Rule of LawRule of Law It demands equality and accountability for all individuals under clear and predictable justice. This principle applies to both people and the State, emphasizing the need for transparency and openness in decision-making. The European Commission has the role of ensuring respect for the rule of law, as well as upholding EU values and principles. This fundamental value forms the basis of the European Union's foundation, requiring all, including government officials, to be subject to the law, under the control of independent and impartial courts.
Council of EuropeEurope Once the word came to be peculiarly associated with the transalpine formations of Latin Christianity, it became a cultural term as well as a geographic one. The word “European” merged with the word “Western” and there was a supposed “Western civilization” occupying the Atlantic region, colonizing the two continents and making contact with the Pacific. EU is a “union of states which lies between confederation and federation. Read more.
Venice Commission
Of the three pillars of the Council of Europe, the Rule of Law has long been the least visible. DemocracyDemocracy It is commonly understood as being a political system of majority rule. The evolution of democratic tradition can be traced back to the Magna Carta (1215) and through the long struggle for Parliamentary supremacy which culminated in the English Bill of Rights of 1689, the emergence of representative political institutions in the colonial era, the development of responsible government in the 19th century. In institutional terms, democracy means that each of the provincial legislatures and the federal Parliament is elected by popular vote. These legislatures, are "at the core of the system of representative government". It is a 'power' word. Power rests with the ordinary Citizens. Only educated people understand power. A corrupt or controlled court system can cover failure of it. The religious concept is incompatible with it. Promise to spend more from the public treasury moves to Dictatorship. and respect for Human RightsHuman Rights Legal and moral status of a human being against his competitors. American Convention on Human Rights Convention against Torture European Convention for the Protection of Human Rights and Fundamental Freedoms International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights UN Convention on the Rights of the Child UN declaration on sexual orientation and gender identity United States Bill of Rights Universal Declaration of Human Rights have long enjoyed much more attention. In the 21st century, however, the autonomy of the Rule of Law and its importance have become evident.
The Venice Commission first addressed the issue of the Rule of Law in a report adopted in 2011.
After examining the historical origins of the concepts of Rule of Law, Rechtsstaat and Etat de droit, the report looked at these concepts in positive law. In international lawInternational law International law imposes legal responsibilities of States in their conduct with each other, and their treatment of individuals within State boundaries. It includes International trade, human rights, disarmament, international crime, refugees, migration, problems of nationality, the treatment of prisoners, use of force, and conduct of war, among others. Bentham in his Principles of International Law (1786–1789) envisaged that an international code, which should be based on a detailed application of his principle of utility to the relations between nations, would not fail to provide a scheme for an everlasting peace. Read: United Nations Charter, they appear in a number of treatiesTreaties Treaties are binding agreements between nations and become part of international law. Treaties to which the United States is a party also have the force of federal legislation, forming part of what the Constitution calls ''the supreme Law of the Land.'' U.S. presidents have frequently entered the United States into international agreements without the advice and consent of the Senate. These are called "executive agreements." Though not brought before the Senate for approval, executive agreements are still binding on the parties under international law. Bilateral treaty: An international agreement concluded between two states. Vienna Convention on the Law of Treaties ( 23 May 1969) but also in soft law; in national law, they appear as a main feature of the state in the constitutions of Germany as well as of a number of former socialist countries of Central and Eastern Europe. The notion of the Rule of Law is however often difficult to apprehend in former socialist countries, which were influenced by the notion of socialist legality.
While drafting the report, the Venice Commission reflected of the definition of the Rule of Law and reached the conclusion that the Rule of Law was indefinable… Rather than searching for a theoretical definition, it therefore took an operational approach and concentrated on identifying the core elements of the Rule of Law. It therefore identified common features of the Rule of Law, Rechtsstaat and Etat de droit (see below).
The Commission then decided to draft an operational tool for assessing the level of Rule of Law compliance in any given state, and this led to the elaboration of the Rule of Law Checklist, based on the five core elements of the Rule of Law, sub-itemised into detailed questions.
These core elements are:
Legal certainty:
Legal certainty involves the accessibility of the law. The law must be certain, foreseeable and easy to understand. Basic principles such as nullum crimen sine lege/nulla poena sine lege, or the non-retroactivity of the criminal law are bulwarks of the legal certainty.
Prevention of abuse/misuse of powers:
Preventing the abuses of powers means having in the legal system safeguards against arbitrariness; providing that the discretionary power of the officials is not unlimited, and it is regulated by law.
Equality before the law and non-discrimination:
Equality before the law is probably the principle that most embodies the concept of Rule of Law. It is paramount that the law guarantees the absence of any discrimination on grounds such as race, colour, sex, language, religionReligion ‘The word ‘Religion’ -Re Legion- A group or Collection or a brigade, is a social-cultural construction and Substantially doesn’t exist. Catholic religion is different from Protestant religion. It is not Dharma., political opinionOpinion A judge's written explanation of a decision of the court. In an appeal, multiple opinions may be written. The court’s ruling comes from a majority of judges and forms the majority opinion. A dissenting opinion disagrees with the majority because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the end result of the court but offers further comment possibly because they disagree with how the court reached its conclusion., national or social origin, birth etc. Similar situations must be treated equally and different situations differently. Positive measures could be allowed as long as they are proportionate and necessary.
Access to justice:
Access to justice implicates the presence of an independent and impartial judiciaryJudiciary The modern justice system has its roots in Henry II's reign, where the assize system and common law were established. Professional judges and magistrates started to emerge in the 13th century, gradually increasing their independence. However, they faced challenges, including political involvement and potential influence by the sovereign. Changes to the judiciary system, such as the establishment of the Court of Chancery in 1830 and the Judicature Act in 1873, merged common law and equity, leading to the creation of the High Court, Court of Appeal, and Crown Court. Despite this evolution, the judiciary's full independence was not officially recognized until the Constitutional Reform Act in 2005. and the right to have a fair trial. The independence and the impartiality of the judiciary are central to the public perception of the justice and thus to the achievement of the classical formula: “justice must not only be done, it must also be seen to be done”.
The Rule of Law Checklist addresses also specific, topical challenges to the Rule of Law: corruption and conflict of interest, collection of data and surveillance.
The Checklist is intended as a comprehensive tool to assess the degree of respect for the Rule of Law in a given State. It may be used by a variety of stakeholders: state authorities, international organisations, non-governmental organisations, scholars and citizens in general. However, the first addressees of the Rule of Law Checklist are the States themselves. Compliance with the Rule of Law is a complex process; the Rule of Law is achieved through successive steps, and never fully. Assessing the level of compliance with the Rule of Law in a given State requires insider knowledge and understanding of the system: no one would therefore be better placed to do so than the State itself. Assessments by the civil society may offer of course a precious complementary vision of the situation. International organisations – including the Venice Commission – may then have a role in suggesting ways to improve the situation. A global appraisal should indeed involve all these angles of analysis and by no means should the Checklist be applied mechanically.
The Rule of Law is linked not only to the protection and the promotion of Human Rights, but also to Democracy. The participation of the citizens in the strengthening of the Rule of Law is thus paramount. That is what the Venice Commission calls an “enabling environment”. The Rule of Law can only flourish in an environment where people feel collectively responsible for the implementation of the concept.