1042bis Meeting, 27 November 2008
1 General questions
1.2 Stocktaking of the Swedish Chairmanship and decisions to be adopted
b. The Council of Europe and the Rule of Law - An overview
Table of contents
I. INTRODUCTION 2
II. THE RULE OF LAW AS PART OF THE CORE MISSION OF THE
COUNCIL OF EUROPE 2
Basic texts 2
2008 Programme of activities: a snapshot 3
Some interim conclusions 4
Relationship between rule of law, democracy and human rights
III. THE KEY COMPONENTS OF THE RULE OF LAW AS
UNDERSTOOD BY THE COUNCIL OF EUROPE 5
The relevance of the ECHR 7
A. The institutional framework and organisation of the state
B. The principle of legality: principles of lawfulness, legal
certainty and equality before the law 8
C. Due process: judicial review, access to courts and
remedies, fair trial 10
Rule of law at the international level 11
IV. THE COUNCIL OF EUROPE’S WORK TO PROMOTE THE RULE OF
LAW AND ENSURE ITS RESPECT: A TYPOLOGY 11
A. Promoting the conditions necessary for the rule of law 12
B. Promoting respect for the rule of law 13
C. Addressing threats to the rule of law .15
D. Ensuring respect for the rule of law 16
E. Strengthening the international rule of law 18
V. OVERVIEW OF RULE OF LAW ACTIVITIES OF OTHER
ORGANISATIONS (EU, OSCE, UN) 19
European Union 19
Organisation for Security and Co-operation in Europe (OSCE)
United Nations 21
VI. CONCLUSION 22
Wherever law ends, tyranny begins (John
1. At the 118th Ministerial Session, the Ministers
reaffirmed the importance of the principle of the rule of law for consolidating
democracy and respect for human rights and asked their Deputies to examine how
full use could be made of the Council of Europe’s potential in promoting the
rule of law and good governance and to report to them on the occasion of the
handover of the Committee of Ministers Chair from Sweden to Spain in November
2008 (Document CM(2008)47 final). At their 1027th meeting on 21 May 2008, the
Deputies invited their Rapporteur Group on Legal Co-operation (GR-J) to examine
this matter. At its meeting on 1 July 2008, the GR-J held a first discussion on
the item “Examination of how full use can be made of the Council of Europe’s
potential in enhancing the rule of law”. This discussion took place on the basis
of a document submitted by the Swedish delegation (DD(2008)393) proposing the
development of a Council of Europe strategy to reinforce the promotion of the
rule of law.
2. The GR-J requested the Secretariat to prepare a
descriptive document seeking to define key components of the concept of rule of
law and draw up a typology of activities undertaken by the Council of Europe
relevant to the rule of law, notably standard-setting and co-operation
activities. The document should also contain information about relevant
activities of the EU and other international organisations.
3. This document was prepared in response to the GR-J’s
II. THE RULE OF LAW AS PART OF THE CORE MISSION OF THE
COUNCIL OF EUROPE
4. The rule of law is one of the three core principles of
the Council of Europe, along with the enjoyment of human rights and fundamental
freedoms and the concept of genuine democracy (1949 Statute, recital 3 of the
preamble and Article 3). More particularly, the rule of law is, together with
individual freedom and political liberty, referred to as “principles which form
the basis of all genuine democracy” (recital 3 of the preamble).
5. The preamble to the European Convention on Human Rights
(ECHR; 1950) expresses the resolve of governments of European countries which
are like-minded and have a common heritage of political traditions, ideals,
freedom and rule of law, to take the first steps for the collective enforcement
of certain of the rights stated in the Universal Declaration of Human Rights
6. While neither the Statute nor the ECHR elaborate on the
concept of the rule of law as such, it should be noted that the rule of law is
considered to be a “principle” and that its close links with democracy
and human rights are already highlighted in these early fundamental texts of the
Council of Europe. Furthermore, important guidance on the content of the rule of
law principle can be derived from the ECHR, which contains many rule of
law-related provisions (see Section III below).
7. The rule of law has been systematically referred to in
the major political documents of the Council of Europe, as well as in numerous
legal instruments such as Conventions and Recommendations. The three Summits of
Heads of State and Government have resulted in Declarations and Plans of Action
underlining the importance of the rule of law as central part of the Council of
8. In the Vienna Declaration (1993), emphasis was
laid on the fact that accession to the Council of Europe presupposes that the
applicant country has brought its institutions and legal system into line with
the basic principles of democracy, the rule of law and respect for human rights.
Observance of the principles of international law was seen as a decisive
criterion for membership and acceptance of the ECHR’s supervisory machinery
within a short period as fundamental. The Declaration also states that the
setting up of appropriate legal structures and the training of administrative
personnel are essential conditions for the success of economic and political
transition in Central and Eastern Europe.
9. In the Strasbourg Final Declaration and
Action Plan (1997) the Heads of State and Government solemnly reaffirmed
their attachment to the fundamental principles of the Council of Europe –
pluralist democracy, respect for human rights, and the rule of law. They
underlined the contribution of the Council of Europe’s essential
standard-setting role to the development of international law through European
conventions. The Action Plan sets out an agenda for action in five fields,
including democracy and human rights. The rule of law is not included as a
distinct field but there is a section entitled “Security of citizens” covering
actions to combat terrorism, corruption and organised crime, to prevent drug
abuse, and to protect children.
10. The Warsaw Declaration (2005) states that the
Council of Europe shall pursue its core objective of preserving and promoting
human rights, democracy and the rule of law. All its activities must contribute
to this fundamental objective. The Heads of State and Government committed
themselves to “developing those principles, with a view to ensuring their
effective implementation by all member states. In propagating these values, we
shall enhance the role of the Council of Europe as an effective mechanism of
pan-European co-operation in all relevant fields.” (paragraph 1).
11. This is elaborated further in paragraph 4: “We are
committed to strengthening the rule of law throughout the continent, building on
the standard-setting potential of the Council of Europe and on its contribution
to the development of international law. We stress the importance of an
independent and efficient judiciary in the member states in this respect. We
will further develop legal co-operation within the Council of Europe with a view
to better protecting our citizens and to realising on a continental scale the
aims enshrined in the Statute.”
12. A separate paragraph of the Declaration dealing with
security of citizens states that the Council of Europe will continue to play an
active role in combating terrorism, corruption, organised crime, trafficking in
human beings, cybercrime and the challenges attendant on scientific and
technical progress. Measures shall be promoted “consistent with our values to
counter those threats.” (paragraph 8).
13. The Warsaw Action Plan likewise places rule of
law – related action in a different section (Chapter I, section 3: Strengthening
democracy, good governance and the rule of law in member states) from action
designed to strengthen the security of European citizens (Chapter II).
14. As regards the rule of law, support is expressed for,
and impetus given to, the work of the Venice Commission, the European Commission
for the Efficiency of Justice (CEPEJ) and the Consultative Council of Judges of
Europe (CCJE). Nationality law and family law are highlighted as focus points
for continued Council of Europe action. More generally, the Action Plan states
that full use will be made of the Council of Europe’s standard-setting potential
and that implementation and further development of its legal instruments and
mechanisms of legal co-operation will be promoted.
15. Regarding the security of citizens, actions are
announced concerning the various security threats mentioned in the Declaration.
The rule of law is explicitly mentioned in the section on the information
society: “The Council of Europe shall further elaborate principles and
guidelines to ensure respect for human rights and the rule of law in the
information society.” (Chapter II, section 5).
16. Finally, the rule of law is referred to in the Action
Plan sections dealing with co-operation with the EU and the OSCE, including in
the Guidelines and Declaration appended to it. As regards the EU, the rule of
law occupies a prominent place in the Memorandum of Understanding between the
Council of Europe and the EU which was elaborated on the basis of the Guidelines
of the Warsaw Action Plan and adopted on 10 May 2007.
2008 Programme of activities: a snapshot
17. The 2008 POA structure comprises five main thematic
chapters: Human Rights, Rule of Law, Democracy and good governance, Social
cohesion and Culture and intercultural dialogue.
18. The rule of law chapter contains three lines of action
(LoA): Functioning and efficiency of justice, Strengthening rule of law
standards, and Strengthening the security of European citizens.
19. The first LoA “Functioning and efficiency of justice”
covers the work of CEPEJ (evaluating and improving the efficiency of Justice) as
well as capacity-building concerning the organisation of independent judicial
systems and the strengthening of the status, role and functions of judges and
prosecutors. This LoA is linked to several Joint Programmes (CoE-EC) and VC
projects which are country or region-specific.
