B Explanatory memorandum
by Ms Arusyak Julhakyan, rapporteurNote
1 Introduction
1. The present report is based
on a motion for a resolution tabled by the Committee on Legal Affairs
and Human Rights on 2 October 2024, which was referred to it for
report on 4 October 2024.
Note The committee appointed me as rapporteur
at its meeting on 30 September 2025, succeeding the former rapporteur, Ms Klotilda
Bushka (Albania, SOC), who left the Parliamentary Assembly.
2. The motion refers to the fact that in 2007, the Assembly invited
the European Commission for Democracy through Law (Venice Commission)
to reflect in depth on the concepts of “rule of law” and “prééminence du droit”.
3. In March 2016, the Venice Commission adopted the Rule of Law
Checklist
Note drawn up
in close co-operation with the Assembly which prepared a report
on the same subject. In its
Resolution 2187 (2017), the Assembly decided to endorse the Venice Commission’s
checklist, to use it systematically in its own relevant work and
to recommend to Council of Europe member States to do the same.
The Assembly welcomed that there was a consensus as to the core
elements covered by the terms “rule of law”, “
Rechtsstaat”
and “
État de droit”, namely:
legality, legal certainty, the prohibition of arbitrariness, access
to justice, respect for human rights, non-discrimination and equality
before the law.
4. Since its adoption, the Rule of Law Checklist has been referred
to in numerous resolutions and recommendations adopted by the Assembly
and in their accompanying reports, including:
Resolution 2188 (2017) “New threats to the rule of law in Council of Europe
member States: selected examples”,
Recommendation 2121 (2018) “The case for drafting a European convention on the
profession of lawyer”,
Resolution
2273 (2019) “Establishment of a European Union mechanism on democracy,
the rule of law and fundamental rights”,
Resolution 2277 (2019) “Role and mission of the Parliamentary Assembly: main challenges
for the future”
Resolution
2293 (2019) “Daphne Caruana Galizia’s assassination and the rule
of law in Malta and beyond: ensuring that the whole truth emerges”,
Resolution 2300 (2019) “Improving the protection of whistle-blowers all over
Europe”,
Resolution 2348
(2020) “The principles and guarantees applicable to advocates”,
Resolution 2359 (2021) “Judges in Poland and in the Republic of Moldova must
remain independent”,
Resolution
2399 (2021) “The climate crisis and the rule of law”,
Resolution 2437 (2022) “Safeguarding and promoting genuine democracy in Europe”,
Resolution 2460 (2022) “The honouring of membership obligations to the Council
of Europe by Hungary”,
Resolution
2509 (2023) “Transnational repression as a growing threat to the
rule of law and human rights”, and
Opinion 303 (2024) “Draft Framework Convention on Artificial Intelligence,
Human Rights, Democracy and the Rule of Law”.
5. During its meeting held in Paris, on 10 September 2024, the
Committee on Legal Affairs and Human Rights held a hearing with
the participation of Mr Kaarlo Heikki Tuori, Honorary President
of the Venice Commission, and Mr Serhiy Holovaty, Chair of the Sub-Commission
on the Rule of Law of the Venice Commission, who informed the committee
about the upcoming process of updating the Checklist, involving contributions
from numerous stakeholders, including the Assembly and civil society
organisations.
6. On 3 March 2025, the former rapporteur, Ms Bushka, presented
her introductory memorandum to the Committee on Legal Affairs and
Human Rights, which was later submitted to the Venice Commission
as the Assembly’s preliminary contribution for the update.
Note Key proposals
included therein concerned the assessment of the impact of artificial
intelligence and other new technologies on democratic processes
and judicial independence; the influence of private power on the
rule of law; adherence to international legal obligations; post-crisis
and transitional situations (such as introducing guidelines for
restoring the rule of law after a period of backsliding); and applicability
of the updated Checklist to supranational organisations, such as
the European Union.
7. During its meeting held in Paris on 8 September 2025, the
Committee on Legal Affairs and Human Rights held a hearing with
the participation of Mr Iain Cameron, member of the Venice Commission
in respect of Sweden, Ms Erinda Ballanca, People’s Advocate of Albania,
and Mr Laurent Pech, Dean of Law and Head of the Sutherland School
of Law at the University College Dublin.
8. The updated Rule of Law Checklist was adopted by the Venice
Commission at its 145th Plenary Session (Venice,
12-13 December 2025).
