Venice Commission 
November 2009
80th Plenary Session
9-10 October 2009 
Plenary session
1. The Commission has adopted the opinions on the following issues:
· Albania - Law of 22 December 2008 on lustration;
·  Montenegro -
draft law on prohibition of discrimination; 
·  Serbia - three draft electoral laws: the State Election Commission of Serbia, the draft Law on the Unified Register of Voters of Serbia and the draft Law on the Election of Councillors of Serbia; 
 ·  Ukraine - the amendments of legislative acts on elections of the President of Ukraine.  
3. The Commission was informed on progress of the work on the opinion on the draft revision of the Constitution of Luxembourg.

4. The Commission decided to pursue its work on the general reports concerning:
- notions of good governanceand good administration;
- internationally recognised status of election observers
- cancellation of Election results;
- independence of the judicial system - Part I Judges

5. Mr Rusmajli, President of the Foreign Affairs Commission of Albanian Parliament, Mr. Akaki Minashvili and Ms Chiora Taktakishvili, MPs of Georgia, as well as Mr Andryi Portnov and Mr Valeriy Pysarenko, Members of Verkhovna Rada of Ukraine, took part in the discussions.

since the June 09 session...

Democratic institutions and human rights  

Trieste - UniDem Campus - Policies on the protection and social integration of immigrants - 29/06/2009 - 02/07/2009 

Bishkek - "Trial by juries" - Conference - The Central Asian Initiative of the European Commission   -08/09/2009 - 09/09/2009

Fiesole - "Fight against terrorism: Challenges for the judiciary" - Round-table (participation)  -17/09/2009 - 18/09/2009

Ashkhabad - Interaction between Parliament and government in the preparation of the draft laws - Round table - 23/09/2009 - 24/09/2009

Trieste - UniDem Campus - Independence of the judiciary   28/09/2009 - 01/10/2009

Luxembourg - Constitutional revision - "opinion" visit of Venice Commission working group - 14/10/2009  


Elections and referendums  

Albania - Parliamentary elections - Assistance to the election observation mission of the PACE - 26/06/2009 - 29/06/2009
- Conference on the quality of elections by the Agency for Legislative Initiatives - 02/07/2009 - 03/07/2009

Tbilisi - meeting of the Election Code Working Group  - 04/07/2009

Chisinau - Repeat Parliamentary Elections - electoral assistance to the authorities on media monitoring and voters' lists - 15/07/2009 - 05/08/2009
Vienna - Expert Seminar on Electoral Management Bodies organised in the framework of the Greek Chairmanship of the OSCE (participation) -  16/07/2009 - 17/07/2009

Chisinau - Legal Advice to the Parliamentary Assembly during the 29 July 2009 repeat Parliamentary elections -  26/07/2009 - 31/07/2009
Yerevan - ACEEO (Association of European Election Officials) Conference, General Assembly and meeting on electoral lists  - 03/09/2009 - 05/09/2009

Seoul/Namhae - Global Forum on Modern Direct Democracy  (participation) -14/09/2009 - 16/09/2009

Athens - Funding of political parties - OSCE/ODIHR round table (participation) - 17/09/2009 - 19/09/2009

Lviv - Conference on "Quality of elections: making democracy strong" - 24/09/2009 - 25/09/2009

Kyiv - "Quality of Elections - Making Democracy strong" - International Conference   -20/10/2009 - 21/10/2009  

Kyiv - Council of Europe's Forum for the Future of Democracy, on "Electoral Systems: Strengthening Democracy in the 21st Century" - 21/10/2009 - 23/10/2009 

Chisinau - Conference by the CEC of Moldova on the electoral reform -29/10/2009 - 30/10/2009 

Constitutional Justice

Tallinn - 8th meeting of the Joint Council on Constitutional Justice of the Venice Commission -  18/06/2009 - 19/06/2009
Cotonou - the 5th Congress of ACCPUF on "Constitutional Courts and Crises"
 (participation)- 24/06/2009 - 26/06/2009

Batumi - "Justiciability of Social Rights in Constitutional and ECtHR Jurisprudence" - international conference with the Constitutional Court of Georgia - 10/07/2009 - 12/07/2009

Chisinau - Conference on the occasion of the 15th anniversary of the Constitution of Moldova on "Fundamental Constitutional Values as a Stability Factor of the Constitutional Regime" - 22/07/2009 - 23/07/2009
Kasane - In co-operation with the Southern African Chief Justices Forum, a Conference on two topics: (a) separation of powers and socio-economic development; (b) protection of human rights and judicial review - 06/08/2009 - 09/08/2009
Ulaanbaatar -  6th Conference of Asian Constitutional Court Judges organised by the Constitutional Court of Mongolia and the Konrad Adenauer Stiftung (participation) - 24/09/2009 - 26/09/2009
Yerevan -- XIVth International Yerevan Conference in co-operation with the Constitutional Court of Armenia on "The interaction between constitutional courts and parliaments in guaranteeing the supremacy of the Constitution" -  01/10/2009 - 03/10/2009

Ankara - 4th Conference of Secretaries General of Constitutional Courts - 01/10/2009 - 02/10/2009

Bucharest -  XVth Conference of European Constitutional Courts  - 15/10/2009 - 16/10/2009 

