On October 23, 2023, I gave a lecture on „The Rule of Law and the Venice Commission” at the Kolarac University in Belgrade in the presence of numerous members of the academic and scientific community in Serbia. It was an opportunity to promote my participation in the Project as well as the Project itself.
The lecture consisted of several subsections. First, I spoke about the organization and working methods of the Venice Commission. I paid special attention to the Commission’s opinions, their nature, content, influence they have on national states and beyond. In addition to country-specific opinions, other documents are also adopted: reports – special and general, studies on certain legal issues (for example, on referendum, state of emergency, bicameralism, etc.) and guidelines, for example, on political parties or on freedom of assembly). Activity in the building comes alive the day before when various meetings and sessions are held, such as sessions of subcommittees (for example, on fundamental rights, judiciary, democratic institutions, etc.), where amendments to draft opinions previously prepared by rapporteurs (experts, for as a rule, members of the Commission from different countries) with the technical and administrative assistance of the Secretariat of the Commission. The opinion of the Venice Commission is not legally binding on any country. In other words, the Commission’s recommendations do not have the force of an imperative legal norm, that is, they do not represent (hard law). In fact, the opinion is binding to the extent that the current status and needs of the specific country dictate that the Commission’s rulings are not, or are not, for the most part, political documents. They were created using legal methodology and legal argumentation. Their political role is a consequence of the fact that these opinions are taken into account when the competent authorities of the European Union evaluate the progress of a country in European integration on an annual level. Therefore, the standards of the Venice Commission are not political concepts and categories. These are the standards of the rule of law, such as equality before the law, constitutionality and legality, legal certainty, guarantees of judicial and judicial independence, etc. The fact that these standards are interpreted by politicians, at the global and regional level, with political standards and yardsticks, is the biggest problem, or, as it is said in the modern world characterized by verbal decency, it is the biggest challenge: a challenge for the rule of law itself, which is in a major crisis at the global, regional and national level, the biggest since the Second World War.
The second sub-unit consisted of a brief presentation of the evolution of the theoretical concept of the rule of law starting with Albert Van Dicey. The definitions of the rule of law up to the present day represent either an attempt to show that Dicey’s understanding is typically English and not general, or they are an effort to improve Dicey’s definition, to develop it in accordance with the fact that the concept of the rule of law is dynamic and subject to change. In its essence, Dicey’s concept is applicable even in modern times. The rule of law is not only a formal concept, it is not only the equality of all before the law. At least, in its minimalist meaning, it presupposes the absence of arbitrariness, not discretion in the decision-making of state bodies. The rule of law is not a theoretical-abstract concept because it does not exist without effective judicial protection of human rights, and this, again, does not exist without an independent judiciary and impartial, competent and responsible judges. Also, the rule of law is a universal concept. Today, it is a fundamental constitutional principle without which there is no modern constitutional democracy. Its content, however, is not universal. It cannot be the same everywhere because countries live in different socio-political, historical, cultural and economic circumstances. The fact that the rule of law can be effective, i.e. realized in practice only if it is originally national, does not mean, however, that it should not meet certain international legal standards, which must exist in every modern constitutional state. These standards are not ready-made norms or predefined solutions because otherwise, they would not be standards. They represent frameworks and guidelines that states should follow and respect, adapting them to national circumstances.
The key challenge, therefore, is the effective implementation and protection of the rule of law. The first step is to find an „operational” or „functional” definition. Finding such an „operational” and „functional” definition of the rule of law was not a task for the Venice Commission alone, but it seems that it was among those most called upon to respond to such a task. In the 2011 Report of the Venice Commission on the Rule of Law the Commission established the following „necessary” or „key” elements of the rule of law as a material and substantial and not merely a formal concept. These are: 1) legality (including a transparent, accountable and democratic process of law enforcement); 2) legal certainty; 3) prohibition of arbitrariness; 4) access to court, including judicial review of administrative acts; 5) respect for human rights; 6) non-discrimination and equality before the law.
The Venice Commission went on to elaborate a practical definition of the rule of law through a number of parameters. Those parameters, on the one hand, must be sufficiently specific, clear and understandable, in order to be able to be applied, i.e. to be used to evaluate the degree of realization of the rule of law in a specific country. On the other hand, they must be sufficiently abstract to be able to refer to an indefinite number of cases in different state and socio-political contexts. This is how the Checklist of the Rule of Lawwas created, adopted at the plenary session of the Commission in March 2016.
Although the Checklist predominantly consists of legal guarantees, the rule of law depends, equally, if not more, on the legal culture in society. Therefore, it is valid to the extent that it is used in a specific state – not as a formula, but as an open system of parameters that the state satisfies at a specific moment in order to be able to assess how well, in a qualitative sense, the rule of law is.
The checklist determines the benchmarks of the rule of law, which are broken down into several elements. The first criterion is legality. The elements of legality are: 1) supremacy of law; 2) respect for rights; 3) relationship between international and domestic law; 4) legislative powers of the executive power; 5) legislative procedure; 6) exceptions in emergency situations; 7) obligation to enforce the law 8) private actors in charge of public affairs.
Another criterion is legal certainty. Elements of legal certainty are: 1) availability of legislation; 2) control of court decisions; 3) predictability of the law; 4) stability and consistency of the law; 5) legitimate expectations; 6) non-retroactivity; 7) nullum crimen sine lege and null poena sine lege principles; 8) res judicata.
The third criterion is the prevention of abuse of authority, and the fourth is equality before the law and non-discrimination. The fifth indicator is access to justice. Its elements are: 1) independence and impartiality; 2) fair trial; 3) constitutional judiciary (if it exists). The sixth criterion is defined through examples of concrete challenges to the rule of law. These are: 1) corruption and conflict of interest; 2) data collection and monitoring.
The Rule of Law Checklist is an attempt to provide a comprehensive functional or operational definition of the rule of law. It is not a document of an academic and doctrinal character. It is, as rightly pointed out, „a tool available to all stakeholders, including international organizations, national authorities and civil society.
In any case, the Venice Commission, with all the limitations arising from the methodology of its work and the wider, inevitably political framework, made a systematic intellectual effort to „measure the immeasurable”, to create an „open book” and a practicum of the rule of law. It represents an important contribution to the realization of the rule of law at the national and international level throughout the world.
In the third, final subsection, I gave the domestic scientific and professional audience basic information about the project „The supranational interpretation of the rule of law“ (Supranational interpretation of the Rule of Law) in organization CEA и CEPN and my task in that project.
