Retour Conference “Strengthening the rule of law in Europe”

Innsbruck, Austria , 

Council of Europe and the Rule of Law

Jörg Polakiewicz[1]

First of all, let me thank the organisers of the conference and also the Austrian chairmanship for giving me the opportunity to be here today.

Almost twenty years ago, I had dealt with the subject of Rule of law at a conference in Graz organised in 1996 by my friend Franz Merli.

At that time, it was a purely academic exercise; today it has become a much more challenging, maybe even a daunting task. In fact, now the aim has become making rule of law principles operational to assess compliance by member states.

Fortunately, Jeffrey Jowell and Elisabeth Steiner have made my job much easier; Venice Commission work on the rule of law and European Court of Human Rights’ case law have been authoritatively presented and analysed.

Consequently, in my intervention, I shall start from the Statute of the Council of Europe and then present some Council of Europe rule of law activities not mentioned so far: standard-setting and monitoring.

 

Background and Framework

The rule of law is one of three core principles of the Council of Europe, along with human rights and democracy, pursuant to the preamble of the Statute of the Council of Europe of 1949. Article 3 of the Statute makes the respect of rule of law a precondition for accession of new member states to the Organisation.

In light of the extensive discussions, the notion rule of law has given rise to; it is all the more interesting to note that the emergence of the notion in the founding document of the Organisation happened rather seamlessly, i.e. without reported discussions.

Indeed, in the early draft of the Statutes of the Council of Europe by the Rapporteur of the Legal and Drafting Committee dated 5 April 1949, the notion rule of law was not even mentioned in the preamble.

The draft spoke only of rule of law in the English version of the drafted Article 4 litra a (later Article 3), stating that all members of the Council of Europe must accept the principles of rule of law. Strikingly, the French version of the same Article 4 referred instead to les principes du respect de la loi (the principles of the respect of the law).

It was first with the Final rapport of the Preparatory Conference for the establishment for the Council of Europe of 14 April 1949 that the French expression prééminence du Droit was introduced, both in the preamble and in Article 3, as an equivalent to the rule of law.

Over the years, the Council of Europe has referred systematically to the rule of law in major political documents and in numerous legal instruments, such as the Vienna Declaration (1993), Strasbourg Final Declaration and Action Plan (1997) and the Warsaw Declaration (2005).

The extensive body of legal and political instruments within the Council of Europe does not provide any authoritative definition of the rule of law. Hence, the Parliamentary Assembly of the Council of Europe noted in its Resolution 1594 (2007) that despite the general commitment to the principle of the rule of law, the variability in terminology and understanding of the term, both within the Council of Europe and in its member states, has elicited confusion.

Interestingly, the Assembly stressed that the French “prééminence du droit should be favoured over “État de droit when translating the term “rule of law”, and similarly that the Russian “verkhovensto prava (rule of law) should be used over the more formalistic “verkhovensto zakona (supremacy of statute law).

These differences have not prevented the Council of Europe from deploying various activities within the Council of Europe which contribute significantly to promote and ensure the respect of the rule of law, including all areas of activities, such as standard-setting, monitoring and cooperation.

For example, a common function of human rights and rule-of-law is to give guidance to the process of governance. In 2007, the Council adopted a recommendation Rec(2007)7 on “good administration”. The recommendation contains a “model code” which defines the following basic principles of good administration: lawfulness, equality, impartiality, proportionality, legal certainty, action within a reasonable time, participation, respect for privacy and transparency.

Also, the Administrative Tribunal of the Council of Europe referred to rule of law internally. In its most recent judgment, appeal no. 540/2013, Staff Committee (XIV) v. Secretary General, the Administrative Tribunal made the following statement: le Conseil de lEurope, de par sa nature et de par les valeurs quil défend, se doit d'être une organisation de droit, cest-à-dire de respecter pleinement les droits des agents dans le contexte des relations juridiques entre lAdministration et les agents.

