Implementation mechanisms and possible effects of new anti-separatism legislation. IPN debate

There has been real separatism in the Republic of Moldova for over 30 years, with self-styled state bodies and real leaders there, with an army, ammunitions and intelligence services that are in the service of separatism and that the Moldovan legislation ignored and didn’t assess according to their value and somehow else. De facto, this means separatism is inexistent. But this phenomenon has had a huge negative impact on the life of society and the state, on the present and future of all the country’s citizens. Last Thursday, Parliament filled this vacuum, generating different reactions at internal and external levels, which are expected to be followed by other reactions. The new provisions of the anti-separatism legislation, the reasons for the appearance of this at this moment, the implementation methods and possible beneficial and less beneficial effects were analyzed by experts invited to IPN’s public debate “Implementation mechanisms and possible effects of new anti-separatism legislation”.

Igor Boțan, the permanent expert of IPN’s project, said separatism is a political movement or current by which a particular entity or group, for cultural, religious or political reasons, supports or promotes the separation of a particular territory from a state. Last week, the Penal Code of the Republic of Moldova was supplemented and separatism was defined as actions taken to separate a part of the territory from the Republic of Moldova, by violating the provisions of the national legislation or of international treaties to which the Republic of Moldova is a party. It also goes to the production or distribution of material and information that incite such actions in different forms or ways.

According to the expert, the new provisions are something of a novelty for the Penal Code of the Republic of Moldova. The penal legislation is the main instrument of the state in the fight against crime. “The criminal law is designed to defend from offenses both persons and legal entities, primarily the rights and freedoms, possessions, the environment, the constitutional order, sovereignty, independence and territorial integrity of the Republic of Moldova. The penal legislation is also designed to prevent the commission of new offenses,” explained Igor Boțan.

He noted the international experience related to separatism is very rich. Different block of states possess penal legislation that discourages and punishes separatism. For example, separatism in China equals terrorism, while the punishment in this regard us very harsh. If the separatism activities are accompanied by violent actions, the punishment can be in the form of long jail terms or even capital punishment. There are such provisions in India too.

As regards the CIS space, in Belarus, for example, the inciting of actions to the detriment of the country’s territorial integrity is punished with at most five years in jail. In Kazakhstan, in 2014, immediately after the events witnessed in Crimea, the legislation was supplemented with harsh punishment for separatism. There is clear delimitation between the calls to separate and the taken actions. Also, the Russian Federation at the start of 2013, and then in 2020, introduced very harsh punishments for inciting of separatism in the Penal Code. In countries with established democracies, separatism is punished, but in these states, such as Spain, the U.S. and Canada, the debates on separation and the relevant actions are clearly delimited.

Political commentator Anatol Țăranu, doctor of history, said the amendments to the Penal Code were adopted with a delay of over 30 years as territorial separatism in the Republic of Moldova appeared before the Republic of Moldova declared its sovereignty and independence. “Territorial separatism appeared in the times of the Soviet Union. It was mainly inspired from outside even if there were also internal conditions for the appearance of separatist movements. I consider the external factor was a decisive one. There are documents showing that the Soviet leaders at the last phase of the existence of the Soviet state took measures to inspire separatism in a number of places of the former Soviet Union so as to stop the dismemberment of the Soviet Union,” said Anatol Țăranu, Moldova’s former ambassador to Russia.

According to him, warnings were made in Moscow against the then chairman of the Supreme Soviet Micea Snegur. “More exactly, Mikhail Gorbachev warned him that if Moldova insisted on the procedure for departing the Soviet Union, he would face separatist movements in Transnistria and Gagauzia and this actually happened.

“Why did we reach this formula in the Penal Code so late? Because we were born with separatism inside. The Republic of Moldova didn’t exist as an independent state under the territorial integrity formula for at least a day. From this viewpoint, separatism is an important element in our state genes. This negligence of the necessity of addressing separatism from the angle of the Penal Code on behalf of the officials in Chisinau derives from here,” noted Anatol Țăranu.

According to him, an attempt was made to solve the problem of separatism by force in 1992, when the Nistru war broke out. But this attempt ended in failure for the simple reason that not only the separatist paramilitary forces fought against the national army that was being built, but also the Russian army. “Respectively, it was a Moldovan-Russian war that ended with an agreement that was actually an agreement of capitulation on behalf of the Republic of Moldova. Also, particular conditions were imposed by this convention of 1992 and it defined the main lines of the political Transnistrian conflict settlement in the formula agreed in Moscow,” stated Anatol Țăranu.

Lawyer Alexandru Postica, co-founder of Promo-LEX Association, said that legislation on separatism is undoubtedly necessary. “We should not forget how the war in Ukraine started – owing to the New Russia that is planned to be founded. I’m not a specialist in Ukrainian legislation, but I realize that they weren’t prepared to penalize manifestations of separatism against the law one way or another. That’s why explaining to the population how it is to live without separatism is a difficult task for the current government,” he stated.

According to Alexandru Postica, the new provisions contain a number of elements. The legal aspect, namely the composition of such offenses, is one of these. “Particular principled inconsistencies were noticed in the text of the law and these will hamper the holding of the culprits accountable. These refer also to the use of particular actions, such as the serious endangering of security or very abstract notions that are not clear enough. Evidently, if particular accusations are made against particular persons, such cases will definitely reach the Constitutional Court, which will have to examine these norms in terms of their constitutionality, especially because the supreme law allows offering autonomy to particular districts from the left side of the Nistru,” said the co-founder of Promo-LEX.

Alexandru Postica also referred to the human rights aspect of the new legal provisions, namely the freedom of expression. “What guarantees that they would not be held accountable for separatism actions would particular persons who express themselves publicly enjoy? I believe the current legislation ensures a rather high level of security for the freedom of expression and, to my mind, the freedom of expression is somehow affected by these norms. Moreover, we speak about pressure exerted by the Russian Federation on the way in which these laws were adopted. I want to note that these norms will not have a retroactive effect. It’s clear that a criminal law refers to the future actions and does not have a retroactive effect. Consequently, I do not see any risk for those who committed such offenses during 30 years,” stated the lawyer.

The public debate entitled “Implementation mechanisms and possible effects of new anti-separatism legislation” was the 271st installment of IPN’s project “Developing Political Culture through Public Debates” that is supported by the Hanns Seidel Foundation.

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