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827/2015 - Spain - Amendments to the Institutional Law on the Constitutional Court of Spain

Measures recommended
The Venice Commission recalls that judgments of Constitutional Courts have a final and binding character. As a corollary of the supremacy of the Constitution, judgments of Constitutional Courts have to be respected by all public bodies and individuals. Disregarding a judgment of a Constitutional Court is equivalent to disregarding the Constitution and the Constituent Power, which attributed the competence to ensure this supremacy to the Constitutional Court. When a public official refuses to execute a judgment of the Constitutional Court, he or she violates the principles the rule of law, the separation of powers and loyal cooperation of state organs. Measures to enforce these judgments are therefore legitimate. Several of the measures which the Constitutional Court can take when it encounters a refusal to execute one of its decisions do not raise any problems, for instance requesting the National Government to substitute the execution or requesting the prosecution and the ordinary courts to initiate criminal proceedings. There is also no objection to the Court requesting information or reports on the execution of its decisions. However, two measures raise questions: the repetitive, coercive penalty payments applied on individuals and the suspension from office of officials who refuse to execute the Courts’ decisions. The personal scope of the suspension from office remains unclear and should be specified. It could be problematic if it were to include directly elected officials, who are not excluded by the wording of Article 92. The law or its application should provide for different treatment when penalty payments concern respectively public authorities, office holders and individuals. In order to enhance the perception of the Constitutional Court as a neutral arbiter, the Court should not act on its own motion but only upon request by a party in exercising the execution powers under the Amendment. However, another serious concern against attributing to the Constitutional Court the task of executing its own decisions is that the Court has to take these measures – coercive penalty payments and suspension of officials – in a situation where the Court is already facing a refusal to execute its decisions. It is not unlikely that the person refusing the execution will also refuse to pay the penalty or ignore the suspension and continue exercising his or her office. This could challenge the authority of the Constitutional Court and, in turn, that of the Constitution itself. In such a case, other state bodies should step in, in order to defend the Constitution and the Constitutional Court. The attribution of the power of execution of its decisions to the Constitutional Court may seem as an increase of power at first sight. However, the division of competences of adjudicating on the one hand, and of executing its results, strengthens the system of checks and balances as a whole, and in the end, also the independence of the Constitutional Court. The Venice Commission does not recommend that these powers be attributed to the Constitutional Court. However, in the light of the absence of common European standards in this field, the introduction of such powers does not contradict such standards.

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



844/2016 - Armenia - Opinion on the draft law on referendums

Text(s) examined
CDL-REF(2017)049  English  31/10/2017 -  Public
Armenia - Draft constitutional law on referendum 
Measures recommended
The Venice Commission and OSCE/ODIHR welcome that the Armenian authorities have prepared a draft aiming to bring the legislation on referendums in conformity with the Constitution and international standards. It is recommended to address the following key issues: - Clearly address the unity of content of the referendum proposal and the requirement for the question of referendum to be clear and not misleading; - clarify and further develop the provisions on complaints and appeals, to ensure an effective system of appeal enabling electoral stakeholders to appeal the decisions that affect them; - require the authorities to provide objective information about the proposals put to referendum; - provide for submission of draft popular initiative for the Constitutional Court’s review prior to the collection of additional signatures; entitle the Constitutional Court to provide a nuanced ruling on the constitutionality of each proposed amendment, and allow for the valid provisions of a popular initiative to be submitted to the people’s vote without a new collection of signatures; - clearly regulate the collection of a referendum initiative support signatures and their verification and ensure that these rules do not restrict the right of eligible citizens to sign popular initiatives; - allow more than one structure for the “yes” and the “no” votes, respectively, – including for financial reporting - while ensuring equality of opportunity between supporters and opponents of the referendum. - expressly provide for the duty of neutrality of administrative authorities, as well as for effective sanctions for breaching it, in order to prevent the misuse of administrative resources; prohibit public sector employees from taking part in campaigns while performing official duties; - provide for the formation of precinct electoral commissions with representation of the referendum proposal’s supporters and opponents; - strengthen transparency of all funds collected and spent on the campaign; - extend the free airtime allocated on public radio and television, and consider requiring the public broadcaster to organise campaign debates with the referendum “parties”; - allow observation by NGOs created less than one year before the referendum and whose charter objectives relate to the issues put to referendum or to any of the issues listed in Article 21.1(3) of the draft law.

