Legal analysis of the compliance of the so-called Law on Separatism with international rules and provisions of the Moldovan Declaration of Independence in a conversation between Vadim Krasnoselsky and Nikita Kondratov, journalist of Pridnestrovian State TV & Radio Broadcasting Company
Nikita Kondratov, First Pridnestrovian TV:
Good day, Vadim Nikolayevich! Last week we remembered who destroyed the Moldavian SSR in the early 90s. Now, we hear the same slogans: deportation of Pridnestrovians, who disagree with the policies of Chisinau. Another option from Chisinau authorities is a prison for Pridnestrovians, that is, the Law on Separatism, adopted last year. How can you comment it?
Vadim Krasnoselsky, President of the PMR:
Yes, Nikita, a week ago we proved, not told, but showed conclusively who destroyed the statehood of the Moldavian SSR. This was done by the MPs of the MSSR from Moldova in an effort to secede from the Soviet Union, and at the same time from the Moldavian SSR. I want to remind you that this is a fundamental evidence why Moldova left the Moldavian SSR.
I remind you that Pridnestrovie was established on September 2, 1990 - upon adoption of the Declaration of Independence in Moldova on June 23, 1990 - and was called the PMSSR, the Pridnestrovian Moldavian Soviet Socialist Republic. That is, their MPs declared that Moldova was leaving the Soviet Union, the Moldavian SSR, but we remained in the Soviet Union. Then, when the Soviet Union dissolved, we called us the Pridnestrovian Moldavian Republic. Before that, we were called the Pridnestrovian Moldavian Soviet Socialist Republic.
If the MPs of the Supreme Council of Moldova decided that the laws and Constitution of the USSR did not apply to the new entity - Moldova, then the laws and Constitution of the Soviet Union were in effect in Pridnestrovie. We did not leave the Soviet Union.
As time went. Moldovan politicians are trying to forget, level out, and retell a story that is negative for them. Some say it was a long time ago. But this is the fundamental document of this state.
Last year, parliament went even further; the current party initiated the so-called Law on Separatism. After its signing on March 18, 2023, it came into force. More than thirty years have passed. Why do Moldovan politicians and legislature suddenly need this set of laws? This is not one law, but eight articles of the Criminal Code; this is a set of articles on separatism. I’ll voice them. What actions are criminally liable? Establishment of an unconstitutional entity, establishment of an illegal information structure and its functioning. The concepts of “espionage”, “conspiracy against the Republic of Moldova”, “unauthorized collection of information”, “separatism”, and other articles are amending. Although, the most important question from a lawyer’s point of view is why was it necessary to single out “separatism”? Separatism is not criminalized anywhere in the world. There are many articles in the Criminal Code of any state for prosecution of some anti-state actions. Why did they highlight separatism? What comes after this? What does it violate?
Here we return again to the Declaration of Independence of the Republic of Moldova, where everything is stipulated. We open and read, “...confirming the equality of peoples and their right to self-determination in accordance with the UN Charter, the Helsinki Final Act and the international law...”. That is, the Declaration of Independence of Moldova confirms the right of peoples to self-determination. This is the first point. Second, the Declaration “...announces the willingness to accede to the Helsinki Final Act and the Charter of Paris for a New Europe and also requests admission on equal terms to the Conference on Security and Cooperation in Europe and its mechanisms.” What can we say?
Nikita Kondratov, First Pridnestrovian TV:
That the Moldovan authorities did not read the Declaration of Independence?
Vadim Krasnoselsky, President of the PMR:
My impression is that they did not read the Declaration at all and did not intend to read it, because all articles on separatism directly contradicts the Declaration of Independence, which clearly states the right of peoples to self-determination, including residents of Moldova.
Then. Since the Declaration of Independence refers to the UN Charter, the Helsinki Final Act, and the Charter of Paris, let us read these documents as well. Of course, they are long documents. I chose the provisions on separatism and the right of peoples to self-determination. Here is it, the Law on Separatism contradicts the UN Charter, to which the Declaration refers. This Charter provides:
Article 1: To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples. You see? The UN Charter directly speaks of self-determination of peoples.
Article 55: With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples… Let’s come back to the Declaration, which speaks about it, puts emphasis on it, and to the Law on Separatism, which completely contradicts it.
Next is the Helsinki Final Act, which is again referred to in the Declaration of Independence. Chapter 8: Equal Rights and Self-Determination of Peoples states “The participating States will respect the equal rights of peoples and their right to self-determination.” That is, the people have the right to control their own destiny. Here: “By virtue of the principle of equal rights and self-determination of peoples, all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development”.
No problem, everything is written well - both in the Declaration and in the Helsinki Final Act, but the wording in the legislation of Moldova is very bad.
And then, the Charter of Paris. What is expected for the new Europe? Friendly relations between participating states: “We reaffirm the equality of peoples and their right to control their own destinies in accordance with the UN Charter...” Everything is clear. Nevertheless.
The Law on Separatism was taken into account not only by Pridnestrovie or residents of Moldova. The international agency also drew attention to it, and, probably, for the first time an international organization spoke out sharply against this document. Moldovan politicians are modestly silent about it. Let’s take this document as well: Comments on the Criminalization of “Separatism” and Related Criminal Offences in Moldova, issued in Poland on December 4, 2023. These Comments have benefited from contributions made by Helen Duffy, Professor of Human Rights and Humanitarian Law, University of Leiden; Alan Greene, Reader in Constitutional Law and Human Rights, Birmingham Law School, United Kingdom, and Tamara Otiashvili, Senior Legal Expert in Human Rights and Democratic Governance. These are excerpts from the ODIHR Comments regarding criminalization of “separatism” in Moldova, issued in Warsaw on December 4, 202
What’s interesting here, let’s read it. Again, the document is very long – 50 pages and excerpts will be of interest to us: “International law offers no definition for the term “separatism”, nor a basis for its criminalization or prohibition, unless the means (or actions) advocating secession or autonomy or directed against territorial integrity are violent, undemocratic or illegal from the international law point of view. In the past, ODIHR has warned against considering “separatism” to fall within the scope of criminal law.” Then, “…criminalization of so-called “separatism” raises fundamental human rights issues… The criminal offence of “separatism”, as contemplated in the adopted amendments, risks criminalizing the mere expression of opinion or ideas and may also be used as a pretext to suppress peaceful advocacy or views for different territorial arrangements, autonomy or even independence.” Here is the opinion of international human rights lawyers.
