Author: Gribincea Vladislav

The Institute for European Policies and Reforms (IPRE) and the Legal Resources Centre from Moldova (LRCM) drafted and sent to the Ministry of Justice the Opinion on the draft law amending certain normative acts (Law no. 3/2016 on the prosecutor's office).

IPRE and LRCM's conclusion is that the draft law goes beyond the initially declared area of regulationand intervenes on a series of new areas, which did not constitute the subjectof constitutionality control by the Constitutional Court and set out in Decision no. 13/2020. Also, the proposed changes to the appointment of the Interim Prosecutor General need to be reviewed. We consider absolutely necessary to return to a comprehensive functional analysis before promoting changes related to the mode of access to office, transfer, reinstatement of special degrees, as well as other issues addressed in the draft law, and inclusion of additional provisions related to how to organize the contest for the position of Prosecutor General, including the scorings of candidates and their publication.

This opinion is submitted as a response to the request from the Ministry of Justice for an opinion on the draft law amending certain normative acts in the context of the enforcementof the Decision of the Constitutional Court no. 13/2020 regarding the control of the constitutionality of some provisions of Law no. 3/2016 of February 25, 2016 on the prosecutor's office, sent to IPRE and CRJM on July 4, 2020 (letter no. 03/4962).

The opinion is available in Romanian at: and in English at:

Cu referire la adresarea Cancelariei de Stat a Guvernului Republicii Moldova, nr. Nr.18-23-5936 din 8 iulie 2020,  Centrul de Resurse Juridice din Moldova (CRJM) și Institutul de Politici și Reforme Europene  (IPRE) au examinat proiectul Hotărârii Guvernului cu privire la crearea Comisiei pentru selectarea candidaților la postul de judecător la Curtea Europeană a Drepturilor Omului (CtEDO) și aprobarea Regulamentului privind modul de organizare și desfășurare a concursului pentru suplinirea postului de judecător la CtEDO (în continuare – proiectul) și prezintă în continuare opinia.

Conform Rezoluției  nr.  1646  (2009) a  Adunării Parlamentare a Consiliului Europei, concursul pentru selectarea judecătorilor CtEDO trebuie să fie transparent, echitabil și nediscriminatoriu. Apreciem mult faptul că proiectul propune excluderea probei scrise pentru concursul în cauză. Aceasta lasă spațiu pentru arbitrariu, având în vedere că mulți din membrii Comisiei de concurs ar putea să nu fie atât de calificați ca candidații în concurs. Respectiv, evaluarea candidaților la proba scrisă este extrem de subiectivă. În pofida acestei îmbunătățiri, proiectul nu asigură selectarea candidaților în mod transparent și echitabil.

Pentru mai multe detalii vă invităm să accesați Opinia IPRE și CRJM aici.

The signatory organizations, members of the Civic Coalition for Free and Fair Elections (CALC),

Urge  

The Parliament of the Republic of Moldova:

• to organize public consultations on the draft law no. 263 on amending electoral legislation in a transparent and participatory manner, involving all stakeholders;
• to withdraw from the draft law dangerous provisions on the organization and conducting of a free and fair electoral process, the activity of electoral observers and on the equidistant and correct reflection of the electoral campaign by the media.

On 9 July 2020, the Parliament adopted in the first reading the draft law no. 263 on amendment of the electoral and related legislation, registered by a group of MPs on 19 June 2020. On 25 June 2020, which is 6 days following registration, the Parliament’s Legal Committee on Appointments and Immunities (Legal Committee) approved the report by which the draft law was proposed for adoption in the first reading, mentioning that it was drafted by the Central Election Commission (hereinafter - CEC) with the participation of a number of civil society organizations, including the Civic Coalition for Free and Fair Elections (CALC). Prior to the approval, the Legal Committee did not publicly consult the draft law in accordance with the provisions of the legislation on transparency in decision-making and the Parliament's Rules of Procedure. One day earlier, on 24 June 2020, CALC launched a public appeal calling on the CEC and the Parliament of the Republic of Moldova to ensure a transparent and inclusive process in examining and adopting the draft law on amending electoral legislation and getting ready for the organization of elections during pandemics, which was ignored by the authorities.

