iii.        Opinion on locus standi of the Ombudsmen of the Federation of Bosnia and Herzegovina before the Constitutional Court of the Federation of Bosnia and Herzegovina, based on the comments by Mr Franz Matscher, (CDL-INF (2000) 9), adopted by the Commission at its 43rd Plenary Meeting (Venice, 16 June 2000)

By letter dated 29 March 2000, the Ombudsman Institution of the Federation of Bosnia and Herzegovina requested the Venice Commission to draw up a report on the possibility for the Ombudsmen of the Federation of Bosnia and Herzegovina to introduce a claim before the Constitutional Court of the Federation of Bosnia and Herzegovina for abstract constitutional review of laws or legal provisions. The Commission designated Prof. Matscher as its Rapporteur on the question.

At its 43rd Plenary Meeting (Venice, 16-17 June 2000) the Commission, on the basis of the Rapporteur's report, adopted the present opinion.

I           Introduction

In their work the Ombudsmen of the Federation of Bosnia and Herzegovina are sometimes confronted with the possibility that certain provisions of laws or whole laws, the consequence of which is violations of human rights and fundamental freedoms guaranteed by the Constitution and the various human rights instruments listed in the Annex to the Constitution, may be unconstitutional. The question put to the Commission is whether the Ombudsmen can in such cases introduce a claim before the Constitutional Court of the Federation of Bosnia and Herzegovina for abstract constitutional review of the law or provisions at issue.

II         Applicable legal provisions

The Ombudsman institution and the Constitutional Court now functioning in the Federation of Bosnia and Herzegovina were established by the Washington Peace Agreements of March 1994. The Constitutional Court is also subject to the provisions of the Law on the Procedure before the Constitutional Court of the Federation of Bosnia and Herzegovina and has adopted its own Rules of Procedure (published in the Official Gazette of the Federation of Bosnia and Herzegovina No. 2/1996) as well as a Decision on the Organisation and Functioning of the Constitutional Court of the Federation of Bosnia and Herzegovina passed at its session on 10 January 1996. A draft law on the Federation Ombudsman, prepared by the working group of the Venice Commission and the Directorate of Human Rights on Ombudsman institutions in Bosnia and Herzegovina, is currently before the legislative bodies of the Federation of Bosnia and Herzegovina. As yet no law has been adopted, however, and the institution remains subject only to the provisions of the Constitution and to its own internal rules.

The constitutional provisions governing the Ombudsman institution state, in relevant part:

Article II.B.5

The Ombudsman may examine the activities of any institution of the Federation, Canton or Municipality, as well as any instruction or persons by whom human dignity, rights or liberties may be negated, including by accomplishing ethnic cleansing or preserving its effects.

Article II.B.6

An Ombudsman is entitled to initiate proceedings in competent courts and to intervene in pending proceedings, including any in the Human Rights Court.

The competence of the Constitutional Court is governed principally by Articles IV.C.10 and 11 of the Federation Constitution.[2] Abstract review of the constitutionality of legal provisions is possible in accordance with the constitutional provisions reproduced below:

Article IV.C.10

The Constitutional Court shall:

(a) At the request of the President, of the Vice-President, of the Prime Minister, of the Deputy Prime Minister, or of one-third of the members of either House of the Legislature, determine whether any proposed law that has been adopted by either House of the Legislature, or any law or proposed law that has been adopted by each House of the Legislature, is in accord with this Constitution;

(b) At the request of the Prime Minister, of the Deputy Prime Minister, of the Cantonal President concerned, or of one-third of the members of the Legislature of a Canton, determine whether any law or proposed law that has been adopted by that Legislature (including the Cantonal Constitution and any amendments thereto), is in accord with this Constitution.

(c) At the request of the President, of the Vice-President, of the Prime Minister, of the Deputy Prime Minister, determine whether any regulation enacted or proposed regulation to be enacted by any organ of the Federation Government is in accord with this Constitution.

(d) At the request of the Prime Minister, the Deputy Prime Minister, or of the Cantonal President concerned, determine whether any regulation enacted or proposed regulation to be enacted by any organ of the Cantonal or Municipal government is in accord with this Constitution.

(3) The Constitutional Court shall also decide constitutional questions presented by the Supreme Court or the Human Rights Court or a Cantonal court that arise in the course of a proceeding currently pending before that Court. 

Article 9 of the Law on the Procedure before the Constitutional Court of the Federation of Bosnia and Herzegovina provides further that :

The party to the procedure, in the sense of this Law, shall be considered the authorised applicant of a request for dispute resolution, constitutionality evaluation, establishment of the existence of the vital interest of a constitutional nation, replacement of the President of the Federation and Vice-President of the Federation, and the authorised complainant against the decision of the highest Cantonal Court on the existence of the vital interest of a constitutional nation in a Canton with a special regime, on one hand and the body, or the person in respect to which the request has been submitted, on the other hand.

The term "authorised applicant" is never explicitly defined in the Law. However, the various chapters of the Law dealing with the different types of applications that may be lodged with the Constitutional Court in accordance with Article IV.C.10 of the Constitution refer to specific persons or institutions by whom the type of application in question is to be introduced (Articles 31, 35 and 42). In particular, Article 35 of the Law, in the part of the Law dealing with the evaluation of constitutionality, states that :

The procedure for [e]valuation of constitutionality referred to in Article IV.C.10(2) and decision-making on constitutional issues referred to in Article IV.C.10(3) of the Constitution shall be initiated on the basis of a request submitted by the authorised applicant.

Article 39, paragraph 1 of the Law goes on to provide that :

Parties to the procedure of assessment of the constitutionality shall be the authorised applicants as per Article IV.C.10(2) and (3) of the Constitution and the Federal, Cantonal and Municipal body which proposed or passed the Cantonal Constitution, law or other regulation.

Article IV.C.10(2) of the Constitution refers, according to the provision of which the constitutionality is at issue, to requests made by the President, the Vice-President, the Prime Minister, the Deputy Prime Minister, one third of the members of either House of the Legislature, a Cantonal President or one third of the members of the Legislature of a Canton. Article IV.C.10(3) refers to requests made by the Supreme Court or the Human Rights Court or a Cantonal court that arise in the course of proceedings pending before that Court. No reference, however, is made to the possibility for the Ombudsmen to request that the Constitutional Court undertake the abstract review of the constitutionality of a provision.

Under Article 26 of the Law on the Procedure before the Constitutional Court of the Federation of Bosnia and Herzegovina, "The Constitutional Court…shall decide on the rejection of the request when…the applicant is not authorised to initiate the procedure…". Should there be any doubt as to the precise meaning of the expression "decide on the rejection of the request", the other cases listed in this provision - for example, when the Court is not competent to decide on the request and when the request is submitted out of time - make it apparent that the intention is not that the Court may decide whether or not to reject the request but rather that it must decide to reject a request when the request is not submitted by an authorised applicant.

It appears from the above that, should the Ombudsmen of the Federation of Bosnia and Herzegovina introduce a request before the Constitutional Court of the Federation of Bosnia and Herzegovina for abstract constitutional review of a law or legal provisions, the Court would be obliged to reject it, even when the consequence of such provisions is the violation of human rights and fundamental freedoms guaranteed by the Constitution and the international instruments listed in the Annex to the Constitution.

Given the above considerations, it is clear that the Constitutional Court cannot be considered to be a "competent court" before which the Ombudsmen can initiate proceedings under the terms of Article II.B.6(1) of the Constitution. As the Commission has previously indicated in its Opinion on the Reform of Judicial Protection of Human Rights in the Federation of Bosnia and Herzegovina (documentCDL(99)78), the Constitutional Court unquestionably has jurisdiction over questions of abstract constitutional review involving human rights issues, but its competence to undertake such review is limited to situations where such requests are initiated by the persons or institutions provided for in Articles IV.C.10(2) and (3) of the Constitution of the Federation of Bosnia and Herzegovina.

The Commission recalls, however, that the Ombudsmen may participate in proceedings before the Constitutional Court on the basis of their competence to intervene in pending proceedings under Article II.B.6(1) of the Constitution as well as on the basis of Article 12, para. 3 of the Law on the Procedure before the Constitutional Court of the Federation of Bosnia and Herzegovina, which allows the Court to call other persons to participate in proceedings in order to contribute their expertise. Likewise, the Ombudsmen may continue their current practice of recommending to authorised applicants that they apply to the Constitutional Court for abstract review of the constitutionality of relevant provisions, although the effectiveness of this practice depends on the willingness of the party concerned to lodge such an application. Finally, where matters of concrete review of human rights arise and even in the absence of the creation of the Human Rights Court, the Ombudsmen may intervene in or initiate proceedings before other competent courts including the Supreme Court, in accordance with the Constitution.

Provision for the possibility for the Ombudsmen to initiate abstract constitutional review proceedings may nonetheless be envisaged in the future. As discussed below, this possibility does exist in the Greater European context. However, as the above examination reveals, the introduction of such a possibility would require constitutional amendments in the context of the Federation of Bosnia and Herzegovina.

III        Greater European context

The question as to whether it is advisable for Ombudsmen to have standing to bring cases for abstract review of constitutionality where they are confronted with the problem of the possible unconstitutionality of laws or provisions thereof has already been dealt with in the legal systems of a number of other European countries. One significant element of consideration may be the fact that Ombudsmen whose competence includes a marked emphasis on human rights are particularly well placed to become aware of legal provisions that are at the root of frequent or systematic violations of human rights.

A number of countries in the Greater Europe grant their Ombudsmen or equivalent institutions locus standi before the Constitutional Court to initiate cases for abstract review of the constitutionality of legal provisions. This is the case, for example, in Slovenia, where the Human Rights Ombudsman is entitled to bring such an action only in association with individual cases he or she is dealing with, but the effect of the judgment is generally binding and the Constitutional Court may completely or partially abrogate a statute which does not conform with the Constitution (see in particular Articles 22, 23 and 43 of the Law on the Constitutional Court of Slovenia). By contrast, in Spain, the capacity of the Defensor del Pueblo to initiate proceedings for abstract constitutional review is not limited to bringing actions in association with individual cases; there is, indeed, a time-limit of three months after the publication of the challenged provisions within which such proceedings must be initiated, which would seem to preclude the possibility of basing such a case on an individual complaint (Articles 32 and 33 of Organic Law No. 2/1979 on the Constitutional Court).

Other countries in which Ombudsmen have standing to apply for abstract constitutional review of legal provisions, such as Croatia, Georgia and Portugal, may be cited. Furthermore, in Austria the Ombudsman may currently request the Constitutional Court to review the legality of regulations and a constitutional amendment that would enable the Ombudsman to apply for abstract constitutional review is being examined. However, it is not the Commission's intention to conduct a comprehensive survey in the present context. It is sufficient to note that there is no reason in principle why such a competence should not be attributed to an Ombudsman institution, should the relevant authorities so wish. In the present context an amendment to the Constitution of the Federation of Bosnia and Herzegovina would be required in order to attribute such a competence to the Ombudsmen.

IV        Conclusions

The Commission finds that:

only the persons and institutions listed in Article IV.C.10(2) and (3) of the Constitution of the Federation of Bosnia and Herzegovina have standing to lodge applications with the Constitutional Court of the Federation of Bosnia and Herzegovina for abstract review of constitutionality;

Article II.B.6(1) of the Constitution is not sufficient to extend the competence of the Constitutional Court to the examination of applications for abstract constitutional review of legal provisions lodged by the Ombudsmen of the Federation of Bosnia and Herzegovina;

the Ombudsmen of the Federation of Bosnia and Herzegovina therefore do not have standing to request the Constitutional Court to undertake the abstract review of the constitutionality of legal provisions identified by the Ombudsmen as being likely to be unconstitutional;

there is, however, no reason in principle why the Ombudsmen should not be granted such standing, should the relevant authorities choose to make the necessary constitutional and legal amendments.

The Commission remains at the disposal of all parties to collaborate in the drafting and implementation of such amendments, should the parties so request.

iv.        Consolidated opinion on freedom of expression and freedom of access to information as guaranteed by the Constitution of Bosnia and Herzegovina (CDL-INF (2000) 15), adopted by the Commission at its 44^th Plenary Meeting (Venice, 13-14 October 2000)

I.          Introduction

1.         On 30 July 1999 the High Representative invited the State of Bosnia and Herzegovina and Entity governments and parliaments to start the preparation of the legislation on freedom of information[3]. This law would purport to guarantee and enforce human rights, and therefore falls under the competence of both the State of Bosnia and Herzegovina and its Entities. In April 2000, the OSCE mission to Bosnia and Herzegovina suggested that the Venice Commission consider the relation between the freedom of expression and the freedom of access to information in the context of the constitutional regime of Bosnia and Herzegovina.

2.         The first question put to the Commission in this respect is whether the freedom of expression as mentioned in the enumeration of rights in Article II.3.h of Annex 4 of the General Framework Agreement for Peace (hereafter, GFAP) includes freedom of access to information.

3.         The second issue raised is whether a national law establishing a right of any natural or legal person to access to information in the control of a public authority and a corresponding obligation to disclose such information is an element of the obligation to "ensure the highest level of internationally recognized human rights and fundamental freedoms" as established in Article II. 1 of Annex 4 GFAP.

4.         At its 42^nd plenary meeting (Venice, 9 June 2000), the Commission designated Messrs Helgesen, Lavin and Van Dijk as rapporteurs on this issue.

II.        Relevant provisions in the Dayton Agreement.

Article II “Human Rights and Fundamental Freedoms” of the Constitution of Bosnia and Herzegovina provides in paragraphs 1 and 2 that:

“1.       Human Rights. Bosnia and Herzegovina and both Entities shall ensure the highest level of internationally recognized human rights and fundamental freedoms […].

International Standards. The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law[…].”

Article II, para. 3 provides that “All persons within the territory of Bosnia and Herzegovina shall enjoy the human rights and freedoms referred to in paragraph 2; these include:… h) freedom of expression”.

6.         Furthermore, the Annex to the Constitution of Bosnia and Herzegovina sets out a list of “Additional Human Rights Agreements To Be Applied In Bosnia And Herzegovina” which includes inter alia the International Covenant on Civil and Political Rights and the 1966 and 1989 Optional Protocols thereto.