Next excerpts. Clause 22: “The ECtHR has specifically recognized that advocating for the secession of part of the territory of a country via peaceful means is protected by the ECHR.” The European law protects it! Moreover, Clause 24: “More broadly, political speech, support or advocacy for the formation of a new state, whether pursuant to the right to self-determination or not, should not be criminalized unless it crosses the line of incitement to violence or to commit other criminal offences that are defined in compliance with international human rights standards.” Then, Clause 33: “the Court (ECtHR) has underlined that calling for autonomy or even secession of part of a country’s territory – in speeches or through demonstrations – cannot automatically be considered to amount to a threat to a country’s territorial integrity or national security, if advocated using peaceful means.”
Clause 50: “An association or a political party that pursues or promotes advocacy of secession or autonomy of a given region through democratic and peaceful means is not contrary to the ECHR… and should enjoy protection under international law.”
That is, international law protects the opinion of the Pridnestrovian people, who strive for secession, for independence. In fact, we are not even talking about separation here. We are different states. As I said earlier and proved it, Moldova destroyed the Moldavian SSR. Yet, the Law on Separatism appeared. A question to distinguished ladies and gentlemen, you are going to Europe, as it seems; but how do you want to join Europe with this law, which completely contradicts your Declaration of Independence, which completely contradicts international law? And how are you, European ladies and gentlemen, going to take over Moldova with this law, which completely contradicts the foundations of European democracy? This is a direct defamation of European morality, European values of the right to life, to freedom, etc. And everyone is calm about it... Although it seems to me that they are not really calm about it.
Nikita Kondratov, First Pridnestrovian TV:
At the same time, observers within the negotiation process, including the EU, criticized this Law on Separatism. This is the only moment when they were of the same opinion.
Vadim Krasnoselsky, President of the PMR:
That’s what I was talking about. Western agencies, European commissions, including ODIHR, criticized this document. But the question is: why did Moldova, realizing that it completely contradicts the Declaration of Independence, and all European standards, the UN Charter, still accept it and sign it? Should there be some kind of goal? In my opinion, there are three points of concern. Maybe they are the goal.
The first is the 1992 war. Moldovan politicians, who started this massacre on the Dniester, are still liable in the eyes of the law. No one was held accountable. Maybe this Law on Separatism will vindicate them. That is, they allegedly fought against separatism. They fought for what Moldova actually destroyed. Maybe as an option. The second direction or the second possible reason for the adoption of this Law on Separatism is that Moldova has long been torpedoing the high-level negotiation process. Since 2019, Moldovan negotiators have been blocking the 5+2 format. And the Law on Separatism does not imply a negotiation process at all. Do you get it? In fact, they made own politicians and negotiators criminally liable. Any negotiators who talk about certain forms of reintegration today fall under the article on separatism. I even said at the last meeting with OSCE that the OSCE falls under the Law on Separatism. In fact, the Law on Separatism puts an end to the negotiation process. Maybe this is the goal? It is possible. There is one more, third task or goal (as an option), i.e. the so-called internal opposition. Everyone perfectly understands the troubled Gagauzia, other politicians, rallies, appeals, and so on. Perhaps this law is aimed at the so-called discipline of internal opposition? May be. Or may be all three goals.
Nikita Kondratov, First Pridnestrovian TV:
Maybe this is another lever of pressure on the Pridnestrovians?
Vadim Krasnoselsky, President of the PMR:
It needs no saying. It works like a lever. The law has never been applied to Pridnestrovians – it is true. But it is actually an element of blackmail. This law is, you know, like know-how in jurisprudence. Separatism is criminalized nowhere globally, but in Moldova. It is ahead of the rest, however, in own interests. But they modestly kept silent that it contradicts all European legislation, the UN Charter and the Declaration of Independence of Moldova.
Once again: dear Moldavian politicians, carefully read out your Declaration of Independence, which has supreme legal force over the Constitution of your state. You must unconditionally fulfil it from A to Z, not only in the part of the Romanian language that you did, but in general, and comply with this Declaration.
My conclusion: the power of Moldova is on its own, the laws are on their own, the people are on their own. And all this is declared as a desire to join the European Union. The aspiration may be is good, but Europeans need to think and still set certain tasks, give a kind of “homework” to Moldovan legislators and politicians, so that they fulfil it and bring it to the Europeans for verification. A serious conversation is possible, once they receive a positive mark. As I understand it, as a person, as a lawyer, as a citizen. In any case, the choice is ultimately up to the people of Moldova, but this cannot be overcome.
Nikita Kondratov, First Pridnestrovian TV:
The first task is to read the Declaration of Independence.
Vadim Krasnoselsky, President of the PMR:
Well, know cold. It cannot be in any other way.
Peoples live. There are Pridnestrovians, there are people living in Moldova. Moreover, the same ODIHR comments say “...the particular national and regional context at hand, where Moldova does not exercise effective control over parts of its territory, should also be noted.” That is, when making decisions, you still need to be realistic and look de facto at what is happening, what peoples live... But we will talk about what peoples live next time.