In this context, we state that the organization of public consultations of legislative draft laws is an obligation of the parliamentary standing committees and under no circumstances should be conditioned by the organization of consultations by other public institutions. At the same time, we would like to specify the fact that the approval by the CEC of the draft law was preceded by 2 meetings with the CALC representatives, at which the opinions of the Coalition members regarding the necessary amendments to the electoral legislation were presented. These meetings cannot be considered public consultations or debates, they being organized at the request of CALC and CALC members only presented their opinions, without discussing them with all the relevant stakeholders.

On 2 June 2020, the CEC expeditiously approved the draft law for amending the electoral legislation and related laws, by Decision no. 3949, without debating some of the proposals submitted by CALC members. The last ones, according to the CEC Chairperson, were to be sent to the Parliament and the Government together with the voted draft law, but also published on the CEC website. Thus, several of the key proposals made by the CALC member organizations were not found in the draft law.

In this case, by only partially taking over the CALC recommendations, it is impossible to solve the real problems identified by the members of the Coalition, especially regarding the provisions related to: the introduction of the principles of the electoral system; the rules related to electoral campaigning; concepts of inclusiveness, disability, administrative resources, accessibility; publishing and ensuring transparency in the process of drafting / adopting CEC decisions; opening polling stations abroad; complex mechanism for examining complaints; clarity in the forms of responsibility; provisions of the Contravention and Criminal Code on liability for electoral misconduct; proposals for the limitations provided in art. 13 (nomination of candidates for the position of the President of the Republic of Moldova); provisions of the law on political parties, etc.

At the same time, we warn that the draft law no. 263 contains several controversial and even dangerous provisions that could vitiate the election process and refer to several aspects of the electoral process. The most problematic of these refer to the coverage of the election campaign by the media, the activity of observers, the organization of the electoral process and especially ensuring the right to vote of voters in the current epidemiological conditions.

Below are the main findings and recommendations of the CALC on amending electoral legislation and related laws.

Organization of the electoral process

• By an express provision in the Electoral Code, the CEC should be obliged to draw up clear and predictable regulations establishing the manner and conditions for opening of polling stations abroad;
• Retaining the period of exercising the right to vote (art. 58 paragraph (7) of the Electoral Code) and extending the period of activity of the office by a maximum of 3 or 4 hours, based on the real situation in the section.
• It is imperative to reform the way the CEC is set up and operates, by establishing permanent membership status for all CEC members and increasing the institutional will. The reform is to be carried out without delay and implemented in a year, in the summer of 2021, when the mandate of the current composition of the CEC expires.

Ensuring the right to vote of the voter

• It is necessary to review the reduction of voting time by 2 hours (art. 55 of the Electoral Code). In the current pandemic conditions, it is recommended to extend the voting time in order to avoid the crowding of people in the polling stations and to reduce the spread of Covid-19 infection.
• The reduction of the working time of the polling stations during one day must be conditioned exclusively by the extension of the voting period during two days for all voters.

Campaign coverage

• Most proposals by CALC and media NGOs to establish clear and fair rules for media coverage of elections were ignored.
• The proposals to eliminate the ambiguous provisions of articles 69 and 70 of the Electoral Code, which put media service providers in great difficulty in the last elections, were neglected. The obligation to broadcast election debates "in live coverage only in peak hours - between 19:00 and 22:00 on weekdays and between 17:00 and 22:00 on weekends", for objective reasons, cannot be honored by media service providers.
• The draft law proposes to supplement art. 84 of the Code of Audiovisual Media Services with two new para. (101 and 102), which give the Audiovisual Council powers that can be abusively applied by the discretionary sanctioning of media service providers, including by suspending the broadcasting license. The acceptance by the Parliament of the Republic of Moldova of these amendments will have destructive effects on the freedom of the media in the country and, consequently, on the adequate information of the electorate.

Observation of the electoral process

The draft contains provisions that will address and diminish the rights of observers, but also of non-governmental organizations, namely:

• Bureaucratization of the full access to voters and subscription lists, or the procedure for accrediting observers already means a legal effort and commitment;
• Attempt to amend the current provisions that allow the accreditation and activity of observers before the start of the election period, but also after its completion.

