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882/2017 - Kazakhstan - Opinion on draft amendments to the Constitution of Kazakhstan

Text(s) examined
CDL-REF(2017)017  English  24/02/2017 -  Public
Kazakhstan - Comment on Draft Amendments to the Constitution of Kazakhstan  
Measures recommended
The President should not have the power to impose on the parliament which draft laws are to be examined as a matter of priority. The right to appeal on already enacted legislation could include the Parliament and a relevant number of members of the Parliament which could help to develop stronger constitutional review system in the country. The list of areas to be reviewed by the Constitutional Council before any constitutional amendments are voted should include the democratic form of government and unalienable constitutional rights. Further consideration of limitation of supervision powers of the prosecutors not only in legislation but also on a constitutional level would be a positive step in line with the international standards. The new provisions on the prosecutors office and on Constitutional council will require a reform of the existing legislation. The re-distribution of powers between different institutions will need a reform of the public administration. Any future reform of the constitution should include changes concerning property rights (the initial proposal to liberalise the corresponding provisions of the constitution were excluded from the final version of the constitutional revision).

Measures taken by the State
A new law on the prosecutors office was adopted in 2017. The authorities are preparing changes to legislation concerning the judiciary and administrative procedure.



883/2017 - Armenia - draft Law on the Constitutional Court

Text(s) examined
CDL-REF(2017)019  English  02/03/2017 -  Public
Armenia - Draft Constitutional Law on the Constitutional Court 
Measures recommended
The Venice Commission welcomed the draft Law on the Constitutional Court as a positive step in ensuring the Constitutional Court of Armenia’s role as an effective guardian of the Constitution. It nevertheless made the following main recommendations: • Appointment of Constitutional Court judges: to the extent that the procedure for the appointment is not defined in the Constitution, it should be set out in the draft Law on the Constitutional Court, at least by reference to the relevant provisions of the Rules of Procedure of the National Assembly of Armenia. • Termination of a judge’s powers: criminal liability in the exercise of judicial functions should be narrowed down to serious cases (malice and gross negligence). • Powers of the Chairperson: the Chairperson is granted too strong a position. For instance, issuing normative acts, such as the Rules of Procedure, should be reserved for the Constitutional Court as a whole. Also, the Chairperson should be able to give tasks, but not orders, to the judges of the Constitutional Court in matters pertaining to organisational duties of the Court. The draft Law or the Rules of Procedure should provide for an automatic allocation of cases to the judges to conduct the preliminary examination of an application and to act as case rapporteur or the Chairperson should at least be bound by predetermined criteria e.g. a balanced caseload or by specialisation. • Publication: It is important that the legal authority of the Constitutional Court’s decisions not depend on their publication in the Official Journal of the Republic of Armenia and it needs to be clarified in what manner the decisions of the Constitutional Court must be published by the Court itself in order to enter into force.

Measures taken by the State
The constitutional law on the Constitutional Court was adopted by the National Assembly on 17 January 2018. The need to adopt a new law on the Constitutional Court of Armenia was a result of the adoption of the new Constitution. In its opinion adopted in June 2018, the Venice Commission welcomed the draft Law as a positive step in ensuring the Constitutional Court of Armenia’s role as an effective guardian of the Constitution, while making a number of recommendations to further improve the text. On 27 January 2018, the President of Armenia enacted the constitutional law on the Constitutional Court. As recommended by the opinion the adopted law limits the immunity of judges of the Constitutional Court to acts committed in the exercise of their functions and reduces the powers of the President of the Constitutional Court by removing his competence to adopt the rules of procedure of the Court. As recommended, the adopted law provides that the decisions of the Constitutional Court enter into force with their publication on the web-site of the Court. The opinion recommended setting out in a clear manner the procedure for the appointment of the judges of the Constitutional Court, at least by reference to the relevant provisions of the Rules of Procedure of Parliament. While the draft law made a general reference to the Rules of Procedure of Parliament, the adopted law refers in general to the Constitution and legislation. However, the adopted text establishes that the Court’s President has to inform the other state bodies about an upcoming vacancy six months before the end of the mandate of the judge.



