Parliament’s amendments to the Electoral Code restricting the participation in elections of several representatives of the former Shor party for five years, declared unconstitutional in the meantime, contravened the principle of proportionality and could have led to arbitrariness.

This is the opinion of the Venice Commission, which was asked by the legislature in Chisinau a week before voting on the draft law in its final reading in July whether a three-year restriction on standing for election (for people holding leadership or elected positions of a party that has been declared unconstitutional) would be effective and proportionate.

According to the Commission, while such a restriction may serve the legitimate purpose of defending the Constitution and the integrity of the democratic state, it automatically applies solely on the basis of party membership and the holding of a particular office, without distinguishing between party members who may have actively contributed to the illegal acts attributed to the political party and those who merely performed “neutral duties” or who were “unaware of any illegal acts committed by the party”.

“The restriction affects a large group of persons, making them collectively responsible for the illegal activities of the party to which they belong, thus lacking individualisation and therefore guarantees of a fair trial,” the Council of Europe’s advisory body says.

The Venice Commission and the Office for Democratic Institutions and Human Rights (ODIHR) therefore recommends that the Moldovan authorities “should they wish to prevent certain members of parties declared unconstitutional from holding certain elected positions”:

• introducing appropriate criteria and an effective individual assessment limiting restrictions on the right to be elected only to those party members and/or elected officials whose activities have endangered the Constitution and the integrity of the democratic state, through their actions and expressions, and/or have actively pursued the (illegal) objectives of unconstitutional parties;
• granting such persons all procedural guarantees in the review 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 disturbing the balance between the legitimate objective of protecting the democratic order of the state and national security and the need to protect individual electoral rights, without disproportionately undermining the essential role played by all political actors in ensuring pluralism and without threatening the representative character of the legislature,” the Commission explains.

The European institution also pointed out that two other amendments to the law “directly affect” the right to stand for election and, as such, also need to be examined to check compliance with the principle of proportionality.

The new provision in the Law on Political Parties stipulates that the attributes of political parties declared unconstitutional (name, symbol, logo, etc.) cannot be used by other political parties and electoral subjects.

The use of such attributes will result in the refusal of the registration of the political party by the Public Service Agency (ASP) or the refusal of the registration of the party.

“While prohibiting the use of attributes of a banned political party cannot, as such, violate any international standard, the automatic refusal to register a political party or electoral subject for the use of such attributes is disproportionate in light of the nature of the act. Alternative corrective measures, such as warnings and a range of fines, would be in line with the principle of proportionality applied to such conduct.

The same analysis is applicable to a new provision in the Electoral Code which provides for the de-registration of an electoral subject if a competent electoral body finds that he or she is responsible for vote buying, regardless of the seriousness of the conduct (Article 102(5)(f)). The introduction of a series of administrative sanctions and their individualisation, with de-registration reserved only for the most serious cases or patterns of vote buying, would be in line with the principle of proportionality”, the European experts concluded.

On Tuesday, 3 October, the Court declared unconstitutional the provision restricting the right to be elected of persons who, at the date of the CC ruling on the declaration of unconstitutionality of a political party, were members of the executive body of the political party declared unconstitutional, as well as persons holding elective office in the political party declared unconstitutional, for a period of 5 years from the date of the ruling of the Constitutional Court.

The following day, the Parliament voted in first and second reading on the amendments to the Electoral Code. This means that people who:

1. persons are suspected, accused or charged of committing offences that were mentioned by the Court as an argument in the context of the declaration of unconstitutionality of the political party;
2. have been excluded from a previous election as a result of a violation of the principle of transparent financing, and this fact was taken as a separate argument in the declaration of unconstitutionality of the political party;
3. they are guilty of acts which have led to their inclusion on the international sanctions lists of international organisations or states, and this is a particular circumstance which was taken into account by the Court in the judgment declaring the party unconstitutional.
4. have carried out other acts which, without expressly falling within the scope of the actions referred to in points 1) to 3), were mentioned as arguments retained in the Constitutional Court’s judgment declaring the political party unconstitutional.

In order to apply the given restriction, the General Inspectorate of Police, the National Anti-Corruption Centre, the Intelligence and Security Service and the General Prosecutor’s Office together with the specialized prosecutors’ offices were to submit to the Central Electoral Commission the information on the persons falling under the given criteria, expressly mentioning the respective criterion. The Central Electoral Commission, on the basis of the information submitted, drew up the list of persons falling under this new restriction and communicated it to the electoral bodies, which will take it into account when applying the restriction in the context of the registration of electoral contestants.

The law supplementing the Electoral Code also provides for the possibility of challenging administrative decisions applying the restrictions before the Chisinau Court of Appeal.