The Take-Off of the Activity of the Venice Commission
Having in mind these peculiar aspects of the relations between the ex-communist countries and the European institutions, the Venice Commission has always been very careful in developing the guidelines for its activity.
The identification of the necessary yardstick to be adopted in the exercise of its functions implied a proper balancing between the principles of European constitutionalism and the constitutional identity that the states wanted to be preserved. However, the necessity for clear limitations to national sovereignty was to be accepted as far as the continuity of the concerned supranational institutions and their common guidelines was concerned. Special attention needed to be given to the debate on the relation between the constitutional principles and the distinguishing requirements of the market economy, whose concepts were (as presently are) under continuous revision and updating. The subsequent experience of the Commission shows minor attention to the problems of the economic and social reforms of the new democracies. However, during the first decade, differences of opinions between European states, European or international organisations and financial or economic international institutions were intense. They became more marked when some decisions required the adoption of decisions in cooperation with the International Monetary Fund, the World Bank and the USA.The Venice Commission has been always concerned to preserve its identity as a technical body which works under the umbrella of political bodies, such as the Parliamentary Assembly and the Committee of Ministers of the Council of Europe. These bodies are authorised to avail themselves of its advice and cooperation.[15] This peculiar position has allowed the Commission to avoid adopting political choices,[16] while it defends the values and principles of constitutionalism even against the pretense of national sovereignty.
The involvement of the concerned states in the preparation of the Commission’s Opinions has been suggested as being ‘in line with one of the classic rules of natural justice, viz the principle of audi alteram partem’.[17] The proposal cannot be shared, because the Commission is not part of a contentious relationship with those states, but is a neutral body bound by an auxiliary link to the Council of Europe and other European institutions.A case concerning Ukraine serves as a suitable illustration of the apolitical attitude of the Commission. The case concerned a conflict between the head of state and the parliament, which had been explained according to different interpretations by different international actors. A former US ambassador in Moscow had emphasised the need to strengthen the executive in Ukraine in view of the implementation of economic reforms.[18] Instead, the Council of Europe was seriously concerned by the unconstitutional presidential tactic of enhancing the political authority of the President by submitting to the people a constitutional revision specifically concerning his own powers. Through this referendum, he tried to bypass the parliament, which obviously was fearful of the enlargement of the presidential powers. The Parliamentary Assembly of the Council of Europe asked the advice of the Commission. The Commission had not previously had a chance to express a preference for the adoption of a parliamentary or a presidential system in Ukraine. It refused to draw practical inspiration from the referendum called by President De Gaulle in 1962 to revise the French Constitution outside the constitutional provisions concerning the procedure for constitutional amendments.[19] In the past, the Commission had only been able to underline the different effects of the alternative systems of government at stake. In its Opinion on the Ukrainian case,[20] the Commission severely criticised the presidential solution because it would have disrupted the balance between the powers.
The example of Ukraine is in fact a good one. It reminds us of the comments made by Carl Schmitt, when he envisaged a revision of the Weimar Constitution.11 Schmitt said that at the end of the First World War, Germany had been obliged to choose the Western model of constitutional democracy. The model was not at all suited - according the author - to the needs of the integration of German society. That opinion could certainly be ascribed to the authoritarian tendencies of Schmitt, but it gives us an opportunity to reassess the crisis of the Weimar Germany. Perhaps a revision of that Constitution which had taken into consideration the problems of 1920 German society would have avoided the later developments which favoured the advent of Nazism. A constitutional decision could have been substituted for the seizing of power by an authoritarian political party. Should similar reasoning have been applied to Ukraine, even with the absence of authoritarian tendencies in the head of state's project? It is difficult to answer this question, but it is in any case fair, considering that the Venice Commission correctly insisted on favouring the compliance with the constitutional rules concerning the revision of the Constitution of Ukraine.
In the Lund Seminar, special attention was paid to the problem of the duration of the transition time. Harutunian and Suchocka[21] [22] both claimed that it was not yet over in 2000. Some constitutional choices made immediately after the fall of the Berlin Wall probably required revision. In fact, the Commission had to deal with two different alternatives. On the one side, it had to elaborate the yardstick of the monitoring according to the exigencies of the transition time. On the other side, it was necessary to comply with the requirements of the later stages of the transition, bearing in mind the results of the experience and the perspectives of the institutionalised establishment of the principles of the constitutionalism. The choice was not always easy. Leaving aside the problems of the relations between the Commission and its ‘political clients' (the Parliamentary Assembly and Committee of Ministers of the Council of Europe, for instance), whose discretion had to be respected, the choice of yardstick had to take into consideration the assumed freedom of choice of the concerned states. The states' choice could not be excluded in an all-or-nothing fashion, at least as far as there were no problems in safeguarding the basic European constitutional values. These exigencies explain the preference accorded by some authors to the configuration of the guidelines of action of the Commission as standards.[23] In any case, the flexibility of the standards had to be partially restricted when the states were bound by specific international conventions affecting their choices, for instance with regard to the safeguarding of human rights and fundamental freedoms. This was the case with the European Convention on Human Rights (ECHR), which concerns the protection of fundamental rights of citizens. However, its provisions frequently concern the organisation of the state, and especially the structure and independence of the judiciary, as Suchocka correctly underlined in her contribution.[24] Therefore, special international rules converged with the general principles governing the constitutional state's institutions. Sometimes, international agreements were recognised as having pervasive effects. In Bosnia and Herzegovina, the duration of the transition was the subject of heated discussion. The Republic aimed to recover its own sovereignty by establishing a new constitutional order on its own initiative. However, it had to deal with the obligations flowing from the Washington and Dayton Agreements, whose provisions affect the adoption of a constitutional reform. The implementation of the Agreements was under the control of the international authorities, whose support, as well the support of the major members of the international community, would have been required to amend the actual constitutional order. III.