Advisory warning: What follows is an extremely tedious and detailed analysis of the recent mayoral elections in Chisinau, the conclusion of which is that I stand by my initial findings.
This past week, the European Union decided to freeze a 100 million euro aid package to Moldova specifically because of the Chisinau mayoral race:
Disbursements under the Macro-Financial Assistance program hinge on the successful implementation of specific economic policy measures laid out in a Memorandum of Understanding and the fulfillment of political preconditions related to respect for democratic mechanisms, the rule of law and human rights.
Federica Mogherini also released a statement:
I would like to thank the representatives of the opposition in Moldova for their presence here today with us and also for the opportunity I had to meet with them [Maia Sandu, Andrei Nastase, and Viorel Cibotaru] yesterday.
The Supreme Court decision of the 25th June deprives the citizens of Chisinau of a democratically elected mayor. Last week, the Central Electoral Commission has decided not to organize new elections now, and this confirms that Chisinau will continue to be governed by a non-elected administration.
These decisions undermine the trust of the citizens of Moldova in the State institutions. The invalidation of the mayoral elections was non-transparent, and we expect – I personally expect – the Moldovan authorities to quickly find a way out of this unacceptable solution and to guarantee judicial independence in line with its international commitments.
As you can see above, the EU is sticking to this allegation of “non-transparency,” so much so that they’ve frozen 100 million euro’s worth of aid to Moldova four months before parliamentary elections. At this point, it’s an easy lay-up for the anti-EU parties to say, “See? The pro-EU faction is so corrupt that even the EU admits it.”
How this is going to help the pro-EU case is beyond my ability to understand.
Furthermore, Nastase, and Sandu are not members of the opposition. Cibotaru is the head of the PDLM party, which is in the opposition (holding 5 seats out of 101), but neither Nastase’s nor Sandu’s parties have any members in the parliament. They’re just showboating blowhards at this point.
In a separate move, the European Parliament voted to issue a strong condemnation of Moldova as well:
“The decision of the courts, which already have been many times cited as politically influenced and driven, is an example of state capture and a very deep crisis of institutions in Moldova,” the European Parliament said in a resolution passed on July 5 by a vote of 343-35, with 160 abstentions.
Obviously, I disagree with this assessment. I should add here that the primary author of this EU Parliament vote was Siegfried Muresan, a Romanian MEP who believes that the only acceptable future for Moldova is the complete destruction of its sovereignty (annexation by Romania).
Let the Analysis Begin!
If you’re looking for news and information in English about Moldova or Eastern Europe in general, your options are rather limited. Almost everything is slanted in a very pro “Western”, anti-Russian way, and, in many cases, is directly financed by the United States.
One of the few exceptions is the Center for Eastern Studies (OSW) in Warsaw, Poland. Now, most of their work is in the Polish language, which I don’t speak, but they do put out a fair bit of material in English. Oddly though, they put out more items in English via their Twitter feed than on their website, which is how I came to be aware of them originally.
I’m not saying that I agree with all of their conclusions, but I am saying that they do a pretty good job of not following knee-jerk perspectives. On Twitter, I had an interesting exchange with Kamil Całus, their Moldova “expert,” and it’s the main reason why I’m writing this article today.
Originally, my thought on the Chisinau election was that Andrei Nastase had violated election law. The courts analyzed the situation and determined that it was bad enough that they had to nullify the election. End of story.
But in talking with Mr. Całus, I realized that outsiders have a somewhat different perspective. For them, it’s not just that the courts ruled inappropriately, but that a larger principle was at stake – i.e. the concept of democracy itself, and that annulling an election is, ipso facto, undemocratic.
So, thank you, sir, for that. I hope what follows answers your questions.
Two Issues at Stake
In my mind, there are two issues at stake here:
- Did Nastase violate electoral law, and did the courts apply the proper remedy for this violation?
- Was the amount of attention (and now freezing of aid to Moldova) given to this election by outside bodies reasonable?
We’ll take them one by one.
