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Doc. 9266

15 October 2001

Composition of the European Commission for Democracy through Law ("Venice Commission")

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Erik Jurgens, Netherlands, Socialist Group

Summary

The Assembly has often sought the advice of the Venice Commission and has always appreciated the high standard of its opinions.

It believes that to maintain this high standard, one must ensure that the members of the Commission are independent, competent and impartial.

In order to ensure that these criteria are fully met, the Assembly proposes that the members of the Venice Commission are chosen by a committee composed of three members of the Parliamentary Assembly and three members of the Venice Commission, from a list of three candidates submitted by each member state.

I.       Draft recommendation

1.        The Assembly welcomes the increasing importance given to the work of the European Commission for Democracy through Law, the "Venice Commission", over its eleven years of existence; this work commands respect in Europe and beyond.

2.        The Assembly has frequently availed itself of the opportunity to seek the Venice Commission’s opinion, not only on matters concerning the accession and monitoring procedures but also on general issues, and has always appreciated the high standard of its opinions.

3.        The Assembly also always ensures that it is represented at the Commission’s plenary meetings.

4.        Thanks to these close working relations, it is convinced that everything necessary must be done to maintain the high standard of the Commission’s work. It therefore believes that the utmost care must be taken to ensure that the criteria set out in the Commission’s statute concerning its composition, in particular the independence, experience and impartiality of its members, is respected. The moral and intellectual authority of the Commission depends on this.

5.        The Assembly believes that, although the majority of members meet these criteria, there are some exceptions and that this may erode the Commission’s moral authority.

6.        Finally, in order to ensure that these criteria are fully met, the Assembly proposes that, instead of designating their own candidates, the governments of the states party to the Venice Commission should submit a list proposing three candidates, which would be forwarded to a select committee on which the Assembly would be represented and which would be responsible for choosing the most suitable candidate.

7.        The Assembly notes that, in response to the concern it has expressed, the Venice Commission has itself revised its statute, in particular the method by which its members are appointed.

8.        Consequently, the Assembly recommends that the Committee of Ministers review the statute of the Venice Commission as regards the method by which its members are appointed by setting up a committee, composed of three members of the Parliamentary Assembly and three members of the Venice Commission, to select the members from a list presenting three candidates and explaining how they meet the requirements of independence, expertise and impartiality laid down in the statute.

II.       Explanatory memorandum

      by Mr Jurgens, Rapporteur

I.       Introduction

1.        The year 2000 marked the tenth anniversary of the European Commission for Democracy through Law, or “Venice Commission”, which was established by Resolution (90) 6. During its ten years of existence the Commission has gained a certain repute even beyond the borders of Europe, since its observers include Argentina, Canada, Japan, the Republic of Korea, the United States and Uruguay.

2.        Pursuant to Article 2 of its Statute, the Commission prepares opinions when so requested by the Parliamentary Assembly, the Secretary General or any member state of the Council of Europe. The Parliamentary Assembly has frequently taken advantage of this possibility, in particular through its Committee on Legal Affairs and Human Rights. The opinions received have proved to be extremely useful for the Assembly’s work, whether in connection with accession procedures, monitoring, constitutional or political problems or any other legal matter.

3.        Under Article 3 of the Statute, the President of the Parliamentary Assembly or his/her representative may attend the work of the Commission. By tradition, the President asks the Committee on Legal Affairs and Human Rights to represent him/her, and for some time it has been my honour in turn to represent the committee.

4. In addition, Resolution 1115 (1997) on the setting up of the Assembly’s Monitoring Committee provides that the latter can establish contact with the Venice Commission. This has been done on several occasions.

II.       Relations with the Committee on Legal Affairs and Human Rights

5.        Through my involvement I have been able to assess the quality of the work that is being done. I have become convinced that the Commission needs greater support and the Assembly’s backing in order to take full advantage of its potential.

6.        I therefore took the decision to make certain proposals concerning relations between the Venice Commission and the Assembly, and more particularly the Committee on Legal Affairs and Human Rights.

7.        At a meeting in Rome on 2 November 2000, the Committee on Legal Affairs and Human Rights held a debate in the presence of the Commission President and Secretary on the basis of a memorandum (AS/Jur (2000) 06), which I had had the honour to prepare, with a set of proposals for improving co-operation.

8.        In the wake of this debate, agreement was reached on the following points:

- the Committee on Legal Affairs and Human Rights will hold an annual debate on the Venice Commission’s work programme in which the Commission Bureau will participate;

- the Assembly observer may take part in the proceedings of Commission working groups;

- closer links will be established and co-operation will be strengthened between the secretariats of the two bodies.

III.       Composition

9. The Committee on Legal Affairs and Human Rights asked me to present a more detailed proposal regarding the Commission’s composition. I did so at its meeting on 27 November 2000. I then prepared a motion for a recommendation (Doc 8963) which was forwarded by the Bureau to the Committee for report.        This report therefore focuses on the composition of the Venice Commission.

10.        Article 3 of the Commission’s Statute provides as follows:

11.        The first criterion laid down in the Statute is that members must be independent, which in the first analysis means independence from the State because the opinions of the Venice Commission are mainly drawn up for the attention of governments and States. Governments should not be advising themselves! Consequently members of the Venice Commission should be neither members of government, civil servants nor serving diplomats. They must also be independent with regard to financial, media, religious and other interest groups inasmuch as these groups are involved with the subject matter of the work of the Venice Commission. Lastly, they must be independently minded, that is, impartial in their views. While it is easy to assess independence from the State or from a specific interest group, the same cannot be said of impartiality.

