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Fundamental Rights


The Venice Commission adopts opinions, amicus curiae briefs, studies and guidelines in the field of the protection of fundamental rights, including in particular, freedom of association, prohibition of discrimination, freedom of assembly, freedom of expression and freedom of conscience and religion.

 

Freedom of religion

Opinions

In recent years, the Venice Commission has adopted opinions (in a number of cases prepared jointly with the OSCE/ODIHR) concerning legal texts on freedom of thought, conscience and religion - of Armenia (2010),  Azerbaijan (2012), Bosnia and Herzegovina (2012), Hungary (2012), and Kosovo (2014).

 

Studies and guidelines

In response to continued challenges in the field of freedom of religion, in particular concerning registration systems of religious communities and legal obstacles to acquiring legal personality, the Venice Commission and OSCE/ODIHR published, in 2004, the Guidelines for Review of Legislation pertaining to Religion or Belief. In 2008, the Venice Commission examined, in its Report on the relationship between Freedom of Expression and Freedom of Religion , the issue of the regulation and prosecution of blasphemy, religious insult and incitement to religious hatred, while in 2010 it adopted a Report on the counter-terrorism measures and human rights.

 

In addition, the Commission issued, in June 2014, the Guidelines on the legal personality of Religious or Belief Communities, prepared jointly in with the OSCE/ODIHR and intended to supplement and update the more general 2004 Guidelines.
 

See also: Compilation of Venice Commission documents on freedom of religion

 

Freedom of peaceful assembly

Opinions

The Venice Commission has been providing legal assistance to numerous states in order to help them ensure that their legislation on freedom of peaceful assembly is in compliance with the applicable European and International standards. In recent years, such opinions have been adopted in respect of Belarus (2012), Bulgaria (2009), the Russian Federation (2012 and 2013), Serbia (2010), Ukraine (2009, 2010, 2011). In 2016 the Venice Commission adopted a generally positive opinion (prepared jointly with OSCE/ODIHR and the DGI) on two draft laws on guarantees for freedom of peaceful assembly of Ukraine. In its 2016 opinion on the referendum on constitutional amendments in Azerbaijan the Commission commented on the proposed changes to the constitutional provisions regarding possible limitations to the freedom of assembly.

 

Studies and guidelines

Joint Guidelines on Freedom of Peaceful Assembly, prepared in cooperation with the OSCE/ ODIHR, were first published in 2007 and revised in 2010.  These Guidelines are currently being revised in the light of the most recent developments in the field. The Commission also endorsed, in 2014, a “Comparative Study on National Legislation on Freedom of Peaceful Assembly, which was prepared at its request by the Max Plank Institute (Germany).

 

Compilation of Venice Commission documents on freedom of assembly

 

Freedom of expression and freedom to receive and impart information

Opinions

The 2017 opinion on the media freedom in Turkey concerned emergency measures taken in the aftermath of the 2016 failed coup. These measures consisted of mass liquidations of media outlets by decree laws, ordered without individualised examination of each case and on the basis of very vague criteria of “connections” to “terrorist organisations”. Criminal prosecution of journalists during the emergency period had intensified and their pre-trial detention had been ordered without sufficient reasons, and that was a source of grave concern.


In 2016 the Commission also adopted opinion on the laws on the protection of whistleblowers and on the protection of privacy of the Former Yugoslav Republic of Macedonia; those opinions included, inter alia, analysis of the repercussions of this legislation on investigative journalism. The Venice Commission also examined Articles 216, 299, 301 and 314 of the Penal Code of Turkey, which defined “verbal acts offences” and limited freedom of speech in the country. In 2016 the Commission commented on the proposed changes to the constitution of Azerbaijan, which concerned inter alia freedom of expression and hate speech.


The Commission adopted opinions concerning legislation on freedom of expression in Belarus (2010), Montenegro (2015), Hungary (2015, 2012) as well as on the issue of defamation in Azerbaijan (2013) and Italy (2013), and an amicus curiae brief (at the request of the Constitutional Court of Georgia in 2014), on the question of the defamation of the deceased. In 2013, it examined amendments to the law on freedom of expression of the Republic of Moldova on the prohibition of the use of communist symbols.


See also:

 

Freedom of association

Opinions

The Commission examines legal texts regulating the operation of non-governmental organisations. In this context, it addresses issues of key importance for the effective exercise of the right to freedom of association, including the NGOs’ registration and related requirements, the internal autonomy of non-governmental organisations or the question of foreign funding of such organisations, as well as cumbersome reporting obligations, imposed on such NGOs.


In 2017 the Commission adopted an opinion on the Hungarian draft law aimed at increasing transparency of foreign funding of NGOs. The Commission agreed that the aims of the draft law were legitimate, but the effect of the measures went beyond what were necessary. Thus, reporting obligations on such NGOs were too burdensome, and the measure of dissolution  for their breach was excessive.

 

In 2016 the Commission adopted an opinion on the federal law of the Russian Federation on undesirable activities of foreign and international NGOs, in which it essentially criticized the vagueness of criteria according to which NGOs are declared as “undesirable”. The opinion on the “Internet Law” of Turkey adopted in 2016 examined, in particular, the power of Turkish authorities to block access to internet resources, and recommended introduction in the legislation of less intrusive measures.


Further opinions on freedom of expression were adopted on Azerbaijan in 2011 and 2014, on Belarus in 2011, on the Kyrgyz Republic in 2013 and on the Russian Federation in 2014.

 

Guidelines

In December 2014, the Venice Commission adopted the Joint Guidelines on Freedom of Association, prepared jointly with the OSCE/ODIHR and in consultations with representatives of the civil society. The Guidelines are proposed as a reference text not only for the Commission itself in its work on the right to freedom of association, but also for other international organisations, governments and NGOs.


