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Results of Presidential Election, Confirmed by the Constitutional Court of Moldova
On 13 December 2016, the Constitutional Court of Moldova adopted a Judgment on confirming the election results and validation of the mandate of the President of Moldova.
Circumstances of the case
The case originated in the application submitted to the Constitutional Court of Moldova, on 21 November 2016, by the Central Electoral Commission on confirming the election results and validation of the mandate of the President of Moldova, under Article 135.1.e of the Constitution.
On 13 December 2016, the candidate Maia Sandu had lodged a complaint with the Constitutional Court, challenging the Decision of the Central Electoral Commission on totalling the election results for the office of President of Moldova, asking the Court to find electoral fraud and to cancel the second round of election.
The plenary of the Court heard the submission of the application by Ms Alina Russu and Mr Veaceslav Agrigoroaie - the Chairperson and respectively the Secretary of the Central Electoral Commission. Submissions before the Court also had the representatives of electoral competitors: on behalf of the candidate Igor Dodon - Mr Vladimir Ţurcan, Mr Vasile Bolea and Mr Vadim Filipov; and on behalf of the candidate Maia Sandu - Mr Sergiu Litvinenco.
The application has been examined by the Constitutional Court of Moldova in the following composition:
Mr Alexandru TĂNASE, President,
Mr Aurel BĂIEŞU,
Mr Igor DOLEA,
Mr Victor POPA,
Mr Veaceslav ZAPOROJAN, judges
Conclusions of the Court
I. Confirmation of election results
1. Results aggregated by the Central Electoral Commission
The Court noted that by Decisions nos. 571 and 572 of 18 November 2016, the Central Electoral Commission approved the minutes on totalling the results of the second round of presidential election of Moldova on 13 November 2016 and the report on the election results for the office of President of Moldova of 30 October 2016.
As a result of votes' aggregation, the Central Electoral Commission found that the greatest number of votes in the second round of election was scored by the candidate Igor Dodon, which is why he was declared as elected for the office of President of Moldova.
On 13 November 2016, complaints were lodged with the electoral offices overseas on the failure to cast ballots by 1434 citizens individually, and 2597 signatures were submitted in joint complaints.
2. Electoral complaint on cancelling the second round of election of 13 November 2016
At the public sitting of the Court on 13 December 2016, the candidate Maia Sandu lodged a complaint asking for the second round of election to be cancelled. In her reasoning, there were brought forward the following alleged violations:
a) voting rights suppression of citizens domiciled outside the country, caused by the lack of voting ballots and poor conduct of the voting process by public authorities;
b) organised transportation and corrupting of voters from the left bank of Nistru river;
c) involvement of representatives of the Orthodox Church of Moldova in the electoral campaign;
d) multiple voting;
e) defamatory publications spread by representatives of the opposing electoral candidate, Igor Dodon;
f) media outlets favouring the opposing electoral candidate.
3. On the competences of the Constitutional Court of Moldova
The Court notes that under Articles 135.1.e of the Constitution and 111 of the Electoral Code, examining the files submitted by the Central Electoral Commission, final judgments of law-courts and the complaint lodged with the Constitutional Court, it will rule whether the elections were in line with constitutional provisions and with universal principles of democratic elections and it will assess whether the infringements found had an influence on their final results.
Additionally, the Court will take into consideration the conclusions of the following national and international observers:
The Court noted that under Article 115 of the Electoral Code, in the event there is found that during the elections and/or when counting the votes there were infringed provisions of this Code that would influence the election results, the elections may be declared null.
The Court recalled its caselaw where it mentioned that when an electoral campaign is prone to certain irregularities, although the validity of elections depends on their amplitude found by state authorities (Judgment no. 29 of 9 December 2014 on confirming the election results of the Parliament of Moldova of 30 November 2014 and the validation of the elected MPs' mandates).
In the same context, the Court reiterated the conditions rendering the election results invalid:
1) an election may only be annulled in case the voting and results' determination were defrauded;
2) not any fraud of the electoral process may amount to defrauding elections, but only the fraud that may influence the election results;
3) the request for elections annulment shall be reasoned with sufficient supporting evidence.
All these conditions shall be met cumulatively.
4. On the examination of complaints on the organisation and conduct of elections
The Court noted that under legal provisions, electoral authorities are granted, in particular, the competence to ensure the exercise of the voting rights of citizens, the manner of drafting electoral lists, registration of the candidates, the equality of all the candidates, the proper monitoring of the manner the rules pertaining to the electoral campaign and results [determination - TN] are observed. At the same time, monitoring the way elections are covered by the broadcasters, ensuring that the principles of fairness, accountability, balance and impartiality are observed falls under the competence of the Broadcasting Council of Moldova, and the complaints against the written media are examined by the courts of law.
