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Strasbourg,
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Diffusion
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CDL-RA (2001)001
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EUROPEAN COMMISSION FOR DEMOCRACY
THROUGH LAW
(VENICE COMMISSION)
******
ANNUAL REPORT OF
ACTIVITIES FOR 2001
Venice
Commission Secretariat
Council
of Europe – DGI
F-67075
Strasbourg
Cedex
Tel
: + 33 388 41 22 05
Fax : + 33
388 41 37 38
e-mail : venice@coe.int
Website : www.venice.coe.int
TABLE OF
CONTENTS
Statement by Mr Antonio La Pergola, President of
the Venice Commission to
the Committee of Ministers of the Council of Europe (22 May 2001)...............................................
Membership ..................................................................................................................................
I. Activities..........................................................................................................................
Introduction
......................................................................................................................
Activities of the European
Commission for Democracy
through Law in the field of
democratic reform
1. Co-operation with Albania ....................................................................................
2. Co-operation with Armenia....................................................................................
3. Co-operation with Azerbaijan ................................................................................
4. Co-operation with Belgium.....................................................................................
5. Co-operation with Bosnia and Herzegovina ...........................................................
6. Co-operation with Croatia .....................................................................................
7. Co-operation with Georgia ....................................................................................
8. Co-operation with Hungary ...................................................................................
9. Co-operation with Korea.......................................................................................
10. Co-operation with Moldova ..................................................................................
11. Co-operation with Romania ...................................................................................
12. Co-operation with Slovakia....................................................................................
13. Co-operation with South Africa .............................................................................
14. Co-operation with Switzerland...............................................................................
15. Co-operation with “the former Yugoslav Republic of Macedonia” ..........................
16. Co-operation with Turkey .....................................................................................
17. Co-operation with Ukraine ....................................................................................
18. Co-operation with the Federal Republic of Yugoslavia ...........................................
19. Other constitutional issues ......................................................................................
France...................................................................................................................
Italy.......................................................................................................................
United States of America........................................................................................
II. Co-operation
between the Commission and the statutory organs of the
Council
of Europe, the European Union and International .........................................
Co-operation
with the Committee of Ministers ...................................................................
Co-operation
with the Parliamentary Assembly ..................................................................
Co-operation
with other bodies of the Council of Europe....................................................
- Congress
of Local and Regional authorities of Europe.............................................
-
Council
of Europe Development Bank....................................................................
Co-operation
with the European Union ..............................................................................
Co-operation
with the OSCE ...........................................................................................
Co-operation
with the United Nations ...............................................................................
III. Studies of the Venice
Commission ................................................................................
1.
Report on
the judgments of constitutional courts and the
execution thereof ...................................................................................................
2.
Guidelines
on the financing of political parties..........................................................
3. Guidelines for constitutional
referendums at national level ........................................
4. Opinion on the preferential treatment
of national minorities by their kin-State
..........
IV. Centre on Constitutional Justice ...................................................................................
V. The
UniDem (Universities for Democracy) Programme ..............................................
- “Democracy,
rule of law and foreign policy”
(Skopje, 4-5 October 2001)..............................................................................................
- “The constitutional implications of
accession to the European Union”
(Ankara, 9-10 November 2001)........................................................................................
Preparation
of forthcoming UniDem Seminars ....................................................................
UniDem
Campus for the legal training of the civil service......................................................
APPENDICES
Appendix I - List of Members ...................................................................................................
Appendix II - Offices and composition of the
Sub-Commissions ....................................................
Appendix III - List of Meetings .....................................................................................................
Appendix IV - List of Publications .................................................................................................
Appendix V – List of Information documents..................................................................................
PRESENTATION OF THE VENICE COMMISSION’S
REPORT OF ACTIVITIES FOR 2001
Statement by
Mr Antonio La Pergola, President of the Venice Commission,
to the Committee of Ministers (22
May 2002)
Mr Chairman, Ambassadors, Ladies and Gentlemen,
I.
While I have the honour and pleasure of
addressing you every year with my Annual Report of Activities, this is the very
first time that I do so as the President of an Enlarged and not a Partial
Agreement. The Russian Federation joined
our Commission earlier this year. For the first time in the history of the
Council of Europe, a Partial Agreement has succeeded in attracting within its
circle all the member States. All of them have joined us on a completely
voluntary basis. It is a deep satisfaction for us to know that they wish to
take part in our work. You have drawn the natural conclusion from this fact,
when adopting the new Statute, which rests on an Enlarged Agreement. Now an
Enlarged Agreement not only means a new dimension of our membership. It also
calls for fresh responsibilities that we must face as we bring into focus the
goals which an expert team of lawyers like ours can pursue in line with the
far-reaching appeal of the whole Council of Europe. A new perspective has been
disclosed to the Commission. It can spread within its remit the values of the
Council of Europe even beyond our continent. This will certainly be a topic for
my future interventions before you.
Meanwhile,
let me express my appreciation to you for having adopted the revised Statute.
There are many welcome changes. Our new Statute is more functional, more
coherent and more in keeping with the practice of the Commission as it has
developed throughout the years. The energising principle of our work, and the
chief reason for such success as we have deserved in your own eyes and in the
Council of Europe at large, is of course our independence of judgement. True
enough, the impartiality of an expert who delivers advice can be formally
guaranteed in more ways than one. We had made proposals in this regard, you have left the system as it stood. Our members
are each appointed by the Government of a member state. We can be confident,
nevertheless, that our treasured value of independence will be effectively
preserved by the wisdom shown by your Governments when they choose our members
as well as by the code of behaviour practised by all those who sit on our Commission,
fully aware as they have always been that they belong to a body which does not
seek or receive any instructions.
II.
Our written annual report gives you an
overview of our wide-ranging activities and I can only highlight a few during
this presentation. Let me start with the Balkans. Not only were our activities
there particularly important but the area is also a focus for your attention, a
few weeks after Bosnia’s accession to the Council of Europe and in view of the
admission of the Federal Republic of Yugoslavia, now being transformed into
Serbia and Montenegro.
What was once Yugoslavia is now an area fractured into several states, but these entities
are coming as an entire region within the orbit of the Council of Europe. Such a result marks the progress achieved.
Commissioner Patten noted in a recent speech before the Western Balkans
Democracy Forum in Thessaloniki that the Balkans are today in a better shape
than they have been for a decade and that the situation has improved compared
to only two years ago, although a good deal of work remains to be done.
The Venice Commission has been involved
in many of these positive changes.
·
In the Federal Republic of Yugoslavia we have provided legal
advice to EU High Representative Mr Solana, at his request, during his
successful efforts to bring about an agreement of principle on the new shape of
the Federation. We remain at his disposal if our services are required for the
preparation of the constitutional charter and the subsequent revision of the Republican
constitutions.
- In
Kosovo we were fully involved last year in the drafting of the
Constitutional Framework for Provisional Self-Government in Kosovo, at the
request of the Special Representative of the Secretary General of the
United Nations, Mr Haekkerup.
- Our
contribution to the drafting of the Ohrid Framework Agreement in the Former Yugoslav Republic of
Macedonia, requested by EU Special Representative
François Leotard, has been, may I say, of particular importance. This
Agreement is a rare example of the early peaceful resolution of a conflict
through political and legal means and our Commission is proud of having
contributed to this achievement.
These three activities also very clearly show that
the contribution we can make is increasingly recognised not only within the
Council of Europe but also by international organisations and in particular by
the European Union.
Such co-operation with international bodies has from
the beginning been typical of our activities in Bosnia. There we have over the years tried, in close
co-operation with the Office of the High Representative, to strengthen within
the limits of the Constitution the powers conferred to institutions at the
State level. The commitments entered into by Bosnia upon accession envisage Venice Commission
assistance and we look forward to increasing co-operation with the domestic
institutions of Bosnia and Herzegovina which are finally taking over their
responsibilities as befits an independent country and a member state of the
Council of Europe.
In Croatia we have been working for a number of years with the
authorities there on a revision of the legislation on minorities. Unfortunately
this co-operation has not yet resulted in the adoption of a law which would
accord with our recommendations and the Commission is anxious to see the long
work done brought to fruition.
As regards the Caucasus I think I can be
fairly brief since you are yourselves following developments there in the
framework of the Ago group. We have co-operated very closely with Armenia
in order to revise its Constitution. The text resulting from this co-operation
seems to us well balanced and we hope that the referendum prescribed for its
final adoption will not be postponed for too long. As you know, the initiative
for revising the Constitution was taken by the Armenian authorities of their
own free will and not by way of a previous commitment towards the Council of
Europe. However, the proposed constitutional amendments are helpful, if not
essential, to enable Armenia to fulfil the commitments it has undertaken. In addition, we are
involved together with ODIHR in the revision of the electoral law and a meeting
on this subject took place last week in Erevan as a parallel event to the visit of your group.
With respect to Azerbaijan, co-operation on the electoral code should soon be resumed. We have
also provided a number of opinions on various draft laws in the constitutional
field and are expecting more information on the follow up to these opinions. As
concerns the Law recently passed on the Ombudsman we are gratified to note that
it has taken into account our comments.
We have established a fruitful and
long-standing co-operation with Georgia
as well. Its parliament has asked us to give an opinion on the proposal by President
Shevardnadze to amend the Constitution, and move from an American type of
presidency to a French style semi-presidential government. We are also hoping
to resume work on the status of Abkhazia, although conditions in this respect
seem difficult at the moment.
The geographical scope of our activities has not of
course been limited to the Balkans and the Caucasus. We have, for example, given a number of opinions
on Ukraine and quite recently another on the status of
Gagauzia in Moldova. We have no geographical preference or limitation.
We are glad to assist whichever country is interested.
It was thus for us a particular pleasure to receive
a request from the Grand Duchy of Luxemburg to deal with three draft laws which
will soon be submitted to the national parliament, on the creation of a
mediator, data protection and freedom of expression. We are honoured by this
mark of confidence from a Western European country, a founding member of both
the Council of Europe and the European Union, and any request from other
western European countries would be equally welcome. Our Commission was not set
up to deal exclusively with Central and Eastern Europe. Our
European constitutional heritage is shared by all our countries. They have all contributed to its growth. Each of them may want to tap on the resources
of this common wisdom and experience and we remain at the disposal of any member State of the Council.
III.
Of course, the Commission does not deal
exclusively with problems of particular countries. We also examine
transnational issues. One such case concerns our Guidelines for constitutional
referendums. Another is our study on the protection of national minorities by
their kin State. You all know the situation which gave rise to this opinion.
There were many concerns when we started to tackle this delicate issue. In the
end our report was welcomed by the interested countries and contributed towards
a consensual solution. Here is further proof that addressing a problem from a
legal angle may lead to a less emotional discussion and a clearer appreciation
of practical issues.
As every year we have continued our co-operation
with constitutional courts and courts of equivalent jurisdiction. When adopting
the new Statute you have acknowledged the importance of this co-operation by
setting up within the Commission the Joint Council on Constitutional Justice as
a joint body of members of our Commission and representatives of the
Constitutional Courts of the member States. This Council should give a further
boost to our already intensive activity, which may well develop in new and
significant directions.
While constitutional justice is a traditional
concern of ours, electoral law is at present our area of growth. We have
already observed over the years that the Commission is being increasingly asked
to comment on the drafting of electoral legislation. The Parliamentary Assembly
last year called for the establishment of a Council of Europe body dealing with
electoral issues and in March of this year the Parliamentary Assembly, the
Congress of Local and Regional Authorities of Europe and the Venice Commission
set up together the Council for Democratic Elections. This body will combine
the practical experience of the parliamentarians and local and regional
councillors with the more legal oriented approach of our Commission. It has
started its work by drafting a code of good practice in electoral matters.
ODIHR participates fully in the Council’s work, the European Parliament has
shown its interest and this is therefore an example of good co-operation not
only between various bodies within the Council of Europe but also between
international organisations.
The further development of the Council on Democratic
Elections will to a large extent depend on the human and financial resources
made available. We hope to get financial support from the European Union within
a Joint Programme, but allow me to say that we regard your help and
encouragement for this initiative as indispensable. Elections are so central to
the concept of democracy that neither the Council of Europe as a whole nor a
Commission for Democracy through Law can, in our view, afford to miss the
importance of this area of interest which is indeed a priority.
To sum up, I can in all fairness state that the Commission
has continued successfully its traditional activities throughout last year and
in the early months of the present one.
Moreover, we have substantially enhanced our role in the settlement of
ethno-political conflicts and we are developing, together with the
Parliamentary Assembly, and the Congress and ODIHR,
new activities in the field of electoral law.
We trust that we will continue to benefit from your support. We need it to achieve our goals, which are
the same as those of our mother Institution, the Council of Europe where we all
belong.
Thank you very much, Mr Chairman.
MEMBERSHIP
At the end of 2001, the Commission totalled 42 full
members,
3 associate members and 11 observers.
Members
During 2001 Armenia and Azerbaijan acceded to the Partial Agreement and nominated Mr
Gaguik Harutunian, President of the Constitutional Court of Armenia and Mr
Khanlar Hajiyev, President of the Constitutional Court of Azerbaijan as
members.
Ms Suzanna Stanik, Minister of Justice of Ukraine was
nominated member and Mr Volodymyr Vassylenko, Ambassador of Ukraine to the United Kingdom nominated Substitute member in respect of Ukraine replacing Mr Serhiy Holovaty and Mr Volodymyr Shapoval
whose mandates had expired.
Ms Maria Postoico, Chairperson of the Committee on Legal
Affairs, appointments and immunities, Parliament of Moldova was nominated
member and Mr Vasile Rusu, Deputy Chairperson, of the Committee on Legal
Affairs, appointments and immunities, Parliament of Moldova nominated
Substitute member in respect of Moldova replacing Mr Vladimir Solonari whose
mandate had expired.
In addition, Mr Henrik Zahle, Supreme Court Judge was
nominated member in respect of Denmark replacing Mr Asborn Jensen who resigned his mandate.
Mr Dimitri Constas, Professor, Panteio University, Director of the Greek Institute of International
Relations, was nominated substitute member in respect of Greece.
Associate members
The Federal Republic of Yugoslavia obtained associate member status and appointed Mr Vojin
Dimitrijevic, Director, Belgrade Human Rights Centre as its associate member on
the Commission and Mr Vladimir Djeric, adviser to the Minister of Foreign
Affairs, as substitute associate member.
Observers
Mexico obtained observer status and appointed Mr
Porfirio Munoz-Ledo, Permanent Observer of Mexico to the Council of Europe as
its observer on the Commission.
The full list of members, associate members and
observers by order of seniority is set out in Appendix I to this report.
Sub-Commissions
No new Sub-Commissions were set up during 2001.
The composition of the Sub-Commissions is set out in
Appendix II to this report.