884/2017 - Republic of Moldova - Draft law relating to the electoral system for the election of the Parliament

Measures recommended
While the choice of an electoral system is a sovereign decision of a State, the amendments proposed in the draft aimed at shifting from a proportional to a mixed system, raise significant concerns: - In the present Moldovan context, the proposed reform could potentially have a negative effect at the constituency level, where independent majoritarian candidates may develop links with or be influenced by businesspeople or other actors who follow their own separate interests; - The responsibility vested with the CEC to establish single-mandate constituencies for the majoritarian component is based on vague criteria that pose a risk of political influence on this aspect of the work of the CEC; - Detailed and comprehensive criteria for the establishment of constituencies for the Transnistrian region of the Republic of Moldova and for citizens abroad are not stipulated; - The thresholds for parliamentary representation in the proportional component remain high; - Proposed changes are unlikely to enhance the representation of women in the Parliament, and no additional special measures are introduced to compensate for this. In light of these concerns and in view of the lack of consensus on this polarising issue, such a fundamental change, while a sovereign prerogative of the country, is not advisable at this time. Additional concerns regarding provisions in the draft include the following: - The draft does not address earlier recommendations and concerns pertaining to the regulation and oversight of political party and campaign finance. - The proposed transfer of responsibility for control over campaign finance as well as of a number of aspects of the electoral process from the CEC to District Electoral Councils, as well as the involvement of district courts, would pose further challenges to effective control and supervision. This includes lack of appropriate resources. - Under the proposed changes, electoral and judicial districts would not correspond with single-member constituencies. - Moreover, while not included in the merged draft law, it ought to be underscored that provisions for the recall of elected candidates, as provided for by draft law No. 60, contradict provisions of the Constitution and are not in conformity with international standards.

Measures taken by the State
Contrary to the recommendation of the opinion, the law replacing a purely proportional with a mixed electoral system was adopted by the Parliament of the Republic of Moldova on 20 July 2017. The Law however implemented at least partially two recommendations concerning the way of delineating constituencies and the diminution of the thresholds for parliamentary representation in the proportional component. Opinion 907/2017 is a follow-up to this opinion. More recent developments can be found under the follow-up to Opinion 907/2017.

Texts adopted following the opinion


885/2017 - Ukraine - draft law on amendments to the Rules of procedure of the Verkhovna Rada of Ukraine

Text(s) examined
CDL-REF(2017)038  English  08/09/2017 -  Public
Ukraine - Law on amendments to the Rules of Parliamentary Procedure 
Measures recommended
1) Problematic provisions of the Law requiring amending the Constitution: a. The Rules of procedure should not be adopted as a law but as an internal act of parliament. b. The proposed amendments to the Rules of procedure based on Article 81 of the Constitution on revocation of MPs mandate in case he/she does not join a political faction could and should be reconsidered in the light of previous recommendations of the Venice Commission. Pending necessary constitutional reform the Rules of Procedure could provide for procedures aimed at minimizing the negative effect of Article 81 by giving the power to a specialised body of the Rada to review each case and issue a non-binding opinion. c. Detailed written rules on formation of coalitions could be an obstacle for the operation of the parliament, notably in the light of Articles 83 and 90 of the Constitution that fix a term of one month for the formation of a coalition and a possibility of a dissolution of the Rada if political factions fail to agree. 2) Amendments to the Rules of Procedure which do not require amending the Constitution and could be reviewed: a. The requirement to attach to the coalition agreement the list of MPs – members of a faction can be interpreted as reinforcing the control of political parties over their members in the parliament and therefore should be reviewed. b. Some of the procedures are too detailed and repetitive (like the appointments procedures foreseen in Article 205 on the appointment of Prime Minister, Ministers of Defence and of Foreign Affairs and 206/206(1) on the appointment of members of the Cabinet of Ministers) and as a consequence, could create additional tensions and become an obstacle for the efficient work of the parliament. c. The extensive responsibilities of the Speaker on purely administrative issues could be reconsidered by giving him the general authority to supervise the Rada’s secretariat and leaving the administrative management to the Head of the secretariat.

Measures taken by the State
According to information available, the draft law has not yet been adopted by the Rada.



886/2017 - Republic of Moldova - Opinion on the proposal by The President of the Republic to expand the President’s powers to dissolve Parliament

Measures recommended
The Commission recommended: 1. Not to expand the President's powers to dissolve Parliament through a general clause, nor in in case of failure by Parliament to implement a consultative referendum, nor in response to a failed attempt to call a referendum on the recall of the President; 2. The Commission recommended to increase the time-limit for Parliament to adopt the budget, failing which it would be dissolved.

