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Home arrow newsitems arrow CoE Rule of Law Criteria include Eurofora idea on Dialogue with Citizens before important Decisions

CoE Rule of Law Criteria include Eurofora idea on Dialogue with Citizens before important Decisions

Written by ACM
Thursday, 12 October 2017
coes_venice_commissions_rulf_of_law_checklist_euroforas_photo_400


*Strasbourg/CoE/Angelo Marcopolo/- The Parliamentary Assembly (PACE) of the PanEuropean Organisation for Democracy, Rule of Law and Human Rights, CoE, has just decided to Start Implementing, in real life, vis a vis all States and other Public Authorities, a List of Legal "Criteria" for "Rule of Law", which includes a Core part of "Eurofora"'s project on Dialogue with Citizens before Public Decisions affecting their Lives and/or Society at large (Comp. also : http://www.eurofora.net/newsflashes/news/eucoeabdcitizensinpublicdecisionmaking.html , etc) :


This is contained in a relevant "Check-List", drafted between 2012 - 2016, and re-Published on 2017, by the Prestigious PanEuropean CoE's Top Legal Experts' body known as "Venice Commission" for "Democracy + Human Rights through Law",  currently Chaired by experienced former Long-Time CoE's Senior Officer, Jean-Claude Buqicchio, who actively participated in PACE's Debate.


PACE had invited (already from 2007) the Venice Commission's Top Legal Experts to Study the concept of "Rule of Law" (alias : "Rechts-Staat"/"Etat de Droit", etc) in Depth, and the latter Found that, despite some more or less differences, nevertheless, un "Consensus" seemed to Exist, among 47 CoE's Member States, Observers a.o., as far as it concerns its "Core Elements" :


They include not only "Legality" and "Certainty", as well as "Non-Discrimination and Equality", but also "Access to Justice", and, in particular, "Prohibition of Arbitrariness".


The latter, aiming to "Prevent Abuse (or Misuse) of Power", (aka : "Detournement de Pouvoir"), by "Public Authorities", concerns "Legal Restrictions to Discretionary Power", when "exerciced by the Executive in Administrative Action", (a Frequent Phenomenon in Modern Societies). It consists in "Mechanisms to Prevent, Correct and Sanction" any "Abuse of Discretionary Power", including the "Judicial Review of the Exercice of such Power" when it's "given to Officials".


In particular, "Public Authorities" must be "Required to Provide Adequate Reasons for their Decisions", especially "when they they Affect the Rights of Individuals". So that "the Failure to state (such) Reasons", should be "a Valid Ground for Challenging such Decisions in Courts".


This is contained in CoE's "Venice Commission" Top Legal Experts' "Rule of Law CheckList" ("Critères de l'Etat de Droit") Booklet, which was Endorsed by the Highest Political body of the PanEuropean Organisation : its Committee of Ministers and Printed 3 Times on 2016, the Use of which was, Yesterday Evening, strongly advised by CoE's Parliamentary Assembly's Legal/Human Rights Committee's new President, Ms Olena Sotnyk, (See relevant "Eurofora" Photo).


As it was clearly explained, during PACE's Plenary Debates Yesterday Evening, this concerns a set of Principles, more or less Common to All concerned Countries, but in Each of which, the Concrete Ways to Implement them, might appear to be quite Diversified, in real Practice.


In Substance, what is really Common, is that all this concerns the use of Discretionary Powers by Public Authorities (and/or "Private Actors in charge of Public Tasks"), when the take Decisions which Affect Citizens' Rights and/or Society at large. And the Scope on which Bears the Monitoring by independent Courts, is Not the concrete Content, the Conditions, and/or the Aim of a Decision, as such, But, rather, the Decision-Making Process :


- I.e., particularly its Internal, Logical aspects, as far as it concerns an "Obligation to Give Reasons", and the Reality, Legality, Pertinence or Sufficiency of such a Motivation, (including, f.ex., if it Replies Adequately, or Not, to eventual legitimate Objections with Arguments that the Affected Citizens might have raised, etc). No "Detournement de Pouvoir" or "Abuse of Power", i.e. No Misusing a Power given by the Law only for a concrete Aim, in fact, for slyly seeking to obtain another, illegitimate aim, etc.


