english french german greek italian lithuanian russian serbian spanish
Pagina principale 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

Scritto da ACM
giovedì, 12 ottobre 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).


-------------------------------------


    + 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)

 

 

(../..)

---------------------------------------------------


StartUpEU

Statistics

Ospiti: 30138486

Archive

Login Form





Ricordami

Hai perso la tua Password?
Non hai ancora un Profilo? Crea Profilo

Syndicate

RSS 0.91
RSS 1.0
RSS 2.0
ATOM 0.3
OPML

Other Menu

cedh_press_conflistening_agg

ECHR's President to "EuroFora" on Journalists Gongadze and Adali murders : Principles must apply to all States, without discrimination.


+ ECHR's Statistics on Freedom of Expression (See below).


 European Court of Human Rights' President, Jean-Paul Costa, questioned by "EuroFora" on Journalists' murders, as in Gongadze and Adali's cases etc., strongly stressed all CoE Member States' obligation to make efficient Investigations to find and punish those responsible, and underlined that ECHR's case-law's principles must apply to all without any discrimination.

His call was clearly supported by various Top MEPs who denounced a risk of "Double Standards" if some Journalists' murders are investigated, while others don't.

To avoid such risks, CoE's Parliamentary Assembly adopted a Resolution, on the occasion of Ukranian Journalist Gongadze's murder, "stressing", as a matter of general Principle, "the importance it attaches to the safety of Journalists and political activists, especially those linked to opposition groups, in ALL member states of the CoE". All "crimes against journalists and political activists must be investigated ... as a matter of priority, without political interference".

Costa was replying to "EuroFora"s question on the fact that, after CoE's Committee of Ministers, also CoE's Assembly had just adopted a Resolution on Gongadze murder case, based on an ECHR's judgement of 2005, asking a full Investigation from Ukraine, who has found and condemned  in 10 years of jail 2 executants, but not yet the instigators.

While nothing similar was yet done for dissident Turkish Cypriot Kutlu Adali's murder, with 5 bullets shot at his head out of his Family's home in the territories of Cyprus occupied by Ankara's army, despite another ECHR's judgement of the same year 2005, and despite Turkey's claim that nobody was found among those responsible for the murder, and that there was nothing more to do..

In order to be credible and efficient, CoE's mechanisms shouldn't find a way to at least ask for full investigations of all Journalists' murders anywhere they might be committed, without exceptions ?

adali_gongadze


- "On the larger question that you raised, I'd like to say, since we are in a period of stock-taking on ECHR's 50 Years, that the Court's case-law developed certain concepts ....such as the Positive obligations of States, part of which are also the procedural obligations", started to reply ECHR's President.

 - "Whenever Journalists, Lawyers, Defenders of Human Rights, or even simple Citizens are murdered, the States are held responsible, not only if its their own security forces' agents who committed these murders, but also if they didn't make sufficiently substantial and efficient Investigations", he stressed.

- "I want to strongly underline that we (ECHR) have found in many cases numerous violations of Articles 2 and 3 against States, ....(about) murders or torture, ...because they didn't make enough Investigations in order to try to find and punish those responsible".

- "We (ECHR) do that vis-a-vis all 47 (CoE) Member States, without any discrimination".

"Naturally, the circumstances in each particular case may be differend, and we can't ommit to apply the rules of proof, or the rules of criminal procedure".

"But we try, by all means, to apply these principles of our case-law, to all States", he concluded.

imag0335_400


      Costa's call was strongly supported by several Top CoE MEPs, from various Political areas


- "To investigate the murder of one Journalist, and not of another, looks like Double Standards", denounced the President of EuroLeft Group in CoE's Assembly, Dutch MEP Tiny Cox.  

- "What is the reason ? Politics or specificity of a case ? Of course, if Cyprus and Turkey are involved, it's always a Political case"..

- "Murders of Journalists should always be fully investigated, because killing Journalists is not only killing persons, but also killing Free Press".  "We (CoE's Assembly) should do our outmost to help People who are working on Free Press and they are under threat or murdered".

Because for Free Politics, Free Press is a pre-requisitive : Parliamentarians  cannot  function without a Free Press. Not investigating, is not protecting ourselves".

So we should investigate all Journalists' murders : We are talking about Gongadze, about the Cypriot man (Adali), about the Journalist murdered in Moscow one week ago, etc", Cox concluded

- "CoE can' look at these cases differently. CoE can't wear Blinckers  !".
- "If the one is investigated, so has to be also the other. Why there wasn't full investigation ? Why's that ?", wondered British  Socialist MEP, Alan Meale.

- "A good idea" would be to "make a Motion for Resolution", and "join all Journalists' murders. Adali and Gongadze etc", said to "EuroFora" EU Parliament Political affairs Committee's President, Goran Lindbland, ChristianDemocrat MEP from Sweden.


(See also earlier News at "EuroFora" on similar issues).
-------------------------------

ECHR's Statistics on Freedom of Expression :


    Almost Half of condemnations by ECHR for violations of Freedom of Expression in 2008, concern Turkey : 20 out of a total of 48 for all CoE's Member States.

    Russia, Poland, France and Moldova were condemned only 3 times. Romania, Greece, Portugal, 2 times, and the other CoE Member States only 1 time, or none.
--------------------
    During the last Decade : 1998 - 2008, Turkey was condemned for violating Freedom of Expression in ..169 cases, while Austria only in 24.

    France and Moldova in 14 and 13, respectively, closely followed by Russia and Poland with 11 and 10, respectively. The rest of CoE Member States had less than ten condemnations.    
    

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 ?

Risultati

SMF Recent Topics SA

Copyright (c) 2007-2009 EIW/SENAS - EuroFora.net. All rights reserved. ISSN 1969-6361.
Powered by Elxis - Open Source CMS.