Measures taken by the State
The presidential decree was challenged before the Constitutional Court of Moldova, which on 27 July 2017 had declared the decree unconstitutional. Essentially, the Court decided that the President had no power to call for a referendum aiming at constitutional amendments. In addition, the Court found that the proposed extension of the President’s dissolution powers was incompatible with the logic of a parliamentary regime and the President’s role as a neutral arbiter. In this judgement, extensive direct and indirect references to the Venice Commission’s opinion were made.



888/2017 - Turkey - Opinion on the Provisions of the Emergency Decree law N°674 of 1 September 2016 which concern the exercise of Local Democracy in Turkey

Text(s) examined
CDL-REF(2016)061  English  10/11/2016 -  Public
Turkey - Emergency Decree Laws of July-September 2016, Nos. 667 - 674 
Measures recommended
- Repeal the provisions introduced by the Decree Law N° 674 which are not strictly necessitated by the state of emergency, in particular concerning the rules enabling the filling of vacancies in the positions of mayor, vice-mayor, local council member, by the way of appointments; - ensure that the application of the rules introduced by the Decree Law N° 674 is limited to the duration of the state of emergency, and that any permanent measures affecting local democracy are taken following the ordinary laws and procedures, after proper parliamentary debate; - introduce provisions for adequate judicial review of the measures taken by the governorship in municipalities where special powers are instituted in their respect in the context of the fight against terrorism; - provide adequate rules and framework for the reinstatement of suspended/dismissed local representatives in case the terrorism-related charges do not lead to a criminal conviction.

Measures taken by the State
The Decree examined stayed in force with no relevant changes.



889/2017 - Hungary - Opinion on the Draft Law on the Transparency of Organisations receiving support from abroad

Adopted opinion
Measures recommended
In a Preliminary Opinion which was issued and sent to the Hungarian authorities on 2 June 2017, the following recommendations were made: As concerns the procedure: - A public consultation concerning the Draft Law should be conducted before the final adoption of the Draft Law. The public consultation should involve, as far as possible, all civil society organisations the status, financing or spheres of operation of which will be affected as a result of the entry into force of this legislation. As concerns the substance: - The rationale behind the exclusion of a number of associations and organisations from the scope of application of the Draft Law is not entirely clear, as the requirement of transparency should certainly apply to all civil society organisations. The relevant provision (Art. 1(4) of the Draft Law) should therefore either be justified in clearer terms, or deleted; - The period of three years during which a civil society organisation may not receive any foreign funding in order to be entitled to initiate a deregistration procedure (Article 4 of the Draft Law) is quite long and appears to be arbitrary. It is recommended to replace it with a one-year period. This would not, in any way, hamper the objective of the Draft Law and would also make the registration and deregistration procedures more coherent; - The data included in the register and made public should be limited to the major sponsors in order to ensure that no excessive obligation is imposed on organisations receiving foreign funding. Article 1(2) of and Annex 1 to the Draft Law should be amended accordingly; - The obligation imposed under Article 2(5) of the Draft Law, that the relevant organisation should mention that it qualifies as an organisation receiving support from abroad on all its press products and publications, appears to be excessive and should be removed; - The Draft Law should expressly provide for the proportionality principle under Article 3 relating to sanctions, which should only apply to instances of nonfulfillment of the most important obligations and/or to instances of serious nonfulfillment of obligations. Reference to the sanction of dissolution for failure to fulfil the obligations under the Draft Law (Articles 3(3) and 6) should be deleted.

Measures taken by the State
On 13 June 2017, the Hungarian Parliament adopted the Law with certain amendments, notably: - An additional exception has been added for “national minority organisations and associations under Act CLXXIX of 2011 on the rights of national minorities and to foundations performing, under their instrument of incorporation, the protection and representation of the interest of a certain national minority, or activities directly connected to the cultural autonomy of a national minority”; - The obligation to disclose the identity of individual donors has been limited to donations of more than 500 000 forints (around 1 600 euros); - The reference to the dissolution as an automatic sanction has been removed and a reference to the proportionality of the sanctions has been added; -Deregistration is now possible if no important foreign funding has been received during 1 year. These measures were commented upon in an opinion adopted during 111th Plenary Session of the Venice Commission (16-17 June 2017). In this Opinion, the Commission recognised that some of these amendments represent an important improvement, but considered that some other concerns were not addressed and the amendments do not suffice to alleviate the Venice Commission’s concerns that the Law will cause a disproportionate and unnecessary interference with the freedoms of association and expression, the right to privacy, and the prohibition of discrimination. Similarly to the Venice Commission Opinion, the European Court of Justice (ECJ), in June 2017, found that restrictions imposed were “discriminatory and unjustified” and went against EU law, as they violated the freedom of movement of capital, the right to respect for private and family life, the right to the protection of personal data and the right to freedom of association. On 18 May 2021, the Hungarian Parliament repealed the Law on the Transparency of Organisations receiving support from abroad adopted in 2017 and replaced it with a new Law. Under the new Law, as of 1 July 2021, the registry of civil organisations shall not mention that a civil organisation is financed from abroad. Any such remarks in the registry shall be deleted and all the pending procedures shall be terminated without application of any sanctions. However, a new rule prescribes that the State Audit Office, which is responsible to Parliament, annually prepares a report on civil organisations and foundations (with some exceptions, including churches and sports clubs, that tend to receive more funding) if their annual financial balance is more than 20 million forints (approximately 56 000 euros). The rule is applied irrespective of the source of income (public or private).



