On 20 March 2020, through a written procedure replacing the 122th Plenary Session of the Venice Commission due to the Covid-19 pandemic, the Venice Commission adopted a joint opinion, together with the Council of Europe’s Directorate of Human Rights on draft constitutional amendments relating to the Supreme Council of Magistracy (SCM) in the Republic of Moldova.
The proposed amendment of the Constitution follows legislative changes that were adopted in December 2019 and then on 10 March 2020, adding two lay members and one judge member to the composition of the SCM and introducing the possibility for a non-judge member of the SCM to chair it. The idea behind these changes was to increase the trust of the public and of the judges in the SCM.
The proposed constitutional amendments aim at addressing important structural issues. The Venice Commission and the Directorate welcome in particular the removal of the probationary period for judges, the removal of the ex officio Members of the SCM (the Minister of Justice, the Prosecutor General and the President of the Supreme Court of Justice); the appointment of judges of the Supreme Court of Justice by the President upon the proposal of the SCM (with a one-time veto); the constitutionalisation of the principle that at least half of the members of the Council need to be judges elected by their peers and that the judge members of the Superior Council should represent all levels of the courts as well as the consultative role of the Superior Council in the preparation of the budget of the judiciary.
The Venice Commission and the Directorate nonetheless make several important recommendations, in particular that the number of members of the Superior Council of Magistracy should be indicated in the Constitution; and, most importantly, that lay members of the SCM should be elected by Parliament either by a qualified majority with an anti-deadlock mechanism or by a proportional method. This method should be specified in the Constitution. In addition, the authorities could consider giving outside bodies, not under governmental control, such as the Bar or the law faculties, the possibility to propose candidates. Furthermore, the Venice Commission and the Directorate insist on the need to shield the SCM from political influence in order to increase the public trust, which was one of the key objectives of the whole judicial reform in the country.
Already previously, during the visit in Chisinau in February, the Venice Commission delegation had vigorously insisted on the need for parliament to appoint the lay members of the SCM in a consensual manner, pending the introduction at the constitutional level of the requirement of a 2/3 majority or a proportional method of election. Now, in the Opinion, the Venice Commission and the Directorate, reacting to very recent developments in Chisinau, express serious concerns that the manner in which four lay members of the SCM (two vacant positions plus the two newly created positions) have just been elected appears to defeat the proclaimed aim of the legislative amendments of December 2019 to restore the public trust in the SCM and go against the need to achieve broad political agreement on the choice of the lay members. This election of four lay members for a full mandate of four years has been controversial and non-consensual, which hampers the positive impact which the constitutional amendments ought to have brought.
The Venice Commission and the Directorate consider that in this context, the transitional constitutional provision to the effect that the sitting members of the SCM will stay in office until the end of their mandate, acquires a totally different perspective since its immediate effect will be to protect the mandate of the new members elected in a controversial procedure. In this respect, the Venice Commission and the Directorate regret that previous recommendations, rather than being taken as a whole, have been implemented in a selective manner.
For this reason, the Venice Commission and the Directorate call on the authorities of the Republic of Moldova to suspend the implementation of the legislative amendments of December 2019 and March 2020 and to elect the lay members of the SCM only after the constitutional amendments have been adopted in line with the Venice Commission´s and the Directorate’s recommendations.
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