CHECK AGAINST DELIVERY

Presentation to the Scientific-Consultative Council on International Legal Issues of the Ministry of Foreign Affairs of Belarus
 

Contents

Introduction. 1

Origins of the rule of law concept 2

Germany. 2

United Kingdom.. 4

Belarus. 6

The Council of Europe’s contribution to the rule of law.. 7

The Venice Commission. 7

European Court of Human Rights. 8

Other Council of Europe bodies and mechanisms. 10

Concluding remarks: Dynamics and limits of the rule of law concept 11

Introduction

According to the former UN Secretary-General Ban Ki-moon, “the Rule of Law is like the rule of gravity.”[1] Gravity is, however a scientifically defined concept which describes a universally applicable, naturally existing reality. The rule of law, by contrast, is a set of principles describing ideals that every society must adopt and adapt to their precise juridical, historical, political and social contexts. In this way, the effective realisation of the rule of law very much depends upon the commitment of each individual state and ultimately on the critical mass of institutional actors, women and men, enforcing them with their own integrity.

The origins of the rule of law can be traced back throughout history. Sometimes Aristotle is referred to as the father of this concept.[2] Today, the concept is explicitly mentioned in the 1948 Universal Declaration of Human Rights,[3] the European Convention on Human Rights,[4] the American Convention on Human Rights, the African Convention on Human and Peoples’ Rights and the Treaty on European Union. The content and scope of the rule of law concept have however essentially been shaped by national experiences.

As far as Europe is concerned, the contributions of Germany and the United Kingdom have been particularly influential. Speaking in Minsk, I cannot but mention also the case of Belarus before presenting Council of Europe’s contribution. Currently both the Council of Europe and the European Union are engaged in devising procedures to monitor member states’ conduct in rule of law matters. This gives me an opportunity to discuss the dynamics and limits of this concept when it is being used as a parameter to judge state conduct.

Origins of the rule of law concept

Germany

The term “Rechtsstaat” was developed in the early 19th century, when German scholars formulated a rule of law programme in order to rationalise political rule and institutionalise liberal claims against absolutist state-conceptions. For those scholars, many of whom were influenced by the reason-based philosophy of Immanuel Kant, the defining policies of “Rechtsstaat” included:

• the state administration should be based on law (“Gesetzmäßigkeit der Verwaltung”),

• regulation by formal law should be required especially for all state action relevant for individual freedoms and property rights (“Gesetzesvorbehalt”), and

• all administrative actions should be subject to judicial review.

‘Rechtsstaat’ literally translates as the ‘law-based state’ and therefore describes the type of state architecture and political order in which all publicly applied power is created, whereas the term “Rechtsstaatlichkeit” alludes to the more formal doctrine of the “rule of law” a collective term of numerous principles such as democracy, equality and fundamental freedoms. Already when the term ‘Rechtsstaat’ gained popularity in the first half of the 19th century, it was defined by Robert von Mohl as “to organise the coexistence of the people in such a way as to support every member of it in using their own efforts within liberal surroundings.”[5] It therefore included a material component, even though it was not the most prominent one during that time. Instead, it was still possible for the state to pursue its own interests, even against its citizens, as long as the corresponding legal basis existed or was created.[6]

Prior to World War II these terms had been expressed primarily in a purely formal sense.[7] In Nazi Germany the law was the expression of the will of the German nation, as determined by the Führer. The law therefore existed only as a body of statutory rules. The judiciary merely applied the law, irrespective of the results which led to violations of human rights on an unknown scale, and millions of deaths. The judge was reduced to a mere “subsumption machine”.[8] Even where laws existed, they did not provide the necessary legal certainty anymore, as the Führer could issue a diverging order at any time.[9]

It is therefore not surprising that, following the atrocities of the Nazi-regime, a more material understanding of ‘Rechtsstaatlichkeit’ emerged, linking this concept closely to human dignity and the protection of fundamental rights. This can be seen in the constitution of the Federal Republic of Germany (“Grundgesetz”) that was formulated in 1949. The “Grundgesetz” explicitly mentions the concept of ‘Rechtsstaat’ in article 28. Moreover, article 20 includes many “rule of law” principles such as the separation of powers whereby the legislative, executive and judiciary remain distinct and independent from one another.

