Venice Commission :: Council of Europe

In recent years, the Venice Commission has adopted opinions (in a number of cases prepared jointly with the OSCE/ODIHR) concerning legal texts on freedom of thought, conscience and religion - of Armenia (2010), Azerbaijan (2012), Bosnia and Herzegovina (2012), Hungary (2012), and Kosovo (2014). In 2018 the Commission assessed, jointly with the OSCE/ODIHR, the amendments to the Law of Armenia on freedom of conscience and religious organisations.

Studies and guidelines

In response to continued challenges in the field of freedom of religion, in particular concerning registration systems of religious communities and legal obstacles to acquiring legal personality, the Venice Commission and OSCE/ODIHR published, in 2004, the Guidelines for Review of Legislation pertaining to Religion or Belief. In 2008, the Venice Commission examined, in its Report on the relationship between Freedom of Expression and Freedom of Religion , the issue of the regulation and prosecution of blasphemy, religious insult and incitement to religious hatred, while in 2010 it adopted a Report on the counter-terrorism measures and human rights.

In addition, the Commission issued, in June 2014, the Guidelines on the legal personality of Religious or Belief Communities, prepared jointly in with the OSCE/ODIHR and intended to supplement and update the more general 2004 Guidelines.

Freedom of peaceful assembly

Opinions

The Venice Commission has been providing legal assistance to numerous states in order to help them ensure that their legislation on freedom of peaceful assembly is in compliance with the applicable European and International standards. In recent years, such opinions have been adopted in respect of Belarus (2012), Bulgaria (2009), the Russian Federation (2012 and 2013), Serbia (2010), Ukraine (2009, 2010, 2011). In 2016 the Venice Commission adopted a generally positive opinion (prepared jointly with OSCE/ODIHR and the DGI) on two draft laws on guarantees for freedom of peaceful assembly of Ukraine. In its 2016 opinion on the referendum on constitutional amendments in Azerbaijan the Commission commented on the proposed changes to the constitutional provisions regarding possible limitations to the freedom of assembly.

Studies and guidelines

Joint Guidelines on Freedom of Peaceful Assembly, prepared in cooperation with the OSCE/ ODIHR, were first published in 2007 and revised in 2010. These Guidelines are currently being revised in the light of the most recent developments in the field. The Commission also endorsed, in 2014, a “Comparative Study on National Legislation on Freedom of Peaceful Assembly”, which was prepared at its request by the Max Plank Institute (Germany).

Freedom of expression and freedom to receive and impart information

Opinions

The 2017 opinion on the media freedom in Türkiye concerned emergency measures taken in the aftermath of the 2016 failed coup. These measures consisted of mass liquidations of media outlets by decree laws, ordered without individualised examination of each case and on the basis of very vague criteria of “connections” to “terrorist organisations”. Criminal prosecution of journalists during the emergency period had intensified and their pre-trial detention had been ordered without sufficient reasons, and that was a source of grave concern.

In 2016 the Commission also adopted opinion on the laws on the protection of whistleblowers and on the protection of privacy of the "former Yugoslav Republic of Macedonia"*; those opinions included, inter alia, analysis of the repercussions of this legislation on investigative journalism. The Venice Commission also examined Articles 216, 299, 301 and 314 of the Penal Code of Türkiye, which defined “verbal acts offences” and limited freedom of speech in the country. In 2016 the Commission commented on the proposed changes to the constitution of Azerbaijan, which concerned inter alia freedom of expression and hate speech.

The Commission adopted opinions concerning legislation on freedom of expression in Belarus (2010), Montenegro (2015), Hungary (2015, 2012) as well as on the issue of defamation in Azerbaijan (2013) and Italy (2013), and an amicus curiae brief (at the request of the Constitutional Court of Georgia in 2014), on the question of the defamation of the deceased. In 2013, it examined amendments to the law on freedom of expression of the Republic of Moldova on the prohibition of the use of communist symbols.

Freedom of association

Opinions

The Commission examines legal texts regulating the operation of non-governmental organisations. In this context, it addresses issues of key importance for the effective exercise of the right to freedom of association, including the NGOs’ registration and related requirements, the internal autonomy of non-governmental organisations or the question of foreign funding of such organisations, as well as cumbersome reporting obligations, imposed on such NGOs.