20. The second LoA “Strengthening rule of law standards”
focuses, first of all, on CM monitoring and support to states in implementing
their commitments, strengthening national legal frameworks and raising awareness
about European standards, and developing Council of Europe standards in public
and private law2
and ensuring their implementation (CDCJ). A second focus is given to the
implementation of specific co-operation activities in post-conflict situations,
in particular in the Chechen Republic of the Russian Federation and in Kosovo3
and the coordination of Council of Europe activities in these areas. Finally,
the LoA also covers the strengthening of the role and development of
international law in order to promote international co-operation (CAHDI).
21. The third LoA “Strengthening the security of European
citizens” comprises two programmes: Democratic responses to terrorism and
European standards for crime control. The first covers the promotion of
signatures, ratifications and implementation of relevant Council of Europe
conventions, and the identification of gaps in international law applicable to
the fight against terrorism as well as means to fill them (CODEXTER). The second
covers a wide range of intergovernmental activities to help criminal justice
systems to fight crime effectively and humanely, including through
standard-setting and international co-operation (CDPC). It also comprises
monitoring in specific fields (GRECO, MONEYVAL) and a host of technical and
targeted co-operation activities in fields such as fighting (organised) economic
crime and cybercrime, implementation of European standards regarding law
enforcement officials, criminal sanctions policies, imprisonment and prison
systems, rehabilitation, alternative sanctions, etc. Several Joint Programmes
and VC projects are linked to this LoA.
Some interim conclusions
22. The foregoing overviews are not sufficient to allow
the drawing up of a list of key rule of law requirements accepted by the Council
of Europe, let alone a definition. At best, they give some indirect impressions
of the meaning of rule of law, by identifying (only) some areas of activity of
the Council of Europe which are deemed relevant and important in rule of law
terms. It would be wrong to assume, for example, that all rule of law-related
activities of the Council of Europe are covered under the above-mentioned
headings in the Programme of Activities.
23. However, some first conclusions can be noted
concerning the Council of Europe’s understanding of the rule of law concept:
- rule of law is a
principle, not a distinct area of activity for the Council of Europe (although
some of its areas of activity are seen to be more closely associated with the
rule of law than others); this explains why it is impossible to place all
relevant activities together in a single chapter of the Programme of Activities;
- the rule of law
principle is one of the three fundamental principles of the Council of Europe,
together with pluralist democracy and respect for human rights;
- these three
principles are closely interconnected: preserving and promoting human rights,
democracy and the rule of law is nowadays even seen as a single objective - the
core objective - of the Council of Europe.
24. Like democracy and respect for human rights, the rule
of law is a principle pertaining to the organisation and functioning of the
state. In accordance with Article 3 of the Statute, Council of Europe member
states must accept this principle; they are therefore expected to be states
based on the rule of law.
Relationship between rule of law, democracy and human
25. The interrelationship between these three notions can
be illustrated by the following figure:
26. Democracy, rule of law and human rights can be seen as
three partly overlapping circles. Some principles, such as equality and
non-discrimination, belong to all three notions (the grey area in the figure).
Others are more directly associated with two of the three notions, such as the
fair trial principle (rule of law and human rights) or the principles of freedom
of expression, assembly and association (democracy and human rights). Still
other principles operate principally in relation to one of the three notions
(e.g. the human rights principle of freedom of movement).
27. However, this simplified representation does not show
the interdependence between the three notions. There can be no democracy
without the rule of law and respect for human rights; there can be no rule of
law without democracy and respect for human rights, and no respect for human
rights without democracy and the rule of law.
28. The fact that the three concepts, taken together, form
a single fundamental objective for the Council of Europe makes it less necessary
for it to adopt a particular definition of the rule of law. Such an exercise of
disentangling notions that are so closely intertwined and mutually supportive
might even be risky in terms of overlooking essential human rights and
democratic requirements and aspects.
III. THE KEY COMPONENTS OF THE RULE OF LAW AS
UNDERSTOOD BY THE COUNCIL OF EUROPE
29. It is somewhat paradoxical that, although no
authoritative definition of the rule of law exists within the Council of Europe,4
the Organisation works pragmatically on a daily basis to promote and strengthen
the rule of law in and among its member states. In fact, there is a strong
consensus within the Council of Europe as to the basic requirements that flow
from the rule of law principle.
30. A recent illustration is the White Paper on
Intercultural Dialogue which was officially launched by Ministers at the 118th
Session of the Committee of Ministers in May 2008, section 3.4.1 of which deals
with the rule of law in the following terms: “The fundamental standards of the
rule of law in democratic societies are necessary elements of the framework
within which intercultural dialogue can flourish. They ensure a clear separation
of powers, legal certainty and equality of all before the law. They stop public
authorities taking arbitrary and discriminatory decisions, and ensure that
individuals whose rights are violated can seek redress from the courts.”
Contrary to other sections of the White Paper, approval of this particular
paragraph required little or no debate among the member states.
31. This high degree of consensus in the Council of Europe
about the basic requirements of the rule of law is all the more significant in
view of the conceptual and philosophical differences between the main legal
traditions in Europe on this score. The German concept of Rechtsstaat
which began to develop in the 19th century and which French scholars adapted
into the Etat de droit in the early 20th century, differs from the
concept of the rule of law which became part of constitutional theory in the UK
in the late 19th century. Although there are certainly common features and
objectives (put very simply, the rule of law is about restraining the exercise
of public and political power by subjecting it to certain principles such as the
principle of legality), there are important conceptual differences. The British
rule of law concept traditionally tends to emphasise formal/procedural
requirements, whereas the German concept, in its original form and even more so
today, adds an important substantive dimension by stressing the protection of
fundamental rights as a Rechtstaat principle.5
32. There is an ongoing discussion in legal theory about
different conceptions of the rule of law: more formal (or “thinner”) conceptions
vs. more substantive (or “thicker”) conceptions.6
Simply put, this distinction mostly concerns the question of whether the rule of
law principle consists only of process and form – related requirements or
whether, in addition, it contains requirements regarding the content of
the laws that rule. Human rights and human dignity are the key example of value
requirements inherent in a substantive conception.
33. In practice, however, rule of law (Rechtsstaat;
Etat de droit) conceptions are not static but evolving. Especially since WW
II, there has been a significant and steady process, not necessarily of
convergence of traditionally different rule of law conceptions in national legal
systems in Europe (these conceptions remain quite strongly impregnated by
national traditions and contexts), but of recognition of a common core of rule
of law requirements that apply in Europe across different national traditions
Notions of Rechtsstaat, Etat de droit and rule of law tend to
amalgamate in the European legal order.8
The process of European integration and co-operation both in the EC/EU and in
the Council of Europe has indeed been (and continues to be) an important factor,
as has the development of European human rights law as part of that process. The
adherence of all Council of Europe member states to the ECHR and their being
subject to the jurisdiction of the European Court of Human Rights was highly
instrumental in creating a common European core of rule of law requirements
which is still developing further.
The relevance of the ECHR
34. As was stated in Section II above, the ECHR contains
many rule of law-related provisions. But the relevance of the ECHR for the rule
of law and vice versa does not stop here. In its landmark judgment in the
Golder case (21.2.1975, § 34), the Court underlined the relevance of the
rule of law for the interpretation of the ECHR. Referring to the preamble, the
Court stated that “one of the reasons why the signatory Governments decided to
take the first steps for the collective enforcement of certain of the rights
stated in the Universal Declaration of Human Rights was their profound belief in
the rule of law.” Many subsequent judgments have confirmed that the rule of law
clearly is a fundamental guiding principle to the application and interpretation
of the ECHR.
The case-law has clarified that the principle inspires the
whole Convention and is inherent in all the Articles of the Convention (see,
e.g., Engel and Others, 8.6.1976, § 69; Amuur, 25.6.1996, § 50).
Today, there exists such an impressive body of case-law on rule of law-related
requirements that it is not exaggerated to state that the ECHR and the Court are
not only instruments for the protection of human rights but also tools for the
protection of the rule of law and the collective enforcement of its
35. On the basis of that case-law, it is possible to list
a number of rule of law-related requirements (components, constitutive elements
or sub-principles) that form part of the law of the ECHR.10
36. These can be grouped under three main headings.
A. The institutional framework and organisation of the
37. It is in this context that the Court tends to refer to
Etat de droit (“State based on the rule of law”)11
rather than prééminence du droit (“rule of law”), the expression used in
the preamble to the ECHR.