Decisions of the electoral and other authorities in the field may be challenged before the courts of law as administrative cases. Therefore, the legality of the issued acts by these authorities and/or their omissions may be subject to judicial review, upon the request of stakeholders.
The Court also recalled that any final and irrevocable judicial decision on the legality of acts issued by these authorities is res judicata and must be observed accordingly. Hence, the Court may not rule on the accuracy of the evidence administered in judiciary, involving as subject-matter the legality of electoral authorities' acts. To proceed as such would mean to substitute State authorities - which have their competences provided in the law - by the Constitutional Court.
The Court has been granted the power to annul the elections, in case violations are found by law-courts during elections, that were such as to influence the election results.
In this context, the Court noted that both the electoral authorities and law-courts dismissed a great number of complaints as falling out of their competences.
Particularly, the Court observed that on 13 November 2016, notifications, complaints, and requests were lodged with electoral offices outside the country on the right to vote, by 1434 citizens individually, and 2597 signatures in joint complaints. The Central Electoral Commission, instead of solving the issue concerning the finding of violations or lack thereof, had declined its competence erroneously, stating that the competent authority to decide on the legality of the process of conducting presidential elections is the Constitutional Court, and that the latter is to assess the consequences of the allegations on the totalling of voting results.
On the other hand, the Court mentioned that, in order to assess the impact on presidential election, one shall be operated with reliable evidence, found by the authorities.
Likewise, in cases filed by the candidate Maia Sandu on electoral violations, the law-courts ceased the proceedings, initially by the Decision of 25 November 2016 of the Court of Appeal of Chișinău, which was upheld by the Decision of 30 November 2016 of the Supreme Court of Justice. In reasoning their rulings, both the Court of Appeal of Chișinău and the Supreme Court of Justice held that under Art. 67.3 of the Electoral Code complaints lodged with the law-courts on the election day are examined in the same day. According to the ordinary law-courts, the Electoral Code does not provide expressly that following the election day of Parliament or President of Moldova, the law-courts are competent to examine complaints of people who enjoy the right to vote or complaints of electoral candidates.
According to the law-courts, the legality review of the elections of Parliament and of the President of Moldova is the exclusive competence of the Constitutional Court within the procedure of confirming the election results and validation of mandates, and that the administrative court is not competent to rule on issues of illegality of the elections of 30 October 2016 and 13 November 2016, alleged by Maia Sandu in the complaint lodged on 21 November 2016.
The Court noted that this points to a poor understanding by stakeholders of the process of resolving electoral disputes. This finding is also confirmed by conclusions of international observers.
Moreover, the failure to examine the electoral complaints by the competent authorities renders it impossible for the Constitutional Court to consider them, i.e. in line with Article 4.3 of the Code of Constitutional Jurisdiction, the Constitutional Court examines exclusively legal matters, not actual circumstances. The Constitutional Court does not have the necessary procedural instruments in order for the evidence to be administered, for the witnesses to be heard etc. These legal possibilities only exist in ordinary law-courts. Stemming from the legal provisions in force, there explicitly results that all the complaints on electoral violations are to be solved exclusively by law-courts, as this does not fall within the competence of the Constitutional Court.
In this context, the Court recalled that a norm shall be construed in that it would allow for its application, not in the meaning that its application is excluded. The Court underscored that its field of competence is provided by the Constitution and by the Law on the Constitutional Court and cannot be modified by the caselaw of the ordinary law-courts.
Therefore, the rules inherent to such an exercise, when lacking express regulation, shall be construed from the legal text, too, applying the principle of "minimum practical effect."
In this regard, neither electoral authorities, nor the law-courts had to decline their competence, but to examine the violations complained of in the election day. Or, if they are competent to examine violations during the electoral campaign, they are a fortiori competent to examine violations from the voting day. It is exactly this category of violations that may prove particularly pertinent in the process of confirming/annulling the election results.
For these reasons, the Court held that due to the poor application of the law by the ordinary law-courts, electoral actors were in fact deprived of an efficient judicial review, hence this rendered it impossible for the Constitutional Court to operate with acts finding violations. Therefore, the Court issued an Address to the Parliament (1), aiming at clarifying the law relating to the examination of complaints on the organisation and conduct of elections. In particular, the Court recommended to the Parliament a separate and explicit regulation on the examination procedure of the complaints for various types of elections. In this respect, the Court asked the Parliament to regulate differentiated the procedures of examining the complaints in the event there is a second round of elections, including the complaints from the voting day.