7.         It follows from the above that the basic rights and freedoms as enshrined in international human rights instruments are directly applicable in the legal order of Bosnia and Herzegovina and both Entities with priority over domestic law and that their scope must correspond to that given by international bodies entrusted with their authoritative interpretation. As regards freedom of expression, the instruments directly applicable in the legal order of Bosnia and Herzegovina are the European Convention on Human Rights (Article II para. 2 of the Constitution of Bosnia and Herzegovina) and the 1966 International Covenant on Civil and Political Rights.

8.         Considering the above-mentioned provisions of the Constitution of Bosnia and Herzegovina, this report will examine the interpretation given to freedom of expression by the European Court of Human Rights and by competent bodies of the United Nations concentrating on:

whether the freedom of expression as a basic human right recognised by international law includes the right of access to information;

whether there are direct obligations of public authorities in the scope of freedom of access to information.

9.         The first issue concerns the right to have access to information without any interference by the authorities other than under those restrictions are provided by law and necessary in a democratic society for the protection of certain public interests and the reputation and interests of orders. This right serves to promote free flow of information and to prevent monopolies of certain information streams.

10.       As far as access to information held by the authorities is concerned, this report will deal with public access, i.e. the entitlement of all members of the public at large to government information in order to promote transparent administration and citizen participation within the democratic process. This is to be distinguished from both private access, in other words, the entitlement of a person to access to his or her personal information and that of official access meaning the entitlement of public authorities, including Parliament and courts, to government information.

III.       The interpretation of freedom of expression in international law

A.        The European Convention on Human Rights. The European Court on Human Rights

-           Freedom of expression and freedom of access to information

11.       As already mentioned in paragraph 5 of this report, the rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols are directly applicable in Bosnia and Herzegovina according to its Constitution with priority over domestic law. Freedom of expression is protected under Article 10 of the European Convention for the Protection of Human Rights, which reads:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.

12.       From the second sentence of para. 1 of the Article 10 it is evident that the right to receive and impart information is considered as an integral part of freedom of expression.

-           Obligation of a public body to disclose information

13.       The European Commission of Human Rights has held that the right of freedom of public access to government information was connected with the right of freedom of expression under Article 10 of the Convention in so far as the information concerned was generally accessible under domestic law. At the same time the Commission took the stand that the right to access information concerns mainly the access to general sources of information and aims at prohibiting a Government to prevent anyone from receiving information that others wished or might have been willing to impart to him[4].

14.       The European Court of Human Rights has considered the question of interpretation of Article 10 in the context of protecting access to information in several occasions.

15.       In the cases of Observer and Guardian v. United Kingdom and Autronic v. Switzerland[5] the Court clearly held that under Article 10 of the European Convention on Human Rights, freedom of expression indeed includes a right to impart and receive information.

16.       The judgement of the European Court of Human Rights in the case of Guerra and others v. Italy reveals the Court’s current position in relation to the right to seek information. In this case the Court reiterated “that the freedom to receive information, referred to in Article 10.2 of the European Convention, basically prohibited a Government from preventing a person from receiving information that others wished or might have been willing to impart to him”. In making specific reference to Guerra and others v. Italy case[6], it was held that freedom to receive information could not, however, be construed as imposing on a State positive obligations to collect and disseminate information of its own motion. Thus, as indicated in this judgement, the Court:

considered that Article 10 primarily contains for the authorities the obligation to refrain from restricting access to information, which others wish to impart.

recognised that Article 10 may also imply certain positive obligations to make effective the right to receive information.

did not accept as a general rule that there is a positive obligation for the State to collect and disseminate information of its own motion (although Judge Palm and six other judges delivered a concurring judgement[7] in which they held that a State might have such an obligation under certain circumstances).

17.       It follows from the above that the case-law of the European Court of Human Rights has not yet given a clear answer as to whether Article 10 entails a general obligation for the authorities to disseminate information of their own motion. It would seem to imply, however, an obligation to provide information on request, subject, of course, to the limitations set forth in Article 10 para. 2 of the Convention.

18.       The Parliamentary Assembly of the Council of Europe in its Recommendation of 23 January 1973 on Mass Communication Media and Human Rights[8] proposed to extend Article 10 of the European Convention by expressly securing freedom to seek information with a corresponding duty of the authorities to make information available on matters of public interest subject to appropriate limitations. The recommendation did not however, result in an amendment to Article 10.

19.       The Committee of Ministers of the Council of Europe in a Declaration of 29 April 1982 on the Freedom of Expression and Information expressed the intention of member States to pursue an open information policy in the public sector, including the access to information, in order to enhance the individual’s understanding of, and his ability to discuss freely political, social, economic and cultural matters. Access to information is not however referred to as a right included in Article 10 of the European Convention on Human Rights.

20.       It can be concluded from the above that although no binding rules on this matter may be drawn from the Convention or the case law of the European Court of Human Rights, there is a certain tendency to accept that the right to receive information as element of the right of freedom of expression implies in principle the right of access to information of the administration - information which must be made public at a specific request and subject to the usual grounds of limitation.

*   *   *

21.       It should be noted that a number of democratic States have in the recent past moved from the traditional system of official secrecy to a regime of freedom of official information. Certain countries such as Sweden or Belgium adopted a number of legal instruments[9] granting the right to freedom of information that go far beyond the requirements of the European Convention on Human Rights (a regime of “open government” provides that a document is “public” if it is kept by a public authority and if it has been received, prepared or drawn up by an authority)[10].

22.       The European Convention on Human Rights encourages its signatories to further promote human rights through the adoption of specific national legislation that gives additional protection to certain rights or by signing other international agreements. Article 53 provides that “Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under in laws of any High Contracting Party or under any agreements to which it is a Party”. By the virtue of this provision the Convention can by no means be interpreted as restricting the adoption of national legislation, granting additional protection to the right of access to information or implementation of any other international treaties where they apply.

B.        United Nations. Committee on Human Rights. Economic and Social Council. The Commission on Human Rights

Freedom of expression and freedom of access to information

23.       The Human Rights Committee of the United Nations adopted at its nineteenth session in 1983 a General Comment on freedom of expression (Article 19 of the International Covenant on Civil and Political Rights). As for the protection of the right to freedom of expression, it pointed out in para. 2 that this concept included “not only freedom to “impart information and ideas of all kinds”, but also freedom to “seek” and “receive” them “regardless of frontiers” and in whatever medium, “either orally, in writing or in print, in the form of art, or through any other media of his choice”.

24.       More recently the United Nations Commission on Human Rights treated the issue of the right to freedom of opinion and expression and its connection to freedom of information in its Resolutions 1996/39, 1998/42 and 2000/38. The report of the Special Rapporteur on the protection and promotion of the right to freedom of opinion and expression, Mr. Abid Hussain (E/CN.4/2000/63) also dealt with the same issue. Resolutions of the Commission on Human Rights do not refer to the “freedom of access to information” but use a more narrow approach promoting the right “to seek, receive and impart information”. The notion of “access to information” appears in recommendations contained in the report of the Special Rapporteur. These sources, although, cannot be considered as binding norms, they do have a value of interpretation of international instruments for the protection of the right to freedom of expression and freedom to seek, receive and impart information.

25.       Resolutions 1996/39 and 1998/42 both take note of the Johannesburg Principles on National Security, Freedom of Expression and Access to Information adopted by a group of experts after convening in South Africa on 1 October 1995[11][12]. The ‘Johannesburg principles’ make a clear link between the freedom of expression and the freedom of access to information in Principle 1 (b):

“(b)     Everyone has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his or her choice”.

26.       Resolution 1998/42 also establishes a clear link between the freedom of expression and the freedom of information also in the field of modern technologies as it emphasises the need to “raise awareness about all aspects of the interrelationship between the use and the availability of new media of communication, including modern telecommunications technology, and the right of freedom of expression and information […]”,

27.       In Resolution 2000/38 the right to freedom of expression appears in connection with the “freedom to seek, receive and impart information”. States are urged not to impose restrictions on this right although they have a margin of appreciation under certain circumstances as defined by law.

28.       From the above it can be concluded that the freedom to seek, receive and impart information is an integral part of the freedom of expression. Considering the content of Article II.1 of the GFAP, which refers to the “highest level of internationally recognised standards”, the freedom of expression mentioned in Article II.3.h must include the freedom to seek, receive and impart information as it directly refers to Article 19 of the International Covenant on civil and political rights and to its scope as defined in Resolutions of the Human Rights Commission.

Obligation of a public body to disclose information

29.       As it appears from the Covenant and the General comment to Article 19, under that provision States do not have an obligation to disclose information to natural or legal persons. Nevertheless, the jurisprudence of the Human Rights Committee shows that a limitation of access to information may amount under certain circumstances to an infringement of Article 19 of the Covenant.

30.       In Communication N° 633/ 1995[13] the Committee considered the issue whether the restriction of access to press facilities in Parliament amounts to a violation of the right protected under Article 19 of the Covenant, to seek, receive and impart information. The Committee referred to the right to take part in the conduct of public affairs, as laid in Article 25 of the Covenant and in particular to General Comment N°25 (57)[14]. According to the Committee Article 25 “read together with Article 19, implies that citizens, in particular through the media, should have wide access to information and the opportunity to disseminate information and opinions about the activities of elected bodies and their members”[15]. However, neither the above mentioned case nor any other case-law of the Committee allow to draw the conclusion that Article 19 enshrines an obligation for States to disclose information to natural and legal persons.

31.       In his report, Mr. Abid Hussain, Special Rapporteur on the protection and promotion of the right to freedom of opinion and expression (E/CN.4/2000/63), finds the following :  « The right to seek, receive and impart information is not merely a corollary of freedom of opinion and expression; it is a right in and of itself.  As such, it is one of the rights upon which free and democratic societies depend. It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to, for example, the realization of the right to development[16]”. The Special Rapporteur expressed concern: “about the tendency of Governments, and the institutions of Government, to withhold from the people information that is rightly theirs in that the decisions of Governments, and the implementation of policies by public institutions, have a direct and often immediate impact on their lives and may not be undertaken without their informed consent[17] ”. Finally, he “directed the attention of Governments to a number of areas and urged them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles[18]”. 

32.       It follows from the above that although United Nations treaties do not contain any provision expressly guaranteeing freedom of access to information in the control of a public authority, there is a clear tendency in the practice of UN and its specialised bodies to encourage national authorities to grant their citizens the right of free access to public information through national legislation.

IV.       Conclusion.

The Venice Commission is of the opinion that:

a.         Freedom of expression as mentioned in the enumeration of rights in Article II.3.h of Annex 4 of the General Framework Agreement for Peace includes freedom of access to information.

b.         The United Nations Human Rights instruments as well as the European Convention on Human Rights do not impose on Member States an obligation to grant any natural or legal person a right of access to information in the control of a public authority, nor do they impose on public authorities a corresponding obligation to disclose information, at least not on their own motion. Therefore it cannot be concluded that the freedom of expression as mentioned in Article II.3.h of the annex 4 GFAP gives automaticaly such protection. Nevertheless, national legislators increasingly do grant and regulate a right to access to information in the control of public administration and impose on public authorities a corresponding obligation to disclose information under certain conditions and with certain exceptions. This evolution is to a certain extent reflected in international and European law as both United Nations and Council of Europe bodies’ recommendations promote and encourage such legislative measures.

v.         Opinion on constitutional aspects of certain amendments to the code of penal procedure of Bulgaria, based on comments by Messrs James Hamilton and Franz Matscher, (CDL-INF (2000) 6), adopted by the Commission at its 42^nd Plenary Meeting (Venice, 31 March-1 April 2000)

A.        INTRODUCTION

1.         The Bulgarian delegation to the Parliamentary Assembly of the Council of Europe requested the Venice Commission to give an opinion on constitutional aspects concerning certain amendments to the Code of Penal Procedure of Bulgaria, which were subject of disagreement between the members of the delegation. The Commission appointed Messrs. Hamilton and Matscher as rapporteurs who prepared written comments (CDL (2000) 13 and 18).

2.         The Code of Penal Procedure was promulgated in the State Gazette, No. 89 of 1974, and the amendments in question are contained in the Law amending the Code of Penal Procedure promulgated in the State Gazette No. 70 of 6 August 1999. The amending Law is a substantial document containing 255 sections. The Code of Penal Procedure itself runs to some 466 articles many of which have been amended by the 1999 amending law (copies can be obtained from the Secretariat upon request). The Venice Commission therefore sought clarification from the Bulgarian delegation as to the precise constitutional issue which arises and which is in dispute. It was made clear that the Commission could not examine the Code as a whole.

The Delegation informed the Commission that the issue, which was in dispute, was whether the amending law infringed upon the independence of the judiciary by giving to the police powers to investigate a large part of criminal cases. Subsequently, Ms. Milenkova clarified that there were three objections to the amendments (CDL (2000) 12):

that an inequality was created between citizens in the stage before the intervention of the Court in various penal cases

that investigation during the period of police instruction is carried out by the executive who has an interest in the result

(3)        that the rights of the suspect are limited in comparison to those of the accused

B.        THE AMENDMENTS TO THE LAW

3.         Under the Code of Penal Procedure in operation prior to the amendments the procedure regarding investigations was as follows:

Preliminary investigation was to be carried out by examining magistrates and assistant examining magistrates, in co-operation with the respective bodies of the Ministry of Interior (Article 48 (1)).

These enquiries were “under the guidance and supervision of the prosecutor” (Article 48 (3)).

In exercising guidance and supervision the prosecutor had extensive powers, including power to give instructions, to request, study and verify all materials collected, to demand the case file, to take part in the preliminary inquiry, to remove the persons conducting the inquiry, to transfer the case file to another body of inquiry, and to revoke unlawful and unjustified decisions (Article 176). His instructions to the magistrate were mandatory (Article 178), subject to an appeal to the superior prosecutor.

Separate investigations could also be carried out by the prosecutor after completion of proceedings by the examining magistrate (Articles 48 (2) and 177).

In Bulgaria the prosecutors are an integral part of the judicial branch of government (Article 117 of the Constitution of Bulgaria).

4.         The Amendments to the Code of Penal Procedure include the following changes:

In cases where preliminary proceedings are to be carried out, the examining magistrates continue to act as the investigating bodies (Article 48 (1)), and remain under the guidance and supervision of the prosecutor (Article 48 (3)). The prosecutor’s powers over the activities of the examining magistrate are undiminished (Articles 176 and 178).

The prosecutor may now conduct a separate enquiry at the preliminary proceedings, not merely after their completion (Article 177).

The cases in which preliminary proceedings are mandatory are set out in Article 171 of the Code.