ACTIVITIES
Introduction
The main task of the Commission is to promote democracy
and the rule of law. While many international bodies are dealing with the
protection of human rights, the Commission is fairly unique in addressing all
constitutional issues, including questions of the separation of powers and of
State structure. The relevance of its activities was impressively confirmed in
December 2001, when the Federation of Russia announced her decision to join the
Commission. For the first time in the history of the Council of Europe, a
Partial Agreement has thereby succeeded in attracting all Council of Europe
member states as members.
While the Commission is
not a political body but a technical body providing legal advice, the year 2001
confirmed that the legal expertise of the Commission can contribute to the
solution of political disputes. This concerns in particular ethno-political
disputes. The Commission addressed these both by means of a general study and
through activities related to particular conflicts. It was involved in the
drafting of the Ohrid Framework Agreement in the Former Yugoslav Republic of Macedonia, which has as its core a far-reaching constitutional
reform, and the Constitutional Framework for Provisional Self-Government in
Kosovo. Its Interim Report on the Constitutional Situation in the Federal Republic of Yugoslavia addressing in particular the issue of a possible
secession of Montenegro received a lot of attention by political
decision-makers. The seminar on the status of Abkhazia provided for the first
time in many years a framework for discussion between international, Georgian
and Abkhaz experts.
Traditionally the most
important activity of the Commission concerns constitutional reform. While no
entirely new Constitution was adopted in Europe in 2001, the Commission was fully involved in the
work for the revision of the Constitution of Armenia, which will hopefully be
adopted in 2002, and was asked by Romania to assist the planned constitutional reform in this
country. The Commission provided orientation for the revision of the
constitutions of the two Entities in Bosnia and Herzegovina. Several activities were devoted to the building up
of the State institutions in Bosnia and Herzegovina and the establishment of a court at the State level
in this country was mainly due to the persistent efforts of the Commission in
this direction.
Many countries co-operated
with the Commission when adopting organic or ordinary legislation in the
constitutional field. This concerned in particular Armenia and Azerbaijan as
the most recent Council of Europe member States, Bosnia and Herzegovina as the
State closest to accession to the Council of Europe and Croatia as a country
undertaking a particular effort of reform. Many of these laws concerned the
protection of minorities, a traditional focus of Commission activity which has
lost none of its relevance. Electoral law continued to gain in importance in
2001 and the Commission intends to expand its activities in this sector in
2002.
The studies prepared by
the Commission and the seminars organised by it do not have a theoretical
character but are part of a comprehensive approach. Its Report on the
Preferential Treatment of National Minorities by their Kin-State was the basis
of an understanding between Hungary and Romania on the previously highly controversial Hungarian Law
on Hungarians living abroad. The UniDem campus in Trieste contributes to the application of European standards
in South Eastern Europe by training officials from the region.
Last but not least the
Commission continues to devote a large amount of time and resources to
constitutional justice. It is proud to have contributed to the flourishing of
constitutional justice in Europe in the last decade when constitutional courts were
established throughout Central and Eastern Europe. It co-operates with constitutional courts and courts
with equivalent jurisdiction and furthers co-operation among them.
Constitutional courts play the key role in ensuring that human rights and
liberal democracy do not remain dead letters but are reflected in daily
practice. Co-operation with and among constitutional courts not only enhances
the technical quality of their work. It ensures that European courts work in a
common spirit reflecting the common values of the European constitutional
heritage.
This heritage is not
exclusive to Europe. While the Commission sees as its main task to uphold
constitutionalism throughout Europe, and particularly in the regions where these values
are not yet securely established, it notes with satisfaction that its
activities have attracted attention in other continents and is pleased to
contribute to democratic reform in countries such as South Africa.
Finally, it should be
underlined that the Commission does not and cannot act in isolation. The
political commitment of the countries concerned to respect and implement
Council of Europe standards and values is the precondition for any successful
activity. Co-operation with the organs of the Council of Europe, the
Parliamentary Assembly and the Committee of Ministers, but also the Congress of
Local and Regional Authorities of Europe and the Secretary General, was crucial
for many activities. Through a Joint Programme the European Commission provided
major financial support for a wide range of activities. Many of the most
important activities of the Commission were carried out at the request and in
close co-operation with international organisations such as the European Union,
UNMIK, UNOMIG or OSCE. The Commission therefore wishes to thank all these
partners and expects to pursue co-operation with them in 2002 and beyond.
I. Activities
of the European Commission for Democracy through Law in the field of democratic
reform
1. CO-OPERATION WITH ALBANIA
Draft Legislation on Parliamentary Investigative
Commissions
At the request of
the Parliament of Albania, Ms Suchocka and Messrs Bartole and Nolte drew up
opinions on the draft legislation on Parliamentary Investigative Commissions.
Their comments focused on aspects such as the composition of such commissions,
including the participation of special prosecutors and the political balance of
the commissions, their relationship to other institutions and branches of
power, and who had the right to create such commissions. According to the
Constitution, a request by one quarter of the members of Parliament was
sufficient to require the creation of a parliamentary investigative commission.
This in effect gave the opposition the right to create such commissions, a
right which should in the view of some of the rapporteurs be treated with caution
to ensure that it did not lead to excessive interference in the work of
government.
These opinions were approved by the Commission at its
47th Plenary Meeting and forwarded to the Albanian authorities.
2. CO-OPERATION WITH ARMENIA
Shortly after its accession to the
Council of Europe, Armenia also became a full member of the partial agreement on the Venice
Commission on 27 March 2001.
The Commission’s activities with Armenia in
2001 followed the lines set out in the programme of co-operation approved by
the Commission at its 45th Plenary meeting
(Venice, 15-16 December 2000.
Constitutional Reform
The
Commission followed the question of constitutional reform in Armenia through much of the
year. The Working Group set up by the Commission in 2000 continued to
co-operate closely with the Armenian authorities and meetings were held with
the rapporteurs and representatives of the Armenian authorities in Paris on 13-14 February
and in Strasbourg on 5-6 June. These meetings
built on the work already begun in 2000.
At the Commission’s 46th Plenary Meeting in
March, Messrs Harutunian and Batliner presented the work to date of the Working Group on
Constitutional Reform. They reported that
the Group had already carried out a great deal of work that had been very
effective, in terms of the amount of attention its observations had received
from the Armenian authorities. All the sections of the draft constitution had
been examined in minute detail. The human rights section had been substantially
improved and was compatible with international and European standards. For
example, the new draft constitution contained an explicit provision abolishing
the death penalty in peace time. It had opted for a diffuse system for
protecting human rights, with machinery for monitoring the constitution that
was both theoretical and practical.
Following the meeting of the Working Group held in
June, the rapportuers prepared an opinion on the constitutional revision in Armenia. They noted first of all that
most of the Working Group’s comments had been taken into account. The
constitutional revision had several major objectives: strengthening human
rights in the Armenian legal system; safeguarding the separation of powers;
strengthening the position of the legislative and judicial functions;
reinforcing the principle of local self-government. The following points needed
to be considered: the right of access to information should not be restricted
to citizens but recognised as a human right; the system of restrictions on and
derogations from human rights could be simplified; states of emergency and
martial law should preferably require parliamentary approval; the mayor of
Yerevan was still appointed rather than elected, which was incompatible with
the principles of local self-government. The Working Group had not examined the
preamble and transitional provisions of the Constitution. The Commission
adopted this opinion at its 47th Plenary Meeting and noted that it was
planned to submit the draft constitutional revision to a referendum in autumn
2001 or spring 2002. However, as at the end of 2001 no date had yet been set
for the referendum.
It may also be noted in this context that progress on
the draft law on the Ombudsman was frozen pending the necessary revision of the
Constitution. This was in order to avoid repeated changes to legislation on the
same subject, based first on the existing Constitution and then on the revised
version.
Electoral Code
Reform of the
Electoral Code was one of Armenia’s undertakings
when it joined the Council of Europe and it was in this context that the
Commission examined the Code. A meeting organised by the OSCE office in Armenia was held in Yerevan in February 2001
and was designed to highlight the problems that had been identified since the
last elections, and ways of simplifying monitoring procedures. Subsequently,
the Armenian authorities drew up draft amendments to the Code, which were
submitted to the Commission for examination in December 2001. Mr Owen, who had
prepared comments on the Code in 2000 and attended the meeting in February, and
Mr Mackie were designated as rapporteurs for the Commission. Work is continuing
on this matter in 2002.
Law on Political Parties
At its 47th Plenary Meeting, the Commission
considered the draft law on political parties in Armenia,
prepared by the Armenian People’s Party.
The draft covers practically all the issues connected with political
parties’ activities. Messrs Stoica and Vogel prepared individual comments but
came to the same conclusions, on the basis of the European Convention on Human
Rights. The main problems were as follows: depending on the proposed version,
parties had to be represented either in two-thirds of the country's geographical
sub-divisions or in all of them, which was excessive; the restrictions in cases
of a state of emergency were unclear; the ban on political parties that did not
secure a certain number of votes was inadmissible; the question of public
funding should be reviewed; the provision that parties not presenting lists of
candidates at national elections or with insufficient members could be
dissolved was very restrictive; and finally, the automatic loss of a
parliamentary seat in the event, inter alia, of the dissolution or
reorganisation of a party was unacceptable.
The
Armenian authorities indicated their intention to resubmit the text to the
Commission after its first reading in Parliament and the Commission is
following this question with interest.
Draft Civil Service Law
At its 48th Plenary Meeting, the Commission
adopted its opinion on the draft Civil Service Law of the Republic of Armenia, prepared at the request of the Armenian authorities.
The assessment was made against the background of the draft revised
Constitution, Mr Tuori, the Commission’s rapporteur, noted
that local self-government was now left outside the scope of the draft, in
accordance with the constitutional principle of local self-government
enunciated in the draft constitution, and that a new provision had been
inserted, guaranteeing that a person could only be deprived of the right to
occupy a civil service position through judicial proceedings. Some problems remained, notably with respect to the principles laid down
in Article 5 of the draft, which were not regulated more specifically by
further provisions; nor was there a reference to complementary provisions on
access to public information. With regard to the principles of democracy and
the rule of law, comments had already been made by other experts and were
therefore not repeated by Mr Tuori. In December, the Commission communicated to
the Armenian authorities a note concerning the compatibility of the draft Civil
Service Law with the current Constitution. The draft Law had not yet been
adopted at the end of 2001.
Ratification of the European Convention on Human
Rights
The Commission had given an opinion on
constitutional reform in Armenia (CDL-INF (2001) 17) and later was asked to
give a further opinion on the question of whether Armenia could ratify the
European Convention on Human Rights before the constitutional reform was
carried out.
In its
opinion, adopted at the 49th Plenary Meeting, the Commission noted
that Article 6 of the Armenian Constitution which foresees that the Constitution
should be amended before ratification of an international treaty containing
provisions which could be in “contradiction” to the Constitution, should be
interpreted as making reference to a strict incompatibility between the two
provisions in each text. The
Constitution seems to reveal several “contradictions” which have been examined.
A
contradiction seems to exist insofar as the European Convention on Human Rights
guarantees the enjoyment of fundamental rights and freedoms “to all individuals”,
whereas the Armenian constitution reserves several of these rights (in
particular the right to form political parties, the freedom to hold meetings,
the right to vote, the right to education and the right to own property) for
citizens only. However, a real
contradiction can only be revealed when the constitution explicitly prevents
the enjoyment of one of these rights being extended to non-citizens. In fact, once ratified, the European
Convention will be directly applicable in Armenia law and
consequently, non-citizens will be able to benefit from the rights in question,
even if the source of protection remains at a lower level in the hierarchy of
norms. The only problem therefore
remaining would be concerning property law, as Article 28, Para
2 of the Constitution foresees that foreigners and stateless people cannot own
land. However, given that Article 1 of
the Additional Protocol does not guarantee the right to acquire property and
that the limitation of the right of citizens to dispose of their goods – in the
case where they wish to sell or bequeath to foreigners – follows the legitimate
aim of preserving the Armenian land which constitutes a national wealth, the
Additional Protocol to the European Convention is not, prima facie, in contradiction
with the Armenian Constitution.
Another
contradiction seems to exist between Article 1 of Protocol N° 6 to the European
Convention which requires the abolition of the death penalty, and Article 17 of
the Constitution which authorises the death penalty “until such time as it is
abolished”. In the Commission’s opinion
however, article 17 explicitly foresees the possibility of the abolition of the
death penalty, an abolition which could be carried out by means of the
ratification of the Convention: the contradiction is therefore only apparent.
In
conclusion, the Commission considered that there is no constitutional obstacle
to the ratification of the European Convention on Human Rights, but at the same
time the Commission emphasised the need for constitutional reform, which would
foresee clearly, predictably and accessibly, the rights and duties of
individuals and the authorities.
Furthermore,
on 22
February 2002, the Constitutional Court of
Armenia gave a decision on the compatibility of provisions of the European
Convention with the Armenian Constitution.
Afterwards, on 20
March 2002, the National Assembly of
Armenia ratified the European Convention, with reservation.
3. CO-OPERATION WITH AZERBAIJAN
Shortly after its accession to the Council
of Europe, Azerbaijan also became a full member of the partial agreement on the Venice
Commission on 1 March 2001.
The Commission’s activities with Azerbaijan in 2001 followed the lines set out in the programme of co-operation
approved by the Commission at its 45th Plenary meeting
(Venice, 15-16 December 2000).
Draft
Law on the Ombudsman of the Republic of Azerbaijan
Following a request from the authorities
of Azerbaijan of 26 March 2001 to give a legalopinion on the sraft Law on the Ombudsman of the Republic of Azerbaijan,
the Commission asked Mrs Serra Lopes and Mr van Dijk to give their comments on
the first draft. The Commission noted with satisfaction that further revisions
of the draft Law on the Ombudsman in the Republic of Azerbaijan had
incorporated almost all the observations and suggestions made. In general, the
Commission found the final draft Law on the Ombudsman of the Republic of Azerbaijan tobe compatible with European standards. It was hoped that the creation of such
an institution would be duly reflected in the Constitution through
corresponding amendments (CDL (2001) 83).
Draft Law on Safeguards for the vote of confidence
to the Cabinet of Ministers by the Milli Mejlis (Parliament)
In
September 2001, the authorities of the Azerbaijan Republic seized
the Venice Commission with a request for an opinion on the draft Law on
Safeguards for the Vote of Confidence to the Cabinet of Ministers by the Milli Mejlis (Parliament).
Following comments by the rapporteurs, Messrs Endzins, Hamilton and Bartole,
the Commission’s Rapporteurs and representatives of the Azeri authorities met
first in Baku, on 15 November and then in Strasbourg, on 29–30 November 2001.
Messrs Khanlar Hajiev, President of the Constitutional Court
and Member of the Venice Commission, Mr Safa Mirzoyev, Head of the Secretariat
of the Milli Mejlis, and Messrs Shahin Aliev and Fouad Aleskerov, from the
Legal Department of the Office of the President of the Republic, participated
in these meetings. For the Venice Commission Messrs Bartole, Endzins, Hamilton
and Matscher were present at the Strasbourg
meeting.
