The Venice Commission: Election Code Amendments Limit the Right to Participate in Elections

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Last week the Venice Commission published its conclusions on the bills adopted in Moldova, including the Electoral Code amendment, according to which unconstitutional parties’ members cannot participate in elections for 5 years. The conclusion was based on the Moldovan Parliament speaker’s, Igor Grosu, letter dated 24 July 2023. The joint opinion of the Venice Commission and the OSCE Office for Democratic Institutions and Human Rights was adopted at a plenary session of the Venice Commission. The commission’s opinion states that the law, providing for the disqualification of the unconstitutional party executive body members and members of such a party holding elected office from standing for presidential, parliamentary and local elections for a period of five years, restricts the right to participate in elections. Though this restriction might serve the legitimate purpose of protecting the Constitution and the integrity of a democratic state, it automatically applies only on the basis of party membership and holding a particular office. Thus, there is no distinction between party members who may have actively contributed to illegal acts attributed to a political party and those who were merely performing neutral duties or were unaware of possible wrongdoing of the party. The restriction affects a large group of people, making them collectively responsible for the illegal activities of the party to which they belong, thus depriving them of individualization and therefore due process guarantees. This contradicts the principle of proportionality, IPN reports. The Venice Commission and the ODIHR recommend that the Moldovan authorities, if they want to prevent the unconstitutional party’s members from holding certain elected positions, introduce appropriate criteria and an effective individual assessment. These criteria would limit the right to run only of those party members and/or elected officials whose activities and statements jeopardized the Constitution and the integrity of a democratic state and/or actively pursued the (illegal) unconstitutional party’s objectives. While assessing, one should provide these persons with the full procedural guarantees range, including a sufficiently reasoned decision and the possibility to challenge the rights restriction by providing the opportunity to seek judicial review of the decision on their election disqualification. The opinion says the recommendations’ implementation is necessary in order not to break the balance between the legitimate aim of protecting the democratic state order and national security and the need to protect the electoral rights, without undermining the essential role of all political forces in ensuring pluralism. On 3 October, the Constitutional Court ruled that amendments to the Election Code, which prohibited the unconstitutional and dissolved “Șor” party members from running in elections for 5 years, were inconsistent with the Constitution. On 4 October, the Parliament approved in two readings new amendments to the Electoral Code that would ban representatives of the unconstitutional “Șor” party from standing for election for three years. MPs from the ruling Action and Solidarity party voted in favour of the bill. The document states that persons, who, at the time of the Constitutional Court’s decision to declare a political party unconstitutional, were its executive body members or held elected positions, cannot be elected. The bill clearly establishes criteria for persons who cannot stand for election. Among them are those suspected or accused of committing offences for a political party being declared unconstitutional, guilty of committing acts that resulted in international sanctions, suspended from running in previous elections due to non-transparent campaign financing. This will close the legal gap that led to the Constitutional Court allowing representatives of the unconstitutional Șor party to run the day before.