5. On the alleged violations regarding the annulment of elections
a) Voting rights suppression of citizens domiciled outside the country, through non-provision of voting ballots and poor organisation of the voting process by the public authorities.
The Court noted the right to vote is a relative and not an absolute right. Therefore, the exercise of the right to vote may be subjected to certain implicit limitations, and the states enjoy a wide margin of discretion in this regard. Thus the exercise of the right to vote shall take place under the law.
The Court recalled that in its caselaw it has emphasised that the Parliament, as the supreme representative body of the people of Moldova and the sole legislative authority of the State, under the exclusive competence attributed by the Constitution, is empowered to regulate the electoral system by an organic law.
The Court noted that the equality of the vote does not mean the compulsoriness of the exercise thereof under identical conditions both within the country and outside its borders, due to the fact that its citizens are under different legal situations.
In the same context, the European Convention does not secure the right of the citizens of a Member State to vote outside the borders of their country. The Code of Good Practice in Electoral Matters of 2002 of the Venice Commission provides that the condition of residence may influence the exercise of the right to vote. Moreover, The Code of Good Practices establishes that the right to vote and to be elected may be accorded to citizens domiciled abroad.
Thus, according to the caselaw of the European Court, having to satisfy a residence or length-of-residence requirement in order to enjoy or exercise the right to vote in elections is not, in principle, an arbitrary restriction of the right to vote and is therefore not incompatible with Article 3 of Protocol No. 1 (Decision Hilbe v. Liechtenstein, no. 31981/96, ECHR 1999-VI, Decision Doyle v. United Kingdom of 6 February 2007).
In view of the European Court a restriction on the voting rights based on the criterion of residence might be justified for several reasons:
- firstly, the presumption that non-resident citizens are less directly or less continually concerned with their country's day-to-day problems and have less knowledge of them;
- secondly, the fact that non-resident citizens have less influence on the selection of candidates or on the formulation of their electoral programmes;
- thirdly, the close connection between the right to vote in parliamentary elections and the fact of being directly affected by the acts of the political bodies so elected; and,
- fourthly, the legitimate concern the legislature may have to limit the influence of citizens living abroad in elections on issues which, while admittedly fundamental, primarily affect persons living in the country (see mutatis mutandis, judgment Sitaropoulos And Giakoumopoulos v. Greece of 15 March 2012, § 69).
The Court noted that the legal framework of Moldova permits expatriate voting. However, this voting procedure cannot take place under any conditions, but it has to comply with legal provisions.
In the present case, the applicant has challenged, in essence, the fact that the citizens of Moldova living abroad were deprived of exercising their right to vote and that the number of polling stations and of voting ballots distributed to the polling stations situated abroad in fact were insufficient, thus leading to the conclusion that the voting procedure was defrauded such as to modify the assignment of the mandate of the President.
- Small number of polling stations opened abroad
Regarding the allegations concerning the presence of a number of 500 000 citizens residing abroad that were unable to vote due to the small number of polling stations opened abroad, The Court noted that according to Art. 29/1 para.(5) of the Electoral Code „Peculiarities concerning the organisation and operation of electoral offices of the polling stations from abroad shall be regulated by the Central Electoral Commission, in coordination with the Ministry of Foreign Affairs and European Integration, and the costs related to the establishment and functioning of these offices shall be covered by the budgetary means allocated for elections/referendum. The costs related to the functioning of polling stations established abroad shall be preliminarily estimated by the Government and the Central Electoral Commission; however, in case these financial resources have not been provided in the budget allocated for elections/referendum, they shall be allocated from the Government Reserve Fund."
With a view to fulfil this legal obligation, the Government adopted the Government Decision no. 1080 of 26 September 2016 „On the organisation of polling stations abroad", which was published in the Official Journal of Moldova no. 337 of 27 September 2016, whereby it approved the establishment of 100 polling stations abroad, aimed at organising and conducting the elections of the President of Moldova in 2016, with 5 polling stations more as compared to previous elections. For instance, the Court noted that there were opened 25 polling stations in Italy, 11 in Romania, 8 in the Russian Federation, 7 in the United States of America, 6 in France, 4 in Portugal.
