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* European
Commission for Democracy through Law
Draft annual report of activities 2008
SPEECH BY MR JAN HELGESEN, PRESIDENT
OF THE VENICE
COMMISSION AT THE 77th
PLENARY SESSION
(Venice, 12-13 December 2008)
Distinguished Members of the Venice
Commission, Dear friends,
As we leave Venice now, we are
leaving behind the working year 2008 of the Venice Commission.
I am certainly not going to present
our Annual Report at this moment. Allow me some reflections, however, at the
end of the year.
2008 has been a very active and
demanding year for our Commission. The Venice Commission has consolidated its
position even further. During our four sessions, we have heard statements
confirming that the Commission is respected in the international community. We
have also been informed that the Commission is present during discussions in
national parliaments and governments.
As an example, we heard from an
Ombudsman, visiting Venice, that if he felt his arguments were not well
received by the Government, he informed the Government that he would bring the
case before the Venice Commission. Then, the Government would normally yield.
This is promising. Such a testimony gives substance to the Plenary Meetings in
this beautiful Scuola.
We are entering into the year 2009,
which will be, by no means, less challenging.
It is a disturbing fact that the
understanding and acceptance of one of the pillars of The Venice Commission,
the principle of the rule of law, is challenged, or even threatened by some
forces. One example suffices; the so-called “war on terror” constitutes a
serious threat to the respect of the rule of law. I am pleased that the Venice
Commission in the coming year is to conduct a study on the conformity between
existing anti-terror legislation in the member states and the European
Convention on Human Rights.
The Commission must repeatedly
stress that democracy, in Europe, and globally, must be founded on respect of
the rule of law. No government, be it democratically elected, may infringe upon
the rule of law, claiming to protect other legitimate values.
One is often confronted these days
with the view that during the difficult times we are going through,
Constitutions, or more generally, the rule of law, cannot be implemented. This
is a fundamental misconception. The Venice Commission must make it perfectly
clear, that the rule of law must also be upheld during difficult times in the
life of a nation.
I was very pleased to see that this
is also the approach taken by the Supreme Court of United States in the case
Boumediene v. Bush from last June. The applicant was a prisoner at Guantanamo, claiming that he was protected under the Constitution of the United States. The US Administration is claiming, as we know, that these suspects have
placed themselves outside of the rule of law, and furthermore, that the
Constitution cannot apply during the dark and difficult times the nation is
experiencing. The answer of the Supreme Court is crystal clear: Justice
Kennedy, on behalf of the majority, finds that even these prisoners are
protected under the Constitution. And he adds: ”The laws and Constitution are
designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework
of the law.”
The Venice Commission is not only an
institution, it is also a body composed of human beings. I want to take the
opportunity to thank all of you warmly for the time, the energy and thoughts
you have invested in the Commission during the year we are leaving behind. The
quality of the Venice Commission’s work reflects your wisdom and personal
qualities.
I would in particular like to thank
the Secretariat for all the hours, long days and nights you devote to the
Venice Commission. I know perfectly well that the Commission has an excellent
Secretariat. Please convey this message to your colleagues who are in Strasbourg and not in Venice these days.
A very important part of the
Secretariat is the interpreters. We are served by highly competent
interpreters. We often refer to “problems of translation” when we study a draft
law. In the Commission itself, there are no problems of translation.
What remains to be said? I wish you
a merry Christmas and a happy, peaceful year. I hope you will find the
opportunity to relax from work.
And then, we shall meet in the New
Year, for the March session!
I. WORKING FOR DEMOCRATIC
STABILITY – AN OVERVIEW OF VENICE
COMMISSION ACTIVITIES IN 2008
1. the
venice
commission: an introduction[1]
The European
Commission for Democracy through Law, better known as the Venice Commission, is
a Council of Europe consultative body on issues of constitutional law,
including the protection of human rights, electoral law and the protection of
national minorities. Its members are independent experts. Set up in 1990
under a partial agreement between 18 Council of Europe member states, it has
subsequently played a decisive role in the adoption and implementation of
constitutions in keeping with Europe’s constitutional heritage. The Commission
holds four plenary sessions a year in Venice, working mainly in three fields:
constitutional assistance, constitutional justice and election and referendum
issues. In 2002, once all Council of Europe member states had joined, the
Commission became an enlarged agreement of which non-European states could
become full members. It is financed by its member states on a proportional
basis which follows the same criteria as applied to the Council of Europe as a
whole. This system guarantees the Commission’s independence vis-à-vis those
states which request its assistance.
The Commission
has the prime function of providing constitutional assistance to States,
mainly, but not exclusively, those which participate in its activities.[2] Such
assistance takes the form of opinions prepared by the Commission at the request
not only of States, but also of organs of the Council of Europe, more
specifically the Parliamentary Assembly, Committee of Ministers, Congress of
Local and Regional Authorities and Secretary General, as well as of other
international organisations or bodies which participate in its activities.
These opinions relate to draft constitutions or constitutional amendments, or
to other draft legislation in the field of constitutional law. The Commission
has thus made an often crucial contribution to the development of
constitutional law, mainly, although not exclusively, in the new democracies of
central and eastern Europe.
The aim of the
assistance given by the Venice Commission is to provide a complete, precise,
detailed and objective analysis not only of compatibility with European and
international standards, but also of the practicality and viability of the
solutions envisaged by the States concerned. The Commission’s recommendations
and suggestions are largely based on common European experience in this sphere.
The Commission
does not attempt to impose solutions, taking an approach based on dialogue,
rather than on demand. This is why a rapporteur group frequently makes visits
to the countries concerned in order to meet the various political players
involved on the ground. An approach of this kind also fosters the most
objective possible view of the situation. The Commission does not put forward
models of the ideal constitution or law, but endeavours, on the basis of common
standards, to understand through its dialogue, countries’ needs and
constraints, before it gives its specific opinions to requesting countries.
The Commission’s
working method involves the setting up of a rapporteur group of its own
members, sometimes with the addition of experts, who present their personal
observations on the text concerned. Following a discussion with the national
authorities and other relevant bodies in the country concerned, the working
group draws up a draft common opinion on the conformity of the text (preferably
in its draft state) with European and international legal and democratic
standards, and on how it could be improved on the basis of common experience.
The draft opinion is discussed and adopted by the Commission at a plenary
session, usually in the presence of representatives of the country concerned.
Following adoption, it is transmitted to the State or the body which requested
it, and comes into the public domain.
Although the
Commission’s opinions are not binding, they ultimately tend to be reflected in
the law of the countries to which they relate, thanks to the approach taken and
to the Commission’s reputation of independence and objectivity. Furthermore,
even after an opinion has been adopted, the Commission remains at the disposal
of the State concerned, and often continues to provide its assistance until the
constitution or law has been finally adopted.
At the request of
the European Union, in particular, the Commission has also played, and
continues to play, an important role in the interpretation and development of
the constitutional law of countries which have experienced, are experiencing or
run the risk of ethnic/political conflicts. In this role, it supplies
technical assistance relating to the legal dimension of the search for
political agreement.
While most of its
work concerns specific countries, the Venice Commission also draws up,
supervises and commissions studies and reports on subjects of general
interest. Just a few examples demonstrating the variety, complexity and
importance of the matters dealt with by the Commission are its reports on a
possible convention on the rights of minorities, on “kin minorities”, on
remedies to the excessive length of proceedings, on the status of detainees at
Guantanamo Bay, on democratic control of security services and armed forces,
and on the relationship between freedom of expression and freedom of religion.
These studies
may, inter alia, culminate in the drafting of guidelines and draft
international agreements, or take the form of either scientific conferences
with the Universities for Democracy (UniDem), the proceedings of which are
published in the “Science and technique of democracy” series, or civil service
training seminars (UniDem Campus).
Where the rule of
law is concerned, however, it is not enough to help states to adopt democratic
constitutions. There is also a need to help them to ensure that these are
implemented. This is why constitutional justice is also one of the main fields
of activity of the Commission, which has developed close co-operation with the
key players in this field, i.e. constitutional courts and other courts with
equivalent jurisdiction. As early as 1991, the Commission set up the Centre on
Constitutional Justice, the main task of which is to collect and disseminate
constitutional case-law. The Commission’s activities in this field are
supervised by the Joint Council on Constitutional Justice. This is made up of
members of the Commission and liaison officers appointed by the participating
courts in over 50 countries (including some outside Europe), by the European
Court of Human Rights, the Court of Justice of the European Communities and the
Inter-American Court of Human Rights. Since 1996, the Commission has
established co-operation with a number of regional or language based groups of
constitutional courts, in particular the Conference of European Constitutional
Courts, the Association of Constitutional Courts using the French Language, the
Southern African Judges Commission, the Conference of Constitutional Control
Organs of Countries of Young Democracy, Asian constitutional courts, the Union
of Arab Constitutional Courts and Councils and the Ibero-American Conference of
Constitutional Justice. In January 2009, the Commission organised together with
the Constitutional Court of South Africa a World Conference on Constitutional
Justice, which for the first time gathered all these regional groups and their
member courts as well as Commonwealth courts and Portuguese speaking courts.
The Conference decided to establish an association, assisted by the Venice
Commission and open to all participating courts, with the purpose of promoting
co-operation within the groups but also between them on a global scale.
Since 1993, the
Commission’s constitutional justice activities have also included the
publication of the Bulletin of Constitutional Case-Law, which contains
summaries in French and English of the most significant decisions taken by over
80 participating courts. It also has its electronic counterpart, the CODICES
database, which contains a further 5,000 texts of decisions in full,
constitutions and descriptions of many courts and the laws governing them.[3] These
publications have proved to play a vital “cross-fertilisation” role in
constitutional case-law.
At the request of
a constitutional court or a court with equivalent jurisdiction, the Commission
may also provide amicus curiae opinions, not on the constitutionality of the act
concerned, but on comparative constitutional and international law issues.
One final area of
activity in the constitutional justice sphere is the support provided by the
Commission to constitutional and equivalent courts when these are subjected to
pressure by other authorities of the State. The Commission has even, on
several occasions, already been able to help some courts threatened with
dissolution to remain in existence. It should also be pointed out that,
generally speaking, by facilitating the use of support from foreign case-law,
if need be, the Bulletin and CODICES also help to strengthen judicial
authority. Lastly, the Commission holds seminars and conferences in
co-operation with constitutional and equivalent courts, and makes available to
them on the Internet a forum reserved for them, the “Venice Forum”, through
which they can speedily exchange information relating to pending cases.
The ordinary
courts have become a subject of growing importance to the Commission.
Increasingly often, the Commission is asked to give an opinion on
constitutional aspects of legislation relating to the courts. Frequently, it
co-operates in this sphere with other Council of Europe departments, so that
the constitutional law viewpoint is supplemented by other aspects. With its
report on judicial appointments (CDL-AD(2007)028), the Commission produced a
reference text, which it uses in its opinions on specific countries.
The Commission
also co-operates with ombudspersons, through opinions on the legislation governing
their work, and by offering them amicus ombud opinions on any other subject,
opinions which, like amicus curiae opinions, present elements of comparative
and international law, but contain no verdict on the possible
unconstitutionality of a text, a decision which only the constitutional court
itself can take. The Commission promotes relations between ombudspersons and
constitutional courts with the aim of furthering human rights protection in
member countries.
Elections and
referendums which meet international standards are of the utmost importance in
any democratic society. And this is the third and last of the Commission’s
main areas of activity, in which the Commission has, since it was set up, been
the most active Council of Europe body, leaving aside election observation
operations. In 2002, the Council for Democratic Elections was set up at the
Parliamentary Assembly's request. This is a subordinate body of the Venice
Commission comprising members of the Commission, the Parliamentary Assembly and
the Congress of Local and Regional Authorities. The Council for Democratic
Elections also includes an observer from the OSCE/ODIHR.
The Council for
Democratic Elections and the Venice Commission have done much to set European
standards in the electoral sphere, adopting a good number of general documents,
the most important of which are the Code of Good Practice in Electoral Matters
(2002),[4] which is
the Council of Europe's reference document in this field, and the Code of Good
Practice for Referendums (2007). The other general documents concern such
matters as electoral law and national minorities, and restrictions on the right
to vote.
The Commission
has drafted more than 50 opinions on States' law and practice relating to
elections, referendums and political parties, and these have had a significant
impact on electoral legislation in the States concerned. Among the States
which regularly co-operate with the Commission in the electoral sphere are
Albania, Armenia, Azerbaijan, Georgia, Moldova and Ukraine, and the Commission
has even played a part in the drafting of electoral legislation, especially in
Bosnia and Herzegovina.
The Council for
Democratic Elections has developed regular co-operation with election
authorities in Europe and on other continents. It organises an annual European
Conference of Electoral Management Bodies, and is also in very close contact
with the other international organisations or bodies which work in the election
field, such as ACEEEO, IFES and, in particular, the OSCE. Thus, in principle,
opinions on electoral matters are drafted jointly with the OSCE/ODIHR, with
which there is exemplary co-operation.
The Commission
also holds general seminars on subjects such as the preconditions for
democratic elections and the cancellation of election results, as well as
training workshops for those involved in the electoral process.
The Council for
Democratic Elections has created a database known as VOTA[5] containing, inter alia, member
States' electoral legislation.
The activities of
the Venice Commission and Council for Democratic Elections also relate to
political parties, without which elections in keeping with Europe's electoral
heritage are unthinkable. This is another field in which the Commission has
laid down standards, relating in particular to the financing, prohibition and
dissolution of political parties, and in which it issues opinions on national
legislation. In 2008 the Commission adopted a Code of Good Practice in the
field of Political Parties.
2. the
commission in 2008
Accession of new member States
The enlargement
of the membership of the Commission continued in 2008. The Committee of
Ministers invited Israel and Tunisia to become members of the Commission and
accorded special co-operation status to the Palestinian National Authority.
This shows that there is a growing interest of non-European States in the
Commission and further accessions can be expected.
Main activities
Despite limited
resources and a stagnant budget the Commission continued in 2008 to carry out a
large number of activities. The following activities should be highlighted as
particularly important:
Constitutional assistance
Constitutional reform
The Commission
was closely involved in efforts to reform the Constitution of Ukraine and adopted
an opinion on a draft new Constitution of this country. It adopted opinions on
the constitutions of Bulgaria and Finland, on constitutional amendments in Albania and on proposed constitutional amendments in Republika Srpska (Bosnia and Herzegovina).
Territorial organisation
and settlement of conflicts
The Commission
maintained close contacts with the European Union on the legal aspects of the
status of Transnistria and provided informal comments to the Moldovan
authorities on their proposal for a settlement of this conflict.
Functioning of the
democratic institutions
The balance of
powers between the main state organs was the central issue in the Commission’s
opinion on the draft Constitution of Ukraine. The Commission adopted reports on
the democratic control of the armed forces and on legislative initiative.
Respect for human rights and the
rule of law
The Commission
adopted a report on the relationship between freedom of expression and freedom
of religion. It was closely involved in efforts to ensure that the Armenian law
on public assemblies should be in line with European standards and adopted
opinions on several versions of this law as well as on related provisions of
the criminal code. The Commission adopted opinions on the law on state secrets
of Moldova, the law on non-discrimination of “the former Yugoslav Republic of
Macedonia” and on laws on freedom of assembly and on freedom of religion of Kyrgyzstan.
Constitutional and ordinary justice, ombudspersons
Strengthening constitutional justice
The Commission’s
Joint Council on Constitutional Justice continued its support of constitutional
courts and equivalent bodies through the Centre on Constitutional Justice,
which publishes the Bulletin on Constitutional Case-Law (five issues in 2008)
and the CODICES database (web-site and three CD-ROMs in 2008). The Commission’s
Venice Forum dealt with over 30 requests from the courts. In June 2008, the
Conference of European Constitutional Courts acknowledged in a special
resolution the high value of this type of assistance.
The Commission
adopted opinions on the laws on the Constitutional Courts of Kyrgyzstan and Montenegro. The Commission adopted two amicus curiae opinions for the European Court of
Human Rights (relating to Bosnia and Herzegovina as well as to Montenegro and Serbia).
In 2008,
constitutional justice conferences and seminars were held in Albania, Algeria, Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Montenegro, with the
Palestinian National Authority, in Portugal, Russia, Slovakia and Ukraine.
Ordinary judiciary
The need to
ensure the independence of the judiciary, as well as the functioning of the
judicial system in the interest of society, plays an ever increasing role in
the Commission’s activities. It was a central issue in its opinions on the
Constitutions of Bulgaria and Ukraine. The Commission provided opinions on
legislative texts for Kyrgyzstan, Moldova, Montenegro and Serbia. Upon request by the Parliamentary Assembly, the Venice Commission prepared a report
on judicial independence, to be adopted in early 2009.
Ombudspersons
The Commission
continued its practice to provide opinions upon request by ombudspersons on an
issue not related to his or her own status (amicus ombud opinion for Armenia).
The Venice Commission’s work with the ombudspersons is geared in particular towards supporting
co-operation between ombudspersons and constitutional courts.
Looking beyond Europe
In addition to its close
co-operation with European constitutional courts and equivalent bodies, the
Commission intensified its regional approach in the field of constitutional
justice by co-operating with associations of constitutional and supreme courts
and councils outside Europe, especially in view of the World Conference on
Constitutional Justice to be held in January 2009. In 2008, this major event
was prepared with the regional groups in three preparatory meetings, held in Vilnius, Seoul and Algiers. These meetings enabled the Conference to be geared to the
groups’ needs and showed their keen interest in it.
The Commission established bilateral
co-operation programmes with the Ibero-American Conference on Constitutional
Justice and the Union of Arab Constitutional Courts and Councils. The
Commission invited their respective member courts to contribute to the CODICES
database and the Venice Forum exchange network. In the framework of the
co-operation with the Arab Union, and with the support of the Norwegian
Government, the Commission organised conferences in Algiers and Ramallah and contributed
to a multilateral conference in Sana’a.
Electoral matters
Electoral legislation and practice
The Commission
adopted, mostly together with the OSCE Office of Democratic Institutions and
Human Rights, opinions and recommendations on (draft) electoral or referendum
legislation in Armenia, Azerbaijan, Bosnia and Herzegovina, Georgia, Moldova,
“the former Yugoslav Republic of Macedonia” and Ukraine.
The Commission
also adopted a number of documents defining the European electoral heritage,
including reports on dual voting for persons belonging to national minorities
and on thresholds and other features of electoral systems which bar parties
from access to parliaments.
Furthermore, the Venice Commission organised in Belgium the fifth European conference of electoral management
bodies and, in Malta, a UniDem seminar on the cancellation of election results,
targeted towards members of Constitutional and Supreme Courts in charge of
electoral disputes. It also organised workshops on the holding and supervision
of elections in Armenia, Azerbaijan, Georgia, Moldova and “the former Yugoslav Republic of Macedonia” as well as seminars in the field of elections or of political
parties in Kazakhstan, Russia and Ukraine.
The Commission
provided legal assistance to a number of election observation missions of the
Parliamentary Assembly. It also provided electoral assistance to Azerbaijan and Georgia by assigning experts to be at the disposal of the Central Election
Commissions of these countries.
Political Parties
The Commission
adopted a code of good practice in the field of political parties as well as
opinions on laws on political parties of Bosnia and Herzegovina and Bulgaria.
II. DEMOCRATIC
DEVELOPMENT OF PUBLIC INSTITUTIONS AND RESPECT FOR HUMAN RIGHTS [6]
1. country
specific activities
- Albania
Amendments to the
Constitution
By
letter dated 4 July 2008 the Chair of the Monitoring Committee of the
Parliamentary Assembly, Mr Holovaty, asked the Venice Commission to examine the
amendments to the Constitution of Albania adopted on 21 April 2008. The Venice
Commission adopted its opinion (CDL-AD(2008)033) at its 77th Plenary
Session on 12-13 December on the basis of comments by Messrs Bartole, Jowell
and Kask and following an initial discussion at the 76th Plenary
Session in the presence of Mr Rusmajli, President of the Legal Affairs
Committee of the Assembly of the Republic of Albania..
The Commission
noted that the constitutional amendments are generally in line with European
standards. The majority of the amendments can be regarded as improvements and
clarifications of the existing text. This does not apply to the amendments to
Article 104 on the vote of confidence and Article 149 on the Prosecutor
General. The latter amendment, limiting the term of office of the Prosecutor
General to five years with the right to be re-appointed, does indeed appear a
regrettable step back making this institution less independent.
The
amendments to the electoral provisions of the Constitution seem mostly
positive. The Constitution will henceforth contain less detail on electoral
rules. This is welcome but only if the legislative rules which will be adopted
are in line with European standards. In particular, it will be crucial to
ensure in the electoral law that elections will continue to be organised by an
independent and impartial body. The new electoral system based on a
proportional system within regions follows the example of other European
countries. This seems a good model, which strikes a balance between the need
for proximity between the voters and those elected and the need for a
representative system, provided the electoral districts are not too small. For
these reasons the implementation of the constitutional amendments in the
electoral law is of particular importance and the Venice Commission is
available to assess the revised electoral legislation.
- Armenia
Rallies
In 2005, the Venice
Commission had assisted the Armenian authorities in preparing a law on
conducting meetings ("law on rallies") which met European standards.
In February and March 2008, however, in the aftermath of the new presidential
elections, demonstrations of the opposition had taken place in Yerevan and violence had escalated which led to the death of 10 people. A state of
emergency had been declared in Armenia, and shortly before its end, the law on
rallies had been amended in a manner which de facto prolonged the state of
emergency.
The Venice Commission and
the OSCE/ODIHR prepared an assessment of these amendments and came to the conclusion
that they represented an undue limitation of freedom of assembly. In
particular, a provision allowed the authorities to suspend the right to
assemble when a demonstration had degenerated into violence until such time as
the responsible persons were identified and tried. This provision, which
exempted the authorities from the need to carry out an analysis of each
individual demonstration, was against standards. In addition, the March
amendments appeared to limit in a substantial manner the right to a remedy in
case demonstrations would be prohibited on the basis of information by the
police and the secret services.
This opinion, which the
Commission endorsed (CDL-AD(2008)018), was sent to the Armenian National
Assembly, which invited the experts to meet with the Armenian authorities in Yerevan on 25-26 April 2008. At this meeting, certain principles were agreed upon by the
participants as regards the amendments needed in order to bring the law back
into compliance with European and international standards.
Draft amendments were
subsequently prepared which, in the opinion of the Commission and the OSCE/ODIHR,
were generally satisfactory. The provision on the general suspension of
assemblies had been repealed. Spontaneous assemblies were now specifically
permitted with no need for prior notification (although they could only last for
six hours), and communication among participants of a spontaneous event in
order to gather was permitted after the event which had prompted the
spontaneous assembly. As concerned remedies, it was now foreseen that the
information submitted by the police or secret services be justified and that it
had to be in writing and made available to the organisers, who could challenge
it before a court. The timeframe for notification of an event had been extended
from 3 to 5 days, but this was not against standards.