891/2017 - Hungary - Opinion on Act XXV of 4 April 2017 on the Amendments of Act CCIV of 2011 on National Education

Text(s) examined
Measures recommended
-to exempt operating universities from the requirement of a prior international agreement with their home state; - to exempt operating universities from the obligation that the foreign university should provide education in the country of seat; - to remove the prohibition, which appears unjustified, on the use of identical names in different languages - affecting in practice one particular academic community, where there is no risk of confusion; - to remove new restrictions (applicable to universities from non-EEA OECD member countries) on programme-cooperation between operating foreign universities and Hungarian partner universities, which appear unjustified if applied to already existing universities from OECD member states; - to ensure that new rules on work permit requirement do not disproportionally affect academic freedom and are applied in a non-discriminatory and flexible manner, without jeopardising the quality and international character of education already provided by existing universities.

Measures taken by the State
In October 2017 the Hungarian Parliament extended the deadline for foreign universities to meet the new requirements to 1 January 2019, but the essence of the new law remained. The European Commission challenged the 2017 amendments before the Court of Justice of the European Union (ECJ). On 6 October 2020 the ECJ ruled that the legislation was in breach of the General Agreement on Trade in Services (GATS) of the WTO, and that it was incompatible with the provisions of the EU Charter of Fundamental Rights on academic freedom, the freedom to found higher education institutions, and the freedom to conduct a business, and also contrary to the EU legislation on free movement of services and the freedom of establishment. The Court noted that the requirement to have an international agreement as a pre-condition for operations of foreign universities in Hungary depends fully of the discretion of the Hungarian authorities. Second, the ECJ found that Hungary did not demonstrate how this requirement would serve a vital public interest. In the same vein, in the opinion of the ECJ, the obligation to provide educational services in two states, Hungary and in the host State, had no clear rationale. The ECJ concluded that the contested legislation jeopardized normal functioning of the foreign universities and put at risk the academic freedoms. Although the VC opinion has not been cited by the ECJ, the Court confirmed in essence the position of the Venice Commission expressed in the opinion.



892/2017 - Poland - Opinion on the Act on the public prosecutor's Office as amended

Text(s) examined
CDL-REF(2017)048  English  29/09/2017 -  Public
Poland - Act on Public Prosecutor's Office  
Measures recommended
Contrary to a system in which the Minister of Justice gives instructions to the Prosecutor General, the merger of the office of the Minister of Justice and that of the Public Prosecutor General falls short of international standards as to the appointment of the Prosecutor General and to his/her qualifications. Furthermore, the main problem concerns the attribution of extensive powers to the Prosecutor General-Minister of Justice by the 2016 Act, notably with regard to direct intervention in individual cases. This, in addition to the very broadly formulated power of the Public Prosecutor General of “maintaining law and order” which appears as a sort of general supervisory power commonly found in “prokuratura” type systems, creates a potential for misuse and political manipulation of the prosecutorial service, which is unacceptable in a state governed by the rule of law. The Venice Commission is of the opinion that the prosecutorial system should be depoliticised and that the offices of the Public Prosecutor General and that of the Minister of Justice be separated. In addition to this separation: - Any instruction reversing the acts of a subordinate prosecutor should be reasoned; - the Law should clearly establish that the parties to the case have access to the instructions given by a superior public prosecutor; - The subordinate public prosecutor should have the possibility to contest the validity of the instruction on the basis of its illegal character or its improper grounds before a court or an independent body; - the limited circumstances under which the Public Prosecutor General may request operational activities directly linked to on-going preparatory proceedings and to get acquainted with materials collected in the course of such activities, should be clearly indicated. If the current system of merger of offices were maintained, then the competence of the Public Prosecutor General (i.e. the Minister of Justice) to intervene in individual cases should be excluded and his/her competences should be limited to giving general regulations and guidelines to the subordinate prosecutors in order to prevent any risk of political manipulation of individual cases by an active politician. In addition, the following main recommendations are made: - Concerning transmission of information to the media and to “other persons”, the rights to presumption of innocence and to privacy should be clearly guaranteed in Article 12 and judicial review of this type of information transmission should be provided for. The provision should clearly determine the persons to whom the information may be transmitted and under which conditions; - The purely advisory role of the National Council of Public Prosecutors is to be reconsidered and direct effect of the decisions of this Council, at least in some matters, should be recognised; its composition should include prosecutors from all levels but also other external actors, such as lawyers, legal academics or civil society representatives; the dismissal of a member of the Council by the electing body before the end of the term of office should only be possible on the basis of reasonable grounds that are clearly indicated in the Law; - The provision excluding the disciplinary liability for decisions taken exclusively in public interest should be repealed.

