In paragraph 2, after the words “political liberty”, insert the following words:
“, other human rights”.
In paragraph 4, second sentence, delete the words “other forms of democracy, including, in particular,”.
After paragraph 5, insert the following new paragraph:
“The Assembly notes that the European Court of Human Rights has reiterated that democracy constitutes a fundamental element of the “European public order” and is indeed the only political model compatible with the European Convention on Human Rights. The Court has repeatedly held that democracy must be based on pluralism, tolerance, dialogue and a spirit of compromise.”
In paragraph 6, replace the words “is heedful of” with the word “understands”.
At the end of paragraph 7, add the following sentence:“
Recalling Resolution 2338 (2020) “The impact of the Covid-19 pandemic on human rights and the rule of law”, the Assembly also reiterates that the obligation to take measures to protect the life and health of populations cannot give States a free hand to trample on rights, suppress freedoms, dismantle democracy or violate the rule of law.”
In paragraph 8.3, after the words “non-governmental organisations,” insert the following words:
“in accordance with Resolution 2225 (2018) “Protecting human rights defenders in Council of Europe member States;””.
After paragraph 8.5.1, insert the following paragraph:
“establish effective and fair procedures for the resolution of electoral disputes, including judicial ones;”.
Replace paragraph 8.6 with the following paragraph:
“guarantee an effective, impartial and independent judicial system which is key to the very existence of the rule of law, and to that end:- abolish the ability of the executive or the legislature to arbitrarily appoint judges;- abolish the power of the executive or the legislature to transfer or dismiss judges;- ensure the administrative and financial independence of the judiciary;”.
After paragraph 8.6, insert the following paragraph:
“ensure full respect by the executive, the legislature and any other State authority for the rule of law, including the principles of legality, legal certainty and the obligation to abide by the judgments and decisions of the courts, especially those of constitutional courts, even when they do not agree with them;”.
This amendment is intended to recall the Court’s case law on the notions of “effective political democracy” and “democratic society” contained in the Preamble and other normative clauses of the Convention. For the Court, democracy is the only political model compatible with the Convention and a fundamental element of the “European public order”. The Court has also stated that democracy must be based on pluralism, tolerance, dialogue and a spirit of compromise.Note In my view, the draft resolution should acknowledge the Court’s contribution to the definition of genuine democracy, which would in turn strengthen the normative value and binding nature of these principles.
This amendment aims at adding a sentence to take account of the Assembly’s previous work on the impact of Covid-19 on human rights and the rule of law, which is mentioned in detail in the report (paragraphs 21-22). In paragraph 1 of Resolution 2338 (2020), the Assembly expressed the view that the States’ positive obligations under the Convention to take measures to protect the life and health of their populations in response to the pandemic could not give them a free hand to trample on rights, suppress freedoms, dismantle democracy or violate the rule of law. The Convention continues to apply and to set limits, even during states of emergency.
This amendment is intended to strengthen the obligation to guarantee the safety of human rights defenders, by making an explicit reference to Resolution 2225 (2018) “Protecting human rights defenders in Council of Europe member States”. In this resolution, the Assembly called on member States to respect and protect the rights of human rights defenders, including against violations committed by non-State actors.
This amendment aims to stress the importance of establishing effective remedies for the resolution of electoral disputes, in order to guarantee the right to fair elections and “the free expression of the opinion of the people in the choice of the legislature”, using the words of Article 3 of the Protocol to the Convention (ETS No. 9). According to the Court’s case law, the procedure in the area of electoral disputes must guarantee a fair, objective and sufficiently reasoned decision. In view of the fact that the right to free elections under Article 3 of the Protocol seeks to strengthen citizens’ confidence in parliament by guaranteeing its democratic legitimacy, the decision-making body in electoral disputes must provide sufficient guarantees of impartiality and its discretion must be sufficiently circumscribed by the provisions of domestic law.Note The Venice Commission, in its Code of Good Practice in Electoral Matters, has likewise stated that the failure to comply with electoral law must be open to challenge before an appeal body, ideally before a judicial body at last instance.Note
As mentioned in Ms Dalloz’s report, an efficient, impartial and independent judicial system is an essential pillar of the rule of law and a prerequisite for the exercise of the right to a fair trial. This amendment is aimed at inserting this principle in the draft resolution and underlining the key role of an independent judiciary for the very existence of the rule of law. In this regard, the Court has held that in a democratic State, public confidence in the functioning and independence of the judiciary guarantees the very existence of the rule of law.Note The Magna Carta of Judges (Fundamental Principles) adopted by the Consultative Council of European Judges in 2010 similarly states that the mission of the judiciary is to guarantee the very existence of the rule of law and, thus, to ensure the proper application of the law in an impartial, just, fair and efficient manner. While taking into account the current negative developments in some European countries where legislatures and mostly executives try to use their powers to transfer judges, remove them from office by reshaping judicial bodies or dismantling the existing ones, it is difficult to agree with the limitation of the rights of the executive or the legislature to appoint judges, since the constitutional settings of the vast majority of European states provide that judges (especially of the highest courts, namely Supreme Courts, Constitutional Courts) are elected by the parliaments or at least are formally appointed by the executive.
While paragraphs 2 and 4 refer to the general link between genuine democracy and the rule of law, a specific reference to the main components of the rule of law (as explained in paragraphs 42-43 of the report) could be mentioned among the commitments that member States undertook when joining the Organisation and pointed out by the draft resolution. As I mentioned above, the Court, the Venice Commission and the Assembly have all stressed the need for any State authority to respect the principles of the rule of law and the separation of powers and to abide by final judgments and decisions of the courts, especially those of constitutional courts, even when they do not agree with them. This principle has a particular relevance in the context of the rule of law crisis examined by our Assembly or the Court in relation to some member States. In this connection, the State’s respect for the authority of the courts is considered as an indispensable precondition for public confidence in the judiciary and for the rule of law in general.Note