Note
9. In this report, I will summarise the value of the Rule of
Law Checklist (Chapter 2) and its impact on the rule of law in Europe
(Chapter 3). I will then summarise the updated Rule of Law Checklist
(Chapter 4) and provide an overall assessment (Chapter 5).
2 Value of the Rule of Law Checklist
10. The adoption of the original
Checklist was preceded by a rule of law report, adopted already
in 2011.
Note One of its central ideas was
to show the differences between the rule of law and the rule by
law. The intention was to demonstrate that the rule of law was not
only a political or ideological slogan but a specific legal term corresponding
to specific standards. The original Checklist was divided into five
main sections. Benchmarks were presented within each of these sections
in the form of questions. These sections were: legality, legal certainty,
prevention of abuse of powers, equality and non-discrimination,
and access to justice. Challenges to the rule of law, namely corruption,
excessive collection of personal data and surveillance, were also
addressed.
11. The Rule of Law Checklist has become a uniform benchmark to
assess the condition of the rule of law in a given State. It builds
on the universal validity of the rule of law, by providing a structured
framework for evaluating its principles within national and international
contexts. The Checklist emphasises the interconnection between the
rule of law, democracy, and human rights – the three founding principles
of the Council of Europe. It is primarily focused on assessing legal
safeguards but also addresses their practical implementation to
ensure the protection of individual rights and proper governance.
It encompasses various dimensions of the rule of law such as legality,
legal certainty, prevention of abuse of powers, equality before the
law, and access to justice. It is aimed at a broad range of actors
including parliaments, State authorities, civil society, and international
organisations. The checklist also underscores the need for national
and international adherence to the rule of law and its implementation,
highlighting the role of an independent judiciary and the requirement
for effective legal remedies against any breaches of the law.
12. Its application was intended to consider the entire legal,
historical, political, and social context of the State being evaluated,
ensuring that the rule of law is adapted to the local circumstances
while maintaining core universal principles. The Checklist's ultimate
goal is to ensure that national practices align with international
standards, thereby fostering a robust and just legal system globally.
3 Use
of the Rule of Law Checklist beyond the Council of Europe
13. The European Commission's Rule
of Law Reports, initiated in 2020 under President Ursula von der Leyen,
Note represent a key point of the European
Union (EU)’s strategy to safeguard and promote democratic values.
These annual reports monitor compliance with rule of law principles
across the 27 member States, identifying trends and recommending
reforms to address systemic risks. The European Commission's methodology
for preparing the Annual Rule of Law Report explicitly mentions
the Venice Commission's Rule of Law Checklist as a relevant standard
for assessment.
Note This includes aspects such as judicial independence,
the appointment process for judges, and the efficiency of the justice
system. The importance of institutional checks and balances is also
reflected in the Commission's reports. The 2023 and 2024 reports,
for instance, examined the role of independent institutions like
ombudspersons, national human rights bodies, and the role of civil
society organisations in safeguarding the rule of law, which aligns
with the Rule of Law Checklist's recommendations.
14. The Rule of Law Checklist is also referred to in the groundbreaking
Regulation on a general regime of conditionality for the protection
of the Union budget, which came into force on 1 January 2021.
Note The principal aim of this instrument
is to protect the EU budget from misuse in member States where rule
of law breaches occur. It establishes a direct link between adherence
to rule of law principles and access to EU funds, ensuring that
European taxpayers' money is spent responsibly and in line with
EU values.
15. In the landmark judgments of 16 February 2022 (cases C-156/21
and C-157/21), the Court of Justice of the European Union (CJEU)
explicitly referenced the Venice Commission's Rule of Law Checklist,
rejecting arguments raised by Poland and Hungary to limit the EU's
notion of the rule of law, particularly regarding the protection
of fundamental rights and non-discrimination. By referencing the
Rule of Law Checklist, the CJEU acknowledged the importance of external
benchmarks in shaping the EU's understanding and application of rule
of law principles.
4 Summary
of the updated Rule of Law Checklist
16. The update of the Rule of Law
Checklist was prompted by the Reykjavík Declaration of May 2023,
which called for strengthening the Venice Commission and giving
greater visibility and support to its Checklist. The Committee of
Ministers translated that political impetus into a mandate to update
the tool, in line with the Checklist’s own indication that periodic
revision would be necessary. The Commission appointed Mr Kaarlo Tuori
to lead the process and convened a working group. A broad consultation
followed, engaging Council of Europe bodies, including the Assembly
and the European Court of Human Rights, the European Commission and
the EU Fundamental Rights Agency, the UN Special Rapporteur on the
independence of judges and lawyers, regional ombudspersons institutions,
national constitutional courts, academia and civil society. The Venice
Commission also organised academic seminars on private power, the
execution of constitutional court decisions, transnational constitutional
standards, and a stocktaking of its work since 1990. In July 2025,
my predecessor, Ms Bushka, participated in an event in London on
“Protecting and Promoting the Rule of Law”, organised by the UK
Attorney General’s Office, in collaboration with the Foreign, Commonwealth
and Development Office, the Venice Commission, and the Bingham Centre
for the Rule of Law.