Measures taken by the State
The Constitutional Law on Referendum was adopted by the Parliament on March 23,2018 and is in force since April 9, 2018. A number of key recommendations of the joint opinion have been followed, at least partially, concerning: the need for a clear and not misleading question; the provision of objective information (more precisely, explanatory reports from both the “yes” and “no” sides, albeit to the polling stations and not to voters); the clarification of the rules on the collection of signatures. The adopted law also followed other recommendations of the joint opinion: it provided for the duty of neutrality of administrative authorities, by prohibiting public sector employees from taking part in campaigns; it provided for the formation of precinct electoral commissions with representation of the referendum proposal’s supporters and opponents; it made observation by NGOs easier by extending it to those created six months rather than one year before the elections. Some key recommendations have however not yet been followed, concerning: the need for clearly addressing the unity of content of the referendum proposal; the need for ensuring the review of draft popular initiatives by the Constitutional Court before and not after additional signatures have been collected; allowing more than one structure for the “yes” and “no” votes, respectively.



852/2016 - Turkey - Opinion on the duties, competences and functioning of the criminal peace judgeships

Text(s) examined
CDL-REF(2017)004  English  08/02/2017 -  Public
Turkey - Criminal judgeships of peace - Memorandum of the Ministry of Justice 
Measures recommended
Peace judges are formally lawful judges and are appointed by a judicial council. However, upon close examination their jurisdiction and their practice give rise to numerous concerns. The official purpose of establishing peace judgeships was to enable peace judges to devote sufficient time to the drafting of the reasoning of human rights sensitive matters. However, this goal was not implemented properly and the peace judges are bogged down with work not related to ‘protective measures’. Another official purpose of establishing peace judgeships was to avoid that the same judge decide first on protective measures, then on the merits. According to this reason, it is difficult to understand why the criminal judgeships of peace are necessary at the investigation phase, while at the prosecution (trial) phase the same judge can take protective measures and then decide on the merits without being biased. The system of horizontal appeals among a small number of peace judges within each region or courthouse is problematic, prevents the unification of case-law, establishes a closed system and cannot be justified with the need for specialisation. There are numerous instances where peace judges did not sufficiently reason decisions which have a drastic impact on human rights of individuals. Their heavy workload does not leave them sufficient time to provide sufficiently individualised reasoning, notably in cases of detention and when shutting down Internet sites. Therefore, the Venice Commission recommends: 1. The competence of the criminal judgeships of peace on protective measures during the investigation phase (‘protective measures’) should be removed. Ordinary judges should be entrusted with the protective measures on personal liberties during the investigation and prosecutorial phases. 2. If the system of peace judgeships were retained, in order to live up to the goal of specialisation of the peace judges, they should be relieved of all duties that do not relate to ‘protective measures’, notably the blocking of Internet sites and traffic offenses which take up a considerable amount of their time. Consequently, they should no longer have any jurisdiction on the merits and real appeals should be introduced in these matters, including the blocking of Internet sites. 3. The horizontal system of appeals between the peace judges should be replaced by a vertical system of appeals to either the criminal courts of first instance or possibly to the courts of appeal. 4. For persons who have been detained on the basis of insufficiently reasoned decisions by peace judges prosecution should request their release as soon as possible, unless a trial court has taken over responsibility for their detention.

