090416GBR - Rule of Law Check List

THE RULE OF LAW
CHECKLIST
Access to justice Access to courts

International law
Equality
Law
Consistency of law
Non-discrimination
Supremacy of the law
Presumption of innocence
Constitutional justice
Equality before the law

Compliance with the law
Consistency of law
Accessibility of legislation and court decisions
Prevention of abuse of powers
Equality before the law

Rule of Law Prosecution service: autonomy and control
Legal certainty
Domestic law
Stability and consistency of law

Non-retroactivity Effectiveness of judicial decisions
Access to justice
Law-making procedures
Legality
Legality
Consistency of law
Rule of Law
Legality
Fair trial
Constitutional justice
Non-retroactivity
Rule of Law International law Constitutional justice
Accesstocourts Compliance with the law Supremacy of the law Compliance

Venice Commission
of the Council of Europe
EUROPEAN COMMISSION
FOR DEMOCRACY
THROUGH LAW
(VENICE COMMISSION)
RULE OF LAW CHECKLIST
Adopted by the Venice Commission

at its 106th Plenary Session
(Venice, 11-12 March 2016)
on the basis of comments by

Mr Sergio BARTOLE
(Substitute Member, Italy)
Ms Veronika BILKOVA
(Member, Czech Republic)
Ms Sarah CLEVELAND
(Member, United States of America)
Mr Paul CRAIG
(Substitute Member, United Kingdom)
Mr Jan HELGESEN
(Member, Norway)
Mr Wolfgang HOFFMANN-RIEM
(Member, Germany)
Mr Kaarlo TUORI
(Member, Finland)
Mr Pieter van DIJK
(Former Member, the Netherlands)
Sir Jeffrey JOWELL
(Former Member, United Kingdom)
Council of Europe
French edition:
Liste des critères de l’Etat de droit
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Printed at the Council of Europe
Table of contents
I. Introduction 7
A. Purpose and scope 8
B. The Rule of Law in an enabling environment 14
II. Benchmarks 17
A. Legality 17
1. Supremacy of the law 17
2. Compliance with the law 18
3. Relationship between international law and domestic law 19
4. Law-making powers of the executive 20
5. Law-making procedures 21
6. Exceptions in emergency situations 22
7. Duty to implement the law 23
8. Private actors in charge of public tasks 24
B. Legal certainty 25
1. Accessibility of legislation 25
2. Accessibility of court decisions 25
3. Foreseeability of the laws 25
4. Stability and consistency of law 26
5. Legitimate expectations 26
6. Non-retroactivity 27
7. Nullum crimen sine lege and nulla poena sine lege principles 27
8. Res judicata 28
C. Prevention of abuse (misuse) of powers 29
Page 3
D. Equality before the law and non-discrimination 30
1. Principle 30
2. Non-discrimination 30
3. Equality in law 31
4. Equality before the law 32
E. Access to justice 33
1. Independence and impartiality 33
a. Independence of the judiciary 33
b. Independence of individual judges 37
c. Impartiality of the judiciary 38
d. The prosecution service: autonomy and control 39
e. Independence and impartiality of the Bar 41
2. Fair trial 42
a. Access to courts 42
b. Presumption of innocence 44
c. Other aspects of the right to a fair trial 45
d. Effectiveness of judicial decisions 46
3. Constitutional justice (if applicable) 46
F. Examples of particular challenges to the Rule of Law 49
1. Corruption and conflict of interest 49
a. Preventive measures 49
b. Criminal law measures 50
c. Effective compliance with, and implementation of preventive
and repressive measures 51
2. Collection of data and surveillance 52
a. Collection and processing of personal data 52
b. Targeted surveillance 55
c. Strategic surveillance 55
d. Video surveillance 56
Iii. Selected standards 57
III.a. General Rule of Law Standards 57
1. Hard Law 57
2. Soft Law 58
a. Council of Europe 58
b. European Union 58
c. Other international organisations 58
d. Rule of Law Indicators 59
III.b. Standards relating to the Benchmarks 59
A. Legality 59
1. Hard Law 59
2. Soft Law 60
Page 4
B. Legal certainty 61
1. Hard Law 61
2. Soft Law 61
C. Prevention of abuse of powers 61
1. Hard Law 61
2. Soft Law 62
D. Equality before the law and non-discrimination 62
1. Hard Law 62
c. Other international organisations 63
2. Soft Law 64
1. Hard Law 65
2. Soft Law 66
c. United Nations 68
d. The Commonwealth of Nations 69
e. Organization for Security and Co-operation in Europe 70
f. Other international organisations 70
g. Other 71
F. Examples of particular challenges to the Rule of Law 71
1. Hard Law 71
a. Corruption 71
b. Collection of data and surveillance 71
2. Soft Law 72
a. Corruption 72
b. Collection of data and surveillance 72
Page 5
I. Introduction
1
. At its 86th plenary session (March 2011), the Venice Commission adopted
the Report on the Rule of Law (CDL-AD(2011)003rev). This report identi-
fied common features of the Rule of Law, Rechtsstaat and Etat de droit.
A first version of a checklist to evaluate the State of the Rule of Law in single
States was appended to this report.
2. On 2 March 2012, the Venice Commission organised, under the auspices of
the UK Chairmanship of the Committee of Ministers of the Council of Europe,
in co-operation with the Foreign and Commonwealth Office of the United
Kingdom and the Bingham Centre for the Rule of Law, a conference on “The
Rule of Law as a practical concept”. The conclusions of this conference under-
lined that the Venice Commission would develop the checklist by, inter alia,
including some suggestions made at the conference.
3. A group of experts made up of Mr Bartole, Ms Bilkova, Ms Cleveland, Mr
Craig, Mr Helgesen, Mr Hoffmann-Riem, Mr Tuori, Mr van Dijk and Sir Jeffrey
Jowell prepared the present detailed version of the checklist.
4. The Venice Commission wishes to acknowledge the contribution of the
Bingham Centre for the Rule of Law, notably for the compilation of the selected
standards in part III. The Commission also wishes to thank the secretariats of
the Consultative Council of European Judges (CCJE), the European Commission
against Racism and Intolerance (ECRI), the Framework Convention for the
Protection of National Minorities and the Group of States against Corruption
(GRECO), as well as of OSCE/ODIHR and of the European Union Agency for
Fundamental Rights (FRA) for their co-operation.
Page 7
European Commission for Democracy through Law
5. The introductive part (I) first explains the purpose and scope of the report
and then develops the interrelations between the Rule of Law on the one
side and democracy and human rights on the other side (“the Rule of Law in
an enabling environment”).
6. The second part (II, benchmarks) is the core of the checklist and develops
the various aspects of the Rule of Law identified in the 2011 report: legality;
legal certainty; prevention of abuse of powers; equality before the law and
non-discrimination and access to justice; while the last chapter provides two
examples of particular challenges to the Rule of Law (corruption and conflict
of interest, and collection of data and surveillance).
7. The third part (III, selected standards) lists the most important instruments
of hard and soft law addressing the issue of the Rule of Law.
8. The present checklist was discussed by the Sub-Commission on the Rule
of Law on 17 December 2015 and on 10 March 2016, and was subsequently
adopted by the Venice Commission at its 106th plenary session (Venice, 11-12
March 2016).
A. Purpose and scope