For the record, I’m paraphrasing Mr. Całus here because Twitter is not a medium conducive for long-form discussions.
Sam, are you a lawyer?
Well, no. I’ve never studied law at a Moldovan university, and I certainly am not licensed to practice law in Moldovan courts. I am, however, an individual who has successfully represented himself in court in Moldova.
In order for me to win my cases, I spent a lot of time doing research in the law library and consulted with three real lawyers. Considering that I successfully defended myself against the government, I’d say that gives me a “leg up” in parsing Moldovan law.
As a legal expert, you can rank me lower than a lawyer but higher than the average Joe who just reads newspaper articles.
You said the Liberal Party didn’t field a candidate in the mayoral election, but they did.
You’re right. Valeriu Munteanu of the Liberal Party was a candidate in the first round of the election. I thought that the Liberal Party had agreed to support Nastase in this race, but I was wrong.
As you can see, Munteanu got 8,026 votes or 3.61% of all votes cast, putting him in fifth place out of 11 candidates.
There is no “Day of Silence” rule on Election Day in Moldova
That’s my translation of the Romanian term Ziua Tacerii, which is a fairly common phrase and one used by the Supreme Court as well.
It refers to a specific article Moldova’s electoral law, which will be discussed at length below. But technically, yes, there is no legal term called “Day of Silence,” however, it is widely understood that candidates are to do no campaigning on election day, especially after the polls are open.
Other democracies don’t have this rule!
Whether they do or don’t is irrelevant as the only thing that matters is the law in Moldova.
That being said, many “Western” democracies also follow this rule about the “Day of Silence”, including members of the European Union such as Britain, Bulgaria, Croatia, Hungary, Ireland, Italy, Poland, Slovenia, and Spain.
You undercounted the number of protestors!
Look, it is impossible to know how many protestors there are at any given time or situation. Here in Chisinau, the big plaza across from Parliament (called PMAN) is where you’ll find hundreds, if not thousands, of people every single day. A lot of people spend time there, go to the church there, or simply transit through there. Determining who is “protesting” and who is walking through the area and is curious about what’s going onis impossible.
I live close enough to this area that I do a rough estimate of any activity (whether it’s a protest or a music concert) based on how loud it is. I’ve heard (and seen) big protests before, and the recent ones about the elections didn’t seem to be that large to me.
Let’s just agree to disagree and say it was a “medium-sized” protest. I saw the people in the area, and it definitely was a crowd, but it wasn’t spilling onto side streets or further down Stefan Cel Mare Boulevard like other, bigger ones have done.
What I can tell you for sure is that these 2018 protests are way smaller than the 2016 protests that saw people storming the parliament. As a result of those protests, Pavel Filip had to be installed as prime minister in a secret midnight ceremony.
Despite this, Pavel Filip is treated as a completely legitimate prime minister and representative of Moldova by the European Union and the United States.
Silvia Radu IS Plahotniuc’s puppet!
Oh, boy. The theory here is that Silvia Radu, who was interim mayor before the election (and a candidate in the election), is Plahotniuc’s puppet. And when she lost in the first round of the elections, Plahotniuc then rigged all the courts to allow her to stay in office until June 2019.
First of all, officially, she is independent. She ran as an independent, not as a member of Plahotniuc’s Democratic Party. Her background is primarily as a businesswoman working for the Spanish company Gas Natural Fenosa’s branch here in Chisinau, although she’s also worked for the Moldovan Energy Ministry. She studied in Spain (University of Navarra) and speaks fluent Spanish. She has all the relevant experience and background for every job/position that she’s held.
There is no proof whatsoever that she is Plahotniuc’s puppet or even his friend. Of course, here in Moldova, there are lots of whispers and rumors and allegations about Plahotniuc, and I do understand that some things do lie under the surface, but just because there are “allegations” doesn’t mean they are true.
Officially, Plahotniuc said that he was surprised Radu came in third during the first round of the elections and that she would’ve done better as a member of a political party (and not run as an independent). He’s also never once publicly supported her candidacy for mayor.
