Position of the Civic Coalition for Free and Fair Elections on the draft new Electoral Code

To the Parliament of the Republic of Moldova
Legal Commission, Appointments and Immunities

 

20 September, 2022

 

The Civic Coalition for Free and Fair Elections (CALC), acting in solidarity to contribute to the development of democracy in the Republic of Moldova by promoting free and fair elections in accordance with the standards of the ODIHR (OSCE), the Council of Europe and its affiliated specialised institutions, welcomes and encourages the effort to improve the Electoral Code and related legislation.

The Coalition appreciates the efforts of the Central Electoral Commission (CEC) to draft a new Electoral Code, as well as the participatory and inclusive process organised for this purpose. Thus, the new draft Electoral Code developed by the CEC takes into account most of the recommendations of the international and national election observation missions, civil society and Moldova’s development partners.

The draft of the new Electoral Code was approved in the first reading by the Parliament of the Republic of Moldova on 28 July 2022 and will be further discussed and debated by the legislature before the second reading. In order to improve the project, CALC recommends the following aspects of the Code for review and clarification:

1. Re-examination of a number of notions used in the Electoral Code, Article 1

CALC points out that several notions, defined in Article 1, are imprecise and need to be corrected, as follows: extra-electoral campaigning, early elections, invalid elections, new elections, collector, electoral candidates, electoral contenders, declaration of residence, disenfranchisement, locality^[1].

2. Elucidation of the reasons for holding elections over two days, Article 8

CALC reiterates the importance of holding elections under the same conditions in all polling stations, and the right to elect and be elected must be guaranteed equally to all citizens. The Coalition considers that the phrase ‘objective reasons’ as formulated in Article 8(2) is open to interpretation, and the legal rule must be precise and predictable. In this regard, we recommend the inclusion of an exhaustive list of objective reasons allowing for derogation from para. 1.

3. Appointment of CEC members may favour the parliamentary/governing majority, Article 20

The CALC member organisations point out that the proposed amendments to Article 20 make it easier for the majority of CEC members to be appointed by the ruling party, especially if it has both a majority in Parliament and the support of the President of the country. This observation is also supported by the relatively small number of members.

In order to reduce the political influence and the possible suspicions of majority control over the Central Electoral Commission, we recommend the adoption of a formula whereby the majority in the CEC is not held by persons representing the government. Thus, we recommend either that, instead of two representatives of the Superior Council of Magistracy (SCM), three people be nominated, or alternatively that one of the two representatives appointed by the Government be nominated from among civil society organisations active in the electoral field.

According to the Constitutional Court Decision No 29 of 21.12.2010, CEC members are state officials, representatives of a special public interest. This is why the depoliticisation of the CEC is also guaranteed by the way the members of this institution are appointed. For these reasons, it would be necessary to conceptualise the method of appointing CEC members. The current formula for appointing CEC members is criticised on the grounds that the members of an institution of special public interest are appointed by institutions of special political interest, which is normal practice in societies with a robust political culture. An example of an attempt to avoid the political factor in the appointment of CEC members would be for the majority of these members to be appointed by other institutions of special public interest. As the work of the CEC covers a wide range of subjects – regulation of media behaviour, protection of personal data, etc., it would make sense for specialised institutions to be involved in the process of appointing the members of the CEC – a holder of expertise in particular fields.

4. Making the District Electoral Councils permanent

Under the new amendments to Article 35, the second-level District Electoral Councils shall operate on a permanent basis. They are collegiate bodies that could operate on a permanent basis if a procedure for adopting decisions were established, including between election periods. CALC therefore recommends that clarification be provided on this point. At the same time, from the content of Article 37 we deduce that the district electoral councils have powers only during the election period, and the chairpersons of the second-level district electoral councils probably have powers between election periods, which needs to be specified by the legislator.

From the text of the draft, we can see that a number of articles highlight the fact that it is not a question of making the work of the District Electoral Councils permanent, but of the work of the Chairpersons of these Councils. This inevitably leads to oddities – members having different statuses, etc.

Thus, CALC notes the existence of risks that may affect the transparency, impartiality and independence of the second-level district electoral councils and their chairpersons from certain political influences or subordination/control by the superior electoral body – CEC. To address some of these challenges, CALC recommends that additional safeguards be put in place to ensure the independence and impartiality of the chairpersons of the second-level district electoral councils by:

1. limiting the period for which the Chairperson of the second-level district election council is appointed;
2. organising open, transparent competitions, with the publication on the CEC website of the candidates for the position of Chairperson of the second-level district electoral council;
3. appointment of the second-level district election council chairperson by decision of the CEC, with a vote of two-thirds of CEC members;
4. setting specific, mandatory conditions to be met by the chairperson of the second-level district electoral council, including political impartiality, mirroring the rules applied to CEC members.
5. Exclusion of the obligation to set up polling stations at diplomatic missions and consular offices of the Republic of Moldova, Article 39(2)

CALC points out that the establishment of polling stations at diplomatic missions should not depend on a specific political will. Thus, at diplomatic missions and consular offices, polling stations must be established on a mandatory basis, i.e. the wording in the Code must be replaced. We stress that the premises of embassies and consular offices are, in principle, extraterritorial premises of the Republic of Moldova, where the state must ensure the right to vote of citizens, including for mission employees and their family members.