The relationship between the rule of law and justice is a common subject of German legal discourse. In 1946, Gustav Radbruch, a prominent legal theorist, developed a formula, which was used as a guide to judicial decision-making in the post-Nazi era. Radbruch was deeply affected by “the Second World War and the evil done during that period in his native Germany, often under the rubric of the law.”[10] His formula expressed the idea that “when statutory rules reach a level of extreme injustice, so that the contradiction between positive law and justice becomes intolerable, they cease to be law.”[11] In this way, Radbruch denied that “extremely unjust legal orders like the Nazi regime could have legal value.”[12] Examples of Radbruch thinking are reflected in post-Nazi regime judgments, such as the conviction of two people who had worked as executioner’s assistance under the Nazi regime[13] and a decision declaring the statute void which had declared jewish property to be forfeited to the government.[14]

Radbruch’s essay “Gesetzliches Unrecht und übergesetzliches Recht” (1946) is regarded as one of the most influential legal-philosophical writings of the 20th Century. His formula was taken up in jurisprudence involving the East German border guard cases. Such cases involved the prosecution of East German border guards who had shot fugitives trying to escape over the Berlin Wall from East into West Germany. Following the reunification of Germany in October 1990, however, homicide charges were brought against them in the German courts. Similar to the Nazi war criminals, the argument under Radbruch’s formula was that the East German regime had been so unjust as to be unlawful, even though an explicit legal basis for shooting at fugitives existed under East German law.[15] This meant that the applicants could be found to be in violation of the law and guilty of the charges. The European Court of Human Rights in Strasbourg confirmed this position in March 2001.[16]

Today, the application of the rule of law in Germany includes a variety of principles. Many of them can explicitly be found in the constitution, the “Grundgesetz” or basic law. These are, for example, access to justice (article 19 (4), the so-called ‘Rechtsweggarantie’), the right to one’s lawful judge (article 101 (1)), the right to a fair hearing (article 103 (1)), nulla poena sine lege (no punishment without law, article 103 (2)) and ne bis in idem (prohibition of double penalties, article 103 (3)).

Other principles that form the rule of law follow from a legal construct generally called “Zusammenschau” in German. It means to look at the “entirety of norms such as articles 20 (3), 1 (3), 19 (4), 28 (1) and the overall concept of the basic law.”[17] Such a reading is necessary because article 20 (3) only provides for the general obligation to respect the constitutional order, law and justice, but does not further develop this concept. However, it necessarily includes principles such as the separation of powers and the priority of the law (“Vorrang des Gesetzes” – no action against the law) as well as the reservation of the law (“Vorbehalt des Gesetzes” – necessity of a legal base).

Another principle that follows from a comprehensive reading of article 20 (3) and the basic law’s structure in general, is the principle of proportionality. More than any other rule of law principle, it shows that there is an additional material layer to the concept. The principle of proportionality is first and foremost designed to safeguard fundamental rights and, therefore, to protect material justice in any decision made by state authorities. It complements the more formal (often procedural) safeguards by adding a material layer. Even though the various principles have developed differently, they nowadays together form the ‘Rechtsstaat’. What connects them is the overall objective to protect the citizens’ fundamental rights against a state that might want to deprive them of these rights.

United Kingdom

The Magna Carta 1215 was a crucial document in shaping the development of the rule of law. The Charter was drawn up between King John and a group of English Barons. It was “a clear rejection of unbridled, unaccountable royal power,” and it held that “even the supreme power in the state must be subject to certain overriding rules.”

Other defining British milestones included the writ of Habeas corpus, which protected against unlawful and arbitrary imprisonment, and the Bill of Rights 1689, which reduced the power of the monarchy by emphasising that it could no longer rely on its divine authority to override the law, and instead was subject to the authority and independence of Parliament.

Compared to German tradition, the UK developed a more procedural and less material understanding of the rule of law. There is considerable focus on the accessibility of the law, fair trial guarantees and the independence of the judiciary. This is reflected in Tom Bingham’s book “The Rule of Law”, a most notable British authority on this subject. In his book, Bingham outlines eight principles which, in his view, enshrine the legal concept. These include “equality before the law”, “law not discretion,” and “respect for human rights.”

