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The Venice Commission and the Supranational Rule of Law – history, present, future

The VC – the origin, role and evolution

Scuola Grande San Giovanni Evangelista in Venice is the seat of the European Commission for Democracy through Law, better known as the Venice Commission. Its name will not be of much help if you refer to it among the local population. Anyway, the location of the school has a certain correlation with the role of the VC. On the one hand, that role is more complex than many critics of the Commission are ready to accept. On the other hand, it is, in its essence, advisory. A competent and wise adviser inevitably becomes a creator and a factor whose word becomes a reference. That happened to the VC.

The VC was created in 1990 as an international project, which was “doomed to success” in the years of great legal and socio-political changes that came with the fall of the real-socialist bloc. One of the Commission’s original tasks was to find a “common constitutional denominator” for practically all European states that had or aspired to have a democratic political order. The VC developed the concept of European constitutional heritage based on democracy, human rights and the rule of law. The VC became one of the creators of “transnational constitutional law” (P. Craig).

Although the VC is often referred to as “an independent consultative body”, it has a specific legal status – a kind of “substantial autonomy” in relation to the Council of Europe itself. The Commission was formed by the decision of the Committee of Ministers of the CoE in 1990. The normative basis of the Commission is the Statute of 2002 and two other legal documents: the Rules of Procedure and Principles of Conduct.

Although the Commission was primarily created out of the need to help the countries of Eastern and Central Europe, it became an almost equal need in the Western democracies not only for the promotion of democracy through law but also for finding the unifying principles of the future European political community. The future of the Commission is largely determined by finding a way out of the political and all-encompassing crisis of the European Community, but also of a global crisis of the inter – and supranational rule of law.

 

The VC Rule of Law Checklist – „measuring“ the Rule of Law in practice

 

The 21st century has led to a gradual „sobering“ from the misconception that the rule of law is a universal principle of universal content. It is not enough just to proclaim it in constitutions and declarations, international conventions and treaties or to refer to the principle as is generally done in the practice of the European Court of Human Rights and other courts. The key challenge is the effective implementation and protection of the rule of law.

The first step to be taken was to find an “operational” definition. The VC was, in a certain sense, called out by the Parliamentary Assembly of the CoE in the Resolution on the principle of the rule of law of 2007. Firstly, the VC adopted the Report on the Rule of Law of 2011. The VC assumed that the rule of law should be determined as a practical concept. The rule of law as a concept is originally and primarily linked to the national state-legal order, but it has an increasingly pronounced inter – and supranational character, scope and importance.

The VC created the Rule of Law Checklist in 2016. Although the Checklist mainly consists of legal guarantees, the rule of law also depends on the legal and political culture of a country. The Checklist is valid to the extent that it is used in the context of a specific country – not as a formula, but as an open system of benchmarks that a country satisfies at a specific moment. Those benchmarks are 1) legality; 2) legal certainty; 3) prevention of abuse (misuse) of powers; 4) equality before the law and non-discrimination; 5) access to justice; 6) the examples of particular challenges to the rule of law: a) corruption and conflict of interest, b) collection of data and surveillance. 

The checklist is an expression of awareness that the rule of law is not indefinable in the proper sense, but that it could be possibly measurable. “The rule of law is not  ̔all or nothing̕. There can hardly be countries where it is fully realised and countries where it does not exist at all. Full achievement remains an ideal, an ongoing task even in well-established democracies. But, the lower the level of compliance with the rule of law, the greater the demand for it. Compliance with the rule of law is a priority of our times, and should be pursued and enhanced on structural matters or on matters of institutional functioning” (Simona Granata-Menghini).

 

The VC opinions – between law and politics

 

The VC issued country-specific opinions at the invitation of the bodies of the states whose acts are being analyzed or on the initiative of the bodies of the CoE and other international organizations. When the state addresses the Commission, it may do so for various reasons: to seek an expert opinion on the quality of its proposed legislation; to invoke the authority of the opinion of the Commission as one of the instruments for solving internal political dilemmas and conflicts; in order to harmonize national legislation in the most adequate possible way with international standards (which is of particular importance for countries in the process of EU accession). Before the plenary session, the draft opinion is being discussed in the corresponding subcommittee. State representatives and rapporteurs can also meet the day before the plenary session in order to agree on some details in the draft opinion. The opinion is adopted at the plenary session by the votes of the majority of the members, provided that the majority of the members of the Commission are present. However, the rule is that opinions are adopted by consensus. 

Operability and flexibility, as important features of the VC’s methodology, created the need for a special type of opinion, which is somewhat different from ordinary opinions. Those are urgent opinions which are issued in exceptional cases. The number of such opinions has increased over time so that they no longer represent an exception. Their common denominator is the necessity for the Commission to declare its views and recommendations regarding a text without waiting for the next plenary session. An urgent opinion shall be submitted at the next session. The VC may: 1) take note of the urgent opinion; 2) endorse the urgent opinion; 3) adopt an (ordinary) opinion based on the urgent opinion; or 4) decide to postpone consideration of the opinion to a forthcoming session.