In 2008, following a request made by the 118th Ministerial Session of the Council of Europe on how full use could be made of the Council of Europe’s potential in promoting the rule of law, the Secretariat prepared a descriptive document CM(2008)170 entitled “The Council of Europe and the Rule of Law An overview.

This document identifies the key components of the rule of law and draws up a typology of relevant activities undertaken by the Council of Europe, distinguishing between the following activities:

 i) promoting the conditions necessary for the rule of law,

ii) promoting the respect for the rule of law,

iii) addressing threats to the rule of law,

iv) ensuring respect for the rule of law, and

v) strengthening the international rule of law.

 

Presentation of Five Council of Europe Bodies

Under the heading Rule of Law on the Council of Europe Internet web page, currently a total number of 21 bodies and activities are enlisted.

I shall not reiterate all the activities structured within this typology, but rather concentrate on five particular mechanisms and activities or bodies of particular importance. The European Court of Human Rights (ECtHR) held apart, these mechanisms and activities include the Parliamentary Assembly’s Monitoring Committee, the European Commission for the Efficiency of Justice (CEPEJ), and - in the wider sense of the rule of law notion - the Group of States against Corruption (GRECO) and the Human Rights Commissioner. A fifth body which will be presented in greater detail towards the end is the Venice Commission.

 

PACE Monitoring Committee

The Monitoring Committee (Committee on the Honouring of Obligations and Commitments by member states of the Council of Europe) of the Parliamentary Assembly of the Council of Europe was established in 1997.

It is responsible for verifying the fulfilment of obligations assumed by the member states under the terms of the Organisation’s Statute (ETS No. 1), Council of Europe conventions, as well as honouring of specific commitments undertaken by member states upon accession.

In 2006, the scope of monitoring was extended from new member states to all member states.

Relying on cooperation and dialogue with national delegations of countries under a monitoring procedure, its findings and recommendations are based on fact-finding visits. The Committee is under a statutory obligation to submit annual reports to the Assembly on its activities, which conduct debates on the matter held in public.

Since 1997, the Committee has produced numerous reports on member states under the monitoring procedure and post-monitoring dialogue

As Professor Serhiy Holavaty at the University of Kyiv observed in 2012, its activities have proved to be a significant tool in assisting the member states that joined the Council of Europe after 1989 to comply with the European rule-of-law standards, in particular by bringing those standards to states national systems.

In January 2011, in light of developments in Hungary causing concerns for the rule of law, a motion was put forward to request the opening of a monitoring procedure. The Parliamentary Assembly, deciding not to open a monitoring procedure, resolved in a resolution 1941 (2013) to closely follow the situation in Hungary and to take stock of the progress achieved.

In case of persistent failure to honour obligations and commitments and lack of co-operation in the Assemblys monitoring procedure, the Assembly may challenge the credentials of a national delegation, on inter alia the basis of a report prepared by the Monitoring Committee.

For the upcoming Spring Session of the Parliamentary Assembly next week, motions have been tabled to reconsider the ratified credentials or to suspend the voting rights of the Russian delegation on substantive grounds of violation of Ukrainian territorial integrity, on the basis of Rule 9.1.a of the Rules of Procedure of the Assembly

The two motions will be merged into one procedure. Logically, as motions refer to commitments, Monitoring Committee (“MC”) will be responsible. The Rules Committee will give opinion, while MC will prepare the resolution.

In the operative part of the resolution, the MC may propose one of three options:

  • To confirm the credentials.
  • To annul the credentials.
  • To confirm the credentials, but to suspend the members of certain rights. The rules do not specify which rights, but allows the Assembly to decide. I recall that back in 2000, a decision was taken to suspend voting rights of the Russian Delegation.