In its
opinion, adopted at the 49th Plenary Meeting (Venice, 14-15
December 2001 –CDL-INF(2001)26), the Commission observed that the draft
Constitutional Law did not introduce any changes to the political system of Azerbaijan. It
merely aimed at providing for a mechanism whereby the Milli Mejlis will be
enabled to exercise, by means of a “recommendatory” vote of no confidence, some
control over the executive. Any substantial strengthening of parliamentary
control would however require a revision of the Constitution by referendum.
Draft Law on the Regulation of Implementation of
Human Rights and Freedoms in the Azerbaijan Republic
Within the framework of the programme of
co-operation between Azerbaijan and the Venice Commission, an opinion on the draft
law “On the Regulation of Implementation of Human Rights and Freedoms in the Azerbaijan Republic” was requested by the Presidential administration
of the Republic of Azerbaijan. The purpose of this law was twofold: to establish guidelines for the
implementation of the ECHR’s provisions on the restriction of human rights and
freedoms, and secondly to supplement the human rights provisions contained in
the Constitution with a view to ensuring their compatibility with the
ECHR.
Following a meeting
held in Baku on 15 November 2001, whereby the preliminary comments on the draft law
made by the rapporteurs, Messrs Franz Matscher and Pieter van Dijk, were
discussed, the first version of the draft law was partially amended. The
amended text was then discussed during the meeting held in Strasbourg on 28-29 November 2001. On the basis of the
comments by the rapporteurs and the discussions during this meeting, the
Commission adopted its opinion at its 49th Plenary Meeting (Venice, 14-15 December 2001 –CDL-INF(2001)27).
The Commission noted
with satisfaction that the new draft incorporated many of the rapporteurs'
previous proposals and concluded by suggesting various further changes to be
incorporated into the final version of the law. The Commission also expressed
its satisfaction that the draft constitutional law determines the precise
limits of possible restrictions and derogations to guaranteed human rights and
freedoms and thus contributes to improving the legal framework of human rights
protection in Azerbaijan.
The work on the draft
Law on the Regulation of Implementation of Human Rights and Freedoms in the Azerbaijan Republic continues in 2002 on the basis of a revised draft.
Draft Law on the Constitutional Court
By letter of 7 September 2001, Mr Khanlar Hajiyev, President of the Constitutional Court of
Azerbaijan, requested the Commission’s opinion on the draft law on the Constitutional Court. Following the individual comments by the rapporteurs, Messrs
Endzins, Hamilton, Nolte and Paczolay, a workshop and meetings on the draft law were held in Baku on 5-6 November 2001. Further to these discussions, the Constitutional Court prepared a revised draft, which was the subject of discussions in Strasbourg on 29-30November 2001. Given that the Commission
had been informed that another revised draft would be presented, the Commission
adopted only an interim opinion at its 49th Plenary Meeting on 14-15 December
2001 (CDL-INF (2001) 28). The Commission pointed out that the revised draft
was substantially improved in comparison to the first draft and welcomed that
it took into account comparative international experiences.
The main reform contained in this draft
law was the introduction of individual access to the Constitutional Court and access for ordinary courts at all levels. The Commission recommended that several
provisions be regulated in the internal regulations of the Court rather than in
the Draft Law. Issues discussed in the interim opinion included the safeguards
of independence in the procedure of appointment of the judges, the introduction
of a written procedure and the establishment of facts in electoral cases.
The work on the draft Law on the Constitutional Court
continues in 2002 on the basis of a revised draft.
4. CO-OPERATION
WITH BELGIUM
Upon a request by the Committee
on Legal Affairs and Human Rights of the Parliamentary Assembly, the Commission
set up a working group composed of Messrs Matscher, Malinverni, Van Dijk and
Bartole, in order to examine the question of possible groups of persons to
which the Framework Convention for the Protection of National Minorities could
be applied, once ratified, by Belgium. The working group met in Venice in
December 2001 and is expected to complete its work in early 2002.
5. CO-OPERATION WITH BOSNIA AND HERZEGOVINA
The Commission continued
unabated in 2001 its long-standing and fruitful co-operation with the
authorities of BiH, as well as with the institutions of the international
community in this country. The Commission’s priority remained the consolidation
of democratic institutions in the country, notably in preparation for the
future accession of BiH to the Council of Europe. The drafting of new
legislation on elections was a key element and the Commission played an active
role in this process. The revision of the Constitutions of the Entities to
bring them into line with the Constitution of the State also remained high on the
agenda following the “constituent peoples” decision of the Constitutional Court in 2000. The Commission continued its work on this
question in 2001 as well as on the drafting of a law on the merger of the Human
Rights Chamber and the Constitutional Court at the level of the State.
Implementation of the Constitutional Court Decision on the “Constituent
Peoples” and Constitutional Reforms in the Entities
In the course of 2000, the
Commission received a request from the authorities of the Federation of Bosnia
and Herzegovina (FBH) for assistance in the revision of the Constitution of the
FBH. Work began as described in the Commission’s Annual Report for 2000 and
continued in 2001, combined with work on the Constitution of the Republika Srpska, following a request from the Committee on Legal
Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe
for the Commission’s opinion on the partial decision of the Constitutional
Court of Bosnia and Herzegovina on the issue of the constituent peoples. This
request was supported by the Minister for Foreign Affairs of Bosnia and Herzegovina, Mr Prlić.
In its opinion, adopted at its 46th Plenary Meeting, the
Commission considered ways of giving force to the main elements of this
decision and drew a distinction between the situations in the two Entities. In
the case of the Republika Srpska, although it raised numerous practical
problems, implementation of the decision did not require fundamental changes to
the wording of the Constitution, which was neutral in principle and made no
reference to ethnicity. The problem in the Republika Srpska was rather the
discrimination practised by institutions against non-Serbs. In the Federation,
however, the Constitution made constant references to ethnic criteria and gave
precedence to the groups identified as Croat and Bosniac. Rather than extending
machinery for protection and participation to other groups or abandoning all
reference to ethnic groups, the Commission favoured a rewriting of the
Constitution to make it more neutral, drawing on classical federalism and
avoiding the trap of a systematic enumeration of individual and universal
rights.
At the same time, the High
Representative invited the Commission to participate in the Task Force for the
implementation of the judgment of the Constitutional Court of Bosnia and
Herzegovina on the issue of constituent peoples. The Task Force, in which
Messrs Scholsem and Markert participated on behalf of the Commission, made
various proposals for constitutional drafting and implementation, and in
particular proposed including an article in the Constitution of the Republika
Srpska giving the authorities specific responsibility for preventing any discrimination.
It also proposed the establishment of a constitutional commission in each
Entity, composed of the constituent peoples. At the 48th Plenary
Meeting of the Commission, Mr Barrett of
the Office of the High Representative
informed the Commission that the Entity commissions had been sitting
fortnightly since March and were now, at their own initiative, holding joint
sessions prior to reporting to their respective parliaments. The need to reform
the Entity constitutions to comply with the decisions of the Constitutional
Court of BiH in case U 5/98, especially the “constituent peoples”
decision, was now urgent, and it was hoped that the process would reach its
conclusion soon.
Election Law of Bosnia and Herzegovina
In the context of the
definition by the Parliamentary Assembly of the Council of Europe of the
commitments to be undertaken by BiH in the event of its accession to the
Council of Europe, the Assembly requested the Commission to examine the
Electoral Law adopted by the Parliamentary Assembly of BiH in August 2001. The
opinion, adopted by the Commission at its 48th Plenary Meeting, on
the basis of comments by Messrs Malinverni and Scholsem, did not purport to be
a detailed analysis of the law but focused on possible discriminatory
provisions in the text, in particular in the light of international standards
that were an integral part of the Constitution of BiH. Certain elections were
not regulated in the law, pending the revision of the constitutions of the
Entities in the light of the “constituent peoples” decision, and others were
not problematic. However, serious questions were raised by the regulation of
elections to the Presidency of BiH and the House of Peoples of BiH. These arose
from the application of a mixture of territorial and ethnic criteria of the
same type as that criticised by the Constitutional Court in its decision on
constituent peoples of the Entities. The main problem with these provisions,
however, was that they flowed directly from the provisions of the Constitution
of BiH itself.
The Commission proposed
that these questions be examined in future collaboration with the Council of
Europe, whilst emphasising that these discussions should not disturb the
electoral timetable already laid down for Bosnia and Herzegovina.
Preliminary
draft Law on the Merger of the Human Rights Chamber and the Constitutional
Court of Bosnia and Herzegovina
Owing to the fact that the
Human Rights Chamber would cease to operate once the European Convention on
Human Rights had been ratified, it seemed logical and desirable to the
Commission to transfer all the competences of the Human Rights Chamber to the Constitutional Court. This would
enable all final appeals concerning human rights to be treated by a single
jurisdiction at the State level and, with this in mind, the Commission
proposed, at its 42nd Plenary Meeting (Venice, 31st March-1st April
2001) a total transfer of the
competences of the Human Rights Chamber to the Constitutional Court.
Consequently, the Working
Group on the merger of the Human Rights Chamber and the Constitutional Court
continued its work and met on two occasions during 2001; in Paris in March 2001
(CDL (2001) 32) and in Bled, Slovenia on 10-12 June 2001 (CDL (2001) 62 def)
with the aim of drawing up a draft law which could enable this merger to take
place under the best conditions (seeCDL-INF(2001)20).
Even though in the
interests of clarity of the law it would be advisable to amend the
Constitution, such amendment was not indispensable and it was agreed that an
ordinary law would be sufficient to implement this draft merger. The Working Group also considered that taking
into account the importance of the institutional modifications needed, it was
preferable to implement them by a law rather than only by a modification to the
rules or to the procedures of the Constitutional Court. The draft law
as drawn up, proposes a merger of competences; the
term merger had deliberately been chosen to emphasise the need for a full
transfer of competence from the Chamber to the Constitutional Court. The draft law
also clearly indicates the transfer of resources that would be needed. The Working Group considered that the merger
should take place as close as possible to the ratification of the European
Convention on Human Rights.
Draft Laws on the Rights
of National Minorities
In spring 2001, the Venice Commission was
asked by the Office of the High Representative to give its opinion on the draft
Law on the Rights of the National Minorities of Bosnia and Herzegovina,
prepared by the BiH Ministry of Human Rights and Refugees, as well as on a
second draft law on national minorities, the Law on the Rights of Ethnic and
National Communities and Minorities in Bosnia and Herzegovina, in the process
of being adopted by the House of Peoples. Two opinions were subsequently adopted by the
Commission its 47th Plenary Meeting, on the basis of comments by Messrs van
Dijk and Malinverni, and were sent to the Office of the High Representative.
The Commission noted that the first draft
law, broadly inspired by the Framework Convention on the Protection of National
Minorities, granted entitlements going beyond the internationally established
minimum standards of protection. The Commission, though welcoming this
attitude, pointed out that the significant costs relating to the implementation
of the law were exclusively imposed on the local authorities and expressed
concern as to the latter’s financial accountability. It thus warned against the
risk of making the realization of the minorities’ rights dependent upon the
availability of financial means within the – presumably very limited -
budgetary resources of the local authorities. The Commission further made
several suggestions, both substantial and of a technical nature, aiming at
improving the draft law.
The second draft law, on the contrary,
appeared to be too vaguely drafted to produce any meaningful impact on the
minority protection scenario. Indeed, it merely repeated the wording of certain
provisions of the Framework Convention, without giving them any actual
implementation.
The
Bosnian authorities have initiated, on the basis of the opinions of the Venice
Commission as well as of comments by other international organisations
including the OSCE High Commissioner for National Minorities, a process of
drafting of a single, comprehensive piece of legislation on minority
protection. The Commission is actively involved in this process.
Draft Law on the Intelligence and Security Service
of the Federation of Bosnia and Herzegovina
The Office of the High Representative asked the
Venice Commission to provide comments on the draft Law on the Establishment of
the Federation of Bosnia and Herzegovina Intelligence and Security Service.
Messrs Said Pullicino and Nolte as rapporteurs raised a large number of
concerns with respect to the draft. These concerned the position of the Agency
in the institutional framework in Bosnia and Herzegovina, its tasks and powers, its internal structure
and the rights of individuals with respect to the service. On the basis of the comments received from
the Commission and from the data protection experts of the Council of Europe,
the Office of the High Representative prepared a revised version of the draft
and submitted it to the Federation authorities. It is expected that the Law
will be adopted in 2002.
6. CO-OPERATION WITH CROATIA
Constitutional Legislation on the Protection of
Minorities
In 2001
the Commission continued its co-operation with the Croatian authorities on constitutional
legislation for the protection of minorities. A meeting of the working group
was held in Zagreb
on 4-5 January 2001 and a number of points that needed to be clarified were
identified. At its 47th Plenary Meeting the Commission adopted the
opinion on the Constitutional Law on the Rights of Minorities on the basis of
comments by Messrs Matscher, van Dijk and Delcamp and Ms Suchocka. The
Commission welcomed the spirit of openness and co-operation which had prevailed
during work on the draft and found that the new draft significantly improved
the legal framework of minority protection in Croatia. In
particular, it clarified the effects of the law and electoral rights aspects,
and provided for the establishment of a system for minority self-government at
local, regional and state level. There was no longer a list of minorities in
the law; however, a list of minorities continued to exist at constitutional
level. Further, it needed to be clear that laws implementing the Constitutional
Law would be ordinary laws subject to review by the Constitutional Court
for their conformity with the Constitutional Law. Some ambiguities remained
with respect to the provisions on minority self-government and these needed to
be removed and clarifications given as to the competence of such bodies.
Finally,
the Commission noted that 18 months after the abolition of the suspended
provisions of the Constitutional Law of 1991 in May 2000, no normative action
had been successfully carried out by the Croatian Parliament at supra-legislative
level to replace the abolished provisions. The protection of minorities’ rights
at the level of the Constitution therefore remains incomplete.
Revision of the Constitution
At the
request of the Parliamentary Assembly, the Commission had also examined the
amendments of 9 November
2000 and 28 March 2001 to the
Constitution of Croatia. The Commission adopted its opinion on these amendments
at its 47th Plenary Meeting, on the basis of comments by Messrs
Matscher, Bartole and Delcamp. It noted that there was a significant transfer
of powers from the President to the Prime Minister and an extension of the
legislative domain, designed to create a counterweight to the executive. The
changes introduced were generally speaking welcomed by the Commission, in
particular the transition towards a parliamentary system, which was accompanied
by a series of other highly opportune amendments in the fields of human rights,
local and regional autonomy and the judiciary. Caution would nevertheless need
to be exercised with respect to the implementation of some of the changes, in
particular regarding the provisions on the dissolution of political parties and
the hierarchy of laws with respect to minorities. Concerns were also voiced
that the generally positive developments with respect to the judiciary
introduced in the first series of amendments may have been marred to some
degree by the implementing provisions of the second series. It remains to be
seen how these amendments will be translated into practice.
