Precedents and Examples
Many Opinions of the Commission provide important evidence of the contribution of this body to the developments of the European constitutional heritage. For instance, in a case concerning Albania,[136] the Commission suggested that the state's interest in implementing a Lustration Act apparently affecting some judges of the constitutional court must be balanced with the continuity of the judicial review of legislation.
Therefore, if the Lustration Act did not provide for their temporary replacement, the judges whose position was suspicious would have to stay in office and refrain from abstention. In this way, the adoption of a decision on the constitutionality of the Lustration Act was possible as the presence of the required number of judges for the adoption of a decision was ensured. The Opinion was evidently based on a doctrine of constitutional justice that has to be effectively present to guarantee the continuity of the compliance of the system with the constitution. Moreover, the suggestion not only provided for the integration of the international yardstick, but also enabled Albanian judges to fill a lacuna of the internal legislation by adopting a new rule. From the Albanian state's point of view, the advice of the Commission implied the exercise of a power of lawmaking by the constitutional court that is a usual feature of constitutional justice.The Commission followed a similar way of thinking when it showed a clear preference for one of the possible solutions of a Moldavan case. The constitutional court of that country was asked to complete the provisions of its constitution by a functional interpretation of the principles concerning the election of the President of the Republic. The mere application of the constitutional text met with some difficulties and required the advice of the Commission. In this case, the approach of the Commission went further than explicit legislative provisions, whose purely textual interpretation was insufficient.
Punctual suggestions were given for a broader constitutional approach. A creative interpretation of the role of the constitutional court was envisaged in view of its participation in the process of constitutional lawmaking. This interpretation is a clear and evident result of the elaboration of recent experiences of Western constitutionalism. At least in the field of constitutional law, countries with a long civil law tradition are embracing modalities typical of common law countries.In an Opinion concerning Romania,[137] the Commission proposed a solution that introduced a principle not always present in the written texts of the constitutions of the European states and was beyond the text of the Romanian Constitution. The Commission suggested to the governing bodies of the state (the President, the government and the parliament) the observance of the principle of constitutional loyal cooperation. The aim was the avoidance of conflicts and intricacies in the mutual relations of those authorities. The idea was that the principle of loyal cooperation has to be complied with in all the models of government. Even in the absence of clear constitutional provisions, loyal cooperation has to be the basis of an efficient functioning of the constitutional systems, notwithstanding the differences and peculiarities that are often present.
The work of the Commission in the field of electoral legislation is especially interesting. It is the product of the activity of its Council for democratic elections established in cooperation with the Congress of Local and Regional Authorities. The results derive from the identification of principles and standards that have been defined as the European electoral heritage.[138] Their identification was derived from Article 3 of the Additional Protocol of the ECHR and the national and supranational case law on the matter. The principle of stability of the electoral legislation benefited from a creative approach. This principle is constructed as a factor of credibility of the electoral process and of the consolidation of democracy.[139] The universality, equality, freedom, secretiveness and directness of the vote have been considered as the basis for the construction of the doctrines of the Commission in the electoral field.
Over time, these doctrines have acquired a binding relevance.According to one authoritative contribution,[140] similar creative processes are apparently missing in the general field of human rights and fundamental freedoms as safeguarded by the ECHR. The interpretation of the ECHR ‘takes a predominant place'[141] in the Opinions of the Commission. However, this body ‘painstakingly follows' the case law of the European Court of Human Rights.[142] The Commission has a different perception of its contribution to the innovations in the process of safeguarding human rights. In fact, the Commission has prepared many reports summarising its ‘case law' concerning human rights and fundamental freedoms (religion and belief, association, assembly, equality and so on).
