Constitutional justice -
Cooperation between the Venice Commission and Constitutional Courts
In constitutional law, exchanges of information and ideas between the long-established and new democracies are extremely important. The Commission therefore decided in 1992 to set up a documentation centre to foster a mutual exchange of information between the courts and to inform the interested members of the public about their decisions.
To this end, the Commission has established a network of liaison officers with the courts. Three times a year, they contribute to the Bulletin on Constitutional Case-Law and the database CODICES of the Commission which are the core of the Commission’s Centre on Constitutional Justice together with the library and the ‘Venice Forum’ allowing for a quick exchange of information between the courts on current issues.
The establishment of the Joint Council on Constitutional Justice in 2002 institutionalised this cooperation between the constitutional courts and the Venice Commission, further underlining the important role of the participating courts in the Commission’s activities.
At the same time, in order to reinforce the position of the constitutional courts as guarantors of the constitutional law and the rule of law, since 1996 the Commission has organised seminars and conferences with the courts upon their requests.
The establishment of the Joint Council on Constitutional Justice (JCCJ) was probably the most important achievement in the area of constitutional justice in 2002. On the basis of Article 3.4 of the revised Statute of the Commission, “The Commission co-operates with constitutional courts and courts of equivalent jurisdiction bilaterally and through associations representing these courts. In order to promote this co-operation, the Commission may set up a Joint Council on Constitutional Justice composed of members of the Commission and representatives from co-operation courts and associations.”
Prior to the introduction of Article 3.4 into the revised Statute, the Venice Commission already worked closely together with the liaison officers within the framework of “meetings of the Sub-Commission on Constitutional Justice with the liaison officers”. These meetings were chaired by the President of the Sub-Commission on Constitutional Justice. With the establishment of the JCCJ, the Commission introduced a system of co-chairs, one being a member of the Commission, elected by the Commission at a plenary session, the other being a liaison officer, elected by the liaison officers during the meetings of the JCCJ. The mandates of the two co-chairs run for two years each, but do not coincide.
The Venice Commission invites Constitutional Courts and courts of equivalent jurisdiction in its Member States, Associate Member States, Observer States and States with Special Co-operation Status (South Africa, Palestine) to participate in the JCCJ. Occasionally, Courts from other States are invited to JCCJ meetings as special guests (e.g. CC Tajikistan, CC Jordan).
The JCCJ acts as a steering body for the co-operation of the Venice Commission with the Constitutional Courts. The meetings of the JCCJ usually focus on the publication of the Bulletin on Constitutional Case-Law (Systematic Thesaurus), the production of the CODICES database, the Venice Forum (Classic, Newsgroup, Observatory) and on the co-operation with regional and linguistic groups of Constitutional Courts as well as the World Conference on Constitutional Justice.
The meetings of the JCCJ are generally followed by a “mini-conference” on a topic in the field of constitutional justice, chosen by the liaison officers during which they present the relevant case-law of their Courts (e.g. “The role of Constitutional Courts in economic crises” in 2014).
The JCCJ meets once a year, at the invitation of the participating courts (June 2015: Bucharest, Romania). The JCCJ meets in Venice every third year, either before or after a plenary session of the Venice Commission.
The Bulletin on Constitutional Case-Law, first published in January 1993, contains summaries of the most important decisions sent in by the constitutional courts or their equivalents of nearly 50 countries, the European Court of Human Rights and the Court of Justice of the European Communities. It is published three times a year in English and French, with each issue containing the main judgments handed down over a four-month period. The contributions to the Bulletin are supplied by liaison officers appointed by the courts themselves.
The regular issues are supplemented by a series of special bulletins containing descriptions of the courts and basic material, such as extracts from constitutions and legislation on the courts, thus enabling readers to put the different courts' case-law in context. A new series on leading cases presents the basic decisions of the participating courts before the Bulletin's inception in 1993.
The Bulletin's main purpose is to encourage exchange of information between courts and help judges to settle sensitive legal issues, which often arise simultaneously in several countries. It is also a useful tool for academics and all those with an interest in this field. It is not only the newly established constitutional courts in central and eastern Europe that benefit from such co-operation and exchange but also the judgments of their counterparts in other countries.
The Commission's secretariat in Strasbourg has established a data base called CODICES, which represents approximately 100 000 pages of printed text. Apart from more than 4000 summaries also published in the Bulletin, the data base contains the full texts of about 5 000 decisions, mainly in English or French but also in other 24 languages. All the special bulletins are also included in CODICES, as are a number of constitutions. It is available on CD-ROM and via the Internet. CODICES is updated three times a year to coincide with the publication of the Bulletin.