In addition, preliminary proceedings shall be instituted where there is a legal occasion and sufficient information about a perpetrated crime. “Legal occasion” include information to the prosecutor or examining magistrate about a crime, press articles, the making a confession or direct discovery of signs. Anonymous complaints are not admissible (Articles 186, 187 and 188).

Preliminary proceedings may also be instituted where it is necessary to carry out urgent investigative actions.  (Article 186(2)).

Under the amended Code, where no preliminary proceedings are carried out, the investigating bodies are to be the inquest officers in the Ministry of Interior (Article 48 (1)). Inquest officers are employees of the Ministry of Interior designated by order of the Minister and, for crimes under Articles 242 and 251 of the Penal Code, may be the customs employees designated by common order of the Minister of the Interior and the Minister of Finance.

Under Article 48 (3), the investigating bodies continue to be under the guidance and supervision of the prosecutor.

Notwithstanding their appointment by the Minister and their status as his employees, Article 9 of the amended Code provides that the investigating bodies “shall be independent in implementing their functions and shall obey only the law”.

Article 191 deals with the situation where there are no sufficient data for institution of preliminary proceedings and no urgent investigative actions are necessary. In such cases

“the examining magistrates, the respective bodies of the Ministry of Interior and other administrative bodies, as provided by law, shall conduct preliminary inspection and shall notify the prosecutor thereof. Preliminary inspection may be carried out as well by order of the prosecutor. In all cases the respective bodies shall perform the inspection under the supervision and guidance of the prosecutor and they shall be obliged to notify him of its results within a time limit set by him.”

            Furthermore:

“In the course of preliminary inspection no investigative actions, provided in the Code, shall be allowed, except inspection on the site of the incident and the relevant search and appropriation and interrogation of eye-witnesses, where the immediate conduct of such actions is the only way to collect and preserve evidence. The examining magistrate shall notify forthwith the prosecutor about any such actions.”

The respective bodies of the Ministry of the Interior are conferred with functions where preliminary proceedings against unknown perpetrators are instituted.  The prosecutor or examining magistrate is to assign to them the search for the perpetrator (Article 192a). They are to deliver the materials collected to the magistrate where they consider they have collected sufficient data incriminating a certain person.

The examining magistrate, under Article 201, independently decides what investigative actions must be carried out. He may require the bodies of the Ministry of Interior to assist him in carrying out separate investigative actions (Article 201a).

C.                    CONCLUSIONS

The following conclusions refer to the issues of the independence of the judiciary, the compatibility with the European Convention of Human Rights and equality but do not provide an opinion on the compatibility of the amendments with the Constitution in general.

1.         The independence of the judiciary

The complaint made by certain members of the Bulgarian Delegation to the Parliamentary Assembly of the Council of Europe is that the amendment to the Code of Penal Procedure infringes upon the independence of the judiciary by giving to the police powers to investigate a large part of criminal cases.

Even if, following the concept of Bulgarian law, both the public prosecutor and the examining magistrate are part of the judiciary, the question raised seems to be misleading. While it is true that the amendments provide that for a considerable number of cases the investigation should be carried out by the police rather than by the judiciary, this may have an impact on the competencies of the judiciary regarding the investigation of crimes but this does not infringe upon the independence of the latter. The question of the independence of a body can be at stake only regarding matters, which, in accordance with the law, are within its competence and further, if there are possibilities of interference by other authorities.

It is, therefore, difficult to conclude that the text of the proposed amendments provides a factual basis for the complaint. In the first instance, as can be seen from the analysis of the new provisions in paragraph 4 above, the transfer of investigative functions relates solely to the cases in which preliminary proceedings are not to be carried out; that is to say, to less serious cases or to cases in which a perpetrator has not yet been identified, as well as to cases in which the examining magistrate requests assistance. Secondly, the powers of the relevant bodies are in all cases to be exercised under the supervision and guidance of the prosecutor who has the status of a judicial officer.

Moreover, it should be noted that there is no legal principle according to which preliminary investigative functions must be carried out by or subject to the control of a prosecutor or judicial officer. Neither the rule of law nor the European Convention of Human Rights provide for a certain distribution of competencies among the different bodies, which are investigating crimes. Hence, this distribution of competencies is a question of legal policy left to the discretion of the states. A comparative review of legislation in this field shows that states indeed follow various approaches. In many countries the function of investigating crime is considered as an executive act.

In the Guidelines on the Role of Prosecutors adopted by the Eighth United Nations congress on the Prevention of Crime and the Treatment of Offenders adopted at Havana, Cuba, in 1990 (“the Havana Guidelines”) it is provided as follows

            “10.      The office of prosecutors shall be strictly separated from judicial functions.

11.       Prosecutors shall perform an active role in criminal proceedings, including institution of prosecution and, where authorised by law or consistent with local practice, in the investigation of crime, supervision over the legality of these investigations, supervision of the execution of court decisions and the exercise of other functions as representatives of the public interest.”

                                    (emphasis added).

The Prosecution Standards of the International Association of Prosecutors adopted on 23 April 1999 also make reference to this variety in practice between jurisdictions. The preamble contains the following recital:

“WHEREAS the degree of involvement, if any, of prosecutors at the investigative stage varies from one jurisdiction to another”

                        In paragraph 4 it is stated as follows:

“prosecutors shall perform an active role in criminal proceedings as follows:

where authorised by law or practice to participate in the investigation of crime, or to exercise authority over the police or other investigators, they will do so objectively, impartially and professionally.”

10.       There are two possible abuses, which should be avoided in relation to investigatory powers. The first is that the powers will be used to prevent the institution of investigations, which ought to be carried out; the second is that the powers will be used to carry out investigations for the purpose of harassment or intimidation where there is no justification for an investigation. Under Article 192 of the revised Bulgarian Code of Penal Procedure the prosecutor and examining magistrate retain the power to institute preliminary proceedings. The bodies of the Ministry of Interior have no power to prevent them doing so. Where those bodies carry out investigation outside the scope of preliminary proceedings they do so under the supervision and guidance of the prosecutor (Articles 48 (3) and 191). The text of the code, therefore, contains guarantees against such abuses, which could not take place solely on the initiative of the investigating bodies designated by the Ministry of Interior.

11.       It can, therefore, be concluded that the amendments to the Code of Penal Procedure of Bulgaria, which give powers to investigate crimes to officers of the Ministry of Interior do not infringe upon the independence of the judiciary.

2.        Compatibility with the European Convention of Human Rights

12.       Whatever investigative system is applied, from the viewpoint if the European Convention of Human Rights, it is important that the rights of the accused person are guaranteed.

13.       According to the case-law of the European Court of Human Rights, a criminal accusation within the meaning of Article 6 of the Convention starts at the very moment when the first investigative steps are undertaken and the investigating authorities for the first time contact the “accused”. This is the moment, which triggers the applicability of the procedural guarantees of Article 6 of the Convention (and of Article 5 for persons, who have been arrested).

14.       When examined in the light of these guarantees, the amendments to the Code of Penal Procedure of Bulgaria do not seem to be incompatible with the Convention.

3.        Equality

15.       Concerning the issue of equality, this principle requires equality between persons, that is, that two persons similarly placed should not be differently treated. It does not, however, prevent different procedures being applied to different types of cases. The adoption of procedures relating to the investigation of certain categories of crime, which differ from those applied in the case of other categories is not an infringement of the principle of equality. Nor is it an infringement of the principle of equality that the options open to an accused person are different at different stages of the penal procedure provided that the rights of the accused person are guaranteed.

vi.        Opinion on the Croatian Constitutional Law amending the Constitutional Law of 1991, on the basis of the report prepared by Messrs Matscher, van Dijk and Ms Suchocka, (CDL-INF (2000) 10), adopted by the Commission at its 43^rd Plenary Meeting (Venice, 16 June 2000)

On 28 April 2000, the Parliament of the Republic of Croatia considered at first reading a “Draft Proposal of the Constitutional Law on Amendments to the Constitutional Law on Human Rights and Rights of Ethnic or National Communities or Minorities”. Having been asked by the Parliamentary Assembly to follow the developments in the revision of the said Constitutional Law of 1991 and its implementation, the Venice Commission considered the same draft in order to submit to the Croatian authorities its comments and observations. On 3 May 2000 the Croatian Government forwarded the draft Constitutional Law (together with two other draft laws on the use of minority languages and on education in minority languages) to the Venice Commission requesting its comments.

It is recalled in this respect that, in the framework of the procedure for the accession of Croatia to the Council of Europe, the Venice Commission recommended that the suspended provisions of the 1991 Constitutional Law on Human Rights and Rights of Minorities be revised as soon as possible in order to ensure that persons belonging to minorities are guaranteed rights in the field of local autonomy in accordance with the European Charter of Local Self-Government and Recommendation 1201 (1993).

On its accession to the Council of Europe, Croatia undertook to carry these recommendations into effect (see Assembly Opinion No. 195 (1996) on Croatia's request for membership of the Council of Europe, para. 9.vii). Furthermore, under Committee of Ministers Resolution (96) 31, such membership is subject to the requirement to co-operate with the Council of Europe, inter alia in applying the Constitutional Law on Human Rights and Freedoms and the Rights of National and Ethnic Communities or Minorities.

The Venice Commission’s Rapporteurs examined the draft constitutional law as a matter of urgency. On 10 May they submitted to the Government of Croatia and to the Parliamentary Assembly of the Council of Europe a preliminary report (CDL (2000) 31). They found that the draft constitutional law, as such, did not seem to offer an adequate response to the political needs of minorities in Croatia. In addition, they regretted that despite the commitment of the Croat authorities and the Commission’s reiterated availability no consultation had taken place at an earlier stage of the Constitutional Law’s drafting.

However, on 11 May 2000, the Parliament of the Republic of Croatia adopted the draft without substantial changes (CDL (2000) 35). It is however to be noted that in a “Conclusion” adopted at the same meeting, the Parliament instructed the Government “to prepare a new draft of the Constitutional Law on the Rights of National Minorities so that it can be introduced before the Parliament in the next six months”.

Finally it should be noted that on 22 May 2000, fourteen representatives of the House of Counties requested the Government to initiate proceedings before the Constitutional Court to challenge the conformity of adoption of the new Constitutional Law with the Constitution of Croatia. They claim that the House of Counties was not consulted prior to the adoption of the new Constitutional Law as it ought to be pursuant to Articles 127 and 137 of the Constitution.

Two other laws (on use of and on education in minority languages,CDL(2000)32 and 36) where adopted on the same date, thus constituting a “package” of minority legislation. The Commission understands that for reasons of rationalisation of legislative work these laws were introduced and considered together by the legislator. However it finds no objective reason why the new Constitutional Law should be regarded as connected to or as a prerequisite for the adoption of the two other laws. It recalls in this respect that the constitutional basis for these two laws is to be found in Articles 5 to 12 of the Constitutional Law of 1991 which were not suspended in 1995 and were consequently already in force when the laws were discussed and adopted.

The Constitutional Law of 1991, its suspension and its revision

The 1991 Constitutional Law conferred inter alia specific rights of representation and participation in public institutions (parliament, government and supreme judicial bodies) to all minorities representing more than 8% of the population; these provisions were designed mainly to protect the largest minorities in Croatia by granting them effective representation at different levels of the legislative, executive and judicial institutions. Although there are 16 minorities present in Croatia, only the Serb minority was concerned by these provisions. Minorities representing less than 8% of the population were granted five seats to the Parliament of the Republic of Croatia.

By Constitutional Law adopted on 20 September 1995 all provisions relating to the special rights of minorities amounting to at least 8% of the population have been suspended. This also applied to provisions granting special status to districts with a majority of Serbs. The reason put forward for this suspension is that, following population movements, there are no longer units where the Serb minority would be a majority and that, consequently, the prerequisite for the implementation of the provisions at stake was not met.

The Venice Commission expressed the view that the relevant provisions of the Constitutional Law of 1991 should be revised with a view to ensuring an effective participation of minorities in public life (CDL(96)26).

In October 1996, the Government of the Republic of Croatia established a commission entrusted with the task to examine and to propose the revision of the Constitutional Law and the Venice Commission appointed some of its members to participate in the work of the above-mentioned commission. The members of the Venice Commission met the Croatian Commission for the Revision of the Constitutional Law in Zagreb in March and May 1997. Following these meetings

-           a consultative body (now called «Council of National Minorities») was set up, where representatives of minorities sit and discuss with Government representatives and officials questions concerning minority protection policy. Mrs Zoricic Tabakovic, chair of the Council participated in the 36^th Plenary meeting of the Venice Commission (Venice, 11-12 December 1998)

-           the Venice Commission addressed to the Croatian authorities, in June 1997, a memorandum containing the orientations and conclusions concerning the revision of the Constitutional Law (see Venice Commission 2^nd Report on its co-operation with Croatia (CDL-INF (98) 7)).

-           the Croatian authorities agreed to elaborate a draft Law on the Revision of the Constitutional Law which would be the basis for the further work on revision.

On 12 December 1997 the Parliament of the Republic of Croatia adopted amendments to the Constitution whereby, among others, the list of minorities expressly mentioned in the preamble of the Constitution was amended in such a way as to delete the mention of "Muslims" and "Slovenes" and to include "the Germans, Austrians, Ukrainians and Ruthenians". The Commission had not been able to assess the possible effects of this amendment on the work of the Croatian commission for the revision of the Constitutional Law and on the composition and the activities of the Council of National Minorities. However, it became clear later, when the electoral law was adopted, that this amendment had negative effects on the representation of the minority groups whose mention in the Preamble was deleted (see below).

On 29 April 1999, the Parliamentary Assembly, by its Resolution 1185 (1999) on the honouring of obligations and commitments by Croatia « regrett(ed) that little progress (had) been made by Croatia in honouring commitments and obligations related to the fundamental principles of the Council of Europe (democracy, rule of law and human rights) » and called on the Croatian authorities, inter alia, to « adopt a constitutional law revising the suspended provisions of the 1991 constitutional law … in compliance with the recommendations of the Venice Commission and taking into account new realities, by the end of October 1999 at the latest ».