38. The notion of separation of powers, notably
between the political organs of the state (executive, legislature) and the
judiciary has assumed a growing importance in the Court’s case-law. While the
Court has refrained from elaborating a general theory on separation of powers or
on checks and balances between the legislature, the executive and the judiciary,
it is careful to protect the judicial process from interferences by the
legislature or the executive (e.g. Stafford, 28.5.2002 § 78;
Beaumartin, 24.11.1994, § 38; Öcalan, 12.5.2005, §§112 and 114;
Kleyn and Others, 6.3.2003, §§ 193 and 200; Zielinski and Pradal &
Gonzales, 28.10.1999, § 57; Stran Greek Refineries and Stratis Andreadis,
9.12.1994, § 49). Furthermore, it is not compatible with the rule of law if the
legislature gives excessive discretion to the executive (Malone,
2.8.1984, § 68) or the judiciary (Kruslin and Huvig, 24.4.1990, § 36) to
take measures which negatively affect human rights.
39. The role of the judiciary is essential in a
state based on the rule of law. It is the guarantor of justice, a fundamental
value in a law-governed state (De Haes and Gijsels, 27.1.1997, § 37). In
criminal matters its role in the prevention and repression of crime, in
particular when committed by State agents, is linked to the notion of the rule
of law notably when procedural obligations under Articles 2 (right to life)
and 3 (prohibition of torture) ECHR are at stake. Impunity, de jure
or de facto, for violations of these Articles, is incompatible with the
principle of the rule of law. In this context, the Court has repeatedly stressed
the importance of maintaining public confidence in the (authorities’ adherence
to) the rule of law and preventing any appearance of the authorities’ tolerance
of or collusion in unlawful acts (Hugh Jordan, 4.5.2001, § 108; Okkali,
17.10.2006, § 65). A state based on the rule of law has the duty to employ the
necessary measures to uphold the law on its territory and to ensure
the security of all as well as the enjoyment of human rights (Lelièvre,
8.11.2007, § 104). As one element of a state subject to the rule of law,
prosecuting authorities must show the necessary diligence in the implementation
of criminal law in order to prevent and repress crime and protect the citizens (Saygili,
8.1.2008, § 35).
40. Article 6 § 1 ECHR requires that a tribunal must
always be established by law. This reflects the principle of the rule of law
inherent in the whole ECHR system. Legislation on the establishment and
competence of judicial organs must be enacted by parliament, failing which a
tribunal would lack the necessary legitimacy in a democratic society to hear the
cases of individuals (Lavents, 28.11.2002, § 81; Jorgic,
12.7.2007, § 65).
41. More generally as regards the legislature, the Court
has systematically described the right to vote and stand for election as a right
“central to democracy and the rule of law”, thus illustrating the
interdependence between these notions (Hirst, 6.10.2005, § 58;
Albanese, 23.3.2006, § 44).
42. The duty of the state, notably the executive, to
respect and apply the law, including the duty to enforce final domestic
judgments, will be further addressed under the principle of legality below.
Here, reference should be made to the importance of administrative courts
which the Court has highlighted as one of the most conspicuous achievements of a
state based on the rule of law, in particular because the jurisdiction of those
courts to adjudicate on acts of the administrative authorities was not accepted
without a struggle (Kress, 7.1. 2001, § 69).
B. The principle of legality: principles of lawfulness,
legal certainty and equality before the law
43. The principle of legality (sometimes referred to as
supremacy of the law) forms a traditional core part of the rule of law concept.
The rule of law requires that the state acts on the basis of, and in accordance
with, the law. This offers essential legal protection of the individual
vis-à-vis the state and its organs and agents. Many ECHR provisions reflect this
principle through references to the notion of “law”, in most cases in the form
of a requirement that interference with human rights must be lawful.
· Principle of lawfulness
44. The notion of law systematically used by the Court is
a material or substantive one.13
It covers not only statute law but also unwritten law (case-law) and
regulations. The Court assesses whether domestic law as a whole has been
complied with in the context of interferences with ECHR rights. In the context
of deprivation of liberty (Article 5), the Court stresses the importance of the
lawfulness of the detention, both procedurally and substantively, requiring
scrupulous adherence to the rule of law (Winterwerp, 24.10.1979, § 39).
Non-compliance with domestic law leads to a violation of Article 5 (Bozano,
18.12.1986, § 58; Wassink, 27.9.1990, § 27). In some cases, even where
the law may have been formally respected, the Court has found a breach of the
requirements of lawfulness on the ground that the authorities have attempted to
circumvent the applicable legislation (Karagöz, 8.11.2005, § 59; John,
10.5.2007, § 33).
45. The state is not only obliged to respect and apply, in
a foreseeable and consistent manner, the laws it has enacted, but also, as a
corollary of this duty, to ensure the legal and practical conditions for their
implementation (Broniowski, 22.6.2004, § 184).
46. The notion of “law” in the ECHR does not merely refer
back to domestic law but also relates to the quality of the law, requiring it to
be compatible with the rule of law. In particular, the law must be
sufficiently accessible and foreseeable (Sunday Times (No. 1),
26.4.1979, § 49). These requirements have been developed in a rich case-law.
Foreseeability means that the law must be foreseeable as to its effects, that is
formulated with sufficient precision to enable the individual to regulate
his conduct. In this context, a law which confers a discretion to a state
authority must indicate the scope of that discretion. It would be contrary to
the rule of law for the legal discretion granted to the executive to be
expressed in terms of an unfettered power. Consequently, the law must indicate
the scope of any such discretion and the manner of its exercise with sufficient
clarity, to give the individual adequate protection against arbitrariness. (Malone,
2.8.1984, § 68).
47. The principle of legality takes on a special
importance in criminal matters. Article 7, ECHR enshrines two principles
essential to the rule of law: a criminal conviction must be based on a norm
which existed at the time of the act or omission (nullum crimen sine lege),
and no heavier penalty may be imposed than the one applicable at the time the
offence was committed (nulla poena sine lege). Neither is it
permissible to apply new, more severe legislation to an ongoing situation that
arose before the legislation came into force (Achour, 10.11.2004, § 37).
In addition, the authority applying the criminal law may not interpret it
extensively, for example by analogy, to the accused’s detriment. The offence
must be clearly defined in law (here, too, requirements of accessibility and
foreseeability apply) (Coëme, 22.6.2000, § 145). This is also true in
respect of the penalty imposed (Kafkaris, 12.2.2008, § 145). These
principles all serve to offer essential safeguards against arbitrary
prosecution, conviction and punishment (Kokkinakis, 25.5.1993, § 52).
· Principle of legal certainty
48. This principle is one of the basic elements of the
rule of law (Beian, 6.12.2007, § 39). It can be linked to some of the
principles and requirements set out above (such as lawfulness and
foreseeability). The state has a duty to respect and apply, in a foreseeable
and consistent manner, the laws it has enacted (Broniowski,
22.6.2004, § 184).
Legal certainty requires respect for the principle of
res judicata. Final judgments by domestic courts should not be called
into question; systems which allow for the quashing of final judgments for an
indefinite period of time are incompatible with the principle of legal certainty
(Brumarescu, 28.10.1999, § 61; Riabykh, 24.7.2003, §§ 54 and 57).
49. The rule of law, in particular the principles of
legality and legal certainty, also requires that final court judgments be
enforced. In private disputes, enforcement of final judgments may require
the assistance of the police in order to avoid any risk of “private justice”
contrary to the rule of law (Matheus, 31.3.2005, § 70). The
administration of the state’s obligation to execute final domestic judgments
is an essential feature of a state founded on the rule of law and the principle
of legal certainty (Taskin and Others, 30.3.2005, § 136). Violations of
this obligation are sanctioned under different ECHR provisions.
50. Likewise, authorities are obliged to respect final
decisions ordering the release of a person from detention. A practice of
detaining a person without the basis of a concrete legal provision or judicial
decision is itself contrary to the principle of legal certainty (Baranowski,
28.3.2000, § 56; Svipsta, 9.3.2006, § 86).
51. The existence of conflicting decisions within a
supreme court is contrary to the principle of legal certainty. It is
therefore required that the courts, especially the highest courts, establish
mechanisms to avoid conflicts and ensure the coherence of their case-law.
The principle of legal certainty is essential to the public’s confidence in the
judicial system and the rule of law (Beian, 6.12.2007, § 39).
52. The principle of legal certainty may also justify
certain limitations of rights, notably in the form of time-limits for lodging
appeals or the use of statutory limitations. However, the ECHR may still be
violated in case of particularly strict interpretations or rigid application of
time-limits regardless of individual circumstances (Miragall Escolano,
25.1.2000, § 33; Phinikaridou, 20.12.2007, § 51).