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



855/2016 - Bulgaria - Opinion on the Judicial System Act

Text(s) examined
CDL-REF(2017)034  English  04/09/2017 -  Public
Bulgaria - Judicial System Act 
Measures recommended
• judges elected by their peers should represent at least half of the members of the Judicial Chamber of the SJC; • a source of concern for the Venice Commission is that prosecutors, and the Prosecutor General (PG) in particular, are still significantly involved in the governance of judges. This could be remedied in various ways. For example, the Judicial Chamber could receive some of the powers of the Plenary in respect of judges (in particular the power to appoint/remove two chief judges and to remove elected judicial members); alternatively, these decisions could be taken by a “double majority” of the elected judicial members and all members of the SJC; • to increase the accountability of the Prosecutor General (PG), the JSA should develop a procedure allowing for effective and independent investigation into alleged misconduct of the PG; • functions and powers of the prosecution service outside of the criminal law sphere should be seriously curtailed; • suspension of judges under investigation should be subject to an effective control by the Judicial Chamber of the SJC; • the SJC should have the power to nominate candidates to the position of Inspectors, and remove them in cases of serious breaches. In addition, the Venice Commission invites the Bulgarian authorities to consider following measures: • well-established professional association of lawyers, law schools, etc. should be formally involved in the process of nomination of lay members of the SJC; • the composition of the standing commissions of the SJC should be regulated by the JSA; • general assemblies of courts should have the exclusive right to nominate candidates to the position of court president; • the powers which put presidents in a hierarchically superior position vis-à-vis their fellow judges should be reconsidered; in particular, powers in the disciplinary field (to impose reprimands and to initiate disciplinary proceeding) and inspection powers should be withdrawn from court presidents; • refusal of tenure should be accompanied by guarantees similar to those provided for removal from office; • the functions of the Inspectorate should be clearly separated from the functions of the SJC; the procedure of inspections should be regulated in more detail, to prevent unwarranted, lengthy, or invasive inspections; • appraisal criteria and indicators should be reviewed and better organised; the reversals rate should not be used as an important criterion; • the substantive grounds for disciplinary liability should be described more precisely; the law should specify the concept of acts “damaging the prestige of the judiciary” and stipulate clearly that honest judicial errors do not give rise to disciplinary liability.

Measures taken by the State
One recommendation was partially addressed by an amendment to Article 230 adopted in November 2017: while the SJC shall suspend a judge where the offence is committed in the course of performing official duties, it may suspend in other cases (i.e. in these cases it has discretion not to suspend). Otherwise, according to the information obtained in January 2018, the law examined stays in force with no relevant changes.



867/2016 - Bulgaria - Opinion on amendments to the Election Code

Text(s) examined
CDL-REF(2017)024  English  23/05/2017 -  Public
Bulgaria - Electoral Code - As of 28 October 2016 
Measures recommended
The series of amendments introduced to the Electoral Code during 2014-2016 improved a number of issues and some previous recommendations of the Venice Commission and the OSCE/ODIHR were taken into account; there remain, however, unaddressed recommendations from the 2011 and 2014 joint opinions and election observation reports as well as concerns raised following the amendments adopted in 2014-2016. Key recommendations: - Ensuring a broad public consultation process, which is necessary to encourage public trust and confidence in electoral legislation and processes; - Providing for electoral reform well in advance of election, especially with regard to fundamental elements of electoral legislation; this is of crucial importance for the stability of law and of electoral processes as a whole. Therefore, in line with good electoral practice, fundamental changes should not be made within one year before an election; - Ensuring the establishment of polling stations abroad in conformity with the principle of equal suffrage for all Bulgarian citizens; and - Providing for an effective system of appeal of all election-related decisions to a competent body and granting an effective mechanism for challenging election results to all electoral contestants as well as individual citizens based on irregularities in voting procedures.