The Court recalled that by its Decision no. 11 of 18 November 2014 on the inadmissibility of the complaint on the control of constitutionality of the Government Decision no. 872 of 20 October 2014 „On the organisation of polling stations abroad," the Court mentioned that establishing the number of polling stations abroad is an issue related to the competence of authorities empowered to organise and conduct elections, due to the fact that these bodies have a better understanding in appreciating the possibilities and practical needs in the process of organising the expatriate vote.
The Court noted that, according to para. 16 of the Regulation on the preliminary registration, approved by the Decision of the Central Electoral Commission no. 2547 of 21 May 2014, the period of preliminary registration of the citizens of Moldova with voting rights who will be abroad on the election day, started on 10 May 2016 and lasted until 19 September 2016 (more than 4 months).
According to the information presented by the Central Electoral Commission, until 20 September 2016 a number of 3570 citizens of Moldova had preliminarily registered while abroad and with voting rights, with a view to participate in elections. This information, along with the data relating to the number of persons that have participated in the Parliamentary Elections of 30 November 2014 (totally 73.311) were communicated to the Government.
Given the number of polling stations abroad and the localities where these stations were opened, the conclusion is that these polling stations were opened for the electors residing abroad on the election day, both within the diplomatic missions and consular offices of Moldova, as well as in other localities than those where the diplomatic missions and consular offices are situated, according to Article 29/1 para.(1) and (3) of the Electoral Code, which demonstrates that public authorities have made additional efforts in this regard.
The Court noted that the electoral candidate Maia Sandu failed to appeal the Government Decision, nor the Decision of CEC [Central Electoral Commission - TN] on the organisation of polling stations abroad, and due to this fact this complaint is considered late. Moreover, Mrs Sandu had failed to appeal the results of the first round of elections which took place under the same conditions as the second round.
Taking into account the aforementioned, the Court noted that it is not the role of the Constitutional Court, nor its competence to give an appreciation on whether it was necessary to open a greater or a smaller number of polling stations abroad, whether these stations had to be spread territorially in a different manner or whether it was necessary to take other organisational measures. This competence is attributed exclusively to the Government, implicitly by the Ministry of Foreign Affairs and European Integration, while the Constitutional Court is competent only in ascertaining whether by the manner of organising the elections, there was or was not violated the essence of the right to vote or the of the right to be elected; however, there were observed no elements of this aspect in the present case.
Nevertheless, taking into account the number of citizens residing abroad have not managed to vote, the Court adopted an Address to the Parliament (2) in order to modify the mechanism of the expatriate voting, as well as in order to provide additional criteria for the calculation of the number and geographic distribution of polling sections abroad.
- Reduced number of ballots
Referring to the critics related to the reduced number of ballots provided for the polling stations abroad, the Court mentioned that, according to Art. 29 para.(2) of the Electoral Code, "The polling stations [...] shall have no less than 30 and no more than 3000 voters." Similarly, according to Art. 49 para.(3) of the Electoral Code, "The Central Electoral Commission shall send the ballots to the election offices of the polling stations opened outside the borders of the Republic of Moldova [...] based on the estimated number of voters provided both by the Ministry of Foreign Affairs and European Integration and by the Central Electoral Commission, but not more than 3000 of ballots for each polling station."
Having analysed the previously mentioned legal provisions in light of the factual situation presented by the complainant regarding the voting process that took place abroad, the Court mentioned the following.
According to the information presented by the Central Electoral Commission, the Court noted that there were distributed 270.350 ballots in the first round and 288.850 ballots in the second round of elections in the polling stations situated abroad (which represents a number that is four times bigger than the number of votes cast during the previous elections in 2014).
Given these circumstances the Court noted that the number of these ballots, even though at first seems relatively small as compared to the number of polling stations, in fact corresponds to the estimations provided by the Ministry of Foreign Affairs and European Integration based on the statistical data following the real situation registered during the previous cycles of elections.
For instance, related to this, the Court noted that during the first round of elections of the President of Moldova on 30 October 2016 within the polling stations abroad a number of 67.205 citizens voted, while in the second round that took place on 13 November 2016 a number of 138.720 citizens voted. Moreover, the Court noted that the total number of ballots is not just equally split among the polling stations, but depending on the appreciation of the Ministry of Foreign Affairs and European Integration, there being taken into account as stated above the actual situation during previous elections (73.311 votes cast abroad during the parliamentary elections of 30 November 2014). Thus, for 95 polling stations out of the total of 100 opened abroad there was printed the maximum number of ballots - 3000 for each polling station, according to the provisions of Art. 49 para.(3) of the Electoral Code. Overall, for the first round the Central Electoral Commission had printed 270.350 ballots to be allocated for expatriate vote, while for the second round the Central Electoral Commission has increased this number to 288.850 ballots.