+ At the same time, it includes relevant Key aspects of the External Procedure of a monitored decision taken by a Public Administration in order to Regulate one or another area, such as, f.ex. : To be "Debated Publicly" and "Adequately Justified", with, previously, "the Public having Access to the Draft", and "a Meaningful Opportunity to Provide Input", (as CoE's above mentioned Booklet stresses, Referring, f.ex., to relevant Official Documents of UNO's Human Rights Committee, of the OSCE, etc), i.e. at least an elementary "Procedure Contradictoire" (according also to French Administrative Law, etc), sometimes going as far as to speak also of "Citizens' participation in the conduct of Public Affairs, by exerting Influence through Public Debate" (UNHRC, 1996).


++ But also the Absence of Excessive Dis-Proportionality between the Measure taken by a Public Authority, compared to its Legal Aim, and the way it Affects the Citizens. An Estimation of the Impact of a planed Measure to Citizens' Rights, Compared to the General Interest Benefits expected from it, in order to "allow to strike a Fair Balance, between the various conflicting Interests at stake", (ECHR). At least, withOut any "Erreur Manifeste d' Appreciation" about that, (in French Administrative Courts' case-law),  according to the usual denominations of relevant Judicial Monitoring on Public Administration's Decisions, in the real practice of several CoE's Member States, even of ECHR itself (on 2 out of those 3 points).


(Such Legal points have been extensively Analyzed by "Eurofora" Co-Founder's original Comparative Law University Research, already Started as Early as since 1980 -with a 1.000 pages-long Report, presented² by Strasbourg's Faculty of Law for a Prize awarded to PhD. Thesis, after written proposal by Paris II Universiy Professor Paul Amselek. But also more Recently, Since an active Participation in a landmark 2012 Scientific Colloquy at Strasbourg University, in cooperation with those of Rennes, Paris II, including a Report on a relevant Environmental Impact Committee's Public Debates with Citizens, set up by Michel Barnier when he was Minister, etc).


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    + The Fact that such a Legal Structure of Relations between Citizens and Public Administrations is considered by the CoE as corresponding widely to a certain Level of Development in Modern Democratic Societies in general, throughout the whole World, and Not Only in Europe, became Obvious, inter alia, also by the inclusion, among the 9 Top Legal Experts on the basis of whose "Comments" CoE's Venice Commission adopted this "Rule of Law CheckList", also of a Member from the USA. While, in Addition, Yesterday's PACE's relevant Debate in Strasbourg included also Representatives from Morocco up to Canada and Other Non-European Countries. Moreover, in a Resolution Voted and Adopted at the Conclusion of Yesterday's Debate, PACE clearly Asks all Venice Commission's "Member and (even) Observer States", (several among which, notoriously are located also in Other Continents accross the World), to "actively ...Defend and Promote" this "Rule of Law Checklist", them too.


    >>> However, the Most Important Decision taken Now by CoE's 47Member States-strong, PanEuropean Parliamentary Assembly , obviously is that this adopted 2017 Resolution, not only "Endorses" the "Rule of Law CheckList", but, Moreover, it also goes on to Add even its intention, for the 1st Time, to Start "Us(ing) it Systematically" , "particularly" ... in order to accurately Identify any structural and systemic (Legal) Problems in CoE's Member-States", whenever the Situations existing in them are checked by PACE's competent "Committees" on "Legal/Human Rights" affairs and/or its "Monitoring Committee", "on the Honouring of Obligations and Commitments by Member States".


    => I.e., in other words, it's as if PACE clearly and explicitly Decided, Now, in real Practice, to Start Using, at least from October 2017 onwards, that Venice Commission's "Rule of Law CheckList", (including the Above-Mentioned Key Legal Points), as if it had become a Legally Binding set of Rules nowadays !


