therefore its presence is not necessary within a piece of legislation aiming to implement EU directives. Article 11.f on cooperation with NGOs in formulating non-discrimination educational programs in school is alarming. Article 11.2 is also particularly worrying because this provision would prevent educational institutions from imposing restrictions in admission criteria in all situations, without the safeguard of exceptions for specific cases or situations. In the informative Note from the Moldovan Ministry of Justice, the presence of this article is explained as being an implementation of the provisions of the UNESCO non-discrimination in education Convention. However, this article goes further than the provisions in the Convention which actually ensure exemptions for religious schools.
Article 13 concerning the special Council for preventing and combating discrimination is of concern. The EU directives provide for such a body only for discrimination on the grounds of race and ethnic origin. It may prove problematic for the activity of this council to be extended to other areas as well and it is not necessary under the current EU directives. Moreover, this Council receives a lot of power under the provisions of Article 14 or the proposed law, including that of applying sanctions (Art. 14k) which does not exist as a provision either in Moldovan or EU legislation. It is unclear what the purpose of such a Council would be and whether its power and attributes are consistent with democratic processes.
Article 23 provides guidelines for the application of the burden of proof. This article places the burden of proof on the accused rather than the plaintiff. Although this seems unfair, this article is present in the EU directives and therefore is difficult to argue against. However it is worth mentioning that in 2006 Romania amended its anti-discrimination legislation to introduce the concept of ‘sharing the burden of proof’ thus making it a little more fair.
Reactions and debates
There are a number of aspects concerning the wording of the proposed law, therefore, that have created strong reactions and that are quite controversial due to the fact that they may have serious consequences for the protection of the fundamental rights of the freedom of expression, conscience and religion.. Consequenlty, the proposal caused a lot of negative reactions in Moldovan society. However, strong criticisms towards the law were also fueled by a lack of knowledge and understanding about the content of the law and its purpose. This was due to a series of miscommunications and the excessively broad purpose of the law which created confusion and suspicion.
On the one hand, a large part of the debate over the proposed piece of legislation focused on attacking the law because it was considered a means of promoting gay rights. As a result, an attack against the proposed law began to be seen by some as a battle against homosexuals, which further complicated things by creating a situation in which all who were against this law were seen as homophobic. This, however, has distracted attention from the real problem of the legislation which is that it does not offer adequate protection to freedom of thought, conscience and religion! The project was sent back by the Parliamentarians to the Government who are reviewing it at the moment.
On the other hand we see that a great deal of the debate over this law has been focused on the idea that the law is necessary in order to implement the EU’s requirements for visa liberalization. However, the Ministry of Justice has not stated this in any official document. Such a statement could be confronted with the reality of the fact that it would be unreasonable for the EU to expect Moldova to adopt measures within its legislation that are not part of EU aquis. The impression that the proposed law is necessary in order to implement the EU’s requirement for visa liberalization has unfortunately been strengthened by the declarations of Monica Macovei, Romanian Member of Parliament and Chair of the European Parliamentarian Delegation for Moldova and the EU Representative Dirk Schuebel.
International reactions interfering in the democratic debate and discussions about this law
It is perhaps not surprising that representatives of the European Union became involved in influencing the debate concerning the proposed law and thus intentionally or not interfered in the legislating process. Monica Macovei, Romanian Member of the European Parliament and Chair of the Parliamentarian Delegation for Moldova wrote an open letter to the Members of the Moldovan Parliament on 22 March 2011. She begins by congratulating the Moldovan government for this legislative proposal on preventing and combating discrimination and then swiftly moves onto elaborating on why including sexual orientation amongst the anti-discrimination criteria is not negotiable from the EU’s point of view. She bases her arguments on the requirements of article 21 from the EU Charter of Fundamental Rights and the 2000/78/EC Directive. After mentioning a number of conventions that Moldova needs to consider, without much explanation of what this involves, she concludes her letter with: “Equality and combating discrimination are fundamental values of the European Union. I salute the efforts of the Republic of Moldova to combat discrimination and to integrate the laws and values of the European Union.”