Another type of opinion, which has been used in practice for many years but has only recently become a statutory category, is follow-up opinion. Whenever there are new developments concerning an adopted opinion, the Secretariat will report to the Plenary Session under the agenda item  ̒Follow up to previous opinions̕.

The practice has also produced interim opinions “when the Commission considers that its assessment of the topic requires further developments” (Art. 14c of the Statute). Bearing in mind that the process is ongoing, the Commission should not take its final position on the issue.

“Formally speaking, the Commission is an advisory body, and the recommendations expressed in its opinions are just that: recommendations which are not legally binding upon authorities to which they are addressed” (Granata-Menghini, Kuier). The absence of legal sanctions is the first “soft spot ”in the VC methodology. Another “soft spot” is the absence of effective monitoring mechanisms for compliance, i.e. the implementation of its opinions. The third is the impossibility to “measure” the impact of the opinions. 

The VC “brings technical/legal argumentation to the political debate” but remains, to the greatest extent possible, outside the “political forum” (Granata-Menghini, Kuier). However, the VC has not consistently managed to stay outside the “political forum”. Flexibility allowed many of its opinions to be “the result of the mutual relationship between the work of the Commission and the relevant political forces at play” (Granata-Menghini, Kuier).

“Although its opinions are generally reflected in the adopted legislation, the Commission does not impose its solutions, but adopts a non-directive approach based on dialogue …The power of the Commission is, therefore, the power to persuade … It is therefore very difficult to access the Commission’s effectiveness in shaping constitutional and human rights standards” (Robert Clayton). The recommendations are not, strictly speaking, legally binding for the state. However, they are binding in a very specific way. This is especially true for “key recommendations”, which are not formulated in an imperative manner, but refer to key solutions in a draft legislation. Those solutions should be revised either according to the instructions from the opinion or should be reconsidered.

The opinions are not political documents. They are drafted using predominantly legal argumentation. The time frame is very important. It often does not favor the quality of opinions. The opinions are neither abstract nor general documents. They will be applied only if the VC standards are adapted to specific national socio-political circumstances. The implementation of the opinion is certainly not much less important for the Commission itself due to the strengthening of its expert legitimacy and the confirmation of its mission. “In that sense, it has to be acknowledged that the advice offered by the Commission has always been – at least to a certain degree – more than purely advisory and that the level of observance of opinion by the Commission cannot be explained by the quality of advice offered and its independence. The observance of the opinion of the Commission is also – at least in part – the result of the interplay between the work of the Commission and the political forces in play” (Granata-Menghini, Kuier).

It is possible to talk about three dimensions of the Commission’s impact on the legal order of a given country. The first is quantitative, the second is qualitative, and the third concerns “follow-up” in the true sense (Anne Peters). The quantitative dimension refers to the volume of adopted recommendations, ultimately to the question “if legislation has been changed at all”.  The qualitative dimension of impact refers to the quality of the amendments, more precisely, to the extent and the way the recommendations from the opinion are implemented in the final text of the constitution or the law. The Commission can at least have information and present it as a classic “follow-up” at the next plenary session. That “follow-up” is a summary report about which recommendations from the opinion were followed, i.e. became an integral part of the applicable law of the state. The third dimension of impact refers to the question of whether the adopted legal amendments are implemented and applied. That impact of the Commission almost never exists because the Commission is not even in charge of dealing with it. “The assessment of the follow-up given to an opinion should, however, remain outside the realm of the Commission. The Commission’s assessments are meant to contribute to the domestic discussions, not to replace them. Ownership of the constitutional and institutional design of a country is a fundamental feature of its accountability towards its citizens; states should not be given the pretext of blaming an external advisory body for possible mistakes or lack of success” (Granata-Menghini, Kuier).

In conclusion, the basic idea of ​​constitutional law as a prohibition for the excessive influence of any, even international, legal or political factor in the constitutional (re)design of a nation state remains one of the “guidelines” in the work of the Commission.

                       

The VC in the future – the Challenges of the Rule of Law

 

The central question is whether the Commission will and can maintain its professional relevance, referentiality and operability in a world that will, one day, be “reborn” when cataclysmic attacks on the traditional concept of international legal order and the rule of law go to an end. It should not be forgotten, after all, that the VC was created as an institutional realization of a humanistic and very right idea of national legal orders that rest on common, i.e. supranational principles of the rule of law.

At this point, we would like to mention only one challenge that the Commission should pay special attention to in the coming period. It is a re-examination of one of its traditional views on the division into old and new democracies. That division, apparently justified in the 1990s, is today, objectively speaking, quite far from the reality of most member states of the CoE. In general, many once-new democracies have become stable – they are established and function on generally accepted European standards. Many so-called old democracies are not as stable as they once were or assumed they were. The rule of law is facing new challenges everywhere. Those challenges do not recognize the difference between “old” and “new” democracies. So that differentiation would not be a “fertile ground” for the further development of the Commission in “the complex political – national and international – context in which Venice Commission member states nowadays function” (Granata-Menghini, Kuier).

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