Law on Local Elections
A
working group was set up to examine the Law on Local Elections and its effect
on national minorities, at the request of the Congress of Local and Regional
Authorities of Europe.
7.
CO-OPERATION WITH GEORGIA
Status
of Abkhazia
A meeting on the
status of Abkhazia, organised at the request of the United Nations Special
Representative, in conjunction with the Council of Europe’s Commissioner for
Human Rights, was held in Pitsunda on 12-13 February 2001. Messrs Lopez Guerra,
Malinverni, Vogel and Coppieters attended on behalf of the Commission. The main
purpose of the meeting was to offer the Abkhaz and Georgian delegations a forum
for discussion. The presence and contribution of representatives of the
Commission was greatly appreciated by both organisers and participants, and the
Commission was now considered a leading player in the search for legal and
technical solutions to ethno-political conflicts.
A follow-up meeting was planned for the summer;
however, outbreaks of violence in the region led to an interruption in the
dialogue between the Georgian and Abkhaz authorities and the meeting was
postponed until further notice.
Relations
between the State and the Georgian Orthodox church
In March 2001, the Georgian authorities asked the
Venice Commission to examine the possibility of a constitutional agreement
between the state and the Georgian Orthodox Church. Such an agreement would
first require a constitutional revision. The Georgian authorities presented a
proposal to the Commission, following which comments were prepared by Messrs
Malinverni and Economides. At the Georgian authorities' request, a draft
constitutional revision was then drawn up. The revision adopted in March took
account of certain of the Commission members' comments, particularly that the
constitutional agreement with the Orthodox Church should have
sub-constitutional status. On the other hand, the approved text did not state
explicitly that the agreement must be compatible with all the rules of
international law, as the experts had proposed, but confined itself
to referring to the universally recognised rules and principles of
international law, particularly in the field of human rights and fundamental
freedoms.
A draft constitutional agreement between the Georgian
state and the Apostolic Autocephalous Orthodox Church of Georgia was then
submitted to the Commission Secretariat. Two members of the Commission, Messrs
Economides and Vogel, and an expert, Mr Manitakis, professor of constitutional
law at the University of Thessaloniki, commented on the proposals.
Electoral
Code
The Parliamentary Assembly of the Council of Europe
has asked the Venice Commission to co-operate with Georgia to revise the
electoral code. This activity will take place in 2002.
8.
CO-OPERATION WITH HUNGARY
On 2
July 2001, the Venice Commission having received a request by Romania’s Prime
Minister, Mr A. Nastase, to give an opinion on the Hungarian Act on
Hungarians living in neighbouring countries, the Hungarian Minister of
Foreign Affairs, Mr J Martonyi, requested the Commission to carry out, instead,
a comparative study of the recent tendencies of the legislations in Europe
concerning the preferential treatment of persons belonging to national
minorities living outside the borders of their “motherland”. At its 47th
plenary session, the Venice Commission, having in the meantime received a
request by the Hungarian Minister of Foreign Affairs to carry out a comparative
study of this law and other similar European laws, decided to undertake a study
on the compatibility of the Preferential treatment of national minorities by
their kin-State with the standards of the CoE and the principles of
international law (see supra, introduction, and below, point 11 and infra III
point 4).
9. CO-OPERATION WITH KOREA
At its
48th Plenary Meeting, the Commission held an exchange of views with
Mr Park, Ambassador of the Republic of Korea to the Kingdom of Belgium and Representative
to the European Union. He described the process leading to reconciliation on
the Korean peninsula, or “sunshine policy”. Europe had an important role to
play in consolidating peace and security in the region, and Mr Park called upon
the Commission to continue to devote its interest and attention to the region
so that all the people of the Korean Peninsula could enjoy the benefits of
peace, stability, democracy and the rule of law.
Mr La
Pergola expressed the Commission’s willingness to assist in the areas of its
expertise.
10. CO-OPERATION WITH MOLDOVA
Mr Solonari informed the Commission at its 46th
Plenary Meeting that following a constitutional amendment enacted by Parliament
in July 2000, the President of the Republic was now elected by Parliament
rather than direct universal suffrage. The spirit of the reform was to
strengthen the powers of Parliament and the Prime Minister, who became the most
important figure in the state. The required majority for electing the President
had not been achieved in Parliament and it had therefore been necessary to hold
early parliamentary elections. These had taken place on 25 February 2001 and
the Communist Party had won 71% of the seats. The Democratic Party no longer
held any seats. The alternatives for the future were thus: either that despite
reduced powers under the current constitution the President ran the country
through his control of the Communist Party, or that the Constitution be amended to strengthen his powers. The results of these
elections would undoubtedly have an impact on the country's constitutional
development. Mr Solonari stressed in this regard the valuable contribution the
Commission had made to the process of democratisation in Moldova.
11. CO-OPERATION WITH ROMANIA
Mrs Stănoiu, the Romanian Minister for Justice, informed the
Commission at its 47th Plenary Meeting of proposals to reform the
Romanian Constitution. The planned reform was intended to bring the
Constitution into line with European Union law and clarify a number of points,
which ten years’ experience had shown to be desirable. In particular, the
legislative procedure needed to be simplified by abolishing the overlap of
powers between the two houses of Parliament. The question of delegated
legislative powers had to be clarified, particularly regarding emergency
decrees. Other issues for consideration included the appointment and dismissal
of ministers, the role and place of the public prosecutor's department, the
composition of the Judicial Council, the election of the President of the
Republic, the legislation on political parties, the law on property and
ratification of the Rome Statute on the International Criminal Court. A group
had been set up to examine the compatibility of the Constitution with the
Community acquis and a committee of representatives of parliamentary
groupings would be established.
Mrs Stănoiu asked the Commission to co-operate with the
Romanian authorities in the field of constitutional revision; the Commission
agreed to co-operate with the Romanian authorities in this matter and appointed
rapporteurs.
At its
48th Plenary Meeting Mr Stoica informed the Commission that as yet
there had been little progress, for both political and formal reasons.
Politically, a two-thirds majority in parliament was required to pass such
reforms, so a preliminary consensus between the parties represented in
parliament was necessary. The government had issued a statement on the proposed
reforms and so had other political parties, but no meetings had occurred. A
committee of representatives of parliamentary groupings was yet to be
established, and this would be the first formal step in the process of reform.
As to substance, one of the key issues was the election of the President.
Whereas the President is currently elected by popular vote, it was proposed
that the President be elected by the parliament, as it was considered important
for Romania to have a clear parliamentary regime.
On 21
June 2001, Romania’s Prime Minister, Mr A. Nastase, requested the Venice
Commission to examine a Hungarian law, the Act on Hungarians living in
neighbouring countries, whose effects stretched to the Romanian territory
and that directly concerned Romanian citizens of Hungarian origin. At its 47th
plenary session, the Venice Commission, having in the meantime received a
request by the Hungarian Minister of Foreign Affairs to carry out a comparative
study of this law and other similar European laws, decided to undertake a study
on the compatibility of the Preferential treatment of national minorities by
their kin-State with Council of Europe standards and the principles of
international law (see supra, introduction and point 8 and infra III
point 4).
12. CO-OPERATION WITH SLOVAKIA
Amendments to the Constitution
At its
48th Plenary Meeting, the Commission held an exchange of views with
Mr Jan Mazák, President of the Constitutional Court of Slovakia, who outlined
the recent amendments to the Constitution of Slovakia. These had considerably
changed the constitutional order in the Slovak Republic in several crucial
aspects and represented a significant development in the constitutional history
of the independent Slovak Republic. The amendments strengthened the
pro-European Union trends and trends towards European integration more
generally; consolidated the principles of democracy and a state governed by the
rule of law; created constitutional mechanisms for accepting international
liability flowing from international instruments; incorporated a more
consistent separation of the judicial power from the executive and legislative
powers; regulated in more detail the powers of the supreme auditing authority;
enhanced the powers, independence and impartiality of the Constitutional Court;
regulated the powers of the Public Protector of Rights (Ombudsman); and
delegated certain powers to bodies of territorial self-government. The changes
would come into effect progressively: some had entered into force on
1 July 2001, whereas others would enter into force on 1 January 2002.
With respect
to the Constitutional Court, the changes included an expansion of its
competencies, increased enforceability of its decisions and a higher level of
protection of fundamental rights and freedoms. As a result of the
changes, an effective domestic tool of
protection of fundamental rights and freedoms had been created. Its application
would obviously be a precondition for submission of complaints before the
European Court of Human Rights. Furthermore, new provisions on the appointment
of judges of the Constitutional Court meant that judges would be appointed for
a non-renewable term of 12 years. These provisions aimed to strengthen the
guarantees of independence of judges of the Constitutional Court.
Law on Regional Elections
Following
a request from the Congress of Local and Regional Authorities of Europe, the
Commission at its 49th Plenary Meeting adopted a consolidated
opinion on the Law on Regional Elections in Slovakia. The opinion, drawn up on
the basis of comments by Messrs Luchaire and Owen, included a detailed analysis
of the mechanisms set up by the Law. The most important
points underlined by the opinion dealt with the composition of the electoral
commissions and the drawing of constituency boundaries. The role of electoral
commissions was secondary and strictly limited to the holding of elections,
whereas the public authorities took responsibility for key administrative
decisions and matters of logistics. This ran contrary to current practice,
which favours increasing the powers of the electoral commissions. Furthermore,
the fact that parties could withdraw any one of their members from a commission
could raise questions concerning its independence.
As
regards boundaries of constituencies, the opinion underlines that such
boundaries should not be redrawn a few months before the election. A better
system is to redraw them at ten-year intervals, for example, and well away from
election dates. Responsibility for redrawing constituency boundaries should be
conferred on an independent commission.
Two
other points of concern may be mentioned: the obligation imposed on candidates
to mention their academic qualifications, and second, the obligation, where a
coalition was formed between parties in one constituency, for the same parties
to form coalitions in all the constituencies in the same region. This
obligation appeared to infringe the political freedom of parties.
13. CO-OPERATION WITH SOUTH AFRICA
2001
was the final year of the “Democracy, from the Law Book to Real Life” programme
run by the Commission thanks to funding from the Swiss Federal Department of
Foreign Affairs. Four activities were held: a seminar on management of
provincial government in a constitutional State, organised in co-operation with
the Administrative Academy of the Western Cape; a colloquium for judges of
constitutional and supreme courts from southern Africa, organised in
co-operation with the Constitutional Court of South Africa, with a follow-up
conference for liaison officers from these courts held in Mangochi, Malawi and
focusing on the exchange of information between the courts; and a school on
intergovernmental relations, organised in co-operation with the Department of
Provincial and Local Affairs and the PAIR Institute of the University of
Pretoria.
Mr
Daniels, Chief State Law Adviser of the Department of Justice and
Constitutional Development, attended the 46th Plenary Meeting of the
Commission to participate in an exchange of views on the “African Renaissance”
programme and on the possible establishment of a Southern African Commission on
Constitutionalism and Democracy. The Commission welcomed this initiative and
expressed its full support for the creation of a southern African “sister”
Commission. The Commission could provide assistance thanks to a voluntary contribution
by the Norwegian authorities.
At its
48th Plenary Meeting, the Commission examined the progress made in
the creation of a sister Commission for southern Africa.
Although there was a clear interest in South Africa in creating such a body, for the moment, there were
few concrete developments. However, co-operation with the Constitutional Court
of South Africa and with equivalent courts from the SADC countries was highly
successful and these courts were keen to develop such links further, including
through the exchange of case-law and participation in the CODICES data-base. It
was therefore proposed to pursue regional co-operation at the level of the
judiciary, which was in itself an important means of strengthening the
independence of the judiciary in the countries concerned, and to widen the
fields of co-operation as the demand arose.
14. CO-OPERATION WITH SWITZERLAND
Co-operation with Swiss Cantons on Electoral Issues
At the
request of the authorities of the canton of Ticino, the
Commission prepared an opinion on the electoral law of the canton, following
from its preliminary opinion prepared in 2000. The opinion, adopted by the
Commission at its 47th Plenary Meeting, set out to suggest possible
modifications to the Ticino electoral law in order to introduce a majority
voting system in elections for the Council of State and, possibly, the Grand
Council, and to advise on how the electoral system could create clearer
majorities and facilitate a changeover of political power between parties,
while emphasising the vote for individuals.
In
addition, Mr Garrone informed the Commission at its 48th Plenary
Meeting that, at the invitation of the Constituent Assembly of the Canton of
Fribourg, he had travelled to Fribourg on 17 September 2001 to present a paper on the question of popular
elections. The Constitution of the canton was being revised and questions arose
as to whether the current system of elections to a certain number of positions
should be kept in place. The paper included an intercantonal and where possible
international comparison of the means of election or appointment of the bodies
in question; it presented the advantages and disadvantages of elections, in
particular election by the people, to bodies or positions such as that of
prefect or magistrate.
15. CO-OPERATION WITH “THE FORMER
YUGOSLAV REPUBLIC OF MACEDONIA”
In the
light of developments in “the former Yugoslav Republic of Macedonia” during the
year, Resolution 1255 (2001) of the Parliamentary Assembly asked the Government
of Macedonia to co-operate closely with the Venice Commission on the adoption
of amendments to the Constitution. At the same time, it invited the Commission
to offer its co-operation to the Macedonian authorities and all interested
parties on the problems relating to the amendment of the Constitution, in order
to ensure that the principles of the Council of Europe were guaranteed. In
response to this Resolution, the Commission at its 47th Plenary
Meeting constituted a working group on “the former Yugoslav Republic of Macedonia”,
composed of Messrs Torfason, Helgesen and Stoica.
At the
request of François Léotard, representative of the European Union in Skopje, the
Commission also decided to send Mr Markert to Skopje as a
member of the international expert team in the negotiations for a political
settlement of the crisis in Macedonia. A
Framework Agreement was concluded at Lake Ohrid on 13 August 2001
and the constitutional amendments provided for in the agreement were adopted by
the Parliament on 16 November
2001. The Commission provided its assistance
throughout this process through the regular participation of Mr Markert.
Further, at its 49th Plenary Meeting, it indicated its continued
willingness to provide technical assistance to assist in resolving questions
arising as to the implementation of the Agreement.
******
In
addition, a UniDem seminar on “Democracy, Rule of Law and Foreign Policy” was
held in collaboration with the Constitutional Court
in Skopje
on 4-5 October 2001.
16. CO-OPERATION WITH TURKEY
A
UniDem seminar on “Constitutional Implications of Accession to the European
Union” was held in collaboration with Bilkent University in Ankara on
9-10 November 2001.
17. CO-OPERATION WITH UKRAINE
Revision of the Constitution
Following
a request from the Monitoring Committee of the Parliamentary Assembly, the
Commission adopted at its 47th Plenary Meeting an opinion, based on
comments by Messrs Batliner and Malinverni, on the proposed revision of the
Ukrainian Constitution put forward by some members of the Ukrainian parliament.
