The Transition to Democracy and Rule of Lawin Central and Eastern Europe
From the very beginning, the role of the Venice Commission has been deeply shaped by the experience, and especially by the attention paid by the European institutions to the advent of the new democracies in the countries of Central and Eastern Europe after the fall of the Berlin Wall.
The importance of these developments was recognised by the Commission, which held a seminar with them specifically in mind, on democracy in a society in transition, in May 2000 in Lund.2 In his opening speech, the President of the Parliamentary Assembly of the Council of Europe underlined that democracy is not just an element of the transition, but is often the transition itself. ‘If there is not democracy, there is nowhere to transit.’ This is true, but it is also true that there is no democracy without law. Law is not a precondition for democracy or a facilitating factor in carrying out democracy; law is democracy. It is impossible to have democracy without a suitable legal framework providing rules for its fair exercise and for the correct functioning of democratic institutions. Democracy is true only if the will of the people is properly expressed in the form of law, whose adoption provides a guarantee against the arbitrariness of the exercise of power.1 At the moment, members of the Venice Commission number 62.
2 The papers presented at the seminar were published in (2000) 26 Review of Central and East European Law 3. In the following pages of this chapter, reference will be frequently made to those papers.
The connection between the concepts of transition, democracy and law characterises the experiences of the advent of the new democracies in Central and Eastern Europe. Therefore, it has had special relevance in forming the role played by the Venice Commission during the first 10 years of its activity. This chapter is devoted to commenting on the help given by the Commission to states in the process of transition, which did not end with the Lund Seminar, even if some commentators thought the contrary.
Recent events have demonstrated that the Commission had not yet terminated its task after 10 years of activity.It is common opinion that the transition of former communist regimes to liberal and constitutional democracies can be described as a peculiar process. The contextual presence of pieces of the old institutions and of elements of reform creates a framework which can be compared with previous experiences, but has - at same time - its own distinguishing features. It requires special attention, but its evolution also needs the support of the people concerned; it is therefore a true exercise of democratic political rights. An important contribution by Luis Lopez Guerra reminds us that the Spanish transition to a constitutional democracy was also characterised by the effort of achieving ‘a maximum degree of consensus' through negotiations and agreements between the main actors of the transition - the political parties, trade unions and business associations.[13] The evolution of the Central European transition took place at an international level. Therefore, national and supranational actors were involved. The Venice Commission did not substitute itself for the interested electors, but gave its advice on the steps to be taken in view of implementing the transition to liberal democracy. Its mandate was helping the governing authorities of the European institutions in the evaluation of the constitutional reforms adopted by the states in the light of agreed values and principles.[14] The Commission participated in the monitoring processes with auxiliary but decisive functions.
Implementation of the negotiations and agreements required that the main political actors in the process of transition were in control of the bodies of the states entrusted with the task of adopting the necessary constitutional reforms. This aspect of the democratic transition was present in the Central and Eastern Europe countries even where democratic institutions were gradually introduced without breaking the formal continuity of the legislative decision-making process of the previous regimes.
The completion of the reforms was obviously not very easy notwithstanding arrangements and round tables. The former ‘nomenklatura' remained in control of important state structures, many former communist practices were still complied with and the civil society was weak. Internal efforts aimed at the renewal of the constitutional system needed major assistance from abroad. The Venice Commission participated in these efforts of cooperation, which took place under the control of various international organisations. The fall of the Berlin Wall suggested the moving of the concerned states from the framework of the Warsaw Pact, of the Soviet Union and of the Yugoslavian Federation to the framework established by the Western democracies after the end of the Second World War. This choice implied the accession to supranational organisations. If admitted, the interested countries could get a new international status as members of the complex Western network of liberal democracies and market economies. However, to achieve such results, the ex-communist states were required to comply with values and principles shared by the members of these institutions. The acceptance of these principles and values was the condition to which the accession of new members was subject and the necessary cooperation was subordinated. Therefore, many international negotiations were undertaken with the view to insuring the observance of this condition. Even the Organisation for Security and Cooperation in Europe, which former communist states had joined in the past, had an important role in the process of transition. The main roles were played by the Council of Europe, the European Union and the International Monetary Fund.When they cut their links with the Warsaw Pact, the Central and Eastern Europe countries were instructed that all the Western states shared many values and principles with which they had to comply. The notion of a common European constitutional heritage was at stake. It limited in some way the scope of their self-determination.
Did it imply dealing with those states within a framework similar to that of the Warsaw Pact, when their sovereignty was limited by the subordination to the ideologies, policies and interests of the USSR? There was a difference. The new democracies were bound to comply with the Western constitutionalism because they had freely accepted to enter into the network of the Western institutions the membership of which was conditional on the acceptance of European traditional constitutional values and principles. The Central and Eastern Europe countries, as new members of the Council of Europe, accepted the statute of this organisation and ratified the relevant Conventions, especially the European Convention for the Protection of Human Rights and Fundamental Freedoms. Afterwards, some of them subscribed to preliminary agreements in view of the accession to the European Union, and - at a later stage - to treaties of accession. As far as all these developments were freely accepted without external subjection, their sovereignty was not endangered. The subordination to the international monitoring could not be construed as an interference of the supranational organisations, but it was the result of a process which had put the new democracies in a position of equal standing with the old Western democracies. Therefore, all of them participated, and participate today, in the collective decisions of the concerned institutions on an equal footing and with similar powers.II.