| Parliamentary Assembly Assembl�e parlementaire |
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The principle of the rule of law
Doc. 10180
6 May 2004
Motion for a resolution
presented by Mr Holovaty and others
This motion has not been discussed in the Assembly and commits only the members who have signed it
1. The Parliamentary Assembly recalls that since the first plans for the setting up of European Organisations the notion of the rule of law has been conceived by civilised European nations as a common value and fundamental principle for greater unity.
2. Consequently, in the Preamble to the first European Treaty, the so-called Brussels Treaty of 17 March 1948, the signatory states “resolved to fortify and preserve the principles of … the rule of law which are their common heritage”. Article 3 of the Council of Europe’s Statute signed on 5 May 1949 specifies that “Every Member of the Council of Europe must accept the principles of the rule of law and of …”. The Preamble to the European Convention contains the following paragraph: “Being resolved as the Governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law...”.
3. It welcomes that due to the Council of Europe’s enlargement, almost all European States have as members of that organisation accepted the principle of the rule of law.
4. The Assembly notes that thanks to the rule of law and other fundamental principles enshrined in the Statute of the Council of Europe (i.e. the protection of human rights and genuine democracy) the building and integration of Europe could begin on a morally unequivocal and legally solid basis.
5. It welcomes that the European Union and the OSCE and their member states are also committed to the same principles. The political conditions for accession to the EU (Copenhagen criteria of 1993) also include the acceptance of the rule of law. The draft Treaty establishing a constitution for Europe (Draft Constitutional Treaty) establishes in its part I, article 2 (The EU’s values) that “the Union is founded on the values of respect for … the rule of law and human rights”. Title II, article 7 par. 3 of the Draft Treaty stipulates “Fundamental rights as guaranteed by the European Convention on Human Rights for the protection of human rights and fundamental Freedoms and … shall constitute general principles of the Union’s law”.
6. The Assembly underlines that several of its texts, recommendations of the Committee of Ministers and, in particular, judgements of the European Court of Human Rights have interpreted the substance of the principle of the rule of law.
7. It recalls that since the beginnings of the building of Europe the translation of the English term “rule of law” into other languages has created great difficulties as there are differences in legal philosophy between countries and continents.
8. The Assembly notes that this is particularly true for the French translation of this principle. Initially it had been translated as “respect de la loi”, whereas for the Statute of the Council of Europe and the preamble to the European Convention of Human Rights the words “pr��minence du droit” where chosen.
9. Since some time the Assembly also notes that some Council of Europe texts and, in particular, major European Union texts use for their French versions the term “Etat de droit” as an equivalent for “rule of law”, whereas since 1949 the Council of Europe’s Statute has established “pre-eminence du droit” as the French equivalent.
The draft Constitutional Treaty of the European Union refers to “Etat de droit”. This is also the case for a recent European Parliament resolution of 20 April 2004 on respect for and promotion of the values on which the European Union is founded.
10. The Assembly draws the attention to the fact that in some recent democracies in Eastern Europe the main trends in legal thinking comprehend “Etat de droit” as “State based on the principle of the supremacy of the laws” (written rules), in French “pr��minence des lois”. This gives raise to concern, as in some of these states certain traditions of the totalitarian state are still present in theory and practice.
11. Furthermore this is incompatible with the traditional interpretation of the Rule of Law in European institutions and by the European Court of Human Rights and it would be appropriate to change it especially if to pursue the aim of building up common European legal culture.
12. Consequently the Assembly
i. stresses the need of ensuring that the basic texts of the European Institutions and Organisations are coherent insofar as the French equivalent of the principle of the rule of law is concerned and which should be “les principes de la pr��minence du droit” ;
ii. invites the President of the Parliamentary Assembly to send the resolution to the Presidents of the European Parliament and of the OSCE Assembly ;
iii. invites the Secretary General of the Council of Europe to take into account, as soon as possible, the afore-mentioned considerations in his next high-level contacts with other European Institutions and Organisations.
Signed
[1]:
Holovaty, Ukraine, LDR
Alevras, Greece, SOC
Bemelmans-Videc, Netherlands, EPP/CD
Bindig, Germany, SOC
Bruce, United Kingdom, LDR
Cekuolis, Lithuania, LDR
Garsdal, Denmark, UEL
Jurgens, Netherlands, SOC
Leutheusser-Schnarrenberger, Germany, LDR
Marty, Suisse, LDR
McNamara, United Kingdom, SOC
Olteanu, Romania, SOC
Russell-Johnston, United Kingdom, LDR
Severin, Romania, SOC
Spindelegger, Austria, EPP/CD
van der Linden, Netherlands, EPP/CD
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SOC |
Socialist
Group |