· Principle of equality before
53. The principle that all are equal before the law is
reflected in various ways in the ECHR. Article 1 requires states to secure ECHR
rights to “everyone” within their jurisdiction, and most ECHR rights are
similarly framed: “Everyone has the right …”. In addition, Article 14 prohibits
any discrimination in the enjoyment of ECHR rights, and Article 1 of Protocol
No. 12 prohibits discrimination generally, including as regards the enjoyment of
any right set forth by law and any other discrimination by a public authority.
Equality before the law and non-discrimination are human rights principles as
much as they are rule of law principles, and the Court’s case-law tends to apply
the prohibition of discrimination without there being a special need to refer to
it as a rule of law principle, although there is some recognition that equality
in rights and duties of all human beings before the law is an aspect of the rule
C. Due process: judicial review, access to courts and
remedies, fair trial
54. The principle of the rule of law implies that an
interference by the executive authorities with an individual’s rights should be
subject to an effective control which should normally be assured by the
judiciary, at least in the last resort, judicial control offering the best
guarantees of independence, impartiality and a proper procedure (Klass and
Others, 6.9.1978, § 55); This principle of judicial control of the
executive was reaffirmed in more recent cases (Dumitru Popescu
(No. 2), 26.4.2007, § 76; Sissanis, 25.1.2007, § 71). As regards
deprivation of liberty, the requirements of Article 5 §§ 3 and 4 ECHR, with
their emphasis on promptitude and judicial control, assume a particular
importance in the context of secret detentions and disappearances. What is at
stake is both the protection of the physical liberty of individuals as well as
their personal security in a context which, in the absence of safeguards, could
result in a subversion of the rule of law and place detainees beyond the reach
of the most rudimentary forms of legal protection (Kurt, 25.5.1998, §
55. The due process aspect of the rule of law entails
certain positive obligations of the state in the form of procedural
requirements and safeguards (such as the right to be heard and have one’s
views considered, e.g. for a pregnant woman concerning the therapeutic
termination of her pregnancy: Tysiac, 20.3.2007, §§ 112 and 117).
56. The right of access to a court was established
on the basis of the rule of law principle. In the Golder judgment
(21.2.1975, § 35), the Court rejected an interpretation of Article 6 § 1 which
would allow states to abolish their courts, take away their jurisdiction to
decide certain classes of civil actions and entrust it to organs dependent of
the government. Individuals must have a clear, practical opportunity to
challenge an act that interferes with their rights (Bellet, 4.12.1995, §
36). This right may imply an obligation to provide for legal aid in civil
disputes (Airey, 9.10.1979, § 26) or to exempt actions for damages from
high and inflexible court fees (Stankov, 12.7.2007, § 59). The right of
access to court may be subject to certain limitations, but these, in turn, are
themselves subject to certain requirements.
57. The right to an effective remedy (Article 13
ECHR) for any arguable claim about violation of ECHR rights is also closely
linked to the rule of law. Referring to that principle, the Court has
established that, in expulsion cases, Article 13 may require a remedy with an
automatic suspensive effect especially where there is a serious risk of torture
or ill-treatment in case of deportation (Conka, 5.2.2002, § 83;
Gebremedhin, 26.4.2007, § 66).
58. The right to a fair trial enshrined in Article
6 ECHR reflects the fundamental principle of the rule of law (Sunday Times
(No. 1), 26.4.1979, § 55) and occupies a prominent place in a democratic
society (Kostovski, 20.11.1989, § 44). Unsurprisingly, the notion of the
rule of law is used in the interpretation and application of the different
guarantees of Article 6, such as the presumption of innocence (Salabiaku,
7.10.1988, § 28), the rights of the defence (Leempoel, 9.11.2006, § 75)
and the right to a fair trial within a reasonable time (Sürmeli,
8.6.2006, § 104).15
In the latter judgment, attention was drawn to the important danger that exists
for the rule of law within national legal orders when excessive delays in the
administration of justice occur in respect of which litigants have no
domestic remedy. Article 6 also applies to the execution of a judicial
decision: where authorities fail to execute such a decision, the fair trial
guarantees enjoyed by a litigant during the proceedings are rendered devoid of
purpose (Hornsby, 19.3.1997, § 40; Immobiliare Saffi, 28.7.1999, §
63). This again illustrates the relevance of enforcement of the law as a rule of
law principle (see under legal certainty above).
59. All these rule of law requirements under the ECHR
pursue an important objective: to avoid arbitrariness and offer individuals
protection from arbitrariness, especially in the relations between the
individual and the state.16
In addition, there are some indications that the rule of law may on occasion
take on a broader meaning in the Court’s case-law, for example when the Court
refers to the state’s duty to uphold the law on its territory (see para. 39
above). In this broader sense, the rule of law means that not only the state and
its agents but all individuals are subject to the law (“no one is above the
law”). This explains why the state’s duty to ensure the security of all persons
as well as everyone’s enjoyment of human rights (see para. 39 above) also
extends to countering threats posed by other individuals.17
Rule of law at the international level
60. There is also an important international
dimension to the rule of law. As was reaffirmed in the 2005 UN World Summit
Outcome, an international order based on law where rule of law principles are
respected is essential for peaceful coexistence and co-operation among states.
Itself an example of regional co-operation promoting a European legal order
founded on the principle of the rule of law, the Council of Europe is also
active in this international dimension. This is true, first of all, as regards
the operation of its own instruments (accountability and monitoring of states’
compliance with legal obligations; the ECHR system and supervision of execution
of Court judgments – to that extent the Council of Europe itself can be seen as
a rule of law institution at European level). As regards the rule of law at the
global level, the Council of Europe works towards the strengthening of
international law and promoting the rule of law in international affairs (see
section IV under E below).
IV. THE COUNCIL OF EUROPE’S WORK TO PROMOTE THE RULE OF
LAW AND ENSURE ITS RESPECT: A TYPOLOGY
61. The Council of Europe is a mechanism of pan-European
co-operation for preserving and promoting the rule of law (see para. 10 above).
Its co-operation in the legal and human rights fields, where common European
standards are developed and monitored and assistance is provided towards the
implementation of these standards and the results of such monitoring, is itself
an essential contribution to the rule of law in Europe. The Parliamentary
Assembly’s recommendations are an important driving force for such activities.
Among other things, this co-operation leads to further rapprochement
between different legal systems and greater coherence between them on essential
points, it facilitates co-operation between states in the justice field and it
gives rise to common legal standards – which themselves reflect rule of law
principles – thus building a common European legal space.
62. The Council of Europe works to preserve and promote
the rule of law in different ways. Using the manner in which its activities
further the rule of law as a criterion, several categories of activities can
There are no sharp dividing lines between these categories: some activities may
well fall in several of them. The categories proposed below pretend nothing more
than to offer an analytical matrix in order to illustrate with examples how
the Council of Europe’s work contributes to strengthening the
rule of law. Their purpose is not to give an exhaustive overview of all rule of
A. Promoting the conditions necessary for the rule of
63. Many activities promote the conditions necessary for
the rule of law. This primarily concerns issues related to the existence,
organisation and efficient functioning of institutions necessary for the rule of
law: institutions of justice (civil, criminal, administrative), independence of
judges, institutions of law enforcement and execution of judgments, non-judicial
institutions such as the Ombudsman and national human rights institutions.
64. These activities take the form of standard-setting
instruments, country-specific recommendations and co-operation activities.
65. There are numerous legal instruments in this area,
covering a wide range of issues, such as the independence, efficiency and role
of judges; appeal systems in civil and commercial matters, the role of public
prosecution in the criminal justice system, the freedom of exercise of the
profession of lawyer, judicial review of administrative acts, enforcement of
judicial decisions, design of court systems and legal information systems,
various aspects of management of prison sentences, prison overcrowding, the
setting-up of Ombudsmen and national human rights institutions.
66. Three Steering Committees were responsible for the
drafting of these instruments: most of them were prepared by the CDCJ or the
CDPC and some by the CDDH. It may be noted that the CDCJ is currently working on
a revision of Recommendation No. R (94)12 on the independence, efficiency and
role of judges, with the purpose of tackling new challenges faced by
national judicial systems in this field.20
67. In addition, the European Commission for the
Efficiency of Justice (CEPEJ) drafts measures and prepares pragmatic tools for
policy makers and judicial practitioners to improve the efficiency and quality
of the functioning of judicial systems (expl: Time management Checklist;
Compendium of best practices on judicial time management; Checklist for the
promotion of the quality of justice and courts; Guidelines on mediation;
Specific studies on the functioning of court systems) and develops networking
between courts of the member states.