British tradition places particular emphasis on the sovereignty of Parliament. This concept holds that only Parliament has the right to “make or unmake any law whatever,” and “no person or body” has the right to “override or set aside the legislation of Parliament.”[18] Thus, in contrast to some other Western liberal democracies, British courts have no power to invalidate or strike down legislation.

Nevertheless the 20th century saw some important challenges to the traditional conception of Parliamentary Sovereignty. This included Britain’s accession to the European Union through the European Communities Act 1972, which provides that EU law should prevail over conflicting domestic legislation.[19] Indeed, this was a key argument used by the ‘Leave’ campaign for Brexit.[20] Moreover, the Human Rights Act 1998, which implements the European Convention on Human Rights into the UK domestic legal order, increased the power of the judiciary by enabling them to issue “declarations of incompatibility” regarding pieces of legislation found to be in violation of the Convention, although the validity of such legislation remains unaffected.[21]

Recently, a more vocal judiciary has begun to question Parliament’s supreme power, and have asserted that, should Parliament legislate in a manner that violates the rule of law, the courts should not necessarily have to uphold Parliament’s authority.[22] The question as to the hierarchy between the rule of law and parliamentary sovereignty as two fundamental principles remains unanswered and some authors have expressed their concern that if this conflict is not resolved, it could generate a constitutional crisis.[23] An interesting case in this regard is R (Evans) v Attorney General regarding the disclosure of the so-called “black spider letters” written by Prince Charles.[24] Despite relatively clear legislative provisions attesting a contrary intention, a majority of the UK Supreme Court did not accept that a final decision of a court can be set aside by a member of the executive because such an outcome would flout fundamental principles of the rule of law.

Belarus

Within Belarus’s own history, one can find early developments related to the concept of the rule of law.

It can be argued that this development started as early as 1499, when Minsk received its town privileges under the so-called “Magdeburg Law”. This was a set of legal rules that were, to a large part, based on old Germanic law. A characteristic for Magdeburg law is that it already dealt with early questions on the separation of powers.[25]

Another example for early developments is the Statute of the Grand Duchy of Lithuania of 1529, which applied to most of the territory which today forms Belarus. It had been commissioned on the orders of the Grand Duke. The document consisted of 282 articles and 13 chapters, and later was revised in two further editions (in 1566 and 1588 respectively). Its original version was handwritten in the ruski language of White Ruthenia.

Many academics have recognised the importance of the Statute arguing that it “formed the juridical foundation of the nation” and that it was the “first through and genuine code of laws in Europe”[26] since Justinian times. It has been characterised as “a democratic constitution which was an advanced statement for rights and tolerance which had known and, as yet, other unrealised influences on many.”[27] The Statute reflects certain rule of law principles. For example, chapter 1, section 9, declares that “everyone in the Grand Principality of Lithuania” - which means “poor and rich alike, whatever their condition or position” - must be tried by one law.”[28] Section 7 of the same chapter promises that no one will be punished unless their guilt has been determined by the court.[29]

Following the demise of the short-lived Byelorussian National Republic of 1918, Belarus was part of the Union of Socialist Soviet Republics. According to the prevailing view in the USSR, the rule of law was seen as “an unscientific concept” that was used by the bourgeoisie “in its class interests” in order to “inculcate harmful illusions to the masses, to mask the imperialist essence of the contemporary bourgeois state and its law.”[30] Perhaps the earliest signs of Russian embracement of the rule of the law was under Michael Gorbachev who advocated legal reform to more fully protect the rights of citizens, albeit without compromising the socialist aspects of the Soviet state.[31]

Five years after the dissolution of the USSR, the Russian Federation acceded to the Council of Europe, therefore firmly committing itself to respecting the principles of the rule of law. It is hoped that also Belarus will eventually join the Organisation, which will thus comprise all countries on the European continent.

Upholding the rule of law throughout Europe is a momentous challenge. Currently both the Council of Europe and the European Union are engaged in devising procedures to assist their member states in this task.

I would like to present the Council’s contribution and to discuss how the rule of law concept can be made operational for the purposes of monitoring state conduct.

