1. Request for opinion
The amicus curiae Opinion on the "law on the cleanliness of the figure of high functionaries of the public administration and elected officials" of Albania (the law on lustration)  adopted in December 2008, was requested by the Constitutional Court of Albania on 20 February 2009. Lustration refers to the disqualification from public office of those allegedly associated with the communist regime.
 
The Court has put five specific questions to the Venice Commission, which concern whether the lustration law, which was adopted by a simple majority, contradicts the constitution and the organic laws (adopted by a majority of 3/5) by allowing a newly created administrative body to terminate, for an indefinite period of time and through a specific procedure, the mandates of the President, the deputies, the ministers, the judges of the Constitutional Court and the judges of the High Court. If the lustration law were unconstitutional, then it would also be in breach of the principle of the rule of law.
 
In addition, the Venice Commission had to address the question of whether the constitutionality of the lustration law may be decided by the judges of the Constitutional Court, given that they are subject to the lustration law and potentially in conflict of interest.
 
The opinion was discussed and adopted by the Venice Commission at its Plenary Session on 9 October 2009.
 
2. Conclusions
In its opinion CDL-AD(2009)044 the Commission found that lustration may be legitimately effected by Albania, even almost twenty years after the end of the communist regime, on condition that the constitution and the principle of the rule of law are respected. The Commission has found that the lustration law does not comply with the Constitution of Albania and, as a consequence, with the principle of the rule of law.
 
The lustration law aims at the termination of the mandate of the holders of important state offices such as the President, members of parliament, judges of the Supreme Court and of the Constitutional Court and ministers. However, the mandate of these institutions is protected by the Constitution, which foresees a special procedure, more protective than the one foreseen in the lustration law. The lustration law, which is an ordinary and not an organic law, cannot change the Constitution. In addition, the termination of the mandate should only be the effect of an individualised exam of the actual cooperation of the person in question with the communist regime and should not be permanent. The lustration law therefore appeared to be flawed.
 
The question of the possible conflict of interest of the judges of the Constitutional Court arose, as they are directly concerned by the law on the one hand, and have to decide on its constitutionality, on the other hand. However, the Venice Commission observed that if the judges refrained from deciding, the constitutional court would be paralysed, which must not be allowed to happen in a democratic society. The lustration law should have foreseen a mechanism of substitution of the abstaining judges: as it has not done so, the judges of the Constitutional Court must rule on the constitutionality of the lustration law.

 

At the request of the then Minister for the Protection of Human and Minority Rights of Montenegro, Mr Fuad Nimani, dated 23 March 2009, the Venice Commission assessed the draft Law on Prohibition of Discrimination.
 
According to the Commission, the intention of the Montenegrin authorities to adopt a single comprehensive anti-discrimination act is to be welcomed and encouraged. The act is likely to constitute a significant step in combating discrimination in the country.

 

The Venice Commission welcomed particularly the agreement given by the Montenegrin authorities to hold a follow-up meeting which took place on 12-14 October 2009, in Podgorica. This meeting enabled a member of the Venice Commission Mr Huseynov (one of the rapporteurs) to meet again with the Montenegrin Working Group in order to assist in the implementation of the Commission's recommendations.

2. Conclusions
The draft law has a number of positive aspects. The draft law prohibits both direct and indirect discrimination as well as a wide range of discriminatory actions. It introduces the concept of positive action. Human rights organisations and other relevant entities are allowed, although with certain limitations, to initiate proceedings on behalf or in support of victims of discrimination. The draft law provides for a shared burden of proof in discrimination cases.
 
However, in some aspects the draft law does not comply with international and European standards. Nine key recommendations have been made, among them:
 
-          to provide for the establishment of a specialised anti-discrimination body or in case of granting enforcement powers to the Ombudsman to ensure that: a) the Ombudsman has full powers for the implementation of the law; and b) the Ombudsman institution has the necessary human and financial resources to fulfil its new tasks;
-          to provide for "effective, proportionate and dissuasive" sanctions for breaching the provisions of the law, and to regulate this issue in a more comprehensive and detailed way;
-          to define clearly the scope of application of the law to the public and private sphere.

 

On 14 October 2009, following a request by the Luxembourg authorities submitted on 2 June 2009, to issue an opinion on the draft constitutional revision in Luxembourg, a delegation of the Venice Commission met the Commission of Institutions and Constitutional Revision of Luxembourg and the Council of State of this country. Discussions focused in particular on the bill of rights and prerogatives of the Grand Duke.  

 

The draft constitutional revision was tabled in the House of Deputies by the President of the Commission on Institutions and Constitutional Revision on 21 April 2009.

The draft opinion will be discussed by the Venice Commission at its next plenary session (Venice, 11-12 December 2009).
 
After the evaluation of the UK Electoral Law in 2007 and of the Finnish Constitution in 2008, the Venice Commission thus continues its cooperation in constitutional matters with "old" democracies.

The Commission at its 80th plenary session held a minute of silence.

 

• Armenia - election code
• Azerbaijan - obtaining of the information on activities of the courts / status of municipalities
• Bulgaria - normative acts
• Georgia - package of amendments to the law on assemblies and manifestations, the law on police and the code of administrative violations
• Kazakhstan - customs union
• Human Rights Review Mechanisms of Kosovo
• Kyrgyzstan - torture prevention mechanism
• Luxemburg - Constitutional Reform
• Moldova - Status of Euroregions
• Slovakia - Act on the State Language
• Turkey - religious communities
• Ukraine - judiciary / order of organising and conducting peaceful events 

Studies on:

• Good governance
• Voters' registration
• Evaluation of elections
• Independence of the judiciary
• Role of the opposition
• Internationally recognised status of election observers : Guidelines
• Individual access to constitutional justice
• Constitutional amendments