9. The Rule of Law is a concept of universal validity. The “need for universal
adherence to and implementation of the Rule of Law at both the national and
international levels” was endorsed by all Members States of the United Nations
in the 2005 Outcome Document of the World Summit (§ 134). The Rule of Law,
as expressed in the Preamble and in Article 2 of the Treaty on European Union
(TEU), is one of the founding values that are shared between the European
Union (EU) and its Member States.1 In its 2014 New Framework to Strengthen
the Rule of Law, the European Commission recalls that “the principle of the
Rule of Law has progressively become a dominant organisational model of
modern constitutional law and international organisations /…/ to regulate the
exercise of public powers” (pp. 3-4). In an increasing number of cases States
refer to the Rule of Law in their national constitutions.2
10. The Rule of Law has been proclaimed as a basic principle at universal level
by the United Nations – for example in the Rule of Law Indicators -, and at
regional level by the Organization of American States - namely in the Inter-
American Democratic Charter - and the African Union - in particular in its
1. See, for example, FRA (Fundamental Rights Agency) (2016), Fundamental rights: challenges
and achievements in 2015 – FRA Annual report 2013, Luxembourg, Publications Office of the
European Union (Publications Office), Chapter 7 (upcoming).
2. Cf. CDL-AD(2011)003rev, § 30ff.
Rule of Law Checklist Page 8

The Venice Commission of the Council of Europe
Constitutive Act. References to the Rule of Law may also be found in several
documents of the Arab League.
11. The Rule of Law is mentioned in the Preamble to the Statute of the Council
of Europe as one of the three “principles which form the basis of all genuine
democracy”, together with individual freedom and political liberty. Article 3 of
the Statute makes respect for the principle of the Rule of Law a precondition
for accession of new member States to the Organisation. The Rule of Law is
thus one of the three intertwined and partly overlapping core principles of the
Council of Europe, with democracy and human rights. The close relationship
between the Rule of Law and the democratic society has been underlined by
the European Court of Human Rights through different expressions: “demo-
cratic society subscribing to the Rule of Law”, “democratic society based on the
Rule of Law” and, more systematically, “Rule of Law in a democratic society”.
The achievement of these three principles - respect for human rights, pluralist
democracy and the Rule of Law - is regarded as a single objective - the core
objective - of the Council of Europe.
12. The Rule of Law has been systematically referred to in the major political
documents of the Council of Europe, as well as in numerous Conventions
and Recommendations. The Rule of Law is notably mentioned as an element
of common heritage in the Preamble to the European Convention for the
Protection of Human Rights and Fundamental Freedoms (ECHR), as a founding
principle of European democracies in Resolution Res(2002)12 establishing the
European Commission for the Efficiency of Justice (CEPEJ), and as a priority
objective in the Statute of the Venice Commission. However, the Council of
Europe texts have not defined the Rule of Law, nor has the Council of Europe
created any specific monitoring mechanism for Rule of Law issues.
13. The Council of Europe has nevertheless acted in several respects with a
view to promoting and strengthening the Rule of Law through several of its
bodies, notably the European Court of Human Rights (ECtHR), the European
Commission for the Efficiency of Justice (CEPEJ), the Consultative Council of
Judges of Europe (CCJE), the Group of States against Corruption (GRECO),
the Monitoring Committee of the Parliamentary Assembly of the Council of
Europe, the Commissioner for Human Rights and the Venice Commission.
14. In its Report on the Rule of Law of 2011, 3 the Venice Commission exam-
ined the concept of the Rule of Law, following Resolution 1594(2007) of
the Parliamentary Assembly which drew attention to the need to ensure a
correct interpretation of the terms “Rule of Law”, “Rechtsstaat” and “Etat de
3. CDL-AD(2011)003rev.
I. Introduction Page 9
droit” or “prééminence du droit”, encompassing the principles of legality

and of due process.
15. The Venice Commission analysed the definitions proposed by various
authors coming from different systems of law and State organisation, as well
as diverse legal cultures. The Commission considered that the notion of the
Rule of Law requires a system of certain and foreseeable law, where everyone
has the right to be treated by all decision-makers with dignity, equality and
rationality and in accordance with the laws, and to have the opportunity to
challenge decisions before independent and impartial courts through fair
procedures. The Commission warned against the risks of a purely formalistic
concept of the Rule of Law, merely requiring that any action of a public official
be authorised by law. “Rule by Law”, or “Rule by the Law”, or even “Law by
Rules” are distorted interpretations of the Rule of Law.4
16. The Commission also stressed that individual human rights are affected not
only by the authorities of the State, but also by hybrid (State-private) actors and
private entities which perform tasks that were formerly the domain of State
authorities, or include unilateral decisions affecting a great number of people,
as well as by international and supranational organisations. The Commission
recommended that the Rule of Law principles be applied in these areas as well.
17. The Rule of Law must be applied at all levels of public power. Mutatis
mutandis, the principles of the Rule of Law also apply in private law relations.
The following definition by Tom Bingham covers most appropriately the
essential elements of the Rule of Law: “All persons and authorities within the
State, whether public or private, should be bound by and entitled to the ben-
efit of laws publicly made, taking effect (generally) in the future and publicly
administered in the courts”.5
18. In its report, the Commission concluded that, despite differences of opin-
ion, consensus exists on the core elements of the Rule of Law as well as on
those of the Rechtsstaat and of the Etat de droit, which are not only formal
but also substantive or material (materieller Rechtsstaatsbegriff). These core
elements are: (1) Legality, including a transparent, accountable and democratic
process for enacting law; (2) Legal certainty; (3) Prohibition of arbitrariness; (4)
4. See Parliamentary Assembly of the Council of Europe, Motion for a resolution presented by
Mr Holovaty and others, The principle of the rule of law, Doc. 10180, § 10. In this context,
see also the Copenhagen document of the CSCE, para. 2: “[participating States] consider
that 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.”
5. Tom Bingham, The Rule of Law (2010).