The Council of Europe’s contribution to the rule of law

The Council of Europe was founded upon the rule of law as one of its three core principles. This transpires from the preamble of the Council’s Statute and the requirements for membership as enshrined within article 3 where “every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council.”[32]

Respect for the rule of law is a precondition for membership in the Organisation. If a member state were to consistently fail to uphold this principle, it may trigger the application of article 8 of the Statute of the Council of Europe which provides not only for the suspension of a member’s right to representation, but also its eventual expulsion if the systematic violations continue to persist. The relevant Committee of Minister’s decisions require a mere two-thirds majority (as defined in article 20 (d) of the Statute).

The Venice Commission

The “European Commission for Democracy through Law”, otherwise known as the Venice Commission is an independent consultative body established through an enlarged agreement within the Council. The Commission has 62 members reaching out far beyond the 47 Council of Europe member states. The Commission has in the past been publicly referred to as the “custodian of constitutional probity all over Europe.”[33]

For almost thirty years, the Venice Commission has extensively dealt with rule of law related issues in various member states. As one of its primary objectives, the Commission promotes the rule of law as a basic feature of the European constitutional order through recommendations and opinions on draft constitutions and legislation. The Venice Commission can be seized by the Committee of Ministers, the Parliamentary Assembly, the Congress of Local and Regional Authorities of Europe, the Secretary General or by a participating State, international organisation or body to provide an opinion. [34] It may also carry out research on its own accord; prepare studies and draft guidelines, laws and international agreements.[35] Its flexible and ad-hoc character allows the Venice Commission to react swiftly to threats posed to the rule of law.

In 2011, the Venice Commission published a “Report on the Rule of Law” in which it sought to identify a consensual definition of the rule of law in order to assist “international organisations and both domestic and international courts in interpreting and applying this fundamental value.” [36] This was followed by the adoption, in March 2016, of a ‘Rule of Law Checklist’, a practical and user-friendly instrument intended to be used by a broad range of actors, including national authorities, international and non-governmental organisations, academics and ordinary citizens.

The Checklist is neither exhaustive nor final. Rather, it aims to cover a series of core elements of the rule of law whilst taking into account the diversity of Europe’s legal systems and traditions.[37] The Checklist translates five principles of the rule of law (legality; legal certainty; prevention of abuse of power; equality before the law and non-discrimination; and access to justice) into concrete questions with the intention of applying these to evaluate and assess the country-specific circumstances of its members. It also offers concrete examples of particular challenges with which the rule of law is, at times confronted with, such as corruption and conflict of interest[38] or the collection of data and surveillance.[39]

With the adoption of the ‘Rule of Law Checklist’ in March 2016, the Venice Commission established “one of the few widely accepted conceptual frameworks for the Rule of Law in Europe.”[40] The Checklist has been formally endorsed by the Committee of Ministers, the Congress of Local and Regional Authorities and the Parliamentary Assembly of the Council of Europe.[41]

European Court of Human Rights

In some of its key provisions the ECHR reflects a procedural understanding of human rights, for example in the fair trail guarantees of article 6 or in article 5, the right to liberty and security, which includes a modern version of the writ of habeas corpus. This is not surprising taking into account the important influence that British lawyers played in the drafting of the Convention.

According to the European Convention on Human Rights, the rule of law forms part of “the common heritage”[42] of its members. It is a principle inherent to the very soul of the Convention. An extensive body of jurisprudence provides guidance on the principle’s substantive meaning, as applied and interpreted by the Court in relation to rule of law associated provisions such as article 6, 7 and 13 of the Convention.

The Court used the concept of “prééminence du droit” or “rule of law” for the first time in Golder v. United Kingdom in February 1975,[43] basing its interpretation of article 6 (1) of the Convention (right to a fair trial) on the reference to the “rule of law” in the Convention’s Preamble. It emphasised that this principle should not be seen as merely a “more or less rhetorical reference”[44], devoid of relevance for those interpreting the Convention. One of the reasons for why the signatory Governments decided to “take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration” [45] was their profound belief in the rule of law. Since then, the rule of law has become a guiding principle for the Court which “inspires the whole Convention”[46] by being “inherent in all the articles of the Convention.”[47] In this context, the Court has offered further clarifications on a number of key themes which underpin the rule of law, including: i). the separation of powers, ii). the role of the judiciary, iii). impunity, iv). a tribunal established by law, v). sufficiently accessible and foreseeable law.