In conclusion, the latest
amendments, which were adopted by the National Assembly on 11 June, rendered
the Armenian law on rallies compatible with European and international
standards. Once again, however, this positive assessment was only an abstract
one, and due attention needed to be paid by the Council of Europe to the
interpretation and implementation of the law. In addition, training for the
police, the administrations and the judges was essential.
Draft amendments to the Criminal
Code
On 5 May 2008, the Armenian National
Assembly requested the Council of Europe to assess the draft law on making
amendments and addenda to the Criminal Code of Armenia. Both the Venice
Commission and the Directorate General on Human Rights and Legal Affairs
accepted to carry out this assessment. Mr James Hamilton was appointed to act
as rapporteur. The opinion (CDL-AD (2008)017), based on his contribution, was
adopted by the Venice Commission at its 75th Plenary Session (Venice, 13-14 June 2008)
The amendments to
the Criminal Code of Armenia concern Article 225, which creates several
offences related to “mass disorder”, and Article
301, which makes criminal public calls to commit crimes against the foundation
of the constitutional order and against national security. The background to
these proposals is the demonstrations in Yerevan after the Presidential
elections on 19 February 2008. In the Commission’s opinion the draft amendments
are too broad and at variance with the principle of legality. The Commission
expressed thus the opinion that they should not be adopted.
- Bosnia and Herzegovina
Constitutional reform
From
the Commission’s point of view constitutional reform in this country remains a
priority. Venice Commission representatives took part in two meetings
discussing the possibilities for resuming the constitutional reform process
after the October 2008 municipal elections: a seminar on methods and
possibilities of constitutional reform organised by the Konrad Adenauer
Stiftung in Cadenabbia on 14-15 November and a roundtable on constitutional
reform in Bosnia and Herzegovina organised by the International Centre for
Democratic Transition in Sarajevo on 1-2 December 2008.
Law on conflict
of interest in governmental institutions
On 28 November
2007, the President of the Central Election Commission and the OSCE Mission to Bosnia and Herzegovina requested an expert assessment by the Venice Commission of the law on
conflict of interest in governmental institutions of Bosnia and Herzegovina.
Messrs Kaarlo Tuori and Oliver Kask acted as rapporteurs. On 24 and 25 April
2008, Mr Tuori, accompanied by Ms Granata-Menghini, traveled to Sarajevo and
met with representatives of the Central Election Commission of Bosnia and
Herzegovina, the Interagency Working Group on Amendments to the Law on Conflict
of Interest, the OSCE Mission to Bosnia and Herzegovina and the Office of the
High Representative.
The opinion was
adopted by the Commission at its 75th Plenary Session (in Venice between 13 and 14 June 2008 (CDL-AD (2008)014).
The law on conflict of interest in
governmental institutions raised a certain number of technical issues, such as
the exceptionally broad range of incompatibilities, the automatic imposition of
the very serious sanction of a four-year ban irrespective of the gravity of the
violation, the absence of a mechanism of effective review of the declarations
of assets, the absence of provisions on pantouflage and the contradictions in
the definition of "gifts".
The regulation of the conflict of
interest in Bosnia and Herzegovina also raised issues of a constitutional
nature, related to the state competence for conflict of interest at Entity
level. In the absence of a voluntary transfer of competence from the Entities
to the State, the latter cannot exercise jurisdiction over the elected
officials, executive officeholders and advisers of the Entities. Entities
should ensure that their legislation on conflict of interest is consistent and
mirrors the law on conflict of interest at the State level, and are consistent
with each other insofar as possible, in terms of both substantial provisions
and procedural ones. It is at any rate essential that the competent body for
judicial review of any decision on conflict of interest be the State Court of Bosnia
and Herzegovina.
The Commission was informed of the
intention of the parliament of Bosnia and Herzegovina to prepare a new law
codifying all rules on conflict of interest. The Commission expressed its
readiness to continue the assistance to the authorities of Bosnia and Herzegovina in this task in the year 2009.
Amicus Curiae brief in
the cases of Sejdić and Finci v. Bosnia-Herzegovina pending before
the ECHR
On 29 May 2008, the
Venice Commission sought leave to intervene as a third party in the proceedings
before the European Court of Human Rights in the cases of Sejdić v.
Bosnia-Herzegovina and Finci v. Bosnia-Herzegovina. These cases were
undoubtedly of major importance, in that the alleged discrimination stemmed
directly from the constitutional provisions of Bosnia and Herzegovina, which are the fruit of
the Dayton Peace Accords of 1995 that ended a bloody civil war in the country.
In 2006, the Constitutional Court of Bosnia and Herzegovina had been called upon to assess
whether this text was still valid, and concluded that it was.
Since 1994, the
Commission has drafted more than one hundred reports and opinions. Among these,
the opinion “on the Constitutional Situation in Bosnia Herzegovina and the
Powers of the High Representative” was of particular importance. Chapter V of
this opinion is almost entirely devoted to the problem of the compatibility of
the constitution of Bosnia and Herzegovina with the European Convention on
Human Rights. More recently, the Commission was asked to assess certain draft
constitutional amendments, which failed to be adopted but aimed inter alia at
reducing if not eliminating the discriminatory treatments, which are now the
object of the applications to the European Court of Human Rights at issue.
The central issue in both
the case Sejdić v. Bosnia-Herzegovina and in Finci v. Bosnia- Herzegovina
was the question of whether the provisions of the Constitution of Bosnia and
Herzegovina and the corresponding regulations in the Electoral Code of
Bosnia-Herzegovina which prevent persons not belonging to one of the three
constituent peoples from standing for election to the Presidency and the House
of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina comply with the prohibition of
discrimination in Article 14 of the European Convention on Human Rights, read in
conjunction with the Right to free elections guaranteed in Article 3 of Protocol No.
1 to the Convention and / or the General prohibition of discrimination in Article 1 of Protocol
No.12 to the Convention.
The Venice Commission
expressed the opinion that the exclusion of the “Others” from the elections to
the House of Peoples and to the Presidency by operation of the relevant
provisions of the Constitution and the Electoral Code of Bosnia and Herzegovina
was incompatible with the Prohibition of discrimination in Article 14 in conjunction with
the Right to
free elections in Article 3 of Protocol No. 1 to the ECHR and with the General prohibition of
discrimination guaranteed in Article 1 of Protocol No. 12. Indeed, while there was
certainly a legitimate aim for this exclusion at the time of the Dayton peace accords in December 1995, one could legitimately doubt as to its pertinence
today. Bosnia and Herzegovina had not managed to achieve a functioning
democratic state, and was at a stalemate. There was no indication that the
continuing exclusion of the “others” would contribute towards finding a
solution to the crisis.
The amicus curiae brief
was prepared on the basis of comments by Ms Angelika Nussberger, Mr Jean-Claude
Scholsem and Mr Joseph Marko, and was adopted by the Commission at its 76th
Plenary Session (Venice, 17-18 October 2008).
Draft amendments to the Constitution
of Republika Srpska
During the visit
of a Council of Europe Monitoring Mission to Banja Luka on 23 April 2008 both
Prime Minister Dodik and President Kuzmanovic asked for a Venice Commission
assessment of proposed Amendments to the Constitution of Republika Srpska.
Mr Jensen (Denmark) and Mr Scholsem (Belgium) were appointed as rapporteurs, Mr Himsworth (United Kingdom) provided comments on the provisions relating to local government at the request of
the Directorate of Democratic Institutions of the Directorate General of
Democracy and Political Affairs. The Venice Commission adopted its Opinion on
the draft amendments to the Constitution of Republika Srpska (CDL-AD (2008)016)
at its 75th Plenary Session in Venice on 13-14 June 2008.
The amendments
addressed the provisions on human rights, local self-government as well as some
institutional provisions in the Constitution of this Entity.
As regards the
amendments concerning human rights, it should first of all be taken into
account that the Constitution of Bosnia and Herzegovina, which is particularly
generous in this respect by inter alia giving priority over all other law to
the European Convention of Human Rights, is applicable. In 1996, following a
suggestion by the Venice Commission, some general provisions were introduced
into the Constitution of Republika Srpska to ensure its conformity with the
State Constitution. The aim of the present amendments was to partly harmonise the
individual human rights provisions with the European Convention of Human
Rights. This attempt at partial harmonisation created, however, more problems
than it solved.
The provisions on
local self-government were generally positive and in line with the European
Charter. The institutional amendments contained a provision making the transfer
of powers from the Entities to the State more difficult. This is undesirable
since, as the Venice Commission had previously noted, the responsibilities of
the State level are insufficient.
- Bulgaria
Review of the Constitution
By letter dated 24 May 2007, the
Chair of the Parliamentary Assembly of the Council of Europe’s Monitoring
Committee, Mr Eduard Lintner, requested an opinion on the Bulgarian
Constitution, in particular as regards the amendments made in February 2007.
The comments of the appointed rapporteurs, Messrs Céa Egana, van Dijk, Hamilton
and Neppi Modona, were successively discussed with Bulgarian representatives at
the 72nd Plenary Session (Venice, 19-20 October 2007), during the
visit of a Commission delegation to Bulgaria in 2007 and at the 74th
Plenary Session (Venice, 14-15 March 2008). During this last session, the
Commission welcomed the open attitude of the Bulgarian authorities and adopted
the opinion (CDL-AD(2008)009).
In the Commission’s
opinion, the provisions of the Constitution of the Republic of Bulgaria, including its latest amendments, are generally in conformity with European standards
and in line with constitutional practice in other European states. The
Constitution provides a sound framework for the development of a democratic
system in Bulgaria and this achievement was internationally recognised by Bulgaria’s accession first to the Council of Europe and thereafter to the European Union.
However, the opinion stresses the need for further improvements in the text.
Some of these
improvements suggested by the Commission concern Chapter Six of the
Constitution on the Judiciary. In this respect, it was shown that eleven out of
the 25 members of the Supreme Judicial Council were elected by a simple
majority in Parliament. The Minister of Justice chaired the meetings of the
Council and could make proposals both for the budget and for the appointment,
promotion and dismissal of judges. Taken together this could lead to a
politicization of the Judiciary. The opinion did not criticise the current post
holders but pointed out which safeguards would need to be taken against ill
intentioned post holders. It was most important that the governmental majority
should not have power over the Judiciary. At the same time, another problem was
raised by the fact that three distinct components of the judicial branch in Bulgaria, the judges, the prosecutors and the investigating magistrates, were all represented
in a single body, the Judicial Council. In order to ensure that there is no
risk of influence being brought by one branch towards the other, the Commission
suggested that appropriate specialised committees or chambers deal with matters
pertaining to the particular branches of the judicial arm. The opinion also
drew attention to the probationary period of five years for new judges which
might raise serious difficulties for judicial independence, as well as on the
too broad powers the Inspectors have, with the risk of interference in the
administration of justice.
The meeting of the
rapporteurs with the Bulgarian authorities in Sofia enabled a number of issues
to be settled. Inter alia, it had been made clear that the word “to pass” the
reports by the Judiciary to Parliament had to be read as “to take note”. The
limitation of the immunity of magistrates was to be welcomed.
Another issue addressed
in the Commission’s opinion referred to the constitutional provisions on human
rights. The rapporteurs discussed with the Bulgarian authorities the use of the
term “citizen” in the constitutional text. The latter had explained that the
term “citizen” should be read as everyone and a restriction was made only when
the Constitution talked of “Bulgarian citizen”. While there was no current
danger, the opinion recommended changing these terms. At the same time, the
tone of the provisions on the protection of minorities was rather restrictive.
Article 11(4) did enable political parties to be created along ethnic lines.
The limitations to human rights in the Constitution did not correspond to those
in the European Convention on Human Rights. The Bulgarian side had pointed out
that this was not a real problem as the Convention ranked above ordinary law in
the national legal system however the opinion nonetheless recommended also
making this clear in the Constitution itself. The Commission also recommended
that the election of the Ombudsman require a qualified majority.
- Finland
Evaluation of the Constitution
In the year 2008
the Venice Commission continued, following the request by the Ministry of
Justice of Finland, its participation in the evaluation of Finland’s current Constitution which had started in 2007.[7]
Following
the first visit of a Commission delegation to Finland in 2007, individual
comments were drafted by the rapporteurs. A second visit took place on 28
January 2008, which was mostly dedicated to the role of the Prime Minister and
to European and international relations in the Finnish constitution. The
Commission’s opinion (CDL-AD(2008)010)
is based on the individual comments from the rapporteurs, and takes into
account the information received during the visits to Finland and a number of
documents provided by the Finnish authorities. It was adopted at
the 74th Plenary Session of the Venice Commission following an
exchange of views with Ms Tiina Astola, Permanent Secretary, Ministry of
Justice.
The
opinion addresses issues raised by the Finnish Ministry of Justice, namely the
referendum and popular initiative, the election of the President of the
Republic, the organisation of the legislative and regulatory
sphere, the conduct of foreign and European policy (including the place of the
European Union in the Constitution). It also deals with other topics raised on
the occasion of the visits by the delegation of the Venice Commission to Finland: basic rights and liberties, international relations in general, including the rank
of international treaties and EU law, as well as the administration of
(constitutional and ordinary) justice.
On the
whole, the Finnish Constitution is in conformity with European standards of
democracy, the rule of law and human rights. Even if some adjustments to the
wording of the Constitution in the field of basic rights and liberties could be
appropriate, the interpretation constantly given to general provisions in this
field and supervision of constitutionality is fully in conformity with
international treaties and standards. However, the preeminent role of the
President of the Republic and of the Prime Minister, respectively in foreign
and European policy, may lead to difficulties, since the separation between
both fields may be far from clear. The creation of a specialised
constitutional court is not imposed by any European standard, as long as the
Finnish system guarantees in practice the protection of human rights, even if
it could be peritnent to extend the judicial control of constitutionality
beyond the cases of clear conflict with the Constitution.
- Kyrgyzstan
Freedom of religion
At the request of the Chairman of
the parliament of Kyrgysztan, the OSCE/ODIHR Panel of Experts on Freedom of
Assembly and the Venice Commission assessed the draft law on freedom of
religion of the Kyrgyz Republic. This assessment was largely based on the
OSCE/ODIHR - Venice Commission Guidelines on freedom of religion.
In this joint opinion
(CDL-AD(2008)032), the Commission and OSCE/ODIHR consider that the draft law is
at times excessively detailed, and at times rather vague. The registration
requirements are extremely strict and are presented in an unclear manner; the
consequence of lack of registration (a ban on all operation and activity)
appears disproportionate. The draft law fails to require that the reasons for
refusal to register a religious organisation and association be spelled out in
detail and in writing and also fails to provide for the explicit possibility to
appeal against refusal in court. In conclusion, the draft law does not appear
to meet the applicable international standards. The influence of the State over
the exercise of freedom of religion is excessive.
- Moldova
Law on State Secret
By a letter dated 5
November 2007, Mr. Esanu, Deputy Minister of Justice of Moldova, requested the Venice
Commission’s assessment of the 1994 Law on State Secret of the Republic of Moldova. The Commission’s opinion (CDL-AD(2008)008), prepared on the basis of
comments by Messrs Iain Cameron and Olivier Dutheillet de Lamothe, was
adopted by the Venice Commission at its 74th Plenary Session (Venice, 14-15
March 2008).
As stated in the
Commission’s opinion, the Law on State Secret of the Republic of Moldova raises three main problems. Firstly, the law combines a formal definition,
which corresponds to the practice of the majority of the states and
international organisations, with a material definition, which aims at covering
all the state secret’s aspects, but finally proves to be too broad. This
definition was also in contradiction with other provisions of the law.
Secondly, the law makes
a distinction between the national list of classified information which is
drawn up by the Inter-departmental Commission for the protection of state
secret, and the detailed lists drawn up by the persons delegated by the heads
of the state administration bodies. The latter are approved only by the heads
of the state administration bodies and are not published. Such a dichotomy
between a national list, which contains certain guarantees, and the lists of
ministerial departments, which do not offer the same guarantees, risks giving
rise to a massive and occult development of protected information at the level
of ministerial departments. At the same time, there is a risk that the
Inter-departmental Commission might not have a comprehensive view and cannot ensure
an adequate control of the protected information.
Thirdly, in some cases
the Moldovan Law on the Protection of State Secret imposes excessive
restrictions on the freedom of information, communication and circulation, as
well as on the right of respect for private life of civil servants and citizens
who have access to state secrets.
In conclusion, the
Commission was of the opinion that the Law on the State Secret of Moldova falls
short in an important number of respects from what could be regarded as good
practices in the field of state secrecy. Therefore, several provisions would
need amendments or clarification.
Status of Transnistria
The Venice Commission maintained its
close contacts with the EU Special Representative for Moldova, Mr Mizsei, on the legal aspects of a possible settlement. Venice Commission
experts provided informal comments to the Moldovan authorities on their draft
settlement proposal.
Double nationals
At the invitation of the Moldovan
parliament a delegation composed of Mr Nick (Croatia), Mr Schaerer
(Switzerland, DGHL expert) and Mr Markert from the Secretariat took part in a
hearing of the legal affairs committee of the Moldovan parliament on the draft
dual citizenship act in Chisinau on 2 April. While the delegation accepted the
possibility of prohibiting double nationals from occupying certain particularly
sensitive positions in the public sector, it warned against an excessively wide
scope of such prohibition. It seemed in particular problematic to prevent
double nationals elected to parliament from taking their seats.[8]
- Montenegro
Amicus Curiae brief in the case of Bijelić against Montenegro and Serbia pending before the ECHR
In July 2008,
the Venice Commission was granted leave to intervene as a third party in
the proceedings of the European Court of Human Rights in the case of Nadez
Bijelić, Svetlana Bijelić and Ljiljana Bijelić against Montenegro and Serbia (application no. 11890/05). The above case raised
the question of whether the Republic of Montenegro and/or the Republic of Serbia might be held responsible by the Court for breaches of the Applicants’
rights under the European Convention on Human Rights that were alleged to have
occurred in Montenegro between 3 March 2004 and 5 June 2006. The interest of
the Venice Commission in this matter arose from previous opinions that it had
given on issues relating both to the process by which Montenegro had achieved independence in June 2006 and to the current constitution
of Montenegro.
The amicus
curiae brief, which does not address the substantive merits of the
applicants’ case, was prepared on the basis of comments by Messrs Anthony
Bradley and Iain Cameron, and was adopted by the Commission at its 76th
Plenary Session (Venice, 18-19 October 2008).
The opinion deals with
two main issues: the succession of Serbia and Montenegro to the treaty
obligations of the former State Union of Serbia and Montenegro, and the
liability of a successor state for the wrongful acts of its predecessor.
As concerns the first
issue, the Commission’s document shows that Serbia succeeded to the State Union
as of 14 June 2006, by operation of a specific provision of the Constitutional
Charter of the State Union itself. Montenegro was accepted by the Committee of
Ministers as a successor to the treaty obligations of the State Union as of 14
June 2006 in respect of “open” conventions (which are open to non Council of
Europe member States). The Committee of Ministers decided in May 2007 that
Montenegro was to be considered a party to the ECHR, which is a “closed”
convention, retrospectively as of 6 June 2006 (date on which Montenegro declared
in a letter to be willing to succeed to the treaty obligations of the State
Union).
As concerns the second
issue, the opinion stresses that there are few settled rules on state
succession and considers that the correct approach in deciding this kind of issue
is to judge in each specific case by reference to all the factors to determine
how reasonable it is to impose continuity in responsibility. Indeed, the
International Law Commission in its Articles on State Responsibility provides
for a general rule that responsibility devolves to a successful independence
movement, unless the successor can prove that it would be unreasonable to do
so. In the case under consideration, the acts or inaction complained of were
attributable to authorities which were under the complete control of an entity
(the Republic of Montenegro) which later became the government of the new State
(Montenegro). It would therefore have been unreasonable to hold Serbia responsible for human rights violations allegedly committed by the courts of the Republic of Montenegro. This interpretation, which seems to be in line with the
intentions of Montenegro itself, was in conformity with the principles of a
European public order brought about by the ECHR. This conclusion does not
affect the possibility, under different circumstances, of holding Serbia responsible for breaches possibly committed during the material time by the
authorities of the State Union.
- Slovakia
Draft press law
Following a request by the Slovak
authorities an informal meeting on the draft press law took place on 28
February between representatives of the Venice Commission and the Media
Division of the Directorate General of Human Rights and Legal Affairs on the
one hand and representatives of the Slovak authorities on the other.
- “The former Yugoslav Republic of Macedonia”
Law on the prohibition of
discrimination
At its 77th Plenary
Session, the Commission adopted an opinion on the draft Law on protection
against discrimination of “the former Yugoslav Republic of Macedonia”
(CDL-AD(2008) 042).
In the opinion, prepared at the
request of the former Minister of Labour and Social Policy of “the former
Yugoslav Republic of Macedonia”, the Commission points out that the draft Law
on prohibition of discrimination was assessed in the light of the applicable
European standards, which are in particular the ECHR and, as concerned soft
law, the recommendations by the European Commission against Racism and
Intolerance (ECRI).
In “the former Yugoslav Republic of
Macedonia” there is no general anti-discrimination law; the draft Law under
consideration is thus to be welcomed, as it will improve the normative
protection of the principle of non discrimination. The Law is nevertheless
excessively broad, and therefore fails to provide the necessary consistency and
to prove applicable in practice. An explanatory memorandum or other
authoritative interpretative guide is necessary in this respect.
As concerns the enforcement of the
Law, the Venice Commission shares the recommendation of ECRI to entrust, in
principle, the supervision of non discrimination legislation to a specialised
body. However, taking into account in particular the concerns expressed by the
Council of Europe’s Commissioner for Human Rights on the excessive complexity
of the legal system of that country, the Venice Commission accepts that for an
initial period, the supervision of the implementation of the Law could be
entrusted to the Ombudsman, on condition however that this institution be
adequately strengthened in terms of both financial resources and human
resources and competences.
- Ukraine
Constitutional reform
Throughout the year the Commission
was actively involved in constitutional reform efforts in Ukraine. On 17 January a Commission delegation, which was joined by members of the
Parliamentary Assembly, exchanged views with representatives of Ukrainian
political forces and the Presidential Secretariat, on the perspectives for
constitutional reform. On the same day the President of the Commission, Mr Helgesen,
met the Speaker of the Verkhovna Rada, Mr Yatsenyuk.
Commission representatives made
presentations on constitutional reform at a number of meetings: the Wilton Park
Conference on “Ukraine: Building a Stable Future” on 21-24 February, the
international conference on “Constitutional Reform and Consolidated Democracy:
the Role of Civil Society, Authority and Opposition” in Kyiv on 5 March and the
first session of the Ukrainian School of Political Studies in Kyiv on 10 April.