Following an invitation by Mrs ZoricicTabakovic, Messrs G. Maas Geesteranus and F. Matscher participated in a meeting of the Council of national minorities in Zagreb, on 5 May 1999 (see DocumentCDL(99)34). During the meeting the urgency of the revision was underlined and reference was made to the Memorandum addressed by the Venice Commission to the Croatian Parliament in 1997 indicating the main topics to be dealt with in the framework of the revision. These include the status of the Council of National Minorities and other minority institutions, the representation of minorities in the legislative bodies and the Government and guarantees for educational and cultural autonomy. It was generally accepted that the points set out in the Commission’s Memorandum could form the basis for the revision. It was stressed further that early involvement of the Commission in the preparation of the revision would make co-operation easier and more effective. In this respect, the need was underlined to submit to the Commission as soon as possible any draft amendments to the Constitutional law of 1991, including provisions on the electoral rights of persons belonging to minorities. The Director of the Governmental Office for Minorities indicated that work on the revision was going on, but no draft had been finalised so far. As soon as finalised, the draft would be sent to the Venice Commission and to the Council of National Minorities for consideration. However, no draft material has been forwarded to the Commission until April 2000.

Moreover, some of the suspended provisions concerning electoral rights of minorities, including the Serb minority, were in fact reviewed by the adoption, on 29 October 1999 of the new Croatian electoral legislation. The draft election law provides for the representation in the House of Representatives of indigenous (“autocthonous”) national minorities. Minorities have the right to elect five representatives in a national minority constituency in accordance with the following scheme: Italians, Hungarians and Serbs shall elect one representative each; Czechs and Slovaks shall also elect one representative; Ukrainians, Ruthenians, Jews, Germans and Austrians shall elect one representative. In order to achieve that all above mentioned minorities be represented, the representatives of Czechs and Slovaks, as well as the representatives of Ukrainians, Ruthenians, Jews, Germans and Austrians shall rotate. As a result of the above enactment the guaranteed representation of Serbs in Parliament was reduced from three to one. The amendment to the Preamble of the Constitution had also the effect of guaranteeing a representation by rotation to Germans, Austrians, Ukrainians and Ruthenians, whereas no representation whatsoever was guaranteed for Slovenes and Bosniacs (“Muslims”).

The Constitutional Law on Amendments to the Constitutional Law of 1991

The Constitutional Law makes the following substantial proposals:

First, it provides that all previously suspended provisions concerning special status districts are abolished.

Moreover, the Constitutional Law provides that other specific rights of minorities representing more than 8% of the population, i.e. rights to be proportionally represented in the Parliament and in the Government and in high judicial bodies are re-introduced. However their effective implementation shall only start after the proclamation of the results of a census to be held in the Republic of Croatia (The date of the census is not specified in the law but according to information received by the Commission at its Plenary meeting the end of 2001 would be the time envisaged).

Rights of minorities who do not represent more than 8% of the population are not affected.

Pursuant to the Constitutional Law, a new list of national minorities is included in Article 3 of the Constitutional Law of 1991 including again the Slovene and the Bosniac minority, as well as several other  minorities, i.e. Albanian, Bulgarian, Montenegrin, Macedonian, Polish, Roma, Romanian, Russian, Turkish and Vlach minorities.

Assessment of the Constitutional Law

Article 1 of the new Constitutional Law amends Article 3 of the Constitutional Law on Human Rights and Rights of Minorities. This provision no longer guarantees “equality of national and ethnic groups or minorities” but “equality of the members of ethnic and national communities or minorities”.

This shows the will of the Croat constitution maker to depart from the concept of protecting minority rights as group rights and focus on protection of individual rights of persons belonging to minorities. However, Articles 4 and 5 of the Constitutional Law guaranteeing to minorities the right to self-organisation, to develop their relations with their “parent countries” in order to promote their national cultural development and the right to cultural autonomy remain unchanged.

The wording “equality of the members of the minorities” shows that the Law does no longer make any distinction between minorities on the ground of their numerical importance or on their “autochthonous” nature (cf. Preamble to the Constitution). Also the list of minorities is now given in a strict alphabetical order. To the contrary, in the Constitution Serbs appear in the beginning of the list.

The discrepancies between the list in the Constitution and the list in the Constitutional Law should not in principle raise any difficulty as both are regarded as indicative. However, the conclusion the legislator has drawn from the list of “autochthonous” minorities in the Constitution, namely that only these minorities have the right to be represented in the Parliament, may no longer be justified under the proposed amendment to Article 3 of the Constitutional Law.

Articles 2, 3 and 5-8 of the new Constitutional Law abolish all provisions concerning special status of districts where minority members represent the majority of the population (Articles 13, and 21 to 58 of the Constitutional Law of 1991), namely the districts of Glina and Knin with Serb majority according to the 1981 census. The explanatory report states that the special status districts are abolished “since in the present conditions in the Republic of Croatia a need for such a form of minority protection no longer exists”.

This abolition conflicts with the proposals made by the Venice Commission at various stages of its work on the implementation and the revision of the Constitutional Law of 1991. In its report on the implementation of the Constitutional Law (CDL (96) 26), adopted at the Commission’s 27^th Plenary Meeting, Venice 17-18 May 1996) the Commission had already considered the argument that the special status would be inadequate because of the change in the demographic conditions of the region. The Commission had expressed concern about the discouraging psychological effect that the suspension would have on minorities and displaced populations who would like to remain in or return to Croatia. The Commission had stated then that the Constitutional Law of 1991 without its special status provisions could not be said to constitute an adequate response to the situation after 1995. In the Commission’s view a revision of these provisions was required but this should not amount to an abolition of any special status.

The Constitutional Law does not make any proposal for revision of the constitutional law.

The Commission had proposed in its Memorandum addressed to the Croatian authorities that the existence and functioning of the "Council of National Minorities”, a consultative body comprising representatives of minorities and advising the authorities in the field of minority policies, should be provided by the Revised Constitutional Law.

As to the special status provisions the Commission made proposals in this respect on two occasions:

First, in its above-mentioned report on the implementation of the Constitutional Law of 1991, the Commission found the following:

“Although recent events are capable of justifying a revision of certain provisions of the Constitutional Law of 1991 (…) this revision should not lead to the abolition of any special status but should rather institute a regime of local self-government adapted to the new situation. In this respect, it is of course for the national legislature to determine the principal characteristics of that regime.  However the new provisions should, in line with Recommendation 1201 (1993) and with the European Charter of Local Autonomy, guarantee that concentrated minorities will enjoy the right to regulate and manage an important part of public affairs.”.

As regards in particular the situation of the Serb minority, the Commission indicated in its Memorandum on the revision addressed to the Croatian authorities in June 1997:

“The authorities of the Republic of Croatia should consider including in the Revised Constitutional Law the guarantees of political representation and educational and cultural autonomy which are included in the "Letter of intent" (Letter of the Government of the Republic of Croatia dated 13 January 1997 on the completion of peaceful reintegration of the region under transitional administration (Danube region) in the Republic of Croatia)”

The Commission indicated in the said Memorandum that the Revised Constitutional Law should set out the principle of representation of the Serb ethnic community notably from the Danube region in State bodies and bodies of local self Government acting in the region. It should also set out the framework for the functioning and competence of the "Joint Council of Municipalities" in accordance with the principles enshrined in the European Charter of local Self-Government, the Framework Convention for the protection of national minorities and Recommendation 1201 (1993) of the Parliamentary Assembly of the Council of Europe. Finally, the Revised Law should enshrine the principle of representation of the Serb ethnic community in the Parliament;

By virtue of Article 12 of the new Constitutional Law, Article 18 of the Constitutional Law is reactivated. This would allow minorities representing more than 8% of the population to be proportionally represented in the Parliament and in Government and High judicial bodies. However, in practice, this s re-activation is again suspended by virtue of Article 11 until the proclamation of the results of the (future) census.

The Commission does not overlook the importance of the reactivation of Article 18. As it stands, it guarantees a clear participation in political life to minorities provided that they are numerically important and this may have an encouraging effect to the return process of refugees. However, the practical effects of this provision will mostly depend on the general return policy of the Croat Government, including fair and speedy procedures concerning citizenship.

Moreover, it has to be recalled that the Commission was of the opinion that some rights should “be granted to concentrated minorities making up a substantial number of the population irrespective of the total percentage that such a minority represents at national level” (CDL (96) 26, para 22).

The new laws on use and education of minority languages

In addition to the new Constitutional Law, the Croatian Parliament adopted on the same date (11 May 2000) two laws : The law on the use of law on the use of language and script of national minorities in the Republic of Croatia (CDL (2000) 32 )and the law on the education in the language and script of national minorities (CDL (2000) 36).

The law on the use of minority languages provides for the official use of languages and script of national minorities by local administrative authorities in their official work and all their documents, in the relations between these authorities and the individual citizens, as well as before first instance State authorities and before courts of first instance. It further provides for equal use of minority languages and scripts  in the display of topographic indications. The law provides for the “equal official use of national minority language and script" in the following cases:

when the members of a particular national minority constitute the majority of inhabitants of a town or municipality;

when this is envisaged by international agreements to which Croatia is a party;

when municipalities and towns have so decided in their Statute, in accordance with the provisions of the Constitutional Law on Human Rights and Rights of Minorities and the Framework Convention for the Protection of National Minorities;

when the county, in the area of which the minority language and script is in “equal official use”  in particular municipalities and towns, has stipulated in its Statute that the minority language will be used in the work of its bodies.

The law contains several references to the Framework Convention for the Protection of National Minorities and this should in principle be welcome. Although the condition set for a mandatory “equal official use”, i.e. that the minority constitutes the majority in a town or municipality is rather strict[19], it leaves an important margin to local authorities to decide that a minority language or script will be in official use even when this condition is not fulfilled. Generally, it can be said that the law provides for a relatively large application of the equal official use of the minority language.

The law on education in minority languages provides that there will be education in minority language in pre-school institutions, primary and secondary schools and other school institutions. It provides extensive possibilities for education in a minority language and sets out the obligation of the State to fund minority language educational institutions. It is to be noted that the law stipulates that the minority culture curricula are adopted by the Ministry of education after opinion of the associations of the national minority concerned. School institutions with minority classes can use textbooks from the parent country subject to approval of the Ministry of education. Furthermore, provisions that required a declaration of belonging to an ethnic and national community or minority upon enrolment in a minority language educational unit (educational institution, class, tuition group) contained in a previous draft were removed from the law. To the contrary, the law provides that teachers in minority language units shall in principle belong to the respective ethnic and national community or minority themselves[20].

Undoubtedly, it would be desirable to clearly state in the law some procedural details as to the negotiation of curricula and the approval of textbooks. For instance, the law does not contain regulations on the principles by which the Ministry shall be bound when passing the curricula according to Art.6 (2) or as to the representativity of the minority association consulted by the Ministry in this respect. There are also no rules as to the reasons for and the conditions under which the Ministry may refuse to approve textbooks from the parent country. Such provisions would contribute to legal security and prevent arbitrary decisions. Be that as it may, the  Commission is of the opinion that in general the Education Law regulates successfully an area having key position in the protection of minorities and sets an appropriate framework to guarantee education in the minority language.

General assessment of the laws on use of minority language and on education in minority language

Although there are some critical points in both laws that may raise delicate issues in their implementation, in general it can be said that they grant a relatively high level of protection of cultural rights for national minorities, concerning the use of and education in their languages. This fact and the positive intention standing behind these laws are certainly very welcome.

However, these laws are not likely to fill the vacuum left by the abolition of the special status provisions.

It is to be stressed that no rules are adopted at the constitutional level to regulate or to set out the frame of an effective participation of minorities in public life nor are there any rules as to the establishment and competencies of bodies representing minorities at the local and national level.

Future steps

The Commission notes that in accordance with the Conclusion of the Sabor, the Government will have to present a new draft for the revision of the Constitutional Law on Rights of Minorities within six months from the Conclusion, i.e. by mid of November 2000. Whatever the legal value and the legal effect of this conclusion could be in Croatian domestic law, the Commission understands this as being a political commitment to reconsider the question of the revision of the Constitutional Law on Rights of Minorities and welcomes the fact that a committee, under the authority of Mr Ivanisević, Minister of Justice, has already started working on the revision. Recalling Croatia’s commitments when acceding to the Council of Europe, the Commission reiterates formally its availability to co-operate with the competent Croatian authorities in this respect. 

Conclusion

In the Commission’s opinion:

The new Constitutional Law does not “revise” the suspended provisions but clearly abolishes all special regime for important minorities in Croatia. Admittedly, it re-activates provisions concerning proportional representation of minorities making more than 8% of the population but this is again suspended until the results of a census to be held in the future.

The laws on use of minority language and on education in minority language grant a relatively high level of protection of cultural rights for national minorities, concerning the use of and education in their languages, but are not likely to fill the vacuum left by the abolition of the special status provisions.

The legislation considered still lacks as a whole rules at the constitutional level to regulate or to set out the frame of an effective participation of minorities in public life and rules as to the establishment, functioning and competencies of bodies representing minorities at the local and national level.

Finally, the Commission recalls that it expressed repeatedly its availability to co-operate with the competent Croatian authorities. It regrets that despite the commitment of the Croat authorities consultation did not take place at an earlier stage and reiterates again formally its availability to co-operate with the competent Croatian authorities in this respect in the coming months with a view to prepare a proposal to amendment the Constitutional Law on Human Rights and Rights of Minorities as requested by the Parliament of the Republic of Croatia.

vii.       Consolidated opinion on the Constitutional Law on the Constitutional Court of the Republic of Croatia, based on comments by Ms Janu and Mr Vandernoot (CDL-INF (2001) 2) adopted by the Commission at its 45^th Plenary Meeting (Venice, 15-16 December 2000)

I.          Introduction

Upon the request of the President of the Constitutional Court of Croatia, Mr S. Sokol, the Venice Commission was asked to prepare a legal opinion on the Constitutional Law on the Constitutional Court of the Republic of Croatia (Doc.CDL(2000)51).

Mrs Janu and Mr Vandernoot were designated as rapporteurs on this issue. The following consolidated opinion is based on their comments that have already been transmitted to the Croatian authorities.

The Venice Commission discussed and adopted the opinion at its 45^th Plenary Meeting in the presence of Mr Sokol. It was underlined that the Constitutional Law on the Constitutional Court of the Republic of Croatia in conformity with democratic standards applied by most European States.

The following report summarises the observations made by rapporteurs in their separate opinion and the discussions held during the Plenary Meeting.

II.         General comments

The Constitutional Law on the Constitutional Court aims to define the position of this institution in the Croatian legal system and the status of judges, to institute procedures for the review of the constitutionality and legality, to describe the legal effects of decisions, the protection of human rights and fundamental freedoms and to settle a number of other issues.

