Rule of Law and Separation of Powers
Two other items were especially addressed in the initial decade of activity of the Commission: the rule of law and the separation of powers. The Opinions of subsequent years show the progressively central position taken in developing the yardstick for monitoring the rule of law.
At the same time, the Commission's connection with the principle of the separation of powers has become increasingly evident.The rule of law has always been a complex concept. Its content differs when we look at the German Rechtsstaat, the French etat de droit and the English rule of law.[26] However, step by step, it has acquired a substantially common meaning in the practice of the European institutions. The contribution of the Venice Commission to these developments has been very relevant. In the contemporary legal experience, a common understanding has taken place within the framework of the European constitutional heritage. The concept implies some structural elements, such as the separation of powers between the legislative and judicial authorities of the state and the independence of the judiciary from the executive. It also includes the democratic formation of the legislative bodies, procedural guarantees in the decision-making processes, the protection of some human rights and fundamental freedoms. Moreover, the states have to comply with a number of standards of conformity with constitutional values in the exercise of the judicial functions and in the equal implementation of legal principles.
Obviously, the actual functioning of this model depends on the attitudes of the civil society, on the discontinuity (or continuity) of the legacy of the former communist regimes, and on the developments and achievements of the civic education of the social actors. A clear reference has been made to the moral, political and economic theories which are the basis of the fundamental aims pursued in the transition.[27] The presence of all these peculiar requirements of the rule of law depends on the passage of time: it would be unthinkable to expect a coherent and complete implementation of the rule of law in just a few years.
This circumstance implied that the monitoring institution should extend its attention to the legislation for the implementation of the constitutional reforms adopted in the period of the immediate transition and years following the first constitutional reforms. In fact, even where some structural requirements had been introduced, there were not only new judicial procedural rules that were lacking. According to the Venice Commission, the independence of the judiciary had to be refined through the creation of a High Judicial Council system as was, and still is, present in many European countries.[28]The absence of procedural guarantees is of greater concern than the absence of a High Judicial Council. Moreover, the immediate establishment of so-called judicial selfgovernment raised some doubts. Entrusting the majority of the judges of the communist regime still in office with administrative functions concerning the careers of judges did not seem convenient. Not only were the electoral rights for the election of the High Council at stake; attention had to be paid to the appointment of new judges, compliance with the standards of judicial fairness and implementation of the judicial reforms, all matters that fall within the competence of the elected members of the Council and directly affect the identity of the judiciary. According to a largely shared opinion, it would have been possible to create a body elected by the judges and mainly composed of judges only if a change in mentality was taking place among the judges.
Therefore, the implementation of the constitutional reforms in the judicial field required a progressive approach and flexibility. At the beginning of the transition period, the appointment of judges could be entrusted to the political bodies which were supposed to be able to understand the needs of the new political and constitutional order. However, this guideline was not always adopted because of the risk of unjustified political interference.
In any case, the professional requirements of the judges had to be satisfied. The legislators should have in mind the purpose of restricting the time of the transition as much as possible. It would have been advisable to award self-government powers to the judges only after a number of years. In the meantime, basic human rights had to be guaranteed. As Suchocka highlighted,[29] in the ECHR the interpreters can find useful principles that concern not only the procedural aspects of the exercise of the judicial functions, but also the organisation of the judiciary. Even if the judges were appointed by a political body, their independence had to be ensured.The efficiency of the judiciary is also an essential factor in view of the implementation of the safeguard of human rights and fundamental freedoms. This could be uncertain in a period of transition. Evidently many promises could not be immediately satisfied. It was a difficult task to find a satisfactory arrangement. Even a monitoring body has to take into consideration these difficulties. There are many signs of partial dissatisfaction with newly adopted initial reforms. They may seem preferable to the heirs of the past communist order, but they do not always comply with the hopes and desires of the citizens. A maximalist approach has to be avoided. Time is required for the establishment of the new institutions in conformity with the principle of constitutionalism and for the evolution of a new mentality among the public actors.
Moreover, the idea that a High Judicial Council system is the preferable model for implementing the independence of the judiciary has to be married with the reality of the adoption of different systems of judicial organisation in some European states, such as Germany, Austria and Switzerland. If these different systems are traditionally able to guarantee the independence of the judiciary, for instance through a strict application of the rule of law, the monitoring body has to be very careful in advising the new democracies to establish a Judicial Council. It should have been possible to leave the choice between these different solutions to the states, so long as the principle of the separation of the powers was not endangered. A supranational organisation should be more concerned with this principle than with the modalities of its implementation. As we will see in the next chapters, some states claimed their intention to be faithful to their legal traditions. On this point, the Venice Commission has taken the position that this choice deserves respect so long as the European constitutional heritage is safeguarded. For instance, in the Czech Republic, the preference was expressed for a system of independence of the judiciary without a High Council, but the intervention of the Commission was not required in view of an analysis of this choice.
IV.