Venice Commission

The Venice Commission, officially European Commission for Democracy through Law, is an advisory body of the Council of Europe, composed of independent experts in the field of constitutional law. It was created in 1990 after the fall of the Berlin Wall, at a time of urgent need for constitutional assistance in Central and Eastern Europe.

European Commission for Democracy through Law
FormationMay 10, 1990 (1990-05-10) (statute)
Founded atVenice, Italy
HeadquartersStrasbourg, France (Secretariat) Scuola Grande di San Giovanni Evangelista, Venice, Italy (Plenary)
Location
Region
Europe
President
Gianni Buquicchio (Italy)
Parent organization
Council of Europe
Websitevenice.coe.int

Creation

The idea to create a Commission for Democracy through Law as a group of experts in constitutional law was conceived by the then Minister for Community Policies of Italy, Antonio Mario La Pergola.[1] The election of the name was based on the theory of La Pergola that expressed that sustainable democracies could only be built in a constitutional framework based on the rule of law.

The formal proposal for the creation of the commission was made by the Italian Minister of Foreign Affairs, Gianni De Michelis, who invited the other Foreign Affairs ministers of the Council of Europe to the Conference for the Creation of the European Commission for Democracy through Law that was held at the Giorgio Cini Foundation in San Giorgio Maggiore, Venice from March 31 to April 1, 1989. At this meeting, Foreign Affairs and Justice ministers reunited with representatives of the Constitutional Courts of the 21 countries of the Council of Europe.

The committee of ministers, seeking to assist the countries of Central and Eastern Europe, approved the creation of the Commission as a partial agreement at the session in Venice from January 19 to 20, 1990. The Foreign Affairs and Justice Ministers of Bulgaria, Czechoslovakia, Hungary, Poland, the German Democratic Republic, Romania, the Soviet Union and Yugoslavia also participated as observers in this meeting.

On May 10, 1990, ministers from 18 countries (Austria, Belgium, Cyprus, Denmark, Finland, France, Greece, Ireland, Italy, Luxembourg, Malta, Norway, Portugal, San Marino, Spain, Sweden, Switzerland and Turkey) of the Council of Europe adopted the statute of the Commission.

Member states
Main article: Member states of the Venice Commission
  Member
  Associate member
  Observer
  Special status or cooperation

Starting with 18 member states, soon all member states of the Council of Europe joined the Venice Commission and since 2002 non-European states can also become full members. As of 13 July 2014, the Commission counts 60 member states – the 47 member states of the Council of Europe and 13 other countries.[2] Belarus is an associate member and there are five observers. The Palestinian National Authority and South Africa have a special co-operation status similar to that of the observers.[3] The EU, OSCE/ODIHR and IACL/AIDC (International Association of Constitutional Law / Association internationale de droit constitutionnel) participate in the plenary sessions of the Commission.

Members

The members are "senior academics, particularly in the fields of constitutional or international law, supreme or constitutional court judges or members of national parliaments".[4] [5] Acting on the Commission in their individual capacity, the members are appointed for four years by the participating countries. The current and former members include, amongst other notable academics and judges:[6]

President

The president of the Commission, since December 2009, is its former Secretary General Mr Gianni Buquicchio,[8] whilst his predecessor, Mr Jan Erik Helgesen,[9] Professor at the University of Oslo, is elected 1st Vice-President. The new Secretary General of the Commission, who is the head of the Commission's secretariat at the Council of Europe's headquarters in Strasbourg, France, is Mr Thomas Markert.

The main focus of the work of the Venice Commission is on draft constitutions and constitutional amendments but the Commission also covers para-constitutional law, i.e. laws which are close to the Constitution, such as minority legislation or electoral law.

Requests for opinions come from the participating states and the organs of the Council of Europe or international organisations or bodies participating in the Venice Commission's work. The opinions adopted by the Commission are not binding but are mostly followed by member states.