The proposals, taken as a whole, tended to direct the existing presidential
regime towards a parliamentary regime and to redress the balance of powers of
the state. At the same time, the draft showed a marked concern to stabilise the
new parliamentary-led system. However, the proposed solutions to stabilise the
system seemed to go too far. There were two main points of concern. First, a
member of parliament who left his political group or was excluded from it lost
his parliamentary seat. This conflicted with the principle of the independence
of members of parliament. Second, there were proposals to ensure that once the
parliamentary session began, a stable parliamentary majority would be formed.
The proposals went too far, since they contravened the rule that the will of
parliament was formed by members of parliament who, in each particular case,
voted according to their convictions.
Draft Law of Ukraine on
the Judicial System
The
Commission examined, at the request of the Ukrainian member of the Commission,
the draft law on the Judicial System prepared by the Ukrainian Ministry of
Justice. Mrs Suchocka and Mr Said Pullicino presented their comments at the
Commission’s 47th Plenary Meeting. They noted that another draft had
already been discussed in the past and certain criticisms made. There had been
modifications, but some key points had not been settled. In particular, there
were no provisions about the rights and obligations of judges. Moreover, the
Minister of Justice took part in the plenum of the Supreme Court, which could
issue instructions to the courts. The draft should be substantially revised. Mr
Said Pullicino added that efforts had been made, but agreed that a
broad-ranging revision was needed.
Mrs
Stanik said that the draft law had been brought before Parliament and referred
to a committee. There was legislation currently in force on the status of
judges and the independence of the courts. In June, amendments to several sets
of legislation – the Criminal Code, Code of Civil Procedure and Justice Act –
were adopted to bring these laws into conformity with the Constitution
following the end of the transitional period allowing exceptions from some of
the rules in the Constitution. The
Prokuratura was resisting reform and the legislation would have to be revised
on this point.
The
Commission approved the opinions of its rapporteurs on the draft law on the
Ukrainian judicial system at its 47th Plenary Meeting and indicated that
it remained at the Ukrainian authorities' disposal to continue its involvement.
Draft
Law on the Office of the Prosecutor
At the
request of the Ministry of Justice of Ukraine two
rapporteurs appointed by the Commission, Mr Hamilton and Ms Suchocka,
examined a draft Law on the Office of the Prosecutor of Ukraine.
Presenting
his opinion at the 48th Plenary Meeting of the Commission Mr
Hamilton noted that the present law on the office of the prosecutor was not
satisfactory. The office was too centralised and hierarchical, its powers were
closely intertwined with the powers of the judicial, executive and legislative
branch, some of these powers were too wide or should more appropriately be
exercised by the judicial branch and the independence of the office was not
sufficiently guaranteed. One provision of the existing law even had to be
regarded as a threat to press freedom. The draft law contained some
improvement, in particular strengthening the independence of the office. On the whole it could however not be regarded
as a fundamental reform of the existing system and the concerns raised with
respect to the present system remained valid.
Ms
Suchocka fully agreed with Mr Hamilton. The draft law was still to a large
extent based on the Soviet concept of the Prokuratura. There was no clear
concept for a reform of the system in accordance with European standards and
the adoption of the draft law in its present form would not be justified.
Ms
Stanik thanked the rapporteurs for their pertinent comments and noted that the
office of the General Prosecutor had prepared the draft.
The
Commission endorsed the comments by the two rapporteurs and agreed to forward
their opinions to the Ukrainian authorities.
Concept of State Ethnic and
National Policy
At its
47th Plenary Meeting the Commission adopted its opinion on the
concept behind Ukraine's
ethnic and national policy. The Commission’s rapporteur on this matter, Mr
Matscher, remarked that the government policy of encouraging the Ukrainian
language and increasing its use in everyday life was also aimed at the
diaspora, including Ukrainians living in neighbouring states. In particular, it
invited those who had had to leave Ukraine during
the Soviet era to return. The Ukrainian authorities would have to abide by the
principles and treaties of international organisations. Any final assessment of
the policy would depend on how it was applied: the available documentation was
not sufficiently precise to allow such an assessment.
Ms
Stanik thanked the Commission for its opinion and commented that the concept
concerned not just Ukrainians but also the rights of ethnic groups. It aimed to
be compatible with public international law, and the
Council of Europe's Framework Convention in particular.
Electoral Law
Following
a request from the Ukrainian authorities, the Commission adopted at its 48th
Plenary Meeting its opinion on the draft electoral law of Ukraine. The
new text was long and introduced a number of clarifications compared with the
earlier draft, without modifying the electoral system itself. There were two
main points of debate: first, the duration of the pre-electoral phase, which
could be shortened if the guarantees of equal treatment were extended to cover
not just the campaign period but the entire pre-electoral period, and if the
number of signatures required for the registration of candidates was reduced.
Second, the electoral commissions should be composed of an absolutely balanced
representation of political parties, this being the best way, in the present
circumstances, to ensure their independence.
Two
other important questions were raised. The role of the electoral commission and
the courts in the event of appeals needed to be clarified. Also, the draft
provided that only parties which had been registered for one year before the
elections could nominate candidates in the nation-wide constituency. This was
clearly excessive and should at any rate not be applied retroactively.
Mr Haric,
Deputy Speaker of the Parliament of Ukraine, thanked the Commission for its
assistance and stated that the logic of the opinion corresponded to that of the
discussions that had been held in the parliament two days earlier. While it was
true that the electoral system remained essentially unchanged, the model had
evolved, meaning there was now less dependence on the executive.
Mr Jurgens requested that the opinion,
which was of great interest in the framework of the Parliamentary Assembly’s
monitoring procedures with respect to Ukraine, be forwarded to the Assembly’s
Monitoring Committee.
18. CO-OPERATION WITH THE FEDERAL REPUBLIC OF YUGOSLAVIA
During
2001, Mr Dimitrijevic regularly informed the Commission as to constitutional
developments occurring in the Federal Republic of Yugoslavia. Whereas positive trends
appeared to be emerging from the Constitutional Court,
it was noteworthy that the
development of the Federal Constitution itself was significantly hampered by
the secession movement in Montenegro. The Serbian Constitution also needed
improvement, particularly in terms of the protection of human rights. Another
much discussed aspect was the possibility of including a measure of
decentralisation to take account of historically autonomous regions in Serbia, such as Vojvodina.
Draft Law on the Rights of National and Ethnic
Communities
From 10 to 12 January
2001, a delegation
from the joint working group of the Commission and Directorate General II on
the Draft Law on the Rights of National and Ethnic Communities travelled to Belgrade to meet the Minister for National and
Ethnic Communities and the group of experts he had appointed to draft the
legislation. The latter had expressed a number of reservations about the
possibility of adopting legislation at federal level that would be compatible
with the Constitution. The group had also had difficulties identifying the
communities concerned and thought that while satisfactory legislation already
existed in Yugoslavia, its application had caused problems. A
second meeting of the working group was held in Strasbourg on 26 and 27 March to consider the draft
legislation drawn up by the group of experts. Mr Malinverni and Mrs
Benoît-Rohmer attended on behalf of the Commission. The draft was assessed to
be generally positive; however, the Council of Europe experts strongly
cautioned against the inclusion of a list of national minorities in the text
and the creation of registers of members of minorities. A number of other
issues, many arising due to the fact that questions remained as to the eventual
status of this law in the legal system of the Federal Republic of Yugoslavia, were raised. Drafting continued in Belgrade throughout the year and the law should be
adopted in 2002.
Interim Report on the Constitutional
Situation in the Federal
Republic of Yugoslavia
At its
48th Plenary Meeting, the Commission adopted its Interim Report on
the Constitutional Situation in the Federal Republic of Yugoslavia.
This report was drawn up following the visit to Belgrade and
Podgorica in September of a delegation of the Commission, consisting of Messrs
Tuori, Batliner and Jowell, accompanied by Messrs Buquicchio and Markert. In
the report, the Commission assessed the constitutional situation in the Federal Republic of Yugoslavia
at the Federal and Republican levels, outlining the main perspectives for the
near future rather than focusing on the legacy of the past.
The
Commission observed that the key issue was the question of the future status of
Montenegro.
It found that solving this issue by way of a referendum alone would present
difficulties in terms both of the legality and the legitimacy of such a
solution. It therefore urged the interested parties to try to reach a common
proposal through bona fide negotiations, which could then be submitted to a
popular referendum and confirmed as necessary by decisions of the relevant
bodies. Moreover, it found that clarifying this situation would be fundamental
in view of a possible accession to the Council of Europe.
The
Commission also underlined its concern that this situation had led to an
atmosphere of uncertainty and was, in particular, impeding necessary democratic
reforms. This was largely because constitutional relations between Federal and
Republican levels were not based on secure legal foundations. In consequence,
the Commission welcomed the clear willingness within the Federal Republic of Yugoslavia
to improve the constitutions at all levels and called on the relevant
authorities to begin official work on drafting new constitutions as soon as
possible. It noted that the draft Constitution of the Republic of Serbia
prepared under the auspices of the Belgrade Human Rights Centre was an
excellent basis for future constitutional work.
This
opinion was prepared at the request of the Parliamentary Assembly of the
Council of Europe, in the context of the Assembly's assessment of the
application by the Federal
Republic of Yugoslavia
to accede to the Council of Europe.
Situation in Kosovo
At its
46th Plenary Meeting, the Commission was informed that a joint working group for the establishment
of an interim legal framework in Kosovo had been set up by the Special
Representative of the Secretary General of the United Nations, Mr Haekkerup.
The aim was to draw up a draft document setting out the powers of Kosovo's
interim self-governing institutions. Mr Haekkerup invited the Commission to be
represented in this body, otherwise composed of UN representatives and experts
designated by Kosovo political parties and communities. It was decided that Mr
Russell and a member of the Secretariat would participate in the consultations
and advise the Commission of developments. Following this decision the
Commission representatives spent several weeks in Pristina and contributed
actively to the drafting of the text which was adopted as UNMIK Regulation
2001/9 on the Constitutional Framework for Provisional Self-Government. In
particular, the Commission representatives ensured that the text is in line
with Council of Europe standards.
An exchange
of views with Mr Neithart Hoefer-Wissing, Deputy Director of Political Affairs
of the United Nations Mission in Kosovo, was held at the Commission’s 47th
Plenary Meeting. He thanked the Commission for its help in preparing a
constitutional framework for provisional self-government for Kosovo that would
be in accordance with United Nations Resolution 1244. The new constitutional
framework would make it possible to establish democratic institutions while
maintaining the powers of the Secretary General's Special Representative. Mr
Hoefer-Wissing expressed particular thanks to Messrs Russell and Markert, who
had taken part in the joint group of experts from Kosovo and the international
community. He remarked that the Kosovo Albanians had wanted the term
“Constitution” to be used, references to the will of the people and to the
Kosovo Protection Service, a directly elected President and a Constitutional Court.
The Kosovo Serbs, who had withdrawn from the group's activities but returned
towards the end, had insisted on Yugoslavia's
territorial integrity, the return of refugees, language provisions and a
special procedure giving minorities a right of veto when their interests were
at stake. A compromise solution was found, which avoided any reference to a sovereign
state. The final text, published by the Secretary General's Special
Representative on 15 May, had been criticised by the two parties but they had
confirmed that they would co-operate. The wording ensured a balance of powers
and specific rights for minorities. The Secretary General's Special
Representative had control of points of tension between the communities.
19. OTHER CONSTITUTIONAL ISSUES
In 2001
the Commission continued its regular exchanges of views with its members, begun
in 2000, on constitutional issues of interest in their countries that had not
formed the object of the Commission’s work. These exchanges of views, which
provided a welcome occasion to enrich the Commission’s debates, are referred to
above wherever the Commission co-operated with the country in question during
2001 on other matters. Other exchanges
are reported below.
-
France
Mr Robert
described the main current constitutional issues in France. First, two highly ranked courts had
recently handed down judgments on the status of the head of state with respect
to criminal law. The Constitution was silent on the question, except insofar as
it provided that the President shall not be held liable for acts performed in
the exercise of his or her duties except in the case of high treason, and that
he or she shall be tried by the High Court of Justice. The Constitutional
Council had found that in consequence, the President could only be tried by the
High Court of Justice, at the request of the parliament; however, he or she was
liable before this court for all acts. On the other hand, the Court of
Cassation had found, when examining whether the President could be required to
appear as a witness in a criminal case, that the High Court of Justice was
competent with respect to acts committed during the President’s term of office,
whereas for all other acts, the President should be judged by the ordinary
courts, but only after the completion of his or her term of office.
There had
also been much debate as to whether the electoral timetable could be inversed
in 2002, in order that the presidential election may occur before the general
election also due next year. Mr Robert explained that this inversion was
essential in order to preserve the logic of the Fifth Republic, the
good functioning of which required that the President, elected by universal
suffrage and with significant powers, be supported by a parliamentary majority.
A third
point of interest was the draft law dealing with the status of Corsica, which inter
alia went considerably further than most laws on decentralisation, granting
the assembly of Corsica the right to introduce measures derogating from laws
passed at the central level wherever specific problems were identified. There
was a risk that this draft may be found to be unconstitutional, as it may
undermine the indivisibility of the French state.
- Constitutional
developments in Italy
Mr Bartole informed the Commission about
the recent constitutional law approved by referendum in October 2001 and which
reorganised the powers of the regions.
Through this reform, Italy was
acquiring all the hallmarks of a shift to federalism: matters which came within the jurisdiction of
central government were specifically indicated, while the regions exercised
overall authority. Under the present
arrangement, the regions no longer required a transfer of power from central
government in order to pass laws, as the power to legislate was assigned to
them directly by the Constitution.
There were, however, two types of
legislation: laws derived from an
unlimited authority vested in the regions and laws derived from a concurrent
authority with central government, within the general framework of compliance
with the Constitution and international commitments of the state. What distinguished the Italian system from
federalism proper was the co-existence of lower-level local authorities,
municipalities and provinces which continued to operate under the wing of
central government. The future of these
reforms remained politically uncertain, for they still had to be implemented by
the new majority which had challenged them and had just submitted a new
proposal. Another important aspect of
this reform concerned central government control over regional legislation, and
the move from prior controls (ie before legislation came into force) to post
factum reviews. Mr La Pergola drew the
Commission’s attention to the new prominence that the draft seemed to give to
international treaties: international
treaties could now prevail over any incompatible legislation, whether national
or regional. Direct applicability of
treaties was a new concept that had been introduced by the reform.
- United States of America
As part of the debate on terrorism and
what the fight against terrorism might mean for the rule of law and procedural
safeguards, Mr Rubenfeld was asked to outline the latest developments in the United States in response to the tragic events of 11 September 2001.
Mr Rubenfeld said that the recent
provisions on the setting-up of special military tribunals in the United States were designed to address the potential problem of capturing persons
who had committed or ordered the terrorist attacks of 11 September. It was unlikely that ordinary criminal
proceedings would provide the authorities with sufficient safeguards to counter
the terrorist threat.