At the same time, several amendments to the existing provisions of the draft law are required, namely:

• Inclusion of the provisions regarding the accreditation of observers from the political parties at the stage of collecting subscription signatures, or currently, this right is held only by electoral contestants, who are excluded from monitoring this important stage of the electoral process;
• Establish the exact and clear conditions for the cancellation of the accreditation of an observer, as well as the manner of contesting this decision;
• Clarification of the provision regarding the interdiction to make electoral campaigning for non-commercial organizations, trade unions and charitable organizations (art. 52 paragraph (3) of the Contravention Code). In the proposed version, the provision is ambiguous and can be abusively applied by banning election monitoring, public expression on certain irregularities detected during the election campaign etc.
• Uniformization of the proposed provisions for sanctioning all actors in the non-governmental sphere, or at the moment, for instance, non-commercial organizations can be sanctioned for involvement in any form in the election campaign, and religious cults only for electoral campaigning.
• Impose data transparency (donor name, surname; year of birth; place of work; occupation; source of funding) from the financial reports of electoral contestants.

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The Civic Coalition for Free and Fair Elections (www.alegeliber.md) is a permanent, voluntary entity, comprised of 35 civil society organizations from Moldova, whose aim is to contribute to the development of democracy in Moldova, through advocacy and implementation of free and fair elections according to the standards of ODIHR (OSCE), the European Council and its specialized affiliated institutions.

The appeal in Romanian is available at: and in English at:.

The mechanism of disciplinary liability of judges in Moldova is extremely complex, which induces mistrust in proceedings both on the part of litigants and public opinion, and of judges . Over the last five years, more than 7,500 complaints have been filed to the Superior Council of Magistracy (SCM) regarding the actions of judges, based on which 250 judges have appeared before the Disciplinary Board and 49 sanctions have been applied. For each case, which goes through all stages of a disciplinary procedure, at least five institutions are involved and between 30 and 38 people are allocated.  On average, each case lasts up to  400 days. Thus, the mechanism should be simplified and made more effective  to make the judges accountable, without affecting – in any way  - their independence.  These are the main conclusions of the analytical document “Disciplinary liability of judges in the Republic of Moldova. Evaluation of legislation and practices”, elaborated by Dr. Cristi DANILEȚ, a judge at the Cluj Tribunal in Romania. The analytical document was launched on 10 July 2020 in Chișinău.

The author notes that the dysfunctions of the disciplinary system are related not only to the way the disciplinary offences are being defined, meaning to the procedure of disciplinary liability of magistrates itself, but also to the issues related to the administration of justice and the independence of judges.

Judges should not be disciplinary sanctioned for poor professional performance or violation of ethics. Disciplinary offences must be strictly related to the activity of a judge. Along with strengthening the disciplinary mechanism, efforts must be made to optimize the work of judges - ensuring an adequate number of cases and a sufficient number of judges, and technical staff. At the same time, judges must be protected from pressure from within the system (especially from court’s management), but also from outside (prosecutors and politicians). There are worrying statements that judges who adopted decisions contrary to expectations or tried to  oppose to such influences, immediately dealt with various disciplinary or other procedures, lower grades, or were forced to leave the system.

The Law on Disciplinary Liability of Judges (in force since 2015) and the new Administrative Code (in force since 2019) have burdened the activity of verification and investigation of judges and have overloaded the entities involved in the disciplinary procedure. For instance, in 2019, only for 13 disciplinary sanctions were allocated 30-38 persons, out of which at least 16 were judges. This mechanism involves too many institutions: the Judicial Inspection, the Admissibility Panel, the Disciplinary Board, the SCM, the Court of Appeal and the Supreme Court of Justice, making for a more cumbersome procedure. In order to streamline the process, the author recommends to reduce the allocated time and human resources involved.

The Judicial Inspection and the Disciplinary Board should become in practice autonomous from the SCM. The selection criteria of inspectors-judges must be changed, their number must be increased, and the Judicial Inspection must have its own apparatus. The disciplinary responsibilities of the Disciplinary Board and the SCM overlap, so it is recommended that they be fully delegated from the SCM to the Disciplinary Board. It is also recommended to improve the quality of reasoning the  decisions adopted.

More findings and recommendations related to the efficiency of the disciplinary activity can be found in the analytical document “Disciplinary liability of judges in the Republic of Moldova. Evaluation of legislation and practices”.

The analytical document was developed within the project "Promoting the rule of law through monitoring by civil society", implemented by the LRCM with the support of the US Agency for International Development (USAID).

The document is available in Romanian.