17. In the updated version, the Venice Commission largely retained
the original structure of the Checklist. Democratic backsliding
that took place in several jurisdictions over the past decade underscored
the importance of effective checks and balances, as well as constitutional
review for sustaining the rule of law. For that reason, these topics
were elevated to the level of specific rule of law benchmarks in
the updated text. The update also responds to developments in technology
and the growing power of private actors, especially in the digital
sphere, which pose challenges to accountability of decision makers,
judicial independence and create cross-border regulatory difficulties.
These issues are addressed both within the benchmarks and in a dedicated section
on particular challenges. The Commission’s analysis of recent rule
of law regression in several jurisdictions highlights new questions,
including how to effectively and promptly restore the rule of law
after a period of backsliding, while adhering to the rule of law
during that restorative process.
18. The Checklist’s purpose remains to provide an objective, transparent
and equal tool for assessing the rule of law in a given country,
focusing on constitutional and legal structures, laws in force and
case law. It recognises different legal traditions but distils common
normative elements, and it is intended as a holistic guide to overall
compliance rather than a set of rigid, uniform prescriptions. Parliaments,
governments, local and regional authorities, civil society and international
organisations are among the intended users. The Venice Commission
reiterated that the Checklist is neither exhaustive nor final as
new issues will arise and standards will evolve, requiring ongoing
review and further updates. While the focus is on legal safeguards,
the Commission emphasises that a supportive legal and political
culture, free media and active civil society are indispensable for
the rule of law to thrive. Cultural adherence to fundamental principles
does not remove the need for formal safeguards, and culture itself
can change rapidly. Legal and civic education are therefore highlighted
as integral to the realisation of the rule of law.
19. The updated Checklist reaffirms the interdependence of the
rule of law with human rights and democracy. Democracy legitimises
public decision making; human rights protect individuals from arbitrary power;
and the rule of law limits and subjects the exercise of power to
independent review. Together they prevent the accumulation and arbitrary
use of power. The Checklist addresses human rights and democratic components
insofar as they are linked to the rule of law. It also adopts a
multi-layered approach, recognising that public power is exercised
at supra- and sub-State levels and increasingly by private actors.
The rule of law requires the control of power and prevention of
its abuse at all levels, whether held by public or private actors, with
a particular emphasis on the independence and effectiveness of local
and regional self-government within a constitutional framework.
20. Turning to the updated benchmarks, these comprise the core
of the updated Checklist. The first, legality, involves the supremacy
of law, constitutionalism, and the hierarchy of norms, including
the need for a written constitution enshrining rights, separation
of powers and democratic principles. It examines compliance with
the law by public authorities, insisting on defined legal powers,
authorisation and adherence to procedural and substantive limits
with effective judicial review. A new significant addition is the
explicit requirement to extend rule of law guarantees to private
actors who perform public tasks or whose dominance in a given sector
allows them to take decisions with a comparable impact on citizens;
such power must be regulated by relevant legislation and be subject
to effective judicial supervision. Referring in this context explicitly
to private providers of artificial intelligence (AI) systems, the
Checklist requires governance frameworks, risk and impact assessments,
independent oversight, and responsibility for malfunction. The legality
benchmark also addresses the relationship between international
and domestic law, emphasising the pacta
sunt servanda principle and the need for full domestic
implementation of binding decisions of international judicial bodies, alongside
due consideration for non-binding decisions, such as advisory opinions
of the International Court of Justice and the European Court of
Human Rights. It assesses the primary role of the legislature in
law-making, circumscribing executive norm-making to explicit, specific
and controlled delegations. It sets standards for democratic, transparent
and inclusive legislative procedures, including public debate, rights
of the opposition and impact assessments, while recognising that
the use of AI must not displace democratic deliberation. It provides
strict criteria for emergency powers, requiring necessity, proportionality,
temporariness, parliamentary control and judicial review, alongside
safeguards for civil society and media in crises. The duty to implement the
law is affirmed, including ex ante and ex post legislative evaluation and
consistent enforcement with appropriate sanctions. Finally, the
legality benchmark now includes detailed criteria for the use of
new technologies, particularly personal data protection, surveillance,
bulk interception and the deployment of AI by public authorities,
insisting on legality, transparency, human oversight, independent
supervision and effective remedies.