The Court has emphasised that democracy is inseparably linked to the rule of law, the concept implying the existence of a separation of powers, institutional guarantees for an independent and impartial judiciary, as well as the existence of judicial oversight of the executive.[48] Already in 2002, the Court itself noted that “the notion of separation of powers between the executive and the judiciary has assumed growing importance in the case-law of the Court.”[49]

This principle is also of relevance with regards to the appointment and selection procedure of judges. While the executive and legislative branches may be involved in the appointment, the procedure must be free from undue pressure and interference.[50] More recently, the Court in Guðmundur Andri Ástráðsson addressed at length the principles of separation of powers, judicial independence and impartiality, declaring that “the Court places emphasis on the importance in a democratic society governed by the rule of law of securing the compliance with the applicable rules of national law in the light of the principle of the separation of powers.”[51]

The ECtHR thus has, and continues to hold, a crucial function in safeguarding the rule of law by fleshing out many of its principles through case-law.

Other Council of Europe bodies and mechanisms

Apart from the Council of Europe’s statutory organs and the Venice Commission, there are various other technical bodies dealing with, in one way or another Rule of Law related issues. In particular, one must mention the Commission for the Efficiency of Justice (CEPEJ), the Consultative Council of European Judges (CCJE), the Consultative Council of European Prosecutors (CCPE) as well as the Group of States against Corruption (GRECO).

The CEPEJ was established to improve the efficiency and functionality of justice in the member States. Through its work, the CEPEJ strengthens the mutual confidence between judicial professionals and promotes the public service of justice. Furthermore, the CEPEJ’s evaluation of judicial systems, through the analysis and collection of quantitative and qualitative data offers a reference point for the execution of judicial reforms across Europe.

The work undertaken by the CCJE and CCPE incorporates the perspectives of serving judges and prosecutors throughout Europe. In 2016, the two bureaus drew a comprehensive review of the challenges for judicial independence and impartiality, in which they jointly recognised the public perception of corruption within the justice system to be one of the most serious challenges for the maintenance of public trust and confidence in the independence and impartiality of judges and prosecutors.[52]

The GRECO, in which Belarus participates as a full member, consistently emphasises the close link between the rule of law and the fight against corruption. Corruption leads to arbitrariness and abuse of powers; it undermines the very foundations of the rule of law. More recently, the GRECO adopted a series of critical assessments of the rule of law situation in Poland and Romania.

As regards Romania, the GRECO’s recommendations focused on proposed amendments to judicial laws as well as the criminal and criminal procedure codes.

The relevant opinions and recommendations by GRECO and the Venice Commission^[53] recall in this context core concepts of the rule of law such as

• the legislative process should be inclusive and transparent involving effective consultations of all stakeholders and meaningful discussions (which are impossible if the process is excessively fast and non-transparent);

• emergency ordinances and expedited procedures should be the exception, not the rule;

• the principles of legal clarity and certainty and in particular the principle of res judicata must be respected;

• not only judges, also the prosecution service and individual prosecutors should enjoy some independence from interference by the government;

• judges and prosecutors are entitled to freedom of expression; a reasonable balance needs to be struck between the degree to which judges may be involved in society and the need for them to be and to be seen as independent and impartial in the discharge of the duties;

• judges and prosecutors must not be prevented from engaging in debates about the adequate functioning of the justice system; fear of sanctions may have a chilling effect which is detrimental to society as a whole;

• effectively preventing and sanctioning corruption-related acts are vital anticorruption measures and obligations under Council of Europe conventions.

While our experts acknowledged the need to reform the judiciary and prosecution services, adapting it where necessary to new challenges and realities, such important reforms should not be rushed through Parliament, they should be based on an inclusive process. Both the Venice Commission and GRECO emphasised that some of the foreseen measures seen alone, but especially in view of their cumulative effects, were likely to undermine the independence of judges and prosecutors, public confidence in the judiciary, the effectiveness of criminal justice as well as the country’s fight against corruption.

In a state governed by the rule of law, it is important to play by the rules, not with the rules.

Concluding remarks: Dynamics and limits of the rule of law concept

In my introduction, I recalled that the rule of law is a set of principles describing ideals that every society must freely choose to adopt and adapt to their precise juridical, historical, political and social contexts.