Access to justice before independent and impartial courts, including judicial

review of administrative acts; (5) Respect for human rights; and (6) Non-
discrimination and equality before the law.
19. Since its 2011 Report was oriented towards facilitating a correct and con-
sistent understanding and interpretation of the notion of the Rule of Law and,
therefore, aimed at facilitating the practical application of the principles of the
Rule of Law, a “checklist for evaluating the State of the Rule of Law in single
countries” was appended to the report, listing these six elements, broken
down into several sub-parameters.
20. In 2012, at a conference which the Venice Commission organised in London
under the auspices of the UK Foreign Office and in co-operation with the
Bingham Centre for the Rule of Law, it launched the project to further develop
the checklist as a ground-breaking new, functional approach to assessing the
State of the Rule of Law in a given State.
21. In 2013, the Council of the European Union has begun implementing a
new Rule of Law Dialogue with the member States, which would take place on
an annual basis. It underlined that “respecting the rule of law is a prerequisite
for the protection of fundamental rights” and called on the Commission “to
take forward the debate in line with the Treaties on the possible need for
and shape of a collaborative and systematic method to tackle these issues”.6
In 2014, the European Commission adopted a mechanism for addressing
systemic Rule of Law issues in Member States of the European Union (EU).
This “new EU Framework to strengthen the Rule of Law” establishes an early
warning tool based on “the indications received from available sources and
recognised institutions, including the Council of Europe”; “[i]n order to obtain
expert knowledge on particular issues relating to the rule of law in Member
States, the (European) Commission … will as a rule and in appropriate cases,
seek the advice of the Council of Europe and/or its Venice Commission”.7
22. At the United Nations level, following the publication of “Rule of Law
Indicators” in 2011,8 the United Nations General Assembly adopted in 2012 a
6. Council conclusions on fundamental rights and rule of law and on the Commission 2012
Report on the Application of the Charter of Fundamental Rights of the European Union,
Justice and Home Affairs Council Meeting, Luxembourg, 6-7 June 2013, part c, available at:
http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/jha/137404.pdf.
7. Communication from the European Commission to the European Parliament and the
Council, ‘A new EU Framework to strengthen the Rule of Law’, COM(2014) 158 final/2,
http://ec.europa.eu/justice/effective-justice/files/com_2014_158_en.pdf.
8. This document is a joint publication of the United Nations Department of Peacekeeping
Operations (DPKO) and the Office of the United Nations High Commissioner for Human
Rights (OHCHR).
Declaration of the High-level Meeting of the General Assembly on the Rule

of Law at the National and International Levels, recognising that the “Rule of
Law applies to all States equally, and to international organizations”.
23. The sustainable development agenda with its 17 Sustainable Development
Goals (SDGs) and 169 targets to be delivered by 2030 was unanimously adopted
by the UN General Assembly in September 2015. The SDGs, which comprise
a number of Goals, are aimed to be truly transformative and have profound
implications for the realization of the agenda, envisaging “[a world] in which
democracy, good governance and the rule of law, as well as an enabling envi-
ronment at the national and international levels, are essential for sustainable
development…” Goal 16 commits States to “Promote peaceful and inclusive
societies for sustainable development, provide access to justice for all and build
effective, accountable and inclusive institutions at all levels”. The achievement of
Goal 16 will be assessed against a number of targets, some of which incorporate
Rule of Law components, such as the development of effective accountable
and transparent institutions (target 16.6) and responsive, inclusive participa-
tory and representative decision making at all levels (target 16.7). However,
it is Target 16.3, committing States to “Promote the rule of law at the national
and international levels and ensure equal access to justice for all” that offers a
unique opportunity for revitalizing the relationship between citizens and the
State. This Checklist could be a very important tool to assist in the qualitative
measurement of Rule of Law indicators in the context of the SDGs.
24. The present checklist is intended to build on these developments and to
provide a tool for assessing the Rule of Law in a given country from the view
point of its constitutional and legal structures, the legislation in force and
the existing case-law. The checklist aims at enabling an objective, thorough,
transparent and equal assessment.
25. The checklist is mainly directed at assessing legal safeguards. However,
the proper implementation of the law is a crucial aspect of the Rule of Law and
must therefore also be taken into consideration. That is why the checklist also
includes certain complementary benchmarks relating to the practice. These
benchmarks are not exhaustive.
26. Assessing whether the parameters have been met requires sources of
verification (standards). For legal parameters, these will be the law in force, as
well as, for example, in Europe, the legal assessments thereof by the European
Court of Human Rights, the Venice Commission, Council of Europe monitoring
bodies and other institutional sources. For parameters relating to the practice,
multiple sources will have to be used, including institutional ones such as the
CEPEJ and the European Union Agency for Fundamental Rights.

27. The checklist is meant as a tool for a variety of actors who may decide to
carry out such an assessment: These may include Parliaments and other State
authorities when addressing the need and content of legislative reform, civil
society and international organisations, including regional ones – notably the
Council of Europe and the European Union. Assessments have to take into
account the whole context, and avoid any mechanical application of specific
elements of the checklist.
28. It is not within the mandate of the Venice Commission to proceed with
Rule of Law assessments in given countries on its own initiative; however, it is
understood that when the Commission, upon request, deals with Rule of Law
issues within the framework of the preparation of an opinion relating a given
country, it will base its analysis on the parameters of the checklist within the
scope of its competence.
29. The Rule of Law is realised through successive levels achieved in a pro-
gressive manner: the more basic the level of the Rule of Law, the greater the
demand for it. Full achievement of the Rule of Law remains an on-going task,
even in the well-established democracies. Against this background, it should
be clear that the parameters of the checklist do not necessarily all have to
be cumulatively fulfilled in order for a final assessment on compliance with
the Rule of Law to be positive. The assessment will need to take into account
which parameters are not met, to what extent, in what combination etc. The
issue must be kept under constant review.
30. The checklist is neither exhaustive nor final: it aims to cover the core
elements of the Rule of Law. The checklist could change over time, and be
developed to cover other aspects or to go into further detail. New issues might
arise that would require its revision. The Venice Commission will therefore
provide for a regular updating of the Checklist.
31. The Rule of Law and human rights are interlinked, as the next chapter
will explain. The Rule of Law would just be an empty shell without permit-
ting access to human rights. Vice-versa, the protection and promotion of
human rights are realised only through respect for the Rule of Law: a strong
regime of Rule of Law is vital to the protection of human rights. In addition,
the Rule of Law and several human rights (such as fair trial and freedom of
expression) overlap.9 While recognising that the Rule of Law can only be
fully realised in an environment that protects human rights, the checklist
9. See FRA (2014), An EU internal strategic framework for fundamental rights: joining funda-
mental rights: joining forces to achieve better results. Luxembourg, Publications Office of
the European Union (Publications Office).
will expressly deal with human rights only when they are linked to specific
aspects of the Rule of Law.10
32. Since the Venice Commission is a body of the Council of Europe, the
checklist emphasises the legal situation in Europe, as expressed in particular
in the case-law of the European Court of Human Rights and also of the Court
of Justice of the European Union within its specific remit. The Rule of Law is
however a universal principle, and this document also refers, where appropri-
ate, to developments at global level as well as in other regions of the world,
in particular in part III enumerating international standards.
B. The Rule of Law in an enabling environment