According to CEC, in 13 polling stations out of total of 100 stations opened abroad the ballots have been exhausted until the closure of the stations in line with regulatory provisions.
The Report submitted by the CEC shows than on 13 November 2016 to the election offices from abroad 1434 citizens have submitted individual complaints referring to the violation of their right to vote, and another number of 2597 citizens signed collective complaints. The same Report states that these complaints had not been resolved by the election bodies, due to the fact that these bodies declined their competence. The Court noted that, surprisingly, the failure by CEC to resolve these complaints has been challenged in the court of law by only 133 persons.
The Court mentioned that, despite the fact that CEC failed to resolve these complaints, in its Report CEC has mentioned:
"The Constitutional Court [...] shall assess the consequences of the allegations on the totalling of voting results."
This text explicitly indicates that CEC admits that the citizens concerned were unable to vote. Therefore, the Court assumed that the aforementioned 4031 citizens who had filed individual and collective complaints on the election day (including 133 citizens who filed in court) were unable to exercise their right to vote and it had assessed the impact of this situation of impossibility to vote in light of the final results of presidential election.
Taking into account that the greatest number of complaints have been submitted by the citizens of Moldova residing in Italy, the Court noted that in this country there were opened 25 polling stations. According to the information presented by the Central Electoral Commission, each polling station received 3000 ballots (overall - 75.000 ballots), while only 51.739 voters participated in the elections. Hence, neither those 75.000 ballots which were allocated have been valued in the polling stations opened in Italy (nor even the ballots from the polling stations situated in the same locality).
In this context the Court held that, according to the authorities, at least in two countries where the number of ballots had been exhausted, Canada and Germany, the opening of polling stations is permitted, under the domestic legislation, only within the diplomatic missions and consular offices.
The Court noted that in Germany there opened two polling stations, in Berlin and in Frankfurt - cities where Moldova has an embassy and a consular office and this number was conditioned by the German legislation.
In Canada, despite the fact that only in Ottawa there is an embassy of Moldova, two polling stations were opened also in Montreal and Toronto, and this number is the maximum allowed under Canadian legislation.
Thus the Court concluded that there are no objective evidences that the public authorities departed from their obligation to act in good faith, as provided by Article 56 of the Constitution.
In conclusion, the Court held that the allegations of the claimant regarding the vote of those "500.000 citizens residing abroad" refer to elements inferring a calculation of probabilities, in absence of any indubitable elements that would indicate the hindering of expression or distortion of the electoral will thereof. As a matter of fact, the request to annul the elections should have been supported by evidences on which it was grounded; the electoral fraud cannot be established solely on various information presented in the media, deductions, probable calculations grounded on assessments of the author of the complaint merely.
Taking into account the difference of 67.488 votes between the two candidates during the second round of elections, the number of 4031 votes that could not have been expressed in the polling stations abroad, even in the situation when these votes had been ascertained by the electoral or judicial authorities, are not such as to influence the final result of elections, all the more that the eventual electoral option of the citizens that were unable to exercise their right to vote cannot in abstracto be attributed exclusively to one single candidate against the other candidate.
However, taking into account that a great number of citizens residing abroad have not succeeded to vote, the Court issued an Address to the Parliament (3) with a view to modify the expatriate voting mechanism and to provide additional criteria for the calculation of the number and geographic distribution of ballots to the polling sections abroad, including the provision of a reserve number of ballots.
b) Organised transportation and alleged corruption of the voters domiciled on the left bank of Nistru river
The Court held that the organised transportation in itself is not an electoral violation, unless it is proved that undue pressure was exercised in order to influence the electoral option. For that matter, the organised transportation was attested also in the diaspora, without involving in this case the allegations of "electoral tourism."
The Court also held that, in order to guarantee the right to vote of Moldovan citizens domiciled in the administrative units situated on the left bank of Nistru, in Bender and a number of localities of the Căușeni district, that are temporarily outside of the sovereign control of the constitutional authorities of Moldova, at the presidential elections of 30 October 2016, the Central Electoral Commission, by Decision no.330 of 4 October 2016, had established the organisation of 30 polling stations for this category of citizens - a number of 4 more polling stations than the 26 polling stations established for the parliamentary elections of 30 November 2014.