68. The Consultative Council of European Judges (CCJE) and
Prosecutors (CCPE) define European standards for the status and activity of
judges / prosecutors through their Opinions to the Committee of Ministers.
69. Country-specific recommendations regarding the
requirement of an independent judiciary (including separation of prosecutors'
powers and functions) and on the enforcement of judicial decisions are made by
the Council of Europe Commissioner for Human Rights in the context of his
country visits and reports. He also publishes “Viewpoints” on the rule of law
and issues closely related to it. The recommendations and standards contained in
CPT reports also cover aspects concerning the organisation of institutions such
as prisons, psychiatric establishments and police stations (and other places of
deprivation of liberty).
70. The Commissioner also promotes the setting-up of
national human rights structures (ombudsman and human rights institutions) that
are created and function in abidance with the Paris Principles so as to enhance
respect of the rule of law by non-judicial means.
71. The Council of Europe also promotes the conditions
necessary for the rule of law through its co-operation activities.21
The relevant projects include activities aimed at:
- helping set up or strengthening high judicial councils;
- improving transparency of the judicial systems, for example
as regards the public character of hearings, well-drafted reasoned judicial
decisions and systematic public access to all laws and regulations;
- putting in place or strengthen effective systems of free
- strengthening the formal role and status of the lawyer's
- improving the enforcement of judicial decisions;
- developing well-functioning penitentiary establishments and
alternatives thereto such as probation services.
B. Promoting respect for the rule of law
72. The Council of Europe’s work in this area is again a
combination of standard-setting, country-specific recommendations and
73. While much of the Council of Europe’s standard-setting
work on specific themes (e.g., in recent years: conventions on trafficking in
human beings, adoption of children, sexual exploitation and abuse of children)
may be associated more directly with the protection of human rights and human
dignity, it also bears a natural relationship with the duty of a state based on
the rule of law to ensure the security of all persons as well as everyone’s
enjoyment of human rights (see § 59 above).
74. In the fields of public and private law, many
standards have been drawn up through the CDCJ, as a body that promotes law
reform and co-operation in these fields. The rule of law is at heart of this
work, and in particular in standard setting activities concerning justice,
administrative law, civil law, family law, nationality, refugees and asylum
seekers and data protection. One example is its work in the area of
administrative law, where legal instruments have been adopted on key rule of
law issues such as the protection of the individual in relation to the acts of
the administrative authorities, and the exercise of discretionary powers by
administrative authorities. The latest achievements are the Recommendation
(2007)7 on Good Administration and the Report of the Project Group on
Administrative Law (CJ-DA) on the desirability of preparing a recommendation on
administrative appeals which concluded to the importance of preparing such a
legal instrument. In its ongoing process of identifying its future priorities in
the field of administrative law, the CDCJ is also considering reviewing the
handbook “The Administration and you”, published in 1996.
75. Another important cluster of standard-setting work
(CDCJ; CDDH) concerns issues such as access to justice, legal aid, availability
of domestic remedies for ECHR claims, non-criminal remedies for crime victims
and alternative dispute resolution systems. Access to justice for vulnerable
groups is an important theme, with work under way on the drafting of European
Guidelines on Child-Friendly justice. Rule of law principles are also promoted
through the drafting of guidelines on human rights protection in the context of
accelerated asylum procedures.
76. In the criminal law field, the implementation
of the set of relevant Council of Europe conventions and recommendations
(transfer of sentenced persons, extradition, mutual legal assistance,
cybercrime, prison issues) is regularly discussed within the framework of the
CDPC and its subordinate bodies PC-OC and PC-CP. Where needed, specific measures
to promote their effective implementation are agreed, including through
amendments to the existing legal instruments, targeted assistance, discussion of
topical issues at Ministerial Conferences and adoption of resolutions thereon.
77. It is especially important to promote respect for the
rule of law as regards new societal or technological developments,
because they may give rise to uncertainty regarding the applicable legal regime
and principles. Here, the Council of Europe is often at the forefront of
elaborating innovative instruments and approaches. Prime examples of relevant
Council of Europe sectors are its work concerning the information society (cf.
the CM Declaration of 2005 on human rights and the rule of law in the
Information Society, the Cybercrime Convention and many other legal instruments
) and the field of bio-ethics (the Convention on Human Rights and Biomedicine
and its additional protocols).
78. The Venice Commission plays an important role
in promoting respect for rule of law principles. Article 1.2 of the Statute of
the Venice Commission establishes that its work will focus on the
"constitutional, legislative and administrative principles and techniques which
serve the efficiency of democratic institutions and their strengthening, as well
as the principle of the rule of law". The principle of the rule of law is
promoted in different activities of constitutional assistance provided by the
Commission to different countries, including the principle of separation of
powers. Through its recommendations and opinions prepared for its Member States
on draft constitutions and legislation in different fields, the Venice
Commission promotes the idea that the definition and assimilation of the idea of
the State based on the rule of law is a basic feature of European
79. The Venice Commission has also elaborated a number of
recommendations that contribute to the strengthening of the principle of the
rule of law, such as the
Guidelines on prohibition and dissolution of political parties and analogous
Report on the Democratic oversight of the Security Services,
Report on the Democratic Control of the Armed Forces and others.
80. The CEPEJ supports individual member states in their
judicial reforms, on the basis of European standards and other member states'
experience. It contributes specific expertise to the debate on the functioning
of the justice system in Europe and beyond: it provides the legal and judicial
community with a forum for discussion and suggestions and brings justice systems
and their users closer (including through its internet web site and its
publications in the Series: "CEPEJ Studies").The Council of Europe co-organises
(with the European Commission) the European Day of civil Justice, including the
European Prize of innovative practice contributing to the quality of justice:
"The Crystal Scales of Justice".
81. The CCJE and the CCPE may be called upon to provide
practical assistance to help States comply with standards relating to judges and
82. The Lisbon Network (judicial training institutions in
Europe) promotes the initial and in-service training of judges and prosecutors
from common standards and shared experience and supports individual member
states in developing their judicial training systems. The HELP Programme
promotes the integration of training on the ECHR in national training schemes
for judges and prosecutors.
83. Networking and co-operation also takes place with
national human rights structures in the member states. Through intensive and
ongoing co-operation with the national human rights structures in the member
states and by nurturing an active network of them, the Commissioner for Human
Rights increases the ability and readiness of these structures to defend the
rule of law at domestic level.
84. The Council of Europe also promotes respect for rule
of law principles through its co-operation activities. They focus on the
manner in which those structures and institutions operate, seeking to ensure
that qualitatively they respect the requirements of rule of law and of course of
the specific treaty obligations to which the state is a party. The relevant
projects include activities to:
* legal professionals (judges, prosecutors, lawyers);
* members of the high judicial councils so as to
strengthen the administration of justice;
* auxiliary court personnel (clerks, registrars) and
* civil society groups and their legal representatives on
how to contribute to the public debate, how to be a "check" on the
administration and the judiciary, and how to advocate specific human
rights/judiciary related issues;
- strengthen awareness of the specific requirements
related to the appointment, dismissal and salaries for judges and prosecutors;
- provide legislative expertise to ensure that national
regulatory frameworks conform to the requirements of the rule of law and that
member states are aware of the implications as regards actual implementation;
- improve the management of detention facilities (pre-trial
and following sentencing).
85. Where possible, such activities are conducted in
co-operation with other international organisations. Co-operation with the OSCE
on rule of law issues has included capacity building for non-judicial protection
mechanisms, data protection within the civil registry framework, and training
for civil society on freedom of assembly. Joint activities with the UNHCR
concern ECHR-related issues in the field of immigration and asylum, especially
Article 5 and 6 issues.
C. Addressing threats to the rule of law
86. Certain phenomena such as terrorism or corruption pose
a threat to the rule of law because they directly challenge, or gradually
undermine, the state’s authority and capacity to uphold the law and the state’s
respect for rule of law principles.
87. The Council of Europe assists states in combating
economic crime as a major threat to democracy and the rule law. This
is the very aim of the projects run by the Council of Europe. These include
projects against economic crime, against corruption, money laundering and
terrorist financing, and cybercrime.
88. Activities aimed at improvement of legislation
(workshops, legal opinions) or training of professionals (including judges, law
enforcement, prosecutors etc) may, depending on the specific subject, address
the conditions necessary for the rule of law (category A above) and/or promote
respect for rule of law principles (category B above). In
particular, the activities to strengthen capacities of the member states to
fight corruption certainly fall in both categories.