The Bulletin offers an additional tool of great benefit to CODICES, in the form of the systematic thesaurus, which is regularly updated to take account of new developments in constitutional case-law. The thesaurus makes it possible to search the data base under specific topics, such as freedom of expression or the presumption of innocence.
The Bulletin of Constitutional Case-Law and CODICES make information available that has hitherto been largely inaccessible other than to first-rate polyglots with a specialist library at their disposal. It therefore greatly facilitates comparative research by practitioners, who can draw on approaches already adopted in other countries, particularly in the field of fundamental rights. Variations in case-law between constitutional courts increasingly reflect conscious rather than accidental differences of approach. The circulation of information is therefore a powerful force for "trans-constitutionalism", enabling courts to draw inspiration from the constitutional practice of their counterparts elsewhere.
Useful link: CODICES database
The main task of the European Commission for Democracy through Law, known as the Venice Commission, is to provide legal advice to its member states wishing to bring their legal and institutional structures in line with European standards and international experience in the fields of democracy, human rights and the rule of law. This legal advice is provided by the Venice Commission in the form of legal opinions on draft legislation or on legislation that is already in force.
If the requests by the member states of the Venice Commission are made by national constitutional courts or courts with equivalent jurisdiction (or the European Court of Human Rights), the opinions provided by the Venice Commission are then referred to as “amicus curiae briefs”.
An amicus curiae brief by the Venice Commission provides information on comparative constitutional and international law issues. An amicus curiae brief therefore does not address the constitutionality of the act or law concerned in a given case before the requesting Court.
The Venice Commission’s role is therefore neither to address the specific cases pending before the requesting Court nor to assess the constitutionality of domestic provisions. This is the national Court’s role.
For this reason, the Venice Commission asks the Courts in their requests for an amicus curiae brief, to formulate specific questions they would like the Venice Commission to answer.
An example of a recent amicus curiae brief is the one for the Constitutional Court of the Republic of Moldova on the Right of Recourse by the State against Judges (CDL-AD(2016)015). The case before the Constitutional Court of the Republic of Moldova concerned the constitutionality of Article 27 of the Moldovan Law no.151 on Government Agent, which gives the State the right to recourse action against individuals (including judges) whose actions or inactions have caused or greatly contributed to violations of the European Convention on Human Rights found by a judgment of the European Court of Human Rights, by a friendly settlement imposed on the Republic of Moldova for a case pending before that Court or by a unilateral declaration of the Government of the Republic of Moldova.
The Constitutional Court of the Republic of Moldova had rendered a judgment in this case on 25 July 2016 taking most of the recommendations made by the Venice Commission in its amicus curiae brief into account. Notably, the Constitutional Court held that recourse action in itself was not contrary to the Constitution, as long as the independence of judges was guaranteed, since judicial independence is a prerequisite for the rule of law and a fundamental guarantee of a fair trial. It found that Article 27 exceeds the general framework of the liability of judges, because it does not require the existence of a national judicial decision rendered in a separate trial proving the individual’s guilt, but is only based on a judgment by the European Court of Human Rights. The Constitutional Court therefore declared Article 27 only constitutional to the extent that recourse action is based on a sentence handed down by separate judicial proceedings at the national level, finding the individual has committed actions or omissions intentionally or through gross negligence, which contributed to the violation of the European Convention on Human Rights.
Other recent amicus curiae briefs include:
Amicus curiae brief for the Constitutional Court of Albania on the Law for the temporary re-evaluation of Judges and Prosecutors (Vetting Law), adopted by the Venice Commission in December 2016,
Amicus curiae brief for the Constitutional Court of Bosnia and Herzegovina on the mode of election of delegates in the House of Peoples of the Parliament of the Federation of Bosnia and Herzegovina, adopted by the Venice Commission in October 2016,
Amicus curiae Brief for the Constitutional Court of Albania on the restitution of property, adopted by the Venice Commission in October 2016,
Amicus curiae Brief for the Constitutional Court of Georgia on the non ultra petita rule in criminal cases, adopted by the Venice Commission in June 2015,
Amicus curiae brief in the case of Rywin v. Poland (Applications Nos 6091/06, 4047/07, 4070/07) before the European Court of Human Rights (on Parliamentary Committees of inquiry), adopted by the Venice Commission in March 2014,
In response to requests from a number of constitutional courts, the Commission has established a series of activities with these bodies. Since 1996, conferences and seminars have been held in Armenia, Azerbaijan, Bosnia and Herzegovina, Croatia, Estonia, France, Georgia, Kyrgyzstan, Latvia, Lithuania, Moldova, Poland, Romania, Russia, Slovakia, South Africa and Ukraine. They have covered not only practical issues, such as case management or the budget of the courts and their relations with the public, but also topics relating to basic democratic principles, such as the separation of powers or the independence of the judiciary.