Legal framework

Constitutional provisions

The Constitution of the Republic of Moldova of 1994 guarantees the freedom of association and provides that citizens are free to associate into parties and other social and political organizations that do not engage in fighting against political pluralism, the rule of law, the sovereignty, independence or territorial integrity of the Republic of Moldova. The state protects the rights and legitimate interests of parties and other social and political organizations. Employees may establish and join trade unions in order to defend their interests.

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Legal framework

Constitutional provisions

The Constitution of the Republic of Moldova of 1994 guarantees the freedom of association and provides that citizens are free to associate into parties and other social and political organizations that do not engage in fighting against political pluralism, the rule of law, the sovereignty, independence or territorial integrity of the Republic of Moldova. The state protects the rights and legitimate interests of parties and other social and political organizations. Employees may establish and join trade unions in order to defend their interests.

Primary legislation

The Law on Political Parties of 2007 defines political parties as voluntary associations of citizens with voting rights, which promote democratic values, shape the public opinion and encourage the participation of citizens in elections. Membership in political parties is open to citizens of the Republic of Moldova with voting rights, who are free to join and leave parties.  Political parties may not perform ethnic, racial, military or paramilitary activities. The Ministry of Justice registers parties in the Register of Political Parties, upon the submission of an application and other information such as the charter, program, bank account details, legal residence information and a list of minimum 4.000 members.  The law prescribes a geographical representation requirement pursuant to which, “[a]t the time of the parties’ establishment, at least half of its members must be residents of second level administrative-territorial units from the Republic of Moldova, with no less than 120 residents in each of the administrative-territorial units”. The law also specifies that each party shall have a distinctive name, abbreviation and unique symbols. 

According to the Law on Public Associations, of May 1996, with subsequent amendments, a public association is a voluntary, independent, self-governing and not-for-profit entity. There are two types of associations: social associations that focus exclusively on the protection of human rights, environment, art, culture; and mutual associations, which are aimed to fulfill private and corporate interests of their members. Only social associations may have special taxation benefits. In comparison with the former law, which set an age membership-limit at 14 years, the new law provides that members of youth public associations should be at least 10 years old. A statute or charter, approved by the Ministry of Justice, regulates the association’s activity. The Ministry of Justice keeps a State Register of Public Associations.

Pursuant to the Law on Philanthropy and Sponsorship, of October 2002, a philanthropic organization is a nongovernmental, non-commercial entity, carrying out philanthropic activities in the interest of the entire society or certain categories of people. Such organizations may be classified in charity societies (associations), foundations, institutions or other organizational forms not prohibited by law. To facilitate the achievement of their statutory goals, charities may join associations and unions on a contract basis.

The Law on Foundations, of July 1999, provides that foundations are non-commercial organizations without membership, established by one or several individuals or legal entities. Foundations hold property, which is separated from the property of founders and serves for accomplishing non-commercial objectives. Foundations can be created by one or more native or foreign individuals and/or legal entities and shall have distinctive names and symbols. The starting capital of a foundation shall amount to not less than two hundred minimum wages and may not be reduced during the operation of the foundation. The foundation’s property cannot be used for the benefit of its founders, management bodies or staff. The founder is not responsible for the obligations of the foundation and vice versa. The authority competent to register foundations is the Ministry of Justice.

The activity of trade unions is regulated by the Law on Trade Unions, of 7 July 2000. Trade unions are non-governmental organizations uniting individuals on a voluntary basis, based on their common interests and activities, set up to protect their members’ professional, economic, social and labor – collective and individual – rights. Trade unions are independent from public authorities of all levels, from political parties, non-governmental associations, employers and their associations. The law prohibits any unlawful restrictions or the influencing of persons to join or leave trade unions. Everyone is entitled to create or join a trade union without prior authorization from public authorities. Trade unions may defend the rights and interests of trade union members, participate in the management of public affairs, in social and economic projects and in collective negotiations, conclude collective agreements, monitor their enforcement as well as the development of the privatization process, and solve individual and/or collective labor disputes. 

The Law on Employers’ Unions, of 11 May 2000, regulates the setting-up, functioning and closure of employers’ unions in Moldova. Employers’ unions serve the goal of assisting their members by providing services and advice, protecting their rights and representing their interests before public authorities, trade unions, and any other national and international non-governmental organizations. Employers’ unions may be organized as associations, federations and confederations. The Ministry of Justice registers these entities upon the submission of necessary documentation. 

Possible restrictions

The Constitution of the Republic of Moldova provides that “[p]arties and social/political organizations are declared unconstitutional if by their aims or activities they are engaged in fighting against political pluralism, the principles of the rule of law, the sovereignty and independence or territorial integrity of the Republic of Moldova”.  The Constitution further bans secret associations and prohibits the activity of political parties consisting of foreign nationals.  Restrictions on political party membership for certain categories of public officials – judges, prosecutors, customs officers, members of the armed forces – are prescribed by organic law.  Political parties can be banned only through a court decision.

The Criminal Code of the Republic of Moldova, of 18 April 2002, prohibits the creation of criminal organizations (associations) – “unions of criminal groups organized into one stable community, the activity of which is based on the division of the functions of administration and execution of organization’s criminal plans between the members of the organization and its structures, for the purpose of influencing or otherwise controlling the economic and other activity of individuals and legal entities, in order to obtain benefits and economic, financial or political gains”. Members of criminal organizations shall not be held criminally liable if they voluntarily disclose the existence of such organization to law enforcement bodies and assist in solving crimes committed by it.

Case law

In the case of Metropolitan Church of Bessarabia and Others v. Moldova (ECtHR Judgment of 13 December 2001), the European Court of Human Rights stated that since religious communities traditionally exist in the form of organized structures, Article 11 of the Convention safeguards associative life against unjustified State interference. The freedom of religion, which includes the right to manifest one’s religion in community with others, implies that believers may associate freely, without arbitrary State intervention.

In the case of CDPP v. Moldova (ECtHR Judgment of 14 February 2006), the Court found a violation of Article 11 of the ECHR, stating in particular that the temporary ban on the party’s activities was not an appropriate step in a democratic society and that the ban could have had a “chilling effect” on the Party’s freedom to exercise its freedom of expression and to pursue its political goals, the more so since it was adopted on the eve of local elections.

In the case of Christian Democratic People's Party v. Moldova (ECtHR Judgment of 2 February 2010), the Court noted that the State’s obligations are not limited to non-intervention.  There may thus be positive obligations to secure the effective enjoyment of the freedom of association even in the sphere of relations between individuals. Accordingly, public authorities should guarantee the proper functioning of a political party, even when it shocks or offends persons opposed to the ideas or claims that it is seeking to promote. Its members must be able to hold meetings without having to fear that their opponents will subject them to physical violence. Such a fear could deter other associations or political parties from openly expressing their opinions on highly controversial issues affecting the community.

 
Analysis provided by: Dumitrita Bologan, July 2010

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