    + For that purpose, PACE's Resolution also "invite(s)", Now, All "the National Parliaments and Government bodies", as well as "CoE's Secretary General", to "Systematically" "Refer" to, and/or "take into Account" that same "Rule of Law CheckList"'s Criteria, whenever the First have to work on various National "Reforms", or the Latter to make his "Annual Report on the Situation of Democracy, Human Rights and the Rule of Law in Europe", (as he Already Started to do so, from 2017).


    >>> And, since, now, that "Rule of Law CheckList"'s "Criteria" have been Officially Adopted, Both by CoE's Parliamentary Assembly, and Secretary General, from 2017, (Comp. Supra), as they were Also Endorsed, from 2016, by CoE's inter-Governemental Committee of Ministers, following "Venice Committee"'s Independent Top Legal Experts on Constitutional Law, and Joined even by CoE's Congress of Local and Regional Authorities, etc, then, it concerns, practically, All Levels of Government : Local, Regional and National.


    ++ Furthermore, Advancing even anOher, Important Step towards "Eurofora"s Project, for Dialogue between Citizens and EU Institutions (including EU Parliament, etc) Before important Decisions are taken which seriously Affect their Lives and/or Society at large, CoE's PanEuropean Organisation for Democracy, Human Rights and Rule of Law's Parliamentary Assembly, (PACE), also Decided Now, to "invite" even "International and Regional Organisations, including ...the EU, to refer regularly to the Rule of Law Checklist" in their "work", as that Adopted Resolution adds.


    Already, Experienced former Twice EU Ombudsman/Citizens' Defendor, Headquartered in Strasbourg, Professor Diamantouros had told "Eurofora" in the recent Past, that, After the Entry into Force of EU's Lisbon Treaty (2010+), his Intention to Start Using its General Clause (contained in EU's "Charter of Fundamental Rights") about "Good Administration", in order to Check EU Decisions' legality also from the Precise point of view highighted by "Eurofora" above, (Comp. f.ex.: ...).


    And, Nowadays, even the Booklet with CoE's "Venice Commission"'s "Rule of Law CheckList", Published on 2016, (Comp. Supra), explicitly Refers to relevant "selected Standards", contained, f.ex., as far as "Hard Law" is concerned, also to "EU's Charter of Fundamental Rights (2009)", UNO's International Convent on Civil and Political Rights (1966), etc., and, as far as "Soft Law" is concerned, also to "EU Commission's Communication to EU Parliament and Council on "a New EU Framework, to Strengthen the Rule of Law" (2014), EU Council's Conclusions "on Fundamental Rights and Rule of Law, and on Commission's 2012 Report on the Application of EU's Charter of Fundamental Rights (2013)", as well as to the "EU Accession Criteria" ("Copenhagen Criteria"), etc. But also to OSCE's Copenhagen Conference "on the Human Dimension" (1989), as well as its Follow-up with a Similar "Moscow meeting Document" (1991), and OSCE's "Decision No. 7/08" about "Further Strengthening the Rule of Law in the OSCE Area (2008)". Concerning, particularly, "Eurofora"s Specific Viewpoint (Comp. Supra), CoE's "Rule of Law Checklist" refers, about "Preventioon of Abuse of Power", also to the "UN International Convenant on Civil and Political Rights' (1966) Article 17, about "Interference with Freedoms", as well as in Thematic UNO's Texts about "Migrants and their Families (1990)", "the Rights of the Child (1989)", etc., and even to "CoE's Committee of Ministers : "The CoE and the Rule of Law" (2008), UNO's "Universal Declaration of Human Rights (1948), Articles 9, 12, 17", etc.


    Naturally, such Texts could also Inspire, in the foreseeable Future, EU's Court of Justice, at nearby Luxemburg, in parallel with ECHR in Strasbourg, at their respective Case-Law.

 

    => Therefore, PACE's Resolution, adopted Yesterday Evening, significantly Concludes by "Encourag(ing) Civil Society to Use the <<Rule of Law CheckList>>", in order to "objectively Assess Respect for the Rule of Law" in real, Everyday Practice.  