6. The risk of not holding elections for the citizens of the Republic of Moldova with the right to vote from the localities on the left bank of the Nistru River (Transnistria)

The Coalition notes the inclusion in Article 40(1) of the phrase ‘may organise’ instead of ‘shall organise’ polling stations for voters from the localities on the left bank of the Nistru River. CALC considers that it is the obligation of the State of the Republic of Moldova to ensure the minimum conditions for its citizens from the Transnistrian region to realise their right to vote.

7. Electoral campaign financing

Regarding Article 53(1), CALC points out that it is neither justified nor necessary to increase the ceiling on income that can be accumulated in the election campaign from 0.05% to 0.1%. The 0.05% cap was established in 2019 as a result of the recommendations to lower it. Since 2019 and so far in the national elections, this threshold has not been reached by any contender. For example, for the 2021 parliamentary elections, the ceiling was about MDL 21 million, with the highest reported revenue of about MDL 14 million. According to the new formula – i.e. the 0.1% ceiling, an electoral contender could have accumulated revenues of up to MDL 45 million.

In order to elucidate the rationale for increasing the ceiling, CALC recommends that additional explanations be included or that the doubling of the income ceiling be waived.

We also note the provisions of Article 57 on the donation regime. In this regard, we consider it necessary to maintain the ceiling on donations made by citizens of the Republic of Moldova with income earned abroad up to 3 average monthly salaries. According to the draft of the new Code, citizens of the Republic of Moldova with income earned abroad may donate, like those with income earned in the country, up to 6 average monthly salaries per economy established for the year in question. At the same time, this ceiling may not exceed 30% of their annual income. We believe that the state institutions do not currently have the tools to verify the origin of income earned abroad and, respectively, to verify whether the 30% limit is met. CALC therefore recommends retaining the current provisions on the 3 average salary ceiling.

CALC welcomes the introduction in the new Electoral Code of the basic principles for the monitoring and control of the financing of initiative groups and election campaigns (Article 59), which will allow to verify not only the completeness and timeliness of the information submitted, but also the veracity of these reports. However, CALC is of the opinion that these provisions could be further improved by detailing in the Code the basic rules on the initiation of the control procedure, the duration of the control/monitoring procedure, the methods of collecting data/evidence, the acts by which a control procedure is completed and, where appropriate, the types of violations and the penalties applicable in case of violation.

8. Lack of equal opportunities by making the collection of signatures mandatory only for the independent candidates in local and parliamentary elections, Article 65

A fair electoral process is legitimate if all citizens are given equal opportunities to stand for public office. Examining the provisions of Article 65 of the new Code, CALC notes that the independent candidates are disadvantaged by the fact that only they are required to collect signatures in their support for elective office. In principle, the Coalition advocates three options which it recommends to Parliament for consideration:

• collection of signatures by all candidates, not just independent candidates;
• exemption from signature collection only for representative parties (which achieved certain results in the last elections);
• the submission of a deposit as an alternative to the collection of signatures.

 

9. Printing of ballot papers in Romanian only, Article 73(7)

The Republic of Moldova is a multi-ethnic country where multilingualism is respected. According to the new changes in the Code, ballot papers will be printed only in Romanian. The Coalition therefore recommends examining the possibility of printing ballot papers also in ethnic minority languages. It should be recalled that according to the regulations in force, it was also possible to print ballot papers in the language of ethnic minorities.

The international standards (Using international election standards – Council of Europe handbook for civil society organisations, p. 82) state that ‘A sufficient number of ballot papers should be made available in minority languages.’

The recommendation could also be justified by the fact that the citizens of the Republic of Moldova need to know who they are voting for when they enter the voting booth. To facilitate this process, CALC proposes, for example, to print ballot papers in other languages, especially for those localities where homogeneous ethnic/linguistic groups are present, based on a pre-determined threshold.

10. The need to strengthen the role of observers, Article 88(2)

The CALC member organisations stress the importance of preserving the right of electoral contenders to accredit observers to observe elections at polling stations. At the same time, we recommend that consideration be given to regulating the status of observers for the inter-election period, with the right to monitor, observe and report on the activity of political parties.

 

 

11. Complaints concerning the organisation and conduct of elections, Article 91

A fair electoral process is free from certain limitations that would restrict the right to participate in elections or to challenge the problems observed in the electoral process. With regard to the subjects entitled to challenge electoral violations, CALC is against making the right to file a complaint conditional on the existence of an aggrieved right of the complainant, in particular, taking into account the previous practice of inadmissibility of complaints on this ground. We believe that both the legislator and the electoral bodies and courts must presume that any violation of the rules of the electoral process affects the right of all citizens to vote and the right of candidates/potential candidates to be elected.

In the same vein, we are categorically against restricting the right to file complaints by limiting the subjects of complaints filed after the voting day and making their examination conditional on their influencing the voting results by redistributing the seats of the elected representatives. We believe that the time limits set for filing a complaint also exclude many violations from consideration and determination, but the inclusion of these restrictions is likely to infringe the right to an effective remedy.