Commission delegations exchanged
views with representatives of the government and the Presidential Secretariat
on proposals for constitutional reform on 16 May. On 30 May a Commission
delegation met with the working group of the National Constitutional Council
established by President Yushchenko and discussed the draft concept paper
prepared by this Council.
Following a request by
the Monitoring Committee of the Parliamentary Assembly the Venice Commission adopted at its 75th Plenary Session in Venice on 13-14 June an
opinion (CDL-AD(2008)015) on the draft Constitution of Ukraine prepared by a
group of scholars headed by Professor Shapoval, on the basis of comments by Mr
Bartole, Ms Nussberger, Mr Paczolay, Ms Suchocka and Mr Tuori.
The Commission noted that
the text is the draft of an entirely new Constitution, although it is clearly
based on the text of the current Constitution and avoids a radical departure
from existing solutions. Under these circumstances, it is not at all clear why
the approach of adopting an entirely new Constitution was chosen. Proceeding by
means of amendments to the current Constitution would have the advantage of
symbolic continuity and enhance constitutional stability. It would also dispel
any speculation that the adoption of a new Constitution might be a means of
getting around the requirements for amending the Constitution established by
the Constitution presently in force and in particular of by-passing the
Verkhovna Rada, which has to approve all constitutional amendments by a
two-thirds majority of its members.
An approach based on
amendments and not on a new Constitution would also enable a clear focus on the
most urgent issues. The unclear and overlapping distribution of powers between
the President and the Cabinet of Ministers, partly but not exclusively due to
the constitutional amendments of December 2004, is a major source of tensions
and instability. The issue of the dual executive power should therefore be
addressed as a priority. Other important reforms such as judicial reform could
be addressed separately.
As regards the substance
of the changes, The Commission regards most of the amendments as improvements.
This concerns in particular the Chapter on Courts and Justice, including the
procuracy. By contrast, the Chapter on territorial organisation of power, which
would reduce the scope of local self-government and the autonomy of Crimea, is criticised in the opinion.
As regards the crucial
issue of the balance of powers between the state organs, the draft provides for
adjustments but no major change in respective powers. On the whole the present
“parliamentary-presidential” system is maintained. While this seems a
reasonable approach in principle, it is unlikely to be sufficient to resolve
the current tensions between the state organs and may prove again
dysfunctional, especially in periods of “cohabitation”. The Commission
therefore recommends examining, with a view to their inclusion in the
Constitution, means of ensuring co-operation and coordination between President
and Cabinet of Ministers, such as binding presidential decisions to proposals
from the Cabinet of Ministers, the countersignature of presidential acts by the
Prime Minister or the competent minister and/ or the taking of presidential
decisions in the presence of the Cabinet of Ministers.
2. transnational
activities
Report on the democratic control of armed forces
The Parliamentary
Assembly of the Council of Europe (PACE), concerned about the democratic
control of the security sector in general, recommended that the Committee of
Ministers should prepare some guidelines about political rules, standards and
practical approaches to this issue. On 7 July 2006, the Committee of Ministers
of the Council of Europe, in turn, requested the Venice Commission to carry out
a study on the democratic issues involved in the supervision of armed forces,
as institutions whose mission is to ensure national security, in the Council of
Europe member States.
A working Group which was
subsequently set up within the Venice Commission and worked together with the
Geneva Centre for the Democratic Control of Armed Forces (DCAF) and the Centre
for Political and Constitutional Studies (CEPC) in Madrid endeavoured to
describe the
need of all societies for security provided for by the armed forces, on the one
hand, and the requirement to respect democratic values, human rights and
freedoms on the other hand. The lessons learned from history - even recent - of
European States, but not only, have shown that the military might affect
democracy and its values. The interests of the military must therefore be
subordinate to the interest of a democratic society. The report (CDL-AD|(2008)004)
prepared by the working group was discussed within the Sub-Commission on
Democratic Institutions and adopted by the Venice Commission at its 74th
Plenary Session (Venice, 14-15 March 2008).
The study focused on
particular aspects related to armed forces: “traditional” issues such as
military expenditure or military budget and appointment of top commanders and
issues which correspond to the change in the role of the armed forces.
Democratic control over armed forces refers mainly to the existence of a
democratically elected organ that reviews and supervises the decisions adopted
by the organs or authorities with military competences. The role of the
Parliament as an elected body is therefore of paramount importance in the
concept of democratic control of armed forces. Next to the Ombudsmen and the
Court of Audits, the judiciary play an important role in the control over armed
forces with both the Constitutional courts as guardians of the rule of law, of
democratic procedures and the military courts.
At the international
level, the control of armed forces can be performed by different organs, i.e.
international
organisations
of which member States of the Council of Europe are part and/or international
courts. First and foremost, the international
use of force must be legitimate. States can carry out individual or collective self defence,
but in order for their actions to be legitimate they must comply with strict
conditions which have been laid down by international law. There are different types
of international organisations whose mission is to safeguard and contribute to
international collective defence, security and peace. Their common feature is that the
existence of their parliamentary body paved the way for a control of the
decisions taken at the executive level of the organisation. These international organisations have fixed and developed
through their activities important international standards concerning the
democratic oversight of the military. Lastly, International courts also play an
important role in the oversight of democratic forces.
Blasphemy
The Report on “The relationship
between freedom of expression and freedom of religion: the issue of regulation
and prosecution of blasphemy, religious insult and incitement to religious
hatred”, which the Commission adopted at its 76th Plenary Session,
was prepared at the request of the Parliamentary Assembly. A preliminary report
had been adopted in March 2007. An international Round Table on “Art and Sacred
beliefs: from collision to co-existence” was organised by the Commission in
January 2008 in Athens in co-operation with the Hellenic League of Human
Rights.
This report is a pioneer one, and as
such it does not purport to provide all the answers to the difficult questions
which arise in the field of the intersection of freedom of expression and
freedom of religion.
In the Commission’s opinion,
incitement to hatred must be criminalised and prosecuted, as is actually the
case in practically all Council of Europe member States; it is essential,
however, that the provisions against incitement to hatred be applied in a
non-discriminatory manner and no unjustified difference should be made between
different groups.
Insult on the ground of belonging to
a given religious group should be treated as an “insult” and, as such,
punished. By contrast, insult to religious feelings must be
distinguished from the aforementioned insult, and should not be penalised. Blasphemy should not be
criminalised.
The analysis of the pertinent
European domestic laws shows the pan-European penalisation of incitement to
hatred, a clear tendency not to prosecute blasphemy and a tendency not to
criminalise religious insult. In the Commission’s view, this is the correct
approach for the future.
The report underlines that
democratic societies must not become hostage to the excessive sensitivities of
certain individuals: it must be possible to criticise religious ideas even if
such criticism may be perceived by some as hurting their religious feelings.
Fear of violent reactions should not dictate self-censorship. But reasonable
self-restraint should be used if constructive debate is to replace dialogues of
the deaf.
The report concludes by proposing a
new ethic of responsible intercultural relations, in Europe and in the world.
Rome Statute
This report was intended to
supplement the Venice Commission’s Report on the constitutional issues raised
by the ratification of the Rome Statute of the International Criminal Court,
which the Commission had prepared in 2001 at a time when practically no State
had yet ratified the Statute. It was adopted by the Commission at its 76th
Plenary Session.
This second report examines the
European constitutional case-law since 2001, and confirms that several States
have indeed been confronted with the problems which the Commission had foreseen
and anticipated in 2001 (the lifting of immunity for Heads of State and Government;
surrender of nationals to ICC; co-operation with ICC Prosecutor; exercise of
the prerogative of pardon; imposition of life imprisonment). Some of these
States have adopted the solutions indicated in the 2001 report, notably, in
respect of immunity, a two-tier responsibility which distinguishes between the
national and the international level. Practice shows that several of the States
which have been unable to interpret the statute in a manner compatible with the
constitution and instead have to modify the latter, have not yet ratified the
statute.
Legislative initiative
This report was prepared at the
request of the former Georgian Minister of Justice, and was adopted by the
Commission at its 77th Plenary Session.
It is a descriptive report of a comparative
nature on the holders of the right to initiate legislation and on the
modalities of exercise of this right. It also contains some analysis of
recurrent features and recent trends in this area.
The report revealed that the right
of legislative initiative is linked to the principle of separation of powers.
While Parliament is the primary holder of this right, the executive also holds
it in several countries. In particular, the report addresses the case in which
the right to initiate legislation is vested at the same time in the Government
and in the President. This is more frequent in presidential systems, but it is
only appropriate in systems where the President is not meant to be a neutral,
super partes institution. As regards the judiciary, it is rarely granted the
right to initiate legislation, and, in the Venice Commission’s opinion, rightly
so.
3.
unidem campus – legal training for civil servants
For the 7th year, the UniDem Campus
programme pursued its training of civil servants from 16 countries (Albania,
Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Bulgaria, Croatia,
Georgia, Moldova, Montenegro, Romania, Russian Federation, Slovenia, Serbia,
“the former Yugoslav Republic of Macedonia” and Ukraine) in efficient
administration and good governance, as well as in democratisation and human
rights.
In 2008, three seminars were held on
the following topics: "Implementation of the case-law of the European
Court of Human Rights in Council of Europe member states: impact on structural and
legal reforms. Given example: Remedies against the unreasonable length of
proceedings", “Models of regional development and “The Effectiveness of
Public Administration and its Europeanisation”.
The purpose of this programme is to
"train trainers”, which means that each participant, after attending a
seminar, is expected to train his or her own colleagues, passing down the
information and material acquired at the seminar. Participants receive a
specific practical workshop, designed to help them become "trainers".
In 2008, this "training of
trainers" aspect was strengthened : fewer participants were accepted in
comparison to previous years (approximately 60 participants), but in turn these
trained almost 1300 civil servants through seminars, round tables and debates
which took place within the relevant national administrations.
III. CONSTITUTIONAL
Justice, ORDINARY justice AND ombudsmAn[9]
1.
country specific activities
- Albania
Joint Council on Constitutional Justice
The Venice Commission was invited by
the Constitutional Court of Albania to hold the 7th meeting of its
Joint Council on Constitutional Justice in Tirana on 26-27 June 2008. In the
opening of this event, the President of the Constitutional Court underlined the
close co-operation that exists between the Constitutional Court of Albania and
the Venice Commission. This co-operation includes not only regular
contributions to the Commission’ Bulletin on Constitutional Case-Law and the
CODICES database, but also an active participation in the Venice Forum (see
below) and requests for amicus curiae briefs.
Within the framework of this
meeting, the Joint Council on Constitutional Justice also held a
mini-conference on the topic of social rights.
The liaison officers from 27
constitutional courts and equivalent bodies discussed various aspects of social
rights as applied in constitutional justice.
A distinction was made between more
recent constitutions, especially those of new democracies, which often
explicitly refer to social rights, and older constitutions, some of which do
not even have a catalogue of social rights. Nonetheless, such rights had been
identified by the courts, sometimes by linking them to other rights, such as
the right to equality. While the existence of social rights could sometimes be
identified by the courts, they would usually not be in a position to fix a
specific level of welfare payments, since this falls within the competence of
the legislature or government. Some extreme examples were discussed, which showed
how these powers had tried to implement social rights by treating them as being
directly enforceable against the state.
It was pointed out that civil and
political rights typically required restraint or non-interference from the
state, whereas most social rights do require the State’s intervention
(regulation or payments). As a result, the implementation of these rights
depends on the financial capacity of the state, which in turn is linked to the
general prosperity of society. A paradox was identified to the extent that
this prosperity could be undermined by taxation, which would be necessary to
raise funds for the implementation of social rights.
A number of participants insisted
that the level of welfare payments necessarily varied from one country to the
next and that no general standards could be applied in this respect.
Nevertheless, the examples drawn
from the case-law of various courts showed that social rights were not only
mere programmatic declarations, but were also capable of judicial enforcement
(so-called “justiciability of social rights”). The application of the principle
of proportionality was seen as a means, which allowed the courts to apply
strict judicial standards even in a complex field such as that of social
rights.
- Algeria
Colloquy on
« Constitutional Interpretation »
The Venice Commission organised a
Colloquy on « Constitutional Interpretation » (Algiers, 30-31 October 2008) in co-operation with the Constitutional Council of Algeria.
The purpose of this Colloquy was to discuss and exchange information on the
methods used by Constitutional Courts and Councils to interpret not only the
Constitution itself but also other legislation or draft legislation submitted
to them for scrutiny.
The participants from Algeria, Armenia, Burkina Faso, Italy, Libya, Mexico, Romania, South Africa and Tunisia discussed various interpretation techniques such as literal, historical, systematic
and teleological interpretation, which can be used either individually or
together, putting forward arguments for why a specific technique was more
appropriate than another for a given case. In addition to these methods
relating to the text, the constitutional judges may also use techniques
relating to the result of the examination of the case by determining whether
the interpretation was in conformity with the constitution, which has to be
applied by all state bodies (in French reserve d’interprétation or interprétation
conforme or neutralisante). Other relevant concepts, such as the
Italian concept of diritto vivente (living law) were also discussed.
Together with the Colloquy, the
Venice Commission held a preparatory meeting for the World Conference on
Constitutional Justice (Cape Town, 23-24 January 2009), see below under “Transnational
issues”.
- Armenia
Draft amendments to
Article 23(5) of the Law on the Human Rights Defender
In July 2008, the Human
Rights Defender of Armenia, Mr Harutyunyan asked the Venice Commission to
provide an opinion on the draft amendments to Article 23(5) of the Law on the
Human Rights Defender in Armenia. The Venice Commission adopted an Opinion on
this issue (CDL-AD(2008)028) at its 76th Plenary Session (17-18
October 2008).
In an earlier opinion in
2006 on the Law on the Human Rights Defender of Armenia, the Venice Commission
had expressed a positive view on the extension of immunity to staff of the
Human Rights Defender’s office. Immunity for the office of the Human Rights Defender
(ombudsman) including his/her staff is one of the key guarantees of the independence
of this institution, giving it the capacity to carry out its special role in a
democratic society governed by the rule of law. Owing to its tasks of
conducting a special kind of examination often resulting in strong criticism of
the authorities, the institution becomes a likely target of attacks motivated
by political and other interests.
The Group of States
against Corruption’s (GRECO) standing practice in monitoring compliance with
the Guiding Principles and its reports on Armenia, do not support the proposed
amendment, which would strip the staff of the Defender of their functional
immunity. The staff of the Human Rights Defender has not been included in the
categories whose immunity GRECO has found to be problematic.
Despite the importance of
the fight against corruption and the ensuing necessity of limiting the
categories of persons enjoying immunity, the need to ensure the independence of
the institution of the Human Rights Defender provides a strong justification
favouring the preservation of the present immunity of the staff of the Human
Rights Defender.
Conference
on “Fundamental constitutional values and public practice”
The Constitutional Court
of Armenia together with the Venice Commission and the conference of
Constitutional Control Organs of Countries of Young Democracy (CCCOCYD)
organised a conference on “Fundamental constitutional values and public
practice”, dedicated to the 10th anniversary of “Constitutional
Justice”. The event was opened by the President of Armenia and took place
in Yerevan (3-5 October 2008).
The purpose of this
conference was to discuss and exchange information on how fundamental
constitutional values are protected in different countries and how these are
implemented by the courts (representatives from 20 countries/courts were
present at this event).
The conference considered
the role of state policy and public practice to guarantee the implementation of
fundamental constitutional values, and discussed the importance of the rule of
law, the role of civil society in the protection of these values, the social
contradictions and conflicts that can arise and the role of the European Court
of Human Rights and that of constitutional courts in various countries in the
protection and the development of these values. The participants discussed,
among others, the separation of powers, the independence of the judiciary, the
role of parliament with respect to the constitutional court and individual
complaints. They then focused more particularly on property rights and the
issue of the overburdening of constitutional courts with abstract revision
cases and the trend in a number of countries that encourages ordinary courts to
deal with constitutional issues themselves, without systematically turning to
the constitutional court.
- Azerbaijan
Conference on “Execution
of Decisions of Constitutional Courts”
On the occasion of the 10th
Anniversary of the Constitutional Court of Azerbaijan, the Commission organised
a Conference on the “Execution of Decisions of Constitutional Courts” in
co-operation with the Court and the German Society for Technical Co-operation, held
in Baku on 14-15 July 2008.
The Conference dealt with
the various effects of constitutional courts’ decisions including the political
implications of legal decisions. The need for the respect of court decisions in
general and that of constitutional courts in particular was highlighted as a
fundamental tenant of the rule of law.
During the discussions,
particular attention was given to the execution of constitutional court decisions
by ordinary courts. Tensions between these courts sometimes had resulted in the
non-execution of constitutional courts’ decisions or their ‘literal’
implementation accepting only the operative part of the decision, but ignoring
the constitutional arguments in future cases. An open dialogue between the
courts based on the interpretation of the Constitution, as set out by the Constitutional Court, was seen as a remedy to such problems.
- Belarus
Conference on “The use of
international instruments for protecting individual rights, freedoms and
legitimate interests through national legislation and the right to legal
defence in Belarus: challenges and outlook”
Within the framework of the Slovak
Presidency of the Council of Europe’s Committee of Ministers, the
Constitutional Court of Belarus, the Venice Commission and the Slovak Embassy
in Minsk organised a Conference on “The use of international instruments for
protecting individual rights, freedoms and legitimate interests through
national legislation and the right to legal defence in Belarus: challenges and
outlook” in Minsk on 24 April 2008. The participants included the Chairman
and Judges of the Constitutional Court of Belarus, former (pre-1997) judges of
the Court, the Vice-President of the Supreme Court, the Prosecutor General, the
Deputy Ministers of Justice and Foreign Affairs, academics and the Belarus
Helsinki Committee.
The international participants
highlighted the importance of international human rights treaties and
especially that of the European Convention on Human Rights as applied by the
case-law of the European Court of Human Rights.
The presenters from Belarus insisted that international instruments in the human rights field were already part of the
legal order in Belarus and had direct effect together with the Constitution.
The judges of the Constitutional Court of Belarus presented relevant case-law,
which referred to international instruments, including the European Convention
on Human Rights, although Belarus is not yet party to the Convention. The case
abolishing the propiska system, which had limited the right to take
residence in other parts of the country, was cited as a key decision referring
to international instruments.
The Chairman of the Constitutional Court agreed to reflect, together with the Belarus Helsinki Committee, on how
the Opinions of the UN Committee on Human Rights (now Human Rights Council)
could be implemented.
Belarus’ accession to the Council of Europe
was discussed at various stages of the Conference and the Secretary of the
Venice Commission emphasised that Belarus was part of Europe and should
eventually join the Council. However, concrete steps were required on the path
to future accession. Co-operation with the Venice Commission could be pursued
if the Belarus authorities were prepared to make requests for opinions in
relevant fields.
- Georgia
Conference on
"Constitutional Justice and the Rule of Law in South Caucasus”
In co-operation with the
Constitutional Court of Georgia and the German Society for Technical
Cooperation (GTZ), the Commission organised a Conference on "Constitutional
Justice and the Rule of Law in South Caucasus” in Batumi (19-20 June
2008). Presidents and judges from the Constitutional Courts of Armenia,
Azerbaijan, Georgia, Germany, Lithuania, Poland, Russia, Turkey and Ukraine, as
well as several Georgian and foreign experts took part in this Conference.
The Conference focused on the
relevance of constitutional justice for the rule of law and the specific
importance of the individual complaint in this respect. The discussions
revolved around the leading role of constitutional courts in countries where
the ordinary judiciary was still in a transitional process. Individual
complaints to the constitutional court were a means not to control the ordinary
judiciary, but to give it guidance in matters relating to the protection of
human rights. An important part of the Conference was an overview given on the
state of reforms in this field in the three countries of the Caucasus: Armenia, Azerbaijan and Georgia.
- Kazakhstan
Conference on “The Universal
Declaration of Human Rights and its fundamental principles – implementation in
the Constitution of Kazakhstan ”
The Constitutional Council of
Kazakhstan and the Venice Commission organised a Conference on “The
Universal Declaration of Human Rights and its fundamental principles –
implementation in the Constitution of Kazakhstan” on the occasion of the 60th
anniversary of this international text. The conference was opened by the
State Secretary, Mr Saudabaev on 2 December 2008.
Discussions focused on the role
played by the United Nation’s Universal Declaration of Human Rights in
influencing the laws in various countries and, in particular, the
implementation of human rights in Kazakhstan.
The Ombudsman explained that 17
regional ombudsman offices will be opened nationwide over the next year.
The Head of the European Commission's Delegation to Kazakhstan, Kyrgyzstan and Tajikistan, explained that there was a long standing co-operation between the EU and Kazakhstan and that Kazakhstan has made progress in the field of human rights, but that the areas of
elections and freedom of assembly in particular needed further attention.
He praised the co-operation between Kazakhstan and the Venice Commission and
encouraged the Kazakh authorities to take advantage of the legal expertise of
the Venice Commission. Several members of Parliament raised the need for
the implementation of the international treaties to which Kazakhstan is a party, notably, the need to bring together and address the various obligations Kazakhstan has committed to under these treaties. Participants also discussed the
need to increase the role of civil society to raise awareness of human rights
in the country.
The Head of the association Human Rights’ Charter, explained that although
Kazakhstan still provides for the death penalty in its law, it was narrowed
down in 2007 to apply only to war crimes and acts of terrorism.
Furthermore, a moratorium was introduced in 2003 that effectively put an
end to the death penalty and that other areas in the field of human rights
needed more urgent attention, such as the freedom of assembly and association
and the freedom of expression.
- Korea
On 1-4 September 2008, the Venice
Commission participated in the Symposium on the “Separation of Powers and
Adjudication in the 21st Century” on the occasion of the 20th
anniversary of the Constitutional Court of the Republic of Korea. Presidents and Judges from more than 30 countries and 6 regional bodies uniting
constitutional courts attended this event.
The symposium consisted of sessions
dealing with the legislative power, the executive power and the judicial
powers. The presentations showed that constitutional courts have a key position
in the settlement of conflicts of powers between state authorities. Their
decisions settle disputes which hamper the smooth functioning of the
relationship between the state powers.
Together with the Symposium, the
Commission held a preparatory meeting for the World Conference on
Constitutional Justice (Cape Town, 23-24 January 2009), see below under “Transnational
issues”.
- Kyrgyzstan
By letter dated 6 May 2008, the
Chair of the Constitutional Court of Kyrgyzstan, Ms Svetlana Sydykova, requested
opinions on: (1) the draft Law amending and supplementing the Law on
constitutional proceedings in Kyrgyzstan; (2) the draft Law amending and
supplementing the Law on the Constitutional Court; (3) the Law on the Status of
Judges; (4) the Law on Court Juries; (5) the Law on Bodies of Judicial
Self-government and (6) the Law amending and supplementing the Law on the
Supreme Court and local courts. Laws (1) and (2) were dealt with in Opinion
481 and laws (3) to (6) were dealt with in 4 separate opinions (under Opinion
480).