The areas of the Commission's activities are as follows:

Democratic institutions and fundamental rights

The Venice Commission's primary task is to assist and advise individual countries in constitutional matters in order to improve functioning of democratic institutions and the protection of human rights. Already in 1991 the Commission helped in creating the first democratic Constitution of Romania since 1947. In 2012, in an invited Opinion, the Venice Commission expressed several criticisms of church-related legislation in Hungary.[10]

Working method

The working method adopted by the Commission when providing opinions is to appoint a working group of rapporteurs (primarily from amongst its members) which advises national authorities in the preparation of the relevant law. After discussions with the national authorities and stakeholders in the country, the working group prepares a draft opinion on whether the legislative text meets the democratic standards in its field and on how to improve it on the basis of common experience. The draft opinion is discussed and adopted by the Venice Commission during a plenary session, usually in the presence of representatives from that country. After adoption, the opinion becomes public and is forwarded to the requesting body.

Non-directive approach

Although its opinions are generally reflected in the adopted legislation, the Venice Commission does not impose its solutions, but adopts a non-directive approach based on dialogue. For this reason the working group, as a rule, visits the country concerned and meets with the different political actors involved in the issue in order to ensure the most objective view of the situation.

A political agreement settling a conflict should be supported by a viable legal text. It may also be possible for an agreement on a legal text to foster a political solution. For this reason the Venice Commission pays particular attention to countries which are going through or have gone through ethno-political conflicts. In this context, at the European Union's request, the Venice Commission has played an important role in developing and interpreting the constitutional law of Bosnia and Herzegovina, Macedonia, Serbia and Montenegro as well as that of Kosovo. It has also been involved in efforts to settle the conflicts on the status of Abkhazia and South Ossetia in Georgia and Transnistria in Moldova.

The Commission drafts opinions, initiates studies and organises conferences inter alia on:

Elections, referendums and political parties

The work of the Commission in the field of elections, referendums and political parties is steered by the Council for Democratic Elections (CDE). The CDE is made up of representatives of the Venice Commission, the Parliamentary Assembly of the Council of Europe (PACE) and the Congress of Local and Regional Authorities of the Council of Europe. The aim of the Council for Democratic Elections is to ensure co-operation in the electoral field between the Venice Commission as a legal body and the Parliamentary Assembly and the Congress of the Council of Europe as political bodies in charge of election observation, in order to promote the European common values in this field – the principles of the European electoral heritage.

The Commission identifies and develops standards in the area of elections through:

  • Codes of good practice on elections, on referendums and on political parties
  • Opinions - mostly joint ones with OSCE/ODIHR - on electoral legislation
  • Workshops for Central Election Commissions (CEC) and Courts
  • Assistance missions to CECs and legal advice to the PACE
  • "Vota" database of electoral legislation

Constitutional and ordinary justice

Another branch of the Commission's activities includes co-operation with the constitutional courts and equivalent bodies. Since its creation, the Venice Commission has been aware that it is not sufficient to assist the states in the adoption of democratic constitutions but that these texts have to be implemented in reality. Key players in this field are constitutional courts and equivalent bodies exercising constitutional jurisdiction.

Cooperation with Constitutional Courts, ordinary courts and ombudspersons is done by means of:

  • Opinions on and for Constitutional Courts, ordinary courts and for Ombudspersons (including amicus curiae briefs and amicus ombud opinions)
  • Leading constitutional case-law – bulletin and CODICES database
  • Regional co-operation with Courts outside Europe
  • World Conference on Constitutional Justice
  • Seminars and conferences with Constitutional Courts
  • Venice Forum – advice and exchange between Constitutional courts
  • Joint Council on Constitutional Justice (representatives of Courts and members of the Commission)

Transnational studies, reports and seminars

The Commission's transnational activities enable it to carry out the main duties laid down in its Statute, which are to improve the functioning of democratic institutions, knowledge of legal systems and understanding of the legal culture of countries working with it.

While most of the work of the Commission is country specific, the Commission also prepares, through its own initiative and at request of outside bodies such as the Parliamentary Assembly of the Council of Europe, studies and reports addressing topics of general interest in the member and observer states. Transnational topics are also covered in the Unidem seminars (University for Democracy) and published in the Science and Technique of Democracy collection.

Comparative studies

Comparative studies on topics to do with the functioning of democracy offer initial overviews of the law in various countries. Such a comparative approach then makes it possible to identify constitutional values that are shared throughout Europe and, where relevant, any areas of weakness. The third stage is that of harmonisation, in which, on the basis of Commission recommendations, the principles concerned are incorporated into the law of those countries where they have not yet been established.

