In its interim opinion on the draft law of the Republic of Moldova aimed at limiting the excessive economic and political influence in public life (de-oligarchisation) published Tuesday, the Council of Europe’s body of constitutional experts, the Venice Commission called on the Moldovan authorities to adopt systemic reforms rather than targeting specific individuals, in order to achieve “de-oligarchisation”.
The Venice Commission welcomed the intention of the authorities to submit a revised draft law taking into account several of its recommendations, but at this stage reserved its position on it, according to a press release.
“Oligarchization” is the result of a combination of non-transparent exercise of political power without a political mandate, influence on parliaments, governments, political parties, judiciary and law enforcement bodies; ownership or influence on the media; decisive, if not monopolistic, influence on 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 novel, and very complex issue.
The Venice Commission noted that while Ukraine was the first country to adopt specific de-oligarchization legislation, the commitment to eliminate the excessive influence of vested interests in economic, political and public life was also the object of a specific European Commission recommendation to Georgia and to the Republic of Moldova. The Republic of Moldova has since prepared a draft law which was inspired from the Ukrainian law but presented some specificities.
When addressing de-oligarchization, the Venice Commission favors a “systemic approach” aimed at strengthening the institutions and legislation relating to media, anti-monopoly, political parties, elections, taxation, anti-corruption and anti-money laundering rather than a “personal approach” aimed at targeting persons who may qualify as oligarchs through specific criteria, such as wealth, media ownership, etc.
In the Venice Commission´s view, the “personal approach”, which has been used in the draft law in the Republic of Moldova, entails the risk of violation of several human rights, and of the violation of political pluralism and the rule of law, unless strong guarantees of due process are put in place. In this regard, the Venice Commission notes that the Moldovan draft law contains a series of improvements in respect of the other laws drafted in Ukraine and Georgia by which it was inspired. This includes the involvement of the Parliament and the judiciary in the procedure to designate a person as an oligarch and the existence of a list of basic fair trial rights in the procedure before the National Committee for De-Oligarchization (NDC).
The Venice Commission supported the goal of eliminating or at least limiting the influence of oligarchs in political, economic and public life. It highlighted however that the choice of the means to achieve such legitimate goal is of decisive importance if the system is to be effective while respecting democracy, the rule of law and fundamental rights. Any such measures should be commensurate to the goal pursued of achieving a level playing field for all actors in society.
The Commission stressed that de-oligarchization should be ensured through a systemic approach, which has a preventative effect and targets numerous fields, such as legislation relating to media, anti-monopoly, political parties, elections, taxation, anti-corruption and anti-money laundering, etc.
The Moldovan draft law instead focuses on a so-called “personal” (punitive) approach, seeking 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 blanket limitations that include exclusion from the financing of political parties or activities, exclusion from privatizations of public property, etc. This approach, in the opinion of the Venice Commission, carries high risks of human rights violations and arbitrary application potentially harming political pluralism.
At the very least, the Commission recommended clarifying key provisions and procedures such as eligibility criteria, providing strong guarantees for human rights and due process, and ensuring the proportionality of certain consequences of designation as an “oligarch”.