At times, the Commission has been confronted with the difficult problem of reconciling the basic conceptions of constitutionalism, on the one hand, with some traditional institutions of the concerned countries, on the other hand. These institutions have not been subject to a process of modernisation. This is the case, for instance, of the Prokuratura in Russia and Ukraine. Draft laws of these countries were aimed at entrusting the office of the Prosecutor with functions that were not always connected with the judicial criminal prosecution of misdemeanours and violations of criminal law. Therefore, the intention of those legislators was to pursue the continuity of the larger role played by the Prokuratura for more than a century. The Commission insisted in recognising in both cases[143] the primacy of modern international principles over those remaining from the past. Therefore, the Commission refused to admit the continuity of the national heritage. This heritage was considered not to be in line with the Council of Europe's values, as it followed the Soviet (and czarist) model, which reflected a non-democratic past.[144] Again, with regard to the legislation of Ukraine, the Commission[145] stated the principle that the protection of national minorities does not always have to be an absolute priority.
This protection has to be implemented taking into account the state's identity and national language if the concerned minority group has a disproportionate de facto traditional strong position in society because of historical and political reasons. The Commission concluded that the Russian minority profited, and still profits, in Ukraine from the protection of a powerful kin - the state of Russia. Moreover, the Commission recently contested with Hungary the admissibility of the so-called uniformity procedure, which allowed the highest judicial authority (the Curia) both to adopt obligatory uniformity decisions with binding effect on inferior courts and to check the observance of those decisions. The Hungarian government had defended this system by referring to a tradition from the nineteenth century.[146] Conversely, the Commission considered acceptable the adoption of a model of judicial organisation that entrusted the executive with relevant functions in some Central Europe states. Even in the absence of the Mediterranean model of judicial independence (usually preferred by the Commission), the long tradition of conformity to the principle of rule of law in those states has been judged sufficient to ensure the independence of the judiciary. This position is dealt with in depth in chapter seven.The Eastern European countries have not been the only ones to benefit from the advice of the Venice Commission. For instance, Belgium was considered to have correctly adopted a temporary derogation of the rules dealing with the revision of the Constitution. The necessity of facing an ongoing constitutional crisis was accepted as a sufficient basis to justify this move from the perspective of international standards.[147] In 2002, the Commission adopted a severely critical Opinion about the revision of the Constitution of Liechtenstein, which was supposed to distance the country from the other European democracies.[148]
It is evident that the Venice Commission has assigned particular importance to the constitutional yardstick it adopts. This attitude can be explained since the Opinions of the Commission produce binding effects that go beyond the sphere of the Council of Europe.
Recently, the spreading of these effects was facilitated by the compilation of documents that collect the main conclusions of the Opinions of the Commission according to a thematic criterion (Reports or Compilations). This initiative confirms that the body assigns a general importance to its Opinions and confirms the coherence and continuity of the ‘case law' of the Commission. The initiative of these documents disavows the criticism of those authors who accuse the Commission of arbitrariness.[149] The continuity of the observance of the principles stated in the Opinions excludes the possibility of arbitrariness. The background behind the Commission’s documents does not imply the adoption of a codified corpus of detailed provisions. Instead, it is the fruit of interpretative doctrines consisting of principles and guidelines that have become mandatory through their reiterated adoption by the governing bodies of the supranational institutions. The authority of these decisions requires the internal application of those doctrines in the internal constitutional legislation of the states.[150]The doctrines are developed through a reasoned construction of the models of the constitutional relations and the relative guidelines for their implementation. These materials are compatible with the constitutional legislation of European states. The work of the Commission can imply the introduction of innovative principles and standards. These principles and standards must be considered as the basis for the shaping of the necessary constitutional reforms in the new (but also in the old) democracies. These materials must be taken into account by the interlocutors of the Commission. Actors in charge of applying these doctrines need not to forget the peculiar national situations of the individual countries. The Commission’s doctrines are, however, supposed to trump national traditions that have not been updated according the principles of contemporary constitutionalism.