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



872/2016 - Turkey - Opinion on Measures provided in the recent emergency Decree-Laws with respect to Freedom of the Media

Text(s) examined
CDL-REF(2016)011  English  01/02/2016 -  Public
Penal Code of Turkey 
CDL-REF(2016)061  English  10/11/2016 -  Public
Turkey - Emergency Decree Laws of July-September 2016, Nos. 667 - 674 
Measures recommended
• supplement Decree Law no. 685 with a provision requiring that individuals and legal entities affected by the emergency measures (including the liquidated media outlets) be made aware of the specific reasons for those measures and the factual basis thereof, in order to enable them to make their case before the inquiry commission, and that decisions of the inquiry commission be individualised, reasoned and based on verifiable evidence; • ensure that the inquiry commission has the powers to restore the status quo ante and that it has the power to grant priority treatment to the most urgent applications, including those introduced by the media outlets; • ensure that the journalists are not prosecuted under the heading of “membership” of terrorist organisations (and alike), where the charges against them are essentially based on their writings; • ensure that where journalists are prosecuted essentially because of their publications, pre-trial detention is not imposed on the sole ground of the gravity of the charges which are derived from the content of their publications; the authorities should be able to demonstrate “relevant and sufficient” reasons for the detention of journalists, in line with the case-law of the ECtHR on the matter, and such detentions should remain an exception; • Repeal any measure taken by emergency decree laws which is not strictly necessitated by the state of emergency.

Measures taken by the State
The state of emergency has ended. During the state of emergency no measures were taken to follow the opinion, besides restoration of legal personality of few media outlets.



871/2017 - Kazakhstan - Opinion on draft law "On Administrative procedures"

Text(s) examined
CDL-REF(2017)009  English  22/02/2017 -  Public
Kazakhstan - Administrative Procedures 
Measures recommended
The text of the draft law followed a number of recommendations found in different international documents, including those of the Council of Europe in the field of administrative law. However, the terminology used in different parts of the text and the proposed timeframes for different procedures could be improved. The opinion recommended to include additional references to the procedures concerning appeals to courts. The draft law could be used by the national team of experts in charge of the preparation of the new Code of administrative procedure in 2018.

Measures taken by the State
According to information available, in 2018 the Ministry of Justice and experts from the Supreme Court have included parts of the draft in the draft Code of Administrative Procedure.



875/2017 - Turkey - Opinion on the amendments to the Constitution adopted by the Grand National Assembly on 21 January 2017 and to be submitted to a national referendum on 16 April 2017

Text(s) examined
CDL-REF(2017)005  English  06/02/2017 -  Public
Turkey - Unofficial translation of the amendments to the Constitution  
CDL-REF(2017)018  English  23/02/2017 -  Public
Turkey - Law No. 6771 amending the Constitution  
Measures recommended
The Commission found that the amendments represented a dangerous step backwards in the constitutional democratic tradition of Turkey. As such, they ought not to have been pursued.

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



876/2017 - Georgia - Opinion on the draft revised Constitution as adopted by the Parliament of Georgia at the second reading on 23 June 2017

Measures recommended
The Venice Commission considered that the constitutional reform process completes the evolution of Georgia’s political system towards a parliamentary system and constitutes a positive step towards the consolidation and improvement of the country’s constitutional order, based on the principles of democracy, the rule of law and the protection of fundamental rights. The Commission made the following recommendations: Fundamental Rights: - the legitimate aims of restrictions of the freedom of faith, confession and conscience should be redrafted in the light of the second paragraph of Article 9 ECHR; - the prohibition of “creation of political parties on territorial grounds” (draft Article 23(3) should be removed; Judiciary: - the requirement of full consensus of the plenum of the Constitutional Court when deciding on constitutionality of the conducted elections is problematic and should be replaced by a requirement of ordinary majority; - the appointment of Supreme Court judges directly by the High Council of Justice without the involvement of Parliament, or their appointment by the President upon proposal by the High Council of Justice, would better guarantee the independence of those judges.