Draft Amendments to the
Constitutional Law on the Supreme Court and Local Courts
(CDL-AD(2008)041)
The aim of this draft Law
is to bring the Law “on the Supreme Court of the Kyrgyz Republic and local courts”, adopted on 18 July 2003, in conformity with the new
Constitution of Kyrgyzstan, adopted by referendum on 21 October 2007.
The amendments introduced by the
draft Law concern, in particular, specific regulations (e.g. responsibility of
the execution of judicial acts, number of vice-presidents and judges,
organisation of the sittings of the Plenum, organisation of courts’ staff
etc.).
A number of the amendments have the
potential of improving the proficiency of the administration of justice. The
compatibility of most of the amendments with the principle of the rule of law
will depend on their implementation.
The Venice Commission pointed out
that the judges’ liability for the non-execution of judgments as well as the
competences of the presidents of courts to assign cases to specific judges,
raise concern in view of the principle of the rule of law and should therefore
be amended.
Constitutional Law on Bodies of
Judicial Self-Regulation of Kyrgyzstan (CDL-AD(2008)040)
This Law establishes two bodies of
judicial self-regulation: (1) the Congress of Judges and (2) the Council of
Judges. It sets out the basic principles for their organisation and activity
and establishes their legal status. This is a framework law, which does not
provide many details, and how the system works in practice will depend on what
other legal and regulatory acts will be adopted to govern its working.
It contains some important
provisions, for instance the organisation of training and further training of
judges and the whole court structure. Time and practice will tell if the
implementation of the relatively strict rules concerning the self-regulation of
judges leaves enough room for real self-regulation and for an open debate among
judges on the problems of the judicial system and thereby leading to an improvement
in the adjudication of concrete cases.
The Venice Commission recommended, inter
alia, to delete the provision where Congress needs to be convened by the
President of the Kyrgyz Republic, because it is not in line with
self-regulation; as regards the prohibition of the re-election of members of
the Council for a second consecutive term, to introduce the staggering of the
terms of office; with respect to disciplinary proceedings against judges,
clarify whether such decisions concern judges and whether they are binding and
to include in this Law how the Council’s various representational and advisory
functions are to be carried out.
Constitutional Law on
Court Juries (CDL-AD(2008)038)
The overall concept of including
jurors in criminal trials on the most serious crimes seems to be a promising
approach to enhance fair trial and this Law is therefore welcomed by the Venice
Commission. However a number of aspects in the draft Law remain vague, for
instance the exclusion of people having an “interest” in the outcome of the
proceedings, to the guarantees of independence and immunity and to the
procedure of “random selection”.
Draft Amendments to the
Constitutional Law on the Status of Judges (CDL-AD(2008)039)
This draft Law sets out three
objectives, namely (1) to create a legal machinery guaranteeing the status of
judges; (2) to provide judges with guarantees of independence and (3) to make
provision for the election, appointment, transfer, rotation, discharge from
office, liability and material and social provisions of judges.
In a constitutional situation where
the presidential powers are too wide (seeCDL-AD(2007)045, paragraph 35,
Opinion on the Constitutional Situation in the Kyrgyz Republic), a
strengthening of judicial independence is highly welcome. The draft Law is
therefore necessary and deserves praise. Its general principles are excellent,
in particular the manner in which judges (with the exception of the Constitutional Court judges) are elected or appointed and the regulations on dismissal are
in line with standards.
However, the Venice Commission made
several suggestions to improve this draft Law, notably, with respect to
advancement, a proposal is made by the National Council of Judges to the
President for the advancement of a judge – the Venice Commission recommends
that the decision-making process in this Council be included in this draft Law;
two provisions seem to go too far in providing for complete immunity of judges
– there should be no immunity from criminal liability if a judge commits a
crime. It is reasonable to grant immunity from civil suit to a judge acting in
good faith in the performance of his or her duty, but, it should not be
extended to a corrupt or fraudulent act carried out by a judge. A provision
should be added to the draft Law that covers and regulates the process of
selecting candidates for the office of president of the Constitutional Court
and president of the Supreme Court. The procedure for selecting candidate
judges for the Constitutional Court should be more transparent. The Venice
Commission therefore recommends that there should be input from a body, such as
an expert committee or the Judicial Council, who would vet the
suitability of candidates for election; the Venice Commission recommends that a
judge should first resign before being able to contest political office,
because if a judge is a candidate and fails to be elected he or she is
nonetheless identified with a political tendency to the detriment of judicial
independence.
It is important to note that,
sometimes, the problem with Kyrgyz laws seems to be not so much the laws
themselves, but their interpretation and application in practice. In this
case, the decision-making process of the National Council of Judges and the
Council of Judges must be analysed.
If the Venice Commission’s
recommendations are heeded, then this Law will provide a good basis for the
development of judicial independence and integrity.
Draft Law amending and
supplementing the Law on Constitutional Proceedings and Draft Law
amending and supplementing the Law on the Constitutional Court (CDL-AD(2008)029)
These amendments were
drafted as a result of the entry into force of a new Kyrgyz Constitution (CDL(2008)017). The Venice Commission had already given an Opinion on this Constitution (Opinion
on the Constitutional Situation in the Kyrgyz Republic, documentCDL-AD(2007)045) and a number of issues discussed in that opinion also arose in relation to the
amendments dealt with in this opinion.
The opinion stated that the amendments
on the competences and procedures of the Constitutional Court could improve the
functioning of the Constitutional Court. However, a number of points needed to
be dealt with. For instance, the draft Law on the Constitutional Court deleted
a whole chapter on the status of judges in that Court – as constitutional court
judges are in need of special guarantees for their independence and they cannot
be assimilated to ordinary judges, the Venice Commission suggested that the
chapter be reintroduced. Furthermore, the election procedure of the president
and vice-president and also of judges of the Constitutional Court should be
further detailed. A new competence for the Court to provide an official
interpretation of the norms of the Constitution was introduced, which was not
recommended by the Venice Commission; the Law should also specify who has
standing for the various procedures before the Constitutional Court; the
introduction of an individual complaint against individual acts is
recommended.
The Venice Commission also
recommended that the Constitutional Court’s budget should not be a part of the
general budget for the judiciary and that access to the Constitutional Court be
simplified. In addition, the current Law on constitutional proceedings contains
a number of provisions that should be included in separate rules on procedure.
Conference on “Supremacy of law and
the independence of the judiciary – guarantees for the stability of democratic
institutions”
A conference on the topic “Supremacy
of law and the independence of the judiciary – guarantees for the stability of
democratic institutions” was organised in Bishkek, Kyrgyzstan on 27-28 May 2008
together with the Constitutional Court. The purpose of the conference was to enable
the rapporteurs to discuss and obtain information on the current judicial
reform in Kyrgyzstan, in the context of the request for opinion on the six
draft laws/amendments mentioned above.
- Moldova
Draft
Law on the Public Prosecutor’s service
By letter
dated 6 February 2008, the Prosecutor General of Moldova asked for an Opinion
on the Draft Law on the Public Prosecutor’s Service. The Venice Commission and
the Co-operation Directorate of the Directorate General of Human Rights and
Legal Affairs of the Council of Europe prepared the opinion following a meeting
with the Moldovan authorities in Chisinau on 7 April 2008. The Co-operation
Directorate had already provided advice on previous versions of the draft. The
Venice Commission adopted the opinion (CDL-AD(2008)019) at its 75th
Plenary Session (13-14 June 2008).
As stated in the opinion,
the draft Law was, on the whole, clear, coherent and comprehensive. The
substitution of the earlier three draft laws represented a substantial
improvement and a number of the rapporteurs’ previous recommendations had been
adopted. However, a major remaining problem was the need to clarify to what
extent the individual prosecutor was autonomous in his/her decision-making or
subject to hierarchical control. In particular, it should have been made clear
in what circumstances the prosecutor’s autonomy could be overridden by a senior
prosecutor. At the same time, the change in the definition of the public
prosecutor’s service in Article 1, while it aligned it more closely to the
Constitution, appeared to be a step away from changing the service into a
service operating in accordance with the principles of a democratic society
under the rule of law by removing elements of the prokuratura-style prosecution system
which still existed. The best solution recommended by this opinion was to amend
Article 124 of the Constitution.
In addition, in order to further
improve the text, the Commission recommended a number of other amendments. Some
of these amendments referred to the prosecutor’s powers. In this respect, the
Commission suggested that any “supervisory role” of the prosecutor be limited
to making an appeal in cases where s/he was a party to the proceedings. The
choice between the opportunity principle and the legality principle should be
clearly specified. The powers of Article 6 to request information and to
inspect premises were too far reaching and should be made dependent on a
decision by a judge. At the same time, the powers of the prosecutor to secure
the protection of the rights, freedoms and interests of juveniles, elderly or
disabled persons, or persons who, due to their state of health, are unable to
take proceedings should be subsidiary only.
In what concerned the appointment of
prosecutors, the Commission showed that there were a number of options which
could include the Superior Council simply giving an opinion on the suitability
of all the candidates or alternatively ranking them in order of preference. A
recommendation for appointment of a prosecutor should come from the Prosecutor
General, with the Superior Council having the right to refuse to appoint a
person, but only for good reason. This would require an amendment of the
constitutional text itself. The opinion also suggested that it would be
appropriate to assess the performance of prosecutors at intervals much closer
than five years. As for the promotion of prosecutors, this required a greater
degree of objective transparency such as recommendation of suitability by an
appropriate board. This should not be left to the sole discretion of an
immediate superior. At the same time, the disciplinary criterion of “unequal
interpretation or application of legislation” was dangerously vague and could
be used to exert pressure on a prosecutor. The Commission also suggested that
the prosecutors be personally liable only if they act in bad faith or in some
very improper manner. In what concerns the two members of civil society elected
by the Board, the Commission considered that it would have been preferable to
have them elected by Parliament.
- Montenegro
Law on the Constitutional Court
In May 2008, the Minister of Justice
of Montenegro, Mr Radovic, requested an opinion on the Draft Law on the Constitutional Court. On 16-17 June 2008, a
delegation of the Commission participated in a meeting with the working group,
which had prepared the draft and a public Round Table on this subject,
organised in co-operation with the OSCE Mission to Montenegro.
In the Opinion, adopted by the
Commission at its 76th Plenary Session (17-18 October 2008), the
Commission underlined that the draft Law was very well prepared and set out the functions
and procedures of the Constitutional Court in a coherent manner. In view of
facilitating its reading and understanding, the Commission recommended that the Law repeat the
provisions of the Constitution rather than just complete them.
The Venice Commission welcomed, in
particular, the introduction of a “full” individual complaint, also against
individual acts, the mandate for the Court to take into account in its decisions
the European Convention on Human Rights as well as the obligation for other
state authorities to take into account the legal reasoning of the
Constitutional Court’s decisions.
Nonetheless, the Venice Commission
found that some problems in the draft Law were related to the Constitution and
recommended that the Constitution be amended, inter alia, with respect
to the following points:
- the election of the judges of
the Constitutional Court should require a qualified majority;
- a clear basis for the introduction
of chambers should be introduced;
- judges should remain in office
until their successor takes up office;
- the actio popularis without legal
interest should be excluded;
- the Court should be enabled to
postpone the entry into force of its decisions in order to give time to
Parliament to avoid a legal void created by the annulment of a law;
- the Court should not be able to
initiate cases on its own motion and should not have a general competence
to monitor constitutionality and legality.
A number of issues could, however,
be solved by ordinary law. Some of the main recommendations concerned the
definition of the Court as an independent judicial institution, budgetary
independence, procedural autonomy, social guarantees for judges and staff of
the Court, a transparent election of judges, the application of a procedural
code by default, the introduction of rules concerning bias and a procedure for
challenging a judge, the possibility to accept individual complaints
exceptionally, even before the exhaustion of remedies, a written Court
procedure, a limitation of the possibility for the Court to act on its own
initiative, the effects of decisions, the possibility to quash decisions of
authorities having acted without competence (ultra vires) as well as a limitation
of the too broad monitoring competence of the Court.
Draft Amendments to the Law on the Prosecution Service
In February 2008, the Deputy
Minister of Justice of Montenegro, Ms Lakocevic, requested the Commission’s
opinion on the draft amendments to the Law on State Prosecutors of Montenegro.
In order to prepare the requested opinion, a delegation of the Commission,
together with the rapporteur appointed by the Directorate of Co-operation of
the Directorate General for Human Rights and Legal Affairs of the Council of
Europe, visited Podgorica where it met the drafting group chaired by the
Minister of Justice. This visit enabled a number of issues raised by the
rapporteurs in their comments to be settled. The opinion (CDL-AD(2008)005) was
adopted by the Venice Commission at its 74th Plenary Session (14-15
March 2008).
According to the Opinion, problems
for the independence of the prosecution do not result so much from the draft
amendments, but rather from the Constitution itself, which provides that both
the prosecutors and the members of the Prosecutorial Council are elected by
Parliament without the requirement of a qualified majority. Within that given
constitutional framework, the rapporteurs found the draft amendments well
prepared, providing a good basis for the work of the State Prosecutor’s Office.
Nonetheless, the Opinion recommended
that a prosecutor who was being seconded against his/her will should be allowed
to file a non suspensive protest to the Prosecutorial Council. The right to appoint
one member of the Council should remain with the Protector of Human Rights, or
at least the President of Montenegro should be obliged to consult with the
Protector before making his/her proposal for a person with relevant human
rights experience. Finally, the deletion of the provision on special reports to
be provided upon request by Parliament and by Government was welcome. If such a
provision were to be re-introduced, it should be formulated in a way to exclude
requests concerning individual cases.
- Palestinian National Authority
Seminar on “Models of Constitutional
Jurisdiction”
On 15 June 2008, the Committee of
Ministers approved a special co-operation status for the Palestinian National
Authority. This status is similar to that of observers and enables the
Palestinian authorities to make requests for opinion to the Venice Commission.
In co-operation with the Ministry of
Justice of the Palestinian National Authority, the Venice Commission organised
a seminar on “Models of Constitutional Jurisdiction” in Ramallah on 25-26
October 2008. The seminar examined the possibilities of establishing a Constitutional Court on the basis of a Law adopted in 2006. Discussions covered various
elements of the functioning of a constitutional court and in particular its
jurisdiction and composition were discussed, taking into account the extremely
difficult political situation and the split between the West Bank and Gaza. During the seminar, the Minister of Justice, Mr Khashan, requested an opinion from
the Venice Commission on the Law on the Constitutional Court, which had been
adopted in 2006, but which had not so far been implemented.
- Serbia
Seminar on the draft laws on the
High Judicial Council, on Judges and on the Organisation of Courts
A seminar for the opinion on the
draft laws forming a part of the package of judiciary laws took place on 21
February 2008, in Belgrade.
The purpose of this seminar was to enable
the rapporteurs to discuss in a meeting with representatives of the Ministry of
Justice, the Working Group for drafting laws related to the organisation of the
judiciary and the Judges Association of Serbia the 3 draft laws that they were
requested to comment: (1) the draft Law on the High Judicial Council; (2) the
draft Law on Judges and (3) the draft Law on the Organisation of Courts. This meeting settled a
number of outstanding questions by the rapporteurs regarding the draft laws.
Draft Laws on the High
Judicial Council, on Judges and on the Organisation of Courts
By letters dated 11 December
2007 and 23
January 2008, the Ministry of Justice of the Republic of Serbia requested the Venice Commission’s opinion on the draft Law on the High Court
Council, as well as an opinion on the draft Law on Judges and the draft Law on
the Organisation of Courts of the Republic of Serbia.
The Opinion on the Draft Law on the
High Judicial Council (CDL-AD(2008)006) was adopted at the 74th
Plenary Session of the Venice Commission (14-15 March 2008) and explained that
the draft Law attempted
to resolve the problem raised by the Serbian Constitution[10] with
regard to the independence of the judiciary and the risk of politicizing it due
to the involvement of the National Assembly in the election of the High
Judicial Council members without a qualified majority, by giving a powerful
role to the judges in the election of the majority of the Council. At the same
time, the Commission drew attention to the risk of creating a constitutional
conflict between the National Assembly and the judiciary. Although a number of recommendations
were formulated, in principle the draft Law on the High Judicial Council was
considered to be acceptable. However, in the Commission’s opinion, no fully
satisfactory resolution of the issues envisaged is possible without amending
the Constitution itself.
The Opinion on the Draft laws on
Judges and on the Organisation of Courts of the Republic of Serbia (CDL-AD(2008)0007) was also adopted at the 74th plenary session of the Venice Commission.
Despite the fact that the draft Law
on Judges is considered to be generally in line with European standards, the
Commission pointed out that there were still a number of provisions that needed
to be revised. This concerned in particular those which tended to weaken
judicial independence. In this regard, attention was drawn to the risk of
politicizing the judiciary by requiring that, for the election of each judge,
the National Assembly be presented with two candidates by the High Judicial
Council and by failing to provide for an acceptable model for the continuance
in office of serving judges against whom no incompetence or behaviour
incompatible with the role of an independent judge was alleged.
The opinion also addressed the
problem of the presence of too many judges in the current Serbian judiciary and
suggested that the way to deal with such a problem was through ordinary
retirement or by introducing early voluntary retirement, not by in effect
dismissing judges who have not been shown to be incompetent or to have
misbehaved.
As concerns the Draft Law on the
Organisation of Courts, only a few changes were recommended, notably,
the need to include in the text more specific provisions on fair trial, the
need to clarify the relation between international law and national law in
case of conflict between them, the revision of those provisions which could
breach the freedom of expression, especially that of the press, and the
revision of the supervising tasks of the president of a court in order to
ensure judicial independence.
- Slovakia
Seminar on “Constitutional
judiciary in the Vishegrad 4 states”
In co-operation with the
Constitutional Court of Slovakia, the Venice Commission organised a Seminar on
“Constitutional judiciary in the Vishegrad 4 states” on the occasion of
the 15th anniversary of the establishment of the Court (3 April
2008). An exchange of information and views between the Constitutional Courts
of the four Vishegrad countries took place during this seminar (Czech Republic, Hungary, Poland and Slovakia). Discussions also highlighted the positive
development of the Constitutional Court of Slovakia.
During the seminar, the key role of
constitutional courts in modern democracies was discussed. It was pointed out
that they do not only provide for the stability of the constitution and respect
for the rule of law, but also have, beyond this classical approach, a
distinctive role to play in furthering and strengthening the democratic
process, in which the constitution serves as a main pillar.
- Russia
XI International Forum on
Constitutional Review on “Constitutional Values in Theory and Judicial
Practice”
On 20-21 June 2008, the Venice
Commission organised, in co-operation with the Institute of Law and Public Policy, the German Foundation for
International Legal Cooperation, the John D. and Catherine T. MacArthur
Foundation and under the aegis of the Constitutional Court of the Russian Federation, the XI International Forum on
constitutional justice on “Constitutional Values in Theory and
Judicial Practice”. Chief justices, justices and staff members of the
Constitutional Courts of Russia, European countries and the countries of CIS,
judges of the European Court of Human Rights as well as leading Russian and
foreign experts in constitutional law and political science participated in the
sessions of the Forum.
Issues examined revolved, inter
alia, around values as normative concepts; values and their reflection in
the texts of constitutions, procedures and decisions and the legitimacy of
value judgments in constitutional adjudication. The discussions showed that
constitutional values are not an abstract topic of legal theory, but that their
application in daily practice had an important impact on society.
- Ukraine
Conference on “the Constitutional Court in the System of State Bodies: Crucial Problems, Ways of their
Solution”
In co-operation with the
Constitutional Court of Ukraine, the OSCE and the German Foundation for
International Legal Co-operation, the Venice Commission organised a Conference
on “the Constitutional Court in the System of State Bodies: Crucial
Problems, Ways of their Solution” in Kyiv on 16-17 May 2008, which was
opened by the President of the Republic.
In the light of the previous
constitutional justice crisis in Ukraine, these discussions revolved around the
importance of strengthening the Constitutional Court in order to provide
stability of the Constitution and respect for the rule of law. Presentations
from constitutional courts of other countries (Austria, Belarus, Czech Republic, Germany, Hungary, Kazakhstan, Latvia, Lithuania, Moldova, Romania, Russia and Slovenia) showed the crucial effect that constitutional courts can have on the
democratic development of countries, even if in some of these countries problems
persisted. The Constitutional Court of Ukraine ought to have a distinctive role
to play in furthering and strengthening the democratic process, in which the
Constitution serves as a main pillar. It was proposed that the Constitutional
Court of Ukraine be further strengthened by the introduction of a
constitutional complaint against individual acts.
2. transnational
activities
The Venice Commission’s Centre on
Constitutional Justice promotes the exchange of experience and case-law through
the publication of the Bulletin on Constitutional Case-Law, the database
CODICES and the on-line Venice Forum.
- Bulletin on Constitutional-Case Law /
database CODICES
The Venice Commission provides a
number of services to Constitutional Courts and equivalent bodies, including
the publication of the Bulletin on Constitutional Case-Law, which presents précis
of important constitutional cases from the member and observer countries of the
Venice Commission. In 2008, three regular issues and, upon request by the Conference
of European Constitutional Courts, a special issue on legislative omission was
published. Two regular issues as well as another special Bulletin was prepared
during the same period. The Bulletin is highly appreciated by the courts
because it enables regular exchanges of case-law between courts, which would
otherwise be separated by a language barrier (see also resolution of the
Conference of European Constitutional Courts below).
- CODICES database
All regular and special issues of
the Bulletin are included in the CODICES database (www.CODICES.coe.int), which at the end
of 2008 contained 5759 cases. Non-European decisions are included by virtue of
the full member or observer status of the respective countries or by virtue of
the co-operation of the Venice Commission with regional partners (see below).
CODICES enables a full text search or a thematic search to be carried out
through the Commission’s Systematic Thesaurus, which is updated once a year by
the Joint Council on Constitutional Justice.
- Venice Forum
The Venice Forum provides a system
of quick exchange between the constitutional courts and equivalent bodies.
Liaison officers from one court can ask questions about specific topics to all
the other courts and receive their replies in time for the preparation of a
case pending before their court. The Forum exists in two forms: (1) the classic
Forum allows exchanges via e-mail, moderated by the Secretariat, (2) whereas
the Forum Newsgroup allows the courts to post their requests directly on a
restricted site. The classic forum is open to courts of member and observer
states of the Venice Commission, whereas the Newsgroup is also open to courts
of regional partnerships (see below). In 2008, more than 37 requests were made
via the Forum and received replies with a rich content on issues as diverse as
the legality of audio-visual recording of meetings with officials to passport
confiscation and foetal screening.
3. regional
co-operation
The Venice Commission pursues a
regional approach by co-operating with associations of constitutional courts
and equivalent bodies both in- and outside Europe.
