Coronavirus kann die Menschenrechte nicht aufheben

Whist does “stagnation” in the field of human rights in the Republic of Moldova mean?; How do the pandemic and state of emergency influence this area? What is the difference between the relations of the Ombudsman’s Office of the Republic of Moldova with the national authorities and those with the international partners?; What can the wronged persons who seek justice in courts of law and other state institutions during many years count on in the current situation of epidemiological crisis?  These and other issues are discussed in an interview conducted by Valeriu Vasilică with the People’s Ombudsman Mihail Cotorobai.

– IPN: Welcome to IPN, Mister Ombudsman Mihail Cotorobai! We have a number of reasons to conduct this interview. One particular reason refers to a new project entitled “Injustice Revealed through Multimedia” that is initiated by IPN Agency now and here. A more general reason implies that in times of a pandemic generated by the novel coronavirus and the state of emergency that entails a number of objective or possibly subjective restrictions, the human rights chiefly deserve to be in the focus of society, if this society wants to remain democratic.  

– Mihail Cotorobai: Definitely, the “Coronavirus cannot annul the human rights”. Indeed, the Republic of Moldova filed a verbal note to the Council of Europe concerning derogation from the provisions of the Convention for the Protection of Human Rights and Freedoms, in particular for Article 11 of the Convention (freedom of assembly and association), Article 2 of Protocol No. 1 (right to education) and Article 2 of Protocol No. 4 (freedom of movement). This implies yet that the state should further fulfill the undertaken obligations concerning the respect for the other provisions of the Convention.

As the Ombudsman, I noted it is essential that the restrictions imposed by the authorities to ensure the population’s protection from infection with the novel coronavirus should be necessary, legitimate, reasonable and proportional to the risk or threat to public health. Together with the team, I am attentively monitoring the activity of the Commission for Exceptional Situations (CES) and of the local and central public authorities so as to warn them in case of derogations from the national and international standards in the field of human rights. For the purpose, there were submitted about 20 applications, notices with recommendations to review decisions, to take action to ensure the respect for the human rights. Regrettably, not many of the recommendations of the Ombudsman are taken into account. Moreover, the reactions of the Ombudsman, the formulated proposals are not welcomed and are defiantly ignored. In private discussions, I was told that what I do is not patriotic. It’s a pity to ascertain again that this attitude derives from the gross misinterpretation of the role and mission of the Ombudsman.

But returning to another reason for which we met, I want to welcome the launch of this project “Injustice Revealed through Multimedia”. Regrettably, in our country there is a lot of injustice and during the period of emergency there are few chances for the situation in this regard to improve. This project is valuable as it can bring the injustice that could be done in this period into the focus of public opinion. What comes into focus can be yet addressed. I wish you success. We, those from the Ombudsman’s Office, will follow the developments in the cases signaled in the discussions at IPN.

– IPN: We said that the injustice that can be done by the state institutions in general and injustice in the classical meaning of the word that can come from the justice sector form part of a broader human rights framework. What start line should we set off from? How can you characterize the state of human rights in the Republic of Moldova before the coronavirus outbreak and what are the successes and failures, the more and less sensitive sectors, eventually in comparison with other periods or with other states?

– Mihail Cotorobai: Moldova’s convictions by the Court in Strasbourg show that before the declaring of the state of emergency, our country also allowed human rights violations, but the risk of departing further from the commitments undertaken when ratifying human rights treaties is now more imminent than ever. This fact is influenced by the crisis situation that forces the authorities to take particular actions that lead to the restraining of particular rights so as to reduce the impact of the novel coronavirus pandemic. Nevertheless, if the authorities intervene with balanced measures to restrain the human rights, proportional to the pursued lawful goal, which would not discriminate against particular vulnerable or underrepresented groups, these risks can be avoided, while the decisions of the authorities can enjoy a more consistent support among the people.

Recently, I transmitted the report on the observance of the human rights in the Republic of Moldova in 2019 to Parliament. The situation is serious. The main conclusion of the report is that 2019 was a year of stagnation. Such a state of affairs was also determined by the political events that happened in the country. At the same time, the report notes that the political changes cannot be accepted as an excuse for the lack of firm actions on the part of the authorities that contribute to the realization of human rights in accordance with the human rights treaties. Among the most serious problems are the following:

– Right to a fair trial (from the angle of efficient and independent functioning of justice, delay in execution of court judgments, lack of a comprehensive legal framework on hate crime, circumventing of the national and international law in the case of expulsion of Turkish teachers);
– Individual freedom and safety of person (excessive application of remand detention);
– Right to respect for family and private life (excessive application of special investigation means, in particular tapping of phone conversations);
– Freedom of expression (lack of safety for expression of opinions, problems concerning access to information of public interest, influence of the political factor on the pluralism of the media, intimidation of independent journalists for criticism leveled at the government);
-Accessibility of social infrastructure for persons with disabilities;
– Detention conditions.