See also: Compilation of Venice Commission documents on freedom of association

 

 

Minority rights

Opinions

In 2017 the law on education of Ukraine was examined by the Commission. The language question remains highly sensitive in Ukraine. The Commission acknowledged that it is a legitimate aim for states to promote the strengthening of the state language and its command by all citizens; however, Article 7 of the new Education Law contained significant ambiguities and could lead to a substantial reduction of existing opportunities for teaching in minority languages. Moreover, the less favorable treatment of non EU-languages, in particular Russian, raised issues of discrimination.  

 

Studies

In the sphere of minority protection, the Commission examined inter alia,  the participation of national minorities in decision making, including the question of the dual voting for persons belonging to national minorities ( see 2008 report,  the issue of non-citizens and minority rights (Report on Non-citizens and Minority Rights, 2007), as well as, already in 2001, the question of the preferential treatment of national minorities by their kin-state  (Report on the Preferential Treatment of National Minorities by their Kin-State) . 


See also: Compilation of Venice Commission documents on protection of national minorities

 

Education rights

In 2017 the Commission examined the amendments to the 2011 Law on National Higher Education of Hungary. The amendments introduced more restrictive requirements for the licensing and operation of foreign universities which inter alia would put into question the very existence of the Central European University (CEU), established and lawfully operating in Hungary for many years.  According to the opinion, the introduction without very strong reasons of such restrictive rules in respect of already active foreign universities, with severe legal consequences, was problematic. The Opinion recommended exempting already operating universities from most of the new requirements, as well as the non-discriminatory and flexible application of the new work permit requirements.

 

Other topics (privacy and secret surveillance, state of emergency, local authorities, restitution of property)

Opinions

In 2017 the Commission examined amendments to certain legislative acts of the Republic of Moldova concerning the use of special investigation measures outside criminal proceedings, under the authority of a “security mandate” granted by a judge. These included the time-limits for special measures, and the access of the concerned prosecutor and judge to secret information, instrumental for a meaningful control over coercive measures. However, the issue of the accountability of the Service remained, so the opinion recommended more detailed and clear rules governing the « mandate », and more specific definitions for extremism offences and other relevant legal concepts.


In 2016 the Commission adopted an opinion whereby it analysed amendments to the Police Act of Poland, which regulated the powers of the law-enforcement bodies to intercept and analyse private communications, and, in particular, to get access to the “metadata” of telephone and Internet users.

An opinion on two laws of ‘the Former Yugoslav Republic of Macedonia’ – on the protection of whistleblowers and on the protection of privacy – sought to analyse a difficult balance between privacy and commercial secrecy, on the one hand, and the right of the population to know important facts pertinent to the public life in the country.


At the request of the Constitutional Court of Albania, in 2016 the Venice Commission adopted an amicus curiae brief which analysed legal aspects related to the restitution of property confiscated by the previous (communist) regime.

 

State of emergency

The 2017 opinion on Turkey concerned the replacement of mayors during the state of emergency. Through an emergency decree law, the Law on Municipalities had been amended to enable the central authorities to appoint unelected mayors and exercise, without judicial control, discretionary control over the functioning of the concerned municipalities. This was criticised by the Commission since it altered the very nature of the system of local government. The Commission recommended to return to ordinary legislation and procedures to regulate such measures.


In 2016 the Venice Commission also adopted an opinion on the curfew regime imposed in certain regions of Turkey, in particular concentrating on the human rights implications of such measures.


The 2016 preliminary opinion on the amendments to the Constitution of the Kyrgyz Republic expressed concern about the vaguely defined “highest values” in the Constitution, which could be used to restrict human rights and fundamental freedoms.


The 2016 Joint Opinion on draft law amending and completing existing legislation in the field of combating cybercrime in the Republic of Moldova examines powers of the law enforcement agencies in this field and recommends to clarify regulations governing searches, data seizures, screening and retention of data, Internet blocking etc.


The opinion on the emergency regime in France (Opinion on the Draft Constitutional Law on the Protection of the Nation) touched upon, inter alia, the deprivation of French nationality or of the rights attached to it as an ancillary measure of criminal punishment related to certain categories of offences. In the Commission’s view, while such a measure is not per se against international standards, it must respect the principles of fair trial and proportionality.

 

Restitution of property

At the request of the Constitutional Court of Albania, in 2016 the Venice Commission adopted an amicus curiae brief which analysed legal aspects related to the restitution of property confiscated by the previous (communist) regime.

 

Amicus curiae briefs


In the area of fundamental rights, the Commission also provided amicus curiae briefs for the Constitutional Court of the Republic of Moldova (on prohibition of communist symbols and on judges immunity, 2013) and for the Constitutional Court of Bosnia and Herzegovina (on possible discrimination in the selection of the Republic Day of the Republika Srpska, 2013). In 2015, the Commission examined, jointly with the OSCE/ODIHR, the Law of Ukraine on the condemnation of the communist and Nazi totalitarian regimes.

 

Studies

At the request of the Inter-American Court of Human Rights, in 2015 the Venice Commission adopted a comparative report on restrictions on freedom of expression, freedom of association, right to peaceful assembly and political rights of judges.

 

As a contribution to the Council of Europe Strategy for the rights of the children, in 2014 the Venice Commission adopted a Report on the children’s rights in constitutions. The report contained an overview of international standards and identified domestic good practices in the constitutional protection of children’s rights and of their enforcement. 


Also in 2014 the Commission adopted a report on the implementation of human rights treaties in domestic law and the role of courts. 


In 2013, the Commission studied the compatibility with universal human rights standards of statutory provisions containing prohibitions of “propaganda of homosexuality” adopted or proposed to be adopted in some European countries.

 

Also see:

 

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