Moldova, Mic-Drop!: A Long-Awaited Ratification of the Istanbul Convention
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Irina Criveț
Koç University
The Council of Europe Convention on preventing and combating violence against women and domestic violence (known as the Istanbul Convention) entered into force on 1 August 2014, after being ratified by 10 Council of Europe (CoE) member states. The Istanbul Convention is the most comprehensive treaty explicitly defining gender-based violence and domestic violence as human rights violations that must be prevented and punished by the ratifying states. By 2021, 34 states had ratified the Istanbul Convention. On 31 January 2022, the Republic of Moldova (Moldova) became the 35th state to ratify the Convention.
Focussing on Moldova’s domestic ratification process, this blog post showcases some recent encouraging developments concerning the Istanbul Convention despite constant disinformation and a populist push against ratification across Eastern European countries. In particular, it discusses the Constitutional Court of Moldova (CCM)’s request to the European Commission for Democracy Through Law (known as the Venice Commission) to clarify the constitutional implications of the ratification. It concludes with a couple of observations about this recent development’s impact at national and international levels. Moldova’s action in ratifying the Convention during these challenging times of political stalemate was a “Mic-Drop” move – a legitimising move by the ruling party that aimed to bring the country in line with the CoE’s requests.
‘Turkey out, Moldova in’: Constitutional Implications of Ratifying the Istanbul Convention
CoE states have shown signs of polarisation around the ratification of the Istanbul Convention. States like Armenia, Bulgaria, Czech Republic, Hungary, Latvia, Lithuania, and Slovakia, have signed the Convention but are dragging out the ratification process. Croatia, Italy, and Romania are resisting fully implementing the Convention despite having ratified it. Poland has announced its intention to withdraw from the treaty, and Turkey, in a historic first, withdrew on 1 July 2021. Turkey’s move has been heavily criticised in the international and constitutional law blogosphere (here, here, and here to name a few). So, what made Moldova so eager to ratify the Convention? Polarisation in Moldova around the ratification is strong, but the domestic ratification process started long before the widespread misinformation regarding the Convention—a fact that has tremendously helped the current administration.
Moldova signed the Istanbul Convention on 6 February 2017. This was followed by a process of aligning national legislation with its provisions. Several international human rights bodies encouraged Moldova to ratify the Convention, and subsequent Governments promised to ratify, except for the last ruling party—the Socialists—which fiercely opposed ratification due to the party’s close ties with the Orthodox Church in Moldova.
The situation on the ground for women in Moldova is worrying. In 2020 alone, almost 13,000 domestic violence cases were registered. Seventy-three per cent of women in Moldova have experienced some form of intimate partner violence. However, the authorities show a ‘sense of general passivity’ when intervening in domestic violence cases. In a move addressing these and other concerns, on 14 October 2021, Moldova’s Parliament voted to ratify the Convention with 54 votes out of 101 in favour, three votes against, and 44 abstentions. Law no. 144 of 14 October 2021 on the ratification of the Istanbul Convention (the ratification law) was enacted by the President of Moldova, Maia Sandu, on 20 October 2021, published in the Official Gazette, and entered into force on 22 October 2021.
The ratification of the Convention has not been without pushback. Two opposition MPs filed a complaint to the CCM questioning the constitutionality of the ratification law. They alleged that Articles 3(c), 14, 28 and 42 of the Istanbul Convention are not in line with Articles 31, 35 and 48 of the Constitution of the Republic of Moldova. The MPs argued that those articles of the Convention breach individuals’ freedom of conscience and children’s right to education, and threaten the institution of family as recognized in the Moldovan Constitution. On 27 October 2021, the President of the CCM, Domnica Manole, requested an amicus curiae brief from the Venice Commission on the constitutional implications of the ratification of the Istanbul Convention. The Venice Commission is the CoE’s advisory body on constitutional matters. Its role is to provide legal advice to members of the CoE in the fields of democracy, human rights and the rule of law. On 14 December 2021, the Commission issued an amicus curiae brief in response.