Among the most violated rights is the right to health. Regrettably, in this difficult period faced by the Republic of Moldova and not only, the correctness of the signals issued by the Ombudsman  during the last few years, as regards the quality of the medical services, working conditions of doctors and their inappropriate equipment, insufficiency of modern apparatus and others, is confirmed.

– IPN: Why do the people complain about the violation of their rights so often and so much now? Are there political, economic, social, mentality-related and other reasons?

– Mihail Cotorobai: Because the authorities for now fail to ensure the realization of the basic human rights and freedoms assumed by undertaking international commitments and here the reasons refer to all the areas enumerated by you. On the other hand, the number of complaints about alleged human rights violations is higher because the juridical culture of the people has improved and an increasing number of persons know that their rights are violated and know the institutions where they can seek rights.

– IPN: The epidemiological crisis determined the institution of a state of emergency that, for its part, besides evident benefits, also implies evident limitations of the human rights. Do the issued normative documents and the practice of their implementation ensure the proportionality of the restraining of the danger caused by the coronavirus?

– Mihail Cotorobai: Definitely, the state of emergency cannot suppress the basic human rights. On the contrary, the Government, in the person of the Commission for Exceptional Situations, has the prerogative of ensuring and protecting these rights. Any worsening of the situation is inadmissible and the Ombudsman’s role is to supervise the way in which the authorities ensure the realization of human rights. The Ombudsman’s Office daily records situations of violation of human rights during the state of emergency and intervenes with the respective reactions. Our institution also continuously monitors the ordinances / actions and inaction of the authorities in this regard. We have a new division on the institution’s official website

– IPN: Can you elaborate on the rights of the Moldovans from the diaspora: where do the problems signaled by the Ombudsman’s Office come from, what solutions do you see and how accessible are the authorities for you in the promotion of these solutions?

– Mihail Cotorobai: I think partially the problems that appeared are determined by the fact that the situation is exceptional and solutions should be agreed without delay, very swiftly. Some mistakes are probably committed for this reason. I do not want to believe that there is a reserved attitude towards the Moldovans from the diaspora who want to return home, even if some of the officials made and continue to make inappropriate statements in the created situation, seeing a danger of spread of infection in the representatives of the diaspora. The Moldovans from the diaspora are citizens of the Republic of Moldova. They went to work abroad out of necessity and they financially supported the population by transfers made during so many years. I think the authorities should not forget that even if they left the country, no one annulled and can annul the civilian rights of these people.

Under the provisions of Article 18 of the Constitution, the state protects its citizens both in the country and outside it, while Article 16 of the Supreme Law stipulates that the citizens of the Republic of Moldova are equal before the law and the public authorities, regardless of race, nationality, ethnic origin, language, religion, sex, opinion, political affiliation, wealth or social origin.

Last week, I requested the Commission for Exceptional Situations to review the mechanism by which the Moldovans who enter the country are obliged to buy a health insurance premium for 2020 within 72 hours. Thus, the return of citizens to the native country was conditional upon the existence of this insurance. We evaluated these requirements as being disproportionate during the emergency period. I do not want to take credit for changing the situation in this regard – also other entities, public individuals have taken similar steps – but I am glad to note that these provisions have been modified.

I also condemned the messages that lately appeared in the public sphere, through which representatives of the diaspora were subject to hate speech attacks because they are considered guilty of spreading COVID-19 in the country. To an equal extent, I also condemned the licentious and offensive message of representatives of the diaspora intended for the authorities. However, I underline that, these are hate speech messages and are instigating to hatred. But I did not blame the fact that the diaspora criticized the actions of the authorities, as some of the media outlets put it. The representatives of the diaspora, like other categories of people, can criticize who they want as it is their right to opinion and free expression. It is important that the message should not be insulting and should not incite hatred and discrimination.

– IPN: In the current situation which is very complicated and hazardous for the human life itself, many matters depend on the performance of doctors, their attitude, and understanding of their special duty. But do society and the authorities understand their rights: to life, to health, to remuneration?

– Mihail Cotorobai: Unfortunately, the Ombudsman’s calls regarding the situation in healthcare have not been heard by the authorities in the recent years. And I hope that, if the Ombudsman did not have enough arguments to determine the state to make some changes in this field, then at least COVID-19 will contribute to the enforcement of serious health reforms, including the perception of the population regarding the importance of strengthening the health system, but also compliance with basic hygiene rules.

– IPN: The state of emergency has brought serious changes in the activity of justice: of judges, prosecutors, lawyers, notaries, bailiffs and other jobs. How do you assess the normative framework adopted during the state of emergency and how does it apply?