33. The Rule of Law is linked not only to human rights but also to democracy,
i.e. to the third basic value of the Council of Europe. Democracy relates to the
involvement of the people in the decision-making process in a society; human
rights seek to protect individuals from arbitrary and excessive interferences
with their freedoms and liberties and to secure human dignity; the Rule of
Law focuses on limiting and independently reviewing the exercise of public
powers. The Rule of Law promotes democracy by establishing accountability
of those wielding public power and by safeguarding human rights, which
protect minorities against arbitrary majority rules.
34. The Rule of Law has become “a global ideal and aspiration”,11 with a
common core valid everywhere. This, however, does not mean that its imple-
mentation has to be identical regardless of the concrete juridical, historical,
political, social or geographical context. While the main components or
“ingredients”12 of the Rule of Law are constant, the specific manner in which
they are realised may differ from one country to another depending on the
local context; in particular on the constitutional order and traditions of the
country concerned. This context may also determine the relative weight of
each of the components.
35. Historically, the Rule of Law was developed as a means to restrict State
(governmental) power. Human rights were seen as rights against intrusions
by holders of this power (“negative rights”). In the meantime the perception
10. On the issue, see in particular the Report on the Rule of Law adopted by the Venice
Commission, CDL-AD(2011)003rev, § 59-61. The report also underlines (§ 41) that “[a] con-
sensus can now be found for the necessary elements of the Rule of Law as well as those
of the Rechtsstaat which are not only formal but also substantial or material” (emphasis
added).
11. Rule of Law. A Guide for Politicians, HIIL, Lund/The Hague, 2012, p. 6.
12. Venice Commission Report on the Rule of Law, CDL-AD(2011)003rev, § 37.

of human rights has changed in many States as well as in European and

international law. There are several differences in the details, but nonetheless
there is a trend to expand the scope of civil and political rights, especially
by acknowledging positive obligations of the State to guarantee effective
legal protection of human rights vis-à-vis private actors. Relevant terms are
“positive obligations to protect”, “horizontal effects of fundamental rights” or
“Drittwirkung der Grundrechte“.
36. The European Court of Human Rights has acknowledged positive obliga-
tions in several fields, for instance related to Art. 8 ECHR.13 In several decisions
the Court has developed specific positive obligations of the State by combin-
ing Art. 8 ECHR and the Rule of Law.14 Even though positive obligations to
protect could not be solely derived from the Rule of Law in these cases, the
Rule of Law principle creates additional obligations of the State to guarantee
that individuals under their jurisdiction have access to effective legal means
to enforce the protection of their human rights, in particular in situations
when private actors infringe these rights. Thus the Rule of Law creates a
benchmark for the quality of laws protecting human rights: legal provisions
in this field – and beyond15 – have to be, inter alia, clear and predictable, and
non-discriminatory, and they must be applied by independent courts under
procedural guarantees equivalent to those applied in conflicts resulting from
interferences with human rights by public authorities.
37. One of the relevant contextual elements is the legal system at large.
Sources of law which enshrine legal rules, thus granting legal certainty, are
not identical in all countries: some States adhere largely to statute law, save
for rare exceptions, whereas others include adherence to the common law
judge-made law.
38. States may also use different means and procedures - for example related
to the fair trial principle - in criminal proceedings (adversarial system as com-
pared to inquisitorial system, right to a jury as compared to the resolution
of criminal cases by judges). The material means that are instrumental in
guaranteeing fair trial, such as legal aid and other facilities, may also take
different forms.
39. The distribution of powers among the different State institutions may
also impact the context in which this checklist is considered. It should be
13. See for example ECtHR, Centro Europe 7 and di Stefano v. Italy, 38433/09, 7 June 2012, § 134,
156; Bărbulescu v. Romania, 61496/08, 12 January 2016, § 52ff.
14. See ECtHR, Sylvester v. Austria, 36812/97 and 40104/98, 24 April 2003, § 63; P.P. v. Poland,
8677/03, 8 January 2008, § 88.
15. As Rule of Law guarantees apply not only to human rights law but to all laws.
well-adjusted through a system of checks and balances. The exercise of legis-

lative and executive power should be reviewable for its constitutionality and
legality by an independent and impartial judiciary. A well-functioning judici-
ary, whose decisions are effectively implemented, is of the highest importance
for the maintenance and enhancement of the Rule of Law.
40. At the international level, the demands and implications of the Rule of Law
reflect the particularities of the international legal system. In many respects
that system is far less developed than national constitutional and legal sys-
tems. Apart from special regional systems like that of the European Union,
international systems have no permanent legislator, and for most cases no
judiciary with obligatory jurisdiction, while the democratic characteristics in
decision-making are still very weak.
41. The European Union’s supranational nature led it to develop the concept
of Rule of Law as a general principle of law applicable to its own legal system.
According to the case law of the Court of Justice of the European Union, the
Rule of Law includes the supremacy of law, the institutional balance, judicial
review, (procedural) fundamental rights, including the right to a judicial rem-
edy, as well as the principles of equality and proportionality.
42. The contextual elements of the Rule of Law are not limited to legal fac-
tors. The presence (or absence) of a shared political and legal culture within
a society, and the relationship between that culture and the legal order help
to determine to what extent and at what level of concreteness the various
elements of the Rule of Law have to be explicitly expressed in written law.
Thus, for instance, national traditions in the area of dispute settlement and
conflict resolution will have an impact upon the concrete guarantees of fair
trial offered in a country. It is important that in every State a robust political
and legal culture supports particular Rule of Law mechanisms and procedures,
which should be constantly checked, adapted and improved.
43. The Rule of Law can only flourish in a country whose inhabitants feel
collectively responsible for the implementation of the concept, making it an
integral part of their own legal, political and social culture.

II. Benchmarks
A. Legality16
1. Supremacy of the law
Is supremacy of the law recognised?

i. Is there a written Constitution?
ii. Is conformity of legislation with the Constitution ensured?
iii. Is legislation adopted without delay when required by the
Constitution?
iv. Does the action of the executive branch conform with the
Constitution and other laws?17
v. Are regulations adopted without delay when required by
legislation?
vi. Is effective judicial review of the conformity of the acts and
decisions of the executive branch of government with the law
available?
vii. Does such judicial review also apply to the acts and decisions
of independent agencies and private actors performing public
tasks?
viii. Is effective legal protection of individual human rights vis-à-vis
infringements by private actors guaranteed?
16. The principle of legality is explicitly recognised as an aspect of the Rule of Law by the
European Court of Justice, see ECJ, C-496/99 P, Commission v. CAS Succhi di Frutta, 29 April
2004, § 63.
17. This results from the principle of separation of powers, which also limits the discretion of
the executive: cf. CM(2008)170, The Council of Europe and the Rule of Law, § 46.
Page 17
44. State action must be in accordance with and authorised by the law.
Whereas the necessity for judicial review of the acts and decisions of the
executive and other bodies performing public tasks is universally recognised,
national practice is very diverse on how to ensure conformity of legislation
with the Constitution. While judicial review is an effective means to reach this
goal, there may also be other means to guarantee the proper implementa-
tion of the Constitution to ensure respect for the Rule of Law, such as a priori
review by a specialised committee.18
2. Compliance with the law19
Do public authorities act on the basis of, and in accordance with

