Venice Commission e-Newsletter

EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW-                  COUNCIL OF EUROPE                                                    December 2008

76th Plenary Session
17-18 October 2008
Plenary session
The Commission adopted inter alia the following documents:
-   the joint opinion by the Venice Commission and OSCE/ODIHR on the electoral code of Armenia as amended up to December 2007; the opinion on the Draft Amendments to the Law on Human Rights Defender of Armenia as well as the opinion on the issue of the immunity of persons involved in the electoral process in Armenia
-    the amicus curiae briefs in the case of Sejdić and Finci against Bosnia and Herzegovina, and the case of Bjelic against Montenegro and Serbia, pending before the European Court of Human Rights;
-    the joint opinion by the Venice Commission and OSCE/ODIHR on
the electoral code of Moldova as amended by law N 76-XVI;
In addition the Commission held exchange of views with inter alia:
 -  Mr Ilir Rusmajli, President of the Legal Affairs Committee of the Assembly of Albania,
-  Mr Armen Harutyunyan, Armenian Human Rights Defender,
-  Mr Yuksel Erdogan, Judge Rapporteur, Ministry of Justice of Turkey and Mr Kaan Esener, Head of Department for Human Rights, Ministry of Foreign Affairs of Turkey.
The Commission was informed:
-   on follow-up to the Opinion on the draft amendments to the law on the State Prosecutor of Montenegro;
-  on follow-up to the Opinion on the Draft Law on the Public Prosecutors Office and on the Draft Law on the Council of Public Prosecutors of "the former Yugoslav Republic of Macedonia";
-  by Mr Alexander Vashkevich, former Justice of the Constitutional Court of
Belarus on the UNDP project for the Promotion of  a wider application of international human rights standards In the administration of justice in Belarus;
-   on constitutional developments in
-   on co-operation with the
Union of Arab Constitutional Courts and Councils.        

Next Plenary Session

12-13 December 2008


cover blaspheme
"Tackling blasphemy, insult and hatred in a democratic society"
The publication, in addition to the above report and annexes, contains the reports which were presented at the International Round table on "Art and sacred beliefs: from Collision to Co-existence" (Athens, 31 January - 1 February 2008) and ECRI General Policy Recommendation No 7 on National Legislation to combat Racism and Racial Discrimination. 
The publication is available at the Secretariat of the Venice Commission.
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STD cover
"The participation of minorities in public life"
Science and Technique of democracy No45
The publication is available at the Secretariat only:
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Quick links

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Consitutional justice

World Conference of Constitutional Justice
The World Conference of Constitutional Justice (Cape Town, 22-24 January 2009), organised by the Constitutional Court of South Africa and the Venice Commission, has met a very strong interest with Constitutional Courts, Constitutional Councils and Supreme Courts with constitutional jurisdiction. So far more than 90 courts have registered and new registrations come in every day. Due to the unexpectedly high number of participants it was necessary to shift the venue to the International Conference Centre at Cape Town Waterfront.
In the organisation of this unique event, which also takes place in the framework of the 60th anniversary of the Council of Europe, the regional groups uniting the Courts, which co-operate with the Venice Commission, have played a mayor role . Their representatives have met in three preparatory meetings for the Conference in Vilnius, Seoul and Algiers.
The following groups participate in the Conference:
  • Asian Constitutional Courts; 
  • Association of Constitutional Courts using the French Language (ACCPUF);
  • Conference of Constitutional Control Organs of Countries of Young Democracy (CCCOCYD);
  • Conference of European Constitutional Courts (CECC);
  • Ibero-American Conference on Constitutional Justice (CIJC);
  • Southern African Judges Commission (SAJC);
  • Union of Arab Constitutional Courts and Councils (UACCC).

In addition, courts of final appeal of the Commonwealth countries have been invited to the World Conference. At the Conference, the Venice Commission intends to offer co-operation to these courts as well.

The World Conference web-site   

Democratic institutions and human rights

Blasphemy, religious insult and incitement to religious hatred
In its 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", the Commission has researched the domestic legislation of the 47 members of the Council of Europe and came to a number of conclusions. 
Mutual understanding and acceptance is perhaps the main challenge of modern societies. Diversity is undoubtedly an asset; but cohabiting with people of different backgrounds and ideas calls for a new ethic of responsible intercultural relations, in Europe and in the world. Unlike blasphemy, incitement to hatred must be criminalised and prosecuted, with no unjustified difference being made between different groups. Democratic societies instead must not become hostage of 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-censorhip. But reasonable self-restraint should be used if constructive debate is to replace dialogues of the deaf. 
Bjelic v. Montenegro and Serbia and Sejidic and Finci v. Bosnia and Herzegovina
The Venice Commission adopted two amicus curiae briefs in proceedings pending before the European Court of Human Rights. 
The case of Bjelic v. Montenegro and Serbia relates to a fundamental problem in the constitutional structure of Bosnia and Herzegovina, directly stemming from the Constitution: the exclusion of the category of "the others" (those who do not belong to the three constituent peoples: Serbs, Croats, Bosniacs) from the elections to the Presidency and to the House of Peoples of BH. The Commission concluded that the exclusion of the "others" from elections to both the Presidency and the House of Peoples violated the European Convention on Human Rights and in particular Protocols No. 1 and 12. 
The case of Sejidic and Finci v. Bosnia and Herzegovina raises 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. The Commission considered that it would be unreasonable to hold Serbia responsible for human rights violations allegedly committed by the courts of the Republic of Montenegro in the period between 3 March 2004 (date of the entry into force of the European Convention on Human Rights in respect of the State Union of Serbia and Montenegro) and 6 June 2006 (date as of which the independent State of Montenegro is a party to the ECHR).
Joint opinions with OSCE/ODIHR on Kyrgyzstan
The Commission also adopted two joint opinions with OSCE/ODIHR on Kyrgyzstan: one related to the draft law on the right of citizens to assemble peacefully, without weapons, to freely hold rallies and demonstrations. The Commission and the OSCE/ODIHR Panel were very critical of this draft, which unfortunately, has been adopted in the meantime.
The Commission finally assessed also the draft law on freedom of religion of the Kyrgyz Republic. The Commission and the ODIHR Advisory Council found that the draft law did not appear to meet the applicable international standards. The influence of the State over the exercise of freedom of religion was excessive.

Elections and Referendums

Presidential elections in Azerbaijan
In the framework of the preparation of the presidential elections in Azerbaijan which took place on 15 October 2008, the Venice Commission:
-      assisted the Central Election Commission of Azerbaijan on legal and technical matters for a period of three weeks, in the preparatory stage of elections, notably in the field of electoral disputes;
-       organised a training seminar for territorial election commissions of Azerbaijan and two training seminars on the new complaints and appeals procedures for the members of the expert groups created at the level of territorial electoral commissions, in co-operation with the Central Election Commission of Azerbaijan and IFES;
-       assisted the Parliamentary Assembly delegation in charge of electoral observation, as a legal advisor.
Electoral laws of Armenia and Moldova
In the opinion on the electoral code of Armenia, the Commission and the OSCE/ODIHR underlined that improvements in legislation are still recommended, in particular concerning electoral disputes, inking of voters' fingers, a balanced composition of election commissions and the amount of the electoral deposit. However, progress is needed above all in practice. Good faith, combined with the exercise of political will by all stakeholders, remains the key challenge for the conduct of genuinely democratic elections.
Concerning Moldova, the Commission and OSCE/ODIHR noted that the Code as revised in 2008 includes some improvements, however problems arise under other aspects, such as too high a threshold, restrictions on double nationals and the possibility to recall members of the election commissions. 
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