Appendix 1: Monitoring Committee and Venice Commission: 27 Years of Growing Interaction[379]
My speech is devoted to the European Commission for Democracy through Law, also known as the Venice Commission. The institution was established 20 years ago, as the result of a Partial Agreement between some Member States of the Council of Europe.
The Agreement was then enlarged to all the states of the Council and other non-Member States. The Commission has a special position in the framework of the Council of Europe. Its budget is proportionally financed by the contributions of the Member States, ensuring autonomy and independence to the institution.The Commission is entitled to participate in the monitoring procedures of the Parliamentary Assembly of the Council of Europe. This task has been developed and grown together with the extension and strengthening of the monitoring activity by the Assembly itself. In 1993, with Order No 488, the Assembly instructed its Committees to monitor the honouring of commitments entered into by the authorities of new Member States. Thus, the monitoring included the compliance with the conditions for accession to the Council of Europe. At that time, the Berlin Wall fell, and the Soviet Union and the Federal Republic of Yugoslavia broke up. The Venice Commission faced the constitutional reforms that the states resulting from the two Federations’ dissolution undertook to deeply revise their constitutional legal order and adopt the acquis communautaire of the European constitutional heritage as it is expressed by the three ground principles of the Council of Europe: democracy, human rights and the rule of law. So, the role played by the Venice Commission was dual: on the one side, an advisory body and, on the other side, a monitoring body, checking the results of the reforms undertaken. Therefore, the Commission was involved in the machinery of the conditionality principle, which means that the membership to the Council of Europe has been conditional upon the respect of the values and principles enshrined in the founding documents of the Council of Europe that Member States committed to comply with.
The Venice Commission is one of the players involved in the enforcement of the conditionality principle, but its role is only to advise the institutions of the Council of Europe responsible for deciding the appropriate measures appropriate for each state’s behaviour, from accession to the Council to the adoption of the sanctions eventually relevant. ‘Whether or not any additional sanctioning mechanism would be warranted is not an issue for the Venice Commission’, President Buquicchio recently said. The Commission is essentially a technical body. Therefore, it is not part of its job to take measures that fall within the competence of the political bodies of the Council.Special attention should be paid to the nature of the activities of the Commission. As a body responsible for constitutional assistance, the Commission is not able to intervene on its own initiative, except for carrying out studies and researches. Therefore, its work depends on the initiative of the Member States or the bodies of the Council of Europe - first of all the Parliamentary Assembly, the Committee of Ministers and the Congress of Local and Regional Authorities. It is fair to say that, for example, up to and including 2000, the Commission delivered 650 opinions and reports, 130 of which were on general issues, upon the requests submitted by the Parliamentary Assembly, and 56 in particular by the Monitoring Committee of the Assembly. These tasks directly relate the Commission to the requesting bodies and their activities, and mostly the monitoring one, which mainly concerns draft legislations and the assistance on Member States' domestic constitutional issues. And that is the activity that needs a parameter, a standard of evaluation.
This is a very sensitive point. We can easily say that the core activity of the Commission lies in the founding principles and values of the Council of Europe, ie the three fundamental pillars of democracy, human rights and the rule of law that I have just mentioned.
Nevertheless, it is not easy to shape those principles in practical terms. Recently, following a resolution of the Parliamentary Assembly, the Commission adopted a report on the rule of law. The report highlighted that national legal provisions referring to the rule of law are of a very general character. To allow an application of the concept, the Commission than elaborated a Rule of Law Checklist in order to identify the core elements and the practical consequences of the application of the rule of law principle in different fields of constitutional interest. To draft the checklist, the Commission assessed the best practices of the Member States and shaped them through the doctrines of European constitutionalism. In this way, the Commission has provided the possibility to consider new criteria and standards for evaluation. If they were applied, those criteria and standards would, in one way or another, become part of the elements that the bodies responsible for the monitoring activity might use. As I wrote in another paper, through the machinery of the conditionality principle, the monitoring criteria become binding and commit the stakeholders concerned by the opinions of the Venice Commission and by the resolutions of the Council of Europe bodies, which are based on those opinions. Step by step, therefore, the criteria and standards constantly applied become part of the European constitutional heritage and serve as an example of the so-called ‘transnational law’.For the mentioned reasons, the participation of the Commission to the monitoring activities calls for a cautious and attentive approach, requiring a fair balance between the guidelines drawn from the fundamental principles and a prudent and monitored application of comparative constitutional law.
A clear example of this is the contribution of the Venice Commission to the internationalisation of domestic constitutional law concerning the organisation of the judiciary. The Commission collected information from the national constitutional traditions coming after the Second World War, as well as from the documents drawn up by the institutions of the Council of Europe or other similar bodies.
As a result of the investigation, the Commission suggested the institution of a collective body, usually called ‘Judiciary Council’, as the better solution to ensure the independence of the judiciary. The body should be composed by judges elected by the judiciary itself and other members elected by parliament among qualified groups involved in judiciary activity (lawyers, law professors). The Council should take all administrative and judicial decisions on the career of judges and disciplinary measures against them. The office of President of the Council should not be held by the Ministry of Justice. The presidency should be headed by the head of state, except for presidential regimes in which the head of state is chief of the executive power. The aim is to safeguard the separation of the organisation of the judiciary from the government in systems where the independence of the judiciary is at least provided by law. It is easy to understand that the indications of the Venice Commission, as resumed in a report devoted to the organisation of the judiciary, go beyond the mere mention of the principle of independence and neutrality of the judiciary as provided by the most common theoretical definition of rule of law. These indications have been accepted several times and implemented at constitutional level by the Member States. In this way, they resulted in a corpus of transnational law that enforces one of the Council of Europe ground pillars.A similar course was followed with the guidelines on the organisation and functions of constitutional courts, as part of the doctrine of the rule of law too. The Venice Commission gave many opinions about the judicial review of legislation. Among them, special attention should be paid to the recent ones concerning the reforms adopted by Poland, Slovakia and Hungary. On the matter of organisation and functions of constitutional courts, a short summary of the directives given to the legislations of Member States could be useful.