standing law?20
i. Are the powers of the public authorities defined by law?21
ii. Is the delineation of powers between different authorities clear?
iii. Are the procedures that public authorities have to follow estab-
lished by law?
iv. May public authorities operate without a legal basis? Are such
cases duly justified?
v. Do public authorities comply with their positive obligations by
ensuring implementation and effective protection of human rights?
vi. In cases where public tasks are delegated to private actors, are
equivalent guarantees established by law?22
45. A basic requirement of the Rule of Law is that the powers of the public
authorities are defined by law. In so far as legality addresses the actions of
18. The Venice Commission is in principle favourable to full review of constitutionality, but a
proper implementation of the Constitution is sufficient: cf. CDL-AD(2008)010, Opinion on
the Constitution of Finland, § 115ff. See especially the section on Constitutional Justice
(II.E.3).
19. On the hierarchy of norms, see CDL-JU(2013)020, Memorandum – Conference on the
European standards of Rule of Law and the scope of discretion of powers in the member
States of the Council of Europe (Yerevan, Armenia, 3-5 July 2013).
20. The reference to « law » for acts and decisions affecting human rights is to be found in
a number of provisions of the European Convention on Human Rights, including Article
6.1, 7 and Articles 8.2, 9.2, 10.2 and 11.2 concerning restrictions to fundamental freedoms.
See, among many other authorities, ECtHR Amann v. Switzerland, 27798/95, 16 February
2000, § 47ff; Slivenko v. Latvia, 48321/99, 9 October 2003, § 100; X. v. Latvia, 27853/09, 26
November 2013, § 58; Kurić and Others v. Slovenia, 26828/06, 12 March 2014, § 341.
21. Discretionary power is, of course, permissible, but must be controlled. See below II.C.1.
22. Cf. below II.A.8.

public officials, it also requires that they have authorisation to act and that
they subsequently act within the limits of the powers that have been conferred
upon them, and consequently respect both procedural and substantive law.
Equivalent guarantees should be established by law whenever public powers
are delegated to private actors – especially but not exclusively coercive powers.
Furthermore, public authorities must actively safeguard the fundamental rights
of individuals vis-à-vis other private actors.23
46. “Law” covers not only constitutions, international law, statutes and regula-
tions, but also, where appropriate, judge-made law,24 such as common-law rules,
all of which is of a binding nature. Any law must be accessible and foreseeable.25
3. Relationship between international law and domestic law
Does the domestic legal system ensure that the State abide by its
binding obligations under international law? In particular:
i. Does it ensure compliance with human rights law, including
binding decisions of international courts?
ii. Are there clear rules on the implementation of these obligations
into domestic law?26
23. For a recent reference to positive obligations of the State to ensure the fundamental
rights of individuals vis-à-vis private actors, see ECtHR Bărbulescu v. Romania, 61496/08,
12 January 2016, § 52ff (concerning Article 8 ECHR).
24. Law “comprises statute law as well as case-law”, ECtHR Achour v. France, 67335/01, 29 March
2006, § 42; cf Kononov v. Latvia [GC], 36376/04, 17 May 2010, § 185.
25. ECtHR The Sunday Times v. the United Kingdom (No. 1), 6538/74, 26 April 1979, § 46ff. On the
conditions of accessibility and foreseeability, see, e.g., ECtHR Kurić and Others v. Slovenia,
26828/06, 26 June 2012, § 341ff; Amann v. Switzerland, 27798/95, 16 February 2000, § 50;
Slivenko v. Latvia, 48321/99, 9 October 2003, § 100. The Court of the European Union consi-
ders that the principles of legal certainty and legitimate expectations imply that “the effect
of Community legislation must be clear and expectable to those who are subject to it”: ECJ,
212 to 217/80, Amministrazione delle finanze dello Stato v. SRL Meridionale Industria Salumi
and Others, 12 November 1981, § 10; or “that legislation be clear and precise and that its
application be foreseeable for all interested parties”: CJEU, C-585/13, Europäisch-Iranische
Handelsbank AG v. Council of the European Union, 5 March 2015, § 93; cf. ECJ, C325/91, France
v Commission, 16 June 1993, § 26. For more details, see II.B (legal certainty).
26. Cf. Article 26 (pacta sunt servanda) and Article 27 (internal law and observance of treaties)
of the 1969 Vienna Convention on the Law of Treaties; CDL-STD(1993)006, The relation-
ship between international and domestic law, § 3.6 (treaties), 4.9 (international custom),
5.5 (decisions of international organisations), 6.4 (international judgments and rulings);
CDL-AD(2014)036, Report on the Implementation of Human Rights Treaties in Domestic
Law and the Role of Courts, § 50.
II. Benchmarks Page 19

47. The principle pacta sunt servanda (agreements must be kept) is the way in
which international law expresses the principle of legality. It does not deal with
the way in which international customary or conventional law is implemented
in the internal legal order, but a State “may not invoke the provisions of its
internal law as justification for its failure to perform a treaty”27 or to respect
customary international law.
48. The principle of the Rule of Law does not impose a choice between mon-
ism and dualism, but pacta sunt servanda applies regardless of the national
approach to the relationship between international and internal law. At any
rate, full domestic implementation of international law is crucial. When inter-
national law is part of domestic law, it is binding law within the meaning of
the previous paragraph relating to supremacy of law (II.A.2). This does not
mean, however, that it should always have supremacy over the Constitution
or ordinary legislation.
4. Law-making powers of the executive
Is the supremacy of the legislature ensured?

i. Are general and abstract rules included in an Act of Parliament
or a regulation based on that Act, save for limited exceptions
provided for in the Constitution?
ii. What are these exceptions? Are they limited in time? Are they
controlled by Parliament and the judiciary? Is there an effective
remedy against abuse?
iii. When legislative power is delegated by Parliament to the execu-
tive, are the objectives, contents, and scope of the delegation
of power explicitly defined in a legislative act?28
49. Unlimited powers of the executive are, de jure or de facto, a central feature
of absolutist and dictatorial systems. Modern constitutionalism has been built
against such systems and therefore ensures supremacy of the legislature.29
27. Article 27 of the Vienna Convention on the Law of Treaties; see also Article 46 (Provisions
of internal law regarding the competence to conclude treaties).
28. See Article 80 of the German Constitution; Article 76 of the Italian Constitution; Article
92 of the Constitution of Poland; Article 290.1 of the Treaty on the Functioning of the
European Union, which States that “[t]he essential elements of an area shall be reserved
for the legislative act and accordingly shall not be the subject of a delegation of power”.
29. ECtHR Sunday Times, above note 25.