21. The second benchmark, legal certainty, addresses accessibility
and foreseeability of the law, stability and consistency, and the
clarity and accessibility of courts’ decisions. It reiterates core
principles, including legitimate expectations, non-retroactivity, nullum crimen et nulla poena sine lege, res judicata and ne bis in idem, and highlights the
need for reasonable vacatio legis and
particular restraint regarding retrospective legislation that interferes
with pending disputes. A new added dimension is legal certainty
and new technologies, requiring that AI systems used by public authorities
satisfy minimum standards of reliability, cybersecurity and transparency,
with auditability and certification to ensure predictable and lawful
outcomes.
22. The third benchmark, prevention of abuse of power, sets out
general and procedural safeguards against arbitrariness in administrative
action, including clear limits on discretion, the duty to give reasons,
the right to be heard and independent review, supplemented by ombudsperson
oversight where appropriate. It addresses the accountability of
algorithmic decision making, requiring explainability, clear allocation
of responsibility between public and private actors, and sufficient
information for affected persons to challenge decisions. The anti-corruption
component consolidates preventive measures and criminal law responses,
calling for rules of conduct for public officials, coverage of high-risk
sectors, effective sanctions, independent and adequately resourced
anti-corruption bodies, protection for whistle-blowers and robust
follow-up to international monitoring.
23. The fourth benchmark, checks and balances, is one of the principal
enhancements in the updated Checklist. It calls for constitutional
separation of powers and loyal co-operation, alongside anti-blockage mechanisms,
judicial independence in law and practice, independent constitutional
review, protection of minority rights in parliament, local self-governance
and a professional civil service protected from arbitrary dismissal.
The framework extends beyond institutions to civic space: the Checklist
specifies constitutional and legal guarantees for freedom of expression,
assembly and association, media pluralism and independence, access
to information, protections against SLAPPs (Strategic Lawsuit Against
Public Participation) and the protection of whistle-blowers. It
also addresses online platforms with significant social impact,
requiring risk assessment and mitigation frameworks, enforcement
by independent regulators and judicial review.
24. The fifth benchmark, equality and non-discrimination, consolidates
the duty to prohibit unjustified unequal treatment and to guarantee
equal and effective protection against discrimination, both direct
and indirect, across a wide range of grounds (gender-based, racial,
religious or other). It distinguishes equality in law, requiring
objective and reasonable justifications for differences in treatment,
from equality before the law, ensuring equal application and effective
remedies against discriminatory enforcement. The Checklist recognises
the permissibility – and, at times, necessity – of positive action
to correct factual or historic inequalities, within proportionate
and temporary bounds. A dedicated sub-benchmark addresses equality
and new technologies, calling for equal access to technology, mechanisms
to prevent discriminatory bias across the AI lifecycle, effective
remedies and pre-authorisation assessment of equality impacts, including
in electoral contexts.
25. The sixth benchmark, access to justice, concerns standards
for the independence and impartiality of the judiciary, including
independent judicial councils or equivalent safeguards, merit-based
appointments, protection from political influence, appropriate tenure,
proportionate and fair disciplinary systems and adequate resources
to secure financial autonomy. It underscores that judicial independence
is a guarantee for litigants and the rule of law, not a privilege
for judges, and must be paired with appropriate accountability mechanisms. The
independence and integrity of other actors – the prosecution service
and the legal profession – are also addressed, with criteria for
autonomy, depoliticised appointments, clear rules on instructions,
sufficient resources, and protections for lawyers to advise and
represent clients without interference. The fair trial component
consolidates access to courts in practice, equality of arms, the
right to defence and legal aid, presumption of innocence, reasoned
judgments, timely proceedings and effective execution of decisions.
New provisions address digital technologies within the judicial
system, differentiating administrative tools from AI that would
assist judicial decision making, and requiring human-centred design,
explainability, independent oversight, pre-testing in regulatory
sandboxes and effective remedies for violations.