89. The Council of Europe is highly active in the area of
fighting terrorism. It has adopted a number of legal instruments in this
- Revised Convention of the Suppression of Terrorism,
- Convention on the Prevention of Terrorism,
- Convention on Laundering, Search, Seizure and
Confiscation of the proceeds from Crime and on the Financing of Terrorism.
90. The Committee of Experts on Terrorism (CODEXTER)
monitors the signatures and ratifications of the conventions mentioned above and
promotes their effective implementation.
91. In creating a legal framework that allows substantial
international co-operation the Council of Europe seeks to ensure that rule of
law principles are fully respected in countering terrorism. This is borne
out by the safeguards contained in the above-mentioned instruments, but also by
other instruments such as the two sets of CM Guidelines (on human rights and the
fight against terrorism, and on the protection of victims of terrorist acts)
prepared by the CDDH and based on the ECHR case-law. Mention should also be made
of work of the Parliamentary Assembly, which has adopted several Recommendations
in this field. In various reports by the Parliamentary Assembly, the Secretary
General (acting under Article 52, ECHR) and the Venice Commission, a strong
focus was placed on the need to ensure full respect for the rule of law in
inter-state co-operation regarding the detention and transfer of persons
suspected of involvement in acts of terrorism, and as regards oversight and
accountability of security services.
92. One of the CODEXTER’s priorities lies in research on
the concepts of “apologie du terrorisme” and “incitement to terrorism”. In
addition causes of terrorism are addressed by exploring ways to reduce
the tensions existing in today’s society (see the Council of Europe conference
on “Why terrorism? – Addressing the reasons conducive to the spread of
93. It is clear that conditions conducive to the spread of
terrorism must be addressed through promotion of inter-cultural dialogue,
activities in the field of education, youth and the media, ensuring the
protection of minorities and fighting intolerance, racism and social exclusion,
thereby weakening sources of discontent that may fuel terrorism. Much of the
Council of Europe’s work in these areas therefore contributes to addressing the
threat to the rule of law that terrorism poses.
94. In addition, the Council of Europe has set up a number
of specific legal co-operation programmes designed to help the beneficiary
countries to proceed with their institutional, legislative and administrative
reforms in order to strengthen the rule of law in the fight against terrorism.
Co-operation projects include workshops and seminars on specific themes related
to the fight against terrorism, such as mutual extradition of terrorist suspects
or financing of terrorism.
95. The Commissioner for Human Rights raises the issues of
impunity, counter-terrorism measures, corruption, the rule of law in exceptional
circumstances and the rule of law in dealing with the past in the context of his
country visits and makes recommendations to the authorities with a view to
addressing shortcomings. He publishes relevant “Viewpoints” on these topics.
Specific workshops/seminars have been organised on the themes of anti-terrorism
measures and data protection and of complaints mechanisms against police
96. The Council of Europe’s monitoring mechanisms in the
field of combating corruption (GRECO) and countering money laundering and
terrorist financing (MONEYVAL) will be addressed in the next section.
D. Ensuring respect for the rule of law
97. Within the Council of Europe, there is no mechanism to
ensure respect for the principle of the rule of law as such. However, various
mechanisms exist which contribute significantly to ensuring that rule of law
requirements are respected. Leaving aside the crucial role of the European Court
of Human Rights (see the conclusions in § 34 above), mention should first of all
be made of the political monitoring of member states’ commitments by the
Parliamentary Assembly and by the Committee of Ministers, which covers rule of
98. Furthermore, there are other mechanisms that help
ensure respect for the rule of law. Some do so in the context of their
competence in the field of human rights; others in the context of a specific
thematic mandate in other fields.
99. The CM supervision of execution of the Court’s
judgments ensures that the obligations of states under Article 46 ECHR are
respected. Apart from this general contribution to upholding the rule of law,
such supervision also ensures respect for the rule of law in a more specific
manner wherever the violation found by the Court concerns rule of law-related
shortcomings in a national legal system (see the overview of case-law in Section
III. above). A clear example of such dysfunctioning of national systems which
states are obliged to remedy under Article 46, ECHR are the cases concerning
non-execution of domestic courts’ judgments.
100. Other human rights bodies such as the CPT and ECRI
each have a monitoring role that extends to respect of rule of law principles in
specific settings and contexts. The monitoring mechanism set up under the Social
Charter, especially the collective complaints system, makes an important
contribution to the legal protection and justiciability of social rights in
Europe. As from 2009, monitoring in the field of states’ action against
trafficking in human beings will be conducted by GRETA, a body that is being set
up under the Convention on Action against Trafficking in Human Beings.
101. In the context of his country visits the Commissioner
for Human Rights examines whether due process, legal certainty and lawfulness
stemming from the rule of law principle are afforded and makes recommendations
for possible improvement. He publishes “Viewpoints” on these topics.
102. A number of Council of Europe conventions in the
field of criminal law designate the CDPC as the body in the framework of which
disputes are settled regarding the implementation of those conventions and/or as
the body through which amendments of the conventions may be proposed.
103. The Group of States against Corruption (GRECO)
monitors states’ compliance with the Council of Europe’s anti-corruption
standards. Its objective is to improve the capacity of its members to fight
corruption by monitoring their compliance with anti-corruption standards through
a dynamic process of mutual evaluation and peer pressure. It helps to identify
deficiencies in national anti-corruption policies, prompting the necessary
legislative, institutional and practical reforms. GRECO also provides a platform
for the sharing of best practice in the prevention and detection of corruption.
GRECO draws up recommendations and assesses compliance with those
104. The Committee of Experts on the Evaluation of
Anti-Money Laundering Measures and the Financing of Terrorism (MONEYVAL) is a
monitoring mechanism set up with the aim of ensuring that its member states have
effective systems in place to counter money laundering and terrorist financing
and comply with the relevant international standards in these fields. Such
compliance is assessed through a peer review process of mutual evaluation,
leading to detailed recommendations to improve the effectiveness of domestic
regimes. MONEYVAL also conducts typology studies of money laundering and
terrorist financing methods, trends and techniques.
105. The CEPEJ evaluates the functioning of the member
states' judicial systems through a regular process for collecting and analysing
quantitative and qualitative data on the functioning of justice systems. Its
SATURN Centre is due to develop towards a European Observatory of timeframes of
106. The Consultative Council of European Judges (CCJE)
and Prosecutors (CCPE) may be requested by relevant Council of Europe bodies or
relevant authorities in the member states to analyse specific situations
regarding judges / prosecutors in specific member states and to draft opinions
(which might include recommendations) to improve given situations.
107. The Council of Europe Convention for the
Protection of Individuals with regard to Automatic Processing of Personal Data
lays down essential principles and safeguards for respecting everyone’s right to
privacy in accordance with rule of law principles. The Consultative
Committee of the Convention for the Protection of Individuals (T-PD)
interprets the provisions and improves the implementation of the Convention.
E. Strengthening the international rule of law
108. Council of Europe activities to strengthen the rule
of law at the international (global) level do not fit neatly into one of the
above-mentioned categories. Most of them are a mixture of promoting the
conditions necessary for the rule of law and promoting respect for rule of law
109. Through the Committee of Legal Advisers on Public
International Law (CAHDI), the Council of Europe aims at creating a framework
for international co-operation to strengthen the role of public international
law and influence its development, and to bring national viewpoints closer
together. All of its activities are aimed at promoting the rule of law in
110. The item “Advancing the international rule of law”
appears regularly on the agenda of the CAHDI and the work of the Committee on
this matter is based on the 2005 UN World Summit Outcome, when Heads of State
and Government reaffirmed their "commitment to the purposes and principles of
the Charter and international law and to an international order based on the
rule of law and international law, which is essential for peaceful coexistence
and co-operation among States".