5. Law-making procedures
Is the process for enacting law transparent, accountable, inclusive

and democratic?
i. Are there clear constitutional rules on the legislative procedure?30
ii. Is Parliament supreme in deciding on the content of the law?
iii. Is proposed legislation debated publicly by parliament and
adequately justified (e.g. by explanatory reports)?31
iv. Does the public have access to draft legislation, at least when it
is submitted to Parliament? Does the public have a meaningful
opportunity to provide input?32
v. Where appropriate, are impact assessments made before adopt-
ing legislation (e.g. on the human rights and budgetary impact
of laws)?33
vi. Does the Parliament participate in the process of drafting, approv-
ing, incorporating and implementing international treaties?
50. As explained in the introductory part, the Rule of Law is connected with
democracy in that it promotes accountability and access to rights which limit
the powers of the majority.
30. On the need to clarify and streamline legislative procedures, see e.g. CDL-AD(2012)026, § 79;
cf. CDL-AD(2002)012, Opinion on the draft revision of the Romanian Constitution, § 38ff.
31. According to the European Court of Human Rights, exacting and pertinent review of (draft)
legislation, not only a posteriori by the judiciary, but also a priori by the legislature, makes
restrictions to fundamental rights guaranteed by the Convention more easily justifiable:
ECtHR Animal Defenders International v. the United Kingdom, 48876/08, 22 April 2013, §106ff.
32. UN Human Rights Committee, General Comment No. 25 (1996), Article 25 (Participation in
Public Affairs and the Right to Vote) - The Right to Participate in Public Affairs, Voting Rights
and the Right of Equal Access to Public Service, – provides that “[c]itizens also take part in
the conduct of public affairs by exerting influence through public debate” (§ 8). Available
at http://www.refworld.org/cgi-bin/texis/vtx/rwmain?page=search&docid=453883fc22
&skip=0&query=general comment 25. The CSCE Copenhagen Document provides that
legislation is “adopted at the end of a public procedure” and the 1991 Moscow Document
(http://www.osce.org/odihr/elections/14310) states that “[L]egislation will be formulated
and adopted as the result of an open process” (§ 18.1).
33. ECtHR Hatton v. the United Kingdom, 36022/97, 8 July 2003, § 128: “A governmental decision-
making process concerning complex issues of environmental and economic policy such
as in the present case must necessarily involve appropriate investigations and studies
in order to allow them to strike a fair balance between the various conflicting interests
at stake.” See also Evans v. the United Kingdom, 6339/05, 10 April 2007, § 64. About the
absence of real parliamentary debate since the adoption of a statute, which took place
in 1870, see Hirst (No. 2) v. the United Kingdom, 74025/01, 6 October 2005, § 79. In Finland,
the instructions for law-drafting include such a requirement.

6. Exceptions in emergency situations
Are exceptions in emergency situations provided for by law?

i. Are there specific national provisions applicable to emergency
situations (war or other public emergency threatening the life
of the nation)? Are derogations to human rights possible in such
situations under national law? What are the circumstances and
criteria required in order to trigger an exception?
ii. Does national law prohibit derogation from certain rights even
in emergency situations? Are derogations proportionate, that
is limited to the extent strictly required by the exigencies of the
situation, in duration, circumstance and scope? 34
iii. Are the possibilities for the executive to derogate from the nor-
mal division of powers in emergency circumstances also limited
in duration, circumstance and scope?
iv. What is the procedure for determining an emergency situation?
Are there parliamentary control and judicial review of the exist-
ence and duration of an emergency situation, and the scope of
any derogation thereunder?
51. The security of the State and of its democratic institutions, and the safety
of its officials and population, are vital public and private interests that deserve
protection and may lead to a temporary derogation from certain human rights
and to an extraordinary division of powers. However, emergency powers have
been abused by authoritarian governments to stay in power, to silence the
opposition and to restrict human rights in general. Strict limits on the duration,
circumstance and scope of such powers is therefore essential. State security
and public safety can only be effectively secured in a democracy which fully
respects the Rule of Law.35 This requires parliamentary control and judicial
review of the existence and duration of a declared emergency situation in
order to avoid abuse.
34. Cf. Article 15 ECHR (“derogation in time of emergency”); Article 4 ICCPR; Article 27 ACHR. For
an individual application of Article 15 ECHR, see ECtHR A. and Others v. the United Kingdom,
3455/05, 19 February 2009, § 178, 182: a derogation to Article 5 § 1 ECHR was considered as
disproportionate. On emergency powers, see also CDL-STD(1995)012, Emergency Powers;
CDL-AD(2006)015, Opinion on the Protection of Human Rights in Emergency Situations.
35. CDL-AD(2006)015, § 33.

52. The relevant provisions of the International Covenant on Civil and

Political Rights, of the European Convention on Human Rights and the
American Convention on Human Rights are similar. 36 They provide for the
possibility of derogations (as distinguished from mere limitations of the
rights guaranteed) only in highly exceptional circumstances. Derogations
are not possible from “the so-called absolute rights: the right to life, the
prohibition of torture and inhuman or degrading treatment or punishment,
and of slavery, and the nullum crimen, nulla poena principle” among others.37
Item II.A.6.i summarises the requirements of these treaties.
7. Duty to implement the law
What measures are taken to ensure that public authorities effectively

implement the law?
i. Are obstacles to the implementation of the law analysed before
and after its adoption?
ii. Are there effective remedies against non-implementation of
legislation?
iii. Does the law provide for clear and specific sanctions for non-
obedience of the law?38
iv. Is there a solid and coherent system of law enforcement by
public authorities to enforce these sanctions?
v. Are these sanctions consistently applied?
53. Although full enforcement of the law is rarely possible, a fundamental

requirement of the Rule of Law is that the law must be respected. This means in
particular that State bodies must effectively implement laws. The very essence
of the Rule of Law would be called in question if law appeared only in the
books but were not duly applied and enforced.39 The duty to implement the
36. Article 15 ECHR: Article 4 ICCPR; Article 27 ACHR.

37. CDL-AD(2006)015, § 9. On derogations under Article 15 ECHR, see more generally
CDL-AD(2006)015, § 9ff, and the quoted case-law.
38. On the need for effective and dissuasive sanctions, see e.g. CDL-AD(2014)019, § 89;
CDL-AD(2013)021, § 70.
39. The need for ensuring proper implementation of the legislation is often underlined by the
Venice Commission: see e.g. CDL-AD(2014)003, § 11: “the key challenge for the conduct of
genuinely democratic elections remains the exercise of political will by all stakeholders,
to uphold the letter and the spirit of the law, and to implement it fully and effectively”;
CDL-AD(2014)001, § 85.

law is threefold, since it implies obedience to the law by individuals, the duty
reasonably to enforce the law by the State and the duty of public officials to
act within the limits of their conferred powers.
54. Obstacles to the effective implementation of the law can occur not only
due to the illegal or negligent action of authorities, but also because the qual-
ity of legislation makes it difficult to implement. Therefore, assessing whether
the law is implementable in practice before adopting it, as well as checking a
posteriori whether it may be and is effectively applied is very important. This
means that ex ante and ex post legislative evaluation has to be performed
when addressing the issue of the Rule of Law.
55. Proper implementation of legislation may also be obstructed by the
absence of sufficient sanctions (lex imperfecta), as well as by an insufficient or
selective enforcement of the relevant sanctions.
8. Private actors in charge of public tasks
Does the law guarantee that non-State entities which, fully or in

part, have taken on traditionally public tasks, and whose actions
and decisions have a similar impact on ordinary people as those of
public authorities, are subject to the requirements of the Rule of
Law and accountable in a manner comparable to those of public
authorities?40
56. There are a number of areas where hybrid (State-private) actors or private
entities exercise powers that traditionally have been the domain of State
authorities, including in the fields of prison management and health care.
The Rule of Law must apply to such situations as well.
40. Cf. Article 124 of the Constitution of Finland: “A public administrative task may be delegated
to others than public authorities only by an Act or by virtue of an Act, if this is necessary
for the appropriate performance of the task and if basic rights and liberties, legal remedies
and other requirements of good governance are not endangered.”