The very first comment that one could make is that the text is very detailed for a Constitutional Law: together with really fundamental issues it describes in detail different procedures. This approach leads to a number of omissions, which could be problematic for the efficient work of the Court. Although this legal approach does not seem to create difficulties in current practice, the Law could enable the Constitutional Court to have more freedom to regulate certain aspects of its own procedure in conformity with the principles defined by the law.

In spite of the very detailed description of certain types of proceedings, the distinction between different competences of the Court could be better defined. Article 125 of the Constitution of Croatia gives the description of different fields of competence of the Court. The Law on the Constitutional Court of Croatia is aims to give the details of how these competences are carried out by the Court. Nevertheless, there are still certain issues that are not clear in the text (see below).

The Constitutional Court does not only deal with constitutional issues but appears to be the “guarantor” of the hierarchy of all norms. This may in the long run overburden the Constitutional Court. In this light the extension of the competence of the Constitutional Court in issues of control of constitutionality of norms could be reconsidered. It might be wise to entrust it with the power to control the constitutionality of laws and leave the control of administrative acts and decisions to other jurisdictions (“courts of justice” as they appear in the text of the Law). This proposal is supported by Article 35 Para 2 of the law, which gives the right to courts of justice to “determine that the regulation other than the law, which is to be applied, is not in accordance with the Constitution or the law”, and, on the basis of this determination, not to apply that regulation and to “inform the Supreme Court thereupon”. The Supreme Court in accordance with Article 34 of the law can refer this issue to the Constitutional Court. There could be, for example, a system where competences of the Constitutional Court and other high jurisdictions are distributed in such a way that the Court would be a last-instance jurisdiction on issues of conformity of different acts to the Constitution. Other courts would refer to the Constitutional Court only in cases when they consider that the provision of a certain act clearly breaches the Constitution and the intervention of the Constitutional Court is absolutely necessary.

The text could be amended with provisions aimed at implementation of the decisions of international jurisdictions, especially in the field of human rights. The role of the Court in the field of implementation in Croatia of different norms of international instruments on human rights, minorities etc., to which Croatia adhered ,could also be clearly stated. The Law could even provide for a specific procedure in this respect.

Considering the importance of the role of the Constitutional Court in the protection of minorities the Council of National Minorities, whatever its status, should have the right to refer this issue to the Constitutional Court.

Another general issue of importance is the protection of minorities by the Constitutional Court. The Constitutional Law of the Republic of Croatia of 4 December 1991 on human rights and fundamental freedoms and on national or ethnic minorities establishes that minorities that represent more than 8 % of the population must be represented in high jurisdictions[21]. The latter should include, in principle, the Constitutional Court. This provision is not reflected in the Law on the Constitutional Court.

As for the structure of the text, certain articles are not clear from the point of view of terminology. This is the case, for example, of Articles 10 and 12, 16 and 41 – 42, 17 and 32. These terms should be better defined in order to avoid any possible confusion.

III        Some comments on concrete articles of the Law[22].

A.        Composition of the Constitutional Court and status of judges (Articles 4 – 15).

The definition of a necessary professional background for being elected judge at the Constitutional Court defined by Article 5 Para 1 is too vague. It could include more specific reference to the professional experience of a candidate such as work as a professor of law at a university or as a judge in other jurisdictions. Para 3 of the same article refers to such experience but in very general terms.

Article 6 Para 2 states that “The judge of the Constitutional Court who has been elected in place of the judge relieved of his/her office before the expiry of his/her term of office shall enter his office at the time determined by the House of Representatives of the Croatian National Parliament”. This provision might be problematic because it gives an opportunity to the Parliament to postpone indefinitely the nomination of a new judge.

Article 10, while determining the reasons for the termination of office of the judge in its first paragraph, gives additional reasons for removal of the judge in the second one. It would be more logical if the first paragraph would set out the cases when a judge can be removed and the second one the internal discipline of the Court. Sanctions other than revocation could also be included in this paragraph.

Article 11 at Paras 3 and 4 on the Court’s power to determine the permanent incapacity of a judge of the Constitutional Court or of its President to carry on their duties could be more detailed. It should be considered whether the quorum for the removal of a judge should be the same as for the removal of the President by the virtue of the principle par inter pares.

The procedure to follow when the term of office of a judge expires is not sufficiently clear from the wording of Article 13 Para 1. This article should be more explicit on the consequences of the expiry of the term of office of the judge on the pending cases or issues she/he is examining. Another issue of great importance, as has already been mentioned in paragraph 10 of this report, is the procedure of election of a new judge by the Parliament. There should be either a procedure allowing the incumbent judge to pursue his/her work until the formal nomination of his/her successor or a provision specifying that a procedure of nomination of a new judge could start some time before the expiration of the mandate of the incumbent one[23].

B.         Review of the constitutionality of laws and the constitutionality and legality of other regulations (Articles 34 – 58).

Articles 47 and 48 Para 3 do not allow a clear distinction to be made between a public hearing and a consultative session. A public hearing should take place whenever the case before the Constitutional Court is determinant for an individuals civil rights and obligations, within the meaning of Article 6 of the European Convention on Human Rights.

Article 52 allows the Court to “review the constitutionality of the law” or “the constitutionality and legality of other regulations even in the case when the same law or regulation has already been reviewed by the Constitutional Court”.This procedure allows the Court to examine several different cases, complaints or arguments concerning the same law or regulation. However, this provision could be problematic in the light of the principle res judicata.

Article 43 authorising the Court to suspend the execution of acts adopted on the basis of law or regulation contested before the Court could be completed and include:

as a motive for such suspension, the existence of sufficiently justified reason;

as another motive - the adoption of an act identical to the contested one;

an authorisation to suspend the law or regulation and not only acts based on them.

Article 55 concerning an incidence of abrogation or amendment of the law or regulation challenged before the Court should be interpreted in a way that allows the Court to take into account when deciding whether to pursue or end the proceedings, the existence of a genuine interest of any injured party in having the case decided by the Court.

Articles 53 – 56 are not clear about the effect of the decisions of the Court. It is not clear when the Court “abrogates”, “repeals” or “annuls” unconstitutional norms. Therefore, it is not clear if the effects of its decisions are “ex tunc” or “ex nunc”. A possible solution could be to fix the effects of decisions of the Constitutional Court as “ex tunc” and to foresee a possible exception allowing under certain specific circumstances to maintain temporarily the effects of the annulled act[24].

C.        Protection of Constitutional freedoms and human rights (Articles 59 – 76).

It has been already mentioned in Chapter II paragraph 7 of this report that the text of the Law could be more explicit on the role of the Constitutional Court in implementing the international norms of protection of human rights.

Another important point can be mentioned in respect of Article 75 establishing that ‘the proceedings instituted by the constitutional complaint shall end when the applicant dies’. This provision is too strict. In certain cases, especially civil ones, third persons could have a legitimate interest in pursuing the case for example successors.

IV        Conclusions

The Constitutional law on the Constitutional Court of the Republic of Croatia as a whole does not present any major problems in the light of generally accepted principles and rules in European democratic States that aim to safeguard the supremacy of the Constitution, and the independence and impartiality of the Constitutional Court. Nevertheless, some amendments could be made to the text in order to clarify some of its provisions, which can be summarised as follows:

there should be a better description of the competences of the Constitutional Court and the role of other jurisdictions in the process of control of constitutionality;

the effects of decisions of the Court should be defined in a more precise way;

a reference to the role of the Constitutional Court’s role in controlling the respect of international instruments of protection of human rights by Croatia should be explicit in the text;

the nomination of judges and internal organisation of the Court should be clarified; it would be advisable if the Law includes some provisions for internal discipline.

some provisions concerning national minorities could be introduced, giving them a possibility to be represented in the Court, enabling the Council of National Minorities to refer the issue to the Constitutional Court and by integrating different international instruments of protection of minorities as norms of reference for the Court.

viii.      Second interim report on constitutional reform in Moldova (CDL-INF (2001) 3) adopted by the Commission at its 43^rd Plenary Meeting (Venice, 16 June 2000)

I.          Introduction

1.         In April 1999, following the consultative referendum on the possible amendment of the Constitution of Moldova organised by President Lucinschi, the Committee on the Honouring of Obligations and Commitments by Member States of the Parliamentary Assembly of the Council of Europe, decided to ask the Venice Commission to follow constitutional developments in the Republic of Moldova. The Venice Commission was informed of this decision by letter of 3 May 1999. Furthermore, on 25 May 1999, the Commission was also asked to look at the question of constitutional reform by the Parliament of Moldova. The Parliament submitted to the Venice Commission a draft for a revision of the Commission prepared by 39 deputies.

2.         On 13 June 2000, the Parliamentary Assembly of the Council of Europe asked the Venice Commission to examine all projects for constitutional reform currently examined by the Constitutional Court and by the Parliament. The Commission has appointed rapporteurs on these drafts and will adopt its opinion at its next Plenary meeting on 13 to 14 October 2000. The individual opinions will be forwarded to the Assembly as soon as they are available.

II.        Cooperation between the Venice Commission and the Moldovan authorities in 1999

3.         On 1 July 1999, following the consultative referendum on the possible modification of the Constitution, the President of the Republic of Moldova, Mr P. Lucinschi, signed a decree setting up a National Committee to draft a law amending the Constitution of the Republic of Moldova (Constitutional Committee). Its aim was to propose changes which would reinforce the role of the executive. In the space of two months, the Constitutional Committee presented the Venice Commission with 4 versions of draft constitutional modifications, all of which aim to establish a presidential régime in Moldova.

4.         At its 41^st plenary meeting in December 1999, the Venice Commission adopted an interim report on constitutional reform in the Republic of Moldova and transmitted it to the Parliamentary Assembly of the Council of Europe (See Chapter I). The Venice Commission expressed the desire that all parties concerned continue to seek a consensus on constitutional reform.

5.         As explained above, the Venice Commission was asked to examine the proposal of the 39 deputies. In its Interim Report it stated that the text was in conformity with democratic standards.

6.         On the other hand, the Venice Commission considered that the Constitutional Committee’s draft contained a number of elements which did not allow confirmation that it was in conformity with European democratic standards [25]. At the same time, the draft in its entirety was unacceptable to the Parliament. The observations by the Venice Commission appear in the Interim Report presented to the Parliamentary Assembly in December 1999.

7.         A further draft, aimed at setting up a parliamentary régime in Moldova, was presented by 38 deputies in the Moldovan parliament. The Commission has not yet examined this draft.

III.       The work of the Joint Committee

8.         During his official visit to Moldova from 6 to 7 December, the President of the Parliamentary Assembly of the Council of Europe, Lord Russel-Johnston made an urgent appeal to the President of Moldova and to the Parliament, urging them to reach a compromise on the subject of constitutional conflict which opposes both sides on the manner of reinforcing the executive. Furthermore, he suggested “that a committee of wise persons, comprising members of the Moldovan parliament and personalities nominated by the President of the Republic, could, with the help of the Venice Commission of the Council of Europe, draw up such a compromise”[26].

9.         Following this appeal, the President and the Parliament of the Republic of Moldova decided to create, in February 2000, a Joint Committee who would elaborate a single draft of constitutional amendments. This Committee would comprise three representatives of the President and three of the Parliament. The two sides asked that this Committee be chaired by Mr G. Malinverni, member of the Venice Commission, who accepted this proposal.

10.       The Joint Committee met three times, on 9 and 10 March and on 26 and 27 May in Chisinau and on 7 and 8 April in Strasbourg. The Joint Committee prepared a draft proposal for the revision of the Constitution accepted by all its members (the text appears in Section 4 of this report). The final text was signed by the members of the Joint Committee.[27]

11.       As stated above, the draft constitutes a compromise between the Parliament and the Constitutional Committee. Nevertheless, the participants were unable to agree on the two following important points: the right of the President to dismiss the Prime Minister and on the electoral system. On the first question the parliament categorically refused to concede this right to the Head of State. As for the electoral system, the parliamentarians considered that this reform should be made at a later date by way of changes to be made to the Electoral Code.

12.       In this connection it should be mentioned that, at a time when the work of the Joint Committee was still in progress, the President of the Republic submitted a new draft text for examination to the Constitutional Court. The authors of the draft indicated that they had based themselves on the results of the work of the Joint Committee working under the aegis of the Venice Commission. When examining this text, it is apparent that there are important differences between the text proposed by the Joint Committee and the text submitted by the President. Following a request from the President of the Joint Committee and the Secretary of the Venice Commission, the President of the Republic of Moldova accepted to respect a moratorium on all the work in the field of constitutional reform until the Joint Committee had finished its work. The Parliament did likewise for the proposals made by 39 and 38 Deputies already presented to the Parliament.

13.       In accordance with the provisions of the Moldovan Constitution, all draft proposals for constitutional reform must first be examined by the Constitutional Court. It is now up to the President or to the Moldovan Parliament to submit the draft prepared by the Joint Committee to the Constitutional Court. Moreover, the drafts of the 39 and 38 members of the Parliament, already examined by the Constitutional Court, are with the Parliament, whilst the Presidential draft is still subject to examination by the Constitutional Court. None of the texts have been formally withdrawn. It is therefore uncertain that the text established by the Joint Committee will be accepted.

IV.       Conclusions

The Venice Commission welcomes that the members of the Joint Committee were able to agree on a compromise text for constitutional reform. The amendments proposed take into account the experience of different European States and the needs of Moldova, and at the same time considerably reinforce the Executive without undermining the principle of separation of powers. The Venice Commission is hopeful that the text, which is the result of joint work by the representatives of the Parliament and the Constitutional Commission, will have the support of the authorities and of the different political forces represented in Parliament.

ix.        Opinion on constitutional reform in Moldova (CDL-INF (2001) 3) adopted by the Commission at its 45^th Plenary Meeting (Venice, 15-16 December 2000)

I.          Introduction

1.         In April 1999, following the consultative referendum on the possible amendment of the Constitution of Moldova organised by President Lucinschi, the Committee on the Honouring of Obligations and Commitments by Member States of the Parliamentary Assembly of the Council of Europe, decided to ask the Venice Commission to follow constitutional developments in the Republic of Moldova.  The Venice Commission was informed of this decision by letter of 3 May 1999.  Furthermore, on 25 May 1999, the Commission was also asked to look at the question of constitutional reform by the Parliament of Moldova.