Their internal reception is the final step of the process. However, the mandatory effect depends on the adoption of the proposals of the Commission by the governing bodies of the Council of Europe or of the European Union, and also depends on the willingness of those political bodies to enforce the Commission’s doctrines according to their special institutional provisions.[151]The described developments involved many authorities and bodies who do not have lawmaking powers. However, those developments result in the creation of law that we call international constitutional law. We are confronted with the establishment of collective institutions at the supranational level. These institutions engage the responsibility of the concerned states to implement international/transnational law in the domestic legal orders of the concerned states. As discussed in chapter two, this responsibility may be sanctioned at the supranational level on the basis of the internal behaviour of the bodies of the states. Therefore, competent supranational authorities must check this behaviour. The domestic order is no longer impermeable to external interferences. The supranational scrutiny is exercised in the light of the yardsticks identified by the Venice Commission and accepted by political bodies entrusted with the final steps of the monitoring process. The specific single decisions of these bodies do not have general normative effects even if they are mandatory because of the monitoring mandate of their authors. However, insofar as they are repetitively adopted and imposed by the states on a case-by-case basis, they are acquiring a general normative efficacy. This efficacy is not limited to the effects displayed by the decisions in single particular cases. The effect acquires general normative relevance through a process of formation that is comparable to the customary lawmaking.
The innovative content of the decisions goes further than the content of the provisions of the relevant treaties. The formation of new law provides evidence of the normative effects of the ‘case law' of the Commission. These aspects are confirmed by two factors. On the one side, an important role is played by the publication of the Commission’s Reports or Compilations summarising its ‘case law’ in its different fields of action. These reports underline the importance of the spreading among the interested states and authorities of the new doctrines adopted by the Commission. On the other side, the frequent quotation of the Commission’s Opinions by European supranational and national judges reveals the growing legal importance of the Commission’s ‘case law’. Opinions are considered useful since they are read as an integration of the frequently ambiguous and vague content of the European constitutional heritage. This is the result of the generally relevant, frequent operational references to the Opinions by the concerned institutions, which help these institutions to identify the actual meaning of the vague normative content of the European principles that are the basis of their judicial or monitoring activities. Therefore, the construction of interpretative and explanatory legal doctrines is a necessary component of the process of legal reasoning aimed at the practical integration of the ‘open texture’ of the law that has to be applied by the interpreters.[152]
However, the participation of the Commission in international constitutional lawmaking is not free. The body is bound to guarantee the compliance with the basic principles and values of the European constitutional heritage by national authorities. At the same time, the Commission has to respect those principles and values. Utilising a metaphor, the creative effect of the Commission’s activities has to proceed according to the model of the rhyming couplet. This model requires the adoption of two lines of poetry of equal length, one after another: the final words of the two lines need to end with the same sound. This model was introduced to justify the creative decision-making of the Italian Constitutional Court,[153] and may be useful to understand the developments we are dealing with. The Commission’s lawmaking has to be the consequence of the principles and values as they are interpreted.
If the will of the Commission is restricted in the elaboration of its own yardstick of evaluation, its activity may be compared to judicial activity. The recognition of this peculiarity is supported by elements pertaining to the legitimisation of the Commission and its monitoring role. Certainly, its activity has a political importance insofar as it contributes to the expansion of the supranational institutions (such as the Council of Europe and the European Union) and to the establishment of the internal constitutional and legal structure of the Member States in conformity with the European doctrines. However, it does not follow that the Commission has a political legitimacy. The founding states entrusted the Commission with a technical mandate that implies the accomplishment of the Commission’s task through the elaboration of juridical materials according to the cultural and professional qualifications of its members. Its Opinions derive their authority from the correctness and coherence of the adopted legal methodology. Therefore, they have to be deliberated according to the principles of neutrality and in full respect of the basic requirements of legal reasoning. Compliance with the fundamental rules of professional deontology by its members is at stake. Hence, these members are appointed and work in their own personal capacity. Insofar as the observance of mentioned rules is guaranteed, the legitimacy of the activity of the Commission is beyond dispute. Moreover, this legitimacy justifies the consequent formation of an integrative international constitutional law. The comparison of the activity of the Commission to judicial activity does not preclude this conclusion as the European experience has many examples of judicial lawmaking.