By forbes.com

The European Court of Human Rights (ECHR) decided to review the legality of the Moldovan government’s ban on the Shor party this week (March 11^th). Marina Tauber, former Vice Chair of the Shor party, welcomed the ECHR decision and stated that “open and fair elections are a key pillar in a democracy and the Moldovan government’s ban on the party last year undermined those rights”.

The timing of this decision is telling, as it invites the Moldovan government to submit a written statement on the facts, admissibility, and the merits of the case by 1 July 2024, on the eve of the presidential elections, which are scheduled to be held in autumn this year.

The left-wing Shor party was banned by the Moldovan constitutional court on June 19th declaring that its activities were “unconstitutional” despite concerns raised by constitutional judges Vladimir Turcan and Serghei Turcan about lack of evidence in support of such a ban.

The ban was followed by a number of controversial decisions in the run up to the local elections that were held in Moldova on November 5th and 9th.

First, the Moldovan Parliament adopted a law in July 2023 foreseeing a five-year ban for the members of a party declared unconstitutional.

Then, the Moldovan Constitutional Court ruled in favour of allowing the members of the Shor Party to participate in the local elections on October 3rd and declared the ineligibility clause in the Electoral Code unconstitutional. The following day, the Moldovan Parliament changed the country’s Electoral Code (which was immediately promulgated by the President of Moldova) by adding a new illegibility clause for party members after a ban by the Constitutional Court.

The latter happened just two days before the deadline for the registration of candidates for local elections while the Venice Commission and ODIHR described these moves as a potential “manipulation for the advantage of the party in power.” If the rules are not inclusive and transparent, they would risk “being seen as intended more at favouring incumbents” further read its report on 18 December 2023, stressing the need for “inclusive and transparent rules” that should not be open to amendment less than one yar before the election” and the principle of stability of electoral law as well as the principle of foreseeability, which is part of legal certainty.

The report further emphasised the importance of protecting “individual’s electoral rights without disproportionately undermining the essential role played by all political actors in ensuring pluralism” in line with the principle of proportionality, procedural safeguards related to relevant evidence and burden of proof and an effective remedy, which are enshrined by the ECHR and the International Covenant on Civil and Political Rights.

The decision, which bypassed the usual mechanisms in the context of the state of emergency in the country, was taken after an announcement by the Moldovan Intelligence and Security Service on financing of political parties. It’s worthwhile mentioning that the Venice Commission and ODIHR also warn against reliance on documents provided by security services as they “may affect the ability of individuals to exercise their right to counter evidence presented against them” and involve “risks of arbitrariness”.

The arguments in the case brought against the Moldovan government in the ECHR by the Shor party regarding its ban are manifold, as they point out to potential violations of key human rights, such as the right to free expression, assembly, and association. It also raises serious concerns regarding bias and conflict of interest on the part of a constitutional judge with close links to the government.

As for the justification of the ban against the Shor party, it is demonstrated that the party has no history of violence to the contrary of what the government claims. Acknowledging that peaceful demonstrations are at the heart of an active and free civil society, the Shor party argues that “its peaceful political activity” is in contrast to protests previously held by the ruling PAS party, which led to demonstrators forcing their way into the national television station and to injury of several police officers.

According to the Venice Commission, “the declaration of unconstitutionality of a political party must be a measure of exceptional nature and a last resort, and in addition to meeting the requirements of legality and proportionality”. In modern democracies, constitutional mechanisms for banning political parties are rarely used as testified by the decision by the German Federal Constitutional Court not to ban the National Democratic Party, despite its controversial platform.

The upcoming presidential elections in 2024 and parliamentary elections in 2025 will shape Moldova’s future in the aftermath of the historic EU decision to open accession negotiations with the country but EU membership is conditional on reforms related to the rule of law and the Electoral Code in the Eastern European state.

Therefore, the review of the ECHR will be a litmus test for the young democracy, which has declared its independence from the Soviet Union only in 1991.

The dissolution of the Shor party will likely remain a hot potato ahead of the elections in Moldova. To be in line with international standards, the Moldovan government will have yet to prove whether it was a necessary measure in a democratic society corresponding to “a pressing social need” or “an imminent threat”, proportionate to the “legitimate aim” pursued with “relevant and sufficient” justifications.