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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

Opinions of the Venice Commission
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. The Law as examined in the Opinion adopted at the 111th Plenary Session stays in force with no relevant changes.



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
On 17 October 2017, the Hungarian Parliament amended the 2017 Higher Education law to extend the deadline for foreign universities operating in the country to meet the new requirements to 1 January 2019.



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.



895/2017 - Study on Foreign Funding of Associations



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 behavior of a judge or had delivered unlawful judgments sentencing the participants of the “Revolution of Dignity”.



898/2017 - Italy - 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 Republic of Moldova has not yet taken any significant measures to follow the opinion.



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*  


906/2017 - Republic of Moldova - Opinion on the amendment of article 37 of the Law on the People’s Advocate - Financial provisions

Measures recommended
The proposed amendment of article 37 of the Law of the People’s Advocate goes in a direction, significantly weakening the financial independence of this institution, notably because it removes the need for the People’s Advocate’s proposal for the budget. The Commission therefore recommends reconsidering it.

Measures taken by the State
The Venice Commission recommendations were followed. The draft law has been repealed. On 20.07.2018 the Parliament adopted a Law no. 181/2014 on Public Finances dealing with the budget of independent/autonomous authority according to which budgets are elaborated by the independent /autonomous authority , approved by the Ministry of Finance included in the state budget and are not subordinate to the Government. On 27.07.2018 the Parliament adopted Law no.172 according to which Article 37 has a new content stating that the independent authorities have an independent budget.



907/2017 - Republic of Moldova - Amendments to the electoral legislation

Measures recommended
In the June 2017 Joint Opinion, the Venice Commission and ODIHR underlined the lack of consensus on the change towards a mixed electoral system for the election of the parliament and the risk that independent majoritarian candidates may develop links with or be unduly influenced by businesspeople or other actors who follow their own separate interests. As such, while recognising the sovereign decision of the Moldovan lawmakers with regard to the electoral system, it was recommended not to change the electoral system in the present Moldovan context. The remarks made in the 2017 opinion are still valid and the Venice Commission and ODIHR regret that this fundamental recommendation was not followed. It remains to be seen how the mixed system will be implemented in practice in the forthcoming elections. Other provisions of the amendments should be reconsidered... Recommendations refer for example to the need to lower the threshold for entering Parliament, measures to ensure independence of the boundary commission, periodic review of constituency boundaries, and the need to distinguish proceedings against decisions of election commissions and against candidates.

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



909/2017 - Armenia - Joint Opinion on the Draft Law on making amendments to the Law on Freedom of Conscience and on Religious Organisations

Text(s) examined
Measures recommended
A. to amend the Draft Law to ensure that it systematically refers not only to “religion” but also to “belief” and to “religious or belief organisations”; [par 20] B. to consider providing other religious groups or belief communities with a fair opportunity to benefit from some of the advantages enjoyed by the Holy Armenian Apostolic Church, while specifying reasonable criteria for accessing such advantages; [par 28] C. to narrow down and qualify more strictly the limitations on the manifestation of freedom of religion or belief set out in Article 4, including by: - removing the reference to “state security” and replacing it with the term “public safety” in line with international standards, or alternatively specifying that for the purpose of the Draft Law, “state security” should be interpreted as referring to public safety and order in line with international standards; [par 39] - considering removing from Article 4 those limitation grounds that are broadly or vaguely worded, or defining them more narrowly, particularly the references to “illegal or immoral acts”, “religious fanaticism”, “mercenary purposes”, while prohibiting the incitement to violence on religious grounds or the prohibition of advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence; [pars 42-46] - ensuring that only “improper proselytism” is prohibited, i.e., “preaching” or “teaching” accompanied by incitement to violence or religious hatred or to commit specific unlawful acts, by coercion or fraud, by offering material or social advantages with a view to gaining new members or exerting improper pressure on people in distress or in need, by the use of violence, by a certain form of harassment or the application of undue pressure in abuse of power, or by other aggressive forms of preaching violating privacy or public order; [par 46] D. to explicitly state in the Draft Law that religious or belief groups may exist and operate without registration [par 32], to provide an open-ended list of the rights enjoyed by all religious or belief communities, both registered or unregistered, including the right to exercise the freedom of religion collectively [par 33], and to clarify that any religious or belief community can acquire some sort of legal personality status in the national legal order [par 34]; E. to remove some of the registration requirements that are too burdensome and/or discriminatory, in particular by specifying more clearly in Article 8 the very limited cases where state registration may be refused, in line with international standards and deleting Article 8 par 1 (4) and (5) and Article 8 par 3 from the Draft Law, which respectively refer to “historically canonised holy book”, the fact that the faith “is part of the system of world’s contemporary religious communities” and the need to submit a document “certifying the consent of the relevant foreign spiritual centre given the existence thereof”; [par 58] F. to reconsider the blanket prohibition on foreign funding provided in Article 11 par 2; [par 75] G. to clarify the rules concerning the suspension of religious organisations in Chapter 6, by strictly defining the meaning of “gross violation of the law” and by introducing a wider variety of proportionate sanctions that may be imposed; and provide that dissolution is only permissible where other measures for eliminating or preventing the violation are exhausted, or the violations may not be sanctioned or eliminated otherwise through application of administrative, civil or criminal law. [pars 79, 81 and 87]

Measures taken by the State
According to information available, the draft law no longer seems to be actively pursued in Parliament.



