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Parliamentary Imunodeficitar Syndrome
Sergiu Grosu, October 25, 2005
The Communist majority faction, with the votes of 54 lawmakers, gave green light on October 13 to requests of prosecutor-general to try a group of deputies who represent the opposition faction of the Alliance Our Moldova (AMN), including leader Serafim Urechean, under Penal Code.
The voting was preceded by a plenary sitting with arden debates, with prosecutor-general being in situation of his clients and invoking the so-called "secret of investigation" more than once, when he was questioned in details. Also before voting, the majority faction of the Party of Moldovan Communists (PCRM) was left alone and all other parliamentary political parties publicly refused to cast their votes, a situation which was not registered in the parliament after March 6, 2005, when the acting governmental team received the trust vote of only 56 Communist lawmakers. The opposition representatives, except for AMN, unanimously recommended their accused colleagues "to openly go to the court in order to demonstrate their innocence there," rather than justified their actions.
The talks in the parliament outlined juridical aspects of mandate of lawmakers besides political problems, raising talks on immunities and inviolabilities awarded to deputies and other categories of public functionaries. On this occasion, some lawmakers recalled the idea to annul or to essentially limit the parliamentary immunity, while others invited colleagues to forget the slogans from electoral campaigns and to cooperate for deeper and better guarantees needed for promotion of political pluralism, by revising the legislation on functioning of prosecutor's office and courts.
We remind in the context that there were many tries at the precedent session of the parliament to promote the candidacy of Serafim Urechean to the Moldovan delegation to the Parliamentary Assembly of the Council of Europe (PACE), tries generated by tactical reasons and probably by fact that the status of lawmaker who is a PACE member awards international immunity that can be limited more hardly than the national immunity. Perhaps the failure of these tries and political developments at local level made the AMN leader say that he refuses the parliamentary immunity and complies with procedures of law enforcement bodies aimed to demonstrate his illegal actions.
This is a political statement without any juridical nature, since the immunity is a public law category in the modern constitutional acceptation, an imperative of mandate of parliamentarian, not a personal privilege which can be refused for a period. The immunity is effective throughout mandate of lawmaker and if the immunity is ceded, the mandate of deputy is given up, too, and there are many examples in this regard, even in neighboring countries.
This statement is effective for these cases despite of the fact that constitutional norms of Articles 70-71 protect lawmakers above all from persecutions against votes or opinions expressed during mandate, while the penal investigation vs. AMN representatives started before they have obtained the mandates of parliamentarians. It is important to mention here the mode of activity of prosecutor's office bodies which understand the "reasonable terms" of the Code of Penal Procedure in a special manner. Thus, the delivery of the case filed in late 2004 for "one illegal action" to the court was preceded by parliamentary elections, and the defendants received immunity then; by election of the chief of state, investiture of the cabinet of ministers, and resignation of Serafim Urechean from the post of mayor general of the Chisinau municipality.
These events altogether make the impression of some political pressures on AMN, and an ad-hoc TV survey carried out within a programme with the participation of Serafim Urechean confirmed this fact. This impression can be also based on withdrawal of immunity from AMN parliamentarians. The majority parliamentary faction took this action after the failed try to elect a new mayor of Chisinau last summer and before the new mayoral elections scheduled for late November.
Meanwhile, a series of not very good events for the Moldovan authorities took place: the European Court of Human Rights (ECHR) sentenced Moldova in case of another functionary of the Chisinau City Hall for holding him contrary to international legislation and norms; the PACE has recently passed a resolution on functioning of democratic institutions in Moldova, with a series of serious recommendations. The issue regarding examination of requests of the prosecutor-general seeking the trying of some lawmakers under Penal Code was included in agenda of the parliament as exception and with derogations from regulations in the area, with only two days after appearance of the PACE Resolution.
The normal question appearing here is why does the parliamentary majority need such talks and conflicts with political opponents from the so-called "active opposition" namely now? Why does it take such steps when the "national political consensus" seems to function, when European institutions and namely PACE salutes the accomplishments within this consensus, when PACE urges the Moldovan authorities to review regularities and provisions of the status of lawmaker which allow the loss of immunity for political reasons, as well as to reexamine the reasons of penal investigation vs. opposition leaders? More than that, the governance representatives know very well that European institutions pay an increased attention to aspects related to immunity of parliamentarians in monitored countries, and these institutions had earlier demanded explanations from the Chisinau authorities regarding the respect for democratic principles in the area.
The answer seems to be clear. First, the started work must be finished; this way the political and selective nature of penal investigation is recognised. Second, the recent PACE report on functioning of democratic institutions in Moldova indicates the independence of justice and its institutions, corruption among big problems. The withdrawal of immunity from AMN lawmakers may be regarded through this viewpoint, and authorities may say that they fight against corruption this way. However, the final can be different, depending on quality of evidence collected by prosecutor's office in the case vs. Serafim Urechean. If the accusation is weak and its evidence envisages only the single episode related to purchase of ambulances, the court may award victory to the former mayor-general, the justice would triumph and government would get through this situation by invoking eventually the fact that the Moldovan justice has tested its independence while the prosecutor's office must be reformed the way the "constructive opposition" demands.
However, the questions mentioned above may also comprise other components of the answer - the next PACE resolution on Moldova could appear after half a year and it is unknown how the majority and "constructive opposition" will cooperate then, especially when the last clauses of the April 4, 2005 agreement will be fulfilled the next several months (while the civil law rule says that "the sides return to the previous situation when the contract expires"). Respectively, the ruling party could be interested to return to the situation registered before April 4 but under new circumstances, when the two oppositions hate and accuse each other, while the leader of the "active opposition" is harassed, and this thing is nothing but a reproach against "constructive opposition", which failed a satisfactory result for an adequate treatment from law enforcement bodies for an opposition leader within the understanding with opposition, not only for those who hold an agreement with the governance.
As regards the relations between the two oppositions and their capacity of self-defense, it is worth to mention that leaders of the Christian Democratic People's Party (PPCD) knew how to resist to assaults on their immunity in the precedent legislature. The seven decisions of the parliament concerning the preliminary consent for trying on penal or conventional cause in 2001-2004 had no effects on viability of this political force. It is true that they had to handle a different situation, as the prosecutor's office filed the cases when they were lawmakers, so that it was easier to demonstrate the connection between votes and opinions and persecution. Anyway, the PPCD demonstrated that it does not suffer from parliamentary AIDS. AMN should demonstrate soon that it has enough forces to protect its immunity.
However, games with giving up parliamentary immunity must stop. It is well-known that there are tendencies to limit the immunity in countries with authentic democratic regimes, especially of parliamentary immunity, since inviolability often leads to irresponsibility. Limitation or annulment of immunity may have grave effects in countries which are part of the so-called "new democracies", where the lack of an independent and strongly consolidated juridical system is visible. Even more, common citizens may have a favorable perception of reduction of parliamentary immunity, so that it would be very hard to stop this process once it starts.