Dr. Thomas Markert
former Secretary of the Venice Commission

3-4 September 2021

The role of the Venice Commission in safeguarding judicial independence

First of all I would like to thank the organisers, Konrad Adenauer Foundation, the Aire Centre and Civil Rights Defenders, for inviting me to this important conference in a town of exceptional beauty.

My intervention will focus on the role of the Venice Commission in defending judicial independence in general and in this region in particular. While this conference is mainly focused on the role of the European Court of Human Rights and on its case law, the role of the Venice Commission is also of major importance and complementary to the role of the Court.

While the Court deals with violations of human rights which have already occurred, the role of the Venice Commission is mainly preventive. Typically the Venice Commission is consulted by the national authorities, when drafting constitutions, amendments to the constitution or legislation. It provides its opinions on draft legislation quickly and following extensive discussions with all stakeholders. In its opinions, it examines whether the drafts proposed are in line with international standards and whether the solutions chosen seem appropriate for the situation, based on the experience of other countries.

Obviously a main, if not the main criterion for the Venice Commission is compatibility with the European Convention of Human Rights and the case law of the Court. This is not always an easy task, since the Commission often has to address issues not yet examined by the Court and has to anticipate, what the Court may say in a given situation. In practice, the positions taken by the Venice Commission have generally been confirmed by the Court and in its judgments the Court regularly quotes the opinions and reports of the Commission. However, the Commission is freer in its approach than the Court. It can also recommend solutions, which are not required by the European Convention of Human Rights but based on other standards and experiences.

The opinions of the Venice Commission are advisory and not legally binding. But their authority in this region and in Europe in general is very high. Other Council of Europe organs such as the Parliamentary Assembly regularly refer to them. Candidate states for membership in the European Union and potential candidate states are conscious that the European Union relies very much on the opinions of the Venice Commission in the relevant fields, in order to determine whether national legislation is in line with European standards. If the Venice Commission has given a negative opinion, the respective legislation is likely to be contested by the EU. On the other hand, if the opinion of the Venice Commission is positive, the country is fairly safe that the EU will not later challenge the legislation.

For the European Union it is quite logical to rely on a Council of Europe body such as the Venice Commission, since the European rule of law standards were developed within the Council of Europe and not the EU. It is also politically convenient for the European Commission to rely on the opinions of a neutral technical body such as the Venice Commission instead of assuming responsibility itself. On the other hand, the Venice Commission will be consistent in its approach and not provide a positive opinion simply because the authorities are considered positively by the EU nor will it criticise draft legislation from authorities since these are considered negatively by the EU.

The importance of the issue of judicial independence and impartiality in Europe at present is obvious and has already been pointed out by many other participants. It is also very much in the focus of the recent work of the Venice Commission. At present the Venice Commission is discussing with the Serbian authorities a possible reform of the Serbian Constitution in the field of the judiciary. This year it adopted opinions on the reform of the prosecution service in Montenegro, and the reform of the High Judicial and Prosecutorial Council of Bosnia and Hezegovina. In recent years it was closely involved, providing several opinions, in judicial reform in North Macedonia and before in Albania.

The Venice Commission not only provides opinions on specific pieces of (draft) legislation but also adopts reports and studies of a general nature. With respect to the topic of this conference I refer in particular to its Reports on the independence of the Judicial System Part I – The independence of judges and, Part II – The Prosecution Service of 2010, the Report on Judicial Appointments of 2007 and the Rule of Law Checklist of 2016.

These reports sum up the previous practice of the Commission and provide guidance for its future work. They thus ensure the consistency of the approach of the Commission. However, they take into account the diversity of judicial systems in Europe, leaving sufficient flexibility to find solutions appropriate for the specific situation in each country. There can be no one-size-fits-all model of judicial organisation, but, while the means may differ, all solutions have to achieve the end result of ensuring judicial independence.

Obviously these reports also integrate the case law of the European Court of Human Rights as well as other European and international standards. In this respect I would refer in particular to the opinions of the Consultative Council of European Judges, another Council of Europe body, which strongly influenced the report on the independence of judges, and to Recommendation (2010)12 of the Committee of Ministers of the Council of Europe on judges: independence, efficiency and responsibilities.

`You will find all the reports, as well as the opinions on specific countries, on the web site of the Commission. I will not try to cover all aspects of these reports but only flag some issues, which seem to me of particular importance for South East Europe.

The Venice Commission has always strongly underlined the importance not only of the external independence of the judiciary with respect to outside bodies such as the executive and parliament, but also of internal independence within the judiciary. The judiciary is not a hierarchy, where the court president gives instructions to the judges of his or her court or where the Supreme Court provides instructions to the other courts. Each individual judge decides independently on the basis of his or her interpretation of the law. But, of course, judges may not decide arbitrarily, according to their personal whim, but have to take into account the case law of the other courts, and in particular the superior courts. Internal and external independence are linked, since the political organs may try to use court presidents to influence the decision making of the courts. 

