Rule of Law Check List-Venice Commission (2016)

The Rule of Law can only flourish in a country whose inhabitants feel collectively responsible for the implementation of the concept, making it an integral part of their own legal, political and social culture.

Table of contents

I. Introduction 7

A. Purpose and scope 8
B. The Rule of Law in an enabling environment 14
II. Benchmarks 17

A. Legality 17

1. Supremacy of the law 17
2. Compliance with the law 18
3. Relationship between international law and domestic law 19
4. Law-making powers of the executive 20
5. Law-making procedures 21
6. Exceptions in emergency situations 22
7. Duty to implement the law 23
8. Private actors in charge of public tasks 24

B. Legal certainty 25

1. Accessibility of legislation 25
2. Accessibility of court decisions 25
3. Foreseeability of the laws 25
4. Stability and consistency of law 26
5. Legitimate expectations 26
6. Non-retroactivity 27
7. Nullum crimen sine lege and nulla poena sine lege principles 27
8. Res judicata 28

C. Prevention of abuse (misuse) of powers 29

D. Equality before the law and non-discrimination 30

1. Principle 30
2. Non-discrimination 30
3. Equality in law 31
4. Equality before the law 32

E. Access to justice 33

1. Independence and impartiality 33
a. Independence of the judiciary 33
b. Independence of individual judges 37
c. Impartiality of the judiciary 38
d. The prosecution service: autonomy and control 39
e. Independence and impartiality of the Bar 41
2. Fair trial 42
a. Access to courts 42
b. Presumption of innocence 44
c. Other aspects of the right to a fair trial 45
d. Effectiveness of judicial decisions 46
3. Constitutional justice (if applicable) 46

F. Examples of particular challenges to the Rule of Law 49

1. Corruption and conflict of interest 49
a. Preventive measures 49
b. Criminal law measures 50
c. Effective compliance with, and implementation of preventive
and repressive measures 51
2. Collection of data and surveillance 52
a. Collection and processing of personal data 52
b. Targeted surveillance 55
c. Strategic surveillance 55
d. Video surveillance 56
Iii. Selected standards 57
III.a. General Rule of Law Standards 57
1. Hard Law 57
2. Soft Law 58
a. Council of Europe 58
b. European Union 58
c. Other international organisations 58
d. Rule of Law Indicators 59
III.b. Standards relating to the Benchmarks 59
A. Legality 59
1. Hard Law 59
2. Soft Law 60

B. Legal certainty 61

1. Hard Law 61
2. Soft Law 61
C. Prevention of abuse of powers 61
1. Hard Law 61
2. Soft Law 62

D. Equality before the law and non-discrimination 62

1. Hard Law 62
a. Council of Europe 62
b. European Union 62
c. Other international organisations 63
2. Soft Law 64

E. Access to justice 65

1. Hard Law 65
2. Soft Law 66
a. Council of Europe 66
b. European Union 67
c. United Nations 68
d. The Commonwealth of Nations 69
e. Organization for Security and Co-operation in Europe 70
f. Other international organisations 70
g. Other 71

F. Examples of particular challenges to the Rule of Law 71

1. Hard Law 71
a. Corruption 71
b. Collection of data and surveillance 71
2. Soft Law 72
a. Corruption 72
b. Collection of data and surveillance

Short Introduction

The Rule of Law is a concept of universal validity. The “need for universal adherence to and implementation of the Rule of Law at both the national and international levels” was endorsed by all Members States of the United Nations in the 2005 Outcome Document of the World Summit (§ 134). The Rule of Law, as expressed in the Preamble and in Article 2 of the Treaty on European Union (TEU), is one of the founding values that are shared between the European Union (EU) and its Member States.

In its 2014 New Framework to Strengthen the Rule of Law, the European Commission recalls that “the principle of the Rule of Law has progressively become a dominant organisational model of modern constitutional law and international organisations /…/ to regulate the exercise of public powers” (pp. 3-4). In an increasing number of cases States refer to the Rule of Law in their national constitutions

The Rule of Law is mentioned in the Preamble to the Statute of the Council of Europe as one of the three “principles which form the basis of all genuine democracy”, together with individual freedom and political liberty. Article 3 of the Statute makes respect for the principle of the Rule of Law a precondition for accession of new member States to the Organisation. The Rule of Law is thus one of the three intertwined and partly overlapping core principles of the Council of Europe, with democracy and human rights. The close relationship between the Rule of Law and the democratic society has been underlined by the European Court of Human Rights through different expressions: “democratic society subscribing to the Rule of Law”, “democratic society based on the Rule of Law” and, more systematically, “Rule of Law in a democratic society”. The achievement of these three principles – respect for human rights, pluralist democracy and the Rule of Law – is regarded as a single objective – the core objective – of the Council of Europe.

The Rule of Law has been systematically referred to in the major political documents of the Council of Europe, as well as in numerous Conventions and Recommendations. The Rule of Law is notably mentioned as an element of common heritage in the Preamble to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), as a founding principle of European democracies in Resolution Res(2002)12 establishing the European Commission for the Efficiency of Justice (CEPEJ), and as a priority objective in the Statute of the Venice Commission. However, the Council of Europe texts have not defined the Rule of Law, nor has the Council of Europe created any specific monitoring mechanism for Rule of Law issues.

The Rule of Law is linked not only to human rights but also to democracy, i.e. to the third basic value of the Council of Europe. Democracy relates to the involvement of the people in the decision-making process in a society; human rights seek to protect individuals from arbitrary and excessive interferences with their freedoms and liberties and to secure human dignity; the Rule of Law focuses on limiting and independently reviewing the exercise of public powers. The Rule of Law promotes democracy by establishing accountability of those wielding public power and by safeguarding human rights, which protect minorities against arbitrary majority rules.

The Rule of Law has become “a global ideal and aspiration”, with a common core valid everywhere. This, however, does not mean that its implementation has to be identical regardless of the concrete juridical, historical, political, social or geographical context. While the main components or “ingredients” of the Rule of Law are constant, the specific manner in which they are realised may differ from one country to another depending on the local context; in particular on the constitutional order and traditions of the country concerned. This context may also determine the relative weight of each of the components.

The Rule of Law must be applied at all levels of public power. Mutatis mutandis, the principles of the Rule of Law also apply in private law relations. The following definition by Tom Bingham covers most appropriately the essential elements of the Rule of Law: “All persons and authorities within the State, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts”.

The Rule of Law can only flourish in a country whose inhabitants feel collectively responsible for the implementation of the concept, making it an integral part of their own legal, political and social culture.

The Rule of Law is realised through successive levels achieved in a progressive manner: the more basic the level of the Rule of Law, the greater the demand for it. Full achievement of the Rule of Law remains an on-going task, even in the well-established democracies. Against this background, it should be clear that the parameters of the checklist do not necessarily all have to be cumulatively fulfilled in order for a final assessment on compliance with the Rule of Law to be positive. The assessment will need to take into account which parameters are not met, to what extent, in what combination etc. The issue must be kept under constant review.

Since the Venice Commission is a body of the Council of Europe, the checklist emphasises the legal situation in Europe, as expressed in particular in the case-law of the European Court of Human Rights and also of the Court of Justice of the European Union within its specific remit. The Rule of Law is however a universal principle, and this document also refers, where appropriate, to developments at global level as well as in other regions of the world, in particular in part III enumerating international standards.

The checklist is neither exhaustive nor final: it aims to cover the core elements of the Rule of Law. The checklist could change over time, and be developed to cover other aspects or to go into further detail. New issues might arise that would require its revision. The Venice Commission will therefore provide for a regular updating of the Checklist.