The Venice Commission has published its opinion on the Moldovan Law on Preventing and Combatting Terrorism of September 20, 2017, IPN reports, quoting a press release of the Council of Europe.
The Venice Commission reiterates that a state needs effective intelligence and security services. The Republic of Moldova, in the face of the terrorist threat, is entitled to take extraordinary measures. However, those measures should be mutually coherent, foreseeable, and compatible with the human rights obligations which Moldova has under the international and European human rights law. From this perspective, Law no. 120 needs a thorough revision, and its relation with other relevant legislation (in particular the Criminal Procedure Code and Law no. 59 on the special investigative activities) should be specified more clearly.
The Venice Commission is confident that such revision may be done without affecting the necessary effectiveness of anti-terror mechanisms and powers. The list of measures which the Secret Intelligence Service may take within the “prevention” mandate and of the corresponding obligations of private persons, must be reviewed. These measures should be described with due precision as to their material scope, and the Law must provide that some of those measures need an external authorization (a court warrant, a decision by the prosecution, etc.) and specify the measures and the relevant procedures in detail.
The Speaker of Parliament should not have the power to Coordinate anti-terrorist activities; this should be a prerogative of the executive. Instead, a clear and unambiguous over sight procedure must be put in place: the parliamentary control mechanism should be reinforced, involving either the sub-commission on the Secret Intelligence Service, or a mixed expert body, both with strong presence of the opposition. In addition to the examination of general reports, such bodies should have access to the specific files. A proper record -keeping system should be put in place within the Secret Intelligence Service.
The Venice Commission noted anti-terrorist operations should be of limited duration and cover a limited geographical zone; any extension of the zone or of the duration of the operation must be accompanied by increased parliamentary control. The Law should provide for criminal and disciplinary liability of the security personnel for grossly disproportionate actions and for inadequate planning and conduct of the anti-terrorist operations.
The State should bear civil liability in cases of harm caused by such disproportionate actions. Indiscriminate use of weapons not adapted to the situation should be prohibited under the Law, and the actions of the security personnel which resulted in the loss of life or limb should be subject to an independent and effective investigation.
Limitations on the media reporting during a terrorist crisis should be of short duration, and concern only certain specific types of information (i.e. on the forces involved in the counter-terrorist operations, their position, methods, and alike ), in line with the principle of proportionality. The journalists should be free to inform the public about the general situation during the terrorist crisis, subject to their duties under the European Convention on Human Rights.
Without any reference to the recent expulsion/extradition of employees of the Lyceum “Orizont”, the Venice Commission says “black lists” of terrorists should not rely blindly on decisions of foreign courts and governments. An effective appeal process accessible to all affected persons should be put in place. The Moldovan courts should be able to verify whether the person concerned is indeed a “terrorist” within the meaning of the Moldovan legislation and under the international law. Expulsion and extradition of presumed “terrorists” is possible only if it does not contradict the obligations of Moldova under the 1951 Convention on Refugees and the European Convention on Human Rights.