According to the CEC Report, 6964 citizens domiciled in the occupied territories had voted in the first round of presidential elections of 30 October 2016 and 16.728 citizens - in the second round. According to the data presented by the Central Electoral Commission at the request of the Court, 9261 citizens domiciled in the occupied territories had voted in the parliamentary elections of 30 November 2014, which shows a relatively stable interest from them in electoral exercises carried out by the constitutional authorities of Moldova, in the knowledge that the presidential elections usually generate a higher participation rate than the parliamentary ones.
By analysing the presented arguments, the Court found that none is such as to lead to the conclusion of fraudulent elections.
Thus, the large number of voters who came to vote at the special stations and the disproportion between the percentages obtained by the two candidates in these stations compared to other stations from the national territory are not such as to determine, in itself, such a conclusion. Moreover, even in the polling stations from abroad or in domestic ones there were attested similar differences (for instance: Romania, Russia, Italy, etc.). Essentially, these differences reflect the political option of the voters and not the illegality of the vote expressed by them.
The Court reiterated that it cannot underlie its findings on suppositions, assumptions or inferences. Such an examination, which is not based on the findings of a public authority with competences prescribed by law in administering and checking the concerned data, renders it impossible for the Constitutional Court to take them into account. To decide otherwise would mean a replacement by the Constitutional Court of State authorities, whose competences are prescribed by law. In this regard, Chapter 12 of the Electoral Code regulates the examination of complaints and the liability for violating electoral legislation, including the competences of the authorities. For that matter, public authorities shall be notified in cases where irregularities are reported with a view of applying sanctions prescribed by law.
According to the law enforcement agencies in charge, requested by the Court, there have not been registered complaints or investigations regarding undue influence of the electoral option of citizens from the left bank of Nistru river who voted in special polling stations. In turn, nor the candidate has provided the Court with any conclusive evidence that would indicate the elements of electoral fraud.
In this respect, the Court found that the raised circumstances are not such as to lead to the annulment of the elections, since they do not prove a fraud such as to modify the assignment of the mandate. Or, given the difference of 67.488 votes between the two candidates in the second round, the 16.728 votes, even in the event of a vitiated vote, were not such as to influence the final results of elections.
At the same time, the Court held that electoral corruption is a form of political corruption, when political leaders use the gained benefits in an abusive way in order to influence the elections.
The corruption of voters constitutes the offering or giving money, goods, services or other benefits in order to determine the voter to exercise his/her electoral rights in a particular way within the elections. In this respect, Article 38.7 of the Electoral Code provides that electoral candidates are prohibited from offering voters money or gifts, or to distribute goods free of charge, including humanitarian aid or other charity. On the other hand, the Court found the absence of criminalisation, in the Criminal Code, of corrupting voters in presidential elections, similarly to the criminalization of offering or giving money, goods, services or other benefits in order to determine the voter to exercise his/her rights in a particular way within parliamentary or local elections and within the referendum (Article 181/1). For this reason, the Court adopted an Address (4) for the Parliament to take notice of the necessity to eliminate such legislative loopholes.
c) Involvement of the representatives of the Orthodox Church of Moldova in the electoral campaign
According to the claimant, several representatives of the Moldovan Orthodox Church intervened abusively, contrary to legal provisions, in the process of electing the President of Moldova, by urging parishioners, with threatening calls, defamatory and untrue information, to vote for her opposing candidate.
In support of her claims, the claimant alleged the following facts:
- the declaration of 27 October 2016, of the citizen Cantarean Nicolae (Metropolitan of Chișinău and all Moldova, Vladimir [Head of Orthodox Church in Moldova - TN]);
- the press conference organised by 4 representatives of the Metropoly of Chișinău and all Moldova, instigated by the citizen Mihăescu Nicolae (the Bishop Markel);
- the instigation of the monk Nicolae from the Monastery Japca;
- the public display of her opposing candidate with representatives of the Moldovan Orthodox Church or in the premises of worship places.
The Court held that none of these claims were subject to appeal in the ordinary courts prior to the day of presidential elections.
However, the Court underscored that pursuant to Article 31.4 of the Constitution, religious cults shall be autonomous, separated from the State.
In its caselaw, the Court noted that the preservation of a neutral attitude towards religion was instituted as principle since the founding of the State of Moldova. In particular, there has been avoided to establish a State religion and any official State ideology was banned. Thus, it has been opted for religious neutrality and promotion of pluralism, as constitutional principles. This shows that the principle of laicity is part of the constitutional identity of Moldova (Judgment of Constitutional Court no.13 of 13 May 2016).