In 2018, the Commission several opinions concerning the right to freedom of association (in respect Romania, Ukraine and Hungary). In its Opinions, the Commission considered that reporting and disclosure obligations cannot be justified on the basis of mere “suspicions” about the honesty of financing of NGOs and they should be based on a concrete risk analysis concerning the involvement of associations in the commission of crimes such as corruption and money laundering (Ukraine, Romania). It moreover considered that “enhancing transparency” does not appear to be by itself a legitimate aim for restricting the ability of associations to seek and secure funds for their activities and it rather can be considered as a means to achieving the legitimate aims of combatting corruption, money laundering and terrorism financing (Ukraine, Romania). The Commission also indicated, in respect in particular of Hungary and Ukraine, that reporting and disclosure obligations that focus on foreign funding might be problematic with regard to prohibition of discrimination in cases where associations are obliged to submit more reports and information compared to other legal entities, such as businesses or in cases where the legislation singles out some specific associations as the subject of specific reporting obligations whereas other organisations, such as charitable organisations are not addressed.

In cooperation with the OSCE/ODIHR, the Commission also examined the Hungarian law imposing a special tax on financial support to an immigration-supporting activity carried out by associations in Hungary. The joint opinion concluded that the special tax imposed an unjustified interference with the rights to freedom of expression and association of the NGOs concerned and risks creating a chilling effect on the exercise of fundamental rights of individuals and organisations who support their defence financially.

In 2017 the Commission adopted an opinion on the Hungarian draft law aimed at increasing transparency of foreign funding of NGOs. The Commission agreed that the aims of the draft law were legitimate, but the effect of the measures went beyond what were necessary. Thus, reporting obligations on such NGOs were too burdensome, and the measure of dissolution for their breach was excessive.

In 2016 the Commission adopted an opinion on the federal law of the Russian Federation on undesirable activities of foreign and international NGOs, in which it essentially criticized the vagueness of criteria according to which NGOs are declared as “undesirable”. The opinion on the “Internet Law” of Türkiye adopted in 2016 examined, in particular, the power of Turkish authorities to block access to internet resources, and recommended introduction in the legislation of less intrusive measures.

Further opinions on freedom of expression were adopted on Azerbaijan in 2011 and 2014, on Belarus in 2011, on the Kyrgyz Republic in 2013 and on the Russian Federation in 2014.

Guidelines

In December 2014, the Venice Commission adopted the Joint Guidelines on Freedom of Association, prepared jointly with the OSCE/ODIHR and in consultations with representatives of the civil society. The Guidelines are proposed as a reference text not only for the Commission itself in its work on the right to freedom of association, but also for other international organisations, governments and NGOs.

The Venice Commission is currently preparing a study on the funding of associations, which will be submitted to the March 2019 Plenary Session for adoption.

Minority rights

Opinions

In 2017 the law on education of Ukraine was examined by the Commission. The language question remains highly sensitive in Ukraine. The Commission acknowledged that it is a legitimate aim for states to promote the strengthening of the state language and its command by all citizens; however, Article 7 of the new Education Law contained significant ambiguities and could lead to a substantial reduction of existing opportunities for teaching in minority languages. Moreover, the less favourable treatment of non EU-languages, in particular Russian, raised issues of discrimination.

Studies

In the sphere of minority protection, the Commission examined inter alia, the participation of national minorities in decision making, including the question of the dual voting for persons belonging to national minorities ( see 2008 report, the issue of non-citizens and minority rights (Report on Non-citizens and Minority Rights, 2007), as well as, already in 2001, the question of the preferential treatment of national minorities by their kin-state (Report on the Preferential Treatment of National Minorities by their Kin-State) .

Education rights

In 2017 the Commission examined the amendments to the 2011 Law on National Higher Education of Hungary. The amendments introduced more restrictive requirements for the licensing and operation of foreign universities which inter alia would put into question the very existence of the Central European University (CEU), established and lawfully operating in Hungary for many years. According to the opinion, the introduction without very strong reasons of such restrictive rules in respect of already active foreign universities, with severe legal consequences, was problematic. The Opinion recommended exempting already operating universities from most of the new requirements, as well as the non-discriminatory and flexible application of the new work permit requirements.

