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The Council of Europe’s Role in promoting and strengthening the rule of law

Warsaw , 

*English only

Conference ‘Protecting European Union Values: Breaches of Article 2 TEU and their Consequences’

Statement by
Mr Jörg POLAKIEWICZ[1]

 

Szanowni Państwo,

 

  • Na wstępie chciałem podziękować organizatorom za zaproszenie. Jest to dla mnie wielki zaszczyt i przyjemność reprezentować Radę Europy na tej niezwykle ważnej i aktualnej konferencji.  

     

  • Panie i Panowie,

     

  • Teraz po angielsku

     

  • The Council of Europe is founded on the rule of law as one of its three core principles. This transpires from the preamble of the Council of Europe’s Statute and the requirements for membership in its article 3.

     

  • In fact, we share not only our flag and anthem, but also our values with the European Union.

     

  • Respecting the rule of law is a precondition for membership in the Organisation. If a member state seriously violates the respect of the rule of law, article 8 of the Statute it may be suspended from its rights of representation and eventually, expelled. The relevant decisions by the Committee of Ministers require merely a two-thirds majority (as defined in article 20 (d) of the Statute).

     

  • According to the European Convention on Human Rights, the rule of law is part of “the common heritage” of European countries. It is a principle inherent in the whole Convention. Extensive ECHR case law provides guidance on the content of the principle, as it has been interpreted and applied under rule of law-related provisions such as the articles 6, 7, and 13 of the Convention.

     

  • The Committee of Ministers’ supervision of the execution of ECHR judgments constitutes an invaluable source of information on efforts made by member states to remedy both individual and systemic ECHR violations including those related to rule of law principles.

     

  • In my intervention, I would like to present various Council of Europe initiatives designed to strengthen the rule of law before examining our cooperation with the European Union in this field, given that breaches of article 2 TEU are the main topic of this conference.

     

    The Venice Commission and its Rule of Law Checklist

     

  • The Venice Commission is an independent consultative body established by an enlarged agreement within the Council of Europe. It has 61 member states, including the USA, Israel, and Brazil. It is a “custodian of constitutional probity all over Europe” (Financial Times).

     

  • The Commission promotes the rule of law as a basic feature of European constitutionalism.

     

  • The Commission can be seized for an opinion on constitutions or legislations by the Committee of Ministers, the Parliamentary Assembly, and the Secretary General or by a participating state, international organisation or body to provide an opinion.

     

  • Its flexible and ad-hoc character permits the Venice Commission to react swiftly to threats to the rule of law, and ensures its relevance in the midst of an unfolding crisis, as the recent examples of Hungary, Poland, and Romania demonstrate.

     

  • In 2007, the Parliamentary Assembly called upon the Venice Commission to assist in further reflections on the rule of law. In 2011, after thorough deliberations, the Venice Commission published a ‘Report on Rule of Law’ in which it noted a consensus on a series of formal and substantial core elements.

     

  • In its plenary session 11-12 March 2016, the Venice Commission adopted its ‘Rule of Law Checklist’, a deliberately practical tool which can be used by everybody – national authorities, international organisations, non-governmental organisations, academics, and ordinary citizens.

     

  • The checklist should be seen as neither exhaustive nor final, but aims to cover a series of core elements of the rule of law which takes the diversity of European legal systems into account.

     

  • It translates five principles (legality; legal certainty; prevention of abuse of power; equality before the law and non-discrimination; and access to justice) into concrete questions which are intended to be used to evaluate country-specific situations.

     

  • The Checklist has been formally endorsed by the Committee of Ministers in September 2016 and is expected to be endorsed by the Parliamentary Assembly at its next part-time session in October 2017.

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  • At this point, allow me to provide a personal reflection. 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 freely choose to adopt, and adapt to the national context; their effective realisation in real life depends upon the work of dedicated women and men.

     

  • We must take the existing diversity of European legal systems into account. To give just two examples:
  • Measuring the ‘fairness’ of a procedure or a system can only be done within a particular context; it requires the making of highly complex judgments.
  • Election of judges by citizens is a well-established practice in Switzerland, unimaginable in a country with a relatively recent history of an interethnic war like Bosnia and Herzegovina.

     

  • By expanding the notion of the 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.

     

  • Such caution must of course not prevent us from identifying common core elements of the rule of law some of which, such as the independence of the judiciary, are also guaranteed by the ECHR and can be enforced through the European Court of Human Rights.

     

    Overview of other Council of Europe Rule of Law Related Activities

     

  • The ‘Reports on the state of democracy, human rights and the rule of law in Europe’ which the Secretary General has since 2014 annually presented at the Committee of Ministers’ ministerial sessions assess the democracy, human rights, and rule of law situation throughout Europe.

     

  • The 2017 report, entitled Populism – How strong are Europe’s checks and balances already takes the Venice Commission’s Rule of Law Checklist into account. Chapter 1 emphasises that ‘Efficient, impartial and independent judiciaries’ “are the cornerstone of any functioning system of democratic checks and balances. They are the means by which powerful interests are restrained, according to the laws of the land. They guarantee that all individuals, irrespective of their backgrounds, are treated equally before those laws.