- Conference of European Constitutional
Courts
On 2-7 June 2008, the Commission
participated in the XIVth Congress of the Conference of European
Constitutional Courts on “Problems of Legislative Omission in Constitutional
Jurisprudence”.
Upon request by the Lithuanian
Presidency of the European Conference, the Venice Commission had prepared a
working document on the case-law of the participating courts in the field of
legislative omission and the filling of legal gaps. Furthermore, the Venice
Commission presented a working document on the Supreme Court of Monaco, which
sought and obtained full member status with the Conference. Together with this
contribution and contributions to previous congresses of the European
Conference, the work of the Venice Commission for the constitutional courts was
acknowledged in a special resolution, which thanked the Venice Commission for
the services it provides (Bulletin on Constitutional Case-Law, CODICES,
database, Venice Forum, seminars, etc.). The Conference called for a
continuation of this excellent co-operation with the Venice Commission.
On the sidelines of the Congress,
the Venice Commission held the first of three preparatory meetings for the
World Conference on Constitutional Justice (see below).
- Ibero-American Conference of
Constitutional Justice
On the occasion of the XIVth
Congress of the Conference of European Constitutional Courts, the
Ibero-American Conference of Constitutional Justice and the Venice Commission
concluded a co-operation programme, which provides that the CODICES database
will also be available to the Latin American members of the Conference. The
member courts will also be invited to participate in the exchange of
information via the Venice Forum Newsgroup.
Within the larger framework of
co-operation with Ibero-American Courts, the Venice Commission participated in
the VIth Meeting of Supreme Courts of Mercosul (Mercosur) Member
States and Associate Members in Brasilia (21 November 2008). This meeting
showed the keen interest of Mercosul member courts to co-operate closely with
the Venice Commission.
The Supreme Court of Brazil stated
that it will actively contribute its case-law to the CODICES database and has
sought to extend such contributions to the whole of the Mercosul region.
- Union of
Arab Constitutional Courts and Councils
In 2006, the Union of
Arab Constitutional Courts and Councils sought co-operation with the Venice
Commission. The Union had been created in 1997 with the objective of promoting
co-operation and the exchange of ideas between the courts and councils, to
encourage research in the constitutional field and in particular in the human
rights area and to establish contacts with similar organisations.
The Venice Commission established a
co-operation programme, with the Union (signed in Cairo in June 2008), which
comprises seminars, contributions of the Arab courts to the Commission’s
CODICES database as well as translations of basic texts in the field of
constitutional justice. The programme, funded by the Government of Norway, has
a special focus on the needs of the Palestinian judiciary.
Within the framework of the
co-operation programme, a delegation of the Venice Commission participated in
the Fifth Plenary of the Scientific Symposium of the Union of Arab
Constitutional Courts and Councils on "Constitutional Principles
Securing a Fair Trial" presenting European views on this topic in
Sana’a, Yemen on 10-11 November 2008.
The seminars in Algeria and with the Palestinian National Authority fall (see above) into the framework of
this co-operation.
- Commonwealth
In view of establishing relations
with apex courts in Commonwealth countries, which are not organised in the form
of a formal association, the Commission participated in the Meeting of
Commonwealth Law Ministers and Senior Officials, which gathered together Law
Ministers and Attorney-Generals from 38 countries of the Commonwealth in Edinburgh, Scotland on 7-10 July 2008.
These meetings
take place every three years and provide a forum for promoting the
Commonwealth’s values and principles through legal policy and practice, an area
in which the Law Ministers play a key role. Since Commonwealth countries have
a similar legal system, this forum enables them to share experiences and
information, which often take the form of the adoption of model laws,
principles and guidelines which set a standard for these countries to follow.
Participants agreed that a major
challenge was the rule of law as it relates to (lack of) resources and
corruption both regionally and nationally. They explained that there was very
little reliable research on access to justice in Commonwealth countries and
that this should be remedied.
A number of Commonwealth countries
were very interested in the work of the Venice Commission, notably Malaysia, who was keen to get in contact regarding constitutional matters.
- ODIHR Human Dimension Seminar
On 14-15 May 2008, the
Venice Commission participated in the ODIHR Human Dimension Seminar on
Constitutional Justice in Warsaw. This seminar enabled the Commission to inform
about its close co-operation with constitutional courts and equivalent bodies
to the OSCE delegations present. ODIHR recognised the key role which the Venice
Commission has in this respect.
4. world
Conference on constitutional justice
In the light of the close
co-operation with a number of regional groups of courts of constitutional
jurisdiction (Arab, Asian, Commonwealth, European, French Speaking,
Ibero-American, Southern African, Young Democracies/CIS) the Venice Commission pursued the goal of uniting these groups and their members for the first time
in a World Conference on Constitutional Justice.
In co-operation with the
Constitutional Court of South Africa, the Venice Commission prepared the
organisation of this event, to be held in Cape Town, South Africa from 23 to 24
January 2009.
The topic of the Conference is “Influential
Constitutional Justice - its influence on society and on developing a global
jurisprudence on human rights”.
In the light of the global scale of
the Conference and the implication of the regional groups as the vectors of the
conference, the Venice Commission held three preparatory meetings for the
Conference with the regional groups in 2008: in Vilnius, Seoul and Algiers. These meetings enabled the full support of the groups for the Conference to be
obtained. At the meetings a programme was drafted which put a focus on
presentations by the participating groups to encourage not only contacts within
the regions but also between them. At the last meeting in Algiers, the
president of the regional groups prepared a draft final declaration, which
provided for an institutionalisation of the World Conference.
5. transnational
activities – ordinary judiciary
- Study on the Independence of
the Judiciary
By letter of 11 July 2008, the
Chairperson of the Committee on Legal Affairs and Human Rights of the
Parliamentary Assembly requested the Venice Commission to give an opinion on “European
standards as regards the independence of the judicial system”. The
Committee is “interested both in a presentation of the existing acquis
and in proposals for its further development, on the basis of a comparative
analysis taking into account the major families of legal systems in Europe”.
The Venice Commission entrusted the
preparation of this report to its Sub-Commission on the Judiciary, which held
two meetings on the subject in Venice on 16 October 2008 and 11 December 2008.
The Sub-Commission decided to
prepare two reports on the independence of the Judiciary, one dealing with
prosecution and another one on judges. The Commission intends to adopt these
reports in 2009.
- Conference of Prosecutors General of
Europe (St Petersburg, 1-3 July 2008)
Ms Suchocka participated, on behalf
of the Venice Commission, in this Conference which dealt with the issue of the
powers of prosecutors outside the criminal law field. In her presentation, she
explained the reasons for the Venice Commission’s critical position with
respect to such powers, in particular if these are inherited from the Soviet Prokuratura
system.
- Regional
Conference on Justice and the Rule of Law in the South Caucasus (Tbilisi,
19-20 November 2008)
Mr Gstöhl participated on behalf of
the Venice Commission in this Conference, which was organised within the
framework of the Swedish presidency of the Committee of Ministers. He made a
presentation on “Judicial reforms in the South Caucasus: Past achievements
and future perspectives”.
IV. DEMOCRACY THROUGH FREE AND FAIR ELECTIONS[11]
1. country
specific activities
- Armenia
Electoral reform
At its 76th plenary
session (Venice, 17-18 October 2008), the Venice Commission adopted the joint
opinion with OSCE/ODIHR on the Election Code of the Republic of Armenia as
amended up to December 2007 (CDL-AD(2008)023). This opinion took account of the
implementation of the Election Code during the 2007 and 2008 elections.
In the Commission’s view,
the amended Code can be regarded as the basis for genuinely democratic
elections if implemented in good faith. However, further improvements could be
made, and the Code could also be improved by including more explicit
obligations within areas where the implementation seems to fall short of
international standards. Some of the most important points to be considered
suggested by the Venice Commission refer to the complaints and appeals procedures.
The Commission recommends that the provisions on this issue be made more
systematic, and the procedure more efficient. In particular, it stresses that
overly formalistic approaches should be avoided, so that alleged irregularities
are systematically addressed in their substance.
The Commission’s opinion
also draws attention to the problem of the balance in the election commissions,
in particular in their management positions (chairperson, deputy chairperson
and secretary), stressing that a fair and balanced political representation is
crucial and should be better ensured at all levels of the election
administration. In what concerns the issue of the increased electoral deposit,
the Commission warns against the risk of transforming it into an excessive
hurdle. The Commission’s recommendations also refer to the stamping of voters’
identification documents which is considered to be a positive step as a
safeguard against double voting. Nevertheless, the inking of fingers still
remains an appropriate alternative safeguard against fraud.
The Commission expressed
a favourable opinion on the regulation of the elections at all levels of
government in the same piece of legislation. Such consolidated legislation is of
considerable benefit because differences in the administration of different
elections could be avoided, and it is easier to maintain. However, the Code
does not to take full benefit of these advantages since there is still
unnecessary repetition between the sections addressing specifically the various
elections. For example, rules applicable to all elections regarding ballots or
summarisation of results could be included in a general section.
Immunity of persons
involved in the electoral process
By letter of 1 July 2008, the Human
Rights Defender of Armenia, Mr Armen Harutyunyan, requested an opinion on draft
amendments to the Election Code of Armenia regarding immunity of persons
involved in the electoral process. The opinion (CDL-AD(2008)024) was adopted by
the Venice Commission at its 76th plenary session (Venice, 17-18 October 2008).
The Commission considers it to be
exceptional that immunity is extended to mere candidates for public office. In
its view, the only conceivable justification for such an extension is to
prevent undue pressure on the candidates and to guarantee that elections are
not affected by ungrounded indictments or detentions. This justification must
be balanced against the reasons favouring the limitation of immunity and
underpinning the recommendations of the Group of States against Corruption (GRECO).
Taking into account the importance
of the office in the political system, the Commission found that securing fair
elections might justify the immunity of presidential candidates in a young
democracy such as Armenia. Therefore, immunity for Presidential candidates does
not seem disproportionate. On the contrary, immunity for candidates for
National Assembly, territorial and local elections does not appear justified,
and can even lead to reverse abuse. It can be an incentive to stand for
elections in order to avoid either pending or potential cases before courts.
Regarding the electoral
administration and more particularly the central organ of this administration,
i.e. the Central Election Commission, the Commission suggests that it would be
advisable to distinguish the members vis-à-vis the staff members. The members,
all appointed by elected stakeholders (political parties sitting at the
National Assembly and the President of the Republic), themselves stakeholders
highly involved in the organisation of the elections, should enjoy immunity
during their entire mandate, due to the high risk of pressure they could
undergo from political factions, Government, etc. In spite of the GRECO
recommendations regarding the members of the Central Election Commission, the
Venice Commission recommends for the time being to maintain the immunity of the
Central Election Commission’s members. On the contrary, it seems excessive to
provide the staff of the electoral administration with immunity; such personnel
should be considered comparable to other civil servants, in spite of the fact
that they are staff members of a body independent from any Ministry or national
Agency.
Conference for free elections
through law
On 26 January 2008, the Venice
Commission organised, in co-operation with the Constitutional Court of Armenia,
the Legal School of Armenia and the American Bar Association, a Conference on
Free and fair elections through law. Three Venice Commission experts made a
presentation at this Conference which was aimed in particular at judges
responsible for legal disputes, in the context of the Presidential elections of
19 February 2008.
Legal assistance to an electoral
observation mission
At the invitation of the
Parliamentary Assembly of the Council of Europe (PACE), a Venice Commission
member and a member of the Secretariat participated as legal advisers in a PACE
electoral observation mission during the Presidential elections of 19 February
2008. Their task was to advise members of the delegation on the legal aspects
of the election.
- Azerbaijan
Electoral reform
In 2009, the Venice Commission
continued its co-operation with Azerbaijan on electoral matters. Consequently,
a joint opinion by the Venice Commission and OSCE/ODIHR on the draft amendments
to the electoral code of the Republic of Azerbaijan was adopted by the Council
for Democratic Elections at its 25th Meeting (12 June 2008) and by
the Venice Commission at its 75th Plenary Session (13-14 June 2008)
(CDL-AD(2008)011). This opinion was a follow-up to the interim joint opinion
adopted by the Commission at its 74th Plenary Session (14-15 March
2008) (CDL-AD(2008)003) and the meeting of a working group of the Commission
and OSCE/ODIHR with the authorities in February 2008. The final opinion takes
into consideration the amendments adopted by the Parliament of Azerbaijan on 2
June 2008. The amended Code incorporated the recommendations of the Venice
Commission and OSCE/ODIHR relating to the responsibility of executive
commissions not to interfere unduly in the electoral process, the inking of
voters’ fingers and a new appeals procedure. Nevertheless, some of the
previous recommendations do not appear in the new law; including concerning the
fundamental question of the composition of electoral commissions. In addition,
new amendments were adopted on the reduction of the length of electoral
campaigns and on the media without any discussion between the experts of the
Venice Commission and OSCE/ODIHR and the authorities. Further electoral reform
is therefore necessary.
Assistance to the Central Electoral
Commission
At the request of the Central
Electoral Commission, a Venice Commission expert was put at the disposal of
this Commission from 23 September to 11 October to assist with the preparation
of the elections.
Seminars on electoral
issues
From 14 to 17 July 2008, the Venice
Commission organised, in co-operation with the Central Electoral Commission and
IFES, two training seminars for territorial electoral commissions of Azerbaijan. These two seminars were attended by around 250 participants in total.
From 21-26 August 2008, the Venice
Commission organised, in co-operation with the Central Electoral Commission and
IFES, two training seminars for expert groups on disputes created within the
territorial electoral commissions.
Legal assistance to an electoral
observation mission
At the invitation of the
Parliamentary Assembly of the Council of Europe, a Venice Commission expert and
a member of the Secretariat participated as experts in the mission observing
the presidential elections of 15 October 2008. Their task was to advise the
members of the Assembly delegation on legal aspects of the election.
- Bosnia and Herzegovina
Electoral reform
At the request of the Central
Electoral Commission of Bosnia and Herzegovina, the Council for Democratic
Elections at its 24th meeting (15 March 2008) and the Venice
Commission at its 75th plenary session on 13 to 14 June 2008 adopted
a joint opinion with OSCE/ODHR concerning the law on amendments to the election
law of Bosnia and Herzegovina (CDL-AD(2008)012). This joint opinion addresses only
the amendments to the Election Law and, therefore, must be considered in
relation with previous assessments of the Election Law by the Venice Commission
and the OSCE/ODIHR.
In the obviously difficult
constitutional, institutional and political context of Bosnia and Herzegovina, the election law has already been subject to quite frequent
reforms. For the major part, the current amendments address technical issues,
for purposes of clarification and improvement, and mainly with positive
results. They also address some previous recommendations of A more substantive
nature and may be considered as positive to that extent. However, the
amendments do not address certain significant issues previously noted regarding
the national and entity election systems, which are based on ethnicity, the
right to be elected, and transparency in the determination of rights in
electoral dispute proceedings.
Seminar on Electoral Standards
On 10 September 2008, the Central
Electoral Commission of Bosnia and Herzegovina and the Venice Commission
co-organised a seminar on electoral standards. This activity involved members
of electoral commissions from different levels and highlighted different
questions relating to the forthcoming elections in Bosnia and Herzegovina. The
participants had the opportunity to discuss existing electoral standards and
their practical implementation in the electoral process.
Law on the financing of political parties
By letter of 28 November 2007, Mr
Stjepan Mikic, president of the Central Election Commission (CEC) of Bosnia and
Herzegovina, requested together with the Head of OSCE Mission to Bosnia and
Herzegovina, Ambassador Douglas Davidson, the assistance of the Venice Commission
in dealing with three issues concerning the Bosnia and Herzegovina legislation
on political party financing, mainly codified in the Law on Political Party
Financing as enacted in 2000.
Following a visit of a Venice
Commission delegation to Sarajevo on 18619 February 2008, the Venice Commission
adopted an opinion on the law on financing of political parties of Bosnia and
Herzegovina at its 74th plenary session on 14615 March 2008 (CDL-AD(2008)002).
The question of externally donated
monies as well as the acceptable range of fines and barring political parties from elections
are among the main problems. The latter is a sanction of such severity that it can be
considered only under very exceptional circumstances and only if this measure
is not disproportionate to the goal, which is to be achieved.
- Bulgaria
Law on Political Parties
At its 77th session
(12-13 December 2008), the Venice Commission adopted the Opinion on the amendments to the
Law on political parties of Bulgaria (CDL-AD(2008)034), at the request of the
Minister of Justice of Bulgaria. The overall assessment of the Law was positive; however,
certain provisions of the text might be reconsidered, notably, the limitations
on the participation in political parties imposed on non-citizens, high
thresholds for establishing parties as well as requirements concerning the
territorial branches of parties. The Opinion also noted that certain articles
of the Law that related to the financing of parties or to complaints and
appeals procedures might be reviewed and made clearer in order to avoid
problems of interpretation.
- Georgia
Electoral reform
Following a request from the
Georgian authorities, the Council for Democratic Elections at its 26th
meeting (18 October 2008) and the Venice Commission at its 77th
Plenary Session (12-13 December 2008) adopted a joint opinion by the Venice
Commission and OSCE/ODIHR on the Electoral Code of Georgia as amended in July
2008 (CDL-AD(2009)001). This opinion concluded that the amendments made to the
Electoral Code of Georgia are clearly an overall improvement. Nonetheless a
number of provisions in the current law remain issues of concern, or raise
questions due to the fact that they are not sufficiently specific. Among these
issues is the number of voters in each single mandate constituency, which
should be comparable. In addition, there is the question of political officials
combining campaigning with official duties, as well as the issue of the use of
administrative resources for campaign purposes, both of which should be
prohibited.
In conclusion, the Venice Commission
and OSCE/ODIHR suggested revising the electoral code according to an open and
transparent process of consultation.
Assistance to the Central
Election Commission
From 28 April to 25 May
and from 29 May to 9 June 2008, a high level international expert appointed by
the Venice Commission assisted the Central Election Commission on the legal and
technical questions before, during and after the legislative elections of 21
May 2008.
Seminar on electoral
issues
On 6 May 2008 the Venice
Commission organised in co-operation with the High School of Justice a seminar on electoral disputes with judges responsible for disputes (Supreme Court and
Administrative Courts judges).
On 7 May 2008 the Venice
Commission organised in co-operation with the Association of Young Lawyers of
Georgia a workshop on the holding and supervision of elections aimed at
disseminating the principles of the European electoral heritage, in particular
concerning observation on voting day, by training NGOs which are active in
electoral observation.
Legal assistance to two
election observation missions
At the invitation of the
Parliamentary Assembly of the Council of Europe, a Venice Commission member and
a member of the Secretariat participated, as legal advisers, in a mission
observing the Presidential elections of 5 January 2008 and the Parliamentary
elections of 21 May 2008. Their task was to advise members of the delegation
on the legal aspects of the elections.
- Kazakhstan
Conference
on the financing of political parties
The Venice Commission
organised in Astana on 1 December 2008 in co-operation with the Legal Policy Research
Centre a Conference on Financing of Political Parties and Election Campaigns in
which participated representatives of the Constitutional Council, the Ministry
of Justice as well as representatives of political parties and the civil
society.
- Kyrgyzstan
Electoral Reform
On 17 December 2008,
representatives of the Venice Commission took part in a national conference
entitled “Electoral
process in Kyrgyzstan”. The aim of this conference was to discuss reports on the
European standards in the electoral field.
The National Conference was attended
by representatives of the Central Electoral Commission and of the Constitutional Court, representatives of different political parties and of the civil
society, as well as representatives of international organisations (OSCE,
European Commission, IFES, UNDP, and Soros foundation – Kyrgyzstan).
Co-operation with the Kyrgyz
authorities should continue in 2009.
- Moldova
Electoral reform
In April 2008, the
Parliament of the Republic of Moldova adopted amendments to the Election Code.
Following an official request from the Moldovan authorities, the OSCE/ODIHR and
the Venice Commission undertook a joint expert review of the Election Code of
Moldova as amended. The opinion (CDL-AD(2008)022), which was adopted by the
Venice Commission at its 76th plenary session (Venice, 17-18 October 2008) has
to be read in conjunction with an earlier Joint Opinion of the Venice
Commission and the OSCE/ODIHR of 2007 (CDL-AD(2007)040). The opinion is focused
on the extent to which the amendments have addressed previous recommendations,
and assesses the amendments against OSCE commitments and international
standards for democratic elections.
The Election Code
regulates all direct elections and referendums in the Republic of Moldova except those for the authorities of the Autonomous Territorial Unit of Gagauzia. The
amendments introduced this year are not comprehensive, and have not addressed
most of the previous recommendations. While some of the amendments bring about
technical improvements to the organisation of the electoral process, it is
unfortunate that some of them represent a step back. This is particularly true
for the increase of the threshold for accession to Parliament from 4 to 6 %
while electoral alliances have been removed and independent candidates are not
admitted. Moreover, double nationals are no longer allowed to sit in
Parliament. The European Court of Human Rights, quoting a number of Venice
Commission documents, stated clearly that such an incompatibility goes against
Article 3 of the Additional Protocol to the European Convention on Human
Rights. In particular,
the Court remarked that there were other means of securing loyalty to the State
such as requiring MPs to take an oath of loyalty and that Moldova is a party to the European Convention on Nationality which guarantees all persons
holding multiple nationality equal treatment with other Moldovans.[12]
As a matter of priority,
it would be desirable to implement all recommendations in this opinion as well
as other important recommendations contained in the previous joint opinions before the parliamentary
elections scheduled for 2009.
Already on 29 May 2008,
the Venice Commission had taken part in an Expert Meeting with the Republic of Moldova on Human Rights and Democracy Issues organised by the European
Commission. The issues of the threshold and the restrictions of double
citizens’ electoral rights had been raised.
Seminars on electoral issues
On 30 October 2008, the Venice
Commission organised a seminar aimed at strengthening the capacities of the
Central Election Commission and civil society in Moldova in electoral issues.
This seminar, which covered the different stages of the electoral process, was
for members and staff of the electoral administration, as well as NGOs
authorised to observe the elections.
On 24-25 November 2008 the
Commission organised a seminar for judges on electoral disputes. Around 80
judges from Constitutional and Supreme Courts as well as Administrative and
Appeal Courts from the whole country participated in this seminar.
Seminar in the electoral
field bringing together experts from both banks of the Nistru
On 31 October 2008 the
Venice Commission participated in an exploratory mission to Transnistria with a
view to examining whether a joint seminar involving the Central Electoral
Commissions of Moldova and Transnistria would be possible during 2008.
Following this meeting, the General Directorate of Democracy and Political
Affairs of the Council of Europe and the Venice Commission, in co-operation
with OSCE/ODIHR and the OSCE Mission in Moldova, organised a seminar on European
electoral standards in Budapest on 18-19 December 2008. This event was however
cancelled as the Transnistrian delegation announced at the last minute that
they would not participate.