26. The seventh benchmark, constitutional review, is another elevated
element in the updated structure. It affirms the need for independent
constitutional review and the binding force of constitutional court
decisions on all public authorities and persons, precluding legislative
circumvention by re-enacting unconstitutional norms. It sets out
safeguards for composition and appointment – balanced and diverse
membership, objective merit-based criteria, sufficiently long terms,
irremovability, incompatibilities to preserve impartiality – and
for effective access to constitutional justice, including individual
complaints filtered to manage caseloads, and fair, effective procedures.
It also highlights the obligation to respect international and supranational
law where applicable, and the role of constitutional courts in upholding
those obligations within domestic legal orders.
27. Finally, the updated Checklist addresses the restoration of
the rule of law following a period of regression. It frames restoration
as a holistic endeavour that must itself adhere to rule of law standards, balancing
principles such as legal certainty,
res
judicata and the irremovability of judges against the
pressing need to re-establish independent adjudication and effective
checks and balances. It encourages comprehensive diagnosis, proportional
measures, safeguards for judges’ rights, public participation, and prompt,
transparent implementation to minimise uncertainty, while warning
that radical steps require especially careful scrutiny and safeguards
to avoid undermining the very objectives pursued. Furthermore, the
Checklist highlights legal and civic education as essential to embed
the values of human rights, democracy and the rule of law across
legal professions and society, emphasising academic freedom, quality
assurance and ongoing professional training, including for those
holding public office, as well as civic education from school onwards to
build a culture resistant to backsliding. The Venice Commission’s
own “The Rule of Law: A User Guide” can further contribute to this.
Note
5 Overall
assessment
28. The updated Rule of Law Checklist
remains an assessment tool tailored for legislative and institutional use,
offering a coherent, holistic framework grounded in legal standards
that can guide reforms and oversight across all branches and levels
of government, including in those domains where private power wields
influence comparable to that of governments. The updated Checklist
also integrates contemporary challenges, such as digitalisation,
AI and the impact of private social media platforms, into the core
legal architecture of the rule of law, insisting that technology
must be governed by law, transparency, oversight and remedies rather
than displace democratic deliberation or negatively affect judicial
independence. It also elevates the institutional safeguards – checks
and balances and constitutional review – which recent experience
in democratic backsliding shows are indispensable to prevent concentration
of power and to ensure that legal guarantees are meaningful in practice.
29. I welcome the fact that many proposals submitted by the previous
rapporteur were reflected in the updated Checklist, in particular
those relating to the impact of new technologies and private power,
and those concerning transitional situations, involving the restoration
of the rule of law. The Venice Commission’s open and inclusive approach
in updating the Checklist reflects the excellent co-operation that
the Assembly has enjoyed for more than three decades.
30. During the hearing before the Committee on Legal Affairs and
Human Rights, Professor Laurent Pech emphasised that the phenomenon
of rule of law backsliding is a deliberate process of dismantling
checks and balances in methodological way. The judiciary usually
becomes the top target of autocrats, along with public broadcasters.
He made an interesting proposal to include non-legal developments,
such as statements by high-ranking public officials refusing to
comply with binding judgments, as elements relevant when assessing State’s
respect for the rule of law. I agree that the rhetoric using the
“will of the people” as a reason to refuse to comply with courts’
decisions by representatives of the government is an unacceptable
excuse and severely contributes to the process of rule of law backsliding.
31. In this context, I particularly appreciate that the Venice
Commission emphasises that the rule of law is sustained not only
by formal norms and adherence to legal standards, but also by culture,
education and vigilance. The Checklist, while an evolving document,
is designed to support objective, transparent and equal assessment
across diverse legal traditions and contexts, and the Venice Commission
commits to continuing its periodic review to ensure that the benchmarks
remain responsive to new developments and faithful to the shared
constitutional values they are intended to uphold. I am certain
that the Assembly will continue to closely collaborate with the
Venice Commission in this endeavour.
32. Finally, I wish to stress that the adoption of the updated
Rule of Law Checklist comes at a time when the rules-based international
order is facing unprecedented challenges. This is exemplified by
the ongoing war of aggression launched by the Russian Federation
against Ukraine, ongoing hostilities in the broader Middle East and
re-emergence of a long-forgotten policy that might is right. At
the same time, the recent political shifts in Hungary and Poland,
as evidenced by the record-breaking turnout at national parliamentary
and/or presidential elections, show that Europeans are deeply attached
to the foundations of our system, and build momentum for strengthening
Europe’s democratic model. I strongly believe that the updated Rule
of Law Checklist can be a relevant tool in preparing the New Democratic
Pact for Europe
Note – an initiative aimed at reinforcing
democratic security on our continent.