     

  • As a follow-up to his second report which had identified the lack of judicial independence in many European countries as one of the biggest challenges to democratic society, the Committee of Ministers adopted in April 2016 a ‘Plan of Action on Strengthening Judicial Independence and Impartiality. The action plan will be implemented within a five year period (ending April 2021) with regular progress reviews.

     

  • Apart from the Council of Europe’s statutory organs and the Venice Commission, there are various technical bodies and activities dealing, in one way or another with rule of law issues. I would like to mention in particular
    • the Commission for the Efficiency of Justice (CEPEJ),
    • the Consultative Council of European Judges (CCJE), and
    • the Consultative Council of European Prosecutors (CCPE).

       

  • Through its work, the CEPEJ strengthens mutual confidence between judicial professionals and promotes the public service of justice. Data and analysis provided a key reference for reforming justice policies all over Europe. They help to understand the day-to-day functioning of courts and main trends in the evolution of judicial systems.

     

  • The CCJE and CCPE represent the point of view of serving judges and prosecutors from all over Europe. In 2016, they drew a comprehensive review of challenges to judicial independence and impartiality.

     

  • Let us not forget that the effective realisation of values such as democracy and the rule of law depend on the critical mass of institutional actors, women and men, enforcing them at national level with their own integrity. For this reason the Council of Europe’s cooperation activities, which assist member states in their efforts to adapt legislation, practice and institutions to European standards are so important.

     

    The Example of Poland

     

  • The Council of Europe has closely been following the events within Poland, starting with the crisis concerning the Constitutional Tribunal.

     

  • On 23 December 2015, the Minister of Foreign Affairs of Poland requested an opinion of the Venice Commission on various amendments to the Act on the Constitutional Tribunal.

     

  • In its opinion of 11 March 2016, the Venice Commission underlined the crucial role played by an effectively functioning constitutional court for a state governed by the rule of law. As regards to the amendments adopted on 22 December, the Commission concluded that the different measures included therein, especially in their combined effect, would slow down the work of the Constitutional Tribunal and render it ineffective. “Crippling the Tribunal’s effectiveness will undermine all three basic principles of the Council of Europe: democracy – because of an absence of a central part of checks and balances; human rights – because the access of individuals to the Constitutional Tribunal could be slowed down to a level resulting in the denial of justice; and the rule of law – because the Constitutional Tribunal, which is a central part of the Judiciary in Poland, would become ineffective. Making a constitutional court ineffective is inadmissible and this removes a crucial mechanism which ensures that potential conflicts with European and international norms and standards can be resolved at the national level without the need to have recourse to European or other subsidiary courts, which are overburdened and less close to the realities on the ground.

     

  • In 2017, exchanges between the Secretary General and Polish authorities focused on laws and draft laws on judicial reform, namely the draft law on the National Council of the Judiciary, the draft law on common courts, and the law merging the Ministry of Justice and the Prosecutor General’s Office (the Venice Commission will give its opinion on this matter later this year).

     

  • We provided the Polish authorities with the relevant Council of Europe standards. In April, the CCJE issued an opinion on the draft law on the National Council of Judiciary finding it in some aspects incompatible with European standards on judicial independence.

     

  • In May 2017, the Parliamentary Assembly’s Monitoring Committee issued an information note on ‘The functioning of democratic institutions in Poland’ voicing its concern over the “political and constitutional crisis”.

     

  • In a statement of 17 July 2017, the Human Rights Commissioner referred to the key principles of Recommendation CM/Rec(2010)12 on the independence, efficiency and responsibilities of judges such as
  • the executive and the legislature should avoid actions and discourse which may discredit the judiciary or undermine its independence;
  • councils for the judiciary should be independent bodies which safeguard judicial independence and promote its efficient functioning, with at least half of their members who are judges chosen by their peers.

     

  • On 18 July, the Secretary General addressed a letter to the Speaker of the Sejm (the lower house of the Polish Parliament) expressing concern about “[t]he pace at which and the procedure by which the new draft law [on the Supreme Court] was submitted.” He appealed to the Sejm “to uphold Council of Europe standards and not to proceed hastily with the examination and adoption of the draft law on the Supreme Court.

     

  • The Polish authorities value the open and sincere dialogue with the Council of Europe and in particular the Secretary General. They have underlined that Council of Europe standards are well known to Polish legislators. For example, when it comes to the National Council of the Judiciary, the Polish authorities emphasised that the majority of Council members will still be composed of judges (“not less than a half should be judges”). As the Venice Commission observed in its Rule of Law Checklist, “involving only judges carries the risk of raising a perception of self-interest, self-protection, cronyism both politicisation and corporatism must be avoided” (paragraph 82).

     

  • The Council of Europe continues to monitor developments in Poland. Needless to say, the Secretary General and the various other bodies stand ready to provide further assistance to the Polish authorities whenever they wish to do so.

     

    Cooperation with the European Union

     

  • The 2007 ‘Memorandum of Understanding between the Council of Europe and the European Union’ identifies the rule of law as a priority area of common interest and commits both institutions to cooperate in the development of a common European area based on law.