 
    >>>  - "It's one of the Most Important Pieces of Work we have Ever done !", stressed with Emphasis, Yesterday Evening, the experienced President of the PanEuropean Commission for Democracy through Law, (alias CoE's "Venice Commission")


    - Indeed, "the Rule of Law is Not Abstract, any more : We have just a Small Book", which, "in Reality, it's very Precious !", echoed further PACE's new Chair of its Legal/Human Rights Committee, MEP Olena  Sotnyk, concluding a long Debate.   

 

pace_legalhr_committee_new_president_mep_sotnuk_brandishing_venice_commissions_rule_of_law_checklist_booklet_eurofora_400


     She was proudly Brandishing a Copy of that Booklet as if it was, mutatis-mutandis, somehing like the World-Famous ...Mao's little "Red-Book", notoriously used by Millions of People, during China's "Cultural Revolution", back in the 1960ies ...

 
    => Could, indeed, CoE be Launching, now, its own, Legal, and brand New, peaceful "Cultural Revolution" ?

 

mao__people_on_1966_at_tien_an_men_square_photo_in_german_exhibition_of_2017__eurofora_screenshot_400

Mao + People brandishing the "Red Book", on 1966, at Tien an men Square, (Photo in Historic German Exhibition of 2017, covered by N-TV)

 

 

(../..)

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Sarkozy and Merkel : June 2009 solution to May 2005 "NO" ?

 - Will French President Nicolas Sarkozy and German Chancellor Angie Merkel live up from June 2009 to their obvious Historic European mission to revitalize, and re-launch the "European Dream", after the series of 3 "NO" since May 2005 in France, the Netherlands and Ireland, by renewing, and changing the EU with fresh stimulus, big horizons, and values attractive for EU Citizens ?

Whatever views anyone might have, it's a Fact that, recently, EU's political spectrum didn't produce other more charismatic and popular EU leaders than Merkel and Sarkozy, starting from September 2005 and May 2007, respectively.

This trend was confirmed, in one way or another, both during the German EU presidency in 2007 (shared by Merkel with the SPD), and mainly during the French EU Presidency in 2008, (with Sarkozy "free" to move).


The positive 2009 EU Polls are a natural consequence :

- Both with 72% Sarkozy and Merkel are considered by EU Citizens to be "the most Influential" leaders in Europe, by far.

- They are the only EU political leaders to attract a Majority of "Positive" views by EU Citizens, (Merkel over 60%, Sarkozy over 50%, particularly in the continent).

- 60% of EU Citizens find the 2008 French EU Presidency "Good", (and the satisfaction grows up to 67,5% in continental Europe).

The Poll was made by "OpinionWay" in big EU countries as Germany, Italy, Spain and the UK, (with the only exception of France), from 26 to 28 May 2009.

sarkozy_merkel_polls_400

But the most important is that both Franco-German leaders seem willing to, at last, really start serious business on EU's indispensable renovation and Renaissance from 2009 : Year of crucial EU and German Elections.

Therefore, this time, the joint European move by Sarkozy and Merkel, which just published a common Franco-German Manifesto, aims to stimulate aspirations and action not only in their respective countries, but also in many other EU "partners", as they say.

Both on EU economy, social values and scientifico-technologic research, as well as on Turkey's controversial EU bid, obviously incompatible with a popular Political Europe, whose Citizens can find a collective Identity and popular Values, they have already started to magnetize various growing voices accross the European landscape :

"Today, more than ever, it' time for action", they stress from the outset.

Facing "an unprecedented Global financial and economic Crisis", "Europeans must get resolutely involved if they want for the World which is being built to meet their Values of Liberty, Solidarity and Justice".

"That's what we want" and "propose to our Partners" :

* "A strong Europe, able to protect us" :

- "We refuse a Bureaucratic EU, which mecanically applies burdensome rules and is afraid of change. We want a European Union which listens what Citizens have to say, which innovates, stimulates".

- "We want a strong and united EU in the World, while also respecting its Member States' Diversity", which "brings Courageous Replies to the Questions of our Times, ensuring our Prosperity :  

This implies to "favor Research and Innovation", "Economic Coordination", to "develop real Policies on Immigrationn, Energy, Defence, and modernise  common policies, particularly Agriculture".