12.        The second criterion is that of the experts’ experience. This quality is clearly the easiest to assess objectively. Experience may have been acquired in a variety of ways, such as through a position as university professor, high court judge, senior civil servant or diplomat or member of the staff of a national or international NGO devoted to constitutional and human rights issues.

13.        The Commission’s moral and intellectual authority as such is dependant on the degree to which governments succeed in identifying candidates who meet these requirements.

14.        The majority of members do seem to conform to these criteria. Some exceptions exist nonetheless, as the Commission’s members include senior civil servants and even ministers. Moreover, it cannot be claimed that all members are experts in constitutional law and human rights.

IV.       Proposals

15.        In order to help to solve these difficulties, I proposed that a system for screening candidates be set up which would oblige governments to propose a number of candidates and explain to what degree they met the criteria outlined above. Screening could be carried out by a select committee including members of the Assembly. It remains to be determined whether the Committee of Ministers or the Venice Commission itself should also take part. Given that candidates are proposed by the Committee of Ministers, it would be preferable for the Commission to be represented on the screening committee.

16.        Meanwhile, the Commission itself took steps to reform its Statute by instructing its Sub-Commission on Administrative and Budgetary Questions to submit proposals. The Sub-Committee based its work on the Assembly initiative to set up a special committee.

17.        The Venice Commission adopted the reform of its Statute on 6 and 7 July 2001.

18.        The reform addresses the following aims:

- to adapt the Statute in the light of the experience acquired during more than ten years of Commission activity;

- to enable states not members of the Council of Europe to become members of the Partial Agreement;

- to provide additional safeguards for the independence of members.

19.        In order to achieve the last-mentioned aim, the Commission proposes rewording Article 3 paragraph 2 as follows:

20.        Article 3 paragraph 3 would now read: 

21.        I believe that these changes form a major improvement but do not answer all the concerns underlying this report. In the first place, the Commission’s proposal does not provide for the nomination of several candidates among whom the committee would reach a decision.  Secondly, it would appear logical for the committee which confirms or selects members also to be consulted in the matter of accepting their resignation.

22.        To conclude, I would propose:

- that governments be invited to propose three candidates and explain how they meet the criteria of independence, expertise and impartiality laid down in the Statute;

- that a committee composed of three members of the Parliamentary Assembly and three members of the Venice Commission be set up, instructed to select the members of the Commission and consulted about any resignations.

Timetable

23.        The revised Statute of the Venice Commission will be submitted for approval by the Committee of Ministers during the autumn.

24.        This report, which endorses certain changes proposed to the Statute, especially as regards the Commission’s composition, could be included on the agenda of the Standing Committee in November 2001.

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Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Doc 8963 and Reference No. 2578 of 14 March 2001

Draft recommendation unanimously adopted by the committee on 27 September 2001

Members of the committee: Mr Jansson (Chairperson), Mr Magnusson, Mr Frunda, Mrs Gülek (Vice-Chairpersons), Mr Akçali, Mr G. Aliyev, Mr Arabadjiev, Mrs van Ardenne-van der Hoeven, Mr Attard Montalto, Mr Bindig, Mr Bordas, Mr Brejc, Mr Bruce, Mr Bulavinov, Mr Chaklein, Mr Clerfayt, Mr Contestabile (alternate: Mr Naro), Mr Demetriou, Mr Dimas, Mr Enright, Mrs Err, Mr Floros, Mrs Frimansdóttir, Mr Fyodorov, Mr Guardans, Mr Gustafsson, Mrs Hajiyeva, Mr Holovaty, Mr Irtemçelik, Mr Jaskiernia, Mr Jurgens, Mr Kelemen, Lord Kirkhill (alternate: Mr Lloyd), Mr Kostytsky, Mr S. Kovalev, Mr Kresák, Mr Kroupa, Mrs Krzyzanowska, Mr Lacăo, Mrs Libane (alternate: Mr Čilevics), Mr Lintner, Mr Lippelt, Mr Manzella, Mrs Markovic-Dimova, Mr Marty, Mr Mas Torres, Mr McNamara, Mr Michel, Mr Moeller, Mrs Nabholz-Haidegger, Mr Olteanu, Mr Pellicini, Mr Pentchev, Mr Piscitello (alternate: Mr Budin), Mr Pollo, Mrs Postoica, Mrs Pourtaud, Mrs Roudy, Mr Rustamyan, Mr Simonsen, Mr Skrabalo, Mr Solé Tura (alternate: Mrs Lopez Gonzales), Mr Spindelegger, Mr Stankevic, Mr Stoica, Mrs Süssmuth, Mr Svoboda, Mr Symonenko, Mr Tabajdi, Mr Tallo, Mrs Tevdoradze, Mr Uriarte, Mr Vanoost, Mr Vera Jardim, Mr Volpinari, Mr Wilkinson, Mrs Wohlwend, Mr Wojcik, Mrs Wurm

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the committee: Mr Plate, Ms Coin, Ms Kleinsorge, Mr Ćupina