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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

Автор ACM
Thursday, 12 October 2017
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*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)

 

 

(../..)

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 sarko_merkel_mieux

The official presentation of a "Program" respecting People's choices voted in the June 7, 2009 EU Elections, to be debated in EU Council and EU Parliament during its 1st Session on July in Strasbourg, is the No 1 Priority, according to Democratic principles, for the Franco-German axis, said the main winners at the ballot box, French President Nicolas Sarkozy and German Chancellor Angie Merkel.

They stressed  that the New EU Commission's President must have a "Program" in favor of an EU which "protects" its Citizens, regulates financial markets and aims at a "Political" Europe" : a wording they have used as incompatible with Turkey's controversial EU bid.

They also declared ready for a "political" endorsment of "Mr. Barroso's candidacy" in June's EU Council, considering that an official decision would have to be made after EU Parliament's debates and votes, possibly from next month (July), with the legally necessary final acceptance shortly after Lisbon Treaty's entry into force, hoped for September or October.


- "A Program, and Mr. Barroso" : This resumes, in substance, the anouncements made by Sarkozy and Merkel, on the question of current EU Commission's President, Barroso's declared wish to succeed to himself for a second mandate, to be extended during the following 5 years.

 In their 1st meeting after EU Elections, they observed that "the Franco-German axis counted in European Elections' campaign... But, we both keep a realistic view : We saw the number of those who abstained, and we must absolutely give them an answer. We also see the disilusionment of an important number of Europeans vis a vis Europe, and we are aware of the responsibilities we have".

sarko

 - The "Duty" of the new EU Commission's President, after June 7, 2009 EU Elections' result, "is to act for a Europe which protects the Europeans, to commit himself into working for a better Regulation of Financial transactions, ... and to have a Political will for Europe", underlined Sarkozy.

Therefore, "we have asked M. Barroso... to clarify, to officialy present the intentions he has", he anounced.

- "We want to speak also about the Programme", explained Merkel.

- "It's important that for the next EU Parliament's mandate (2009-2014) we take the right Decisions for Europe.  Obviously on Persons, but mainly Decisions on Issues", she stressed.

- "It's not simply a question of a Person, it's also a question of a Programme". We are "really asking Mr. Barroso to commit himself on a Program, and on Principles, on Values", Sarkozy added.

EU President-in-office, Czech Prime Minister Jan Fischer, accepted the Franco-German stance :

- "Barroso must present his Programme. The Czech Presidency agrees with that", Fischer reportedly said later, after meeting Sarkozy.

But Press reports from Brussels claimed that Barroso had preferred to be officially appointed by EU Council since June, (i.e. next week), "because this was implied by the current Treaty of Nice, according to him", and considered any delay until the possible ratification of the new, Lisbon Treaty on September/October, as "undemocratic".

- "At any case, independently of what Germany and France ask, it's also EU Parliament's wish". "We shall propose Mr Barroso's candidacy... But even in the framework of Nice Treaty, EU Parliament has to be associated in this Decision", the French President observed.

If this is correctly done, then "we support Mr. Barroso's candidature", and "if the (EU) Parliament agrees, we might ratify this decision since July", (i.e. next month), they both said.

smerkem_400

- "France and Germany support Baroso's candidacy, But we want to speak also on the Program. We believe that this Program should be established in close cooperation with EU Parliament, and that's why we have followed an appropriate way", said Merkel.  - If EU Parliament wants, this election can take place on July,  but this must be done in full agreement.

- "We shall support Mr. Barroso's candidacy, without doubt", said Sarkozy. "But we have asked from Mr. Barroso, as I told him yesterday, to put into detail.. his intentions, at the eve of his 2nd mandate, if the situation avails itself.


    France and Germany "don't want to take an Official Legal Decision by writting" during "the next (EU) Council" (on June 18-19), declared Sarkozy.  Because they prefer, at this stage, only "a Political decision" on June, "so that we (EU Council) can work together with EU Parliament", which starts to meet only Next Month, since July in Srasbourg, "leaving a Legal decision by writting for later".

    - "If the Conditions are fuillfiled in EU Parliament, we (EU Council) are ready to give the agreement and make it offficial", said Merkel

    - "But, now we are working in the base of Nice Treaty. If tommorow we want to work in the spirit of Lisbon Treaty, we have to find a proper way", she added.