Officially, Silvia Radu said she only met Plahotniuc one time in her capacity as an officer of Gas Natural Fenosa, and that other people were present. She’s also said that she’s completely apolitical and has never met Plahotniuc one-on-one in her life.
Look, one day, documents or proof may come to light that Radu is Plahotniuc’s “puppet,” but they don’t exist today. She’s serving as interim mayor because Chirtoaca resigned the position and the city council chose her to stand in as interim mayor. And Radu herself said that she only ran in the special election to serve as a “technocrat” placeholder until the scheduled elections in 2019.
It’s a rather extreme allegation to say that this businesswoman is so valuable to Plahotniuc that he decided to coerce three separate courts (and the Central Election Commission!) to protect her in a job that she will only hold for one year. And extreme allegations require extreme proof.
Meanwhile, it’s Andrei Nastase himself who has proven ties to Plahotniuc. Nastase is personal friends with Victor and Viorel Topa (Victor was the “godfather” of Nastase’s wedding), who are former business partners of Plahotniuc. Therefore, it’s far easier to draw a concrete line between Nastase and Plahotniuc than it is between Radu and Plahotniuc.
The above image comes from RISE Moldova. If you click on the link (it’s in Romanian), you can learn more about Nastase’s shady past.
As I said earlier, there’s a widespread feeling amongst outsiders that democracies don’t nullify elections, no matter what. In other words, nothing that Nastase did could ever be egregious enough that it was worth nullifying the election over.
Immediately, I thought about the Kenyan presidential election of 2017, which was nullified by the Kenyan Supreme Court. But then I realized that what Africans do is considered irrelevant because they’re never going to be “Western” or “properly democratic” enough for some people.
Okay, fine. Let’s talk about the 2016 Austrian presidential elections. This was an election held in a “Western” country full of white people who are members of the European Union. More democratic, you cannot ask for.
During that election, just like in Chisinau, the first round saw no candidate get a plurality (+50%) of votes, so there was a second round contest between the top two candidates.
The second round, held in April 2016, pitted Alexander Van der Bellen (an independent but closely aligned with The Green Alternative Party) against Norbert Hofer of the Freedom Party (FPO).
And, just like in Chisinau, the results were super close. Van der Bellen won 50.3% of the vote while Hofer got 49.7%. And yet the Constitutional Court (equivalent to Moldova’s Supreme Court) annulled the results.
So, what happened? Well, the Court ruled that, in just 14 of 117 administrative districts, there had been some “irregularities.”
My German isn’t quite good enough to know exactly what all those “irregularities” were, but it was enough to annul the elections precisely because the vote was so close, and the “irregularities” might’ve swung the vote in Van der Bellen’s favor.
The Court ruled that the election should be held again five months later. Van der Bellen won the re-run election with 53.8% of the vote and is still currently the President of Austria.
So, why didn’t the European Union protest the annulment of these elections? Well, two reasons. One is that a repeat vote was held (as was the case in Kenya), so “justice was served”.
The second is that Hofer was an opponent of a lot of things that the EU leadership holds dear. Hofer was anti-immigration and supported by Marie Le Pen (France), Geert Wilders (Holland), and Matteo Salvini (Italy), all of whom are classified as “Euroskeptics.”
Since the 2016 Austrian presidential elections, Le Pen went on to lose her bid for the French presidency (in the second round), but Salvini is now part of Italy’s ruling coalition, and Britain voted to leave the European Union (which is still a work “in progress”). Who knows what would’ve happened if Hofer had won back in early 2016?
My point here is that, even in “Western” democracies, elections are nullified when appropriate, and there’s nothing wrong with this.
So, why didn’t Chisinau re-run the mayoral election?
Because it was a special election, not a regular one. The entire country will hold local elections in 2019, so whoever won the mayoral race would only be in office for one year.
Dorin Chirtoaca resigned in February 2018. The special election was scheduled for May 20, over three months later. By the time the second round was done (June 3) and the annulment by the Supreme Court (June 25), it was too late to hold a re-run election.
