Venice Commission e-Newsletter

                                                                                  March 2009

78th Plenary Session
13-14 March 2009 
Plenary session
At this session the Commission has discussed the following issues :

· amendments to the Criminal Code of Armenia ;
· the constitutional referendum in Azerbaijan;
· the Georgian law on occupied territories;
· the constitutional and legal provisions relevant for the prohibition of political parties in Turkey.
Other opinions adopted by the Commission concerned:
- the admissibility of a constitutional referendum in and electoral code of Albania;
- constitutional amendments in Georgia
and two amicus curiae briefs for the Constitutional Court of Georgia,
 Furthermore, the Commission has adopted the reports on internationally recognised status of election observers and the explanatory report to the Code of Good Practice in the field of Political Parties.

The EU Special Representative for the Southern Caucasus, Peter Semneby, Director of Multilateral Relations and Human Rights of the European Commission, Veronique Arnault, and the Director of the OSCE Office of Democratic Institutions and Human Rights, Janez Lenarcic, have addressed the Commission.


cover PVPD control

Armed forces and security services: what democratic controls? (2009)

 Price 35 € / 70 US$
To be published mid-April
This book presents the various players and their duties in the security field and confirms the need to strike a balance between a democratic conception of fundamental freedoms and security safeguards. 

 *   *   *
cover electoral russian.
Price :  € 39 / US$ 59
This book is a compilation of the main Venice Commission texts dealing in general terms with elections and referendums. First come the reference documents: the Code of Good Practice in Electoral Matters and the Code of Good Practice on Referendums.

*   *   *
Bulletin of Constitutional Jurisprudence and CD-ROM CODICES No2008/1 are published. The new version of CODICES will also be available shortly at .

Next plenary session

13-14 June 2009
logo 2008 square small

Quick links

Venice Commission

CODICES database

VOTA database

Council of Europe


Constitutional referendum in Azerbaijan
The Venice Commission assessed the amendments to the Constitution of Azerbaijan submitted to a referendum on 18 March 2009. These amendments embrace a variety of changes and combine a limited number of important reforms with more modest adjustments.
Some amendments constitute important improvements as compared to the existing Constitution, such as a requirement for greater transparency in public affairs and the introduction of a popular legislative initiative.
At the same time, the Venice Commission expressed concern about a few very negative developments in terms of democratic practice given the context prevailing in Azerbaijan. This is essentially the case for the removal of the two-term limit of the President, which reinforces his already strong position and does not follow European practice. Generally speaking, the constitutional amendments do not remove the need for a more thorough constitutional reform in the future, so as to reach a better distribution of powers between the branches of the state power.
The document CDL-AD(2009)010 contains the full text of the Commission's opinion and the observations of the Azeri authorities regarding the opinion which was exceptionally adopted by vote. 
Law on occupied territories of Georgia
At the request of the Parliamentary Assembly of the Council of Europe the Venice Commission examined the above-mentioned law which has been in force since October 2008. This law is based on the premise that Abkhazia and South Ossetia belong to Georgia ; this position has been supported by the Parliamentary Assembly in its Resolution 1647(2009).

Among other things, the law criminalises irregular entry into Abkhazia (Georgia) and South Ossetia (Georgia) without explicit exceptions for emergency situations or for humanitarian aid; it also penalises irregular economic activities in these regions. These provisions, in the opinion of the Commission, should be modified as they risk to limit the access of humanitarian workers and the distribution of humanitarian aid in these occupied territories; as a result, this could adversely affect the well-being of the population.
In addition, the law retroactively applies as from 1990; this is in contradiction with the principle of non-retroactivity of criminal law and could also infringe the European Convention for Human Rights, even if it is meant to be merely declaratory, as according to the Georgian authorities the legal situation prior to the entry into force of the law was the same.
Under the law the transactions and certificates issued by the authorities of these territories are null and void; the Commission recommends that the Georgian legislation guarantees clearly simplified procedures of recognition of those documents and certificates.
Equally, the Commission would recommend that this law contain a provision stating the transitory character of the whole regime set out in this law and that it shall be reviewed periodically taking into account the progress in the settlement of the conflict.
Armenia - reform of the Criminal Code following the March 2008 events

In connection with the commitments which the Armenian authorities undertook vis-à-vis the Council of Europe, notably the Parliamentary Assembly (PACE resolution 1643(2009), §6), the Venice Commission  provided its assistance to a Working Group of the Armenian Parliament, presided by Mr Davit Harutyunyan, which was tasked with the reform of articles 225, 300 and 301 of the Criminal Code.
This reform of the Criminal Code aims at reducing the possibility of unduly broad interpretation of the provisions concerning organisation of mass disorders, usurpation of state power and incitement to violently overthrow the Constitution.
These three articles have served as a basis for the charges brought against a dozen of individuals who participated in demonstrations against the results of the presidential elections of February 2008. They ended in violent confrontation between the demonstrators and the police, 10 people died. The Council of Europe had asked the Armenian authorities to release the demonstrators.
The Armenian Constitution foresees the non-retroactivity of criminal law as well as the retroactivity of the more favourable criminal law. The Venice Commission provided the Armenian parliament with examples of similar articles of criminal law in other European countries and clarified the scope of retroactivity of this reform.

Turkey : Legal provisions for prohibition of political parties differ from European standards

In its report on prohibition of political parties in Turkey, adopted during the 78th Plenary Session (13-14 March), the Venice Commission concludes that, when compared to common European practice, the situation in Turkey differs in three important respects:
1.       The long list of substantive criteria for the constitutionality of political parties, as laid down in Article 68 (4) of the Constitution and the Law on political parties, go beyond the criteria recognised as legitimate by the European Court of Human Rights (ECtHR) and the Venice Commission.
2.       The procedure for initiating decisions on party prohibition or dissolution makes this initiative more arbitrary and less subject to democratic control, than in other European countries.
3.       The tradition of regularly applying the rules on party closure to an extent that has no parallel in any other European country demonstrates that this is not in effect regarded as an extraordinary measure, but as a structural and operative part of the constitution.
The basic problem with the present Turkish legal provisions on party closure is that the general threshold is too low, both for initiating procedures for and for prohibiting or dissolving parties. This is in itself in abstracto deviating from common European democratic standards, and it can easily lead to action in breach of the ECHR, as demonstrated in many Turkish cases before the ECtHR.
In conclusion, the Venice Commission is of the opinion that the provisions of Articles 68 and 69 of the Constitution and the relevant provisions of the Law on political parties together form a system which as a whole is incompatible with Article 11 of the ECHR as interpreted by the ECtHR and the criteria adopted in 1999 by the Venice Commission and since endorsed by the Parliamentary Assembly of the Council of Europe.
Consequently, the Venice Commission considers that, although the 2001 constitutional revision was an important step in the right direction, it is still not sufficient to raise the general level of party protection in Turkey to that of the ECHR and the common European democratic standards. Further reform is necessary, both on the substantive and on the procedural side. Resuming the constitutional reform process would be the preferred option for the Venice Commission. Amending specific provisions would be another option.