 

European Commission for the Efficiency of Justice (CEPEJ)

Following up on the conclusions of the London conference of ministers of justice in 2000, the European Commission for the Efficiency of Justice (“CEPEJ”) was est up in 2002 under Resolution Res(2002)12 of the Committee of Ministers, to promote precise knowledge of the judicial systems in Europe. The CEPEJ is composed of experts from all the 47 member states of the Council of Europe and is assisted by a Secretariat. Observer states to CEPEJ are the Holy See, Canada, Japan, Mexico, United States of America, Israel and Morocco. The European Union also participates.

On one side, the CEPEJ promotes the conditions necessary for the rule of law. It prepares pragmatic tools for policy makers and judicial practitioners to improve the efficiency and quality of the functioning of judicial systems, and develops networking between courts of the member states.

On another side, it undertakes activities to promote the respect for the rule of law. The CEPEJ supports individual member states in their judicial reforms, on the basis.

However, the main function of the CEPEJ is to ensure the respect for the rule of law by evaluating the functioning of the member states’ judicial systems through a regular process for collecting and analysing quantitative and qualitative data on the function of justice systems. It prepares benchmarks, collects and analyses data, and defines instruments and means of evaluation.

The CEPEJ also contributes to the European Union’s justice scoreboard process, providing annually statistical and numerical data on the functioning of the justice systems in each EU member state and country-specific information, analysis and trends. The EU justice scoreboard of 17 March 2014 relied on information provided through the CEPEJ study of February 2014.

 

The Group of States against Corruption (GRECO)

The Group of States against Corruption (“GRECO”) was created in 1999 to improve its members' capacity to combat corruption by monitoring through its evaluation procedures. It is a mechanism to ensure the respect of rule of law and address threats to rule of law in all member states of the Council of Europe, along with the Belarus and the United States of America.

The creation of GRECO was a novelty in the way that a fully-fledged monitoring mechanism was set up to control simultaneously the respect of soft and hard law instruments. GRECO monitors twenty guiding principles for the fight against corruption (GPC) which are not legally binding but have the legal value of recommendations. GRECO also monitors the implementation of several Council of Europe conventions and recommendations, in particular the Criminal Law Convention on Corruption (ETS 173, 1999), the Civil Law Convention on Corruption (ETS 174, 1999), CM Rec(2000)10 on codes of conduct for public officials and CM Rec(2003)4 on common rules against corruption in funding of political parties and electoral campaigns.

GRECO’s monitoring activities are based on the principles of mutual evaluation and peer pressure. The evaluation of member states is divided in rounds and it is carried out by ad hoc evaluation teams generally composed of three experts from different member states assisted by a member of the Secretariat. Exceptionally, teams may comprise additional experts and, where appropriate, scientific experts.

The reports prepared by evaluation teams regularly contain recommendations inviting the members undergoing evaluation to improve their domestic laws and practices to combat corruption. The members concerned will be invited to report on the measures taken to follow these recommendations.

 

The Commissioner for Human Rights

The Commissioner for Human Rights was established in 1999 as an independent institution within the Council of Europe.

The Commissioner for Human Rights is a non-judicial body responsible for promoting respect for and education in human rights, as derived from the Council of Europe’s instruments. Being a non-judicial institution, the Commissioner's Office cannot act upon individual complaints, but it can draw conclusions and take wider initiatives on the basis of reliable information regarding human rights violations suffered by individuals.

The Commissioner regularly reports to the Committee of Ministers and to the Parliamentary Assembly. The Commissioner is a source of information on systemic rule of law problems in the member states, focusing especially on justice issues (see for example his recent reports on Turkey and Russia).

In an article published by Open Democracy on 20 February 2014, the Commissioner Nils Muiznieks identified three recurring rule of law-related problems following country visits focusing on the administration of justice and human rights: “non-enforcement of court decisions, challenges to the legitimacy of the judiciary, and pressure on the independence of judges”.

According to Article 36 of the ECHR, the Commissioner can take part in the proceedings of the European Court of Human Rights, either at the invitation of the President of the Court or, since the entry into force of Protocol No. 14 to the Convention on 1 June 2010, on his own initiative. The underlying idea, as envisaged by the explanatory report § 87, is that the Commissioner’s experience may enlighten the Court on certain questions, particularly in cases which highlight structural or systemic weaknesses in the respondent or other High Contracting Parties.

