Functioning of democratic institutions
At the request of the Organization of American States (OAS), in 2018 the Venice Commission prepared a report on the term-limits of presidents of states, where it was concluded that the term-limits which most representative democracies put on the right of the incumbent president are a reasonable limit to the right to be elected because they prevent an unlimited exercise of power in the hands of the president and protect other constitutional principles such as checks and balances and the separation of powers. The limits on the president’s re-election do not therefore unduly restrict aspirant candidates or voters’ human and political rights.
In 2018, the Commission examined as well the executive power under the Maltese Constitution and recommended that the position of the President, Parliament, the Cabinet of Ministers, the Judiciary and the Ombudsman should be strengthened so as for them to provide sufficient checks and balances against the Prime Minister who is, under the Maltese Constitution, the centre of political power.
The draft constitutional amendments enabling the vetting of politicians of Albania have also been subject to the opinion of the Venice Commission in 2018. The Commission concluded that the draft amendments, despite their legitimate aim, failed to provide the guidance and safeguards needed for such a complex and sensitive process.
The Commission is currently studying different examples of national practice of its member States regarding the question of recall of mayors and other local elected representatives with a view to preparing a report on the matter.
In 2017 the Commission examined amendments to the Rules of Procedure of the Verkhovna Rada of Ukraine. While Rules reflected the constitutional provisions, the Commission recommended: their adoption as an internal act of Parliament, specific procedures to minimize the negative effect of Article 81 of the Constitution (allowing for a revocation of MPs mandate by a political party); to review the rules on the formation of coalitions.
At the request of the European Court of Human Rights, in 2017 the Venice Commission prepared an amicus curiae brief for the case of Berlusconi v. Italy. The case concerned the revocation of the mandate of a Parliament member. Such revocation should be possible only for very serious offences, and should be, ideally, provided by the Constitution or an organic law. The brief was based on the analysis of examples from 62 countries, and concluded that, in most cases, the Parliament has limited discretion in such cases, where the Parliament member has been found guilty of a criminal offence. The procedures before Parliament should not necessarily offer all fair trial guarantees, and an appeal to the constitutional court would not be mandatory. In November 2018, upon the request of the applicant following his rehabilitation, the Court decided to strike the case out of the list.
The opinion of 2016 on the constitutional reform in Albania examined, inter alia, the question of participation of the executive and legislative branches in the election of the members of the bodies of judicial governance.
The system of checks and balances and further strengthening of Presidential powers vis-à-vis Parliament, already very weak under the current Constitution, were the main issues of the 2016 opinion on Azerbaijan. The Commission also examined the (lack of) involvement of Parliament in the process of constitutional amendments.
The 2016 opinion on the state of emergency in Turkey examined emergency powers of the Government to enact emergency legislation and the Parliament’s controlling powers in this respect. In another opinion on Turkey the Commission examined the question of the parliamentary immunity and its importance for the free debate in Parliament.
In 2016, the Commission also resumed its work aiming at updating its 2010 report on the role of the opposition in a democratic parliament, its legal rights, concerning in particular the participation of the opposition in the legislative processes, the parliamentary supervision and scrutiny of the executive, and more geenrally the relations of then opposition with the majority as well as the duties of a constructive opposition.
In addition, the Commission examined, in 2015, the Ukrainian legislative framework pertaining to the prevention of and fight against political corruption, as well as the draft law on integrity checking of persons authorised to perform the functions of state or local government in Ukraine. The practice of political accountability of governments in the functioning of parliamentary systems within the member states has also been a special point of interest for the Venice Commission.
In 2014, the Commission expressed concerns over the municipal reform in Azerbaijan, as some of the proposed amendments put the independence of the bodies of local self-government at risk. In the same year, the Commission also examined the new Ukrainian law on lustration: without disapproving the idea of lustration as such, the Commission stressed that the law was formulated in overly broad terms which created a risk of abuse and political prosecution.
The separation of political accountability and criminal responsibility of ministers in a well-functioning parliamentary system was examined by the Venice Commission in a report adopted in 2013 on the “Relationship between political and criminal ministerial responsibility”. The Commission stressed that criminal procedures should not be used to penalise political mistakes and disagreements. In this connection, the Commission adopted in 2012 a critical opinion on the practice of blanket resignation of ministers in the Federation of Bosnia and Herzegovina.
In 2013, at the request of the Parliamentary Assembly of the Council of Europe, the Commission adopted a report on the role of extra-institutional actors in a democratic society (lobbying), providing an overview of strategies to strengthen the democracy-supportive role of such actors.
The Commission’s work in this field also covers other areas such as:
Rule of Law Checklist
In March 2016 the Commission adopted the Rule of Law Checklist – a comprehensive list of criteria describing the complex notion of the rule of law. The Checklist aims at enabling an objective, thorough, transparent and equal assessment of the Rule of law in a given country. It is proposed as a tool at the disposal of various actors, such as parliaments and other State authorities, the civil society and international organisations. The Checklist was met with great interest: the Committee of Ministers endorsed it in September 2016 and it was discussed at several international fora.