Conclusions
Other legal sources must be considered among the yardsticks adopted by the Venice Commission. Some international documents are especially worthy of attention, principally the Charter of the United Nations of 26 June 1945; the United Nations Covenant on Human Rights; and the ECHR.
These legal sources play an extremely important role, as they are the result of a common effort to summarise the main constitutional values and ideals that are largely shared in the contemporary world. It could be possible to read references to these documents as an openness to a globalisation centred point of view of the problems dealt with by the Venice Commission with the adoption of a universal perspective. However, it would be advisable to be careful in drawing such a conclusion. The geographical terms of reference of the Opinions of the Commission always refer to the constitutional experience of countries of Western Europe and the documents of the Council of Europe in particular. This is confirmed by the examples mentioned in the previous pages. This attitude can be easily explained if we consider the developments of the constitutional doctrines in the nineteenth century and have regard to Europe's political history. Taking these facts into consideration, the link connecting the take-off of the Council of Europe with the fall of the Nazi and fascist dictatorships after the World War II emerges. Similarly, a link emerges when the accession of new members to the Council of Europe is considered, particularly when the accession followed a democratic transition (as in the cases of Spain, Portugal and Greece). Conversely, the fall of the Soviet Union and of the Federal Republic of Yugoslavia had a significant impact within the picture of constitutional developments in Europe. These events took place within the international framework of the United Nations, but part of this story consisted in the accession of some of these new democracies to supranational institutions established by Western European liberal democracies. Within this picture, the accession of some of these states to the European Union was a landmark constitutional event in the story of their democratic transition. This is because the European Union may be considered as an institution that is developing and enriching the values and principles on which the Council of Europe was founded. We will return to the issue of the universal dimension of the Venice Commission perspective in the last chapter.There are a great number of sources and materials that are considered by the Venice Commission in the elaboration of the yardsticks for the evaluation of documents submitted thereto. On this basis, it makes sense to sort the results of its activity (what we could call its ‘case law') into different categories. First of all, there are principles of law that have a transnational relevance. These display their effects in the legal orders of all the concerned states insofar as they are transplanted from one system of law to another through the channels of the constitutional culture, the international relations and the activity of the international and supranational institutions in the frame of the strategy of conditionality. For instance, the establishment of the independence of the judiciary is affected by transnational principles in that important provisions of the international treaties concerning the safeguarding of the human rights are at stake, as they connect the guarantee of the human person to specific institutional arrangements of the judiciary. These principles are strictly binding on the legislators of states even if they are not expressed - according to Ronald Dworkin[172] - in an ‘all or nothing fashion’. Therefore, they can be implemented in the frame of different organisational solutions, which can all be covered by the normative spectrum of the same principle.[173] Separation of powers is a principle that must be complied with inescapably. However, many models of implementation are concretely admissible.
Among these are not only the so-called judiciary self-government model, but also the model requiring the establishment of the judiciary, subject to strict supervision by the executive, where the independence ofjudges is guaranteed through specific institutional and personal guarantees and the traditional legal culture.The Venice Commission has an evident preference for the adoption of the judicial council model in the constitutions of the new democracies. However, it is prudent in suggesting the modalities of its application, even if it must recognise that the binding effects of the principles affect different practical implementations. In some cases, there are standards or guidelines of legislation that do not have the normative relevance of the principles, even if they are perceived as mandatory soft law by the addressees of the Opinions of the Commission through the machinery of conditionality. Therefore, the difference between standards and principles can be very vague. In other fields, the Commission recognises the existence of different legislative solutions to the constitutional problems that the states must deal with, but does not make an express choice and restrains its intervention to the identification of the limits that cannot be bypassed by the legislators. Parliaments and governments are free to choose the most convenient solution even if they must respect the general principles of law that are typical of a constitutional state. The principle of the rule of law is frequently mentioned in the Opinions of the Commission, which recognises that ‘a challenge for the future is how the achievements of the rule of law can be preserved and further developed under circumstances where individuals are increasingly influenced by and linked to new modes of governance’.[174]
It could be said that in all the cases dealt with by the Venice Commission, the constitutional identity of the states must be preserved. This could imply a guarantee of their sovereignty; however, the experience of the Commission over the years has demonstrated that this exigency must be balanced with respect to the fundamental principles of European constitutionalism.[175]
This attitude explains the position of the Commission with regard to institutions that have a more recent history and have attracted the attention of legislators only in recent years. This is the case with the ombudsman, which has its origins in the experiences of the Nordic democracies and has been adopted in some modern European constitutions.