111. The CAHDI considers a number of questions to be related
to the concept of international rule of law. The following activities may serve
as an example:
- law and practice on reservations and interpretative
declarations to treaties, including those applicable to the fight against
terrorism: CAHDI activity in its capacity of the European Observatory of
Reservations to International Treaties (EORIT);
- jurisdiction of the international tribunals:
consideration of the jurisdiction of the International Court of Justice (ICJ)
under the optional Clause and under selected treaties and in particular the
position of the Council of Europe’s member and observer States in that regard as
well as consideration of the overlapping jurisdiction of international courts
- preparation of the draft recommendations in the field of
dispute settlement: CM/Rec(2008)8 on the acceptance of the jurisdiction of the
ICJ and CM/Rec(2008)9 on the nomination of international arbitrators and
conciliators. As from October 2008 CAHDI will monitor the implementation of the
- following pending and decided cases of the European
Court of Human Rights involving issues of public international law and exchanges
of views on the developments concerning the International ad hoc tribunals
(Yugoslavia, Rwanda, Lebanon);
- following developments concerning international
- databases on State Practice regarding State Immunities;
the Organisation and Functions of the Office of the Legal Adviser in the
Ministry for Foreign Affairs; and the Implementation of UN Sanctions and Respect
for Human Rights ;
- Moreover, the Council of Europe actively supports the
International Criminal Court and over the past years organised four consultation
meetings which fostered exchanges of views on the legal problems encountered in
the implementation of the Rome Statute.
112. Finally, it should be noted that on four occasions
(in 2004, 2005 and 2007) the Committee of Ministers submitted a “statement of
interest” in support of EU amicus curiae briefs in various stages of a case
before the US Supreme Court and the Supreme Court of Texas concerning a Mexican
(Mr Medellin) sentenced to death. These proceedings took place after the
International Court of Justice had ordered that the case of Mr Medellin be
reviewed. The CM statements insisted on respect for the Vienna Convention on
Consular Relations and stated that “respect for judgments of the
International Court of Justice by states that are party to litigation is a basic
requirement of the rule of law at the international level, as expressed in
Article 94 of the United Nations Charter.”23
V. OVERVIEW OF RULE OF LAW ACTIVITIES OF OTHER
ORGANISATIONS (EU, OSCE, UN)
113. Reference should be made to the “Multilateral
organisations’ rule of law pledge” issued as a joint press release at the close
of the 14th High-level Tripartite meeting between the Council of Europe, the
OSCE and the United Nations (Strasbourg, 18 February 2005) (CM/Inf(2005)17 of 28
February 2005). The pledge states that the rule of law is a prerequisite for
maintaining and building peace, consolidating democracy and promoting
114. Highlighting the central role of the rule of law in
conflict prevention, the protection and promotion of human rights and other
issues such as human displacement, participants urged close co-operation between
partner organisations and stressed the importance of social cohesion for
achieving long-term stability in post-conflict societies.
115. The rule of law pledge points to certain specific
areas of action and co-operation, such as the need for a common and effective
framework for responding to terrorism in accordance with the rule of law; the
need to step up the fight against racism, xenophobia, intolerance,
anti-Semitism, Islamophobia and any other forms of discrimination, and
co-operation between international organisations in the field on issues related
to legislative transparency, the independence of the judiciary, ombudsmen and
national human rights institutions as well as reform of legislation, justice and
116. The rule of law is referred to in Article 6 § 1 of
the Treaty on European Union as a principle, common to the member states, on
which the Union is founded. The Copenhagen criteria of 1993 for EU membership
include “stability of institutions guaranteeing democracy, the rule of law,
human rights and respect for and protection of minorities” as a condition for
117. Within the legal order of the Community, an essential
contribution to upholding the rule of law, and developing rule of law
principles, is made by the Community courts, notably through the decisions and
the case-law of the European Court of Justice.24
118. The European Union promotes the rule of law both
within the Union and beyond. It co-operates with the Council of Europe in both
119. Inside its borders, the Union is developing a
European area of “Justice, Security and Liberty”. To this end, it adopts legal
norms and financial instruments. When adopting new norms in this area, it
consults the Council of Europe’s acquis in the same field (e.g. in the fields of
terrorism, fight against human trafficking).
120. When promoting the rule of law outside its borders,
the Commission frequently co-operates with the Council of Europe as far as
non-EU member States of the Council of Europe are concerned (i.e. mostly
South-East Europe, the south Caucasus, Russia and Turkey). Through “joint
programmes”, assistance is being given to those States in order to adapt their
legislation, practice and institutions to the European standards which form part
of the “acquis communautaire”. These programmes focus notably on the development
of the judiciary, on penitentiary reforms, on the fight against various forms of
economic and organized crime as well as on international co-operation in
121. The European Commission also attaches great
importance to the respect of the rule of law in its relations with acceding
countries and with countries of the Neighbourhood policy. When assessing the
situation in the countries concerned, the EC is consulting the Council of
122. A memorandum of understanding between the two
organisations (May 2007) formalises their commitment to co-operate in the
development of a European area based on law.
123. The EU and the Council of Europe have also put in
place various forms of concrete co-operation between its institutions/bodies:
- The European
Judicial Network in civil and commercial matters, the European Judicial Network
in criminal matters and EUROJUST are key EU bodies to foster judicial assistance
between EU member states and ensure the implementation of the EU instruments in
the judicial field (directives in civil and commercial matters, European Arrest
Warrant, etc…). These three bodies co-operate regularly with the Council of
Europe's relevant bodies (CEPEJ, CCPE, CDCJ, CDPC, etc.).
- The European
Commission has set up in 2008 a Forum for Justice aimed to develop regular
exchanges between judicial practitioners in Europe. The CEPEJ is a privileged
partner in this Forum.
- The EC co-organises
with the Council of Europe the European Day of Justice (see above under IV.).
- The European
Training Network is supported by the EU (EC) to develop co-operation between EU
member states for judicial training. It closely co-operates with the Council of
Europe's Lisbon Network.
- The European Network
of Judicial Councils is supported by the EU to develop co-operation between the
Councils for the judiciary in the EU countries and on issues regarding the
functioning of judicial systems and the management of the careers of judges
(prosecutors). It has observer status with the CEPEJ and CCJE.
124. In addressing particular topics related to the rule
of law, through conferences, workshops, or other specific events, the European
Union is regularly consulting and co-operating with the Council of Europe.
Organisation for Security and Co-operation in Europe
125. The OSCE’s political commitments in the human
dimension include commitments concerning the rule of law. According to the 1990
Copenhagen document (§ 2), the rule of law “does not mean merely a formal
legality which assures regularity and consistency in the achievement and
enforcement of democratic order, but justice based on the recognition and full
acceptance of the supreme value of the human personality and guaranteed by
institutions providing a framework for its fullest expression.” Democracy is
seen as “an inherent element of the rule of law”(§3) and free elections are
accordingly considered as an element of justice (§ 5.1).
126. This general rule of law commitment also comprises
several other commitments to specific rule of law principles (“elements of
justice”) which have been set out in the Copenhagen and other OSCE documents.
Many of these are expressions of the principles of legality, accountability,
equality and non-discrimination, accessibility of the law, and of human rights
standards concerning detention and fair trial rights.25
127. The rule of law is a recurrent theme at the OSCE
Human Dimension Implementation meetings. Under that heading discussion takes
place on topics such as legislative transparency, independence of the judiciary,
right to a fair trial, constitutional justice, the question of the abolition of
capital punishment, prevention of torture, and protection of human rights and
128. The main OSCE body active on rule of law issues is
the Office for Democratic Institutions and Human Rights (ODIHR). Its mandate, as
set out in the 1992 Helsinki Document, resembles the statutory aims of the
Council of Europe: to help participating states “ensure full respect for human
rights and fundamental freedoms, to abide by the rule of law, to promote
principles of democracy and […] to build, strengthen and protect democratic
institutions, as well as promote tolerance throughout society.” ODIHR has a rule
of law unit within its Democratization Department.
129. The ODIHR implements various technical assistance
projects designed to foster the development of the rule of law. Practical
assistance and training is provided through programmes in the areas of criminal
justice reform and fair trials. A trial monitoring programme provides for
monitoring of criminal trials in Central Asia. Legislative support is also
provided through reviews of (draft) legislation, in fields such as electoral
legislation, gender equality, freedom of religion, freedom of assembly,
130. Specific rule of law-related activities are carried
out by OSCE missions in several countries. Examples of co-operation with the
Council of Europe on rule of law activities are given in section IV above.
131. The rule of law-related activities of the different
organs, agencies and bodies of the United Nations system are so manifold and
extensive that they cannot be adequately summed up in a short overview. Some
general information is given below.
