Strasbourg, Warsaw, 11 December 2017 CDL-AD(2017)027 Opinion No. 901/2017 Or. Engl. ODIHR Opinion-Nr.: POLIT-MDA/314/2017 EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) OSCE OFFICE FOR DEMOCRATIC INSTITUTIONS AND HUMAN RIGHTS (OSCE/ODIHR) REPUBLIC OF MOLDOVA JOINT OPINION ON THE LEGAL FRAMEWORK OF THE REPUBLIC OF MOLDOVA GOVERNING THE FUNDING OF POLITICAL PARTIES AND ELECTORAL CAMPAIGNS Adopted by the Council for Democratic Elections at its 60th meeting (Venice, 7 December 2017) and by the Venice Commission at its 113th Plenary Session (Venice, 8-9 December 2017) on the basis of comments by Mr Philip DIMITROV (Member, Bulgaria) Mr Michael FRENDO (Member, Malta) Mr Pieter VAN DIJK (Expert, Former Member, Netherlands) Mr Fernando CASAL BÉRTOA (OSCE/ODIHR Core Group of Experts on Political Parties) Mr Richard KATZ (OSCE/ODIHR Core Group of Experts on Political Parties) Ms Tatyana HILSCHER-BOGUSSEVICH (OSCE/ODIHR Expert) Ms Alice THOMAS (OSCE/ODIHR Expert) Mr Alvis VILKS (GRECO Expert, Latvia) This document will not be distributed at the meeting. Please bring this copy. www.venice.coe.int www.legislationline.org CDL-AD(2017)027 - 2 - Contents I. Introduction ................................................................................................................ 3 II. Scope of the Joint Opinion ......................................................................................... 3 III. Executive summary and conclusions ......................................................................... 4 IV. Analysis and Recommendations ................................................................................ 5 A. International standards relating to the financing of political parties and electoral campaigns .......................................................................................................... 5 B. National legal framework and recent reforms – background ................................ 6 C. Funding sources ................................................................................................. 8 D. Reporting requirements and supervision ........................................................... 16 E. Sanctions .......................................................................................................... 20 - 3 - CDL-AD(2017)027 I. Introduction 1. By letter of 14 September 2017, Mr Cesar Florin Preda, Chair of the Monitoring Committee of the Council of Europe’s Parliamentary Assembly, requested an Opinion of the Council of Europe’s European Commission for Democracy through Law (Venice Commission) on the legal framework governing the funding of political parties and campaigns, as well as the recent amendments to the electoral legislation of the Republic of Moldova. 2. By letter of 15 September 2017, the Secretary of the Venice Commission confirmed the Venice Commission’s readiness to carry out such an assessment and proposed, as a first step, that the Venice Commission jointly with the OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR) prepare an Opinion on the legal framework governing the funding of political parties and electoral campaigns. The recent amendments to the electoral legislation would be assessed at a later stage. 3. The Commission invited Mr Philip Dimitrov, Mr Michael Frendo and Mr Pieter van Dijk to act as rapporteurs for this Opinion. Ms Tatyana Hilscher-Bogussevich, Ms Alice Thomas, Mr Richard Katz and Mr Fernando Casal Bértoa were appointed as experts for the OSCE/ODIHR. In addition, the Council of Europe’s Group of States against Corruption (GRECO) was invited to appoint an expert to contribute to this Opinion. The expert appointed was Mr Alvis Vilks. 4. On 17-18 October 2017, a delegation composed of Mr Philip Dimitrov and Mr Pieter van Dijk on behalf of the Venice Commission, accompanied by Mr Michael Janssen from the Secretariat, Ms Tatyana Hilscher-Bogussevich and Mr Fernando Casal Bértoa on behalf of the OSCE/ODIHR, and Mr Alvis Vilks on behalf of GRECO visited Chişinău and met with the Chairperson of the Central Electoral Commission (CEC), the Minister of Justice, the Chairperson of Parliament, representatives of the parliamentary factions and groups, as well as non-parliamentary groups, civil society and international organisations. This Joint Opinion takes into account the information obtained during the above-mentioned visit. 