The Court held that under Article 15.2 of the Law no.125 of 11 May 2007 on freedom of conscience, thought and religion:
„All religious cults and their component parts will refrain from publicly expressing their political preferences or favouring any political party or any socio-political organisations."
Also, Article 38.3 of the Electoral Code prohibits the funding or material support in any form, direct and/or indirect, of the activities of political parties, electoral campaigns/electoral contestants, by religious organisations.
The Court accepted the arguments of the claimant in regard to the aggressive involvement in presidential elections of representatives of the Moldovan Metropoly, who used an extreme, xenophobic, homophobic and sexist language addressed to an electoral candidate, these facts being of public knowledge and confirmed by the reports of national and international observers.
The Court held that such behaviour is contrary to the Constitution.
In this context, the Court held that electoral propaganda and/or financial or material support of the candidates, engaging in activities that violate the Constitution, are grounds for suspending the activity of religious cults and their component parts (Article 24 of the Law on freedom of conscience). The activity of religious cults and their component parts may be suspended by judicial way, for a period of up to one year. In case the religious cults or their component parts carry out serious acts, their activity may be terminated by judicial way. The Ministry of Justice has the right to bring cases in ordinary courts against religious cults or their component registered parts in order to suspend or terminate their activity provided that it presents conclusive evidence on the existence of one of the grounds provided by law.
The Court found that State authorities responsible for the electoral process and the activity of religious cults have not honoured their positive obligation to prevent and sanction the involvement of religious cults in the electoral process. For these reasons, the Court has issued an address to the Parliament (5) in view of establishing prompt and immediate sanctioning mechanisms, including by way of criminal-law sanction, for any attempt of involvement of religious cults in electoral campaigns.
d) Multiple voting
According to the claimant, there were ascertained 8 cases where certain citizens voted multiple times or in place of other individuals.
According to the CEC, several attempts to vote in place of another individual were detected through the electronic system, but there were no attempts of an individual to vote multiple times. In each case, law enforcement officials were notified, the cases were documented and criminal proceeding were initiated, under Articles 181 and 182 of the Criminal Code. Thus, there has been no case of multiple voting, but isolated cases of attempt to in place of another individual. Each time, the CEC found and stopped these illegalities by using its electronic system.
Therefore, in regards to the suspicion of the existence of cases of multiple voting, the Court held that the submitted evidence does not confirm such situations.
Thus, the allegations of election fraud through multiple voting are not based on evidence within the meaning of the law.
e) Defamatory publication spread by representatives of the opposing electoral candidate Igor Dodon
According to the claimant, on 28 October 2016, her sympathizers on the ground reported the distribution in villages and towns of the country of leaflets containing denigrating content.
In the absence of relevant acts ascertaining infringements, it was impossible for the Court to determine the impact of these leaflets over the election results.
f) Media outlets favouring the opposing electoral candidate
According to the claimant, from the monitoring report of the media during the campaign for presidential elections in 2016 carried out by the Association of Independent Press, there results that Mr Igor Dodon was the most favoured contestant in terms of the context of appearances. He appeared 116 times in a positive light and 80 times in a negative light. Mrs Maia Sandu was more disfavoured, appearing in a negative light 146 times and 103 times in a positive light.
The Court held that the media is the cornerstone of a democratic society. It is an instrument for exercising power and influencing the opinion.
The Court held that the organisation of free and fair elections presumes there is ensured a fair information and media environment, which complies with the Ethics Code for Journalists.
The main function of the media in democratic societies consists of reflecting the facts and the political events in the most objective, impartial and open way; promoting a large number of opinions and points of view, as well as of interpreting the news so that the public would understand the relevance of the information it receives. This is the basic principle underlying the idea of „advocacy" journalism which aims to promote the participation of citizens in public life. From this perspective, the media promotes and protects the rights and expectations of the citizens through its role of a „watchdog."
The Court noted that under Article 64 of the Electoral Code, broadcasters, within all their talk-shows, and written media founded by public authorities are under the duty to observe the principles of fairness, accountability, balance and impartiality while covering elections. Public broadcasters shall allocate free airtime to the electoral candidates in a fair and non-discriminatory manner, based on objective and transparent criteria.
The Court noted that the media is the most important actor facilitating the exchange of ideas between electoral candidates and voters, which forges the identity of the electorate.