There are only a few texts on the elaboration of materials concerning this institution, even if the Venice Commission suggested it as an alternative to the Soviet and czarist Prokuratura for the exercise of functions aimed at safeguarding public interests that do not fall within the scope of criminal law.[176] Another organisational model that is prudently dealt with by the Commission is that of the budgetary and financial judicial autonomy practised by some Nordic countries. The ‘case law' of the Commission in this field is not completely settled yet; however, some Opinions of the Commission support this Nordic model. Although Nordic countries are certainly not to be considered peripheral (as the Eastern and Central European countries are), the contribution of their constitutional experience in the identification of a European constitutional heritage has been limited. This is surprising, if one considers that, for example, the Constitution of Norway is one of the oldest constitutions of Europe.The Commission’s choices are sometimes pragmatic and flexible. An example of this pragmatism emerges from the remarks raised by the Commission on the Hungarian constitutional revision that was criticised for including provisions that did not develop the main principles of the organisation of the judiciary. The contested constitutional amendments left the adoption of the details of the regulation to cardinal laws (to be approved by a supermajority), whereas, according to the idea[177] of the Commission, it should have been left to ordinary laws. The criticised solution increases the risk of long-lasting political conflicts and causes undesirable pressure and costs for a society in case of possible future legislative change. This conclusion was argued on the basis of Article 3 of the First Protocol to the ECHR, which was read as requiring the participation of all the political forces - that is, the majority and the opposition - in the preparation and approval of the acts aimed at implementing the constitution.
This claim can easily be connected to the idea frequently expressed by the Commission that constituent assemblies have to be elected according to a proportional electoral system to guarantee the presence of representatives of all the political parties and movements. Special attention has been paid to emerging democracies, where the initial identification of the nature and degree of segmentation of the political spectrum is considered as ‘a necessary first step’. Therefore, a first general election under proportional representation should be required ‘for a constituent assembly for example’[178]The establishment of the new democracies also required fundamental choices about the system of government to be adopted with the approval of the constitution.[179] One could consider it helpful to enlarge the scope of the research devoted by the Commission to this item. However, it has correctly abstained from expressing an explicit choice in favour of a parliamentary, presidential or semi-presidential government. Statements of general principles about this problem are lacking, the choice to be made is one of opportunity in view of the peculiarities of the concerned societies, and the states must have the freedom to select one solution over another. Notwithstanding these premises, the Commission has always evaluated the proposals submitted for its consideration, paying regard to the traditional models of government of Western European democracies and in the light of the connected experiences. Therefore, the Commission has frequently underlined the exigency that a system of checks and balances between powers and inter-institutional cooperation shall be ensured. Its approach certainly implies the reference to the models of the mentioned forms of government, which the legal doctrine and the political science have elaborated.
Furthermore, attention must be paid to these models insofar as they offer suggestions about the possible equilibrium between powers and the fair distribution of powers between the state's institutions.[180] The Commission favours institutional arrangements that avoid the uncontrolled growth of powers of the state authorities, especially where monocratic constitutional bodies are concerned, such as the President of the Republic (see the experience of Ukraine, and of other countries of the Commonwealth of Independent States).[181] From this perspective, the Commission has positively welcomed constitutional reforms aimed at substituting parliamentary or semi-presidential governments for previous presidential governments, as recently occurred in Armenia and Tunisia.[182]
From the above, it is apparent that, on the one hand, the sources of the Opinions of the Venice Commission have to be found in the mainstream developments of the European states that have adopted and implemented the doctrines of constitutionalism.
On the other hand, we must identify the peculiarity of the use of these sources by the Commission, which is frequently mixing legal data, practical experiences and the doctrinal elaboration of these materials. It follows that the legal effects of the Opinions adopted is - as was underlined - necessarily diverse according to the different bases of the conclusions reached. Moreover, it is evident that the contribution of the Venice Commission to the internationalisation of constitutional law is Eurocentric, in that the main sources of its activity pertain to the developments of European constitutionalism even if there are still difficulties for their reception by all the European states.