2.         In 1999 the Commission examined draft proposals for constitutional reform prepared by a Constitutional Commission set up by the President of the Republic and a draft law proposed by 39 parliamentarians. These two projects had a different vision of the nature of the reform to be carried out – the first wanted to reinforce the executive by giving additional powers to the President whereas the second proposed to give new powers to the Government. At its 41^st plenary Meeting in June 1999 the Commission adopted a first interim report and forwarded it to the Parliamentary Assembly (doc.CDL(99)88). In this report the Commission expressed the concern that the presidential draft would concentrate too much power in the hands of the President and gave a generally favourable assesment of the draft of the 39 parliamentarians.

3.         Following the proposal of the President of the Parliamentary Assembly, Lord Russel-Johnston in December 1999[28], the President and the Parliament of the Republic of Moldova decided to create, in February 2000, a Joint Committee, which would elaborate a single draft of constitutional amendments.  This Committee comprised three representatives of the President and three of the Parliament. The two sides had asked Mr G. Malinverni, member of the Venice Commission, to chair this committee.

4 .        The Joint Committee met three times in 2000, on 9-10 March, on 26-27 May in Chisinau and on 7-8 April in Strasbourg. The Joint Committee had prepared a draft proposal of the revision accepted by all its members (CDL (2000) 37). In June 2000 this draft was submitted to the Constitutional Court, which has to decide if it is in conformity with the Constitution of Moldova. To date, the Court has not taken a decision on this question.

5.         The draft prepared by the Joint Committee constituted a compromise between the Parliament and the Constitutional Committee.  Nevertheless, the participants were unable to agree on the following two important points: the right of the President to dismiss the Prime Minister and the organisation of the electoral system. On the first question the Parliament categorically refused to concede this right to the Head of State. As for the electoral system, the parliamentarians considered that this reform should be made at a later date by way of changes to be made to the Electoral code.

6.         At its 43^rd plenary meetings in June 2000, the Venice Commission adopted its second interim report on constitutional reform in the Republic of Moldova and forwarded it to the Parliamentary Assembly of the Council of Europe (CDL (2000) 53). The Venice Commission expressed the wish that all parties concerned continue to seek a consensus on the methods of constitutional reform.

7.         On 13 June 2000, the Parliamentary Assembly of the Council of Europe asked the Venice Commission to study all projects currently examined by the Constitutional Court and by the Parliament. On 5 July 2000 the Parliament voted a Law on constitutional reform based on proposals of 39 (see above) and 38 members of the Parliament (a proposal for a purely parliamentary system with a President elected by the Parliament) and sent it for promulgation to the President of the Republic. The President vetoed the Bill. On 21 July the Parliament overcame the veto by an overwhelming majority of its members and the Law came into force (with minor amendments to the initial text). The text adopted appears in documentCDL(2000)55 rev.

8.         The Venice Commission decided to examine this text and not to work on the presidential text, which the legislators would not adopt. At its 43^rd plenary meeting the Venice Commission asked Ms H. Suchocka, Mr K. Tuori and Mr J. Jowell to give their opinion on this Law. The text that follows is a consolidated opinion of the rapporteurs. The final paragraphs pay special attention to the relation of the adopted amendments to the proposal made by the Joint Committee (CDL(2000) 37).

II.        The Law on Constitutional reform adopted by the Parliament of Moldova.

A.         General observations.

9.         The Constitution of the Republic of Moldova adopted on 29 July 1994 established a system of governance that is a compromise between a presidential and parliamentary system. It would seem inevitable that such a hybrid system would reveal tensions and uncertainties with regard to the respective roles and powers of the President, Prime Minister, Government and Parliament. The principle of separation of powers did not help to ease tensions – on the contrary, it deepened them when each branch started to give extensive interpretation of the scope of its prerogatives.

10.       The amendments adopted by the Parliament aim at strengthening the parliamentary traits of the Constitution. This means reinforcing the position of the Government and the Parliament at the expense of that of the President. The model of government shifts away from that of a semi-presidential system towards a parliamentary one. The role of the President is effectively moved from the head of  the executive towards that of the head of state. The Prime Minister elected by the Parliament assumes the role of head of the executive.

11.       The amendments strive for the effective functioning of the political system through increasing the powers of the Government. The basic solution, which underlies the individual amendments, is in itself fully legitimate. The main issue to be examined is, whether this solution has consequently been adhered to.

B.         Particular amendments.

            - The new role of the President

12.       The weakening of the position of the President is manifested already in the change in the procedures for his/her election and dismissal. According to Art. 78, the President will be elected by the Parliament. Given the fact that the President’s powers are to be largely devoid of governmental power, retaining only largely ceremonial and some residual powers, especially in foreign affairs (as a Head of State), these amendment accords with democratic standards. One should positively assess the amendment that one may fill the office of President only for two terms of office (Art. 80, new paragraph 4).

13.       Correspondingly, the dismissal of the President from his office will no more require a referendum but can be decided on by a qualified majority of the Parliament (Art. 89). An amendment of 21 July 2000 permits the President to submit to the Constitutional Court as well as the Parliament, his defence of a charge of impeachment. This additional judicial safeguard rightly accords with the requirements of rule of law.

14.       As regards the powers of the President, Art. 83, according to which the President can take part in Government meetings and preside over them, will be abrogated. This corresponds to the general aims of the amendments adopted. There seems no need, however, to strip the President of power to consult the Government (Art. 83 (2) in the text of the Constitution of 1994). Consultations might be particularly necessary in cases where the President exercises some residual powers (such as the power in foreign affairs set out in Art. 86, see below). Similarly, there is no reason why the Prime Minister should not be required to keep the President informed on matters of special importance (the second sentence of Art. 101 (1) that establishes this procedure is abrogated). The Head of State should not be deprived of the right to obtain information from the Prime Minister, especially in the light of Art. 77, which defines the President’s role in the state as the person representing the state and the guarantor of national sovereignty, independence, unity as well as the nation’s territorial integrity.

15.       The President will also lose his right to initiate the revision of the constitution (Art. 141.1). By contrast according to the text of the law as finally adopted on 21 July 2000 he will retain the right to propose legislation. The text initially approved on 5 July 2000 had taken away this right from him. This initial text would have seemed more in line with the general tendency of the constitutional reform.

16.       The President, however, will retain some important powers. On the other hand, these powers include the dissolution of the Parliament in cases defined in Art. 85 and in Art. 78(6). The President’s right to dissolve the Parliament does not in itself contradict the basic line chosen in the amendments. Even in a predominantly parliamentary system, there is a need to provide for a way to solve situations of political deadlock, related to, e.g. the formation of the Government. As the Constitutional Court has, according to Art. 135, paragraph 1 f), to ascertain the circumstances justifying the dissolution of the Parliament, the scope for the President’s independent political discretion is quite limited. This covers the situation, where new legislation has been deadlocked for three consecutive months and which also constitutes a reason for the dissolution of the Parliament.

17.       The President will retain the right to take part in the negotiation of international treaties. In most countries with a parliamentary form of government this is essentially a governmental task and therefore it does not seem to fit into the role of the President as revised by the Law in question. There can be no objection to the President concluding treaties in the name of the Republic of Moldova, or submitting the treaties to Parliament for ratification (provided he has no discretion in the matter). Similarly, there can be no objection to the President accrediting diplomatic representatives.

18.       The President will also in the future be the Commander-in-Chief of the armed forces (Art. 87). This role can be justified, at least so long as it is a formal power only and does not carry with it executive responsibility.

19.       In the formation of the Government, the President designates the candidate for the office of the Prime Minister only after having consulted the groups represented in the Parliament (Art. 98(1)). This will, most certainly, strengthen the government by providing support of the parliamentary majority. At the same time, the President will lose to the Government the right to appoint two judges to the Constitutional Court (Art. 136(2)).

20.       On the whole, the powers, which the President will have in the future, do not seem to cause problems for the basic line adopted in the amendments and aiming at the strengthening of the parliamentary traits of the constitutional system. The President will mainly figure as a pouvoir neutre, to be resorted to in situations of political and/or constitutional deadlock. However, there remains one right, which - perhaps in addition to the President’s role in foreign and defence policy - can give the President the possibility to act as an independent political actor, namely the right to call a referendum on matters of national interest (Art. 88, paragraph f).

- Provisions strengthening the executive and defining its relations with the Parliament.

21.       The purpose of enhancing the possibilities of the executive power for effective political leadership is, first of all, reflected in the new provisions concerning the use of legislative power. Thus, the Government can establish an order of priority for the examination of bills in the Parliament and also require an urgent procedure (Art. 74(3)). It is difficult to deduce from the constitutional wording how one should understand “le mode etablie par le Gouvernement” (the course established by the Government). However, it is manifest that the Parliament has the autonomous right to establish its procedures in a system of the division of powers. The power held by the Government cannot therefore overrule this right of the Parliament.

22.       Article 106(1) that establishes the procedure for engaging the responsibility of the Government, which is inspired by the French model, conforms to democratic standards. It also corresponds to the proposal made in the draft of the Joint Committee.

23.       According to Art. 106(2) the Parliament can also, on the proposal of the Government, adopt a law delegating legislative powers for the purpose of implementing the programme of the Government. The draft of the Joint Committee gives a more detailed procedure for delegation of powers than the adopted Law. It establishes a mechanism where the Parliament keeps control over the legislative procedure and can intervene at any time during the duration of the powers of the Government to issue by-laws and therefore gives additional guarantees against the misuse of this power by the executive. This control by the Parliament is of great importance as many democratic institutions and customs are in the process of their establishment in post communist countries. It is clear that the basic principle underlying this provision does not elicit any doubts from the legal point of view or represent a threat in most democracies. However, for any society in transition risks of abuse of power should be carefully considered and where possible additional guarantees should be provided in order to prevent them. It should therefore be considered that Article 106² can be revised to correspond to the proposals of the Joint Committee.

24.       According to the adopted law legislative initiatives or amendments entailing budgetary consequences can be adopted by the Parliament only after the Government has approved these consequences (Art. 131(4)). This is a very important provision. The Government is accountable for the state’s economic policy. The introduction of amendment to the budget by members of Parliament without the Government’s acceptance might lead to the collapse of the state’s economic policy.

25.       According to the new Art. 136 (2), the Government has the right to appoint two judges of the Constitutional Court. Under the system established by the Constitution of 1994, the President’s right to appoint two judges was of a different nature because his legitimacy as Head of State was based on his election through direct universal elections. Under the current system the appointment of two judges by the Government risks compromising the principle of judicial independence.

III.       Conclusions.

26.       In general, the adopted law on constitutional amendments raises no major problems in the light of modern democratic constitutional standards. The balance of powers is preserved and the aim of strengthening the Government initially set forth by Moldovan authorities is achieved. However, the Venice Commission hopes that these changes will provide a certain constitutional stability. Powers cannot be shifted from one power to another and the Constitution amended in conjunction with every change in the political situation in the country or after a constitution of a new parliamentary majority. The established system has great potential to contribute to the reinforcement of a genuine and efficient democracy in the country. While some fine tuning seems still necessary, the basic principles underlying the constitutional reform should no longer be questioned.

27.       The constitutional amendments adopted by the Parliament include some of the proposals of the Joint Committee, relating to e.g., the strengthening of the role of the Government in the use of legislative power and the committal of responsibility by the Government before the Parliament. However, there are also differences, which cannot in all cases be explained by the basic line underlying the amendments. Thus, the proposals of the Joint Committee on the nomination of the Government (Art. 82) and on the constructive vote of no-confidence (Art. 106) could have been included in the amendments without contradicting their general aims. As set out above, the Joint Committee proposals in the delegating of legislative powers to the government are more precise. Complementing provisions on referendums, which the Joint Committee included in its proposal for Art 75, are needed even after the adoption of the examined Law of 5 July. The proposals of the Joint Committee concerning the limits of constitutional revision (Art. 142), the law on constitutional revision (Art. 143) and the promulgation of the laws amending the Constitution (Art. 93(3)) have also retained their pertinence.

28.       The Venice Commission is of the opinion that if the Constitutional Court of Moldova gives a positive opinion on the draft of the Joint Committee, the Parliament could consider some of the proposals made in this text. As has been already mentioned earlier their content is not only compatible with the logic of the established parliamentary system of government, but can also render co-operation between different powers more efficient.

x.         Proposals for the Joint Committee responsible for a draft revised Constitution for the Republic of Moldova adopted in Chisinau on 27 May 2000

DRAFT LAW ON CONSTITUTIONAL REFORM

CHAPTER IV

PARLIAMENT

1.         The Joint Committee has examined two proposals for reforming the electoral system, one from the Constitutional Committee which would entail electing 70 members of Parliament on a single-seat majority basis and 31 by proportional representation, and another which would entail electing all the members of Parliament by proportional representation in the constituencies. The Joint Committee has not been able to agree on either of these systems.

2.         Letter "b" of Article 66 will read as follows:

"b)        To call referendums within the meaning of Article 75."

3.         The Third Section will be headed as follows: "Legislative procedure and referendums".

4.         Article 72 is maintained in its 1994 version.

5.         Article 74 will read as follows:

Article 74

The passing of laws and resolutions

1.)        Constitutional laws shall be passed in accordance with the procedure provided for under Title VI of the Constitution.

2)         Organic laws shall be passed by majority vote of majority of elected deputies based on at least two ballots.

3)         Ordinary laws and resolutions shall be passed by the majority of the votes cast by the members present in session except where otherwise provided for in the Constitution.  However, for such acts to be passed at least half of the members must be present.

4)         Parliament shall examine bills introduced by the Government, as well as bills accepted by the latter in accordance with the order and priorities established by the Government.  The Government may decide to ask that its bills be examined under urgent procedure.

5)         The rules of procedure of Parliament shall set forth the procedures for passing organic laws, ordinary laws and resolutions, including urgent procedure.

6)         The laws shall be submitted to the President of the Republic of Moldova for promulgation.

6.         Article 75 will read as follows:

            Article 75

Referendums

1)         Problems of utmost gravity or urgency confronting the Moldovan society or State may be resolved by a Republic-wide consultative referendum. A consultative referendum on matters of national interest may be called by the President or by Parliament following mutual consultation in accordance with the legislation in force.

2)         Constitutional referendums shall be organised and run in compliance with Articles 142 and 143 of the Constitution and with the legislation in force.

3)         Problems of major importance for a given locality may be submitted to a local referendum in accordance with the legislation in force.

CHAPTER V

THE PRESIDENT OF THE REPUBLIC

7.         Article 77 will be supplemented by a paragraph 3 reading as follows:

            "The President of the Republic shall ensure respect for the Constitution and the proper functioning of the institutions.  For this purpose, he shall act as a mediator between the state authorities and between the State and society."

