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79th Plenary Session of the Commission (Venice)

12/06/2009 - 13/06/2009

HIGHLIGHTS:

Armenia - - Freedom of religion
The Armenian National Assembly has requested the assessment by the Council of Europe of the draft amendments to the law on freedom of conscience and on religious organisations. These amendments concern in particular the conditions for registration of religious associations. The assessment has been carried out jointly by the Venice Commission, the Legal and Human Rights Capacity Building Division of the Directorate General of Human Rights and Legal Affairs, and the ODIHR Advisory Council on Freedom of Religion and will be discussed at the next Plenary Session.

Serbia -– criteria for judges and prosecutors
At the last plenary session on 13 June, the Commission has adopted two opinions, at the request of the Ministry of Justice of Serbia, on:
(1) the draft Criteria and standards for the election of Judges and Court Presidents; and
(2) the Rules of procedure on criteria and standards for the evaluation of qualification, competence and worthiness of candidates for bearers of public prosecutor’s function.

THE DRAFT CRITERIA ON JUDGES are welcomed by the Venice Commission and are on the whole in line with European standards. However the Venice Commission raises reservations with respect to the manner in which the various skills are going to be evaluated and balanced against one another. It is important that a proper evaluation is carried out and that these criteria are not simply treated as a numbers exercise.

The draft criteria have partly addressed the Venice Commission’s concerns about the re-appointment procedure for existing judges, who have not been guilty of any wrongdoing, notably with the presumption that these judges fulfil the criteria in this draft. However, this presumption can be overturned, and in this respect, the Venice Commission advises that caution be applied.

It seems to the Venice Commission that the timeframe for the implementation of the re-appointment procedure, which is currently 1 December 2009, is very short.

THE DRAFT CRITERIA ON PROSECUTORS are very detailed, comprehensive and form a good basis on which to establish objective criteria for the appointment and promotion of prosecutors. They provide for a concrete and objective evaluation of prosecutors, carried out by the State Prosecutorial Council, an authority that provides guarantees of impartiality and competence.

The main concerns raised by these criteria relate to the following:

• the risk of an over mechanistic approach to statistical information concerning workloads and the like, and
• evaluating persons through the use of questionnaires by their colleagues which are filled anonymously poses some risks, which could be overcome by introducing some safeguards to avoid the possibility that a prosecutor could be evaluated unfairly.

In addition, the evaluation procedure is going to require much work from the prosecutors and from the State Prosecutorial Council. It is therefore important that the persons responsible for the evaluation be able to take on this duty under conditions that will lead to a fair outcome.

Opinion on constitutional reform in Ukraine
The Commission adopted, at the request of the Permanent Representation of Ukraine to the Council of Europe, an opinion on the proposal of President Yushchenko for a new version of the Constitution. The Minister of Justice of Ukraine, Mr Onishchuk, took part in the discussions.

The Venice Commission notes that the draft provides clear improvements both with respect to previous drafts and to the current Constitution. These improvements are particularly apparent with respect to the provisions on the judiciary and the prosecution service. Here the draft no longer reflects the Soviet model of prokuratura but a model of the prosecution service in line with European standards and in compliance with Ukraine’s commitments to the Council of Europe.

The Venice Commission also welcomes that the draft abandons a number of questionable provisions of the current Constitution, e.g. on the formalised majority coalition in the Verkhovna Rada, on the so-called imperative mandate, the double responsibility of the Cabinet of Ministers to the President and to the Verkhovna Rada and the distinction between ministers appointed on the proposal of the President and ministers appointed on the proposal of the Prime Minister.

According to the Venice Commission, opinions on one of the major innovations of the draft, the establishment of a second chamber, may differ. Advantages and drawbacks of this solution have to be weighed carefully.

Other proposed amendments receive a more critical assessment. The requirement that all constitutional amendments require a referendum risks making the Constitution excessively rigid and the expansion of direct democracy at the national level creates additional risks for political stability. While changes with respect to the position of the Autonomous Republic of Crimea are not dramatic, they tend to decrease the autonomy.

Finally, the Commission notes that the draft describes the powers of the state organs more precisely and that it removes a number of sources of tensions between them. Nevertheless, in view of the Commission it is not evident that the draft attains its main aim of putting an end to the constant institutional conflicts between the main state organs. The draft maintains a semi-presidential system with a double executive and areas of potential conflict between the President and the Cabinet of Ministers remain.

The imperative mandate and "recall" practice are contrary to the principle of free and independent mandate
The imperative mandate and "recall" are procedures through which citizens have the right to revoke or replace an elected official before the end of his/her mandate. This concept of imperative mandate is widely rejected in democracies although some countries have used this institution to try to solve a particular problem (the "political nomadism" or "floor-crossing", the defection of a political party or change of affiliation).

The report, which was adopted by the Venice Commission on 12 and 13 June 2009, concludes that at present, the imperative mandate and the "recall" is not practiced in European countries. The Commission has repeatedly argued that the disqualification of a representative capacity for changing of his/her political affiliation violates the principle of a free and independent mandate. Even if the purpose of such measures (i.e. to prevent an elected member to "sell" his/her mandate to the highest bidder) may be treated with some understanding, the fundamental constitutional principle that prohibits any practice aimed at depriving a representative of his/her mandate, should prevail as a cornerstone of the European democratic constitutionalism.
Increased use of private military and security firms - Venice Commission opinion

The Venice Commission addressed the questions raised by the increased use of private military and security firms (PMSCs) in the light of the proposals made by the Parliamentary Assembly in its Recommendation 1858(2009), which calls for the elaboration of a new instrument on this matter. The Venice Commission considers that some of the issues taken up by the PACE – while undoubtedly of international concern – are not appropriate for inclusion in a Council of Europe treaty. Other parts of the PACE recommendation could form the basis of future treaty provisions. However, for a number of reasons analysed in the report, a Council of Europe treaty on the subject of PMSCs would, at the present time, be very time-consuming and problematic to draft.

Nonetheless, certain of the issues taken up by the PACE are suitable subjects for a Committee of Ministers recommendation, such as the invitation to the CoE member states
1) to review their national laws dealing with registration/licensing of PMSCs, to see if these provide a proper degree of regulation of the extraterritorial activities of PMSCs,
2) to review their criminal legislation to determine whether there is jurisdiction over serious offences committed by personnel of PMSCs and
3) to review their civil law systems to determine whether it is possible to make claims for damages for extraterritorial civil wrongdoing against PMSCs incorporated in the state.

Joint guidelines on media analysis during election observation missions
This document summarises more developed guidelines adopted previously by, inter alia, OSCE/ODIHR and the Venice Commission. It aims at giving tools for analysing how media can influence the electoral process. It focuses on the following issues:
o voters’ right to receive information;
o candidates’ right to impart information;
o the media’s freedom of expression.

In particular, it examines issues such as news coverage, free airtime and paid advertising.

Report on the impact of electoral systems on women’s representation in politics
Following a request of the Committee on equal opportunities for women and men of the Parliamentary Assembly, the Commission adopted a report on the impact of electoral systems on women’s representation in politics.

This report concludes that there are a wide variety of socio-economic, cultural and political factors that can hamper or facilitate women’s access to parliament.

Among the institutional factors, both the electoral system and gender quotas can strongly influence women’s parliamentary representation. Among other factors favourable to women’s representation are:
o district size ( number of seats per district);
o party “size” (i.e. number of seats per party);
o thresholds (excluding small parties).

In addition, it shouldn’t be forgotten: the electoral systems aim to fulfil a number of objectives, and women’s representation may oppose some of them (e.g.: the most proportional representation possible).
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