914/2017 - Romania - Draft Law revising the Ordinance on associations and foundations

Measures recommended
- Concerning the public utility status: “Democracy, human rights, rule of law and fight against corruption” should be added to the list of specific areas of general or public interest under draft Article 38 (1)a). A “catch all” clause could also be inserted at the end of the list of specified areas under the same draft provision, in order to cover all other public interest areas which are not mentioned specifically in this provision; the civil society should be specifically consulted on this point; A clear provision should be introduced indicating the availability of legal protection (judicial review) before courts for associations or foundations, which have been denied “public utility” status; The specific algorithm provided in draft Article 38(2) and 41(a) does not satisfy the requirement that public support must “be governed by clear and objective criteria” nor the foreseeability criterion in the case-law of the ECtHR, and should be repealed; The provision imposing a ban on political activities for associations with public utility status should be limited to clear cases of support, e.g. explicit fundraising, in favour of or against a particular party or candidate, while ensuring that the provision is worded in such a way that it does not prevent public utility associations from “undertaking advocacy on issues of public debate”. - Concerning the new financial reporting obligations: New reporting and disclosure requirements foreseen by the draft law, including the sanctions of suspension of activities and dissolution in case of non-compliance are clearly unnecessary and disproportionate and should be repealed. At a minimum, the reporting obligations on financial sources should either be limited to reporting to a regulatory body at reasonable intervals or the obligation to disclose the identity of the donors should be limited to the main sponsors; The draft law should be submitted to broad public consultations before it is adopted.

Measures taken by the State
According to information available, the draft law no longer seems to be actively pursued in Parliament.



912/2018 - Ukraine - Opinion on two draft laws “On Introducing Changes to the Tax Code of Ukraine to Ensure Public Transparency of the Financing of Public Associations and of the Use of International Technical Assistance” and “On Introducing Changes to Some Legislative Acts to Ensure Public Transparency of Information on Finance Activity of Public Associations and of the Use of International Technical Assistance” (Laws # 6674 and # 6675)

Measures recommended
A. Cancel the e-declaration requirements for anti-corruption activists introduced by Law No. 1975-VIII of 23 March 2017, as foreseen by draft law No. 6674, and ensure that the cancellation enters into force before the deadline of 1 April 2018 for submission of the first e-declarations by anti-corruption activists; B. Remove the new financial reporting and disclosure requirements under draft laws No. 6674 and 6675 in their entirety or, at a minimum, narrow them down substantially, so as to ensure that they fully respect international standards pertaining to the freedom of association, the right to privacy and the prohibition of discrimination and are based on compelling evidence that they are necessary in a democratic society and proportionate to a legitimate aim. In particular, - public associations should not be made subject to stricter financial reporting and disclosure requirements than other non-profit organisations, businesses or other legal entities and they must be guaranteed the same rights as other legal entities; - the income threshold for determining the organisations covered by the new requirements should be significantly increased, and less stringent requirements should apply to organisations which have not received any form of public support; - reporting on and public disclosure of the identity of the ten most-paid employees of civil society organisations, and of some of the donors and contractors of such organisations should be removed; - the reporting and disclosure requirements for individual persons who receive income from donors of international technical assistance should be removed; C. If new financial reporting and disclosure obligations for these civil society organisations were to be introduced, to significantly amend the provisions on sanctions of draft law No. 6675 so as to ensure better clarity as well as proportionality, including by - providing for the possibility to correct potential mistakes; - extending the range of sanctions available which should be proportionate to different types and degrees of violations of the rules; - removing loss of organisations’ non-profit status from the list of sanctions or, at a minimum, making it clear that this can only be imposed – preferably by a court – as a sanction of last resort; D. Conduct inclusive and effective consultations concerning draft laws No. 6674 and 6675 at all stages of the lawmaking process, including during discussions before Parliament up until and in any case before their adoption. It should be ensured that civil society organisations, which will be affected as a result of the entry into force of this legislation and the general public are fully informed and be given a meaningful opportunity to submit their views in good time, prior to the adoption of the draft laws.

Measures taken by the State
The two draft laws were never adopted. Attempts in Parliament to modify the current law, as recommended, failed.



915/2018 - North Macedonia - "The former Yugoslav Republic of Macedonia" - Draft law on prevention and protection against discrimination

Text(s) examined
Measures recommended
• Reviewing the list of discriminatory grounds and improving the definitions used in the draft; • Providing additional safeguards so as to ensure a real independence for the Commission, in particular by amending provisions concerning the election and dismissal of its members, providing for a unique mandate for its members, and removing the possibility of filing a complaint to the State Administrative Inspectorate in case the Commission fails to act in the legal deadline; • Revising Article 17 with a view to ensuring, in the composition of the Commission, a pluralist representation of the social forces involved in the protection and promotion of equality; • Reconsidering the early termination of mandate of members of the Commission as result of the entry into force of the draft law, which is highly problematic in terms of independence of the Commission.

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



916/2018 - Republic of Moldova - draft Law on the modification and completion of the Constitution (Judiciary)

Text(s) examined
Measures recommended
The Venice Commission welcomes the Draft amendments to the Constitution of the Republic of Moldova, which aim to improve the independence, accountability and efficiency of the judiciary. The amendments are generally positive and in line with the applicable standards. The Venice Commission welcomes notably: 1. the removal of the probationary period for judges; 2. the appointment of judges of the Supreme Court by the President (with a one-time veto) rather than by Parliament; 3. the regulation on functional immunity at the constitutional level; 4. the role of the SCM in the preparation of the budget of the judiciary. Nonetheless, the Venice Commission makes the following recommendations: 1. the part of the judges in the SCM should be determined in a clear manner; 2. the method of selection of the SCM members from civil society should be clarified. The full effect of the Draft amendments will depend on their implementation on the legislative level. In order to maintain inter-institutional dialogue, if the ex officio members were removed from the composition of the SCM, other channels of institutional dialogue should be established at the legislative level.

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

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