Moldovan law is a bit complicated, but three sections are relevant:
- You can’t hold two elections for the same office in the same year (which rules out a rerun in 2018);
- You can’t hold a special election less than 60 days before a scheduled election (which will happen in 2019, so a re-run in early 2019 is too close to that date); and
- You can’t hold a special election less than a year before a scheduled election (which, again, will happen in 2019).
Romanian explanation from here:
Totodată, în conformitate cu art.150 alin.(2) din Codul electoral, „dacă vacanţa funcţiei de primar al localităţii a apărut în ultimul an înainte de expirarea mandatului, alegeri noi pentru funcţia de primar nu se organizează”. Alegerile ordinare pentru funcția de primar al municpiului Chișinău au avut loc pe 14 iunie 2015 (turul I) și 28 iunie (turul II), respectiv luînd în considerare faptul că ziua alegerilor locale noi nu poate fi stabilită cu mai puțin de 60 de zile înainte de ziua alegerilor, se atestă imposibilitatea desfășurării acestora. Mai mult, potrivit art.150 alin.(4) din Codul electoral, alegerile noi pot avea loc de cel mult 2 ori pe an, primăvara sau toamna.
If Chirtoaca had resigned in July 2017 (when he was first suspended from office), there would’ve been enough time to hold a special election at the end of 2017 and a re-run in 2018, but that didn’t happen.
Nastase et al will get their chance to run for office next year. No court has ruled him ineligible and he’s not being investigated for a criminal offense.
Democracy, in the form of a mayoral election in Chisinau, will be served, but we’ll all just have to all wait until 2019. If Nastase wins in 2019, he’ll be mayor for four years.
Parsing the Law
Okay, now we’re getting to the nitty-gritty.
There are two issues here:
- Did Nastase, in fact, violate electoral law?
- Did the Supreme Court make a legal ruling when it annulled the elections?
Indisputably, Nastase transmitted several Facebook Live videos on the day of the second round of the elections. I haven’t seen an official transcript, but the gist of what he said in these videos was “Hey everybody, go out and vote!”.
Was this a violation of election law? At issue is the Romanian term agitaţie electorală, which I translated as “campaigning” in my initial article and not “agitation” because the English word “agitation” means something different.
Here’s the official definition according to Moldovan law:
agitaţie electorală – acţiuni de pregătire şi difuzare a informaţiei, care au scopul de a-i determina pe alegători să voteze pentru unii sau pentru alţi concurenţi electorali.
agitaţie electorală – Any act involving the transmission of information for the purpose of influencing voters to choose a specific candidate who is standing for office.
Now, did Nastase specifically say, “Vote for me?” No, he didn’t. Therefore, it’s conceivable to argue that a general “hey everybody, go out and vote” wasn’t a specific endorsement for one candidate and therefore was not agitaţie electorală.
However, we’re not talking about Joe Blow going on Facebook Live and saying, “Go vote!” We’re talking about one of the candidates in a two-person race saying this.
At some point, anything with the candidate’s face on it (be it a video, a poster, or a billboard) saying, “Go out to vote” is, in my opinion, an implicit endorsement to go out to vote for that specific candidate. Otherwise, you’re arguing that Nastase went on Facebook Live to say, “Go out to vote for my opponent!”, which is ridiculous.
Nastase isn’t a voters rights group or an NGO; he was an active candidate in the election. The only conceivable purpose for his urging people to vote when the polls were open was to get people to vote for him.
I don’t need to read the Supreme Court’s ruling to know it was wrong!
Yes, people have actually told me this. This seems very bizarre to me since we are talking about democratic institutions, which very much are based on the law. The Supreme Court is the highest court in Moldova and it made its ruling based on existing law.
Now, you may not like the law, but adherence to the law (in Moldova, not in some hypothetical other “Western” country) is what democracy is all about. The Supreme Court judges have all been appointed legally and there’s no question that they are the competent authority to judge this case.
Therefore, you’re interpolating that your ad hoc judgment of Moldovan law is superior to the very people who have been democratically designated to adjudicate Moldovan law.