Measures taken by the State
The law examined stays in force with no relevant changes.



893/2017 - Armenia - Opinion on the Draft Judicial Code

Text(s) examined
CDL-REF(2017)030  English  26/06/2017 -  Public
Armenia - Draft Judicial Code  
Measures recommended
Provide for a common sitting of all chambers of the Court of Cassation; clarify how results of the written exam are taken into consideration in the appointment decision; remove overlapping formulas on rules of conduct; provide a possibility for appeal on disciplinary matters; the Judicial Department may remain the central body performing administrative support functions vis-à-vis the courts, provided that its head is appointed by the Supreme Judicial Council and is answerable to it.

Measures taken by the State
17 November 2017 - the Draft Code was redrafted by the authorities, submitted to Parliament, and adopted in the second reading in January 2018. Most of the Venice Commission recommendations are taken into account, except the possibility of appeal in disciplinary matters.



894/2017 - Venezuela - Opinion on the legal issues raised by the Decree No. 2878 of 23 May 2017 of the President of the Republic on calling elections to a National Constituent Assembly

Measures recommended
The Venice Commission found that the shortcomings of the procedure and of the electoral rules for the election of the National Constituent Assembly of Venezuela are such as to undermine the credibility of the attempt to prepare a new constitution.

Measures taken by the State
Venezuela did not take any measures to follow the opinion.



896/2017 - Ukraine - Opinion on compliance with the Council of Europe standards of the draft law on anti-corruption courts and the draft law on the specialisation of judges for corruption related offences

Measures recommended
- Having regard to the recent call by the President of Ukraine for the creation of an independent and “efficient special anti-corruption judicial body”, and in order to dispel any doubts about the constitutionality of the legislative procedure, the Venice Commission invites the President of Ukraine to submit his own draft law on anti-corruption courts – which should be based on the recommendations contained in the present opinion – to the Verkhovna Rada, in an expeditious manner. Draft law No. 6011 needs to be withdrawn to make such a legislative initiative possible. - The key components of draft law No. 6011 should be maintained, namely the establishment of an independent HACC and appeal instance whose judges are of impeccable reputation and are selected on a competitive basis in a transparent manner; temporarily, international organisations and donors active in providing support for anti-corruption programmes in Ukraine should be given a crucial role in the body which is competent for selecting specialised anti-corruption judges, similar to the role envisaged for them in draft law No. 6011; the jurisdiction of the HACC and of the appeal instance should correspond to that of the National Anti-Corruption Bureau (NABU) and of the Special Anti-Corruption Prosecutor’s Office (SAPO), subject to the requirement that the courts’ jurisdiction be precisely defined by law. - It needs to be ascertained that the Appeals Chamber is in effect separate from the rest of the HACC, in particular regarding its composition. Furthermore, the uniform application of the law by cassation courts should be ensured by the Grand Chamber of the Supreme Court in accordance with the general rules. - Additional safeguards should be introduced to ensure that the decision-making body in the appointment procedure of judges is sufficiently independent of the executive and legislative powers. This could be achieved, for example, by giving a non-political agency such as the High Qualifications Commission of Judges (HQC) the right to nominate members to that body, in addition to the members proposed by international donors. Another option would be not to create an additional body such as the proposed Competition Commission but, as a temporary measure pending completion of the judicial evaluation, to include experts proposed by international donors as supernumerary members of the HQC to participate in the selection procedure for judges in the anti-corruption courts and to give them a crucial role in that procedure. The procedure for involving international organisations and donors in the selection procedure needs to be regulated more in detail so as to provide for a high degree of transparency and compliance with the Constitution.