At the same time, the main difficulty lay
in the fact that the rule of law, fundamental safeguards and the principle of a
fair trial must nevertheless continue to be upheld.
The rule of law could be applied to the
definition of terrorism mainly in relation to the right of combatants in the
current military operations, detainees, fair trial and the procedure to be
followed. The challenge was to reconcile
military action with the requirements of the rule of law without sacrificing
the latter. The Venice Commission was
certainly an ideal forum for exploring these issues and the United States would be most interested in participating in any discussions on the
subject.
II. Co-operation between the Commission and
the statutory organs of the Council of Europe, the European Union and
international organisations
- Co-operation
with the Committee of Ministers
Representatives
from the Committee of Ministers participated in all the Commission’s plenary
meetings during 2001.
At the
46th Plenary Meeting by Mr Erkki Kourula, Permanent Representative
of Finland
to the Council of Europe referred
to the importance and success of the Venice Commission, particularly in its
dealings with the Committee of Ministers.
He congratulated and thanked the Commission for its study of the
constitutional implications of ratification of the Statute of the International
Criminal Court and said that it was important for every country to ratify this
treaty. At the same meeting, Mr
Olexandre Chalyi, Permanent Representative of Ukraine to the
Council of Europe also referred
to the Commission's major role in conflict resolution, for which it offered a
general framework for problem solving through its experience and
expertise. It had overseen Europe's constitutional development and was still
ideally placed to offer legal assessments of and possible responses to the
problems now facing the more long-standing as well as the new democracies.
The 47th
Plenary Meeting was attended by Mr Jacques Warin, Permanent Representative of France to the
Council of Europe
and by Mr Mark Entin, Chargé d’affaires a.i. of the Russian Federation
to the Council of Europe.
Mr Warin
held an exchange of views with the Commission concerning the possiblity of
co-operation with the Universal Encyclopaedia of Human Rights.
The 48th
Plenary Meeting was attended by Mr Athanasios Theodorakopoulos, Permanent
Representative of Greece
to the Council of Europe and by Mr Torbjorn Aalbu, Permanent Representative of Norway to the
Council of Europe.
Mr
Theodorakopoulos reaffirmed the Committee of Ministers’ keen interest in the
work of the Venice Commission, highlighting its merits not only as an
instrument for the consolidation of democratic institutions in Europe but also in the field of preventive
diplomacy. He referred to the Commission’s co-operation with Armenia and Azerbaijan as important examples of the
Commission’s role in consolidating institutions and ensuring conformity of laws
with Council of Europe standards.
Mr Aalbu, emphasised the Commission’s importance in providing
necessary professional and legal assistance to the Committee of Ministers,
adding that the regular exchanges of views between the Secretariat and the
Committee of Ministers’ deputies were very useful in this regard. He mentioned
that Norway
had always supported the work of the Commission, including through its
voluntary contribution to the Commission’s work with new democracies in
southern Africa.
At the 49th Plenary Meeting Mr
Alexandre Orlov, Permanent Representative of the Russian Federation to the
Council of Europe presented the
Commission with the Russian Federation’s decision to join the Venice Commission
as from 1 January 2002 and announced the appointment of Mr Baglay, President of
the Constitutional Court of the Russian Federation, as a member and of Mr
Toumanov, former President of the Constitutional Court, as substitute member. Mr Igor Grexa, Deputy Permanent
Representative of the Slovak Republic to the Council of Europe, reported on the
Committee of Ministers discussions concerning changes to the Commission’s
Statute.
- Co-operation
with the Parliamentary Assembly of the Council of Europe
The Commission
continued its close co-operation with the Parliamentary Assembly during 2001.
Representatives from the Assembly were present at all the Commission’s Plenary
Meetings, and the Commission was delighted to welcome the President of the
Assembly, Lord Russell-Johnston, to its 48th Plenary Meeting.
Throughout the
year, thanks to the regular exchanges of views held with these representatives,
the Commission was kept informed of the major issues on the Assembly’s agenda.
These included, amongst others, post-accession monitoring with respect to
Armenia and Azerbaijan, the accession requests of Bosnia and Herzegovina, the
Federal Republic of Yugoslavia and Monaco, the execution of decisions of the
European Court of Human Rights, the possibility of European Union accession to
the European Convention on Human Rights and the impact of the EU Charter of
Fundamental Rights on human rights protection in Europe, as well as the
possible adoption of further protocols to the European Convention on Human
Rights, dealing with minority rights and with the abolition of the death
penalty at all times. The Assembly was again examining the situation of the
French-speaking population living in certain areas of Belgium. Finally, its fourth part-session in
2001 had been very much under the shadow of the events of 11 September and the
question of the battle against terrorism had dominated debates.
Once
again, requests from the Assembly formed the basis of a significant proportion
of the Commission’s work in 2001. These requests concerned in particular:
-
the implications of the
decision of the Constitutional Court of Bosnia and Herzegovina on the issue of
the “constituent peoples”;
-
the Electoral Law of Bosnia and Herzegovina;
-
the Constitutional Law on the
Rights of National Minorities in Croatia;
-
the amendments of 9 November 2000
and 28
March 2001 to the Constitution of
Croatia;
-
the Ukraine
Constitutional Reform Project;
-
the constitutional situation in
the Federal Republic of
Yugoslavia;
-
the
legal system of the Palestinian autonomous territories.
The Commission’s Guidelines for
Constitutional Referendums at National Level were also drawn up following an
initiative of the Assembly.
At the
Commission’s 48th Plenary Meeting, Mr Jurgens referred to the
proposals to amend the Statute of the Commission, stating that the draft report
on the composition of the Commission prepared for the Assembly’s Committee on
Legal Affairs and Human Rights had reached very similar conclusions to those of
the Commission itself.
Mr
Clerfayt, member of the Political Affairs Committee, informed the Commission at
its 49th Plenary Meeting of Parliamentary Assembly of
Resolution 1264 on preparing a “code of good practice in electoral
matters” and of the invitation to the Venice Commission to set up a working group.
The Commission warmly welcomed this proposal for co-operation and decided to
set up a working group comprising representatives of the Parliamentary
Assembly, the CLRAE and other organisations with experience in this area as
observers (the OSCE, through ODIHR and its Parliamentary Assembly, and the EU,
through the European Parliament and the European Commission). The Group will
discuss electoral issues on a regular basis, devise a code of good practice in
electoral matters and compile a list of basic principles of European electoral
systems. The code of good practice will be designed to help prevent different
electoral standards from developing in Europe
and to standardise election monitoring criteria. In the medium term, the data
collected on European elections should be entered into a database, and analysed
and disseminated by a specialised unit. The first meeting of the
Group is to be held in Venice, immediately prior to the
Commission’s first plenary meeting for 2002.
Finally,
at the end of 2001 the Commission was working on a number of requests received
in the course of the year from the Assembly. These included an opinion on the
possible groups of persons to which the Framework Convention on National
Minorities could be applied in Belgium, as
well as two opinions falling within the framework of the Assembly’s
post-accession monitoring of Ukraine.
- Co-operation
with other bodies of the Council of Europe
- Congress
of Local and Regional authorities of Europe
The Commission continued its close
co-operation with the CLRAE in particular concerning Bosnia and Herzegovina, Croatia, Moldova and the situation in Kosovo, as well as
the study on the financing of political parties. A Representative of the Congress participated
at all the Commission’s Plenary Meetings during 2001.
- Council
of Europe Development Bank
At the
Commission’s 48th Plenary Meeting, Mr Raphael Alomar, Governor of
the Development Bank, highlighted the complementarity of the Bank and the Commission.
Not only did they share a common vocation in the service of democracy, social
cohesion and the respect of the individual, but they had a natural closeness by
their nature as Partial Agreements of the Council of Europe and a shared vision
of Europe and
its future. The increase in the Bank’s activities in favour of countries in
transition and of vulnerable populations widened the possibilities for
co-operation between the Commission and the Bank: first, the Bank could benefit
further from the Commission’s thorough knowledge of the legal and institutional
aspects of transition, and second, the latter’s work with respect to civil
society could increase the effectiveness of the Bank’s activities in the field
of social cohesion and with respect to minorities. Mr Alomar hoped that such
mutually beneficial co-operation would continue to become closer in future.
- Co-operation with the
European Union
A Joint Programme between the
European Commission and the Venice Commission entitled "Strengthening
democracy and constitutional development in central and eastern Europe and CIS
countries" came into force on 1 January 2000 for a period of 2 years – this programme has been
extended until the end of 2002. The activities provided for in the programme
include exchanges of views to provide assistance to states in drafting and
implementing constitutional provisions and legislation on democratic
institutions, seminars with recently established constitutional courts, UniDem
("Universities for Democracy") seminars on topics of current
constitutional importance and the publication of two special editions of the
Bulletin on Constitutional Case-Law. The programme also facilitates the
participation of experts from central and eastern
Europe and CIS countries in exchanges of views on constitutional issues at
plenary meetings of the Venice Commission and provides for the participation of
a representative of the European Commission to identify activities and
priorities jointly with the Venice Commission.
At the request of Mr F. Léotard, Special Representative
of the European Union in Skopje, a Commission representative took part in the
drafting of the Ohrid Framework Agreement in “the Former Yugoslav Republic of
Macedonia” (see above point 15).
The European Commission took an active part in the work
of the Venice Commission and was represented at most of the Plenary Meetings in
2001.
-
Co-operation
with the OSCE
Representatives of the OSCE and ODIHR participated in
many meetings, seminars and Conferences organised by the Commission during
2001.
-
Co-operation
with the United Nations
At the request of the Special Representative of the
Secretary General of the United Nations, Mr H. Haekkerup, Commission
representatives took part in the drafting of the “Constitutional Framework for
Provisional Self-Government in Kosovo (see above point 18).
At the request of the United Nations Special
representative in Georgia, and in
conjunction with the Council of Europe’s Commissioner for Human Rights, the Commission organised a meeting on the Status of
Abkhazia, in Pitsunda on 12-13
February 2001 (see above point 7).
III.
Studies of the Venice Commission
1. Report
on the judgments of constitutional courts and the execution thereof,
At its
46th Plenary Meeting (Venice,
31 March-1 April 2001) the Venice Commission adopted its report on the
judgements of constitutional courts and the execution thereof (CDL-INF (2001) 9).
At the dawn of the twenty-first century, constitutional courts have
become one of the pillars of the primacy of law and, more generally, of
constitutional law. Even though their role and jurisdiction differ from State
to State, since they were instituted in very different historical and political
circumstances, it is essential that their decisions should be carried out
effectively. Accordingly, the main aim of the Venice Commission’s study is to
consider the effects of judgments of constitutional courts and their execution,
an exercise carried out in Parts 2 and 3. These questions, however, cannot be
divorced from an examination of the type and purpose of the review of
constitutionality, which are considered in Part 1.
Consequently,
the study is not confined to issues relating to the execution of constitutional
decisions, but sets out to provide a general description of the functioning of
constitutional courts of States taking part in the proceedings of the Venice
Commission. The study is based on the questionnaire on judgments of
constitutional courts and their execution which was adopted by the Venice Commission
following its 43rd meeting (June 2000). 45 States sent replies to the questionnaire
to the Secretariat.
2. Guidelines
on the financing of political parties
Following the report on the financing of political
parties drawn up by Mr Robert and adopted by the Commission in 2000, the
Commission set up a Rapporteur Group composed of Messrs Robert (Chairman of the
Group), Özbudun, Luchaire, Ms Err and Mr Vogel.
This group drew up guidelines on the financing of political parties
(CDL-INF (2001) 8) at the meeting held in Paris on 30 November 2000
which were adopted by the Commission at its 46th Plenary Meeting
(9-10 March 2001).
The Venice Commission’s guidelines on the
financing of political parties read as follows:
“The Venice
Commission:
Being
engaged in the promotion of fundamental principles of democracy, of the rule of
law and the protection of human rights, and in the context of improving
democratic security for all;
Noting
with concern problems relating to the illicit financing of political parties
recently uncovered in a number of Council of Europe
member states;
Taking
into account the essential role of political parties within democracy and
considering that freedom of association, including that of political
association, is a fundamental freedom protected by the European Convention on
Human Rights and is one of the cornerstones of genuine democracy, such as that
envisaged by the Statute of the Council of Europe;
Paying
particular attention to state practice in the area of financing of political
parties;
Recognising
the need to further promote standards in this area on the basis of the values
of European legal heritage;
Has
adopted the following guidelines:
1.
For the purpose of these
guidelines, a political party is an association of persons one of the aims of
which is to participate in the management of public affairs by the presentation
of candidates to free and democratic elections.
2.
Such political parties may seek
out and receive funds by means of public or private financing.
A Regular Financing
a.
Public
Financing
3.
Public financing must be aimed
at each party represented in Parliament.
4.
In order, however, to ensure
the equality of opportunities for the different political forces, public
financing could also be extended to political bodies representing a significant
section of the electoral body and presenting candidates for election. The level of financing could be fixed by
legislator on a periodic basis, according to objective criteria.
Tax
exemptions can be granted for operations strictly connected to the parties’
political activity.
5.
The financing of political
parties through public funds should be on condition that the accounts of
political parties shall be subject to control by specific public organs (for
example by a Court of Audit). States
shall promote a policy of financial transparency of political parties that
benefit from public financing.
b.
Private
Financing
6.
Political parties may receive
private financial donations. Donations
from foreign States or enterprises must however be prohibited. This prohibition should not prevent financial
donations from nationals living abroad.
Other
limitations may also be envisaged. Such
may consist notably of:
a.
a maximum level for each
contribution;
b.
a prohibition of contributions
from enterprises of an industrial, or commercial nature or from religious
organisations;
c.
prior
control of contributions by members of parties who wish to stand as candidates
in elections by public organs specialised in electoral matters.
7.
The
transparency of private financing of each party should be guaranteed. In
achieving this aim, each party should make public each year the annual accounts
of the previous year, which should incorporate a list of all donations other
than membership fees. All donations exceeding an amount fixed by the legislator
must be recorded and made public.
B Electoral Campaigns
8.
In order to ensure equality of
opportunities for the different political forces, electoral campaign expenses
shall be limited to a ceiling, appropriate to the situation in the country and
fixed in proportion to the number of voters concerned.
9.
The State should participate in
campaign expenses through funding equal to a certain percentage of the above ceiling or proportional to the number of votes
obtained. This contribution may however
be refused to parties who do not reach a certain threshold of votes.
10.
Private contributions can be
made for campaign expenses, but the total amount of such contributions should
not exceed the stated ceiling.
Contributions from foreign States or enterprises must be prohibited. This prohibition should not prevent financial
contributions from nationals living abroad.
Other
limitations may also be envisaged. Such may consist notably of a prohibition of
contributions from enterprises of an industrial or commercial nature or
religious organisations.
11.
Electoral campaign accounts
will be submitted to the organ charged with supervising election procedures,
for example, an election committee, within a reasonable time limit after the
elections.
12.