– Mihail Cotorobai: In my opinion, some of the new rules imposed by the CES undermine the guarantees of a fair trial and I have recommended revising them. I refer to Ordinance No.4 by which new procedural rules have been set down for the examination of contravention cases that refer to violations of ordinances made by the CES, namely the reduction to 48 hours of the period for challenging administrative penalties. Therefore, in such short timeframes the offenders may not effectively exercise their right to defense. Also, a restricted period (up to 24 hours) is set for challenging the CES’s ordinances, without any possibility of setting a new term.

Law No. 212/2004 regarding the state of emergency, siege and war stipulates that, during these circumstances or situations, the enforcement of rights and freedoms of the citizens could be restricted  under certain conditions, and also in strict compliance with Article 54 of the Constitution. This article expressly states that the restriction of the rights and freedoms stipulated in Articles 20-24 of the Supreme Law is not allowed, while the access to justice, which also includes the right to an effective remedy, is stipulated in Article 20.

The declaring of the state of emergency and the measures applied by the CES aim to restrict movement in a move to prevent the spread of the COVID-19 virus. However, contrary to the general measures required of the population, by Ordinance No. 6, lawyers, notaries and bailiffs were obliged to ensure the continuity of their activity, in compliance with the sanitary-epidemiological norms. Failure to comply with this obligation is subject to disciplinary exclusion from the profession. On the other hand, by the same ordinance of the CES, the activity of the courts was reduced only to urgent cases, the participation in court sessions of lawyers being necessary only in such cases. I consider that these provisions are also quite vague and are contradicting other measures / derogations imposed during this period, including those regarding the application of disciplinary penalties for exclusion from the profession.

– IPN: To what extent do the new rules affect the right of people to equitable justice, protect them from the inhuman and degrading attitude of state institutions and their representatives? What do you think the injured parties whose suits or cases have lasted for years, wasting their health, money and even lives, can do additionally in this period of pandemic?

– Mihail Cotorobai: Unfortunately, people with cases that last for years have no great chance to solve their problems in court during the state of emergency. The system did not work well under normal conditions, but in times of a pandemic it is even less functional. It’s a pity to say this, but it is the truth.

The state of emergency affected both the activity of the courts, as well as the prosecutors, lawyers, bailiffs and notaries. Courts, prosecutors and lawyers have reduced their activity only to emergencies that cannot be postponed. The worst thing is that there are no standard practices.

As far as possible, we are monitoring the state of affairs and regarding access to justice during the state of emergency. We can also be notified by e-mail, in the special box created for this purpose on the official website of the institution or by the telephone numbers that can be found on the site. However, the People’s Advocate is not involved in examining cases that are already in court.

– IPN: To what extent, during this very special period, are the rights of the Ombudsman respected and protected? I think the answer to this question would be significant enough for the human rights issue in the Republic of Moldova, in general, and in this very difficult period we are going through ..

– Mihail Cotorobai: I do not know what you mean when you say “protection of the rights of the Ombudsman”, but I can tell you what I think about respecting human rights as a whole during this period in Moldova. As I said before, since the declaring of the state of emergency, the Ombudsman has sent about 20 applications, notices with recommendations to the public authorities and the Commission for Exceptional Situations. The violation of citizens‘ rights was reported in each of the cases. We have received only two responses to these requests and recommendations, meaning that certain measures have been taken. Now you can reach a conclusion whether or not the rights of citizens are protected during the pandemic.

I want to point out that the Ombudspersons’ recommendations are exclusively intended to help the authorities, by using the powers provided by international standards regarding the functioning of the National Human Rights Institutions – highlighting existing issues and consulting about the actions to be taken. To this end, on March 19, the Ombudsman’s Office asked for an audience with CES chairman, Prime Minister Ion Chicu, to discuss the establishment of a mechanism for cooperation and information exchange between the Ombudsman’s Office and the CES in order to ensure the respect for human rights and freedoms in the Republic of Moldova during the state of emergency. However, the given request was not accepted.

– IPN: Could you compare the attitude of the national authorities and of the international bodies regarding the efforts made by the Ombudsman of the Republic of Moldova in this difficult period for our country, but also for the whole world?

– Mihail Cotorobai: Unfortunately, the input of the Ombudsman’s Office was and it is still more appreciated abroad, by the international partners of the institution and by the expert organizations and bodies of the UN, the Council of Europe. There, the role of the institution and its importance is understood. In each state, where this institution exists, the situation is different. The attitude depends on the willingness of the governmental factor to listen to, acknowledge and accept the Ombudsman’s recommendations. Thus, the Ombudsman’s Office is that institution that reveals the violations, and of course, this disturbs any public authority.