B. Legal certainty
1. Accessibility of legislation
Are laws accessible?

i. Are all legislative acts published before entering into force?
ii. Are they easily accessible, e.g. free of charge via the Internet and/
or in an official bulletin?
2. Accessibility of court decisions
Are counts decisions accessible?

i. Are court decisions easily accessible to the public?41
ii. Are exemptions sufficiently justified?
57. As court decisions can establish, elaborate upon and clarify law, their
accessibility is part of legal certainty. Limitations can be justified in order
to protect individual rights, for instance those of juveniles in criminal cases.
3. Foreseeability of the laws
Are the effects of laws foreseeable?42

i. Are the laws written in an intelligible manner?
ii. Does new legislation clearly State whether (and which) previous
legislation is repealed or amended? Are amendments incorpo-
rated in a consolidated, publicly accessible, version of the law?
58. Foreseeability means not only that the law must, where possible, be pro-
claimed in advance of implementation and be foreseeable as to its effects: it
41. ECtHR Fazlyiski v. Bulgaria, 40908/05, 16 April 2013, § 64-70, in particular § 65; Ryakib Biryukov
v. Russia, 14810/02, 17 January 2008, in particular § 30ff; cf. Kononov v. Latvia, 36376/04, 17
May 2010, § 185.
42. ECtHR The Sunday Times v. the United Kingdom (No. 1), 6538/74, 26 April 1979, § 46ff; Rekvényi
v. Hungary, 25390/94, 20 May 1999, § 34ff.

must also be formulated with sufficient precision and clarity to enable legal
subjects to regulate their conduct in conformity with it.43
59. The necessary degree of foreseeability depends however on the nature of

the law. In particular, it is essential in criminal legislation. Precaution in advance
of dealing with concrete dangers has now become increasingly important;
this evolution is legitimate due to the multiplication of the risks resulting in
particular from the changing technology. However, in the areas where the
precautionary approach of laws apply, such as risk law, the prerequisites for
State action are outlined in terms that are considerably broader and more
imprecise, but the Rule of Law implies that the principle of foreseeability is
not set aside.
4. Stability and consistency of law
Are laws stable and consistent?

i. Are laws stable, to the extent that they are changed only with
fair warning?44
ii. Are they consistently applied?
60. Instability and inconsistency of legislation or executive action may affect

a person’s ability to plan his or her actions. However, stability is not an end in
itself: law must also be capable of adaptation to changing circumstances. Law
can be changed, but with public debate and notice, and without adversely
affecting legitimate expectations (see next item).
5. Legitimate expectations
Is respect for the principle of legitimate expectations ensured?
61. The principle of legitimate expectations is part of the general principle

of legal certainty in European Union law, derived from national laws. It also
expresses the idea that public authorities should not only abide by the law but
43. ECtHR The Sunday Times v. the United Kingdom (No. 1), 6538/74, 26 April 1979, § 49.
44. The Venice Commission has addressed the issue of stability of legislation in the electoral
field: Code of Good Practice in Electoral Matters, CDL-AD(2002)023rev, II.2; Interpretative
Declaration on the Stability of the Electoral Law, CDL-AD(2005)043.

also by their promises and raised expectations. According to the legitimate

expectation doctrine, those who act in good faith on the basis of law as it is,
should not be frustrated in their legitimate expectations. However, new situa-
tions may justify legislative changes going frustrating legitimate expectations
in exceptional cases. This doctrine applies not only to legislation but also to
individual decisions by public authorities.45
6. Non-retroactivity
Is retroactivity of legislation prohibited?

i. Is retroactivity of criminal legislation prohibited?
ii. To what extent is there also a general prohibition on the retro-
activity of other laws?46
iii. Are there exceptions, and, if so, under which conditions?
7. Nullum crimen sine lege and nulla poena sine lege

principles
Do the nullum crimen sine lege and nulla poena sine lege (no crime, no
penalty without a law) principles apply?
62. People must be informed in advance of the consequences of their

behaviour. This implies foreseeability (above II.B.3) and non-retroactivity
45. For example, individuals who have been encouraged to adopt a behaviour by Community
measures may legitimately expect not to be subject, upon the expiry of this undertaking,
to restrictions which specifically affect them precisely because they availed themselves
of the possibilities offered by the Community provisions: ECJ, 120/86, Mulder v. Minister
van Landbouw en Visserij, 28 April 1988, § 21ff. In the case-law of the European Court of
Human Rights, the doctrine of legitimate expectations essentially applies to the pro-
tection of property as guaranteed by Article 1 of the First Additional Protocol to the
European Convention on Human Rights: see e.g. ECtHR Anhaeuser-Busch Inc. v. Portugal
[GC], 73049/01, 11 January 2007, § 65; Gratzinger and Gratzingerova v. the Czech Republic
[GC] (dec.), 39794/98, 10 July 2002, § 68ff; National & Provincial Building Society, Leeds
Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 21319/93,
21449/93, 21675/93, 21319/93, 21449/93 and 21675/93, 23 October 1997, § 62ff.
46. See Article 7.1 ECHR, Article 15 ICCPR, Article 9 ACHR, Article 7.2 of the African (Banjul)
Charter on Human and Peoples’ Rights [ACHPR] for criminal law; Article 28 of the Vienna
Convention on the Law of Treaties for international treaties.

especially of criminal legislation. In civil and administrative law, retroactiv-

ity may negatively affect rights and legal interests.47 However, outside the
criminal field, a retroactive limitation of the rights of individuals or imposi-
tion of new duties may be permissible, but only if in the public interest and
in conformity with the principle of proportionality (including temporally).
The legislator should not interfere with the application of existing legisla-
tion by courts.
8. Res judicata48
Is respect of res judicata ensured?

i. Is respect for the ne bis in idem principle (prohibition against
double jeopardy) ensured?
ii. May final judicial decisions be revised?
iii. If so, under which conditions?
63. Res judicata implies that when an appeal has been finally adjudicated,
further appeals are not possible. Final judgments must be respected, unless
there are cogent reasons for revising them.49
47. The principle of non-retroactivity does not apply when the new legislation places individu-
als in a more favourable position. The European Court of Human considers that Article
7 ECHR includes the principle of retrospectiveness of the more lenient criminal law: see
Scoppola v. Italy (No. 2), 10249/03, 17 September 2009.
48. Article 4 Protocol 7 ECHR, Article 14.7 ICCPR, Article 8.4 ACHR (in the penal field); on the
respect of the principle of res judicata, see e.g. ECtHR Brumărescu v. Romania, 28342/95,
28 October 1999, § 62; Kulkov and Others v. Russia, 25114/03, 11512/03, 9794/05, 37403/05,
13110/06, 19469/06, 42608/06, 44928/06, 44972/06 and 45022/06, 8 January 2009, § 27;
Duca v. Moldova, 75/07, 3 March 2009, § 32. The Court considers respect of res judicata as
an aspect of legal certainty. Cf. Marckx v. Belgium, 6833/74, 13 June 1979, § 58.
49. Cf. The Council of Europe and the Rule of Law - An overview, CM(2008)170, 21 November
2008, § 48.