It is interesting to note that Monica Macovei gave incomplete information regarding what adhering to EU principles means. The focus of her letter was on arguing only for the legitimacy of including one of the several criteria of non-discrimination contained in EU aquis, namely sexual orientation. She mentions that sexual orientation is a protected ground in the European Directive 2000/78/EC but fails to point out that this directive includes a very important exemption for religious ethos in employment, specifically included in the directive to protect freedom of conscience and religion and completely missing from the proposed Moldovan law. Furthermore, on top of the intentional or unintentional omission of mention of the article on religious ethos exemption, she criticizes the one significant exemption that does exist in the text of the Moldovan law, namely that in article 7(3). According to this article,“It shall not be considered discrimination when constraining a right is justified by objective reasons and is for a legitimate purpose and the means of achieving this purpose are proportionate, adequate and necessary in a democratic process”. Moreover, Mrs Macovei’s argument on the EU Charter of Fundamental Rights (ECFR) being at the basis of offering protection from discrimination on grounds of sexual orientation is incomplete. Firstly, the Charter of Fundamental rights has not been adhered to by all member states. Poland and the UK, for example, have negotiated an opt out from the Charter. In its negotiations with the EU, Macedonia has also protested against having to accept the ECFR as part of the Lisbon Treaty because they are afraid this would affect their family policy. It is also interesting to note that the visa obligation for Macedonia was lifted without such a liberal law as that proposed in Moldova . Furthermore, Monica Macovei seems to be very selective in picking which rights from the ECFR she refers to. She used
only Article 21 (where “Sexual orientation” is protected) without mentioning other rights in the same charter like “the freedom of thought, conscience and religion” (Art. 10 of the Charter) or for the “Freedom of Expression and information” (Art. 11 of the Charter).
Another EU official who has been involved in the debate over the proposed andti-discrimination law is EU Representative Dirk Schuebel. In a press conference on 26 May 2011, according to the Moldovan press, he stated the following: “In 2011 the honeymoon is over. Now we have become a couple and we must work together to achieve results”, thus emphasizing that it is time for Moldova to get to work on fulfilling EU requirements. He concluded his statements by referring specifically to the proposed law on preventing and combating discrimination: “The adoption of the anti-discrimination law is a precondition for liberalizing the visa regime. This is a point in the Moldova – EU Action plan. If the proposed anti-discrimination law is not be passed, the requirements of the action plan will not be met”.
This statement has been understood and transmitted by Moldovan press as a clear statement that Moldova has no option but to adopt the law under its initial, controversial form. This is, therefore, clearly a statement made in ignorance of the shortcomings of the legislative proposal. Moreover, one can argue that Mr. Schuebel misuses his authority and that of the European Union.
As we saw, according to the Moldovan Ministry of External Affairs and Integration, the Action Plan was not negotiated, but unilateral handed over to Moldova as a set of criteria. Moreover, the Action Plan did not specifically dictate the form under which anti-discrimination provisions needed to be adopted within Moldova’s law but merely dictated that the principle of anti-discrimination on any grounds needs to be upheld by law. Therefore, should it not be enough if the parliament decides to adapt the law by just following the EU Directives (2000/43) and (2000/78) with the provisions and exemptions that are valid for each member state? Can the EU ask more from a one of its Neighbourhood Policy countries than it does from their own member states as conditions for visa liberalization?
Some international reactions to the legislative proposal in Moldova have been ones of concern on other grounds than those expressed by Monica Macovei and Dirk Schuebel. Concerned about the situation in Moldova, Bas Belder MEP together with Peter van Dalen MEP tabled the following question to the European Commission on 12 July:
“On 16 December 2010, the Council endorsed the Commission’s Action Plan on visa liberalization for the Republic of Moldova, which was presented by the Commission to Moldova in January 2011. The Visa liberalization plan was drafted following an assessment of the possible obstacles to visa-free travel. One of the obstacles identified was ‘external relations issues (including human rights and fundamental freedoms) linked to the movement of persons’. As a result, paragraph 2.4.1 of the Visa liberalization Action Plan addresses this issue and calls for legislation to be reviewed in order to avoid restriction of freedom of movement on a great number of possible grounds of discrimination. Paragraph 2.4.3 of the Visa liberalization Action Plan calls for Moldova to adopt ‘comprehensive anti-discrimination legislation’ in order to ensure citizens rights and protection of minorities.
Following this recommendation of the Action Plan, Moldova drafted an anti-discrimination law based on the 2000/78 Equal treatment in employment Council Directive and the 2000/43 Directive on equal treatment irrespective of racial or ethnic origin. However, the proposed law goes far beyond these two directives, for example by including a greater number of grounds of discrimination but without offering any specific provisions for exemptions designed to protect freedom of conscience or religious ethos, as those included in the 2000/78 Directive. National NGOs in Moldova expressed their concern that the proposed law does not offer sufficient safeguards for the protection of freedom of conscience and expression due to the lack of adequate safeguards and exemptions within the text of the law. The EU representative to the Rep. of Moldova, Mr. Schuebel, during a press conference on this piece of proposed legislation made statements suggesting Moldova may need to adopt the proposed law under its current form in order to achieve visa liberalization. These statements reinforced earlier affirmations of the same nature made by an MEP in an interview.
Is it reasonable of the Commission to expect Moldova to fulfil the conditions of the Visa liberalization plan by adopting anti-discrimination legislation that goes far beyond the requirements of the EU acquis?”
