THE VENICE COMMISSION AND THE RULE OF LAW CRISIS

By Richard Clayton QC

The Venice Commission is an advisory body of the Council of Europe, comprising independent experts in the field of constitutional law. Its rationale reflects the aims of the Council of Europe itself- to protect human rights, pluralist democracy and the rule of law; to strengthen the understanding of the legal systems of the participating states, notably with a view to bringing these systems closer; to promote the rule of law and democracy and to examine the problems raised by the working of democratic institutions and their reinforcement and development. The Commission was established in 1990 after the fall of the Berlin wall, when constitutional advice to the new democracies of central and eastern Europe was urgently required.  Its original purpose reflected a view that the new democracies would be assisted by a more systematic approach to establishing constitutional norms than relying on the principles which emerge in a haphazard way through individual applications to the European Court of Human Rights (ECtHR).

For its first 15 years the Commission flourished in an expansive and benevolent environment which promoted human rights. Its membership rapidly expanded and the Commission extended to North Africa and South America.  The first UK member to the Commission, Professor Sir Jeffrey Jowell QC, described the Commission’s work in 2001 as being to help us all not only to fashion our democracy to the conditions of our particular climate, but to discover those necessary features of a properly democratic state- wherever it may be situated.

More recently, the Commission has needed to address some difficult rule of law issues in countries like Russia,  Azerbaijan, Poland and Hungary. It is, however, important to keep a sense of perspective about the scale of this development.  Most of the Commission’s work carries on- much as it always has done.  Nevertheless, the Commission’s role in Poland and Hungary provides some illuminating insights into contemporary international human rights concerns.

In 2015 the Russian Constitutional Court No 21-P/2015 decided that a judgment of the ECtHR was not enforceable in Russian territory if the Constitutional Court finds that it conflicts with the Russian constitution. In 2015 the Government enacted legislation to empower the Constitutional Court to determine whether findings by international bodies on protection of human rights and freedoms (including the ECtHR) are to be implemented or not.  In 2016 the Russian Constitutional Court  No. 12- П/2016 considered the question of executing the ECtHR judgment in the prison vote case, Anchugov and Gladkov v Russia, in accordance with the Russian Constitution and decided to do so was effectively impossible.  In an interim opinion the Commission expressed serious concerns as regards the compatibility of the 2015 amendments with the obligations of the Russian Federation under international law, notably Article 46 of the European Convention on Human Rights.  The Commission published an interim opinion CDL-AD(2016)005 and a final opinion CDL-AD(2016)016-e and concluded that the Constitutional Court should not be tasked with the identification of the manners of execution of an international judgment.

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