The transparency of electoral
expenses should be achieved through the publication of campaign accounts.
C. Control and sanctions
13.
Any irregularity in the
financing of a political party shall entail sanctions proportionate to the severity
of the offence that may consist of the loss of all or part of public financing
for the following year.
14.
Any irregularity in the
financing of an electoral campaign shall entail, for the party or candidate at
fault, sanctions proportionate to the severity of the offence that may consist
of the loss or the total or partial reimbursement of the public contribution,
the payment of a fine or another financial sanction or the annulment of the
election.
15.
The above-mentioned rules
including the imposition of sanctions shall be enforced by the election judge
(constitutional or other) in accordance with the law.”
3. Guidelines for
constitutional referendums at national level
At its
47th Plenary Meeting (Venice,
6-7 July 2001) the Venice Commission adopted guidelines on constitutional
refrendums (CDL-INF (2001) 10).
Recent experience
of constitutional referendums in the new democracies has highlighted a number
of issues which the present guidelines seek to address. These guidelines set
out minimum rules for constitutional referendums and are designed to ensure
that this instrument is used in all countries in accordance with the principles
of democracy and the rule of law.
Constitutional
referendums are taken as referring to popular votes in which the question of
partially or totally revising a State’s Constitution (and not of its federated
entities) is asked, irrespective of whether this requires voters to give an
opinion on a specific proposal for constitutional change or on a question of
principle.
By definition a constitutional referendum is
concerned with a partial or total
revision of the Constitution.
Constitutional referendums generally take one of
the following forms:
A constitutional referendum may :
·
be required by the
text of the Constitution which provides that certain texts are automatically
submitted to referendum after their adoption by Parliament
(mandatory referendum);
·
take place
following a popular initiative :
-
either a
section of the electorate puts forward a text which is then submitted to
popular vote;
-
or a section of
the electorate requests that a text adopted by Parliament be submitted to
popular vote;
·
be called by an
authority such as :
-
Parliament
itself or a specific number of members of Parliament;
-
the Head of
State or the government;
-
one or several territorial Entities.
Constitutional
referendums may be held both with respect to texts already approved or not yet approved by Parliament.
They
may take the form of :
- a vote on specifically-worded draft
amendments to the constitution or a specific proposal to abrogate existing
provisions of the Constitution;
- a vote on a question of
principle (for example: “are you in favour of amending the constitution
to introduce a presidential system of government?”); or
- on a concrete proposal which does not have the form of
specifically worded amendments, known as a “generally worded proposal” (for example: “are you in favour of
amending the Constitution in order to reduce the number of seats in
Parliament from 300 to 200?”).
It
could be a question of :
- a legally binding referendum
or
- a non-legally binding referendum
4. Opinion on the
preferential treatment of national minorities by their kin-State
On 21 June 2001, Romania’s Prime Minister, Mr A.
Nastase, requested the Venice Commission to examine the compatibility of the
Act on Hungarians living in neighbouring countries, adopted by the Hungarian
Parliament on 19 June 2001, with the European standards and the norms and
principles of contemporary public international law.
On 2 July 2001, the Hungarian Minister of Foreign
Affairs, Mr J Martonyi, requested the Venice Commission to carry out a
comparative study of the recent tendencies of the legislations in Europe
concerning the preferential treatment of persons belonging to national
minorities living outside the borders of their country of citizenship.
At its
plenary session of 6-7 July 2001, the Venice Commission decided to undertake a
study, based on the legislation and practice of certain member States of the
Council of Europe, on the preferential treatment by a State of its
kin-minorities abroad. The aim of the study would be to establish whether such
treatment could be said to be compatible with the standards of the Council of
Europe and with the principles of international law.
A
working group was thereafter formed, consisting of Messrs Franz Matscher,
François Luchaire, Giorgio Malinverni and Pieter Van Dijk. A meeting was held
in Paris on 18 September 2001. The Rapporteurs met with representatives of the
Romanian and the Hungarian Governments respectively, in order to obtain certain
clarifications following the information that both parties had submitted, at
the Commission’s request, in August.
The
report (CDL-INF (2001) 19) was prepared on the basis of comments by Messrs
Matscher, Luchaire, Malinverni and Van Dijk; it was discussed within the
Sub-Commission for the Protection of Minorities on 18 October 2001, and was
subsequently adopted by the Commission
at its 48th Plenary Meeting held in Venice on 19-20 October 2001.
The report concludes :
Responsibility for minority protection
lies primarily with the home-States. The Commission notes that kin-States also
play a role in the protection and preservation of their kin-minorities, aiming
at ensuring that their genuine linguistic and cultural links remain strong.
Europe has developed as a cultural unity based on a diversity of interconnected
languages and cultural traditions; cultural diversity constitutes a richness,
and acceptance of this diversity is a precondition to peace and stability in
Europe.
The
Commission considers, however, that respect for the existing framework of minority
protection must be held as a priority. In this field, multilateral and
bilateral treaties have been stipulated under the umbrella of European
initiatives. The effectiveness of the treaty approach could be undermined, if
these treaties were not interpreted and implemented in good faith in the light
of the principle of good neighbourly relations between States.
The
adoption by States of unilateral measures granting benefits to the persons
belonging to their kin-minorities, which in the Commission's opinion does not
have sufficient diuturnitas to have
become an international custom, is only legitimate if the principles of
territorial sovereignty of States, pacta
sunt servanda, friendly relations amongst States and the respect of human
rights and fundamental freedoms, in particular the prohibition of
discrimination, are respected.
Respect
for these principles would seem to require that certain features of the
measures in question be respected, in particular:
- A State may issue acts
concerning foreign citizens inasmuch as the effects of these acts are to
take place within its borders.
- When these acts aim at
deploying their effects on foreign citizens abroad, in fields that are not
covered by treaties or international customs allowing the kin-State to assume
the consent of the relevant home-states, such consent should be sought
prior to the implementation of any measure.
- No quasi-official function
may be assigned by a State to non-governmental associations registered in
another State. Any form of certification in situ should be obtained through the consular authorities
within the limits of their commonly accepted attributions. The laws or
regulations in question should preferably list the exact criteria for
falling within their scope of application. Associations could provide
information concerning these criteria in the absence of formal supporting
documents.
- Unilateral measures on the
preferential treatment of kin-minorities should not touch upon areas
demonstrably pre-empted by bilateral treaties without the express consent
or the implicit but unambiguous acceptance of the home-State. In case of
disputes on the implementation or interpretation of bilateral treaties,
all the existing procedures for settling the dispute must be used in good
faith, and such unilateral measures can only be taken by the kin-State if
and after these procedures prove ineffective.
- An administrative document
issued by the kin-State may only certify the entitlement of its bearer to
the benefits provided for under the applicable laws and regulations.
- Preferential treatment may
be granted to persons belonging to kin-minorities in the fields of
education and culture, insofar as it pursues the legitimate aim of
fostering cultural links and is proportionate to that aim.
- Preferential treatment
cannot be granted in fields other than education and culture, save in
exceptional cases and if it is shown to pursue a legitimate aim and to be
proportionate to that aim.
IV. Centre on Constitutional Justice
In line with the objective of the Venice Commission to
favor co-operation with regional bodies representing constitutional courts and
equivalent jurisdictions, the year 2001 brought about a deepening of the
relations with the Conference of the European
Constitutional Courts, the Association of Constitutional Courts using the
French Language and constitutional
and supreme courts in the Southern African (SADC) region.
This trend also manifested itself in the demand for
sub-regional events within the framework of the programme of seminars in co-operation with constitutional courts (CoCoSem) and
the development of the database CODICES on constitutional case-law which
was extended to meet the needs of regional co-operation.
Regional co-operation
Upon request of the Belgian Presidency of the
Conference of the European Constitutional Courts the Commission prepared a
special issue of the Bulletin on Constitutional Case-Law on the topic of the
next Conference: "The relations between the
constitutional courts and the other national courts, including the interference
in this area of the action of the European courts"
The
Association of Constitutional Courts using the French Language (ACCPUF)
requested assistance from the Secretariat for the organisation of a training seminars for their national correspondents who
started to contribute to the CODICES database by virtue of a protocol to the
co-operation agreement with ACCPUF. The first such contributions were already
into the database.
At a
meeting of Presidents of Constitutional and Supreme Courts from the Southern
African region (SADC), organised within the framework of the programme
“Democracy, from the law book to real life”, funded by Switzerland, the
participating courts decided to nominate liaison officers in order to exchange
their case-law via the CODICES database of the Commission. Shortly thereafter,
a first meeting of these liaison officers was held during which they were
trained in the preparation of contributions to the database. The courts were
equipped with necessary computer equipment financed via the programme. Given
that the funds by the Swiss government have come to an end, the continuation of
this co-operation will depend on the availability of sufficient funding.
Seminars in
co-operation with constitutional courts
Seminars in co-operation with constitutional courts
(CoCoSem) geared towards an exchange of experience between practitioners
(judges and staff of the courts) from 'older' and more recently established
constitutional courts were organised in co-operation with the constitutional
courts of Armenia, Azerbaijan, Kyrgyzstan, South Africa and Ukraine. The issues
dealt with included the independence of the constitutional court, requirements
of the law on the constitutional court, property rights, the role of the
constitutional court in society and its relations with the media. The courts
highly appreciated the input by the rapporteurs representing the Commission as
well as its organisational assistance.
Bulletin
on Constitutional Case-Law and CODICES database
In 2001, issue 6 of the series of special Bulletins on
"Basic Texts" containing the laws governing the work of participating
courts and relevant extracts of the constitutions was published together with
three regular issues of the Bulletin on
Constitutional Case-Law.
The CODICES database
was further enlarged to contain about 3200 summaries
and 4000 full texts of decisions from constitutional courts and equivalent
bodies, together with the laws on the courts, their descriptions and
constitutions. The English and French versions of CODICES were merged to
provide a better overview of the available resources and to prepare for
regional co-operation with ACCPUF (francophone) and the SADC courts (mostly
anglophone). A new chapter ('book') was added to the database in order to
facilitate research and to provide improved cross-references between the data.
Search facilities by (sub-) region were included.
Within the context of the co-operation with ACCPUF and
upon strong pressure from the participating courts the previously paying
Internet version of CODICES was made public without restrictions. ACCPUF agreed
to compensate for the loss of revenue.
V. The UniDem (Universities for Democracy)
Programme
The Commission organised
two seminars within the framework of this programme during 2001:
1. Seminar
on “Democracy, rule of law
and foreign policy” in co-operation with the Constitutional Court (Skopje, 4-5 October 2001)
The Commission
organised, in co-operation with the Constitutional Court of “the former
Yugoslav Republic of Macedonia” a Seminar on “Democracy, Rule of Law and
Foreign Policy” in Skopje on 4-5 October 2001.
The Venice Commission has
been working for several years on the question of law and foreign policy. In
1998 it carried out a detailed study of this issue, which was published in the
series Science and technique of democracy. The seminar in Skopje was a very
useful initiative aimed at having an exchange of views of representatives of
different countries.
The question of rule of law and foreign
policy was of particular interest and importance for “the Former Yugoslav
Republic of Macedonia” in the light of the impact of international norms and
instruments of co-operation on domestic law. Among other issues tackled by the
rapporteurs, the role of the judicial control in this process was paid
particular attention. The participants of the seminar had a very fruitful
exchange of views on the experience of different countries in this field,
notably that of Croatia, France, Germany and Ireland.
The seminar proved very
useful both in providing a comparative study of the practice in different
countries and in addressing more specifically the situation in “the Former
Yugoslav Republic of Macedonia”.
2. Seminar
on “the constitutional implications of accession to the European Union” in
co-operation with the University of Bilkent
(Ankara, 9-10 November 2001)
The Commission
organised, in co-operation with the University of Bilkent, Ankara a Seminar on
“The constitutional implications of accession to the European Union” in Ankara
on 9-10 November 2001).
The
Venice Commission has been working for several years on the question of the
influence of European integration on domestic constitutional law. This has become one of the most important
legal questions on our continent, as the enlargement of the European Union is
one of the major endeavours over the next few years.
In
addition, the question is particularly topical in Turkey owing to draft
constitutional reform adopted by the Parliament aimed, amongst other things, at
ensuring the conformity of Turkish constitutional law with European law.
The
seminar was divided into two parts, one comparative, the other more specifically
devoted to the situation in Turkey.
A comparative report on the situation
in member States entitled “the experience of half a century of European
integration” was presented by Mr Hans-Heinrich Vogel, Professor at Lund
University (Sweden). Subsequently, the
situation in the candidate states was dealt with in a general manner.
The part of the Seminar more
specifically devoted to Turkey was divided into two sections, the first dealt
with the European Union’s point of view, and the second with that of Turkey.
The concluding
report was presented by Ms Nanette Neuwahl, Professor of European Law, Montreal University.
This seminar was
organised within the
framework of the Joint Programme between the European Commission and the Venice
Commission of the Council of Europe for strengthening democracy and
constitutional development in central and Eastern Europe and the CIS.
The proceedings
of this seminar will be published in the series Science and Technique of
Democracy.
3. Preparation
of forthcoming seminars
It is
envisaged to hold the following UniDem seminars in 2002 :
-
a
seminar on “The Post-Communist State : the Construction of an idea” (Paris, 5-6
April 2002);
-
a seminar on “the resolution by
the Constitutional Court of conflicts between the central State and entities
with legislative power” will take place on 14-15 June 2002 in Rome;
-
a seminar on “Constitutional
Courts and European Integration” will take place in Košice
(Slovak Republic) on 19-21 September 2002;
4. UniDem Campus for the legal training of
the civil service
In 2001, the Commission pursued legal training for the civil
service, an initiative launched in 2000 and known as “the Unidem Campus
Trieste”. Four seminars were organised during 2001: on “Public Administration
and the Individual in the light of the European Convention on Human Rights”
(14-18 May 2001), on “The principle of non-discrimination and the protection
by the Public Administration of the rights of ethnic, cultural and linguistic
minorities” (11-15 June 2001), on “Control of Administrative bodies:
judicial control, administrative control, the Ombudsman” (24-18 September
2001) and on “the Guarantees of property rights in the new democracies of
Central and Eastern Europe” (26-30 November 2001).
A
meeting with the national correspondents of the nine countries involved
(Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Moldova, Romania,
Slovenia, “the Former Yugoslav Republic of Macedonia” and the Federal Republic
of Yugoslavia) was held in Trieste on 24 November 2001, at which satisfaction
was expressed for the high level of the lectures and the interest shown by the
participants, and several suggestions were made in order to improve further
this activity in 2002.
The Unidem Campus Trieste is financed by the Italian authorities.