Another possible means for court presidents or presidiums to influence decision making is the allocation of cases. There is a risk that politically sensitive cases are given to judges considered loyal by the government. To avoid this risk, many European Constitutions provide the right to a lawful judge, requiring that it should be determined in advance on the basis of objective criteria which judge or chamber will be competent for a case. The Venice Commission as well recommends that the allocation of cases should be based on objective and transparent criteria established in advance. The importance of this issue is demonstrated by the fact that in some countries, where such systems were introduced in principle, there is a possibility to make ad hoc exceptions and this possibility is used for sensitive cases.

The crucial institution to protect the independence of the judiciary are judicial councils. Such councils do not traditionally exist in all West European countries. The Venice Commission recommends, however, that those countries not yet having done so should consider establishing such bodies, and a number of West European countries have done so in recent years, although often with fairly limited powers. In new democracies judicial councils seem indispensable and all Central and Eastern European countries have established such an institution.

Such bodies can be effective only if their composition guarantees that they are not dominated by the executive and parliamentary majority. Their composition has to be pluralistic and the judges themselves have to be a key component. The Venice Commission initially recommended that a substantial element, if not the majority, of the members should be judges elected by their peers. I would like to underline this latter element: it is not decisive that the members are judges – some judges may be loyal to the government – but that these judges are elected by their peers.

Subsequently the Committee of Ministers of the Council of Europe adopted its Recommendation (2010)12, according to which « not less than half the members of such councils should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism within the judiciary ». Since then the Venice Commission recommends to states to comply with this Recommendation, which has not been implemented by a considerable number of Council of Europe member states.

The Venice Commission, however, continues to advocate a pluralistic composition of judicial councils, including a considerable number of non-judges, in order to ensure the accountability of the judiciary to society. Some of these other members may be elected by parliament, but should not be members of parliament. It has to be ensured that these members do not only represent the parliamentary majority but also the opposition. In South East Europe this may be difficult to ensure, since boycotts of parliament by the opposition are quite frequent. There may be representatives of the Bar, although conflicts of interest have to be avoided, of law faculties or of NGOs, the question being how to select the NGOs. There may also be ex officio  such as the President of the Supreme Court. It is not a priori excluded for the Minister of Justice to be a member of the Council, but he or she should not take part in decisions in disciplinary proceedings. There is no single model of the composition of a judicial council, but each country has to find the solution best suited to its specific circumstances.

 

A judicial council can protect the independence of the judiciary only if it has sufficient powers. It should have a decisive influence on decisions on the appointment and career of judges. Judges may be formally appointed by the Head of State, but this should be done upon the recommendation of the judicial council. The Venice Commission does not regard judicial councils as equivalent to an independent court and recommends that there should be a possibility to appeal the decisions of these councils to an independent court. This is also one of the reasons why the decisions of judicial councils should be motivated: otherwise, no judicial control would be possible.

The most important and basic guarantee for judicial independence is tenure until retirement. The Venice Commission considers probationary periods for judges to be problematic from the point of view of independence. Obviously, judges may be removed from office following disciplinary proceedings. There may also be exceptional situations, where disciplinary proceedings are not sufficient and a general vetting of judges may be justified. 

One such situation is following a revolution and the overthrow of an authoritarian regime. If the judiciary is strongly compromised with the previous regime, a general vetting of sitting judges with a view to confirming only some of them in office may be justified, subject to sufficient safeguards. Fortunately, this issue seems no longer relevant in South East Europe.

Another such situation is widespread corruption within the judiciary, which goes beyond what can be handled by disciplinary procedures. Corrupt judges are neither independent nor impartial. In Albania corruption within the judiciary was so wide-spread that society had completely lost trust in the judicial system. The Venice Commission therefore accepted a general vetting of the sitting judges with a clear constitutional basis and international participation, subject to sufficient procedural guarantees. 

In conclusion, it is clear that judicial independence does not depend on legal and constitutional rules alone but also on the legal and political culture of the country concerned. However, without good and precise rules judicial independence cannot be preserved in countries without a long tradition of the rule of law.  Politicians will always be tempted to interfere with the judiciary to further their interests and the interests of their friends. Both society and international institutions have to remain vigilant in this respect. 

Judges are not able to defend their independence alone. But they can contribute to making attacks against their independence more difficult by carrying out their tasks without reproach, thus depriving politicians of pretexts to attack the judiciary as incompetent, politically compromised or corrupt. Unfortunately, the situation in Poland has shown that some politicians will be ready to undermine the independence also of a well-functioning judiciary. In such situations, international bodies such as the European Court of Human Rights, the Venice Commission, and, for EU member states, the European Commission and the European Court of Justice, have to play a major role defending judicial independence.