- Montenegro
Legal Assistance to an election
observation mission
At the invitation of the
Parliamentary Assembly of the Council of Europe, a Venice Commission expert
participated in a mission observing the Presidential elections of 6 April 2008
as an expert. The expert’s task was to advise the members of the Assembly
delegation on the legal aspects of the election.
- Serbia
Law on local elections
On 18 March 2008, the Venice Commission participated a meeting of experts on the basic legislation concerning local
self government in Serbia. In particular, the discussion focused on the new
law on local elections.
Co-operation with Serbia on electoral issues should continue during 2009.
Legal Assistance to an
election observation mission
At the invitation of the
Parliamentary Assembly of the Council of Europe (PACE), the Venice Commission advised members of the PACE delegation who observed the parliamentary
elections of 11 May 2008 on the legal aspects of the election.
- “The former Yugoslav Republic of Macedonia”
Re-appointment of the members of the
State Election Commission
Following a request from the
Monitoring Committee of the Parliamentary Assembly, the Commission adopted at
its 77th Plenary Session (12-13 December 2008), an opinion on the
issue of the re-appointment of the members of the State Election Commission of
“the former Yugoslav Republic of Macedonia” (CDL-AD(2008)036). The latest
revision of the electoral code entailed the total renewal of the State Election
Commission shortly before the elections. The opinion in particular put the
emphasis on the stability of the electoral law. Care should be taken to avoid
semblance of manipulation and to ensure that the Commission is not composed of
only inexperienced members.
Seminar on electoral issues
On 16 and 17 October 2008, the Venice Commission organised a seminar, in co-operation with the State Election Commission, with
a view to the preparation of the Presidential and Local elections scheduled for
Spring 2009. The debates focused on the principles of the European electoral
heritage; on the functioning of the electoral administration and its work in
the context of the forthcoming elections; on the rights and obligations of
observers during the polling period.
The theme of the seminar was: “How
to prepare the forthcoming elections for achieving credible and genuine
elections?”. There were around 40 participants at the seminar evenly divided
between members and staff members of the State Election Commission and
Presidents of Municipal Election Commissions.
Legal Assistance to an election
observation mission
At the invitation of the
Parliamentary Assembly of the Council of Europe (PACE), a Venice Commission electoral expert participated in the PACE mission observing the legislative
elections of 1 June 2008 as a legal adviser. The expert’s task was to advise
the members of the delegation on the legal aspects of the election.
- Turkey
Prohibition of political parties
At its meeting of 11 September 2008
the Monitoring Committee of the Parliamentary Assembly decided to request the Venice
Commission to review the constitutional and legal provisions which are relevant
for the prohibition of political parties in Turkey. The Commission held a
preliminary exchange with representatives of the Turkish authorities at its
October session and continued discussions at its December session. The adoption
of the Commission’s opinion is scheduled for the March session.
- Ukraine
Draft referendum laws
At its 77th session, the
Venice Commission endorsed comments (CDL-EL(2008)010, 023 and 028) on the draft laws on
referendum in Ukraine. The opinion had been requested by the President of the
Ukrainian Parliament. The rapporteurs shared the opinion that both draft laws
addressed the main and necessary issues in an appropriate way that could serve
as a legal basis for organising a referendum; however, both texts were too
detailed and sometimes with unnecessary repetitions and even contradictions. Co-operation on this issue should continue
in 2009.
Electoral reform/Conference on European standards and the development of
electoral legislation in Ukraine
On
16 January 2008 the Venice Commission organised, in co-operation with OSCE and
the Electoral Law Institute of Ukraine, a Conference on European standards and
the development of electoral legislation in Ukraine. The aim of this meeting
was to discuss the 2007 Ukrainian elections and hold an exchange of views on
improvements to be made to the legislation and electoral practice. The
Conference was attended by the President and members of the Central Electoral
Commission as well as representatives of political parties, NGOs and
Universities.
Co-operation
with the Ukrainian authorities on electoral reform, preferably with a view to
the adoption of a unified electoral code, should continue in 2009.
2. transnational
activities
- Code of good practice on
referendums
In 2007, the Venice Commission
adopted the Code of good practice on referendums (CDL-AD(2007)008), which was
then approved by the Parliamentary Assembly and the Congress of Local and
Regional Authorities of the Council of Europe. On 27 November 2008, the
Committee of Ministers adopted a declaration on the code of good practice on
referendums, in which it invited governments, parliaments and other relevant
authorities in the member states to take account of the Code of Good Practice
on Referendums, to have regard to it, within their democratic national
traditions, when drawing up and implementing legislation on referendums and to
make sustained efforts to disseminate it widely in the relevant circles.
- Code of good practice
for political parties
In 2008, the Venice Commission
continued its work on the Code of good practice for political parties
culminating in its adoption.
This document was prepared further
to Parliamentary Assembly Resolution 1546(2007) on the Code of good practice
for political parties. This code (CDL-AD(2009)002) was adopted by the Council
for Democratic Elections, at its 26th meeting (18 October 2008), and
by the Venice Commission at its 77th Plenary Session (12-13 December
2008). The Council for Democratic Elections, at its 27th meeting
(13 December 2008) started consideration of the draft explanatory report to the
code, which should be adopted in March 2009.
The code of good practice for
political parties was drawn up at the request of the Parliamentary Assembly and
is aimed at a systemisation of good practices. It is intended for political
parties and does not contain recommendations for national authorities. It
contains four parts, general principles to which all political parties should
conform, the internal organisation of political parties, their funding and
their political functions. The general principles include the definition of
political parties and their guiding principles such as the rule of law,
democracy, transparency and openness. In the chapter on internal organisation,
the Commission emphasises in particular non-discrimination regarding
membership, the internal democratic structure, representativeness,
responsibility and accountability. The chapter on funding recalls the norms
extensively developed in the Commission’s previous work (see document
CDL-INF(2001)008). Finally, the chapter on political functions deals with the
programme, civic and political training of members, the activity of parties
during elections as well as performance in office and the role of the
opposition.
- Dual voting for persons belonging to national minorities
In October 2006, the
Office of the OSCE High Commissioner on National Minorities (HCNM) requested
the Venice Commission’s opinion on a document on dual voting for persons
belonging to national minorities, prepared by the HCNM. After discussing the
subject, the Commission agreed that due account should be taken of the wide
variety of models adopted to ensure the election of special minority
representatives in the national and regional assemblies, as well as of the
considerable discretion the states enjoyed in determining how effective
participation was to be achieved. That margin of discretion should enable them
to take account of their particular historical and social circumstances, while
at the same time complying with Article 3 of the Additional Protocol to the
ECHR and Article 25 of the UN's ICCPR and relevant case-law.
Further to that
discussion, the HCNM prepared a revised version of the document on dual voting
for persons belonging to national minorities. The conclusions of the UniDem
Seminar on the participation of minorities in public life (Zagreb, 18 - 19 May
2007) were also taken into account in the preparation of these comments. The
report (CDL-AD(2008)013) prepared on the basis of contributions by Mr Sergio
Bartole and Ms Josette Durrieu was adopted by the Council for Democratic
Elections at its 25th meeting (Venice, 12 June 2008) and by the Venice
Commission at its 75th plenary session (Venice, 13-14 June 2008).
As it results from the
report’s conclusions, the representation of minorities in elected bodies can be
ensured either by the application of the general rules of electoral law or by
specific rules. The situation depends on a number of variables, such as the
nature of the electoral rules (e.g. proportional vs. plurality/majority system), the
repartition of the minorities (in particular, whether they are a majority in
any part of the territory) and the degree of integration, in practice, of
minorities in the political system.
At the same time, the
long-term interests of minorities and of societies as a whole seem to be in
principle better served by representation under the “ordinary electoral system”
which guarantees equal rights to citizens, irrespective of the group to which
they are initially affiliated. However, from the Commission’s point of view,
this does not exclude specific measures of a transitional nature when needed in
order to ensure proper representation of minorities. These solutions include inter alia exceptions to rules on
the threshold, reserved seats and overrepresentation of districts in which the
minority is in a majority.
The Commission concludes
that alternative, more decentralised, political models may offer another
solution, especially in situations where national minorities are concentrated
in certain regions. The recognition granted to regional forms of government,
for example in Italy (Trentino-Alto Adige and Valle d'Aosta), Spain (Catalonia
and the Basque Country) and the United Kingdom (Scottish devolution and recent
developments in Northern Ireland), shows that states can develop forms of
organisation that reconcile political unity and the presence of minorities,
while continuing to respect universal rights. This may lead other countries to
accept greater autonomy for their minorities.
As far as specific rules
on representation of national minorities are retained and on the basis of the
previous developments, the Commission concludes that dual voting is an
exceptional measure, which has to be within the framework of the Constitution,
and may be admitted if it respects the principle of proportionality under its
various aspects. This implies that it can only be justified if:
- it is impossible to reach the aim pursued
through other less restrictive measures which do not infringe upon equal voting
rights;
- it has a
transitional character;
- it concerns
only a small minority.
Finally, given the exceptional
nature of dual voting, the Commission recommends that the fulfilment of the
above-mentioned conditions (in particular, those that refer to its
functionality as a means of integrating minorities in the political system and
its limited scope) be periodically reviewed, in order to maintain its
transitional character.
- Thresholds and other features of the electoral
system which bar parties from access to Parliament
Further to the
conclusions of the 2007 session of the Forum for the future of Democracy, the
Forum’s Consultative Committee requested a more in-depth examination of the
question of thresholds on parliamentary representation. The Venice Commission therefore started to draw up a study on this issue.
The report
adopted by the Commission in December 2008, constitutes a first stage, which
can be described as a comparative contextual analysis: it presents the various
mechanisms which have the effect of limiting parties’ access to parliament, as
well as, in a comparative manner, the various contexts under which these
mechanisms enter into specific electoral systems. Consequently, it does not
only concern thresholds, but also other aspects of the electoral systems (size
of constituency, majority systems, etc) which restrict access to parliament.
It concludes that, in order to be able potentially to make a normative
value judgment and elaborate any common European standards with respect to the
inclusiveness/exclusiveness of parties’ access to parliament, one must first
clarify how inclusive/exclusive the different electoral systems across Europe actually are. However, the degree of inclusiveness/exclusiveness is dependent on
several features, or mechanisms, which are either explicit or implicit
components of these electoral systems. Since the same effect of excluding
parties from parliament can be achieved through any of those, it would be
insufficient, when measuring the degree of inclusiveness/exclusiveness, to
focus solely on the legal threshold. Any contextual and sound comparative
analysis of the issue would take into account also the mechanisms discussed
above – the thresholds in the broader sense.
This report
should be followed – second stage- by a detailed analysis of domestic law and its
effects, and – third stage - the possibility of drawing up recommendations.
- Conference on “Electoral Law and Practice
in Council of Europe Member States”
The Venice Commission organised the
conference on “Electoral Law and Practice in Council of Europe Member States”
in co-operation with the Institute of European Law of the State Institute of
International Relations (MGIMO University) in Moscow on 28–29 April 2008.
Reports focused on the comparative analysis of electoral systems in the
countries of the Council of Europe and on the Russian political practice in the
context of international electoral standards and the judicial protection of the
electoral rights. During the discussion the participants had a fruitful
exchange of views on a wide range of issues focussing on the implementation of
international standards in the electoral field in national legislation and
practice.
International experts
and approximately 50 participants from different Russian public institutions
and NGOs, as well as professors of law, attended the conference.
- UniDem Seminar on the cancellation of
election results
The
European Commission for Democracy through law organised a UniDem Seminar on the
cancellation of election results which was held in Valetta (Malta) on 14-15 November 2008, in co-operation with the Constitutional Court and the
Ministry of Justice and Home Affairs of Malta. This seminar was aimed at
Constitutional and Supreme Courts responsible for electoral disputes;
The
event’s theme was chosen based on the following statement: there is no
democracy without elections in conformity with the international principles of
electoral law. Respect of these principles is only possible if it may lead to
a sanction and in particular to a judicial sanction. In other words, an appeal,
and preferably an appeal before a court, has to be possible should there be
irregularities in the preparation or the holding of elections.
Around
forty participants took part in the seminar, including representatives of
constitutional and supreme courts in charge of electoral disputes from various
parts of Europe, of the European Court of Human Rights, as well as specialists
of electoral law and disputes, practitioners and academicians. They first of
all examined in which cases irregularities should lead to the cancellation of
election results based on a questionnaire. The replies to the questionnaire
will serve as a basis for a comparative study which should be adopted by the Venice Commission in 2009.
Finally,
the participants worked on a practical case including legal provisions which
could be problematic vis-à-vis the European electoral heritage, as well as
practical irregularities. They had to establish whether, taken separately or
together, the circumstances of the case could be considered as a violation of
their national law and whether they had to lead to the cancellation of the
results.
- Fifth European Conference of
Electoral Management Bodies – « Distance Voting » (Brussels, 20-21
November 2008)
The Fifth
European Conference of Electoral Management Bodies – “Distance voting” was
organised by the Venice Commission in co-operation with the Elections Unit of
the General Direction of Institutions and Population, Federal Public Service,
in Brussels, on 20 - 21 November 2008. The issues which were addressed during
the conference included the recent elections in member States (focusing on
problems of distance voting and action taken to remedy them), as well as the
comparative report on complaints and appeals procedures in the Council of Europe
member States, the problem of reaching citizens abroad and persuading them to register
and to vote and the latest developments in the field of e-voting in the Council
of Europe Member States. Representatives of Austria, Belgium and the United Kingdom informed the conference on distance voting organised in their respective
countries during the latest elections.
Around 70
participants from different national electoral management bodies of the
following countries attended the conference: Armenia, Austria, Azerbaijan,
Belgium, Estonia, Finland, Germany, Italy, Kyrgyzstan, Latvia, Lithuania,
Malta, Mexico, Netherlands, Norway, Portugal, Russian Federation, Slovakia,
Spain, Sweden, “the former Yugoslav Republic of Macedonia”, Ukraine and United
Kingdom as well as representatives of the Congress of Local and Regional
authorities of the Council of Europe.
The Conference took
note of instances where the use of distance voting had contributed to better
implementing the principle of universal suffrage and invited the member
States of the Venice Commission to ensure that all principles for free and fair
elections as enshrined in the 'Code of Good Practice in Electoral matters'
adopted by the Venice Commission in October 2002 are respected, also with
regard to distance voting.
- VOTA, the Venice
Commission’s electoral database
The
VOTA database was set up as part of the joint Venice Commission and European
Commission programme “Democracy through Free and Fair Elections” in 2004. It
contains the electoral legislation of the Venice Commission’s member states and
other states involved in the Commission’s work. Over 80 laws and statutes from
about 40 states, as well as Venice Commission opinions in the field of
elections, are already available in the database, in English and French
(http://www.venice.coe.int/VOTA).
V. CO-OPERATION
BETWEEN THE COMMISSION AND ORGANS AND BODIES OF THE COUNCIL OF EUROPE, THE
EUROPEAN UNION AND OTHER
INTERNATIONAL ORGANISATIONS
1. council
of europe
- Committee
of Ministers
The previous President of the
Committee of Ministers, Minister Jan Kubis (Slovak Republic), addressed the
Commission at its June session, informing it about the results of the Slovak
Presidency.
Representatives of the Committee of
Ministers participated in all the Commission’s plenary sessions during 2008.
The following ambassadors attended the sessions during 2008:
Ambassador Alexander Alekseev,
Permanent Representative of the Russian Federation to the Council of Europe,
Ambassador Emil Kuchar, Permanent Representative of the Slovak Republic to the
Council of Europe, Ambassador Irma Ertman, Permanent Representative of Finland
to the Council of Europe, Ambassador Wendelin Ettmayer, Permanent
Representative of Austria to the Council of Europe, Ambassador Borislav Maric,
Permanent Representative of Bosnia and Herzegovina to the Council of Europe,
Ambassador Jan Devadder, Permanent Representative of Belgium to the Council of
Europe, Ambassador Margaret Hennessy, Permanent Representative of Ireland to
the Council of Europe, Ambassador Paul Widmer, Permanent Representative of
Switzerland to the Council of Europe, Ambassador Stelian Stoian, Permanent
Representative of Romania to the Council of Europe, Ambassador Margarita Gega,
Permanent Representative of Albania to the Council of Europe, Ambassador Yevhen
Perelygin, Permanent Representative of Ukraine to the Council of Europe and Ms
Rodica Postu, Deputy Permanent Representative of Moldova to the Council of
Europe.
Different subjects were raised by
the representatives of the Committee of Ministers, including the role of the
Venice Commission in defending the rule of law, human rights and democracy as
the core values of the Council of Europe, budgetary issues, the proposal to
organise a conference on democracy and decentralisation as part of the Swiss
presidency programme, the Forum for the Future of Democracy, the role of the Venice Commission in supporting reforms in Central and Eastern Europe, its usefulness for the
long-established democracies and its influence beyond Europe.
The report on the civilian control
of the armed forces was prepared and adopted at the request of the Committee of
Ministers.
The Commission co-organised together
with the Slovak Presidency the seminar on the “The use of international
instruments for protecting individual rights, freedoms and legitimate interest
through national legislation and The Right to legal defense in Belarus:
challenges and outlook” (Minsk, 24 April 2008). It took part in two events organised
in the framework of the Swedish Presidency of the Committee of Ministers: the
Forum “Towards stronger implementation of the European Convention of Human
Rights (Stockholm,9-10 June) and the Regional Conference on Justice and the
Rule of Law in the South Caucasus (Tbilisi, 19-20 November).
- Parliamentary Assembly
Mr Pourgourides (Cyprus) attended the March, June and October sessions of the Commission as representative of the
Parliamentary Assembly, Mr van der Linden (the Netherlands), former President
of the Assembly, the October and December sessions.
The representatives of the
Parliamentary Assembly informed the Commission about activities of the
Parliamentary Assembly of particular interest to the Commission,.
A number of texts were adopted at
the request of the Parliamentary Assembly, including the Code of Good Practice
on Political Parties, the opinions on the Constitution of Bulgaria, on the
draft Constitution of Ukraine, on the amendments to the Constitution of Albania
and on amendments to the Election Code of “the former Yugoslav Republic of
Macedonia”, as well as the report on legislative initiative. The opinion on the
rules relevant for the prohibition of political parties in Turkey will be adopted in 2009.
The Parliamentary
Assembly continued to participate actively in the Council for Democratic
Elections, established in 2002 as a tri-partite body of the Venice Commission, the Parliamentary Assembly and the Congress of Local and Regional Authorities
of Europe (see Part IV above). The Council for Democratic Elections was chaired
by a member of the Parliamentary Assembly, Mr van den Brande (Belgium) and a number of activities of the Council were initiated by the representatives
from the Parliamentary Assembly. In accordance with the co-operation agreement
concluded between the Venice Commission and the Parliamentary Assembly, Venice Commission representatives participated in a number of election observation missions of
the Assembly.
The Commission took part in the
hearing on “Protection of Human Rights in Emergency Situations”, organised by
the Parliamentary Assembly in Paris on 9 September.
- Congress of Local and Regional
Authorities
The Congress was represented at the
March plenary sessions of the Commission by Mr Newbury and at the October
Session by Mr Delcamp. The Congress continued to participate actively in the
Council for Democratic Elections, established in 2002 as a tri-partite body of
the Venice Commission, the Parliamentary Assembly and the Congress of Local and
Regional Authorities of Europe (see Part IV above). The UniDem seminar on the
role of second chambers (see Part II above) was organised in co-operation with
the Congress.
- European Court of Human Rights
In 2008, the Venice Commission
intervened as amicus curiae in two sets of proceedings pending before
the European Court of Human Rights (Bijelić against Montenegro and Serbia
and Sejdić and Finci v. Bosnia-Herzegovina; see part II above) as it had
done on two occasions before (Jeličić v. Bosnia and Herzegovina;
CDL-AD (2005)020 ; Parti nationaliste basque – Organisation régionale
d’Iparralde v. France,CDL-AD(2006)014).
Third party interventions are a
means for the Venice Commission to put its experience and reflections at the
disposal of the European Court of Human Rights, when the latter needs to decide
a case which raises questions on which the Venice Commission has already
worked. Needless to say, the Venice Commission’s amicus curiae briefs do not
deal with the substance of the cases pending before the Court.
In addition to this form of
co-operation, since 2001 the Court has been referring to the works of the
Venice Commission in an increasing number (more than 35 to date, seven of which
in 2008) of judgments and decisions. The most cited works are the Guidelines on
the prohibition and dissolution of political parties and the Code of Good
Practice in Electoral Matters.
- Forum for the Future of Democracy
The Venice Commission participated
in the fourth Forum for the Future of Democracy on “e-democracy” which took
place in Madrid on 15 to 17 October.
- North-South Centre
The Venice Commission took part in
the “Conference on conflict resolution in the 21st century”,
organised by the North-South Centre in Johannesburg on 26 to 28 March, as well
as in the 2008 Lisbon Forum on “The principle of universality of human rights
and its implementation at international and regional level” (Lisbon, 10-11
November).
2. european
union
An exchange of letters on enhanced
co-operation between the European Commission and the Venice Commission was
concluded on 13 June between the Directors General of Enlargement and External
Relations of the European Commission and the Secretary of the Commission. Ms
Pavan Woolfe, representative of the European Commission to the Council of
Europe, presented the exchange of letters at the June session of the Commission
and confirmed the willingness of the European Commission to further intensify
the already excellent co-operation. The European Commission continues to be
represented at the sessions of the Commission by a representative of the Legal
Service.
The Venice Commission took part in
the Joint Programme of Co-operation between the European Commission and the
Council of Europe to promote the democratic process in Ukraine and South
Caucasus, more specifically through activities in the electoral field in
Georgia and Ukraine (up to April 2008). From January 2008 on, it took part in
the Joint Programme between the European Commission and the Council of Europe
entitled “South Caucasus – Moldova – Support to free and fair elections”,
through activities in Armenia, Azerbaijan, Georgia and Moldova. The activities of the Commission for Kazakhstan and Kyrgyzstan took place in the
framework of a Joint Programme with the European Commission.
At the invitation of the Slovenian
EU Presidency the Secretary of the Commission made a presentation to the EU Council
Committee on co-operation with the OSCE and the Council of Europe (COSCE) on 27
June in Brussels. The topic of the presentation was “The Venice Commission and
its role in providing advice on constitutional matters: Future prospects”.
The Commission took part in the
EU-Central Asia Ministerial Conference on “The Rule of Law: Cornerstone of
Development” on 27-28 November in Brussels. The European Commission and Germany expressed the intention to provide financial support for rule of law activities of the
Commission in Central Asia.
Throughout the year the Commission
co-operated closely with the EU Special Representative for Moldova, Mr Mizsei. Close coordination was maintained with the Council of the European
Union, in particular with respect to the constitutional situation in Ukraine. A representative of the EU Council attended the June session of the Commission..