The Court noted that the Broadcasting Council of Moldova, sanctioned successively the broadcasters for unbalanced and biased coverage of the presidential campaign, including for the violation of the Regulation on coverage of the campaign in the presidential elections of 30 October 2016 in Moldovan media. However, these sanctions did not have a discouraging practical impact on the concerned media outlets.
The Court found that, pursuant to current regulations, the Broadcasting Council examines complaints concerning the election coverage by broadcasters according to the established procedure. This makes it virtually impossible to apply sanctions within a reasonable time and proportionate to the committed acts, and as a consequence it limits the possibility to form an impartial political opinion for the public and to provide equal conditions for the electoral candidates.
Considering the role and the importance of the media, the Court underscored the necessity to establish effective instruments that would allow responsible authorities to impose sanctions with immediate and dissuasive execution, such as the suspension of broadcasting for the entire electoral campaign, for those media outlets that breach the duty of impartiality during the electoral period. For these reasons, the Court issued an Address to the Parliament (6), in view of amending the legislation on the liability of broadcasters during electoral campaigns.
5. General conclusions
The Court found that the 2016 presidential elections were organised and took place amids a political, financial and social crisis, exacerbated by the lack of trust in State institutions.
This fact cannot be ignored, the shown phenomena being generated mainly by the deficiencies of the electoral legislation, likely to generate legal uncertainty. The Court noted that, in order to hold presidential elections, the Electoral Code was substantially amended and supplemented with several months prior to the elections. Or else, in the absence of such amendments holding the elections would have been impossible.
Although the legal framework ensures an adequate basis for democratic elections, there are still certain gaps and ambiguities. These relate in particular to the collection and verification of signatures supporting the candidates, the funding and conduct of the electoral campaign, the effective resolution of electoral disputes, the implementation of the provisions concerning the media and those on holding the second round of presidential elections. These deficiencies are also reported by national and international observers and led to the deficient implementation of the law.
Also, a number of imperfections of the law, as it was amended, were found, for example in terms of organising the vote in special polling stations (which raised suspicions in relations to the exercise of practices like „electoral tourism") and in polling stations abroad.
In this context, the Constitutional Court underscored the necessity to re-examine the entire electoral legislation regarding the elections of the President, the Parliament and the elections of local public administration authorities, in order to concentrate it in a revised Electoral Code whose general and special provisions shall provide, in accordance with constitutional principles, the organisation of democratic, fair and transparent elections. In this regard, the Court issued 6 Addresses to the Parliament.
The observations set forth are not such as to determine any other conclusion than that which led to the examination of the presented submissions and the evidence submitted by the authors of the request for the annulment of the elections. The alleged fraud constitutes, in reality, as shown in this evidence, a series of sequential elements that have not formed a phenomenon capable of changing the voters' will, meaning a modification in the assignment of the mandate. In regards to these infringements of the law, it remains with the competent authorities to investigate the facts and apply the sanctions provided by law.
For these reasons, the request for annulment of the elections held in the second ballot on 13 November 2016 for the office of President of Moldova was rejected.
In exercising its competences pursuant to the Constitution, the Constitutional Court confirmed the results of the presidential elections, according to which on 13 November 2016, Mr Igor Dodon was elected President of Moldova.
II. Validation of the mandate of President of the Republic of Moldova
Pursuant to Articles 79.1 of the Constitution and 112 of the Electoral Code, the mandate of President of Moldova is validated by the Constitutional Court.
Pursuant to Article 112.2 of the Electoral Code, prior to the validation of the mandate, the elected candidate for the office of President of Moldova shall submit to the Constitutional Court the confirmation of the fact that he/she is not a member of any political party and does not hold any other public or private office.
In this regard, on 24 November 2016, Mr Igor Dodon informed the Court, according to the procedure set out by law, on the termination of his membership in the party.
On 12 December 2016, the elected candidate for the office of President of Moldova submitted to the Court his resignation from the office of MP, elected from the Socialist Party of Moldova.
Judgment of the Court
Stemming from the set forth arguments, the Constitutional Court confirmed the results of the elections for the office of the President of Moldova of 13 November 2016 and validated the election of Mr Igor Dodon for the office of President of Moldova.
The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing,and shall be published in the Official Journal of Moldova.
Six (6) Addresses to the Parliament were issued in the present Judgment in view of eliminating the gaps in the legislation.
The arguments held in the reasoning delivered by the Court shall be presented in the text of the Judgment, which shall be published today on the official website of the Constitutional Court and subsequently in the Official Journal.
(Unofficial English language courtesy translation, that may be subject to review)
This press-release is also available in its original version - in Romanian language.