Opinions

In 2017 the Commission examined amendments to certain legislative acts of the Republic of Moldova concerning the use of special investigation measures outside criminal proceedings, under the authority of a “security mandate” granted by a judge. These included the time-limits for special measures, and the access of the concerned prosecutor and judge to secret information, instrumental for a meaningful control over coercive measures. However, the issue of the accountability of the Service remained, so the opinion recommended more detailed and clear rules governing the « mandate », and more specific definitions for extremism offences and other relevant legal concepts.

In 2016 the Commission adopted an opinion whereby it analysed amendments to the Police Act of Poland, which regulated the powers of the law-enforcement bodies to intercept and analyse private communications, and, in particular, to get access to the “metadata” of telephone and Internet users.

An opinion on two laws of the "former Yugoslav Republic of Macedonia"* – on the protection of whistleblowers and on the protection of privacy – sought to analyse a difficult balance between privacy and commercial secrecy, on the one hand, and the right of the population to know important facts pertinent to the public life in the country.

At the request of the Constitutional Court of Albania, in 2016 the Venice Commission adopted an amicus curiae brief which analysed legal aspects related to the restitution of property confiscated by the previous (communist) regime.

State of emergency

The 2017 opinion on Türkiye concerned the replacement of mayors during the state of emergency. Through an emergency decree law, the Law on Municipalities had been amended to enable the central authorities to appoint unelected mayors and exercise, without judicial control, discretionary control over the functioning of the concerned municipalities. This was criticised by the Commission since it altered the very nature of the system of local government. The Commission recommended to return to ordinary legislation and procedures to regulate such measures.

The 2016 preliminary opinion on the amendments to the Constitution of the Kyrgyz Republic expressed concern about the vaguely defined “highest values” in the Constitution, which could be used to restrict human rights and fundamental freedoms.

The opinion on the emergency regime in France (Opinion on the Draft Constitutional Law on the Protection of the Nation, 2016) touched upon, inter alia, the deprivation of French nationality or of the rights attached to it as an ancillary measure of criminal punishment related to certain categories of offences. In the Commission’s view, while such a measure is not per se against international standards, it must respect the principles of fair trial and proportionality.

Restitution of property

Discrimination

In 2018 the Venice Commission examined the draft law of the "former Yugoslav Republic of Macedonia"* on prevention and protection against discrimination. While concluding that the draft represented a real improvement on the Law currently in force, the opinion considered that further improvements were needed to ensure its full conformity with international standards and made a number of recommendations in this respect.

The Commission also examined three draft laws of Malta aiming at incorporating European Union and international regulations in the field of equality and non-discrimination into the Maltese legal order. The Commission praised the efforts of the authorities in this regard and made a number of recommendations so as to ensure that the aim of the draft laws will be fully achieved.

Fight against terrorism

The 2018 opinion on the Law on preventing and combating terrorism of the Republic of Moldova recommended a number of changes necessary to ensure the compatibility of the law with the international human rights obligations of the Republic of Moldova.

Amicus curiae briefs

In the area of fundamental rights, the Commission also provided amicus curiae briefs for the Constitutional Court of the Republic of Moldova (on prohibition of communist symbols and on judges immunity, 2013) and for the Constitutional Court of Bosnia and Herzegovina (on possible discrimination in the selection of the Republic Day of the Republika Srpska, 2013).

Studies

At the request of the Inter-American Court of Human Rights, in 2015 the Venice Commission adopted a comparative report on restrictions on freedom of expression, freedom of association, right to peaceful assembly and political rights of judges.

As a contribution to the Council of Europe Strategy for the rights of the children, in 2014 the Venice Commission adopted a Report on the children’s rights in constitutions. The report contained an overview of international standards and identified domestic good practices in the constitutional protection of children’s rights and of their enforcement.

Also in 2014 the Commission adopted a report on the implementation of human rights treaties in domestic law and the role of courts.

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* As of 12 February 2019, the official name of the country changed to the Republic of North Macedonia.