3. osce
A Venice Commission representative
took part in the OSCE Chairmanship seminar on election related issues in Vienna on 21-22 July 2008. Throughout the year the Venice Commission continued its close
co-operation with OSCE/ODIHR in electoral matters, in particular through the
drafting of joint opinions on the electoral legislation in Armenia, Azerbaijan, Bosnia and Herzegovina, Georgia and Moldova. More details on this co-operation
are provided in Part IV above. The OSCE/ODIHR took part in the 5th
European Conference of Electoral Management Bodies (Brussels, 20-21 November
2008). Moreover, the Venice Commission regularly co-operates with the OSCE
field offices in electoral and other matters.
The Venice Commission and OSCE/ODIHR
also adopted a number of joint opinions in the field of human rights. In 2008
this concerned freedom of assembly in Armenia and Kyrgyzstan and freedom of
religion in Kyrgyzstan.
Representatives of the Venice
Commission took part in the working sessions on freedom of expression and
freedom of religion of the ODIHR Human Dimension Meeting (Warsaw, 30 September
and 7 October respectively), in the Supplementary Human Dimension Meeting on
Democratic Law Making organised by the Finnish chairmanship (Vienna, 6 to 7
November) and the meeting of experts on better legislation in the OSCE area
(Vienna 5 November).;
In 2008, the Venice Commission
pursued its co-operation with the OSCE High Commissioner on National Minorities
(HCNM) on dual
voting for persons belonging to national minorities. It adopted its report on
this issue at its 75th Plenary Session (Venice, 13-14 June 2008). In
addition, Venice Commission members and a representative of the Secretariat
were consulted by the HCNM in the context of the preparation of the Bolzano
Recommendations on National Minorities in Inter-State relations, which were
published in June 2008.
4. united
nations
At the invitation of the UN Special
Rapporteur on human rights and counter terrorism a Venice Commission
representative took part in the meeting on “International Aviation Law:
Promoting Legal Safeguards and Protecting Human Rights in the Counter-Terrorism
Context” (Geneva, 24 June)
A Commission representative
presented the experience of the Commission at a seminar to reinforce OHCHR’s
capacity to provide constitutional assistance to states in Geneva on 10 to 11
December. The seminar was organised by the Office of the High Commissioner for
Human Rights.
5. western
european union (weu)
A representative of the Commission
presented the report on the civilian control of the armed forces at a WEU
Conference on “Strategic choices for security and defence in Europe” on 5 May
in Paris.
6. association
of european election officials (aceeeo)
The Venice Commission was
represented at the ACEEEO Conference on ensuring security of elections in Constanta on 11 to 13 September 2008..
7. international
institute for democracy and electoral assistance (idea)
At the invitation of International
IDEA, a Venice Commission representative took part in a workshop on electoral
complaints and appeals on 6 November 2008 in Brussels.
Members
Albania (14.10.1996)
Algeria (01.12.2007)
Andorra (1.02.2000)
Armenia (27.03.2001)
Austria (10.05.1990)
Azerbaijan (1.03.2001)
Belgium (10.05.1990)
Bosnia and Herzegovina (24.04.2002)
Bulgaria (29.05.1992)
Chile (1.10.2005)
Croatia (1.01.1997)
Cyprus (10.05.1990)
Czech Republic (1.11.1994)
Denmark (10.05.1990)
Estonia (3.04.1995)
Finland (10.05.1990)
France (10.05.1990)
Georgia (1.10.1999)
Germany (3.07.1990)
Greece (10.05.1990)
Hungary (28.11.1990)
Iceland (5.07.1993)
Ireland (10.05.1990)
Israel (01.05.2008)
Italy (10.05.1990)
Republic of Korea (01.06.2006)
Kyrgyzstan (01.01.2004)
Latvia (11.09.1995)
Liechtenstein (26.08.1991)
Lithuania (27.04.1994)
Luxembourg (10.05.1990)
Malta (10.05.1990)
Moldova (25.06.1996)
Monaco (05.10.2004)
Montenegro (20.06.2006)
Morocco (01.06.2007)
Netherlands (1.08.1992)
Norway (10.05.1990)
Poland (30.04.1992)
Portugal (10.05.1990)
Romania (26.05.1994)
Russian Federation (1.01.2002)
San Marino (10.05.1990)
Serbia (3.04.2003).
Slovakia (8.07.1993)
Slovenia (2.03.1994)
Spain (10.05.1990)
Sweden (10.05.1990)
Switzerland (10.05.1990)
“the former Yugoslav Republic of
Macedonia” (19.02.1996)
Turkey (10.05.1990)
Ukraine (3.02.1997)
United Kingdom (1.06.1999)
ASSOCIATE MEMBER
Belarus (24.11.1994)
OBSERVERS
Argentina (20.04.1995)
Canada (23.05.1991)
Holy See (13.01.1992)
Japan (18.06.1993)
Kazakhstan (30.04.1998)
Mexico (12.12.2001)
United States (10.10.1991)
Uruguay (19.10.1995)
PARTICIPANTS
European Commission
OSCE/ODIHR
IACL
SPECIAL CO-OPERATION STATUS
Palestine National Authority
South Africa
_______________________________________
[1] Tunisia
was invited to accede to the Enlarged Agreement by the
Committee of Ministers on 15 May 2008, Peru on11 February 2009 and Brazil on 1 April 2009.
appendix ii –
list
of members[13]
Mr Jan HELGESEN (Norway), President, Professor, University of Oslo
(Substitute:
Mr Fredrik SEJERSTED, Professor, University of Oslo)
***
Ms Hanna SUCHOCKA (Poland), Vice-President, Ambassador of Poland to the Holy See
Mr Kaarlo TUORI (Finland), Vice-President, Professor of Jurisprudence, University of Helsinki
(Substitute: Mr Matti NIEMIVUO,
Professor, University of Lapland, Former Director at the Department of
Legislation, Ministry of Justice)
Mr Valeriy ZORKIN (Russia), Vice-President, President of the Constitutional Court
(Substitute: Mr Valeriy MUSIN, Head
of Division, Legal Faculty, St Petersburg State University)
* * *
Mr Ergun ÖZBUDUN (Turkey), Professor, Department of Political Science, University of Bilkent, Vice President of the
Turkish Foundation for Democracy
(Substitute: Mr Erdal ONAR,
Associate Professor, Faculty of Law, Ankara University)
Mr Cyril SVOBODA (Czech Republic),
Member of Parliament, Former Deputy Prime Minister, Former Minister of Foreign
Affairs
(Substitute: Ms Eliska WAGNEROVA,
Vice-President, Constitutional Court)
Mr Aivars ENDZINS (Latvia), Head of Department of Public Law, Turiba School of Business Administration, Former
President, Constitutional Court
Mr Stanko NICK (Croatia), Former Ambassador of Croatia in Hungary
(Substitute: Ms Jasna OMEJEC,
President, Constitutional Court)
Mr Hjörtur TORFASON (Iceland), Former Judge, Supreme Court of Iceland
(Substitute: Ms Herdis THORGEIRSDOTTIR,
Professor, Faculty of Law, Bifrost School of Business)
Mr Pieter VAN DIJK (The Netherlands), State Councillor, Former Judge at the European Court of Human Rights
(Substitute: Mr Ben VERMEULEN,
Professor of Constitutional, Administrative and Education Law, University of Amsterdam)
Mr Jeffrey JOWELL (United Kingdom), Professor of Public Law, University College London
(Substitute: Mr Anthony BRADLEY,
Professor)
Mr Gaguik HARUTUNIAN (Armenia), President, Constitutional Court
(Substitute: Mr Armen HARUTUNIAN,
Human Rights Defender, Republic of Armenia)
Mr Cazim SADIKOVIC (Bosnia and Herzegovina), Dean, Faculty of Law, University of Sarajevo
Ms Finola FLANAGAN (Ireland), Director General, Senior Legal Adviser, Head of the Office of the Attorney
General
(Substitute: Mr James HAMILTON,
Director of Public Prosecutions)
Ms Lydie ERR (Luxembourg), Member of Parliament
(Substitute: Mr Marc FISCHBACH,
Mediator)
Mr Ugo MIFSUD BONNICI (Malta), President Emeritus
Mr Vojin DIMITRIJEVIC, (Serbia),
Professor of Public International Law, Union University School of Law,
Director, Belgrade Human Rights Centre
Mr Lätif HÜSEYNOV (Azerbaijan), Professor of Public International Law
Mr Carlos CLOSA MONTERO (Spain), Professor, Sub-Director for Studies and Investigation, Centre for Political and
Constitutional Studies
(Substitute: Mr Angel J. SANCHEZ
NAVARRO, Professor of Constitutional Law, Complutense University, Madrid)
Mr Serhiy HOLOVATY (Ukraine), Member of Parliament, Former Minister of Justice, President, Ukrainian Legal
Foundation
(Substitute: Mr Volodymyr SHAPOVAL,
Chairman, Central Election Commission)
Mr Dominique CHAGNOLLAUD (Monaco), Member of the Supreme Court, Professor, University of Law, Economics and Social Science Paris II
(Substitute: Mr Christophe SOSSO,
Defence Lawyer)
Mr Nicolae ESANU (Moldova), Deputy Minister of Justice
Mr Peter PACZOLAY (Hungary), President, Constitutional Court
(Substitute: Mr Laszlo TROCSANY,
Judge, Constitutional Court, Professor of Constitutional Law University of Szeged)
Mr Oliver KASK (Estonia), Judge, Tallinn Court of Appeal
(Substitute: Ms Liina LUST, Adviser, Public Law
Division, Ministry of Justice)
Mr Hans Heinrich VOGEL (Sweden), Professor in Public Law, University of Lund
(Substitute: Mr Iain CAMERON,
Professor, University of Uppsala)
Mr Luis CEA EGANA (Chile), Judge, Constitutional Court
(Substitute: Mr Juan COLOMBO CAMPBELL, President, constitutional Court)
Mr Egidijus JARASIUNAS (Lithuania), Counsellor to Chairman of the Constitutional Court
(Substitute: Ms Zivile LIEKYTE,
Director, Department of Legislation and Public Law, Ministry of Justice)
Mr Jean-Claude COLLIARD (France), Professor of Public Law, President of the Association 'Santé des Etudiants de
France’, former member of the Constitutional Council
(Substitute: Mr Olivier DUTHEILLET
DE LAMOTHE, State Counsellor, member of the Constitutional Council
Mr Hubert HAENEL, Member of the
Council of State, Senator Haut-Rhin, President of the Senate delegation to the
European Union)
Mr Christoph GRABENWARTER (Austria), Judge, Constitutional Court
(Substitute: Mme Gabriele
KUCSKO-STADLMAYER, Professor, University of Vienna)
Ms Gret HALLER (Switzerland), Senior
lecturer, Johann Wolfgang Goethe University, Frankfurt am Main, Former
Speaker of the Swiss Parliament
(Substitute: Ms Monique JAMETTI
GREINER, Vice Director, Head of the international relations Department, Federal
Office of Justice)
Ms Kalliopi KOUFA (Greece), Professor of International Law, University Aristote, Thessaloniki
(Substitute: Ms Fani
DASKALOPOULOU-LIVADA, Director, International Law Department, Ministry of
Foreign Affairs)
Mr Frixos NICOLAIDES (Cyprus), Supreme Court Judge
(Substitute: Mr Myron
NICOLATOS, Supreme Court Judge)
Mr Jan VELAERS (Belgium), Professor, University of Antwerp
(Substitute: Mr
Jean-Claude SCHOLSEM (Belgium), Professor, Law Faculty, University of Liège
Mr Lucian MIHAI (Romania), Professor, Faculty of Law, University of Bucharest
(Substitute: Mr Bogdan AURESCU,
Professor, Lecturer, Faculty of Law, University of Bucharest)
Mr
Kong-hyun LEE (Republic of Korea), Justice, Constitutional Court
(Substitute: Mr Boohwan
HAN, Attorney at Law, former Vice Minister of Justice)
Mr Srdjan DARMANOVIC (Montenegro), Professor, University of Montenegro, Director, Centre for Democracy and Human Rights
Mr Harry GSTÖHL (Liechtenstein), Princely Justice Counsellor, Attorney at Law
(Substitute: Mr Wilfried HOOP,
Partner, Hoop and Hoop)
Ms Maria Fernanda PALMA (Portugal), Professor, University of Lisbon, former Judge, Constitutional Court
(Substitute: Mr Pedro BACELAR de
VASCONCELOS, Professor of Constitutional Law)
Mr Jorgen Steen SORENSEN (Denmark), Director of Public Prosecutions
(Substitute: Mr Michael Hansen
JENSEN, Professor, University of Aarhus)
N.N. (San Marino)[14].
(Substitute: Ms Barbara REFFI, State Attorney)
Ms Evetta MACEJKOVA (Slovakia), President, Constitutional Court
(Substitute: Mr Eduard BARANY,
Former Vice President, Constitutional Court of Slovakia, Head of Public Law and
Theory of State and law Unit, Slovak Academy of Sciences)
Mr Wolfgang HOFFMANN-RIEM (Germany), Former Judge, Federal Constitutional Court
(Substitute: Ms Angelika NUSSBERGER,
Professor, University of Cologne)
Mr George PAPUASHVILI (Georgia), President, Constitutional Court
(Substitute: Mr Konstantin
VARDZELASHVILI, Deputy President, Constitutional Court)
Mr Sergio BARTOLE (Italy), Professor, University of Trieste
(Substitute: Mr Guido NEPPI MODONA,
Professor, University of Turin)
Ms Svetlana SYDYKOVA (Kyrgyzstan), President, Constitutional Court
(Substitute: Mr Marat KAYPOV,
Minister of Justice)
Mr Klemen JAKLIC (Slovenia), Professor of constitutional law
(Substitute: Mr Peter JAMBREK,
Professor, Dean, Graduate School of Government and European Affairs, Former
Minister of the Interior, Former President of the Constitutional Court, Former
Judge at the European Court of Human Rights)
Mr Viktor GUMI (Albania), General Director of Codification, Ministry of Justice
Mr Abdellatif MENOUNI (Morocco), Member, Constitutional
Council
(Substitute: Mr Abdelaziz LAMGHARI,
Professor, Public Law Department, Rabat)
Ms Gordana
SILJANOVSKA-DAVKOVA ("the former Yugoslav Republic of Macedonia"),
Professor of law, University "Ss Cyril and Methodius"
(Substitute: Ms Tanja KARAKAMISHEVA,
Professor, Law Faculty, University St. Cyril and Methodius, Judge, Constitutional Court)
Mr Eugeni TANCHEV (Bulgaria), Judge, Constitutional Court
(Substitute: Mr Plamen KIROV, Judge,
Constitutional Court)
Mr Dan MERIDOR (Israel), Deputy Prime Minister, Minister of Intelligence and Atomic Energy
(Substitute: Mr Eyal BENVENISTI,
Professor, Tel Aviv University)
Mr Joan MONEGAL BLASI (Andorra), Lawyer
N.N. (Algeria)
N.N. (Tunisia)
SPECIAL CO-OPERATION STATUS
Mr Ali KHASHAN (Palestine National
Authority), Minister of Justice
Mr Pius N. LANGA (South Africa), Chief Justice
ASSOCIATE MEMBERS
N.N. (Belarus)
OBSERVERS
N.N. (Argentina)
N.N. (Canada)
Mr Vincenzo BUONOMO (Holy See),
Professor of International Law, Latran University
Mr Akira TAKANO (Japan), Consul, Consulate General of Japan, Strasbourg
Mr Almaz N. KHAMZAYEV (Kazakhstan), Ambassador of Kazakhstan in Rome
Ms Maria AMPARO CASAR (Mexico), Professor
Mr Jed RUBENFELD (United States of America), Professor, Yale Law School
Mr Jorge TALICE (Uruguay), Ambassador of Uruguay in Paris
PARTICIPANTS
Mr Patrick HETSCH (European Commission),
Principal Legal Adviser
(Substitute: Ms Carmel O'REILLY,
Legal Adviser
Mr
Didier MAUS (IACL), President
Mr Denis PETIT (OSCE/ODIHR), Head of
the Democratisation Department
SECRETARIAT
Mr Gianni BUQUICCHIO
Mr Thomas MARKERT
Mrs Simona GRANATA-MENGHINI
Mr Pierre GARRONE
Mr Rudolf DÜRR
Mr Alain CHABLAIS
Mr Sergueï KOUZNETSOV
Ms Caroline MARTIN
Ms Tanja GERWIEN
Mr Jorg NOBBE
Mr Gaël MARTIN-MICALLEF
Ms Antonella MASCIA LODI
Ms Tatiana MYCHELOVA
Ms Helen MONKS
Ms Monica PETROVICI
Ms Brigitte AUBRY
Ms Marian JORDAN
Mrs Emmy KEFALLONITOU
Mrs Brigitte RALL
Ms Ana GOREY
Mrs Marie-Louise WIGISHOFF
Ms Caroline GODARD
Ms Rosy RIETSCH
Ms Giovanna MONTAGNA
appendix iii –
offices
and sub-commissions
- President: Mr Helgesen
- Vice-Presidents: Ms Suchocka,
Mr Tuori, Mr Zorkin
- Bureau: Messrs Colliard, Endzins, Holovaty,
Paczolay
- Council for
Democratic Elections:
Chair: Mr Luc van den Brande
(Parliamentary Assembly)
Venice Commission - Vice-Chair: Mr Mifsud
Bonnici : Members : Messrs Chagnollaud, Colliard, Kask, Paczolay, Sanchez
Navarro, Torfason
Parliamentary Assembly – Ms Josette
Durrieu, Mr Andreas Gross, Ms Hanne Severinsen
Congress of Local and Regional
authorities – Mr Ian Micallef, Mr Keith Whitmore
- Joint Council on
Constitutional Justice:
Chair : Mr van Dijk : Members :
Messrs Bartole, Endzins, Harutunian, Holovaty, Jarasiunas, Jowell, Messrs Lee,
Mihai, Neppi Modona, Ms Omejec, Mr Paczolay, Ms Thorgeirsdottir, Mr Torfason,
Ms Wagnerova, as well as 90 liaison officers from 65 Constitutional Courts or
Courts with equivalent jurisdiction
- Federal State and Regional State:
Chair: Mr Closa Montero
- International Law:
Chair: Mr Dimitrijevic
- Protection of
Minorities:
Chair: Mr Velaers
- Fundamental Rights:
Chair: Mr Helgesen
- Democratic
Institutions:
Chair: Mr Jowell
- Judiciary:
Chair: Ms Flanagan
- External Relations:
Chair: Mr
Mifsud Bonnici
appendix iv –
meetings of the venice
commission in 2008[15]
1. plenary sessions
74th
Session 14-15 March
75th
Session 13-14 June
76th
Session 17-18 October
77th
Session 12-13 December
Bureau
Meeting
enlarged to include the Chairpersons of Sub-Commissions
- 13 March
Meeting
enlarged to include the Chairpersons of Sub-Commissions
- 12
June
Meeting
enlarged to include the Chairpersons of Sub-Commissions
- 16
October
Meeting
enlarged to include the Chairpersons of Sub-Commissions
- 11 December
Followed
by a joint meeting with the Committee on Legal Affairs and Human Rights of the
Parliamentary Assembly of the Council of Europe
2. sub-commissions
Democratic Institutions 13 March
16 October
Judiciary 16 October
11
December
Protection of Minorities 15 March (Joint Meeting
with the Council for Democratic Elections)
12
June (Joint Meeting with the Council for Democratic Elections)
3. democratic development of public institutions
and respect for human rights
Meetings of Working Groups and Rapporteurs
Armenia
Joint
Meeting with OSCE/ODIHR on the law on conducting rallies
15-16
April (Yerevan)
Bosnia and Herzegovina
Draft
law on conflict of interest
24-26
April (Sarajevo)
Colloquy
on the reform of the Constitution
14-15
November (Cadenabbia)
Finland
Evaluation of the Constitution
28
January (Helsinki)
Moldova
Double
Citizenship
2
April (Chisinau)
Exploratory
visit to Transnistria
31
October (Chisinau
Montenegro
Round
Table on implementation of the guarantees of Human Rights in the New
Constitution of Montenegro
28
February (Podgorica)
18
September (Paris)
Slovakia
Meeting
on draft press law
28
Feburary (Strasbourg)
“the former Yugoslav Republic of Macedonia”
Draft
law on protection against discrimination
25-26
November (Skopje)
Ukraine
Ukraine Building a stable future
21-23
February (Wilton Park)
Session
of Ukrainian School of Political Studies
10
April (Kyiv)
Blasphemy, religious insult and
incitement to religious hatred
26
September (Paris)
Reopening of judicial procedures
26
September (Paris)
Other Seminars and Conferences
organised by the Commission or in which the Commission was involved
Conference
on Art and Religion
1-2
February (Athens)
UniDem
Seminar on Second Chambers
21
February (Paris)
Round
Table a new approach to autonomy
26
March (Budapest)
North-South
Centre Conference on conflict resolution in the 21st Century
26-27
March (Johannesburg)
OSCE
High Commissioner for National minorities Expert Seminar on the Recommendation
on State Responsibility and National Minorities Abroad
11
April (The Hague)
UEO
Conference on strategic choices for the security and defence of Europe
5
May (Paris)
Forum “Towards stronger
implementation of the European Convention on Human Rights at national
level"
9-10
June (Stockholm)
OSCE High Commissioner for National
minorities Conference on Linguistic rights of national minorities
18-19
June (Oslo)
Meeting
on international aviation law promoting legal safeguards and protection human
rights in the counter-terrorism context
24
June (Geneva)
Conference
of Prosecutors General of Europe
1-3
July (St Petersburg)
Co-ordination
meeting for European Union rule of law initiative for Central Asia
15
July (Berlin)
Hearing
of the Parliamentary Assembly on human rights in emergency situations
9
September (Paris)
OSCE/ODIHR
Human Dimension Meeting on freedom of expression
30
September (Warsaw)
OSCE/ODIHR
Human Dimension Meeting on freedom of religion
7
October (Warsaw)
Meeting
of experts on better legislation in the OSCE region
5
November (Vienna)
Supplementary
Human Dimension Meeting on Democratic Law making organised the Finnish
Chairmanship and ODIHR
6-7
November (Vienna)
Lisbon Forum 2008 and beyond
10-11
November (Lisbon)
Conference
on human rights in culturally diverse societies – challenges and perspectives
12-13
November (The Hague)
Conference
on freedom of association in the Gulf: NGOs and Trade Unions (including for
migrants)
17
November (Kuwait)
Regional
Conference on justice and rule of law in South Caucasus
19-20
November (Tblisi)
4. strengthening constitutional justice as
guarantor of democracy, human rights and the rule of law
Meeting
of the Working Group on the systematic thesaurus
26
June
Joint
Council on Constitutional Justice
26-27
June
(Meeting
with Liaison officers from Constitutional Courts)
Meetings of Working Groups and
Rapporteurs
Moldova
3rd
Working Group on the new legislation governing the Public Prosecutor Service
7-8
April (Chisinau)
Montenegro
Meeting
on State Prosecutors Act
27
February (Podgorica)
Meeting on law on Constitutional
Court of Montenegro
16-17
June (Podgorica)
Serbia
Meeting
concerning 4 draft laws
31
January – 1 February (Belgrade)
Constitutional Justice Seminars
Conference
on “Constitutional Judiciary in the States of V4”
3-4
April (Kosice)
Formal
Session XXVth anniversary Constitutional Court of Portugal
9
April (Lisbon)
Seminar
on “the use of international instruments for protecting individual rights,
freedoms and legitimate interests through national legislation and the right to
legal defence in Belarus: challenges and outlook”
24
April (Minsk)
Seminar
on “The constitutional Court in the system of State bodies : crucial problems
and ways to solve them”
16-17
May (Kyiv)
Conference
on “Supremacy of law and independence of the judiciary - guarantee of the
stability of democratic institutions”
27-28
May (Bishkek)
Seminar
"Constitutional Justice and the rule of law in South Caucasus"
19-20
June (Batumi)
Seminar
on “Constitutional values”
20-21
June (Moscow)
International
Conference on “the execution of court decisions”
14-15
July (Baku)
International
Symposium "The separation of powers and constitutional adjudication in the
21st Century; preparation meeting for 1st world Conference of Constitutional
Courts
2-4
September (Seoul)
Conference
on the occasion of the 15th anniversary of the Constitutional Court
