Constitutional Justice, Rule of Law and Dialogue between the Courts
Constitutional courts are judicial bodies. The Venice Commission has always been faithful to this approach, and the uniformity of the arrangements adopted by the new European democracies confirms the choice made at the commencement of the activity of the Commission.
The growing importance of this approach is mirrored by the growing attention paid to the functional aspects of the constitutional justice system and by the interest devoted to the problems of the independence of these bodies and their members. This work avoided considering the details of these aspects to prevent the drawbacks of a lengthy discourse.In the field of monitoring state measures in the matter of personal neutrality and the organisational independence of constitutional courts and of constitutional judges, the Venice Commission has clearly drawn inspiration from the elaboration of principles and standards concerning ordinary justice and judges. The Commission has developed the 104 Constitutional Justice in the Frame of the Rule of Law teaching of this experience, after making the necessary adaptations. This way of reasoning and constructing the relevant materials is the result of the orientation aimed at the extension of the coverage of the rule of law to the constitutional justice system. The historical moment of change coincided with the advent of the modern constitutional state - that is, a state which has a rigid constitution providing the conditions necessary for the exercise of public power guarantees the rights of the humans and establishes an independent constitutional court.[322] Year after year, the change has interested the majority of European states and, after the fall of the Berlin Wall, also the new democracies of the Central and Eastern Europe.
In the past, the European legal doctrine circumscribed the scope of the rule of law to the administrative activity of the state.
The rule of law required administrative acts of the state to be compliant with the ordinary legislation. According to this traditional view, ordinary judges were competent to guarantee this compliance. In the contemporary legal context, however, the extension of the judicial review to the conformity of the ordinary legislation with the constitution has appeared as a necessary move in the direction of guaranteeing the efficiency of the supremacy of the constitution as an aspect of the supremacy of the law. The relevance of this arrangement and its connection with the implementation of the rule of law is confirmed by the ‘Rule of Law Checklist' adopted by the Venice Commission,[323] which is the basis for the European Parliament resolution of 25 October 2016 with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights.[324] This document touches the field of the constitutional justice system insofar as it is aimed at ensuring that legislative and not only executive ‘policy decisions by the institutions of the Union comply with the Union's core principles and values’,[325] and requires ‘an assessment of access to justice at Union level, including aspects such independence and impartiality of courts and judges’.[326] Insofar as the constitutional courts of the Member States are part of the European system of justice, they are affected by this document.[327]The monitoring and consultative tasks of the Venice Commission cover all the geographical area of the Council of Europe, which is larger than the area of the EU. However, the importance that the Constitutional Courts of the Member States has had in promoting the developments of the legal system of the Union should be highlighted. Relevant interventions regarding both the pre-accession processes that guided the accession of the concerned states to the Union and the stage of the implementation of the accession through the establishment of a productive dialogue between the courts and the European Court of Justice.
These developments required the conformity of the status of the courts with the consolidated principles and standards of the constitutionalism. In fact, only the full satisfaction of all those requirements has allowed the mutual confidence that is the basis of the dialogue and cooperation between the states and their judicial bodies. The European law gives a certain space to these cooperative moves of the courts regarding the dynamic character ofConstitutional Justice, Rule of Law and Dialogue between the Courts 105 the process of integration. Poiares Maduro correctly remarked that ‘a political community may legitimately decide to exclude certain issues from the passions of the political process and “delegate” them to more insulated institutions’.[328] Thus, the participation of the constitutional courts in the processes of lawmaking should not be excluded. At the supranational level of international constitutional law, the difference between civil law judges and common law judges is gradually blurring.
The legal history of recent years has therefore signalled a new modality for exploiting the role of the constitutional justice system in modern democracies. The participation of the Venice Commission in these developments as a guarantor of the principles and values of constitutionalism offers clear evidence of the growing importance of that body in the European arena, as is demonstrated, inter alia, by the frequent requests for amicus curiae briefs submitted by the constitutional courts of the states to the Commission. Even if the Commission has correctly restricted its advice in these cases to European law related issues only, these interventions have underlined the continuity between the internal legal systems of the states as well as the principles and standards of European law.