Absurdity at its finest.
What about the Supreme Court’s ruling?
Okay. Let’s see what the Court actually said in their ruling. Full text is here (in Romanian).
I’ll quote the relevant parts, but feel free to read the whole thing, if you like. Also, keep in mind that both Nastase and Ceban were plaintiffs in this case, but in my translation I’m using the singular, just to keep things simpler.
In motivarea soluţiei de neconfirmare a alegerilor, Judecătoria Chişinău, sediul Centru şi Curtea de Apel Chişinău au reţinut că printr-o hotărâre judecătorească irevocabilă s-a constatat că la data de 03 iunie 2018, adică în “ziua tăcerii”, concurentul electoral din partea Partidului Politic „Platforma Demnitate și Adevăr”, Andrei Năstase, a făcut agitație electorală. Cu referire la actul judecătoresc menţionat, aceste instanțe au verificat dacă prin această încălcare au fost afectate/influențate rezultatele alegerilor locale noi desfășurate pentru alegerea primarului general al municipiului Chișinău.
Concerning the annulment of the elections, the Central Chisinau Court and the Chisinau Court of Appeals ruled that on June 3, 2018, the “Day of Silence,” the DA Platform Candidate, Andrei Nastase, committed agitație electorală.
Concerning the ruling of the two lower courts, we find that this infraction affected/influenced the results of the Chisinau mayoral election.
Aceștia au susținut că instanţele de judecată au constatat în mod eronat că îndemnul concurentului electoral de a ieşi la vot, exprimat în ziua alegerilor pe paginile de socializare, constituie agitaţie electorală, iar presupusul impact al acestor acţiuni ar constitui temei de nevalidare a alegerilor locale noi.
Recurenţii au precizat că concurentul electoral Andrei Năstase a înregistrat la 03 iunie 2018 câteva filmuleţe live, prin care i-a îndemnat pe locuitorii municipiului Chişinău să iasă la vot şi să-şi exercite dreptul de vot, pentru ca mandatul viitorului primar să fie cât mai reprezentativ. Nu s-a precizat pentru care din concurenţi să se voteze. Aceste postări au fost publicate doar pe pagina sa personală de pe reţeaua Facebook, nefiind difuzate prin intermediul mass-media.
The plaintiff argued that the lower courts rulings were in error, and that the plaintiff’s urging people to go vote, performed on social media on the day of the election, did not meet the definition of agitaţie electorală, and even if it had, the supposed impact of this act did not merit nullification of the election.
The plaintiff stipulated that candidate Andrei Nastase broadcast several live video clips on June 3, 2018, urging Chisinau residents to vote and to exercise their right to vote so that the future mayor would have a more representative mandate. However, Nastase did not state for which candidate viewers should vote for, and these videos were only broadcast on the candidate’s personal Facebook page and not disseminated via mass-media.
Now here’s a key breakdown:
Pretinsa încălcare comisă de Andrei Năstase urma să fie examinată prin prisma răspunderii juridice electorale, reglementată de art. 75 alin. (2)
Cod electoral, care prevede că pentru încălcarea legislaţiei electorale, Comisia Electorală Centrală sau consiliul electoral de circumscripţie îi poate aplica grupului de iniţiativă sau concurenţilor electorali următoarele sancţiuni: a) avertisment; b) anularea înregistrării grupului de iniţiativă; c) intentarea procesului contravenţional conform legislaţiei; d) lipsirea de alocaţii de la bugetul de stat, ca sancţiune de bază sau complementară; e) solicitarea anulării înregistrării concurentului electoral.
The relevant statute that addresses the alleged infraction by Andrei Nastase is Article 75, subsection 2 of the Electoral Code, which states that any violation of electoral law must be addressed by the Central Election Committee or the relevant election council, which may impose one of the following sanctions: a) a warning b) declaring the offender unfit to stand for office, c) initiate a criminal proceeding, d) withdraw state funding, or e) request the annulment of the election.