Measures taken by the State
On 21 December 2017, the Verkhovna Rada withdrew draft law No. 6011 and on 22 December, the President of Ukraine submitted his own “draft law on the high anti-corruption court” (No. 7740) to Parliament. The international community commented that the submission of the new draft law was welcome in principle but that the draft failed to meet some of the main requirements set by the Venice Commission. The draft was passed by Parliament at first reading on 1 March 2018. Numerous amendments proposed by MPs were examined by the parliamentary Committee on Legal Policy and Rule of Law. International organisations, in particular the IMF and also the Venice Commission were involved in the process. The law was finally adopted on 7 June 2018. This was welcomed by many national and international stakeholders including the Venice Commission. That said, it has been criticised that under the law adopted all the pending cases will still be dealt with by ordinary courts (both 1st and 2nd instance). The IMF called for amendments in this respect. It would appear that such amendments were adopted on 12 July. Furthermore, a second law necessary to effectively establish the High Anti-Corruption Court (HACC) was adopted on 21 June. The High Qualification Commission of Judges of Ukraine (HQCJ) launched the vacancy notice for HACC judges on 2 August 2018. International experts are involved in the appointment procedure, for a total period of 6 years, through the Public Council of International Experts (PCIE). The PCIE is composed of 6 experts selected by the HQCJ for a one term period of two years from a list of candidates nominated by international organisations. During the appointment procedure of judges, the PCIE vetoed 42 candidates due to doubts about their integrity and professional ethics. In particular, candidates were unable to explain the source of their income, had committed procedural violations while in office, had committed acts unacceptable for the behaviour of a judge or had delivered unlawful judgments sentencing the participants of the “Revolution of Dignity”. The HACC officially started its work in September 2019.

Texts adopted following the opinion
CDL-REF(2020)063  English  04/09/2020 -  Public
Ukraine - Law on the High Anti-Corruption Court  


898/2017 - Council of Europe - Amicus curiae brief for the European Court of Human Rights in the case of Berlusconi v. Italy on the minimum procedural guarantees which a state must provide in the framework of a procedure of disqualification from holding an elective office



901/2017 - Republic of Moldova - Joint Opinion on the legal framework governing the funding of political parties and electoral campaigns

Measures recommended
According to the Joint Opinion, the series of amendments introduced to the Law on Political Parties, the Electoral Code and other laws relevant to the financing of political parties and electoral campaigns in the Republic of Moldova during 2015-2017 had brought improvements in a number of issues and some previous recommendations of the Venice Commission and the OSCE/ODIHR had been taken into account. That said, there remained several unaddressed recommendations from the 2013 and 2017 Joint Opinions and from past election observation reports. Overall, a lack of comprehensive monitoring and insufficient enforcement of the rules seemed to be the main concerns. The Venice Commission and the OSCE/ODIHR made the following key recommendations: A. Permit private contributions, within clearly defined limits, by citizens of Moldova from their revenues obtained outside of the country, subject to adequate requirements of transparency and close supervision. B. In light of the current context, further reduce annual ceilings for private donations to political parties and to electoral contestants. C. Significantly enhance the supervision and enforcement of the rules on party and campaign financing. The Central Electoral Commission (CEC), or other assigned body, should be given sufficient resources, including an appropriate number of staff specialised in financial auditing, as well as a clear mandate and obligation to audit financial reports of political parties and electoral contestants, to verify the accuracy of the information submitted, initiate investigations of possible irregularities, and to make use of enhanced powers for coordination with law enforcement and other relevant bodies. D. Strengthen the regime of sanctions available for infringements of party and campaign funding rules, including by expanding parties’ deprivation of public funds to violations other than the failure to execute summons by the CEC and by increasing the levels of administrative fines.

Measures taken by the State
The Law on Political Parties was revised on 15 August 2019. These amendments follow two key recommendations of the Joint Opinion: - Permit private contributions, within clearly defined limits, by citizens of Moldova from their revenues obtained outside of the country, subject to adequate requirements of transparency and close supervision; - Further reduce annual ceilings for private donations to political parties and to electoral contestants: these ceilings were drastically reduced (for example, the caps for donations by physical persons were reduced from 200 to 6 monthly average salaries); - The two other key recommendations (significantly enhance the supervision and enforcement of the rules on party and campaign financing and strengthen the regime of sanctions available for infringements of party and campaign funding rules) still remain to be implemented.



