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The Draft Constitution contains a number of positive features, notably some new provisions pertaining to fair trial guarantees, the practical implementation of all provisions will greatly depend upon the adoption of implementing legislation and the existence of proper enforcement mechanisms, including judicial review and access to independent and impartial courts. The OSCE/ODIHR hopes that these Comments will provide useful insights, which may eventually lead to more comprehensive and fundamental changes, involving a clearer division of competencies, more efficient state institutions and a system of effective checks and balances.

While the Opinion acknowledges that the Draft Amendments overall improve the transparency of criminal investigations, it also provides concrete recommendations for improvement, in particular to guarantee the impartiality and independence of attesting witnesses during criminal proceedings.

The Draft Amendments propose changes to constitutional provisions on the status of international human rights treaties and their position in the hierarchy of norms, the separation of powers, the dismissal of members of Cabinet, the manner of appointing/dismissing heads of local state administration, the independence of the judiciary and of judges as well as the roles of the Supreme Court, and of the Constitutional Chamber, among others. The OSCE/ODIHR and the Venice Commission note that the proposed amendments to the Constitution may negatively impact the balance of powers by strengthening the powers of the executive, while weakening both the parliament and, to a greater extent, the judiciary. In particular, although the Constitutional Chamber is retained as such, the Draft Amendments would seriously affect its institutional status and role as an effective organ of judicial constitutional review. Moreover, some of the proposed amendments raise concerns with regard to key democratic principles, in particular the rule of law, the separation of powers and the independence of the judiciary, and have the potential to encroach on certain human rights and fundamental freedoms.

At its 107th Plenary Session, on 10-11 June 2016, the Venice Commission endorsed the Joint Opinion with the OSCE/ODIHR on the draft electoral code of Armenia as of 18 April 2016. At this Plenary Session, the Minister of Justice informed the Venice Commission and the OSCE/ODIHR that additional amendments, including changes that addressed recommendations made in the first Joint Opinion, could be submitted to parliament at an extraordinary session before the end of June 2016. The Minister therefore invited the rapporteurs to hold a working meeting with the Armenian authorities in order to discuss possible additional improvements to the code. The Minister also requested another joint opinion on the final version of the amended Electoral Code, particularly in light of the extent to which these new amendments addressed the recommendations presented in the first Joint Opinion. The Minister asked that this opinion be again transmitted and made public in preliminary form during the month of July. The Venice Commission and OSCE/ODIHR granted this request. The Minister confirmed this request in a letter sent on 2 July 2016.

Amendments to the Electoral Code have been made necessary by the 4 March 2016 decision of the Constitutional Court. This decision declared unconstitutional the procedure of election of the President of Moldova by 3/5 of the Members of Parliament, as well as the related rules and laws. It also revived the constitutional provisions on the direct election of the President of the Republic, to be found in Articles 78 (1, 3, 4), 85 and 89 of the Constitution, in force until the adoption of the Law no. 1115—XIV of 5 July 2000, and the corresponding Electoral Code provisions for the election of the President by direct, secret and free vote of the citizens that were repealed by the above law. This decision was consulted in English, directly on the Constitutional Court’s website. All references to the original complaint (48b/2015) and the ruling by the Constitutional Court (Judgment No. 7 of 04.03.2016) are based on the translated documents. On 1 April 2016, the parliament of Moldova voted to hold the presidential election on 30 October 2016.

This joint opinion follows the reform of the Constitution, which was subject to two opinions of the Venice Commission in 2015. The new Constitution entered into force after being endorsed by voters in a referendum on 6 December 2015. According to its Article 210, a new Electoral Code has to enter into force by 1 June 2016.

This report is the result of joint efforts by the OSCE Mission to Serbia and the Office for Democratic Institutions and Human Rights (ODIHR) to monitor the nomination and election processes for peer elections of judges and prosecutors in Serbia to the High Judicial Council (HJC) and the State Prosecutors’ Council (SPC), respectively, conducted from October to December 2015. The Lawyers’ Committee for Human Rights (YUCOM), a Serbian nongovernmental organization, also served as an implementing partner. This monitoring was conducted in consideration of ongoing judicial and legal reform initiatives in Serbia as part of a broader National Justice Reform Strategy and ongoing reforms for accession to the European Union (EU). Activities included monitoring nomination processes (in selected courts and prosecutor’s offices), monitoring peer elections across Serbia, analyzing the underlying legal framework, and interviewing judges and prosecutors who participated in the process.

Overall, the Opinion welcomes the Draft Amendments to the Law on Civil Service of Ukraine, which aim to ensure the autonomy of the Ukrainian Parliament Commissioner for Human Rights to recruit his/her staff members. At the same time, the Draft Amendments would benefit from some changes to protect the institutional independence of the Commissioner from any interference from external bodies and ensure a pluralist staff composition at all levels.