    - "Of course it's Legally complicated, because we are going to make a Political proposal to the forthcoming Council, for an EU Commission's President, on the basis of Nice Treaty : So, we (EU Council) will not appoint the Commissioners. Only the President.  If EU Parliament agrees, it could endorse this position on July", explained Sarkozy.

    But, on Autumn, "if Ireland ratifies Lisbon Treaty, there will be, at any case, a 2nd Decision, to appoint the Commission's President, this time on the basis of Lisbon treaty, and then, we, the EU Member States, would have to appoint (also) the EU Commissioners", he added.

    As for the precise Timing :  - "Everything is suspended until the Irish vote... Now, we must all make everything possible to help Ireland to say "Yes"" to Lisbon Treaty... The Irish Referendum, ..will take place either on September or on October. It's a Question which depends on the Irish. And,  then, we shall have the Choice of the Candidates for the permanent Institutions of Europe".

    However, "if Ireland says No, we, French and Germans, have to assume our responsibilities, and we'll do so", he concluded.

    But British and Swedish governments were reportedly eager to have a final EU Council decision on Barroso since this month, on June's European Council. While the other EU Member Countries are divided, several of them preferring to wait until EU Parliament pronounces itself, on July, and/or until Lisbon Treaty might be ratified by Ireland at the beginning of the Autumn. Barroso's current mandate ends on November.

    There are also various, contradictory and/or unpredictable reactions inside EU Parliament vis a vis Barroso's wish to continue a 2nd mandate, because many MEPs are openly or secretly opposed, reluctant, or hesitating.

    In the biggest EU Countries, as France and Germany, EU Citizens voted on June 2009 EU Elections for a renovated, non-technocratic but Political Europe which cares for its Citizens, with an Identity, Values and Borders, declared incompatible with Turkey's controversial EU bid, by mainstream, pro-European Governing Parties. Similar choices were also supported in several other small or medium EU Countries.

    On the contrary, whenever, in other Countries, Governing and other mainstream Parties didn't make these choices or eluded them, EU Citizens massively voted for euro-Sceptics whenever they were the only ones to to promise anti-bureacratic change and oppose Turkey's demand to enter into the EU, (f.ex. in the UK, Netherlands, etc).

    It's seems to be an Open Question whether Sarkozy and Merkel's conditions will be really accepted by Barroso, who was appointed on 2004 in a different political context, (with Socialist Prime Ministers in Germany, France, etc), had rejected in the Past the idea of EU becoming "equal to the USA" as "ridiculous", and pushed for Turkey's contoversial EU bid, trying to "soften" or contain the changes desired by the People who voted for Merkel and Sarkozy with another policy vis a vis Turkey on 2005 in Germany and on 2007 in France, as they did all over Europe on 2009.

    In addition to many EPP Governments, it's 3 remaining Socialist Prime Ministers : Gordon Brown in the UK, Zapatero in Spain, and Socrates in Prortugal, who support Barroso, as well as Liberal Swedish Prime Minister Reinfeldt. But their Parties lost the June 2009 EU Elections.

    Questioned whether there was still "Time" for "other" possible "Candidates", Sarkozy and Merkel did not deny, nor made any comment on that, but simply said that "it's not for us to make publicity for any candidates. We anounced our choice ("A Program, and Mr. Barroso"). But we respect any other candidate".

    Among various other names cited are former Belgian Prime Minister Verhofstadt, former UNO's Human Rights Commissioner Mary Robinson of Ireland, Italian former EU Commission's vice-President Monti, etc. Meanwhile, Luxembourg's PM Juncker, (who had been unanimously accepted by EU Council for EU Commission's Presidency on 2004, but refused), announced his intention to resign from "EuroGroup"'s Chair. Thus, he might be available for another Top EU job.

    As "EuroFora"'s "opinion" said (See publication dated 9/6/09) : - "If the current candidates (i.e. Barroso, etc) to the Top EU jobs promise and guarantee to respect People's democratic choices, then, it's OK".

"Otherwise, Europe must find new candidates, really motivated and able to implement these democratic choices of the People."

    Because, "in Democracy, the forthcoming choices for EU's Top Jobs,...should be made according to EU Citizens' Votes in June 7, 2009 European Elections, and main EU Governments' strategic policies".
        

***

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