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.
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.[2] 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 31 March to 1 April 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.
This section needs to be updated. Please help update this article to reflect recent events or newly available information. (December 2021)
The members are "senior academics, particularly in the fields of constitutional or international law, supreme or constitutional court judges or members of national parliaments".[5][6] 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:[7]
Kaarlo Tuori (Professor of Jurisprudence at the University of Helsinki),
Pieter van Dijk (State Councillor, Chair of the Constitutional Law Committee, and former Judge of the European Court of Human Rights),
Jan Velaers [nl] (Professor at University of Antwerp)
Juan José Romero Guzmán (Former President, Constitutional Court of Chile, Professor at Pontificia Universidad Católica de Chile)
Leadership
Antonio Mario La Pergola was the first President of the Venice Commission. Jan Erik Helgesen,[10] a professor at the University of Oslo, was president of the Commission for several years, through to 2009, later becoming 1st Vice-President. From December 2009 to December 2021, Gianni Buquicchio held the presidency.[11] Claire Bazy-Malaurie has been president since December 2021.[1]
Simona Granata-Menghini is the current Director, Secretary of the Commission. The Secretary heads the Commission's secretariat at the Council of Europe's headquarters in Strasbourg.[citation needed]
The Commission’s prime function is to provide constitutional assistance to member states. This assistance mainly comes in the form of Opinions. These Opinions relate to draft constitutions or constitutional amendments, or to other draft or legislation in force. The Venice Commission Opinions on specific countries cover a wide range of topics: the system of checks and balances, and the relations amongst different branches of power, the territorial organisation of the States, principles of the rule of law, fundamental rights and freedoms, organisation of the bodies of the constitutional justice, the governance of the judiciary and of the prosecution service, status and powers of ombudspersons, reforms of the electoral system, regulations on the political parties and referendums, etc. At the request of a constitutional court or the European Court of Human Rights, the Commission may also provide amicus curiae briefs on comparative constitutional and international law issues related to a case under consideration.
Requests for opinions come from the participating states and the statutory 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.[citation needed]
The areas of the Commission's activities are as follows:[citation needed]
Democratic institutions and fundamental rights
The aim of the assistance given by the Venice Commission is to provide a complete, precise, and objective analysis of the compatibility of laws and constitutional provisions with European and international standards, but also of the practicality and viability of the solutions envisaged by the states concerned.
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.
Conflict resolution by providing legal advice
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, North 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:
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 a unique tripartite body 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 order to promote the European common values in the field of elections – 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
Legal advice to the PACE election observation missions
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)
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
While most of the work of the Commission is country specific, the Commission also prepares, through its own initiative and at request of statutory 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 and reports
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.
EU integration
In June 2022, the European Union asked the candidate countries of Ukraine[12] and Moldova,[13] and the applicant country of Georgia[14] to implement various reforms suggested by the Venice Commission in order to proceed with EU integration.
Positions taken
Blasphemy
In 2009, the Venice Commission attracted rare news coverage for its opinion that "blasphemy should not be illegal".[15]
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,[16] also when dealing with issues of boundary delimitation.[17]
Opinions on Poland
In 2016-2017, when the Polish government attempted to reshape and control the judiciary of Poland, the Venice Commission published several opinions criticising those reforms. The opinions prompted the European Union to invoke Article 7 of its founding treaty threatening Poland with losing its voting rights in the EU institutions.[18][19]
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.[20] 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,[21] recommending various improvements and clarifications.[22]
^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. Archived from the original on 2016-03-24. Retrieved 2016-04-13.
Bartole, Sergio (2020). The Internationalisation of Constitutional Law: A View from the Venice Commission. Bloomsbury Publishing. ISBN978-1-5099-4149-0.
Lauri Bode-Kirchhoff: Why the Road from Luxembourg to Strasbourg leads through Venice: the Venice Commission as a link between the EU and the ECtHR, in: Kanstantsin Dzehtsiarou et al. (eds.): Human Rights Law in Europe. The Influence, Overlaps and Contradictions of the EU and the ECHR, Routledge 2014, p. 55-72, ISBN978-0-415-82599-3
Malinverni, Giorgio (2002). "The Contribution of the European Commission for Democracy Through Law (Venice Commission)". The Prevention of Human Rights Violations. pp. 123–137. ISBN978-90-04-48080-3.
Nergelius, Joakim (2015). "The Role of the Venice Commission in Maintaining the Rule of Law in Hungary and in Romania". Constitutional Crisis in the European Constitutional Area. Nomos Verlagsgesellschaft mbH & Co. KG. pp. 304–321. ISBN978-3-8487-1996-9.
Turkut, Emre (2021). "The Venice Commission and Rule of Law Backsliding in Turkey, Poland and Hungary". European Convention on Human Rights Law Review. 2 (2): 209–240. doi:10.1163/26663236-bja10028. ISSN2666-3228. S2CID239668252.