A P P E
N D I X I
LIST
OF MEMBERS OF THE EUROPEAN COMMISSION
FOR
DEMOCRACY THROUGH LAW
Mr Antonio LA PERGOLA (Italy), President, Judge at
the Court of Justice of the European Communities
(Substitute: Mr Sergio BARTOLE, Professor, University of Trieste)
*
* *
Mr Jacques ROBERT (France), Vice-President,
Honorary President of the Paris University of Law, Economics and Social
Science, Former Member of the Constitutional Council
Ms Hanna SUCHOCKA (Poland), Vice-President,
Ambassador of Poland to the Holy See
Mr Kaarlo TUORI (Finland), Vice-President,
Professor of Administrative law, University of Helsinki
(Substitute: Mr Matti NIEMIVUO, Director at the
Department of Legislation, Ministry of Justice)
*
* *
Mr Constantin ECONOMIDES (Greece), Professor, Pantios
University, Former Director of the Legal Department, Ministry of Foreign
Affairs
(Substitute: Mr Dimitri CONSTAS, Professor, Panteio
University, Director of the Greek Institute of International Relations)
(Substitute: Ms Fani DASKALOPOULOU-LIVADA, Assistant
Legal Adviser, Legal Department, Ministry of Foreign Affairs)
Mr Giovanni GUALANDI (San Marino), Vice-President of the
Council of Presidency of the Legal Institute of San Marino
Mr Giorgio MALINVERNI (Switzerland), Professor,
University of Geneva
Mr Franz MATSCHER (Austria), Professor, University of
Salzburg, Former judge at the European Court of Human Rights
(Substitute: Ms Ingrid SIESS-SCHERZ, Head of Division, Federal
Chancellery)
Mr Ergun ÖZBUDUN (Turkey), Professor, University of
Bilkent, Vice President of the Turkish Foundation for Democracy
Mr Gérard REUTER (Luxembourg), Former President of the
Board of Auditors
(Substitute : Ms Lydie ERR,
Member of Parliament)
Mr Jean-Claude SCHOLSEM (Belgium), Professor, Law
Faculty, University of Liège
Mr Michael TRIANTAFYLLIDES (Cyprus), Chairman of the Council
of the University of Cyprus, Former President of the Supreme Court and former
Attorney-General of the Republic
(Substitute : Mr Panayotis
KALLIS, Supreme Court Judge)
Mr Helmut STEINBERGER (Germany), Director of the Max-Planck Institute, Professor, University of Heidelberg
(Substitute : Mr Georg NOLTE,
Professor of Public Law, University of Goettingen)
Mr Jan HELGESEN (Norway), Professor, University of Oslo
Mr Gerard BATLINER (Liechtenstein), , Member, Academic
Council of the Liechtenstein Institute
Mr Joseph SAID PULLICINO (Malta), Chief Justice
Mr Ján KLUCKA (Slovakia), Judge, Constitutional Court
(Substitute: Mr Peter KRESAK, Professor, Member of the
National Council of Slovakia)
Mr Peter JAMBREK (Slovenia), Professor, High School of
Government Administration, Former Minister of the Interior, Former President of
the Constitutional Court, Former Judge at the European Court of Human Rights
(Substitute: Mr Anton PERENIC, Professor of Law, former
Judge of the Constitutional Court)
Mr Kestutis LAPINSKAS (Lithuania), President, Supreme
Administrative Court
Mr Cyril SVOBODA (Czech Republic), Shadow Prime
Minister, Member of Parliament
(Substitute : Ms Ivana JANU,
Vice-Chairman, Constitutional Court)
Mr Aivars ENDZINS (Latvia), President, Constitutional Court
Mr Alexandre DJEROV (Bulgaria), Advocate, Member of the National Assembly
(Substitute: Mr Vassil
GOTZEV, Judge, Constitutional
Court)
Ms Carmen IGLESIAS CANO (Spain), Director of the Centre for Constitutional Studies
(Substitute: Mr Luis LOPEZ GUERRA, Professor,
Universidad Carlos III)
Mr Rune LAVIN (Sweden), Justice, Supreme Administrative
Court
(Substitute : Mr
Hans Heinrich VOGEL, Professor in Public Law, University of Lund)
Mr Stanko NICK (Croatia), Ambassador
of Croatia in Hungary
(Substitute: Mrs Marija SALECIC, Legal Adviser, Constitutional Court)
Mr Tito BELICANEC, ("The former Yugoslav Republic of Macedonia"), Professor, Faculty of Law, University of Skopje
(Substitute: Mr Igor SPIROVSKI, Secretary General, Constitutional Court)
Mr James HAMILTON (Ireland), Director of Public Prosecutions
Mr Luan OMARI (Albania), Vice President, Sciences Academy of Albania
Mr Hjörtur TORFASON (Iceland), Former Judge, Supreme Court of
Iceland
Mr László SÓLYOM (Hungary), Former President of the Constitutional Court
Mr Valeriu STOICA (Romania),
Member of Parliament
(Substitute:
Mr Alexandru FARCAS, State Secretary for European Integration and International
Relations, Ministry of Interior)
Mr Vital MOREIRA (Portugal), Professor, Law Faculty,
University of Coimbra
Ms Maria de Jesus SERRA LOPES, State Counsellor, Former
Chairman of the Bar Association
Mr Pieter VAN DIJK (The Netherlands), State Councillor,
Former Judge at the European Court of Human Rights
(Substitute: Mr Erik LUKACS, Former Legal Adviser,
Ministry of Justice)
Mr Avtandil DEMETRASHVILI (Georgia), Member, Council of
Justice
(Substitute: Mr Gela BEZHUASHVILI,
Deputy Minister of Defence)
Mr François LUCHAIRE (Andorra), Honorary President of the
University of Paris I, Former member of the French Constitutional Council,
former President of the Constitutional Tribunal of Andorra
Mr Peeter ROOSMA (Estonia), Adviser, Supreme Court of
Estonia
Mr Jeffrey JOWELL (United Kingdom), Professor of Public
Law, University College London
Ms Siuzanna STANIK (Ukraine), Minister
of Justice
(Substitute: Mr Volodymyr VASSYLENKO,
Ambassador of Ukraine to the United Kingdom)
Mr Khanlar I. HAJIYEV (Azerbaijan),
President, Constitutional Court
Mr Gaguik HARUTUNIAN (Armenia), President,
Constitutional Court
Mr Henrik ZAHLE (Denmark), Judge, Supreme Court
(Substitute: Mr John LUNDUM, High Court Judge)
Ms Maria POSTOICO (Moldova), Chairperson of the
Committee on Legal Affairs, appointments and immunities, Parliament of Moldova
(Substitute: Mr Vasile RUSU, Deputy Chairperson of the
Committee on Legal Affairs, appointments and immunities, Parliament of Moldova)
Mr Marat V. BAGLAY (Russia)
, President, Constitutional Court
(Substitute: Mr Vladimir TOUMANOV, former President of
the Constitutional Court)
ASSOCIATE
MEMBERS
Mr Anton MATOUCEWITCH (Belarus), Deputy Rector, Commercial University of
Management
Mr Cazim SADIKOVIC (Bosnia and Herzegovina), Dean, Faculty of Law, University of Sarajevo
Mr Vojin DIMITRIJEVIC, (Federal Republic of Yugoslavia),
Director, Belgrade Human Rights Centre
(Substitute: Mr Vladimir DJERIC, Advisor to the Minister
of Foreign Affairs)
OBSERVERS
Mr Hector MASNATTA (Argentina), Ambassador, Executive
Vice-Chairman, Centre for constitutional and social studies
Mr Gérald BEAUDOIN (Canada), Professor, University of
Ottawa, Senator
(Substitute: Mr Yves de MONTIGNY, Senior General
Counsel, Manager Public Law Group, Department of Justice)
Mr Vincenzo BUONOMO (Holy See),
Professor of International Law, Latran University
Mr Amnon RUBINSTEIN (Israel), Chairman, State Control
and Ombudsman Committee, Knesset
Mr Naoki ONISHI (Japan), Consul, Consulate General of Japan,
Strasbourg
Mr Oljas SOULEIMENOV
(Kazakhstan), Ambassador of Kazakhstan in Rome
Mr Yang-Chun PARK (Republic of Korea), Ambassador of the
Republic of Korea to Luxembourg, Belgium and the European Union
Mr Serikul KOSAKOV (Kyrgyzstan), Head of Teaching
Department, Department of Law, Kyrgyz State National University
Mr Porfirio MUÑOZ LEDO (Mexico), Ambassador
Extraordinary and Plenipotentiary, Permanent Observer to the Council of Europe
Mr Jed RUBENFELD (United States of America), Professor,
Yale Law School
Mr Miguel SEMINO (Uruguay), Ambassador of Uruguay in Paris
SECRETARIAT
Mr Gianni BUQUICCHIO
Mr Christos GIAKOUMOPOULOS
Mr Thomas MARKERT
Mrs Simona GRANATA-MENGHINI
Mr Pierre GARRONE
Mr Rudolf DÜRR
Mr Sergueï KOUZNETSOV
Mrs Helen MOORE
Ms Caroline MARTIN
Ms Sarah BURTON
Mrs Michelle REMORDS
Ms Helen MONKS
Ms Brigitte AUBRY
Mrs Agnès READING
Ms Marian JORDAN
Mrs Emmy KEFALLONITOU
Mrs Marie-Louise WIGISHOFF
Ms Jo
FARMER
A P P E
N D I X II
OFFICES
AND COMPOSITION OF THE SUB-COMMISSIONS
OFFICES
AND
COMPOSITION OF THE SUB-COMMISSIONS
- President : Mr La Pergola
- Vice-Presidents : Mr
Robert, Ms Suchocka, Mr Tuori
- Bureau : Mr Hamilton, Mr
Lapinskas, Mr Lavin, Mr Steinberger, Mr Triantafyllides
- Chairmen of Sub-Commissions : Mr Batliner, Mr Economides,
Mr Helgesen, Mr Jambrek, Mr Jowell, Mr Malinverni, Mr Matscher, Mr Moreira, Mr
Özbudun, Mr Said Pullicino, Mr Scholsem, Mr Solyom, Mr van Dijk
- Constitutional Justice : Chairman: Mr Sólyom -
members: Mr Bartole, Mr Batliner, Mr Demetrashvili, Mr Djerov, Mr Endzins, Mr
Gotzev, Mr Hamilton, Mr Harutunian, Ms Janu, Mr La Pergola, Mr Lapinskas, Mr
Lavin, Mr Malinverni, Mr Moreira, Mr Reuter, Mr Robert, Mr Roosma, Mr Said
Pullicino, Mr Scholsem, Mr Spirovski, Ms Stanik, Mr Steinberger, Mr Stoica, Ms
Suchocka, Mr Torfason, Mr Triantafyllides, Mr Vogel, Mr Zahle - observers:
Canada, Israel
- Federal State and Regional State : Chairman: Mr
Malinverni - members: Mr Bartole, Mr Belicanec, Mr Hajiyev, Ms Iglesias, Mr Jowell,
Mr La Pergola, Mr Matscher, Mr Sadikovic Mr Scholsem, Ms Serra Lopes, Mr
Steinberger, Mr Triantafyllides, Mr Tuori – observers: Canada, USA
- International Law : Chairman: Mr Economides -
members: Mr Djerov, Mr Farcas, Mr Gotzev, Mr Helgesen, Mr Klucka, Mr La
Pergola, Mr Luchaire, Mr Lukacs, Mr Malinverni, Mr Matscher, Mr Moreira, Mr
Nick, Mr Steinberger, Mr Triantafyllides
- Protection of Minorities : Chairman: Mr Matscher - members: Mr Bartole,
Mr Belicanec, Mr Economides, Mr Farcas, Mr Gualandi, Mr Hamilton, Mr Helgesen,
Mr Klucka, Mr Malinverni, Mr Nick, Mr Özbudun, Mr Scholsem, Mr Sólyom, Mr
Stoica, Mr Torfason, Mr Triantafyllides, Mr Tuori, Mr van Dijk – observers:
Canada
- Constitutional Reform : Chairman: Mr Batliner - members: Mr Bartole,
Mr Djerov, Mr Endzins, Mr Farcas, Mr Gotzev, Mr Hajiyev, Ms Iglesias, Ms Janu,
Mr La Pergola, Mr Lapinskas, Mr Luchaire, Mr Lukacs, Mr Malinverni, Mr Moreira,
Mr Nolte, Mr Omari, Mr Özbudun, Mr Reuter, Mr Robert, Mr Roosma, Mr Said
Pullicino, Mr Scholsem, Ms Serra Lopes, Mr Spirovski, Mr Steinberger, Mr
Stoica, Ms Suchocka, Mr Torfason, Mr Triantafyllides, Mr Tuori – observers:
Israel
- Democratic Institutions : Chairman: Mr Scholsem - members: Mr
Belicanec, Mr Economides, Mr Endzins, Mr Farcas, Mr Hamilton, Mr Harutunian, Ms
Iglesias, Mr Jambrek, Ms Janu, Mr Jowell, Mr Klucka, Mr Lapinskas, Mr Lavin, Mr
Luchaire, Mr Malinverni, Mr Moreira, Mr Omari, Mr Özbudun, Mr Reuter, Mr
Robert, Mr Roosma, Ms Serra Lopes, Mr Stoica, Mr Svoboda, Mr Triantafyllides,
Mr Tuori, Mr Vogel
- UniDem Governing Board : Chairman: Mr Jowell -
members: Mr Batliner, Mr Djerov, Mr Gualandi, Mr Helgesen, Mr Jambrek, Ms Janu,
Mr La Pergola, Mr Lavin, Mr Moreira, Mr Özbudun, Mr Reuter, Mr Robert, Ms
Suchocka, Mr Svoboda, Mr van Dijk, Mr Vogel – observers: Holy See, ODIHR
Co-opted members : Prof.
Evans (Johns Hopkins University, Bologna), Prof. von der Gablentz (College
of Europe, Bruges),
Prof. Masterson (European University Institute, Florence), Mr
Koller (Federal Office of Justice, Berne)
- South Africa : Chairman: Mr Helgesen -
members: Mr Hamilton, Mr Helgesen, Mr
Jambrek, Mr Jowell, Mr Lavin, Mr La Pergola, Mr Torfason, Mr Tuori, Mr Vogel -
observers: Canada, USA
- Mediterranean Basin : Chairman: Mr Said Pullicino -
members: Mr Batliner, Mr Djerov, Mr Economides, Mr Gotzev, Ms Iglesias, Mr La
Pergola, Mr Nick, Mr Özbudun, Mr Robert, Mr Triantafyllides – observers: Israel
- Administrative and Budgetary Questions : Chairman:
Mr van Dijk - members: Mr Economides, Mr Malinverni, Mr Matscher, Mr Tuori
- South-East Europe : Chairman: Mr Jambrek – members:
Mr Belicanec, Mr Djerov, Mr Economides, Mr Farcas, Mr Gotsev, Mr Luchaire, Mr
Lukacs, Mr Moreira, Mr Nick, Mr Omari, Mr Robert, Mr Sadikovic, Mr Spirovski,
Mr Torafason
- Emergency powers : Chairman:
Mr Özbudun
- Latin
America
: Chairman: Mr Moreira