5. In 2013, the OSCE/ODIHR and the Venice Commission published a Joint Opinion on draft legislation of the Republic of Moldova pertaining to the financing of political parties and electoral campaigns (hereafter: 2013 Joint Opinion).1 In 2015, the Republic of Moldova implemented a reform in this area. On 19 June 2017, a Joint Opinion on draft amendments to the electoral legislation (hereafter: 2017 Joint Opinion) – which included amendments to some campaign finance provisions – was adopted.2 On 20 July 2017, the electoral reform was enacted. More details on the reform process are given below under section IV.B. 6. The present Joint Opinion was adopted by the Council for Democratic Elections at its 60th meeting (Venice, 7 December 2017) and by the Venice Commission at its 113th plenary session (Venice, 8-9 December 2017). 7. The OSCE/ODIHR and the Venice Commission remain at the disposal of the Moldovan authorities for any further assistance that they may require. II. Scope of the Joint Opinion 8. The scope of this Joint Opinion covers the following legal provisions: Articles 24 to 313 of the Law on Political Parties (LPP); Articles 35 to 38, 382, 383, 41(22), and 69 to 71 of the 1 Joint Opinion on Draft Legislation of the Republic of Moldova pertaining to financing political parties and election campaigns CDL-AD(2013)002. 2 Joint Opinion on the draft laws on amending and completing certain legislative acts (electoral system for the election of the Parliament) CDL-AD(2017)012. CDL-AD(2017)027 - 4 - Electoral Code (EC); Articles 48 to 482 of the Code of Administrative Offences (CAO); and Article 1812 of the Criminal Code (CC). Those provisions are assessed with a particular focus on the 2015 and 2017 legal reforms and on their compliance with the relevant recommendations made in the above-mentioned previous Joint Opinions.3 9. The Joint Opinion raises key issues and provides indications of areas of concern. In the interest of conciseness, it focuses rather on areas that require amendments or improvements than on the positive aspects of the legislation in place. The ensuing recommendations are based on relevant Council of Europe and other international human rights standards and obligations, OSCE commitments and good international practices. Reference is also made to the relevant findings and recommendations from the previous Joint Opinions, OSCE/ODIHR and Parliamentary Assembly of the Council of Europe (PACE) reports on elections observed4 and relevant GRECO reports.5 10. Moreover, in accordance with the commitments of the OSCE and the Council of Europe to mainstream a gender perspective into all policies, measures and activities,6 the Joint Opinion also takes account of the impact of the legislation on the equality between women and men. 11. The present Joint Opinion is based on English translations of the following legal texts, which must be read together: excerpts of the Law on Political Parties7 with amendments until 4 June 2013 and of the “Law Amending and Supplementing legislative instruments” of 9 April 2015, CDL-REF(2017)044, the “Law Amending and Completing Certain Legislative Acts” of 20 July 2017, CDL-REF(2017)045; as well as the Electoral Code as of 21 July 2016, CDL- REF(2017)020. Inaccuracies may occur in this Joint Opinion as a result of incorrect translations. 12. The OSCE/ODIHR and the Venice Commission would like to note that this Joint Opinion may not cover all aspects of the legal framework governing the funding of political parties and electoral campaigns in the Republic of Moldova, and that it does not prevent them from formulating additional written or oral recommendations or comments on this matter in the future. III. Executive Summary and Conclusions 13. 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 brought improvements in a number of issues and some previous recommendations of the Venice Commission and the OSCE/ODIHR were taken into account.8 The amendments strengthened inter alia disclosure and reporting requirements on political parties and electoral contestants, supervision and sanctions available in case of violation of the rules. The 2015 reform, as complemented by some further amendments to the Electoral Code in 2017, was an important step in the right direction. 3 CDL-AD(2013)002 and CDL-AD(2017)012. 4 See OSCE/ODIHR reports on elections in Moldova. 5 See in particular the third round evaluation report on transparency of party funding in the Republic of Moldova of 2011 (GRECO Eval III Rep (2010) 8E) and the subsequent compliance reports. 6 See par 32 of the OSCE Action Plan for the Promotion of Gender Equality adopted by Decision No. 14/04, MC.DEC/14/04 (2004), which refers to commitments to mainstream a gender perspective into OSCE activities; and the Council of Europe’s Gender Equality Strategy 2014-2017, which includes the realisation of gender mainstreaming in all policies and measures as one of five strategic objectives. 7 It is to be noted that the LPP was amended beyond 4 June 2013