8.         Article 82 will read as follows:

Article 82

Nomination of Government

1)         Within no less than fifteen days and no more than thirty days of the convening of Parliament and following consultation with the parliamentary groups, the President shall propose to Parliament a candidate for the office of Prime Minister. The candidate must be elected by an absolute majority of elected members within ten days.  The person thus elected must be appointed by the President of the Republic of Moldova.

2)         If the proposed candidate is not elected within ten days, Parliament may elect a Prime Minister by a majority of its elected members within fourteen days of the ballot provided for in paragraph 1 above.

3)         If no candidate is elected within this time limit, a new ballot shall be held immediately, following which the person obtaining the highest number of votes shall be deemed elected.  If the person elected obtains a majority of votes of the elected members of Parliament, the President must appoint him within ten days of the election. If the person elected fails to obtain that majority, the President shall either appoint him within ten days or dissolve Parliament.

4)         Ministers shall be appointed and dismissed by the President at the proposal of the Prime Minister[29].

9.         Article 85 will read as follows:

Article 85

Dissolution of Parliament

1)         In cases where it is impossible to elect the Prime Minister in accordance with Article 82 paragraph 3 and where a motion of no confidence within the meaning of Article 106(1) has been passed, the President of the Republic, following consultation with the parliamentary groups, may dissolve Parliament.

2)         Parliament may not be dissolved during a state of emergency, martial law or war.

10.       Article 88f) will read as follows:

            "f) call referendums within the meaning of Article 75."

11.       Article 93 will be supplemented by a paragraph 3 reading as follows:

"Laws amending the Constitution shall be promulgated by the President of the Republic of Moldova within 15 days following their approval by referendum or 100 days after the passing of the law if no constitutional referendum has been initiated within that period."

CHAPTER VI

GOVERNMENT

12.       The title of Article 96 will change to "The role of the Government and the responsibility of its members".  The present paragraph 2 will be replaced by the following text:

"2)        The members of the Government shall bear political responsibility for the management of their ministries within the terms established by the Constitution and the legislation in force."

13.       Article 98 will be entitled "Taking up of office". The first three paragraphs will be deleted.

14.       In Article 102 of the Constitution, "Acts of Government", the following amendments and additions will be made:

a)         In paragraph (1), incorporate the word "ordinances" after the word "issues".

b)         After paragraph (1), a new paragraph (2) will be inserted, reading as follows:

"(2) The ordinances shall be issued in accordance with Article 106(2)."

c)         Previous paragraphs (2) and (3) become paragraphs (3) and (4) respectively.

15.       Article 104 will read as follows:

"The Government shall supply Parliament with all the information and documents that it and its committees and individual members may request."

CHAPTER VIII

RELATIONS BETWEEN

PARLIAMENT AND GOVERNMENT

16.       Article 106 will read as follows:

Article 106

Positive motion of no confidence

1)         Parliament may carry a motion of no confidence in the Prime Minister if initiated by at least one-quarter of the members.

2)         Parliament may express its opposition to the Prime Minister only by electing a successor by the majority of the members and by asking the President of the Republic to dismiss him.  The President must accede to this request and appoint the person elected.

3)         The motion of no confidence shall not be examined until at least 3 days have elapsed from the date when it was brought before Parliament.

17.       An new Article 106(1) will read as follows:

Article 106(1)

Committal of responsibility by the Government

1)         The Government may engage its own responsibility before Parliament for a programme, a general policy declaration or a bill.

2)         The Government shall be dismissed if a motion of no confidence tabled by at least one-quarter of the members within three days following the tabling of the programme, general policy declaration or bill, is passed by the majority of the elected members.

3)         If the Government is not dismissed in accordance with paragraph (2), the bill tabled shall be deemed passed, and the Government shall be under obligation to implement the programme or general policy declaration.

4)         If the motion of no confidence is passed, the President may dissolve Parliament within 21 days. The right of dissolution shall expire as soon as Parliament has elected a new Prime Minister by the majority of the elected members.

18.       A new Article 106(2) will read as follows:

Article 106(2)

Delegation of legislative power

1)         The Government may ask Parliament, with a view to implementing its programme of activities, to authorise it to adopt ordinances in a given sphere, for a certain period of time.

2)         Parliament grants the Government the authorisation provided for in paragraph (1) above by passing an organic law of authorisation, which must state the sphere and time limit in which such ordinances are to be issued.

3)         Ordinances shall enter into force at the time of their publication. They are not to be promulgated. The bill approving the ordinance or ordinances shall be submitted to Parliament under the terms established by the law of authorisation.  Any failure to comply with the time limit shall result in the ceasing of the effects of the ordinance. If Parliament does not reject the bill approving the ordinances, the latter shall remain in force.  Following the expiry of the time limit mentioned in paragraph (2) above, the ordinances may be repealed, suspended or modified only by law."

TITLE IV

NATIONAL ECONOMY AND PUBLIC FINANCE

19.       Article 131 "National public budget" of the Constitution will be supplemented by a new paragraph 4, reading as follows:

"4)        Any legislative initiative or amendment resulting in an increase or a reduction in budgetary income or borrowing, or an increase or reduction in budget expenditure, may be adopted only after such increases or reductions have been agreed to by the Government."

Paragraphs 4 and 5 will become paragraphs 5 and 6 respectively.

TITLE V

CONSTITUTIONAL COURT

20.       Article 135 a) and f) will read as follows:

"a) enforces on notification constitutional review of laws and orders of Parliament, Presidential decrees, ordinances and decisions of Government, as well as international treaties endorsed by the Republic of Moldova.

[…]

f) ascertains the circumstances justifying the suspension from office of the President of the Republic of Moldova or the interim office of the President of the Republic of Moldova."

TITLE VI

REVISING THE CONSTITUTION[30]

21.       Articles 142 and 143 will be supplemented as follows:

Article 142

Limits of revision

1)         The provisions regarding the sovereignty, independence and unity of the State, the provisions set forth in Articles 1 to 6 above, as well as those regarding the permanent neutrality of the State may be revised only by constitutional referendum by a majority vote of registered voting citizens.

2)         No revision shall be allowed if it results in the suppression of the fundamental rights and freedoms of citizens or of the guarantees of those rights and freedoms.

3)         The Constitution may not be revised in a state of national emergency, martial law or war.

Article 143

The Law on Constitutional revision

1)         Parliament must vote on any revision of the Constitution within[31] no more than eighteen months following the date on which the draft was submitted. The law must be passed by a two-thirds majority of the members.

2)         The law on constitutional revision shall enter into force 100 days after the passing of the law by Parliament and the publication of the draft in the Monitorul officiel, unless a constitutional referendum is initiated by 200,000 citizens or by the President of the Republic within the aforementioned period.  If such a step is taken, Parliament, having first obtained the opinion of the Constitutional Court, shall organise the constitutional referendum in accordance with the law.

3)         If the constitutional referendum provided for in Article 142 (1) yields a negative result, the law submitted to the referendum shall be deemed null and void.

4)         If the constitutional referendum provided for in paragraph 2 above yields a negative result, the law submitted for approval shall be deemed passed.

*   *   *

Done in Chisinau on 27 May 2000 in triplicate in the presence of:

Giorgio MALINVERNI

Chairman of the Joint Committee

Mihai PETRACHE (signature)

Anatol PLUGARU (signature)

Maria POSTOIKO

Eugen RUSU (signature)

Vladimir SOLONARI (signature)

xi.        Opinion on the Constitutional amendments concerning legislative elections in Slovenia (CDL-INF (2000) 13) based on the comments of Messrs La Pergola, van Dijk and Bartole, adopted by the Commission at its 44^th Plenary Meeting (Venice, 13-14 October 2000)

By letters of 21 July and 7 September 2000, the Prime Minister of the Republic of Slovenia, Dr Andrej Bajuk, addressed to the European Commission for Democracy through Law the question whether amendments introduced to the Constitution of Slovenia concerning provisions on Parliamentary elections, by which a proportional electoral system with a threshold of 4% for access to the distribution of seats in the National Assembly is established, is compatible with European democratic traditions and standards. The request indicated in this respect that these amendments conflict with the decision of the people as expressed in a referendum and decisions of the Constitutional Court.

The Commission examined the factual and legal background of the request for an opinion (see the summary of facts in DocCDL(2000)61 and the Prime Minister’s letter of 7 September 2000) on the basis of the report by Messrs Antonio La Pergola, Pieter van Dijk, Sergio Bartole, Rapporteurs at its 44^th Plenary Meeting, 13-14 October 2000, in the presence of: Mrs Barbara Brezigar, Minister of Justice, Mr Jelko Kacin, Chairman of the Foreign Affairs Committee of the National Assembly, Mrs Tina Bitenc Pengov, Deputy Director and Acting Head of the Secretariat of Legislation and Legal Affairs of the National Assembly, Mr Miro Cerar, Constitutional Adviser to the National Assembly and Mr Klemen Jaklic, Legal Councillor to the Prime Minister.

The Commission notes that the question raised by the Prime Minister concerns the relationship between the people’s power, exercised in accordance with the Constitution (Article 90), and the National Assembly’s power to amend the Constitution.

By its decision of 8 October 1998 the Constitutional Court found that the proposal for a majoritarian electoral system submitted to referendum on 8 December 1996 had been approved. Its also concluded that the National Assembly was bound to adopt, within a reasonable time, a law regulating the electoral system in accordance with the results of the referendum. The Constitutional Court further stated that this obligation is not only political and ethical but also legal. In this respect the Constitutional Court clearly recalled that despite its character as “preliminary” (because no specific norms were adopted but only a “legislative concept”), the referendum was clearly binding. The National Assembly should not therefore either adopt a law whose contents would be incompatible with the said concept or unduly delay the adoption of a law. Otherwise, the citizens’ constitutional right as enshrined in Article 90 of the Constitution would be theoretical or illusory.

Despite the clear indication to the legislator by the Constitutional Court, the National Assembly did not pass the electoral law.

Undoubtedly, the situation as described above amounts to a constitutional impasse that may hinder the effective operation of democratic institutions. On 25 July 2000, in reaction to this situation, the National Assembly passed a constitutional amendment establishing a proportional electoral system with a threshold of  4% for access to the distribution of seats in the National Assembly.

The Commission finds that it is the duty of both the legislator, representing the sovereign people, and the Constitutional Court, the guardian of the Constitution, to ensure that constitutional institutions of the State are able to perform their duties and are not exposed to a risk of paralysis. It understands, on the basis of the second letter by the Prime Minister of Slovenia, that it is not required to suggest alternative solutions, if there were any, to the impasse described above, but rather to consider whether the amendments to the Constitution adopted on 25 July 2000 represent a solution compatible with European democratic standards.

In this respect the Commission recalls that adopting a proportional electoral system even with a threshold is certainly not in conflict with European democratic standards. Moreover, the constitutionalisation of the choice of the electoral system, although not very frequent, is followed in several European countries (e.g. Austria) and cannot be said to be incompatible with these standards either.

The Commission further observes that the National Assembly enacted the Constitutional Act amending Article 80 of the Constitution pursuant to Article 169 of the Constitution. In doing so, the National Assembly acted as a constitution making power (“constituant”), in accordance with the procedure provided by the Constitution of the Republic of Slovenia for its own amendment, and not as common legislator. From this perspective, there is no conflict between the decision adopted by referendum and the constitutional amendments of 25 July, as the latter, being of constitutional value, obviously prevails and takes precedence over the decision of “preliminary” legislative character adopted by the referendum.

It can of course be argued that the referendum is the manifestation of popular sovereignty and that, therefore, the validity of decisions taken by referendum can never be challenged in a democratic society. However this approach is nowadays hardly tenable. Most European Constitutions, including the Constitution of Slovenia, lay down the procedure for the referendum and define its possible scope. Moreover, there is a clear tendency in Europe today to make more frequent use of referendum as an instrument of direct democracy for legislative purposes and in this respect the referendum is subject to a control as to its compatibility with the Constitution. Consequently, both the procedural and substantive aspects of the people’s action designed to introduce new law or remove existing law are clearly subjected to constitutional scrutiny[32]. Definitely, and notwithstanding their undisputed political value, decisions taken by legislative referendum are not beyond the reach of the Constitution.

This is all the more so as the referendum cannot be regarded as an exercise of sovereign power by the people, but rather it is the expression of the will of the people by a means regulated within the framework of the Constitution. This is true also for constitutional systems that establish a co-habitation of popular and parliamentary sovereignty, as is the case of Slovenia where the people are not excluded from the process of constitutional revision (Article 170 of the Constitution of the Republic of Slovenia). The Commission finds that there is no common European standard according to which the results of any referendum of whatever nature are binding upon the constituent power even in the absence of a constitutional provision. Consequently, the results of the referendum of 8 December 1996 should not prevent the National Assembly from exercising its constitution making powers under the Constitution.

The Commission finally notes that the National Assembly is politically responsible to the people for deciding to amend the Constitution and constitutionalise the choice of the proportional electoral system. In this respect the fact that legislative elections are to be held in the near future and the sovereign people will have the opportunity to manifest its approval or disapproval of the National Assembly’s stand is in itself a guarantee for democracy.

In view of the fact

-           that there was a need to react urgently, in view of the forthcoming elections, to the risk of paralysis of the democratic functioning of the State,

-           that the National Assembly acted as a constitution making body whereas the referendum of 8 December 1996 was of “preliminary” legislative character,

-           that the Constitutional amendment was enacted in compliance with the Constitution, and

-           that the National Assembly’s responsibility is engaged at the forthcoming legislative elections,

The Commission finds that the National Assembly’s reaction to the risk of a constitutional impasse, i.e. the adoption of amendments to the Constitution adopted on 25 July 2000, in strict compliance with the latter’s relevant provisions, is not in conflict with European democratic standards.