A qualified majority is required for the election of constitutional judges by the parliament. In fact, these judges should not be considered as representatives of political parties, but, as a whole, they should be the expression of different interests and cultural backgrounds. In the mentioned cases of Poland, Slovakia and Hungary, the solution suggested was the Italian model. For instance, in Italy, one-third of the members are appointed by the President of the Republic, one-third are appointed by the judges of the higher ordinary and administrative courts, and the last third is elected by the parliament with a qualified majority. Constitutional courts should have organisational and budgetary autonomy. They should also be directly responsible for the election of their own President. At the expiry of the mandate, judges should be quickly replaced. An extension of their office should be provided in case of delay in the election or appointment of new judges. At the end of the term of office, re-election should be excluded. Constitutional courts should be given enough flexibility in the organisation of the agenda and they should not be bound by their own case law.The effectiveness and continuity of the Venice Commission’s contribution to the development of the European constitutional heritage rely on compliance of Member States. But sometimes this compliance is not voluntary, and it depends on the approach of the Council of Europe bodies. In some way, the relation between the Council of Europe bodies and a Member State is influenced by the relation between the same state and the Venice Commission. As I said before, the task of constitutional assistance and its advisory role exclude that the Commission might adopt any sanction. The Commission usually opens a dialogue with domestic authorities based on the submitted draft legislation or ‘concept paper’. Prior to adopting an Opinion, it often happens that President Buquicchio (or one of the heads of the main bodies of the Council of Europe) makes a preliminary visit to the state in question and a channel of communication is opened with a Commission delegation going to the place.
So, the final opinion of the Commission already considers the objections contrary to the given indications, expressed by local authorities, or their willingness to comply with and enforce the same indications. Generally, every opinion ends with a list of the main or key recommendations, to make easier its implementation.It often happens that the Commission reanalyses the draft after the domestic authorities have suggested amendments and revisions. This is what happened, for example, in the case of the Albanian reform of the judiciary. Albanian authorities submitted a first draft and then requested the assessment of a second draft revised following the Commission’s evaluation. In this way, the Commission had the chance to check the follow-up of its opinion. The task is somewhat sensitive, because the evaluation of the measure adopted by national authorities could imply concessions to the interplay of majorities and oppositions, while the Commission and its Secretariat, as an institutional choice, leave political questions outside. A good practice adopted by the Commission is now to put in the plenary session agenda a special point devoted to the follow-up to earlier opinions: the Commission is informed by the Secretariat about constitutional and legislative developments of Member States, related to previous opinions. That is the appropriate time for the plenum, at the formal request of a Member State, to hear explanations about the choice to implement or not to implement the Commission recommendations (as happened for Ukraine and Montenegro).
This plot of relations and interventions sometimes does not work well. The cases of Poland and Hungary, for example, are still open, despite, in the Hungarian case, the double check by the Commission of the draft legislation on the constitutional court, upon a first request from the President of the Monitoring Committee of the Parliamentary Assembly and a second one from the Secretary General of the Council of Europe. In the second Opinion, the Commission welcomed the fact that the Hungarian authorities had taken up the Commission’s suggestions, but regretted that the Hungarian legislature repeatedly gave constitutional force to ordinary laws quashed by the constitutional court and criticised the prohibition of the use of case law prior to the constitutional reform, as well as the limitation of the constitutional court’s powers of control in budgetary matters. At that stage, however, the following events were not a matter for the Commission, but fell within the competence of the political bodies of the Council of Europe.
My last point: the Poland and Hungary cases involve not only the Council of Europe, but also, as is well known, the European Union. The implementation of the Venice Commission’s recommendations concerning Hungary was recommended, as well, in a recommendation of the European Parliament in 2013. Again, some recommendations of the European Commission adopted in July and December 2016 referred to the Venice Commission Opinions. So, the activity of the Venice Commission concerning the monitoring is important for the European Union too. The same happened for the Albanian reform of the judiciary. Further development should be expected concerning the Rule of Law Checklist. In fact, in the fundamental resolution of 25 October 2016 on democracy, the rule of law and fundamental rights, the European Parliament refers to the Venice Commission’s Rule of Law Checklist, and the Commission is defined, among others, as a source and instrument for assessment, reporting and monitoring of Member States’ activities. Even the resolution of 25 October 2016 pays special attention to the conditionality principle, in order to commit the Member States to the standards, values and democratic principles that they accepted at the time of accession. Furthermore, the same resolution suggests evaluating each Member State’s behaviour in the framework of a continuous dialogue and to work towards a stronger consensus between the Union and its Member State. If the search for a stronger consensus is abandoned and the commitments are not honoured, the competent bodies of the Union should reflect and adopt all decisions concerning Article 7 TEU.