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Resolution 1594 (2007)
The principle of the Rule of Law
1. The notion of “rule of law”, conceived
by European nations as a common value and fundamental principle
for greater unity, was recognised in the Statute of the Council
of Europe of 1949 (ETS No. 1). This principle, together with those
of democracy and human rights, plays a significant role today in
the Council of Europe and the case law of the European Court of
Human Rights in particular.
2. The European Union, the Organization for Security and Co-operation
in Europe (OSCE) and their member states are also committed to the
principles of the “rule of law”, democracy and human rights. Explicit reference
to the “rule of law” can be found, inter
alia, in European Union/European Community treaties,
the case law of the European Court of Justice, as well as in the
Copenhagen criteria of 1993 for accession to the European Union.
3. Despite a general commitment to this principle, the variability
in terminology and understanding of the term, both within the Council
of Europe and in its member states, has elicited confusion. In particular,
the French expression Etat de droit (being
perhaps the translation of the term Rechtsstaat known
in the German legal tradition and in many others) has often been
used but does not always reflect the English language notion of
“rule of law” as adequately as the expression prééminence
du droit, which is reflected in the French version of
the Statute of the Council of Europe, in the preamble to the European
Convention on Human Rights (ETS No. 5) and in the Strasbourg Court’s
case law.
4. The Parliamentary Assembly draws attention to the fact that
in some recent democracies in eastern Europe, the main trends in
legal thinking foster an understanding of the “rule of law” as “supremacy
of statute law”, in Russian verkhovensto
zakona. “Rule of law” should, however, be translated
into Russian as verkhovensto prava,
just as “rule of law” is correctly translated into French as prééminence du droit and not as prééminence de la loi. (Similarly
the words Recht and droit
in Rechtsstaat/Etat de droit
should be translated into Russian as prava.)
Translating “rule of law” as verkhovensto
zakona gives rise to great concern, since in some of
these countries certain traditions of the totalitarian state, contrary
to the “rule of law”, are still present both in theory and in practice.
Such a formalistic interpretation of the terms “rule of law” and Etat de droit (as well as of Rechtsstaat) runs contrary to the
essence of both “rule of law” and prééminence
du droit. Certainly in these cases there is an inappropriate
lack of consistency and clarity when translating into the legal
terms used in member states.
5. The Assembly emphasises the need to ensure the unification
that encompasses the principles of legality and of due process,
which has the same basic elements, found in particular in the case
law of the European Court of Human Rights, by whatever name this
concept is now used in the Council of Europe.
6. Consequently, the Assembly:
6.1. stresses
that the terms “rule of law” and prééminence
du droit are substantive legal concepts which are synonymous,
and which should be considered as such in all English and French
language versions of documents issued by the Assembly as well as
in the member states in their official translations;
6.2. believes that the subject merits further reflection with
the assistance of the European Commission for Democracy through
Law (Venice Commission).