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Venice Commission publishes Opinion on amendments to Electoral Code of Moldova

The Venice Commission on Monday published an Opinion on the amendments to the Electoral Code and other related laws concerning ineligibility of persons connected to political parties declared unconstitutional. By a letter of 24 July 2023, Igor Grosu, Speaker of the Parliament of the Republic of Moldova, submitted a request for an opinion of the Venice Commission on these amendments. As this Opinion relates to the electoral field, it was prepared jointly by the Venice Commission and ODIHR and was adopted at a plenary session of the Venice Commission, IPN reports.

In its Opinion, the Commission noted that the Law which provides for the ineligibility to be elected in presidential, parliamentary and local elections, for five years, of members of the executive body of a party declared unconstitutional and members of such a party who hold an elected office, restricts the right to stand for election. While this restriction may respond to the legitimate aim to defend the Constitution and the integrity of the democratic State, it applies automatically on the sole basis of the party membership and holding of a specific position, and indiscriminately without distinguishing between party members who may have actively contributed to the illegitimate acts attributed to the political party, from those who were only performing neutral duties or were unaware of the potential unlawful acts committed by the party. The restriction affects a large group of persons, making them collectively responsible for the illegitimate activities of the party they belong to, thus lacking individualization and therefore due process guarantees. This goes against the principle of proportionality.

The Venice Commission and ODIHR therefore recommend to the Moldovan authorities, if they wish to prevent certain members of parties declared unconstitutional from holding certain elected offices,  introducing adequate criteria and an effective individual assessment that would limit restrictions of the right to be elected only to those members and/or elected officials of the party whose activities have endangered the Constitution and the integrity of the democratic State, through their actions and expressions, and/or actively pursued the (illegal) goals of the unconstitutional parties. It is also recommended affording to these persons the full range of procedural safeguards in the assessment process, including a sufficiently reasoned decision and the possibility to challenge the limitation of rights by providing an opportunity to seek judicial review of the decision to deprive them of the right to stand for election.

The implementation of these recommendations is essential to avoid upsetting the balance between the legitimate aim of the protection of the State’s democratic order and national security and the need to protect individual’s electoral rights, without disproportionately undermining the essential role played by all political actors in ensuring pluralism.

The provisions on the ineligibility to be elected addressed in this Joint Opinion were declared unconstitutional by the Constitutional Court on 3 October 2023. On 4 October 2023, the Parliament of the Republic of Moldova adopted a new article of the Electoral Code which provides for new causes for ineligibility to be elected. The Venice Commission and ODIHR are not in a position to analyze these amendments in the present Opinion.

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