We are against the initiative of examining the complaints lodged after the voting day at the same time as the procedure of totalling and confirming the results of referendums and elections. It should be noted that following the 2016 presidential election, the Constitutional Court stated that all complaints regarding electoral violations are to be settled exclusively by the courts, as they do not fall within the jurisdiction of the Constitutional Court. At the same time, taking into account that it is necessary to ensure the right to an effective remedy by challenging the decisions of the electoral bodies, including in the courts, we believe that it is impossible to examine the complaints lodged after the voting has been completed at the same time as the procedure of totalling and confirming the results of referendums and elections.

12. Setting the threshold for representation, Article 122

A democratic electoral process ensures a high degree of representation in elected office. However, under the provisions of the new Electoral Code, the chances of elections representing more segments of society in terms of political choices remain equally low. CALC proposes that the Parliament examine the possibility of lowering the electoral thresholds or provide a comprehensive, reasoned rationale for maintaining the current electoral thresholds.

The Venice Commission and OSCE/ODIHR have consistently recommended lowering electoral thresholds in the Republic of Moldova. Thus, in its 2014 Opinion, the Venice Commission positively assessed the idea of returning to the 4% threshold for political parties. In addition, we believe that in the case of independent candidates the value of 1% mathematically reflects the share of electoral support for an MP in a Parliament of 101 MPs.

CALC recommends that the minimum representation threshold be:

1. 4 per cent for a party (currently 5 per cent);
2. 6 per cent for an electoral bloc (currently 7 per cent);
3. 1 per cent for an independent candidate (currently 2 per cent).

In fact, it is necessary to rationalise the setting of electoral thresholds so that voters understand why they are necessary. Electoral thresholds distort parliamentary representation. It is therefore necessary to understand what the thresholds are intended to do – filter out extremist organisations, reduce parliamentary fragmentation, discourage the formation of electoral blocs, discourage independent candidates?

13. Setting the date of local elections, Article 159

The coalition sees a need to amend the provisions of the Electoral Code in order to set a fixed date for the general local elections. Let us recall the experience of 2019, when the interval between the expiry of the four-year term of office of the local elected representative and the date of the ordinary elections exceeded four months. We believe that by introducing a fixed date there will be predictable timeframes and no vulnerability to political involvement by central authorities in setting the date of the election.

14. Clarification of the situation with the elections for the authorities of ATU Gagauzia

We believe that the Electoral Code of the Republic of Moldova should clarify the situation regarding the electoral bodies regulating elections in ATU Gagauzia. Thus, it follows from the provisions of the Electoral Code proposed for approval, that there is still this situation when on the territory of the Republic of Moldova, controlled by the constitutional authorities, elections are held that are not regulated by national electoral legislation. Moreover, from the provisions of Article 246 it is not clear whether the electoral bodies organising elections for the People’s Assembly or Governor will operate within the legal limits.

15. Participants in local referenda, Article 231

CALC recommends that the list of subjects that can initiate the local referendum be extended to include citizens’ initiative groups. We stress the need to allow citizens to participate in referendums initiated by them to solve problems of local interest. In the draft of the new Code only parties, electoral blocs and possibly a dismissed mayor have the right to participate in a referendum. But the citizens, who initiated it, cannot promote their point of view.

16. Election campaigns coverage

The current monitoring and sanctioning mechanisms only apply to audiovisual media service providers. Articles 69 and 70 of the draft establish a series of obligations in relation to media outlets that disseminate written (and possibly online) journalistic content, but the provisions of the draft do not provide for any legal remedies in case of breach of these obligations. In such circumstances, these provisions are purely declaratory.

We therefore propose two alternative solutions^[2]:

1. Establishing a mechanism for sanctioning, as a result of notifications, those subjects who do not fall under the provisions of the Code on audiovisual media services, with the establishment of the CEC’s powers of ascertainment and sanctioning.
2. Narrowing the category of subjects falling under the provisions of Articles 69-70 by dropping the term ‘media institutions’ and replacing it with the phrase ‘audiovisual media service provider’.

 

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www.alegeliber.md – Civic Coalition for Free and Fair Elections is a permanent, voluntary entity, consisting of 39 civil society organisations from the Republic of Moldova, aimed to contribute to the development of democracy in the Republic of Moldova through advocacy and implementation of free and fair elections according to the standards of ODIHR (OSCE), Council of Europe and its specialised affiliated institutions.

^[1] The notions we have referred to and the definitions/clarifications provided, as well as other proposals to the Electoral Code are presented in the document prepared by the Association for Participatory Democracy ‘ADEPT’, accessible here: https://docs.google.com/document/d/1vpbIthH9yg5f_GHSe6SoLt1JAWBUXZ-j/edit?usp=sharing&ouid=105880618122177875995&rtpof=true&sd=true

^[2] More remarks and recommendations are set out in the Independent Journalism Centre’s paper, which can be accessed here: https://docs.google.com/document/d/1UXWiR3etN75Ertgu_-S5Rp2FTyNod7aH/edit?usp=sharing&ouid=105880618122177875995&rtpof=true&sd=true