Moldova’s banning the display of symbols used by Russia’s army in Ukraine legitimate, says Venice Commission

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In the context of the war, the ban on the display of certain symbols used by the Russian armed forces during its invasion of Ukraine adopted by the Moldovan Parliament in April 2022 respects the requirements of legality, legitimacy and proportionality, according to an opinion adopted by the Council of Europe’s Venice Commission legal and constitutional experts during its 21-22 October plenary meeting.

The Commission considers that it is plausible to argue that there is a pressing social need to impose such a restriction of freedom of expression and that the display of such symbols used by the Russian army in the current aggression against Ukraine “could produce an actual and immediate danger of disorder and a threat to national security and the rights of others, including Ukrainian refugees in the country.” It also points out that the speedy adoption of this ban – passed through Parliament within a week – was justified by the urgency of the matter on account of Russia´s aggression against Ukraine.

The opinion focuses on the ban on the use of certain symbols introduced by Law No. 102 on Amendments to Some Normative Acts, which reforms the Law on the Countering of Extremist Activity and the Contravention Code, and on Law No. 143 on Amendments to the Audiovisual Media Services Code imposing certain restrictions on the media. The Moldovan government requested the opinion on behalf of the Bloc of Communists and Socialists, a parliamentary faction in the Parliament of the Republic of Moldova which opposes these reforms.

The Commission makes several recommendations to improve Law No. 102: introducing an explicit specification of the categories of symbols “created by styling” other prohibited symbols and of the terms “propaganda or glorification” in the definition or extremist activity, and clarifying the sanctioning procedure.

Law No. 143 seeks to protect information security in the country by imposing on media service providers and distributors conditions as to the geographical origin of audiovisual programmes and by prohibiting the broadcasting of audiovisual programmes that constitute “speech that incites hatred, disinformation, propaganda of military aggression, extremist content, content of a terrorist nature or that poses a threat to national security”.

Considering that the Republic of Moldova is heavily exposed to external sources of information and is a constant target of disinformation activities from external sources, the Venice Commission considers that Law No. 143 pursues a legitimate aim and responds to a pressing social need. However, it also underlines that some of the amendments are not precise enough and could have a chilling effect on the media in the country and, therefore, makes a number of recommendations.

During its meeting, the Venice Commission also adopted an amicus curiae brief on certain provisions of Law No. 102 for the Constitutional Court of the Republic of Moldova related to the clarity of provisions on combatting extremist activities; and a joint opinion with the Directorate of Human Rights and the Rule of Law of the Council of Europe on the draft law on the Supreme Court of Justice (SCJ).

The joint opinion, requested by the Moldovan Minister of Justice, examines provisions related to the SCJ´s role in uniformising the application of the law, the reform of the composition of the SCJ to include legal professionals other than career judges, the reduction in the number of SCJ judges from 33 to 20, as well as the evaluation of judges, by vetting sitting judges and pre-vetting candidates.

While recalling that pre-vetting of candidates is in principle less controversial, the opinion stresses that the extraordinary vetting of judges foreseen in the draft law might only be justified in exceptional circumstances.

In this respect, the Venice Commission reiterates several recommendations issued in the past to the Moldovan authorities concerning the need to respect the constitutional framework, in particular the constitutional provisions regarding the independence of the judiciary, and to envisage a vetting scheme only after having considered all other methods of judicial accountability (disciplinary procedures, regular evaluation and in extreme cases criminal investigation and prosecution).

As to the number and composition of judges of the SCJ, the Venice Commission considers that a mixed composition of career judges and other legal professionals and the reduction in the number of judges should be introduced gradually and without affecting currently sitting judges. It finds more adequate that, in view of the future competences of the SCJ, as result of the gradual process, there are 13 career judges and 7 non-career judges in the SCJ.

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