132. The rule of law was referred to in the preamble to
the Universal Declaration of Human Rights of 1948: “Whereas it is essential, if
man is not to be compelled to have recourse, as a last resort, to rebellion
against tyranny and oppression, that human rights should be protected by the
rule of law”. This underlines the function of the rule of law (“régime de droit”
in the French version) as an indispensible framework for the protection of human
133. The UN’s work on the rule of law finds its normative
basis in the UN Charter, international law, and the range of treaties,
declaration, guidelines and bodies of principles developed within the UN in
order to promote national societies and an international order based on the rule
134. Like the Council of Europe, the UN has developed a
host of legal instruments in the legal and human rights fields which contain and
develop rule of law-related standards and provide for monitoring of these
standards. These are often supplemented by specific principles for certain rule
of law sectors and institutions.27
135. At the national level, rule of law work by the UN
takes the form of technical assistance and capacity building for member states.
Strengthening the rule of law at the international level is a natural role of
the UN. The UN’s Millenium Declaration of 2000 calls upon all member states to
strengthen respect for the rule of law, notably through complying with the
decisions of the International Court of Justice.
136. Following the 2005 World Summit, a Rule of law
Coordination and Resource Group was established as an inter-Agency coordination
mechanism and a Rule of law Unit was created in the office of the UNSG.
These steps were supported by member states in A/RES/62/70, § 4.
137. The Unit’s objectives are:
· ensuring coordination among
the many United Nations departments, agencies, funds and programmes engaged in
rule of law activities;
· developing guidelines, best
practices and other tools for guiding the Organization’s activities in promoting
the rule of law;
· developing partnerships between
the United Nations and the many other actors engaged in rule of law activities.
138. The Unit is not a new operational capacity within the
United Nations system. Operational roles within the three “baskets” of rule of
law activities (rule of law at the international level, the rule of law in the
context of conflict and post-conflict situations, and the rule of law in the
context of long-term development) remain with the various UN departments,
agencies, funds and programmes.
139. These steps were inspired by the fact that the
dispersal of rule of law entities across the UN system has made coordinated
action difficult. Examples of such entities are the Office of Legal Affairs
(rule of law issues at international level), the Office of the High Commissioner
for Human Rights (transitional justice, national human rights institutions,
national justice sectors), the UN Development Programme (capacity-building in
the justice sector in the framework of long-term development) and the Department
of Peacekeeping Operations (rule of law assistance in support of peacekeeping
140. An overview of relevant co-operation between the
Council of Europe and the UN can be found in document DER/PR/Inf(2008)2
containing an inventory on the status of implementation of the UN General
Assembly Resolution 61/13 on Co-operation between the United Nations and the
Council of Europe. This includes many rule of law-related activities.
141. The main purpose of this document was to provide
insight into how the concept of the rule of law is understood within the Council
of Europe and how various activities of the Organisation contribute to
strengthening and upholding the rule of law.
142. The Council of Europe acquis regarding rule of
law principles demonstrates a high degree of consensus among member states which
allows the Organisation to work pragmatically for the promotion and protection
of those principles. This state of affairs explains why no need was felt so far
to develop a Council of Europe definition of the rule of law concept. In
particular, the case-law of the Court provides a solid reference for all rule of
law-related activities of the Organisation.
143. However, it is probably also true, precisely because
the rule of law is “everywhere” in the work of the Council of Europe, that the
principle has to some extent suffered from a lack of visibility in that work.
144. To remedy that shortcoming, this paper has sought to
do justice to the vital importance of the rule of law as a core principle
promoted by the Council of Europe, by articulating more clearly the rule of law
dimension of its activities.
This document has been classified restricted until examination by the
Committee of Ministers.
2 In the POA “public law” is
seen as the area of law concerning the relations between the state and the
individual, whereas “private law” is seen as governing the relations between
individuals (p. 73). For these two areas, the following priority fields are
mentioned for the years to come: justice, family law, nationality, civil and
administrative law (ibidem).
3 All reference to Kosovo,
whether the territory, institutions or population, in this text shall be
understood in full compliance with United Nation’s Security Council Resolution
1244 and without prejudice to the status of Kosovo.
4 The Parliamentary Assembly
Resolution 1594 (2007) “The principle of the rule of law” does not contain such
a definition either, although it points out that “rule of law” (prééminence
du droit) must not be conceived of or translated as “supremacy of statute
law” (prééminence de la loi), as is the case in some recent democracies
in eastern Europe. The Assembly considers that such a formalistic interpretation
of “rule of law” runs counter to the essence of the concept.
5 For a helpful comparative
overview, see Erik O. Wennerström, The Rule of Law and the European Union,
Uppsala 2007, pp. 61–76.
6 See Wennerström 2007, p.
76-84, and the report by the Hague Institute for the Internationalisation of Law
on its second High level expert meeting on the rule of law (pp. 2–3):
7 These common requirements
have thus become “decontextualised” so as to become either principles of general
application in very different national legal systems (the Council of Europe
method) or principles that apply in the distinct EC/EU legal system and are
“recontextualised” when and by becoming part of that system’s legal tradition
(the Community method). See, as far as the EU is concerned, Wennerström 2007, p.
8 Guy Canivet, L’incidence de
la rule of law sur le système juridique français, in S. Breitenmoser et
al. (eds), Human Rights, democracy and the rule of law – Menschenrechte,
Demokratie under Rechtsstaat – Droits de l’homme, démocratie et Etat de droit
(Liber amicorum Luzius Wildhaber), Zürich/Baden-Baden 2007, pp. 1169-1184.
9 Much the same could be said
about the requirements of a democratic society.
10 The Court’s Registry
(Research Division) provided very valuable assistance for this section.
References to the Court’s judgments are non-exhaustive.
11 Sometimes: “law-governed
State” or “State subject to the rule of law”.
12 Articles 2,5,6,7,8,9,10,11,
1 of Protocol No.1, 2 of Protocol No. 4, Protocol No. 7.
13 With the exception of the
right to a tribunal “established by law” (Article 6 § 1) dealt with under A
14 Refah Partisi and Others,
Chamber judgment of 31.7.2001. The GC judgment of 13.2.2003 did not refer
to equality but to the principle of secularism. The principle of equality before
the law is also expressed through specific ECHR requirements concerning judicial
proceedings such as equality of arms and impartiality of the judge (Article 6
15 The requirements concerning
judicial independence are dealt with under point A. above.
16 This is borne out by
numerous judgments of the Court. See, e.g., Winterwerp, 24.10.1979, § 39,
and Malone, 2.8.1984, § 67.
17 While an individual
criminal act , as such, would not normally be considered as being contrary to
the rule of law (but simply as being contrary to the law), a lack of adequate
measures by the state to uphold the law by investigation, prosecution and
punishment of such crime would be a rule of law issue (see para 39 above).
18 Several of the examples of
activities mentioned under each category below are not “pure” rule of law
activities in that they also serve to promote and protect other core values of
the Council of Europe. This is true, for example, for activities in the field of
prisons, which usually promote both the proper functioning of prisons and the
respect for human rights as regards prison conditions. Similarly,
anti-corruption activities are important from the rule of law perspective and
from the point of view of democratic principles. The interdependence between
rule of law, human rights and democracy is thus also borne out in the concrete
activities of the Council of Europe.
19 In addition, some important
activities that seek to promote the rule of law in indirect ways, such as
education for democratic citizenship and human rights, are not categorised here.
20 The Recommendation
addresses issues such as the role of independent authorities (for example the
High Councils of the Judiciary); the safeguards to the independence of judges
with respect to the remuneration, irrevocability, criminal and civil liability
of judges and avenues of appeal available to them, balance between freedom of
expression and judicial independence; as well as training and ways of
reconciling efficiency of justice and judicial independence.
The majority of projects are funded fully or partially (50-90%) by the EC.
Some are funded by voluntary contributions by member states. The same applies to
co-operation activities mentioned below in this Section.
One of the Venice Commission's conferences focussed on issues related to
the principle of the rule of law:
23 See, most recently,
CM/Del/Dec(2007)996/13.2 of 23 May 2007.
24 See, e.g., Case 294/83
Les Verts v. Parliament  ECR 1339, § 23, and the recent judgment of 3
September 2008 in Joined Cases C-402/05 P and C-415/05 P, Kadi and Al
Barakaat International Foundation, §§ 281-284 and 316-326.
25 See the rule of law section
in the ODIHR document OSCE Commitments relating to Judicial Systems and Human
Rights, Warsaw 2002.
26 See ODIHR’s annual report
27 To give just one example:
the so-called Bangalore Principles have been drafted as the UN standards on
rights and duties of judges. The Council of Europe’s CCJE has been closely
involved in this work (namely on the basis of the European Charter on the
Statute of Judges) and continues to co-operate with the UN as regards their
28 This and the following
information is based on an Information Note on the Rule of Law Coordination and
Resource Group and Rule of Law Unit which was received from the Director of the
Rule of Law Unit.