The European Commission for Democracy through Law (Venice Commission) has issued an opinion on the draft law on the de-oligarchisation of Moldova.

“Welcoming the constructive attitude of the authorities, the Venice Commission calls for systemic reforms,” reads its preliminary opinion on Moldova’s draft law aimed at limiting excessive economic and political influence in public life (de-oligarchisation) published on Tuesday 14 March.

The Venice Commission, the Council of Europe’s body of constitutional experts, called on the Moldovan authorities to “adopt systemic reforms, rather than targeting specific individuals, to achieve ‘de-oligarchisation'”. The Venice Commission welcomed the authorities’ intention to present a revised draft law taking into account several of its recommendations, but at this stage has a “reserved position” on it.

“‘Oligarchisation’ is the result of a combination of non-transparent exercise of political power without a political mandate; influence over parliaments, governments, political parties, judiciary and law enforcement bodies; ownership or influence over the media; decisive, if not monopolistic, influence over a number of areas such as energy, mining, oil and gas, metallurgy, real estate. Eliminating such excessive influence of vested interests in economic, political and public life is a new and very complex issue.

The Venice Commission noted that although Ukraine was the first country to adopt specific legislation on de-oligarchisation, the commitment to eliminate excessive influence of vested interests in economic, political and public life was also the subject of a specific European Commission recommendation to Georgia and Moldova. Since then, Moldova has prepared a draft law which was inspired by the Ukrainian law, but with some particularities.

When addressing the issue of de-oligarchisation, the Venice Commission favours a ‘systemic approach’ aimed at strengthening institutions and legislation on media, anti-monopoly, political parties, elections, taxation, anti-corruption and anti-money laundering, rather than a ‘personal approach’ targeting individuals who can be considered oligarchs by specific criteria, such as wealth, media ownership, etc”, the Venice Commission opinion states.

In the Venice Commission’s view, the “personal approach”, which has been used in the Moldovan draft law, “entails the risk of violation of several human rights, as well as violation of political pluralism and the rule of law, unless strong due process guarantees are in place”.

In this respect, the Venice Commission “notes that the draft law in Moldova contains a number of improvements compared to other laws drafted in Ukraine and Georgia, from which it was inspired. These include the involvement of Parliament and the judiciary in the procedure for designating a person as an oligarch and the existence of a list of fundamental rights to a fair trial before the National Commission for De-Oligarchisation (CNO)”.

The Venice Commission has endorsed the objective of eliminating or at least limiting the influence of oligarchs in political, economic and public life. However, it stressed that the choice of means to achieve such a legitimate objective is of decisive importance if the system is to be effective while respecting democracy, the rule of law and fundamental rights. Such measures should be proportionate to the objective of achieving a level playing field for all actors in society.

The Commission stressed that de-oligarchisation should be ensured through a systemic approach, which has a preventive effect and covers many areas such as media legislation, anti-trust, political parties, elections, taxation, anti-corruption and anti-money laundering, etc.

In contrast, the Moldovan draft law focuses on a so-called “personal” (punitive) approach, attempting to identify so-called “oligarchs” through specific criteria such as wealth and media ownership, to publicly label them as “oligarchs” and to subject them to a series of general limitations including exclusion from financing political parties or activities, exclusion from privatisation of public property etc. This approach, in the view of the Venice Commission, entails high risks of human rights violations and arbitrary application that could harm political pluralism.

The Commission recommended “clarifying key provisions and procedures, such as eligibility criteria, providing robust safeguards for human rights and due process, and ensuring the proportionality of certain consequences of designation as an ‘oligarch'”.

The Draft Law on De-oligarchisation of Moldova is part of the Implementation Plan of the 9 recommendations proposed by the European Commission in the context of Moldova’s status as a candidate country for EU membership.

Ziarul de Gardă previously published a document of the Ministry of Foreign Affairs and European Integration (MAEIE), which contains actions, terms and institutions responsible for the implementation of priority measures:

• Justice reform and the fight against corruption;
• Addressing shortcomings in electoral legislation;
• De-oligarchisation, strengthening the fight against organised crime and asset recovery;
• Strengthening public administration capacity and public finance management;
• Involvement of civil society in decision-making processes; and
• Strengthening human rights protection and combating gender-based violence.