The Venice Commission’s Position
According to Article 135.1. of the Moldovan Constitution and Article 4.1.a of Law No. 317-XIII on the Constitutional Court of the Republic of Moldova, the CCM (and not the Venice Commission) has to assess the compatibility of the Convention with the Constitution. Article 4.2 of the Constitution stipulates that “wherever disagreements appear between the conventions and treaties on fundamental human rights to which the Republic of Moldova is a party and its domestic laws, priority shall be given to international regulations.” Additionally, Article 8.2 states that “the coming into force of an international treaty containing provisions which are contrary to the Constitution shall be preceded by a revision of the latter.”
To assist in its assessment of the compatibility of the Istanbul Convention with the Constitution, the CCM asked the Venice Commission: “What are the constitutional implications of Articles 3(c), 14, 28 and 24 of the Istanbul Convention on the right of parents to educate their children according to their own religious beliefs and on the concept of the family?”. The Venice Commission provided analysis on each of those Articles. By way of example, article 3(c) of the Convention deals with the definition of ‘gender’ for the purposes of the Convention. The Venice Commission reiterated that by defining the term ‘gender’, the Istanbul Convention recognizes that violence against women as a form of discrimination does not only originate from biological differences between men and women, i.e. sex, but mainly from “socially constructed roles, behaviours and attributes that a given society considers appropriate for women and men”. However, it is for State Parties to decide on types of families and related matters, such as the definition of marriage and adoption. For example, a State Party can define marriage in such a way as to exclude same-sex couples. The Istanbul Convention cannot foresee a different type of family from the one established under Moldovan legislation. The Commission notes that “the concept of ‘gender’ as defined and applied in the Istanbul Convention is reconcilable with, and may even be instrumental to, the protection of the rights and freedoms laid down in the Constitution, and with the values incorporated in the notion of ‘family’ as a ‘natural and fundamental element of the Moldovan society’” (at [32]). Thus, the Venice Commission concluded that Istanbul Convention does not regulate family life itself and does not explicitly require the approval of same-sex partnerships. It only criminalizes forced marriages because it considers them a form of violence.
Taking stock of the Venice Commission brief, on 18 January 2022 the CCM issued an inadmissibility decision, refusing to accept the MPs' complaints on the basis that their arguments were not substantiated.
Moldova, Mic-Drop!
The CCM exhibited due diligence and interest in asking the Venice Commission for advice concerning the ratification of the Istanbul Convention. This could be seen as the CCM acting tactically to have on its side the opinion of an international institution presenting clear arguments to the opposition’s anti-constitutional claims.
The ratification of the Istanbul Convention comes after years of awareness-raising and fighting misconceptions regarding the scope of the Convention. To help with speeding the ratification process, the CoE supported Moldova with awareness-raising programmes. There is no doubt that ratification is just the first, but a significant, step in implementing the Istanbul Convention. As implementation progresses, it is essential that the CCM has a firm stance on and a clear vision of what the Convention provisions mean and their impact in practice. Moldova’s ratification may not influence other states to follow it but will certainly put the country in a better light.
The process of Moldova’s ratification has also invited the Venice Commission to once again provide clarification as to the definition of gender, one of the most misused provisions of the Istanbul Convention by Poland and Turkey to advance their arguments for withdrawal. The Istanbul Convention must be considered the basis for “a holistic response to all forms of violence against women and girls” (at [58]) and disinformation around the treaty must be addressed continuously.
Editors’ note: For further commentary on the Istanbul Convention, please see the Gender and Constitutions Symposium hosted on the IACL-AIDC Blog in February 2021: https://blog-iacl-aidc.org/gender.
Irina Criveț is a PhD Candidate in Public Law at Koç University, Istanbul
Suggested Citation: Irina Criveț, ‘Moldova, Mic-Drop!: A Long-Awaited Ratification of the Istanbul Convention’, IACL-AIDC Blog (12 May 2022) https://blog-iacl-aidc.org/new-blog-3/2022/5/12/moldova-mic-drop-a-long-awaited-ratification-of-the-istanbul-convention.
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