*  "EU must bring immediate replies to the Global Crisis".

- "Lawless liberalism failed". "The Model we want is that of a Responsible Market Economy, which favors Enterpreneurs and Workers, above Speculators ;  Long-term Investment, over immediate profiits".

- "We appeal upon the EU to take, from June, the first decisions to ensure a real European Regulation of Financial Markets, based on coordination and cooperation". "On speculative funds, on fiscal heavens, CEO's and financial operators' earnings, EU must give the example".

- "We call to change the rules of accounts, which are important for our Economy's revival : The competent normative authorities must take action". "The issue of a sufficient Credit offer is of central importance for our Economy". "We don't accept that, during this Financial Crisis, the European Banks' capacity to lend money might be unjustly reduced by Capital's requirements and accountant's rules

* "During the German and French Presidencies, EU has resoçlutely prepared itself for the fight against Global Warming... EU is the 1st and only area in the World to have adopted a package of ambitious and legally binding rules to comply with International Aims"

- "We have now to convince our Friends and Partners, to get involved, in order to atteint, next December at Copenhagen, a Global Agreement worthy of whay is at stake. Our closer ally, the US, but also other big industrial countries, must commit themselves with the same force as the Europeans".

"Green Growth is a Chance ... and an opportunity to create jobs turned towards the Future. Europe must be a leader".

- But, at the same time, we must ensure that our companies remain competitive in the World. The ambitious European involvements on Climat must not lead into a position where EU industry might become a Victim of Unfair Competition. Climat protection and Competitvity must go together. If our International partners refuse to associate themselves to our efforts, we are determined to take measures to protect European Industry"

* "Europe must be more ambitious for its Industry" : "It must favor the emergence of strong European enterprises at a Global level".

- "As long as an International mechanism" to "monitor Public Aids at WTO level, and hinder 3rd Countries to give abusive subsidies to their enterprises, provoking unfair competition", is "not yet set up, we must consider Transitory European Solutions".

* "The current Public Debt is too heavy... We must head anew towards sound public finance, as soon as we'd have passed the crucial stage in this crisis".
-------------------------------------------------

* Last, but not least :  "Europe must play a top-level role in the World"

- "For that purpose,  it needs efficient Institutions. That's why we need Lisbon Treaty". "The 27 Member States decided, last December (2008) that the Treaty should enter into force before the end of this year (2009)". To obtain that, June EU Council must agree "on the Guarantees for Ireland".

- But, "to be able to act, EU needs Borders. An Enlargment without Limits is not possible", Sarkozy and Merkel stressed in an obvious reference to Turkey, etc.

- "In order to be strong, Europe must assume its Values and its Identity". "Human Rights .. are at the basis of our commitment for a Peaceful Development accross the World".

- "For that purpose, we shall strengthen our common Defence and Security policy".
----------------------

* "We are ready to contribute to activate the EU towards the realisation of these aims, with our EU Partners".

"In order to succeed", Europe  "needs the active involvment of all, starting by Citizens themselves. That's why the June 7 rendez-vous is important", and "we are calling all Europeans to vote".

"We are convinced that, if Europe wants, Europe can", they conclude.
-----------------------

Precisely : - What can better forge "Europe's Will" than a "European Consciousness" emerging from political, democratic struggles to face Global Challenges, and open big New Horizons, including by crystal-clear Public Debates, with active EU Citizens' involvement, before the most important EU Decisions affecting People's lives ?

Precisely what "EuroFora"s project warns since 1997-2007, and unprecedented Majority Abstentions, since 1999-2004, added to 3 "NO" to EU Referenda in 2005 and 2007, proved meanwhile..

Let's hope that the Time wasted by some scandalous anti-European and anti-Democratic obstacles of the Past, will stimulate faster, simplified but substantial and persistent, efficient action.-

Polls

2009 EU Elections were won by Parties against Technocracy and Turkey's controversial EU bid, while the 1999-2004 Majority Abstention trend decelerated. What should be done in 2009-2014 ?

Results

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