Skip to main content

New Law on Access to Information adopted with assistance of the EU-Moldova Association Project

Moldova presented its membership application to the EU on 3 March 2022, shortly after Russia began its invasion of Ukraine. The European Commission issued its opinion on Moldova’s application on 17 June 2022 and the European Council granted Moldova the candidate country status on 23 June 2022. The European Council underlined that the future of Moldova and its citizens lies within the European Union and asked the European Commission to report on fulfilment of the nine conditions specified in its opinion. The conditions concern justice system reform, fighting corruption and organised crime, de-oligarchisation, reform capacities and public administration reform, public financial management including public procurement, enhancement of the role of civil society, and strengthening the protection of human rights. Commission reported on progress in spring 2023, additionally a report will be provided within the annual enlargement package, which will be published in October 2023. It is expected that, once the conditions are met, the European Council in December 2023 will authorise the beginning of negotiations, which Moldova hopes will start in 2024.

Enhancing the involvement of civil society in decision-making processes at all levels is one of key EU conditions to proceed in EU integration process and Moldova significantly contributed to its fulfilment with adopting of the new law regulating the access to public information.

The law adopted on 9 June 2023 by the Parliament of Moldova will require public institutions to publish more information proactively on their websites, shorten deadlines for processing public information requests and streamline the judicial review of decisions of public bodies relating to access to information of public interest. The law will enter into force in January 2024. The project “Support for structured policy dialogue, coordination of the implementation of the Association Agreement (AA) and enhancement of the legal approximation process for the Republic of Moldova” (EU-Moldova Association Project) was the main partner assisting the Ministry of Justice in the process of preparation of the new legislative framework in this area at all stages of the legislative process.

The current law on access to information, adopted in 2000, does not meet international standards and best practices regarding the transparency of public authorities. In particular, as gap analysis provided by the EU-Moldova Association Project demonstrated, this law fails to promote proactive transparency and ensure effective enforcement of the constitutional right to information, including the mechanism for sanctioning violations of this right. Further, it does not secure monitoring of administrative and judicial practice, e.g. collection of data on the number of requests for public information, as well as inspections and regular checks on how public bodies observe their transparency obligations.

The new legislation prepared with extensive support of the EU-Moldova Association Project, addresses most of the shortcomings. It broadens the catalogue of entities subject to transparency requirements. It contains a broader definition of public information, particularly reflecting the concept of transparency enshrined by the Trømso Convention, regulating this area at the level of international law. Further, it contains a non-discriminatory definition of entities enjoying the right of access to information. It should be noted that the current Law on Access to Information, despite the constitutional guarantee of universal right of access to information of public interest, restricts this right only to the residents of Moldova. Legal persons, as well as foreigners who are not residents of Moldova, are not included among beneficiaries of the right to information.

It is important to underline that the new law includes a wide range of information to be disclosed proactively on the websites of public institutions. This will include, e.g. information on:

  • data on structure and budget of the authority, the number of employees/members, data on its objectives and functions, contact data;
  • data on planning and execution of budgets by the public authority;
  • data on planned public procurements, on completed public procurements, monitoring reports on public procurement contracts, other relevant information;
  • on official visits and business trips abroad of public authority personnel, including the cost and source of financing the expenses;
  • the data regarding the employment: the list of competitions for the existing vacant positions, the contact details of the person responsible for organizing the competitions, the qualification requirements for the candidates for the vacant positions, the competition participation form, the list of documents to be submitted and the deadline – limit for submitting them, the list of people admitted to the competition, as well as the list of people who won the competition.

Legitimate restrictions in access to information are contained in a narrow and specific list. Their application will require public bodies to conduct so-called public interest test, i.e. demonstrating that the need to restrict the access to information clearly prevails over public interest in providing access to it. The test is performed through a simplified procedure for review of decisions of public institutions relating to access to information. Providing direct access to the court combined with special measures simplifying and speeding up the court procedure should enhance the effectiveness of the judicial review in cases relating to access to information.

Finally, the new law contains a detailed list of violations of the right to information subject to legal liability combined with new regime of legal liability, according to which sanctions will be imposed by the court while reviewing complaints against decisions and omissions of public institutions regarding access to information. Currently, the effectiveness of enforcement suffers from the lack of detailed list of violations of the right to information that is subject to sanctions and ineffective mechanism for imposing sanctions, relying on the Contravention Code and Criminal Code provisions. According to the Administrative Offenses Code, deliberate violation of the legal provisions regarding the access to information shall be sanctioned with a fine applied to the person in charge. However, this very general provision is rarely used in practice.

According to the Article 180 of the Criminal Code, intentional violation by responsible official of the right to information that caused considerable damage to the rights and interests protected by law of the person who requested information, shall be penalised with a fine, with (or without) deprivation of the right to occupy certain positions or to exercise certain activities for a period of up to 3 years. However, this provision of the Criminal Code remains a dead letter. According to data obtained by the Ministry of Justice, no cases based on Article 180 of the Criminal Code have been ever recorded.

Considering these improvements, overall assessment of the new Law on Access to Information of Public Interest is positive. It is clear that it marks a significant step forward, compared to the current legislative framework. It remains in line with the Trømso Convention and other international standards in this field.

The EU-Moldova Association Project will continue its assistance by providing support to the implementation of the new legislative framework. This will include the preparation of practical commentary to the law, as well as trainings to the public authorities and judges on the application of the new law.

The EU-funded project “Support for structured policy dialogue, coordination of the implementation of the Association Agreement (AA) and enhancement of the legal approximation process for the Republic of Moldova” aims at increasing the capacities of the Moldova Government and other key national institutions in implementing the EU-Moldova Association Agreement. After Moldova’s receipt of EU Candidacy Status, the Project is ready to offer advanced assistance for strengthening the Moldovan administration to be ready for the next steps in EU integration process.