UniDem (University for Democracy) seminars

The UniDem seminars bring leading specialists from the political and academic worlds and constitutional courts (or equivalent bodies) and the Commission into contact with, for example, a specific university or constitutional court. Reports are presented on particular countries or specific aspects of the topics under discussion. By allowing exchanges between specialists from a variety of backgrounds, the UniDem seminars help to define the rules common to democratic states in which human rights and the rule of law are respected.

Positions taken

Blasphemy

In 2009, the Venice Commission attracted rare news coverage for its opinion that "blasphemy should not be illegal".[11]

Elections: boundary delimitation
Main article: Boundary delimitation § Venice Commission

As part of its report, European Commission for Democracy Through Law: Code of Good Practice in Electoral Matters, Guidelines and Explanatory Reports adopted October 2002, the Venice Commission recommended a number of considerations,[12] also when dealing with issues of boundary delimitation.[13]

Report about Poland

In December 2017, after the Polish government attempted measures to reshape and control the Supreme Court of Poland, the Venice Commission published a report criticising those reforms. The Report prompted the European Union to invoke Article 7 of its founding treaty threatening Poland with losing its voting rights in the EU institutions.[14][15]

Legislation on religious freedoms in Montenegro

Since 2015, the Venice Commission was included in process of legislative reform and regulation of various legal issues related to religious freedoms and rights of religious communities in Montenegro. First opinion of the VC on the initial draft law on freedom of religion in Montenegro, was issued in November 2015.[16] It was followed by a prolonged period of internal consultations and additional deliberations in Montenegro, resulting in the creation of a new draft law, that was followed by another opinion of the VC, issued in June 2019,[17] recommending various improvements and clarifications.[18]

See also

Notes
  1. Venice Commission - Durr 2010
  2. "Kosovo becomes 60th member of Venice Commission of Council of Europe". Voice of Russia. 13 June 2014. Retrieved 13 June 2014.
  3. "Members of the Venice Commission". www.venice.coe.int. Council of Europe. Retrieved 2015-12-10.
  4. "Venice Commission :: Council of Europe".
  5. Archived September 3, 2011, at the Wayback Machine
  6. Archived October 13, 2011, at the Wayback Machine
  7. "Philip Dimitrov is already a deputy-chairman of Venice Commission" (in Bulgarian). Lex.bg. December 19, 2019. Retrieved August 29, 2020.
  8. "Gianni Buquicchio". www.venice.coe.int. Council of Europe. Retrieved 2015-12-10.
  9. Archived January 3, 2007, at the Wayback Machine
  10. Opinion on Act CCVI/2011 Archived 2013-01-17 at the Wayback Machine. Venice Commission. Retrieved 26 March 2012.
  11. "Council of Europe body says blasphemy should not be illegal". Expatica. 2009-05-29. Retrieved 2009-09-27.
  12. Of utmost importance are the guidelines issued, on electoral matters, by the "Venice Commission" (European Commission for Democracy through Law), which in 2002 indicated when a restriction of the right to vote would be, in his opinion, acceptable: Buonomo, Giampiero (2015). "Sul diritto elettorale, l'Europa ci guarda". Diritto Pubblico Europeo Rassegna Online.  – via Questia (subscription required)
  13. Challenging the Norms and Standards of Election Administration Boundary Delimitation Archived 2008-11-28 at the Wayback Machine. IFES, 2007. Accessed July 9, 2009.
  14. Proposal for a COUNCIL DECISION on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law; European Commission publication 20 December 2017
  15. Santora, Marc (July 4, 2018). "Poland's Supreme Court in Disarray After Judges Defy Purge". New York Times. Retrieved 5 July 2018.
  16. VC (2015): Draft Joint Interim Opinion on the Draft Law on Freedom of Religion of Montenegro
  17. VC (2019): Montenegro: Opinion on the Draft Law on Freedom of Religion or Beliefs and Legal Status of Religious Communities
  18. CE (2019): Montenegro: Provisions on religious property rights include positive changes to out-dated legislation, but need more clarity, says Venice Commission

Further reading
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