Algiers - Conference on the occasion of the 20th anniversary of the Algerian Constitutional Council on the "Relations between the Constitutional Court and Parliament" - 31/10/2009 - 01/11/2009
Podgorica - regional Conference on the competence of the Constitutional Court to control the conformity of laws with ratified treaties - 03/11/2009  


cover electoral law
Now also available
in Russian:
Electoral law (2008)
ISBN   978-92-871-6424-7
Format :   16 x 24 cm
No. of pages :   314
Price :   € 39 / US$ 59

Forthcoming this year:

"The cancellation of election results" - No 46 in the series "Science and Technique of Democracy (STD)"

"Bulletin on Constitutional Case Law" and the CODICES on CD-Rom - 2008/3

Forthcoming plenary sessions

11 -12 December 2009
11 - 13 March

Quick links

CODICES database

VOTA database

Council of Europe

In this issue:

  • Highlights of the 80th session (October 2009):
    • Albanian lustration law
    • Anti-discrimination draft law of Montenegro
    • Legal framework of the presidential elections in Ukraine
  • Constitutional revision in Luxembourg
  • Obituary - M François Luchaire
  • Commissoin in the media
  • Activities since the last plenary session (June 2009) and the forthcoming activities
  • Publications


The Albanian lustration law
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.
Anti-discrimination draft law of Montenegro
1.Request for opinion
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.
Legal framework of the presidential elections in Ukraine

1. Request for opinion
The Venice Commission's opinion on the Law on amending some legislative acts on the election of the President of Ukraine had been requested by the Ministry of Foreign Affairs of Ukraine on 2 September 2009.

The law, adopted on 24 July 2009 by the Parliament of Ukraine, introduced a number of substantial changes to the Criminal Code of Ukraine, the Code of Administrative Legal Proceedings of Ukraine and the Law "On Elections of the President of Ukraine".
The intention of the opinion of the Venice Commission is to assist the authorities in their stated objective to improve the legal framework for democratic elections, and to bring the relevant legislation closely in line with OSCE commitments, Council of Europe and other international standards for the conduct of democratic elections.
2. Conclusions
The law in question raises significant concerns and some important aspects regulating the presidential elections can even be considered as a step backwards compared to previous legislation. Some of these amendments are not in line with international standards and good practices, such as:
  • the restrictive amendments that undermine the possibility to challenge election results,
  • unreasonable restrictions on the right of candidacy,
  • re-introduction of the possibility to add voters to the election lists on the election day and
  • limitation of the Central Election Commission possibilities to correct mistakes of lower level election commissions.
Some other problematic areas of the legislation underscored by the OSCE/ODIHR and the Venice Commission in their previous opinions, such as the restrictive media provisions that can be applied to limit the full exchange of political views and delivery of campaign messages from candidates to voters, the mechanism for appointing members of electoral commissions and the finance provisions which are vague and potentially ineffective, also remain unaddressed. 
Constitutional revision in Luxembourg
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.
Obituary - François Luchaire, former member of the Venice Commission, eminent French constitutionalist  

The former member of the Venice Commission in respect of Andorra (2000-2007) and eminent French constitutionalist François Luchaire, passed away on 7 August 2009 in Paris at the age of 91.
Professor François Luchaire was an active member of the Commission: he was inter alia one of the authors of the Code of Good Practice on Referendums and of the Declaration on Women's Participation in Elections. His contribution to the Commission's work was of great clarity and relevance.

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


"Electoral engineering as an engine of democracy through elections" - Interview with Gianni Buquicchio, Secretary of the Commission

 Link to the interview
"The change of the constitution is indispensable to ensure better functioning of the State and enable the country to progress towards EU"  - Interview with Thomas Markert, Deputy Secretary of the Commission on constitutional arrangments for Bosnia and Herzegovina

Link to the interview
Secretary of the Venice Commission awarded high state distinctions  

During the month of October 2009 the Secretary of the Venice Commission Gianni Buquicchio was awarded high state distinctions of Algeria, Armenia, Austria and Moldova.


Seminars and meetings:
Chisinau - Roundtable ''Monitoring the media during elections''  -  05/11/2009 
- Conference in co-operation with the Constitutional Court of Latvia on "Access to the Court - The Applicant in Constitutional Jurisdiction (persons authorised to apply to the Constitutional Court)" - 06/11/2009 
Batumi - Conference on "Judicial Precedents as a Source of Law", in co-operation with the Constitutional Court of Georgia and GTZ  - 07/11/2009 - 08/11/2009 
Istanbul, Ankara  -
Visit to Turkey in connection with the forthcoming Opinion on the recognition of the legal personality of religious communities in Turkey -  09/11/2009 - 11/11/2009 

St. Petersburg
- Conference on "Property, free enterprise and constitution - new and old questions", in co-operation with the Institute for Public Law and Policy and under the aegis of the Constitutional Court of the Russian Federation - 20/11/2009 - 21/11/2009

Budapest - Conference on "Politics and law in constitutional justice - from the political questions' doctrine to judicial politics", in co-operation with the Constitutional Court of Hungary, on the occasion of its 20th anniversary - 23/11/2009 - 24/11/2009 

Trieste -  UniDem Campus - - The third seminar in 2009 for civil servants from sixteen participating states on "The protection of the Fundamental Rights of irregulars migrants" - 23/11/2009 - 26/11/2009

The Hague - "Enhancing participation in elections" - 6th European Conference of Electoral Management Bodies  - 30/11/2009 - 01/12/2009 
Opinions and studies under preparation: 
Opinions concerning:
  • 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
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