More legal wrangling:
De asemenea, aceștia au opinat că instanţele de judecată au eşuat în aplicarea art. 74 alin (4) Cod electoral, invocând în acest sens că în hotărârea nr. 34 din 13 decembrie 2016 privind confirmarea rezultatelor alegerilor şi validarea mandatului de Preşedinte al Republicii Moldova, Curtea Constituţională a stabilit la punctele 21 şi 22 că în cursul unei companii electorale sunt posibile anumite neregularităţi, însă valabilitatea alegerilor depinde de dimensiunile şi de amploarea acestora constatate de autorităţile statului. În acelaşi context, instanţa constituţională a reiterat că: (1) anularea alegerilor poate să intervină numai în cazul în care votarea şi stabilirea rezultatelor au avut loc prin fraudă; (2) nu orice fraudă din procesul electoral este echivalentă cu fraudarea alegerilor, ci numai frauda care este de natură să influenţeze rezultatele al alegerilor; (3) cererea de anulare a alegerilor trebuie să fie motivată şi însoţită de dovezile pe care se întemeiază.
The plaintiff argued that the lower court erred in its application of Article 74, Subsection 4 of the electoral code in its ruling of December 13, 2016, number 34, when it confirmed the results of the Presidential elections and the validity of the results because the Constitutional Court, in points 21 and 22 of its ruling, stated that certain irregularities during the course of an election are permitted depending on their gravity and influence over the results.
In this context, the Constitutional Court stated that: (1) The nullification of an election can only happen in which the voting or counting of votes was fraudulent, and 2) The level of fraud involved must be of sufficient dimension to have irrevocably influenced the election; and (3) that any request for an election to be nullified must be accompanied by proof of the offense.
And here’s the clincher:
Instanţele au statuat că impactul filmuleţelor a fost unul extrem de mare. Ele au dus la creşterea numărului de alegători şi au viciat rezultatele alegerilor.
The lower courts determined that the impact of the [Nastase’s] videos was extremely large. They caused a significant increase in the number of people who came out to vote and thus prejudiced the results of the election.
And that’s it. After knocking down several other arguments, the Supreme Court ruled that it would not overturn the lower courts’ decision to annul the election. Which is what we already know.
I really don’t understand what’s “non-transparent” about this, though. And yet the EU and USA keep using this phrase.
- Nastase broke the rules when he broadcast several Facebook Live videos on the day of the election (when the polls were still open).
- Despite only saying “Go vote,” these were, effectively, campaigning, which is illegal.
- These videos broadcast by Nastase irrevocably spoiled the results of what was a very narrow victory for Nastase.
- It’s impossible to re-run the special election now due to existing Moldovan statutes because the scheduled election is coming up in 2019.
- The European Union was wrong when it condemned the Moldovan Supreme Court’s ruling as “non-transparent”.
- The European Union demonstrated bias by consulting primarily with Nastase and other “pro-EU” factions in Moldova.
- The decision to freeze funding to Moldova based on this election annulment is overkill and extreme.
- In fair and equitable democracies, courts do sometimes annul elections, when warranted.
- There is not a shred of influence that Plahotniuc influenced the courts’ decisions.
- Nastase is the one who is abusing trust in democratic institutions by holding speeches in front of caricatures of judges dressed up as prison inmates.
- Nastase is unaccountably rich (he owns 10 houses in Moldova alone plus more abroad) and is close friends with oligarchs.
- Nobody knows who funded Nastase’s campaign, and the EU never asked.
- There is no way that the EU (and USA) would be reacting this strongly if Ceban (of the “pro-Russia” Socialist Party) had won the election instead of Nastase, and then the elections were annulled.
And that’s really all I got to say about this. I am not getting paid by a government agency, newspaper, television station, or think tank, so if there are any mistakes, I apologize. These are my opinions and translations and mine alone.
You’re free to disagree with them, of course, but please, there’s enough real corruption and real problems in Moldova without making a mountain out of a molehill out of a special election for a one-year term of a mayor in one city that was unarguably tampered with by the winning candidate.