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Venice Commission’s Opinion: signal of alarm about state of rule of law or call to improve democratic processes? IPN debate


https://ipn.md/public/index.php/en/venice-commissions-opinion-signal-of-alarm-about-state-of-8004_1086653.html

Heated debates on the real meaning of the Venice Commission’s Opinion about the amendments made by Moldova’s Parliament to the law on the prosecution service have been witnessed inside the political class and of the community of experts. In general, the debates seem to be based on two main aspects: the legal one and the political one. The invitees to IPN’s public debate “Venice Commission’s Opinion: signal of alarm about state of rule of law or call to improve democratic processes?” shed more light on the issue with regard to both of these aspects.

According to Igor Boțan, the standing expert of IPN’s project, the Venice Commission is a consultative body of the Council of Europe and consists of independent experts in constitutional law. The Commission was created in 1990, after the fall of the Berlin Wall, when a series of states from Central and Eastern Europe started constitutional reforms and needed professional, independent assistance from institutions and experts who know well the constitutional content needed for building democratic states. The official name of the Commission is the European Commission for Democracy through Law, but it is called the Venice Commission because its plenary meetings are held in Venice four times a year, while its secretariat is based in Strasbourg.

Currently, the Venice Commission has more than 100 members named by the member states and representatives of the observer states. The members are senior university teachers specialized mostly in constitutional or international law, supreme court judges, former judges, lawyers, prosecutors. At the request of a national institution, the Venice Commission adopts consultative opinions on matters of constitutional, compared and international law. The Commission usually assigns a working group of rapporteurs who work with the national authorities of states. It does not impose its solutions, but adopts a non-directive dialogue-based approach. Therefore, the working group usually pays visits to the country, meets with political players involved in the issues of interest and ensures the most objective view on the situation. Its opinions are nonbinding, but are mostly followed by the member states.

The Republic of Moldova became a member of the Venice Commission in June 1996 and cooperates with this institution relatively intensely. In 1993-1994, when a commission for designing the Constitution was created in Moldova’s Parliament, the Moldovan authorities consulted a lot the Venice Commission, which means that the relationship with this was established much earlier than the moment Moldova became a member of it.

According to the MP of the Party of Action and Solidarity Vasile Grădinaru, a member of the legal commission for appointments and immunities, the justice sector reform is not a caprice of the current government, but is a demand of society  formulated in the pre-electoral and electoral periods. This reform refers both to the judicial system and to the prosecution service. Before doing a reform, the situation in the field and the preconditions that led to an impasse there should be analyzed. A number of major problems were identified when analyzing the situation in the prosecution service and they started to assess the work of prosecutors. As the law on the prosecution service provided, the prosecutors were assessed once in four years, while the prosecutor general could be assessed exclusively in an extraordinary way. Owing to this provision, no prosecutor general has been assessed so far. Another aspect is who should assess the prosecutors.

According to the MP, PAS considered a number of fundamental amendments should be made to improve the work of the prosecution service. Article 30 of the law on the prosecution service was amended so that it now allows assessing the prosecutor general also in other cases than those mentioned by the law, such as “at his/her request” or “when the person is to take up the post of chief prosecutor”. Also, the prosecutors will be assessed by commissions constituted by the Superior Council of Prosecutors, which is the central self-governing body of prosecutors. The composition of this Council was modified so as to increase its autonomy by excluding the prosecutor general and to reduce the political influence on the prosecution service. The most important provision is the one that regulates the suspension of the prosecutor general when legal action is taken against this. If the prosecutor general remains in office, this can intervene or intimidate prosecutors and he should be thus suspended, as should be his deputies who are normally faithful to this.

BCS MP Vasile Bolea, deputy head of the legal commission for appointments and immunities, said the recent Venice Commission’s opinion is a ‘red card’ for the current government. The law to amend the law on the prosecution service was adopted in a hurry, immediately after the elections, in the absence of evaluations and compared studies. The progress report of the PGO for 2020 wasn’t read. The adopted amendments were aimed at the Superior Council of Prosecutors and at the prosecutor general. The goal was to bring the Council under control. “I reached such a conclusion in the summer of 2019, when the then Minister of Justice Olesea Stamate proposed extending the number of SCP members from 12 to 15. At that moment, the number of SCP members was increased for the government to be able to propose sufficient candidates for influencing particular aspects or decisions of this body,” he stated.

The MP considers a raider attack was staged on the SCP this summer by the proposal to exclude the prosecutor general, the chief prosecutor of ATU Gagauzia and one more member, because of old age, from the Council. The attack was staged with the aim of inventing the so-called assessment of the prosecutor general at the second stage. The prosecution service reform was reformed relatively recently, in 2016. If the goal is to improve the situation in the prosecution service, things should be analyzed well. But the amendments to which the Venice Commission referred were based on a political aim, namely to control the SCP and the prosecutor general.

The public debate titled “Venice Commission’s Opinion: signal of alarm about state of rule of law or call to improve democratic processes?” is the 219th installment of the series of debates staged as part of the project “Developing Political Culture through Public Debates”. The project is supported by the Hanns Seidel Foundation.