Measures taken by the State
On 26 September 2017, the Parliament of Georgia adopted at the third reading the draft revised Constitution. On 10 October 2017, the President of the Republic vetoed the constitutional bill and asked for the introduction of a fully proportional election system in 2020 and not in 2024, the abolition of the bonus system and to allow election blocks. On 13 October, Parliament overrode the presidential veto by 117 votes from the majority and adopted the constitutional amendments. - Draft Article 16 concerning the Freedom of Faith, Confession and Conscience has been amended and the legitimate grounds for restriction mentioned in the previous version of the draft provision such as “national security”, “preventing crime” and “administering justice” which are not legitimate aims in the sense of the second paragraph of Article 9 ECHR have been deleted. - The requirement of full consensus of the Plenum of the Constitutional Court when delivering judgment on the unconstitutionality of conducted elections has been repealed. However, - the draft amendments maintained the election of Supreme Court judges by Parliament upon their nomination by the High Council of Justice. - The prohibition of the creation of political parties on territorial principle is maintained. Additional constitutional amendments initiated by 116 members of the Parliament of Georgia were adopted at the second hearing by the Parliament on 15 December 2015. According to an explanatory note on the draft constitutional law, the purpose of these amendments was to reflect the previous recommendations made by the Venice Commission in the new edition of the Constitution of Georgia. Those additional amendments were examined by the Commission in the Opinion 918/2018 which is a follow-up to Opinion 876/2017.



877/2017 - Slovakia - Opinion on questions relating to the appointment of judges of the Constitutional Court

Measures recommended
While the President of the Slovak Republic has an essential position and considerable powers under the Constitution, only the Constitutional Court can ultimately decide constitutional disputes in a manner that binds all parties. The Venice Commission recommends that all parties respect the future finding of the Constitutional Court in the case of the complaints which are currently pending. The President did not ask the Venice Commission to make proposals pro futuro, when examining the situation of the appointment of judges of the Constitutional Court but the Venice Commission encountered several issues in the appointment procedure. In order to avoid similar situations in the future, the Venice Commission recommends considering the following proposals in a future reform of the Constitutional Court procedure: 1. Introducing a qualified majority for the election of candidates for judges of the Constitutional Court together with appropriate anti-deadlock mechanisms (constitutional amendment required). 2. Enabling a senate of the Constitutional Court to refer cases of major constitutional importance to the Plenary. The plenary session should be able to reject such a request (constitutional amendment required). 3. The President of the Slovak Republic or his representatives should participate actively in the parliamentary vetting procedure for candidates in order to avoid a second vetting procedure. 4. The Constitutional Court should announce its decisions only when their written version is available (amendment of the Act on the Constitutional Court).

Measures taken by the State
Following the Opinion, the First Senate of the Constitutional Court had decided that by not appointing candidates elected by parliament to the Constitutional Court the President of Slovakia had violated the fundamental right of access to elected office of the rejected applicants. The President of Slovakia subsequently appointed three judges to the Constitutional Court and the Court is once again complete. In January 2018, the President of the Venice Commission wrote a letter to the Speaker of the National Assembly and the Prime Minister expressing his satisfaction that the vacancies had been filled. In his letter, the President also offered the assistance of the Venice Commission to support legislative and constitutional reforms in the light of the opinion. The opinion had not only recommended that the President follow the judgment of the Constitutional Court but it had also proposed constitutional and legislative changes to avoid similar situations in the future.



878/2017 - Moldova, Republic of - Joint Opinion of the Venice Commission, the Directorate of Information Society and action against crime and of the Directorate of Human Rights (DHR) of the directorate general of Human Rights and Rule of Law (DGI) of the Council of Europe on the Draft Law N° 281 amending and completing moldovan legislation on the so-called “Mandate of Security”

Measures recommended
To evaluate the existing system of oversight of the Service and consider ways to improve it and make it more effective, including by considering supplementing, or replacing the present system of parliamentary oversight with some form of independent expert oversight/complaints body.

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



880/2017 - Republic of Moldova - Amicus Curiae Brief for the Constitutional Court on the Criminal liability of judges

Measures taken by the State
The Constitutional Court of the Republic of Moldova rendered a judgment on 28 March 2017. The judgment refers to the opinion.



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.

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.

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