 

The Venice Commission and the development of its check-list for the rule of law

The European Commission for Democracy through Law (“Venice Commission)” plays a crucial role in promoting respect for the rule of law principles.

Article 1.2 of the Statute of the Venice Commission establishes that its work will focus on the constitutional, legislative and administrative principles and techniques which serve the efficiency of democratic institutions and their strengthening, as well as the principle of the rule of law.

The Venice Commission promotes the idea that the definition and assimilation of the idea of the state based on the rule of law is a basic feature of European constitutionalism, through its recommendations and opinions prepared for its member states on draft constitutions and legislation in different fields.

On 3 April 2014, the Committee of Ministers of the Council of Europe welcomed also the immediate assistance measures for Ukraine presented by the Secretary General at the meeting, including the important tasks assigned to the Venice Commission in assisting Ukraine in various areas of reform and encouraged their rapid implementation and invited member states to urgently consider granting voluntary contributions for their financing.

The Commission has over more than twenty years dealt extensively with rule of law issues in all member states. It has produced numerous opinions, studies and reports, including a general report on the rule of law with a non-exhaustive check-list of core elements included in the notion.

In a plenary session 21-22 March 2014, the Venice Commission decided to deepen its work on the check-list with the Bingham Centre, chaired by Jeffrey Jowell.

The aim of the revision of the check-list is to make it more operational, so that it could be used to assess the state of the rule of law in a given country. One way of developing the check-list could be to specify more detailed and additional benchmarks pertinent to the sub-requirements under each core rule of law-element. I see here an important area of cooperation with the EU's Fundamental Rights Agency who has been tasked to develop indicators to assess the rule of law situation in the EU member states.

Please allow me another personal remark, based on observations made by Erik Wennerström, who wrote in 2007 an authoritative treatise on “The Rule of Law and the European Union”.

By expanding the notion of rule of law too widely, and charging it too heavily with substantial requirements, there is a real risk that the notion itself becomes so uncertain and unpredictable that it could fail its proper tests on clarity and foreseeability.

The danger in charging the rule of notion with detailed and substantial requirements, is that the conception constructed may be so strong that it is regarded as purely political, or conversely the conception becomes so vague that it cannot be used for an intelligent analysis; the analysis may be reduced simply to whether or not we consider a legal system to be good.

 

Concluding Observations

Despite the lack of an authoritative definition of the notion of the rule of law, the examples I mentioned in my intervention show that the Council of Europe works on a daily basis to promote and strengthen the rule of law in and among its member states. The report on the state of democracy, human rights and the rule of law in Europe that the Secretary General will present at the forthcoming ministerial session in Vienna will not only provide an overview of the current situation, but also critically examine the Council of Europe’s capacity to assist member states in complying with European standards.

We know that not everything is perfect. The impact of Council of Europe monitoring mechanisms is limited by certain constraints, in particular resources. Monitoring cycles are sometimes rather long. Capacities for rapid reaction which the Venice Commission successfully demonstrated in the Ukrainian crisis do not exist in other bodies or are rarely used.

The Council of Europe has a lot to offer in terms of existing and successful mechanisms for safeguarding and monitoring the rule of law. That being said, the EU's rule of law initiative can act as a catalyst for improving even further existing Council of Europe mechanisms.

We thus welcome that the European Commission's communication asserts that the suggested new European Union Framework to strengthen the Rule of Law will be complimentary to all the existing mechanisms already in place at the level of the Council of Europe to protect the rule of law.

Thank you for your attention.

[1] Director of Legal Advice and Public International Law, Council of Europe, and professor at the Europainstitut of the University of Saarbrücken. Any views expressed in this intervention do not necessarily reflect the official position of the Council of Europe.

 

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