902/2017 - Ukraine - Opinion on the Provisions of the Law on Education of 5 September 2017 which concern the use of the State language and Minority and other languages in Education

Measures recommended
Having regard to its analysis, the Venice Commission was of the view that the appropriate solution would be to amend Article 7 and replace this provision with a more balanced and more clearly worded one. In particular, the issue of discriminatory treatment of other minority languages - which are not official languages of the EU - would have to be addressed in this context. The Venice Commission recommended the Ukrainian authorities, when implementing Article 7 as adopted, especially through the Law on General Secondary Education, in particular: • to fully use, when adopting implementing legislation, the possibilities provided by paragraph 4 of Article 7 to ensure a sufficient level of teaching in official languages of the European Union for the respective minorities; • to continue ensuring a sufficient proportion of education in minority languages at the primary and secondary levels, in addition to the teaching of the state language; • to improve the quality of teaching of the state language; • to amend the relevant transitional provisions of the Education Law to provide more time for a gradual reform; • to exempt private schools from the new language requirements in accordance with Article 13 of the Framework Convention; • to enter, within the framework of the implementation of the new Education Law, into a new dialogue with representatives of national minorities and all interested parties on the language of education. • to ensure that the implementation of the Law does not endanger the preservation of the minorities’ cultural heritage and the continuity of minority language education in traditional schools.

Measures taken by the State
A road map for the implementation of the new rules was prepared, as well as relevant draft provisions of the Law on General Education, and consultations engaged. Under an amendment prepared by the Government, pupils who start their classes before 1 September 2018 will continue to receive education, in accordance with the rules effective before Article 7 came into force, until September 2023, instead of 2020. This would enable these pupils, should the amendment be adopted, to finish those classes under the old rules. A gradual increase in the number of subjects taught in Ukrainian was nevertheless also planned for these pupils.



904/2017 - Poland - Opinion on the Draft Act amending the Act on the National Council of the Judiciary; on the Draft Act amending the Act on the Supreme Court, proposed by the President of Poland; and on the Act on the organisation of Ordinary Courts

Measures recommended
A. The Presidential Draft Act on the National Council of the Judiciary • The election of the 15 judicial members of the National Council of the Judiciary (the NCJ) by Parliament, in conjunction with the immediate replacement of the currently sitting members, will lead to a far reaching politicisation of this body. The Venice Commission recommends that, instead, judicial members of the NCJ should be elected by their peers, as in the current Act. B. The Presidential Draft Act on the Supreme Court • The creation of two new chambers within the Supreme Court (Disciplinary Chamber and Extraordinary Chamber), composed of newly appointed judges, and entrusted with special powers, puts theses chambers above all others and is ill-advised. The compliance of this model with the Constitution must be checked; in any event, lay members should not participate in the proceedings before the Supreme Court; • The proposed system of the extraordinary review of final judgments is dangerous for the stability of the Polish legal order. It is in addition problematic that this mechanism is retroactive and permits the reopening of cases decided long before its enactment (as from 1997); • The competency for the electoral disputes should not be entrusted to the newly created Extraordinary Chamber; • The early removal of a large number of justices of the Supreme Court (including the First President) by applying to them, with immediate effect, a lower retirement age violates their individual rights and jeopardises the independence of the judiciary as a whole; they should be allowed to serve until the currently existing retirement age; • The President of the Republic as an elected politician should not have the discretionary power to extend the mandate of a Supreme Court judge beyond the retirement age; • The five candidates to the positions of the First President of the Supreme Court, presented to the President of the Republic, should all have a significant support of the General Assembly of judges; • The Act should limit the discretion of the First President in the matters related to the distribution of cases and assigning judges of the Supreme Court to the panels. C. The Act on Ordinary Courts • The decision of the Minister of Justice to appoint/dismiss a court president should be subject to approval by the NCJ or by the general assembly of judges of the respective court, taken by a simple majority of votes. Ideally, general assemblies of judges should submit candidates to positions of presidents to the Minister of Justice for approval; • The Minister of Justice should not have the discretionary power to extend the mandate of a judge beyond the retirement age; • The Minister of Justice should not have “disciplinary” powers vis-à-vis court presidents; any sanction on court presidents should be imposed according to the same procedure as a disciplinary sanction against a judge; • The Act should limit the discretion of the court presidents in the matters related to the distribution of cases and assignment of judges to the panels; exceptions from the general principle of random allocation of cases should be narrowly and clearly defined in the law; lower courts’ presidents should not be hierarchically subordinate to the higher courts’ presidents.