The Commission would further suggest that the National Assembly considers in the near future which legislative and possibly constitutional amendments are required to avoid the risk that similar situations arise again in Slovenia. They recall in this respect that on several occasions constitutional bodies in other European countries have been confronted with a similar risk. In a judgment given on 18 January 1995 (Gazetta Ufficiale, Prima Serie n° 3; Bulletin of Constitutional Case-law ITA-95-1-001), the Constitutional Court of Italy, seized with the question of admissibility of a referendum to abrogate a set of electoral provisions, laid down some principles that should be followed when it comes to deciding by referendum issues affecting the functioning of constitutional institutions. The Italian Constitutional Court observed that it might be acknowledged that the Parliament has a constitutional duty to co-operate, in that if the outcome of the referendum is in favour of repealing the existing legislation, the Parliament has to introduce (on its own initiative) legislation to comply where necessary with the wish of the people as expressed in the referendum. However, if after the referendum the legislator fails to introduce new legislation to fill the legal vacuum or amend the electoral provisions, there would be no effective remedy to oblige the Parliament to enact a law and the situation amounts to a crisis in the functioning of representative democracy. To avoid this, a referendum affecting the rules of functioning of constitutional bodies should only be admitted if the rules that remain in force after the referendum allow the constitutional body concerned to function without any further legislative action being required.

xii.       Opinion on Constitutional Referendum in Ukraine, based on comments by Messrs Bartole, Batliner, Malinverni, Steinberger and Svoboda, (CDL-INF (2000) 11), adopted by the Commission at its 42^nd Plenary Meeting (Venice, 31 March-1 April 2000)

I.          Introduction

On 15 January 2000 the President of Ukraine adopted a decree on announcement of an All-Ukraine referendum on the People’s Initiative. This decree provides for the holding of a referendum on 16 April 2000. Six questions will be put to the people at this referendum, aiming at amendments to the Ukrainian Constitution. The text of the decree appears in documentCDL(2000)4 rev.

By letters dated 28 January 2000 and 31 January 2000 the President of the Parliamentary Assembly, Lord Russell-Johnston, asked the Venice Commission to give an opinion on the constitutionality of the referendum and on the proposed constitutional changes. On 31 January 2000, the Secretary General of the Council of Europe, Mr Walter Schwimmer, also asked the Commission to give an opinion on the legal aspects of the referendum.

The present opinion was adopted by the European Commission for Democracy through Law at its 42^nd Plenary Meeting, 31 March 2000, on the basis of contributions by Messrs Bartole, Batliner, Malinverni, Steinberger and Svoboda.

On 27 March 2000 the Constitutional Court of Ukraine adopted its decision on the constitutionality of the referendum. This decision was made public on 29 March 2000. On the same day the President adopted a decree implementing the decision of the Court. For time reasons, the Commission could only take this decision into account in the conclusions of its opinion.

II.         Legal background of the referendum

The main rules on referendums are contained in Chapter III of the Ukrainian Constitution on elections and referendums:

Article 69

The expression of the will of the people is exercised through elections, referendum and other forms of direct democracy.

Article 72

An All-Ukrainian referendum is designated by the Verkhovna Rada of Ukraine or by the President of Ukraine, in accordance with their authority established by this Constitution.

An All-Ukrainian referendum is called on popular initiative on the request of no less than three million citizens of Ukraine who have the right to vote, on the condition that the signatures in favour of designating the referendum have been collected in no less than two-thirds of the oblasts, with no less than 100 000 signatures in each oblast.

Article 73

Issues of altering the territory of Ukraine are resolved exclusively by an All-Ukrainian referendum.

Article 74

A referendum shall not be permitted in regard to draft laws on issues of taxes, the budget and amnesty.

Of particular importance are also Articles 92.20 and 106.6:

Article 92

The following are determined exclusively by the laws of Ukraine:

……

the organisation and procedure for conducting elections and referendums;

……

Article 106

The President of Ukraine:

……

designates an All-Ukrainian referendum regarding amendments to the Constitution of Ukraine in accordance with Article 156 of this Constitution, proclaims an All-Ukrainian referendum on popular initiative;

……

The most pertinent provisions of Chapter XIII of the Constitution on Introducing Amendments to the Constitution are the following:

Article 154

A draft law on introducing amendments to the Constitution of Ukraine may be submitted to the Verkhovna Rada of Ukraine by the President of Ukraine, or by no fewer National Deputies of Ukraine than one-third of the constitutional composition of the Verkhovna Rada of Ukraine.

Article 155

A draft law on introducing amendments to the Constitution of Ukraine, with the exception of Chapter I – “General Principles,” Chapter III – “Elections. Referendum,” and Chapter XIII – “Introducing Amendments to the Constitution of Ukraine,” previously adopted by the majority of the constitutional composition of the Verkhovna Rada of Ukraine, is deemed to be adopted, if at the next regular session of the Verkhovna Rada of Ukraine, no less than two-thirds of the constitutional composition of the Verkhovna Rada of Ukraine have voted in favour thereof.

Article 156

A draft law on introducing amendments to Chapter I – “General Principles,” Chapter III – “Elections. Referendum,” and Chapter XIII – “Introducing Amendments to the Constitution of Ukraine,” is submitted to the Verkhovna Rada of Ukraine by the President , or by no less than two-thirds of the constitutional composition of the Verkhovna Rada of Ukraine, and on the condition that it is adopted by no less than two-thirds of the constitutional composition of the Verkhovna Rada of Ukraine, and is approved by an All-Ukrainian referendum designated by the President of Ukraine.

The repeat submission of a draft law on introducing amendments to Chapters I, III and XIII of this Constitution on one and the same issue is possible only to the Verkhovna Rada of Ukraine of the next convocation.

Article 157

The Constitution of Ukraine shall not be amended, if the amendments foresee the abolition or restriction of human and citizens’ rights and freedoms, or if they are oriented toward the liquidation of the independence or violation of the territorial indivisibility of Ukraine.

The Constitution of Ukraine shall not be amended in conditions of martial law or a state of emergency.

Law N^o 1286-XII on All-Ukraine and Local Referendums of 3 July 1991 was adopted before Ukraine became an independent state. This law was amended in 1992 in order to change the terminology and to modify certain provisions on local referendums in the Republic of Crimea. The law was never brought into conformity with the Constitution of Ukraine adopted on 28 June 1996. Its applicability is therefore governed by the transitional provisions of the Ukrainian Constitution:

Chapter XV

Transitional Provisions

Laws and other normative acts, adopted prior to this Constitution entering into force, are in force in the part that does not contradict the Constitution of Ukraine.

On 11 January 2000 the Parliament of Ukraine adopted a law (Law no. 1356-XIV) introducing a ban on all referendums due to the fact that there "was a difficult socio-economic situation in the country and no sufficient legislative basis for organising a referendum". The President refused to sign this law and returned it to the Parliament on 26 January 2000. In his reply to the Parliament the Head of State said that referendum is a sovereign right of the people of Ukraine that cannot be restricted.

III.       The developments in Ukraine leading to the referendum

The proposed referendum is a referendum at the people’s initiative for which more than three million signatures have been collected. Article 72.2 of the Constitution provides for a referendum on popular initiative on the request of no less than three million citizens and the law on All-Ukraine and Local Referendums provides a procedure for collecting signatures. The regularity of the procedure of collecting signatures in this case has been challenged by opponents of the referendum. It is obviously not up to the Commission to take a position in this respect.

The proposed referendum can only be understood in the context of the current political conflicts in Ukraine. The Parliament (the Verkhovna Rada) has been perceived by many as not being able or willing to adopt the legislation necessary to implement reforms in the country. It has recently split into two parts, a majority broadly favourable to the President and the government and a minority headed by the previously elected speaker. Both parts of the parliament have even held separate sessions and the question whether the election of a new speaker by the new majority is valid or not is contested between both sides.

IV.       The legal nature of the referendum

In general, two main types of referendums can be distinguished: consultative or binding. The binding referendum can relate to the Constitution or to legislation. With respect to the referendum on popular initiative, the Ukrainian Constitution unfortunately is silent as to its legal nature, although the Commission, in its Opinion on the Draft Constitution of Ukraine (CDL-INF (96) 6) had recommended that the possible subject matters of people’s initiatives be clearly defined.

The present referendum relates to the Constitution and not to legislation. It is less clear whether it is binding or not. During contacts with the Secretariat of the Commission the Minister of Justice of Ukraine, Ms Stanik, has clearly stated that the result of the referendum would have to be confirmed by a decision of the Verkhovna Rada. By contrast, the President of Ukraine indicated to the rapporteurs of the Parliamentary Assembly that the results of the referendum would be directly binding.

The text of the presidential decree is not absolutely clear in this respect. In the introductory paragraph mention is made both of “consulting the opinion of Ukrainian citizens on a range of important questions that could influence the future of the country” and of “introducing the corresponding changes to the Constitution of Ukraine”. With respect to the various questions, it is clear that question 5 on the introduction of a bicameral parliament cannot be directly binding since no detail is given as to the composition and powers of such a second chamber. By contrast, other questions contain the precise text of an amendment to the constitution and therefore could theoretically be considered as binding. The wording of the questions (“Are you in favour…”, “Do you support…”) leaves however the possibility of a consultative character open.

Having regard to the fact that it would seem highly unusual to combine directly binding and purely consultative questions in the same referendum without a clear distinction between both types of questions, it would seem more appropriate to assume that the referendum is conceived as having a consultative character. Nevertheless, the fact that even for (admittedly foreign) constitutional scholars it is not very obvious which legal consequences the referendum is supposed to have is worrying and one wonders whether the citizens of Ukraine will know exactly what they are voting on.

Since the purely consultative character of the referendum is not uncontested, it is important to examine whether there would be a constitutional basis in Ukraine for a directly binding character of the referendum. As stated above, Article 72.2 does not clarify the legal nature of referendums on popular initiative. Read in isolation, it might therefore be interpreted as providing a basis also for a referendum directly amending the constitution.

Nevertheless, other provisions of the Constitution clearly show that Article 72.2 cannot be used as the basis for a constitutional referendum.

Chapter XIII on introducing amendments to the Constitution of Ukraine contains detailed provisions on the procedures required for amending the Constitution. These procedures clearly reflect the conviction of the authors of the Constitution that the Ukrainian Constitution should be a rigid constitution which cannot be amended very easily but only on the basis of procedures implying sufficient guarantees. Article 156 mentions the possibility of constitutional referendums, but only with respect to certain chapters of the Constitution and only to confirm a decision already taken by the Verkhovna Rada by a two-thirds majority in favour of a constitutional change.

With the exception of question 6, the proposed changes relate to Chapter IV of the Constitution, which is not mentioned in Article 156, and no decision has been taken by the Verkhovna Rada in favour of a constitutional change. Article 156 therefore cannot be used as the basis for the present referendum. No other article of the Constitution refers to the possibility of amending the Constitution by a referendum. Having regard to the detailed rules on amending the Constitution and the clear tendency to make constitutional amendments difficult and subject to guarantees, the possibility of amending the Constitution directly by a binding constitutional referendum would have to be provided for expressly in the text of the Constitution.

Under the Constitution of Ukraine, it is therefore not possible to give the present referendum a legally binding character. The referendum does not have, and may not have, the character of a binding constitutional referendum.

Therefore, only the possibility of a consultative referendum remains in the present case. Nevertheless, even this possibility is not at all certain. A consultative referendum is not legally irrelevant. By giving the people the possibility to express their opinion, pressure is put on the elected bodies to abide by the will of the people. Therefore the possibility to have recourse to a consultative referendum has an important influence on the balance of powers between the State organs.

Both in its opinions on the draft Constitution of Ukraine (CDL-INF (96) 6) and on the Constitution of Ukraine (CDL-INF (97) 2) the Commission has interpreted Article 72.2, although without detailed analysis for which there was no reason at the time, as relating to the legislative referendum. This would seem to be the most logical interpretation of this provision. A consultative referendum makes sense if the State organ, be it the President, the government or the Parliament, asks the population to give its opinion on a specific issue. Here the referendum was not initiated by a State organ but by the population itself. It would appear highly unusual and would probably be without precedent elsewhere if the result of an initiative by the people would only be that the people have to be consulted and cannot decide directly.

The Commission would therefore tend to stick to its previous interpretation, that Article 72.2 refers to the legislative referendum. Nevertheless, it would be desirable for the Ukrainian Constitutional Court to give an interpretation of this article. The issue whether the individual questions put to referendum may be submitted ratione materiae to a consultative referendum will be examined below.

It is irrelevant whether the Law on all-Ukraine and local referendums gives a wider scope to the possibility of holding referendums. The Constitution prevails over ordinary laws (see Article 8.2 of the Constitution) and is moreover even the more recent law.

To sum up, the Commission is of the opinion that the present referendum does not have, and may not have, the effect of directly introducing amendments to the Ukrainian Constitution and that it appears highly questionable whether the referendum is admissible as a consultative referendum.

V.        The regularity of the referendum

It is quite obvious, and this is confirmed by Article 92.20 of the Constitution, that in addition to the constitutional rules, rules on the organisation and procedure for the referendum are required. The Law on All-Ukraine and Local Referendums of 1991/1992 contains such rules. Certain articles are however obviously in contradiction with the Ukrainian Constitution and therefore no longer applicable (cf. Transitional Provision 1 of the Constitution). Until now, no decision of the Constitutional Court has been taken to decide which provisions of this Law are still applicable. It may well be that so many of its provisions are based on an entirely different constitutional order that it appears problematic or even impossible to conduct a referendum on its basis. Legal certainty as a main element of the rule of law, enshrined in particular in Articles 1 and 8.1 of the Ukrainian Constitution, requires that all major issues pertaining to referendums are clearly defined by Law.

It is not up to the Venice Commission but only to the Constitutional Court of Ukraine to decide to which extent this Law is still applicable and whether under these circumstances the holding of the referendum appears possible. One of the elements the Constitutional Court might take into account is the fact that the Verkhovna Rada which, according to Article 92.20, has to adopt the law setting out the rules on the organisation and procedure of referendums, is of the opinion that such a legal basis does not exist at the moment. It should however be underlined that the Verkhovna Rada is then under an obligation to adopt such a law as soon as possible.

With respect to the text of the presidential decree, it is striking that the President has added a preamble to the text of the question which strongly suggests that a positive reply should be given to those questions. This would be inadmissible in other countries.

Constitutionality of the proposals submitted to referendum and their compatibility with international standards

The present opinion examines the various proposals submitted to referendum both from the point of view of the Ukrainian Constitution and of international standards. To the extent that amendments to the present Constitution are proposed, there may be questions of compatibility of the proposals with other non-amended parts of the Constitution but the question of constitutionality becomes moot once the proposals are adopted. Nevertheless, the issue remains whether such proposals are compatible with international standards, in particular whether a sufficient balance of powers would remain if the proposals were adopted.

Question 1

The first question contains in reality two questions. Citizens are asked to pronounce themselves at the same time

on the question whether the present Verkhovna Rada enjoys their confidence;

on a proposal to amend the Constitution introducing the possibility for the President of Ukraine to dissolve the Verkhovna Rada in the case of such a vote of no confidence.