During its 126th plenary session, held on 19 and 20 March, the Venice Commission adopted an opinion on the draft law amending some normative acts relating to the People’s Advocate of the Republic of Moldova.
The draft legislation introduces into the national legal order a ”People’s Advocate for Entrepreneurs Rights” and incorporates it in the already existing institution of the People’s Advocate.
The opinion was requested by the late Mihail Cotorobai, People’s Advocate, on 24 November 2020.
The Venice Commission has reached the following conclusions:
- If the introduction of a People’s Advocate for Entrepreneur’s Rights should occur, the Commission reiterates the importance of defining very clearly the fields of competences of this new Advocate, and more precisely with regard to the private sector. This clarification is all the more important as it will make it possible to resolve any conflicts of competence that may arise.
- The Venice Commission reiterates its previous recommendation of reconsidering the competence of the People Advocate’s institution in order “to include private bodies in the jurisdiction of the People’s Advocate only to the extent that the agencies are entrusted with a public service mission or where applicable, co-financed by the State” and of clearly specifying it in line with Principle 13 of the Venice Principles.
- As regards the procedure of appointment and dismissal of the People’s Advocate for Entrepreneurs’ Rights, the Commission notes that in order to implement the Venice Commission’s principle requiring a qualified majority for the election of the ombudsman, a constitutional amendment would b required. Appointment criteria should also be provided for according to Principle of the Venice Principles. With regard to the term of office envisaged by the draft amendments, the Commission congratulates the drafters for having provided for a duration in line with the Venice Principles.
- In relation to the incorporation of the People's Advocate for the Entrepreneurs’ Rights into the People’s Advocate Office, the Commission recalls that it must not bring adverse effects to the institution of the People’s Advocate and the People’s Advocate for Children with regard to the core mission of the institution and its identity. If the choice of this integration is to be maintained, it is essential to define an internal last resort decision-maker (preferably the PA), clear internal structural mechanisms to ensure a proper functioning while keeping in mind the essential unity of the institution. In addition, sufficient and appropriate budgetary guarantees and increases to ensure the functioning of the institution and the efficient processing of cases are indispensable.
- The Venice Commission recalls the need for genuine and wide-ranging public consultation and of accompanying measures that could enhance the protection of human rights.
Finally, the Commission invites the legislator to take the opportunity of a possible revision of the People’s Advocate law not only to implement the previous recommendations formulated in former opinions of the Venice Commission which are still valid but also to fully implement all Venice Principles.
The opinion was prepared under the Quick Response Mechanism (QRM) in the framework of the European Union/Council of Europe joint programme Partnership for Good Governance, funded by the European Union and the Council of Europe and implemented by the Council of Europe.