We must be careful not to oppose democracy and the rule of law. In some countries it has become fashionable to portray rule of law principles as tools used by the ‘ancien régime’ in order to prevent democratically elected governments from implementing policies that are supported by a majority of the people.

Democratic legitimacy does not come about by the laws of nature. Democracy presupposes a set of legally binding norms that are indispensable for a free and informed political discourse and for the free expression of the will of the people through elections.

The rule of law is not merely complementary to majoritarian democracy, it is a precondition for its formation and articulation. A minimum of ‘Rechtsstaatlichkeit’ is a fertile ground on which the self-healing powers of democracy can flourish. Precisely because the rule of law limits the state powers and their exercise, its citizens are able to freely exercise their rights of democratic participation.[54]

As the example of the Venice Commission’s ‘Rule of Law Checklist’ shows, it is perfectly possible to identify certain core principles which are commonly accepted all over Europe. It is also feasible to use such principles to assess state conduct. Such an assessment is not meant to just ‘rate’ countries on the basis of their performance. Instead, it is an important indicator of whether a country fares well economically. In 2012 the United Nations General Assembly held that “the advancement of the rule of law at the national and international levels is essential for sustained and inclusive economic growth, sustainable development, the eradication of poverty and hunger and the full realization of all human rights and fundamental freedoms, including the right to development, all of which in turn reinforce the rule of law.[55]

A certain measure of caution is however warranted. Legal discourse at European level rarely reaches the same breadth and depth as at national level which, as Dieter Grimm pertinently observed, takes place in a much closer context of participation and responsibility.[56] In a certain sense international experts or judges enjoy a greater level of freedom than their national counterparts. This is why respect for national identities is acknowledged, for example in the European Court of Human Rights’s recourse to the margin of appreciation doctrine and the principle of subsidiarity in the field of human rights.

Maybe even more than human rights standards, rule of law principles are context-specific. They are always applied within a specific national context. A good example is the ‘measuring’ of the ‘fairness’ of a procedure or system, a task which can only be accomplished with reference to a particular legal system and through the weighing of different factors which feed into this complex assessment. Another example is selection procedure for judges. Whilst the election of judges by citizens is a well-established practice in Switzerland,[57] the same approach would be unimaginable in a country with a relatively recent history of interethnic war like Bosnia and Herzegovina.

The diversity of Europe’s legal systems and cultures must however not be used as a pretext to justify violations of core principles. But it is equally true that rule of law standards cannot be harmonised in the same way as air or road traffic security standards.

All these considerations are not merely theoretical. They are highly relevant for the setting up, by the Committee of Ministers and the Parliamentary Assembly, of a new joint procedure of reaction to serious violations of the Council of Europe’s fundamental principles and values including the rule of law.

ECHR case law or the Venice Commission’s ‘Rule of Law Checklist’ will provide important parameters for such an exercise. Instead of focusing on very precise and isolated examples of alleged violations through certain pieces of legislation, it will be necessary to look at the overall picture in order to make a comprehensive assessment. In a similar fashion, rather than to measure the absolute status (‘snapshot approach’), it may be more relevant to understand the direction in which a country is moving (‘trend assessment’).

It must also be taken into account that action to be taken ultimately by the Committee of Ministers will require the existence of a “serious violation” of “the principles of the rule of law” within the meaning of article 3 of the Statute of the Council of Europe.

To envisage exclusion from the Organisation, we shall have to be confronted with systemic or structural deficiencies of a certain magnitude, a series of actions and measures which in their entirety reach a critical threshold. Finding such deficiencies in any member state will be a delicate exercise which requires a credible and fair procedure whose results should be indisputable.

The comments recently made by Armin von Bogdandy within the EU context seem perfectly relevant for the Council of Europe as well:

“To many people European institutions appear distant and foreign. If they urge or even try to force democratically elected governments to revise important political projects, invoking European values, they run the risk of being rejected as self-important, arbitrary and illegitimate actors. The same holds when other Member States insist on values.

Just thumping on the lawfulness of such actions is hardly an appropriate response to accusations of moving towards a tyranny of values. ‘Being right’ is not sufficient. Rather, in order to credibly defend European values, one must make use of fair procedures to convincingly show a broad European public what the values require, why they have been violated and what needs to be done.” ^[58]