Rule of Law
Of the three pillars of the Council of Europe, the Rule of Law has long been the least visible. Democracy and respect for Human Rights have long enjoyed much more attention. In the 21st century, however, the autonomy of the Rule of Law and its importance have become evident.
The Venice Commission first addressed the issue of the Rule of Law in a report adopted in 2011.
After examining the historical origins of the concepts of Rule of Law, Rechtsstaat and Etat de droit, the report looked at these concepts in positive law. In international law, they appear in a number of treaties but also in soft law; in national law, they appear as a main feature of the state in the constitutions of Germany as well as of a number of former socialist countries of Central and Eastern Europe. The notion of the Rule of Law is however often difficult to apprehend in former socialist countries, which were influenced by the notion of socialist legality.
While drafting the report, the Venice Commission reflected of the definition of the Rule of Law and reached the conclusion that the Rule of Law was indefinable… Rather than searching for a theoretical definition, it therefore took an operational approach and concentrated on identifying the core elements of the Rule of Law. It therefore identified common features of the Rule of Law, Rechtsstaat and Etat de droit (see below).
The Commission then decided to draft an operational tool for assessing the level of Rule of Law compliance in any given state, and this led to the elaboration of the Rule of Law Checklist, based on the five core elements of the Rule of Law, sub-itemised into detailed questions. These core elements are:
The principle of legality is at the basis of every established and functional democracy. It includes supremacy of the law: State action must be in accordance and authorised by the law. The law must define the relationship between international law and national law and provide for the cases in which exceptional measures may be adopted in derogation of the normal regime of human rights protection.
Legal certainty involves the accessibility of the law. The law must be certain, foreseeable and easy to understand. Basic principles such as nullum crimen sine lege/nulla poena sine lege, or the non-retroactivity of the criminal law are bulwarks of the legal certainty.
Prevention of abuse/misuse of powers:
Preventing the abuses of powers means having in the legal system safeguards against arbitrariness; providing that the discretionary power of the officials is not unlimited, and it is regulated by law.
Equality before the law and non-discrimination:
Equality before the law is probably the principle that most embodies the concept of Rule of Law. It is paramount that the law guarantees the absence of any discrimination on grounds such as race, colour, sex, language, religion, political opinion, national or social origin, birth etc. Similar situations must be treated equally and different situations differently. Positive measures could be allowed as long as they are proportionate and necessary.
Access to justice:
Access to justice implicates the presence of an independent and impartial judiciary and the right to have a fair trial. The independence and the impartiality of the judiciary are central to the public perception of the justice and thus to the achievement of the classical formula: “justice must not only be done, it must also be seen to be done”.
The Rule of Law Checklist addresses also specific, topical challenges to the Rule of Law: corruption and conflict of interest, collection of data and surveillance.
The Checklist is intended as a comprehensive tool to assess the degree of respect for the Rule of Law in a given State. It may be used by a variety of stakeholders: state authorities, international organisations, non-governmental organisations, scholars and citizens in general. However, the first addressees of the Rule of Law Checklist are the States themselves. Compliance with the Rule of Law is a complex process; the Rule of Law is achieved through successive steps, and never fully. Assessing the level of compliance with the Rule of Law in a given State requires insider knowledge and understanding of the system: no one would therefore be better placed to do so than the State itself. Assessments by the civil society may offer of course a precious complementary vision of the situation. International organisations – including the Venice Commission - may then have a role in suggesting ways to improve the situation. A global appraisal should indeed involve all these angles of analysis and by no means should the Checklist be applied mechanically.
The Rule of Law is linked not only to the protection and the promotion of Human Rights, but also to Democracy. The participation of the citizens in the strengthening of the Rule of Law is thus paramount. That is what the Venice Commission calls an “enabling environment”. The Rule of Law can only flourish in an environment where people feel collectively responsible for the implementation of the concept.