     

  • It was against this background that the EU Council conclusions on fundamental rights and the rule of law of June 2013 emphasised the importance to “make full use of existing mechanisms and cooperate with ... the Council of Europe, in view of its key role in relation to promotion and protection of human rights, democracy and the rule of law, in order to avoid overlaps.

     

  • We welcomed the European Commission’s Communication on a Rule of law mechanism which asserted that the EU Framework would be complementary to “all the existing mechanisms already in place at the level of the Council of Europe to protect the rule of law.” Indeed, any initiative to set up new mechanisms within the EU should take into account existing Council of Europe instruments and mechanisms, in particular the ‘Rule of Law Checklist’.

     

  • The Council of Europe and the European Union already cooperate closely and successfully through the Venice Commission, CEPEJ and in the field, notably through joint programmes. The global financial volume of projects implemented in 2016 amounted to € 145.9 million.  

     

  • Such cooperation is a necessity. Both institutions require, for their proper functioning that their member states share a common basis of values and principles.

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  • One might argue that the more there are instruments and institutions to protect and promote the rule of law the better. Such a view ignores the risk that the multiplication of standards and actors may lead to inconsistencies and forum-shopping, which cannot be in the interest of citizens or their governments.

     

  • Cooperation between the European Commission and the CEPEJ is a good example of how to avoid such an unnecessary overlap. The EU justice scoreboard relies on information provided by the CEPEJ, thus avoiding duplication and confirming the CEPEJ’s status as a common reference point for justice evaluation.

     

  • The various actors should be aware of their respective roles and remit. For example, is it appropriate for the European Parliament to pronounce on the fairness of on-going judicial proceedings? In its resolution on Hungary of 17 May 2017, the EP held the trial against Ahmed H. to be “unfair”. At this moment, an appeal was pending which ultimately quashed the conviction and referred the case back to the trial court.

     

  • Legal certainty is a key feature of the rule of law, it is thus of paramount importance that European institutions use the same language and standards when they assess the situation in the member states. The fact that our mechanisms are not restricted to the 28 EU member states but cover practically the entire continent is not a weakness, but represents important benefits.

     

  • Existing cooperation could be further strengthened in several ways:
  • the EU could contribute to ensuring the implementation of the conclusions and recommendations of Council of Europe mechanisms in EU member states,
  • the EU could itself join certain mechanisms as a full member, such as GRECO or the Venice Commission,
  • thus allowing the Union to make full use of them when it comes to country-specific interventions, with a view to better safeguarding the rule of law within the EU, in particular on issues where EU action is restricted by a lack of competences.

     

  • But most important of all, the EU should finally put words into action and accede to the ECHR.

 

Concluding reflections

 

  • The Council of Europe is neither rich nor particularly powerful. In 2017, the Council of Europe’s budget totalled some € 260 million. If divided between every single European citizen, this would amount to around 25 cents, as much as a local telephones call. The Council of Europe is good value for money.

     

  • Why has the Council of Europe been so successful in terms of standard-setting and cooperation?

     

  • First and foremost, the Council is internationally recognised and well-regarded because of its expertise. It does not present the particular vision of certain governments, but draws on the expertise and experience of national experts from 47 member states. Somehow, paradoxically, its comparative weakness as a political actor provides legitimacy when it comes to formulating legal standards and recommendations. The Council of Europe is perceived as a more neutral political actor than for example, the European Union.

     

  • Our action privileges dialogue with the member states, seeking to address issues openly and constructively without creating divisions. Our main asset is the credibility and trust acquired through almost 70 years of successful cooperation.

     

  • At the same time, competence issues do not hamper the Council of Europe’s actions. The Council can deal with any legal issue except national defence and the ECHR applies without exceptions to all actions undertaken by member states.

     

  • In the introduction of his annual report on the state of human rights and democracy, our Secretary General raised the question of how resilient Europe’s democracies are when confronted with the new challenges brought about by mounting populism.

     

  • I am convinced of the resilience of the Polish democracy. Poland has one of the longest democratic traditions in Europe with a written constitution dating back to the 3 May 1791, considered to be Europe’s first codified constitution, and the modern world’s second. According to King Stanisław August Poniatowski, it was “founded principally on those of England and the United States of America, but avoiding the faults and errors of both, and adapted as much as possible to the local and particular circumstances of the country.

     

  • Whatever constitution a country chooses, checks and balances remain crucial for every democracy. The role of an independent judiciary can hardly be overestimated. Their work reinforces democracy and promotes the rule of law by guaranteeing free elections, clearing political space for the freedoms of association, expression and religion, combating discrimination, and clearing the channels for political change.

     

  • Thank you for your attention.

[1] Jörg Polakiewicz is Professor at the Europainstitut of the University of Saarbrücken and Director of Legal Advice and Public International Law (Legal Adviser), Council of Europe. This contribution was written in a strictly personal capacity and does not necessarily reflect the official position of the Council of Europe.

[2] UN General Assembly, 67th session, Agenda item 83, ‘High-Level Meeting on the Rule of Law at the National and International Levels’, UN Doc A/67/PV.3 at 2. 


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