The situation concerning the proposed law on preventing and combating discrimination is alarming due to a combination of factors. Due to the confusion within the Moldovan Ministry of Justice concerning the purpose of the legislation, the inclusion within the visa liberalization plan of requirements based on different international instruments and with the omission of crucial exceptions, the law became quite controversial and potentially a real danger to the fundamental freedoms of conscience, speech and religion.
Permitting the anti-discrimination law, as it is worded at the moment, to be associated with visa liberalization would create a bad precedent for other countries that are part of the Neighborhood Policy. Moldova and Ukraine’s Action Plans for visa liberalization both contain the paragraph on ensuring non-discrimination on any grounds as a means of facilitating free movement., These action plans are to be used as a model for future action plans for visa liberalization in other European Neighborhood Policy Countries. Consequently, it is imperative that we do not allow the implementation of the principle of facilitating free movement by combating discrimination must to be associated with the implementation of unnecessarily liberal anti-discrimination legislation.
Let us hope that the Moldovan parliament will be wise in their decisions and push the Ministry of Justice to adapt the law with provisions that are limited to requirements of the EU directives so that the law on preventing and combating discrimination will not become a law that will prevent and combat also basic fundamental freedoms in the Moldovan society. Our hope, therefore, is that the political Alliance for European Integration will be strong enough to resist the pressure of certain EU diplomats and that they will strive for the integration of Moldova in the EU with dignity and with respect for their own rights as a sovereign European country.
 Unauthorised translation of extract from letter Nr. IE 20-1-1/7128 “12” 05 2011, received from the Ministry of Foreign Affairs and European Integration of the Republic of Moldova, the European Integration Department.
 Ibidem, point 2.4.3
 It should be noted that the adoption of the various Council of Europe instruments (with the exception of the founding Convention) is at the discretion of the Member States and action to implement them only becomes mandatory for any European nation once it has ratified a particular instrument.
 The pursuit of multiple objectives through the drafting of the anti-discrimination law is clearly illustrated by statements and documents concerning the proposed law.
Mr. Alexandru Tanase explained in different television interviews (amongst others the Publika Report show on 7 March) that the proposed law is an instrument that allows for the prevention of any kind of discrimination on Moldovan territory, in particular in the field of employment” Further he stated that “although there are other laws in Moldova that contain anti-discrimination provisions, the proposed law is necessary because it brings these provisions together under one piece of legislation. The law then should “serve to adapt the Moldovan legislation to existing international norms on anti-discrimination, in particular EU legislation”. At the round table discussions that the ECPM organized 26 May 2011 in Chisinau on the Anti-discrimination law: problems and solutions with experts of “Care for Europe” and “the Alliance Defense Fund”, the representatives of the Moldovan Ministry of Justice explained that the purpose of the new legislation was to bring together aspects of non-discrimination already existing in different pieces of Moldovan legislation under one law; to introduce the concept of a body that oversees implementation of anti-discrimination measures into the Moldovan legislation and to adopt EU aquis into Moldovan legislation. The informative note that accompanied the legislative proposal (which can be downloaded from the following site: http://nediscriminare.md/index.php?module=docs&type=nat) also gave several reasons for the proposal of the anti-discrimination law. Among these, the strengthening and consolidating the existing legal norms on anti-discrimination in Moldova’s law and adjusting Moldovan legislation to international norms such as EU legislation, ECHR, the Universal Declaration of Human Rights etc. In the preamble of the proposed law the declared purpose is enabling the implementation of the 2000/43 and 2000/78 EU directives.
 See http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0043:en:HTML
 See http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0078:en:HTML
 Unauthorised English translation of letter in Romanian written 22 March, 2011, Brussels by Monica Luisa Macovei, MEP to the members of the Moldovan Parliament.
 See article 4.2 of the Council Directive 2000/78/EC (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0078:en:HTML)
 See also Leo van Doesburg’s article on Macedonia and the European Union: Between identity and integration http://www.christianpoliticsportal.org/k/n22654/news/view/434398/383320/Macedonia-and-the-European-Union-Between-Integration-and-Identity.html
 Which is also seen as an Ambassador for the European Union
 See Jurnal TV recording of the 26 May 2011 press conference with Mr. Schuebel on http://www.jurnaltv.md/ro/news/luna-de-miere-s-a-incheiat-260440/#
 as Member of the European Parliament he is member of the Commission of External Affairs and part of the EFD European Parliamentarian Group
 as Member of European Parliament, he is member of the ECR European Parliamentarian Group
 Unauthorised English translation of the Question submitted to the Commission on 12 July in Dutch. The question has not yet published on the European Parliament website. The original text of the question in Dutch can be downloaded from: http://www.petervandalen.eu/k/n7637/news/view/487590/116990/EU-moet-Moldavi-geen-libertijnse-agenda-opdringen.html
 Paragraph 2.4