of the Czech Republic
10-11
September (Brno)
13th
Yerevan Conference: “Fundamental constitutional values and pubic practice”
3-4
October (Yerevan)
Seminar
on “models of constitutional jurisdiction”
25-26
October (Ramallah)
Colloquy
on “Constitutional interpretation”: preparation meeting for 1st world
Conference of Constitutional Courts
30-31
October (Algiers)
Symposium on “Fair Trial”
12-14
November (Yemen)
Other Seminars and Conferences in
which the Commission participated
Conference
on “dialogue between people and cultures”
19-20
January (Alexandria)
Meeting
with Commonwealth representatives
31
January-1 February (London)
Presentation
of the Commission to the Constitutional Council of Tunisia
12-13
April (Tunis)
OSCE/ODIHR
Human Dimension Seminar on Constitutional Justice
14-16
May (Warsaw)
XIVth
Congress of Conference of European Constitutional Courts
3-5
June (Vilnius)
Meeting
of representatives of institutional networks for la francophonie
19-21
June (Bucharest)
Signature
of the agreement between the Commission and the Union of Arab Constitutional
Courts and Councils
23-24
June (Cairo)
Meeting
of Commonwealth Law Ministers and Senior Officials
7-10
July (Edinburgh)
Summer
School “Comparative interpretation of European Constitutional Jurisprudence”
29
July (Trento)
Colloquy
on the 50th anniversary of the Constitutional Council of Europe
3
November (Paris)
Meeting
of the Executive Committee IACL
13-15
November (London)
VIth
Meeting of Supreme Courts of Mercosul member States
20-22
November (Brasilia)
5. democracy through free
and fair elections
Council for Democratic Elections
15
March
12
June
18
October
13
December
Meetings of Working Groups and Rapporteurs
Azerbaijan
Meetings
on electoral code
7-9
February (Baku)
Workshop
on electoral complaints and appeals
21-22
August (Baku)
25-26
August
Meeting
with Central Election Commission and IFES
23
August (Baku)
Bosnia and Herzegovina
Meeting
on financing of political parties
18-20
February (Sarajevo)
Workshop
on local and regional elections in Bosnia and Herzegovina
10-11
September (Sarajevo)
Georgia
Workshop
on electoral disputes
6
May (Tblisi)
Working
on the holding and supervision of elections
7
May (Tblisi)
Moldova
Seminar
for judges on electoral disputes
24-25
November (Chisinau)
Seminar
on electoral issues for the Central Electoral Commission
30
October (Chisinau)
Ukraine
Conference
on 2007 elections and future co-operation
15-17
January (Kyiv)
Meeting
of the Working Group on the electoral code of Ukraine
29-30
May (Kyiv)
Code of good practice on political parties
Preparatory
meeting
21
May (Paris)
24
September (Paris)
Electoral Law Training Workshops
14-18
July (Baku)
18-20
December (Tbilisi)
Training
Seminar on good practices in electoral matters in the perspective of the local
self-government elections to be held in the Chechen Republic in 2009
28
October (Moscow)
Electoral Assistance
Assistance
to Central Electoral Commission Georgia
29
April – 24 May (Tbilisi)
28
May – 9 June (Tbilisi)
Legal
Assistance to PACE delegation observing Parliamentary elections
19-22
May (Tbilisi)
Legal Assistance to PACE delegation
observing elections
30
May – 2 June (Skopje)
Assistance
to Central Electoral Commission Azerbaijan
24
September – 2 October (Baku)
7-16
October (Baku)
Legal Assistance to PACE delegation
observing elections
13-16
October (Baku)
Election observation
Observation elections in Georgia
1-8
January (Tbilisi)
Observation elections in Montenegro
4-7
April (Podgorica)
Observation
Legislative and local elections of Serbia
10-12
May (Belgrade)
Other Seminars and Conferences organised by the Commission or in which
the Commission was involved
XXVI
Human Rights course 2008 organised by the Institute of Human Rights of
Catalunya
16
April (Barcelona)
Conference
on “Electoral law in Council of Europe member States”
28-29
April (Moscow)
Expert
meeting on Human Rights and democratic issues
28-29
May (Chisinau)
Workshop
for Belarus civil society members “overview of European and International Human
Rights and democracy standards”
21-22
June (Vilnius)
CIO
Seminar on election related issues
21-22
July (Vienna)
17th
ACEEEO Conference on ensuring the security of elections
11-13
September (Constanta)
International
Conference on Direct Democracy
2-4
October (Aarau)
Forum
on the future of democracy
15-17
October (Madrid)
Board
of editors of IDEA on electoral complaints and appeals books
6
November (Brussels)
5th Conference of electoral
management bodies
20-21
November (Brussels)
Round
Table on “International standards on financing of political parties and
election campaigns”
1
December (Astana)
Meeting
of the Permanent Committee of the Congress, presentation of the activities of
the Council for Democratic Elections
3
December (Strasbourg)
Seminar
on electoral legislation of Kyrgyzstan and meetings with the Constitutional
Court, the Central Electoral Commission, the Ministry of Justice and the
Presidential Administration of Kyrgyzstan
17-18
December (Bishkek)
6. unidem campus for the legal training of the civil service
Implementation of the case law of
the European Convention on Human Rights in Council of Europe member states
24-28
February (Trieste)
Models of regional development
21-24
April (Trieste)
Participation
in follow-up Seminars
19
June (Tirana)
23
June (Zagreb)
appendix
v –
list of
publications of the venice
commission
·
SERIES
– SCIENCE AND TECHNIQUE OF DEMOCRACY[16]
No. 1 Meeting
with the presidents of constitutional courts and other equivalent bodies[17]
(1993)
No. 2 Models
of constitutional jurisdiction* [18]
by
Helmut Steinberger (1993)
No. 3 Constitution
making as an instrument of democratic transition (1993)
No. 4 Transition
to a new model of economy and its constitutional reflections (1993)
No. 5 The
relationship between international and domestic law (1993)
No. 6 The
relationship between international and domestic law*
by
Constantin Economides (1993)
No. 7 Rule
of law and transition to a market economy2 (1994)
No. 8 Constitutional
aspects of the transition to a market economy (1994)
No. 9 The
Protection of Minorities (1994)
No. 10 The
role of the constitutional court in the consolidation of the rule of law (1994)
No. 11 The
modern concept of confederation (1995)
No. 12 Emergency
powers*
by
Ergun Özbudun and Mehmet Turhan (1995)
No. 13 Implementation
of constitutional provisions regarding mass media in a pluralist democracy2
(1995)
No. 14 Constitutional
justice and democracy by referendum (1996)
No. 15 The
protection of fundamental rights by the Constitutional Court* (1996)
No. 16 Local
self-government, territorial integrity and protection of minorities (1997)
No. 17 Human
Rights and the functioning of the democratic institutions in emergency
situations (1997)
No. 18 The
constitutional heritage of Europe (1997)
No. 19 Federal
and Regional States* (1997)
No. 20 The
composition of Constitutional Courts (1997)
No. 21 Citizenship
and state succession (1998)
No. 22 The
transformation of the Nation-State in Europe at the dawn of the 21st
century (1998)
No. 23 Consequences
of state succession for nationality (1998)
No. 24 Law
and foreign policy (1998)
No. 25 New
trends in electoral law in a pan-European context (1999)
No. 26 The
principle of respect for human dignity in European case-law (1999)
No. 27 Federal and Regional States in the perspective of
European integration (1999)
No. 28 The
right to a fair trial (2000)
No. 29 Societies in conflict: the contribution of law and
democracy to conflict resolution2 (2000)
No. 30 European Integration and Constitutional Law (2001)
No. 31 Constitutional implications of accession to the
European Union2 (2002)
No. 32 The protection of national minorities by their
kin-State2 (2002)
No. 33 Democracy, Rule
of Law and Foreign Policy2 (2003)
No. 34 Code of good
practice in electoral matters* (2003)
No. 35 The resolution of
conflicts between the central State and entities with legislative power by the
Constitutional Court2 (2003)
No. 36 Constitutional
Courts and European Integration[19]
(2004)
No. 37 European
and U.S. Constitutionalism4 (2005)
No. 38 State
Consolidation and National Identity4
(2005)
No 39 European
Standards of Electoral Law in Contemporary Constitutionalism1 (2005)
No
40 Evaluation of fifteen years of constitutional
practice in Central and Eastern Europe* (2005)
No
41 Organisation of elections by an impartial body4
(2006)
No
42 The status of international treaties on human rights4
(2006)
No
43 The preconditions for a democratic election4
(2006)
No 44 Can
excessive length of proceedings be remedied? (2007)
No 45 The
participation of Minorities in public life4
(2008)
|
Collection points of view – points
of law
|
·
Guantanamo - violation of human
rights and international law?
·
The
CIA above the laws? Secret detentions and illegal transfers of detainees in Europe
|
|
Collection Europeans and their
rights
|
·
The
right to life
·
Freedom
of religion
·
Child
rights in Europe
·
Freedom
of expression
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Other titles
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Tackling blasphemy, insult and hatred in a
democratic society (2008)
Electoral Law (2008)
European Conference of Electoral Management Bodies
·
2nd
Conference (Strasbourg 2005)
·
3rd
Conference (Moscow, 2006)
·
4th
Conference (Strasbourg, 2007)
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Bulletin on Constitutional
Case-Law
–
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1993 – 2007 (three issues per year)
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Special Bulletins -
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·
Description of Courts (1999)*
·
Basic texts - extracts from Constitutions and laws on
Constitutional Courts - issues Nos 1–2 (1996), Nos 3-4 (1997), No 5 (1998),
No 6 (2001), No 7 (2007)
·
Leading cases of the European Court of Human Rights
(1998)*
·
Freedom of religion and beliefs (1999)
·
Special Edition Leading cases 1 - Czech Republic, Denmark, Japan, Norway, Poland, Slovenia, Switzerland, Ukraine (2002)
·
Special Edition Leading cases 2 – Belgium, France, Hungary, Luxembourg, Romania, USA (2008)
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Inter Court Relations (2003)
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Role and functions of the Secretary General of the
Constitutional court or equivalent body (2006
·
Criteria for the limitation of Human Rights by the Constitutional Court (2006)
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Legal Omissions (2008)
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Annual Reports -
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1993 - 2008
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Brochures -
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10th anniversary of the Venice Commission (2001)*
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Revised Statute of the European Commission for Democracy
through Law (2002)
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The Venice Commission (2002)
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UniDem Campus – Legal training for civil servants (2003)
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appendix vi –
list
of documents adopted in 2008
CDL-AD(2008)002
Opinion on the Law on the Financing of Political Parties of
Bosnia and Herzegovina adopted by the Venice Commission at its 74th Plenary
Session (Venice, 14-15 March2008)
CDL-AD(2008)003
Joint Interim Opinion on the Draft Amendments to the Electoral
Code of the Republic of Azerbaijan by the Venice Commission and OSCE/ODIHR
adopted by the Venice Commission at its 74th Plenary Session (Venice, 14-15
March 2008)
CDL-AD(2008)004
Report on the Democratic Control of the Armed Forces adopted by
the Venice Commission at its 74th Plenary Session (Venice, 14-15 March 2008)
CDL-AD(2008)005
Opinion on the Draft Amendments to the Law on the State
Prosecutor of Montenegro adopted by the Venice Commission at its 74th Plenary
Session (Venice, 14-15 March 2008)
CDL-AD(2008)006
Opinion on the Draft Law on the High Judicial Council of the
Republic of Serbia adopted by the Venice Commission at its 74th Plenary Session
(Venice, 14-15 March 2008)
CDL-AD(2008)007
Opinion on the Draft Laws on Judges and the Organisation of
Courts of the Republic of Serbia adopted by the Venice Commission at its 74th
Plenary Session (Venice, 14-15 March 2008)
CDL-AD(2008)008
Opinion on the Law on State Secret of the Republic of Moldova
adopted by the Venice Commission at its 74th Plenary Session (Venice, 14-15
March 2008)
CDL-AD(2008)009
Opinion on the Constitution of Bulgaria adopted by the Venice
Commission at its 74th Plenary Session (Venice, 14-15 March 2008)
CDL-AD(2008)010
Opinion on the Constitution of Finland adopted by the Venice
Commission at its 74th Plenary Session (Venice, 14-15 March 2008)
CDL-AD(2008)011
Joint opinion on the Draft Law on Amendments and changes to the
electoral code of the Republic of Azerbaijan by the Venice Commission and
OSCE/ODIHR adopted by the Council for Democratic Elections at its 25th Meeting
(Venice, 12 June 2008) and by the Venice Commission at its 75th Plenary Session
(Venice, 13-14 June 2008)
CDL-AD(2008)012
Joint opinion on amendments to the Election Law of Bosnia and
Herzegovina by the Venice Commission and OSCE/ODIHR adopted by the Council for
Democratic Elections at its 24th Meeting (Venice, 15 March 2008) and by the
Venice Commission at its 75th Plenary Session (Venice, 13-14 June 2008)
CDL-AD(2008)013
Report on Dual Voting for Persons belonging to National
Minorities adopted by the Council for Democratic Elections at its 25th meeting
(Venice, 12 June 2008) and the Venice Commission at its 75th Plenary Session
(Venice, 13-14 June 2008)
CDL-AD(2008)014
Opinion on the Law on conflict of interest in Governmental
Institutions of Bosnia and Herzegovina adopted by the Venice Commission at its
75th Plenary Session (Venice, 13-14 June 2008)
CDL-AD(2008)015
Opinion on the Draft Constitution of Ukraine (prepared by a
working group headed by Mr V.M. Shapoval) adopted by the Venice Commission at
its 75th Plenary Session (Venice, 13-14 June 2008)
CDL-AD(2008)016
Opinion on the Draft Amendments to the Constitution of the
Republika Srpska adopted by the Venice Commission at its 75th Plenary Session
(Venice, 13-14 June 2008)
CDL-AD(2008)017
Opinion of the Draft Amendments to the Criminal Code of the
Republic of Armenia adopted by the Venice Commission at its 75th Plenary
Session (Venice, 13-14 June 2008)
CDL-AD(2008)018
Joint Opinion on the amendments of 17 March 2008 to the Law on
conducting meetings, assemblies, rallies and demonstrations of the Republic of
Armenia by the Venice Commission and OSCE/ODIHR endorsed by the Venice
Commission at its 75th Plenary Session (Venice, 13-14 June 2008)
CDL-AD(2008)019
Opinion on the draft law on the Public Prosecutors' service of
Moldova adopted by the Venice Commission at its 75th Plenary Session (Venice,
13-14 June 2008)
CDL-AD(2008)020
Joint Opinion on the Draft Law amending and supplementing the
law on conducting meetings, assemblies, rallies and demonstrations of the
Republic of Armenia by the Venice Commission and OSCE/ODIHR endorsed by the
Venice Commission at its 75th Plenary Session (Venice, 13-14 June 2008)
CDL-AD(2008)021
Amicus Curiae Brief in the case of Bijelic against Montenegro and Serbia (Application N°11890/05) pending before the European Court of Human Rights
adopted by the Venice Commission at its 76th Plenary Session (Venice, 17-18
October 2008)
CDL-AD(2008)022
Joint Opinion on the Election Code of Moldova as of 10 April
2008 adopted by the Venice Commission at its 76th Plenary Session (Venice,
17-18 October 2008)
CDL-AD(2008)023
Joint Opinion on the Election Code of the Republic of Armenia as amended up to December 2007 adopted by the Venice Commission at its 76th Plenary
Session (Venice, 17-18 October 2008)
CDL-AD(2008)024
Opinion on the issue of the immunity of persons involved in the
electoral process in Armenia adopted by the Venice Commission at its 76th
plenary session (Venice, 17-18 October 2008)
CDL-AD(2008)025
Joint Opinion on the Amendments to the Law on the right of
citizens to assemble peaceably, without weapons, to freely hold rallies and
demonstrations of the Kyrgyz Republic by the Venice Commission and OSCE/ODIHR
adopted by the Venice Commission At its 76th Plenary Session, (Venice, 17-18
October 2008)
CDL-AD(2008)026
Report on the relationship between Freedom of Expression and
Freedom of Religion: the issue of regulation and prosecution of Blasphemy,
Religious Insult and Incitement to Religious Hatred adopted by the Venice
Commission at its 76th Plenary Session (Venice, 17-18 October 2008)
CDL-AD(2008)026add Annexe
I Recueil des législations nationales européennes en matière de blasphème,
injure religieuse et incitation à la haine religieuse
CDL-AD(2008)026add2
Annexe II Analysis of the Domestic Law concerning Blasphemy, Religious
Insult and Inciting Religious Hatred in Albania, Austria, Belgium, Denmark,
France, Greece, Ireland, Netherlands, Poland, Romania, Turkey, United Kingdom
on the basis of replies to a questionnaire
CDL-AD(2008)027
Amicus Curiae Brief in the cases of Sejdic and Finci v. Bosnia
and Herzegovina (Applications no. 27996/06 and 34836/06) pending before the
European Court of Human Rights adopted by the Venice Commission at its 76th
Plenary Session (Venice, 17-18 October 2008)
CDL-AD(2008)028
Opinion on Draft Amendments to Article 23(5) of the Law on the
Human Rights Defender of Armenia adopted by the Venice Commission at its 76th
Plenary Session (Venice, 17-18 October 2008)
CDL-AD(2008)029
Opinion on the Draft Laws amending and supplementing the Law on
Constitutional Proceedings and the Law on the Constitutional Court of
Kyrgyzstan adopted by the Venice Commission at its 76th Plenary Session
(Venice, 17-18 October 2008)
CDL-AD(2008)030
Opinion on the Draft Law on the Constitutional Court of
Montenegro, adopted by the Venice Commission at its 76th Plenary Session
(Venice, 17-18 October 2008)
CDL-AD(2008)031
Second Report on Constitutional Issues raised by the
ratification of the Rome Statute of the International Criminal Court -
Supplement to the Report on constitutional issues raised by the ratification of
the Rome Statute of the International Criminal Court (CDL-INF(2001)001) adopted
by the Venice Commission at its 76th Plenary Session, (Venice, 17-18 October
2008)
CDL-AD(2008)032
Joint Opinion on Freedom of Conscience and Religious
Organisations in the Republic of Kyrgyzstan by the Venice Commission and
OSCE/ODIHR Advisory Council on Freedom of Religion or Belief adopted by the
Venice Commission at its 76th Plenary Session, (Venice, 17-18 October 2008)
CDL-AD(2008)033
Opinion on the Amendments to the Constitution of the Republic of Albania (Adopted on 21 April 2008 by the Assembly of the Republic of Albania) Adopted by the Venice Commission at its 77th Plenary Session (Venice 12-13 December
2008)
CDL-AD(2008)034
Opinion on the Draft Amendments to the Law on Political Parties
of Bulgaria adopted by the Venice Commission at its 77th Plenary Session
(Venice, 12-13 December 2008)
CDL-AD(2008)035
Report on Legislative Initiative adopted by the Venice
Commission at its 77th Plenary Session (Venice, 12-13 December 2008)
CDL-AD(2008)035add
Annex to the Report on Legislative Initiative - Excerpts from
Constitutions of European Countries (CODICES 2007/02)
CDL-AD(2008)036
Opinion on the issue of the re-appointment of the members of
the State Election Commission of “the former Yugoslav Republic of Macedonia”
adopted by the Venice Commission at its 77th Plenary Session (Venice, 12-13
December 2008)
CDL-AD(2008)037
Comparative Report on thresholds and other features of electoral
systems which bar parties from access to Parliament adopted by the Council for
Democratic Elections at its 26th meeting (Venice, 18 October 2008) and the
Venice Commission at its 77th Plenary Session (Venice, 12-13 December 2008)
CDL-AD(2008)038
Opinion on the Constitutional Law on Court Juries of Kyrgyzstan
adopted by the Venice Commission at its 77th Plenary Session (Venice, 12-13
December 2008)
CDL-AD(2008)039
Opinion on the Draft Amendments to the Constitutional Law on
the Status of Judges of Kyrgyzstan adopted by the Venice Commission at its 77th
Plenary Session (Venice, 12-13 December 2008)
CDL-AD(2008)040
Opinion on the Constitutional Law on bodies of Judicial
self-regulation of Kyrgyzstan adopted by the Venice Commission at its 77th
Plenary Session (Venice, 12-13 December 2008)
CDL-AD(2008)041
Opinion on the Draft Amendments to the Constitutional Law on
the Supreme Court and Local Courts of Kyrgyzstan adopted by the Venice
Commission at its 77th Plenary Session (Venice, 12-13 December 2008)
CDL-AD(2008)042
Opinion on the Draft Law on protection against discrimination
of “the former Yugoslav Republic of Macedonia” adopted by the Venice Commission
at its 77th Plenary Session (Venice, 12-13 December 2008)
CDL-AD(2009)001
Joint Opinion on the Election Code of Georgia as revised up to
July 2008 adopted by the Council for Democratic Elections at its 26th meeting
(Venice, 18 October 2008) and by the Venice Commission at its 77th plenary
session (Venice, 12-13 December 2008)
CDL-AD(2009)002
Code of good practice in the field of Political Parties adopted
by the Venice Commission at its 77th Plenary Session (Venice, 12-13 December
2008)
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