Measures taken by the State
Since July 2017, the Minister of Justice has removed, single-handedly, a total of 131 presidents and vice-presidents of Polish courts, and, in March, new members of the National Council for the Judiciary were elected according to the new rules. The European Commission, last December, launched Article 7 procedure against Poland. In April and May 2018 the Polish Sejm voted certain amendments to the laws, which however could be described as essentially cosmetic. On 3 July 2018 the General Assembly of Supreme Court adopted a resolution stating that First President should continue until her original term of mandate (2020), and stating that the provisions on the new retirement age are not compliant with the Constitution. In June the CJEU rendered a decision, in which it held that the Irish judge called upon to execute a European arrest warrant must refuse the extradition of an alleged criminal to Poland if there is a real risk that the individual concerned will suffer in the requesting State a breach of his fundamental right to an independent tribunal. In July, the European Commission has launched an infringement procedure against Poland. A second case was referred to the CJEU by the European Commission on 2 October 2018. It concerned one of the major aspects of the reform, namely the retroactive lowering of the retirement age for judges of the Supreme Court. The Commission believed that this measure also infringed EU law. While the proceedings were pending, the Commission requested an interim measure, and on 19 October the Vice-President of the CJEU ordered the suspension of early retirement of judges and the appointment of the new judges to the SC. At the end of November, the Polish Government introduced draft legislation which would reinstate the Supreme Court judges (including the First President) who were supposed to leave under the new rules. This is positive, but other issues, noted in the 2017 opinion, remain unresolved.



905/2017 - North Macedonia - "The former Yugoslav Republic of Macedonia" - Opinion on the draft law on the on the Termination on the Council for the Establishment of Facts and Initiations of Proceedings for Determination of Accountability for Judges, on the draft law amending the Law on the Judicial Council, and on the draft law amending the Law on Witness Protection

Measures recommended
• to reconsider whether presidents of courts should be given the power to trigger disciplinary proceedings against judges; • to specify in the law that one of the three members of the ad hoc Commission which conducts investigations within the disciplinary proceedings must be a lay member; • to clearly state in the law that the person who triggered disciplinary proceedings against a judge should not sit on the panel deciding this disciplinary case on the merits; • to assess how the proposed system of disciplinary proceedings affects the ratio of judicial and non-judicial members in the decision-making body and the requirements related to the representation of non-majority communities; to identify the solution most likely to accommodate these requirements. Judges elected by their peers should represent at least half of the composition of such body, but lay members should be sufficiently represented as well; • as regards the process of appointment of candidates to the judicial positions, to clarify in the law to what extent exam grades, results of the performance assessment, etc. influence the selection of candidates by voting in the Judicial Council; • to ensure that the discontinuation of the witness protection program against the wishes of the person concerned does not depend solely on the discretionary decision of the Head of the Department.

Measures taken by the State
In 2017-2018 the Law on the Judicial Council and the Law on Court have been amended: the Council of the Determination of facts has been liquidated, and its functions were transferred back to the Judicial Council, as recommended by the Venice Commission. Furthermore, the two procedures leading to the dismissal of the judge were merged into one (which was recommended in the CDL-AD(2015)042, Opinion on the Laws on the Disciplinary Liability and Evaluation of Judges of “the former Yugoslav Republic of Macedonia”). The Inquiry Commission should include both judicial and lay members, which addresses the concern expressed in the 2017 opinion. In 2018 further changes to the Law were adopted; the Venice Commission issued opinion CDL-AD(2018)022 (Opinion on the law amending the law on the Judicial Council and on the law amending the law on Courts) where it assessed positively the changes to the two laws; further amendments were proposed by the Government in November 2018, which were analysed in the Draft Opinion on the Draft Law amending the Law on Courts (CDL-REF(2018)62), examined at the December 2018 Plenary session (see CDL-AD(2019)033).

Texts adopted following the opinion
CDL-REF(2018)029  English  04/07/2018 -  Public
"The former Yugoslav Republic of Macedonia" - Law amending the Law on Courts*  
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