C. Prevention of abuse (misuse) of powers50
Are there legal safeguards against arbitrariness and abuse of power

(détournement de pouvoir) by public authorities?
i. If yes, what is the legal source of this guarantee (Constitution,
statutory law, case-law)?
ii. Are there clear legal restrictions to discretionary power, in partic-
ular when exercised by the executive in administrative action?51
iii. Are there mechanisms to prevent, correct and sanction abuse
of discretionary powers (détournement de pouvoir)? When dis-
cretionary power is given to officials, is there judicial review of
the exercise of such power?
iv. Are public authorities required to provide adequate reasons
for their decisions, in particular when they affect the rights of
individuals? Is the failure to State reasons a valid ground for
challenging such decisions in courts?
64. An exercise of power that leads to substantively unfair, unreasonable,

irrational or oppressive decisions violates the Rule of Law.
65. It is contrary to the Rule of Law for executive discretion to be unfettered
power. Consequently, the law must indicate the scope of any such discretion,
to protect against arbitrariness.
50. Protection against arbitrariness was mentioned by the European Court of Human Rights
in a number of cases. In addition to those quoted in the next note, see e.g. Husayn (Abu
Zubaydah) v. Poland, 7511/13, 24 July 2014, § 521ff; Hassan v. the United Kingdom, 29750/09,
16 September 2014, § 106; Georgia v. Russia (I), 13255/07, 3 July 2014, § 182ff (Article 5 ECHR);
Ivinović v. Croatia, 13006/13, 18 September 2014, § 40 (Article 8 ECHR). For the Court of
Justice of the European Union, see e.g. ECJ, 46/87 and 227/88, Hoechst v. Commission,
21 September 1989, § 19; T402/13, Orange v. European Commission, 25 November 2014,
§ 89. On the limits of discretionary powers, see Appendix to Recommendation of the
Committee of Ministers on good administration, CM/Rec(2007)7, Article 2.4 (“Principle of
lawfulness”): “[Public authorities] shall exercise their powers only if the established facts
and the applicable law entitle them to do so and solely for the purpose for which they
have been conferred”.
51. CM(2008)170, The Council of Europe and the Rule of Law, § 46; ECtHR Malone, 8691/79, 2
August 1984, § 68; Segerstedt-Wiberg and Others v. Sweden, 62332/00, 6 June 2006, § 76
(Article 8). The complexity of modern society means that discretionary power must be
granted to public officials. The principle by which public authorities must strive to be
objective (“sachlich”) in a number of States such as Sweden and Finland goes further than
simply forbidding discriminatory treatment and is seen as an important factor buttressing
confidence in public administration and social capital.

66. Abuse of discretionary power should be controlled by judicial or other

independent review. Available remedies should be clear and easily accessible.
67. Access to an ombudsperson or another form of non-contentious jurisdic-
tion may also be appropriate.
68. The obligation to give reasons should also apply to administrative
decisions.52
D. Equality before the law and non-discrimination
1. Principle
Does the Constitution enshrine the principle of equal treatment, the

commitment of the State to promote equality as well as the right of
individuals to be free from discrimination?
2. Non-discrimination53
Is respect for the principle of non-discrimination ensured?

i. Does the constitution prohibit discrimination?
ii. Is non-discrimination effectively guaranteed by law?
iii. Do the Constitution and/or legislation clearly define and prohibit
both direct and indirect discrimination?
69. The principle of non-discrimination requires the prohibition of any unjus-

tified unequal treatment under the law and/or by law, and that all persons
have guaranteed equal and effective protection against discrimination on
grounds such as race, colour, sex, language, religion, political or other opinion,
national or social origin, association with a national minority, property, birth
or other status.
52. See e.g. Article 41.1.c of the Charter of Fundamental Rights of the European Union. Cf. also
item II.E.2.c.vi and note 126.
53. See for exemple, Article 14 ECHR; Protocol 12 ECHR; Articles 12, 26 ICCPR, Article 24 ACHR;
Article ACHPR.

3. Equality in law
Is equality in law guaranteed?

i. Does the constitution require legislation (including regulations)
to respect the principle of equality in law?54 Does it provide that
differentiations have to be objectively justified?
ii. Can legislation violating the principle of equality be challenged
in the court?
iii. Are there individuals or groups with special legal privileges? Are
these exceptions and/or privileges based on a legitimate aim
and in conformity with the principle of proportionality?
iv. Are positive measures expressly provided for the benefit of par-
ticular groups, including national minorities, in order to address
structural inequalities?
70. Legislation must respect the principle of equality: it must treat similar
situations equally and different situations differently and guarantee equality
with respect to any ground of potential discrimination.
71. For example, rules on parliamentary immunities, and more specifically
on inviolability, “should … be regulated in a restrictive manner, and it should
always be possible to lift such immunity, following clear and impartial proce-
dures. Inviolability, if applied, should be lifted unless justified with reference
to the case at hand and proportional and necessary in order to protect the
democratic workings of Parliament and the rights of the political opposition”.55
72. “The law should provide that the prohibition of discrimination does not pre-
vent the maintenance or adoption of temporary special measures designed either
to prevent or compensate for disadvantages suffered by persons on grounds [of
belonging to a particular group], or to facilitate their full participation in all fields
of life. These measures should not be continued once the intended objectives
have been achieved.”56
54. Cf. e.g. CDL-AD(2014)010, § 41-42; CDL-AD(2013)032, Opinion on the Final Draft Constitution
of the Republic of Tunisia, § 44ff: equality should not be limited to citizens and include a
general non-discrimination clause.
55. CDL-AD(2014)011, Report on the Scope and Lifting of Parliamentary Immunities (§ 200);
ECtHR Cordova v. Italy, No. 1 and No. 2, 40877/98 and 45649/99, 30 January 2003, § 58-67.
56. ECRI (European Commission against Racism and Intolerance) Recommendation No. 7, § 5.

4. Equality before the law
Is equality before the law guaranteed?

i. Does the national legal order clearly provide that the law applies
equally to every person irrespective of race, colour, sex, lan-
guage, religion, political or other opinion, national or social
origin, association with a national minority, property, birth or
status?57 Does it provide that differentiations have to be objec-
tively justified, on the basis of a reasonable aim, and in conform-
ity with the principle of proportionality?58
ii. Is there an effective remedy against discriminatory or unequal
application of legislation?59
73. The Rule of Law requires the universal subjection of all to the law. It
implies that law should be equally applied, and consistently implemented.
Equality is however not merely a formal criterion, but should result in sub-
stantively equal treatment. To reach that end, differentiations may have to
be tolerated and may even be required. For example, affirmative action may
be a way to ensure substantive equality in limited circumstances so as to
redress past disadvantage or exclusion.60
57. For example, Article 1.2 Protocol 12 ECHR makes clear that “any public authority” - and
not only the legislator - has to respect the principle of equality. Article 26 ICCPR States
that “All persons are equal before the law and are entitled without discrimination to the
equal protection of the law”. “The principle of equal treatment is a general principle of
European Union law, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights
of the European Union”: CJEU, C-550/07 P, Akzo Nobel Chemicals and Akcros Chemicals v
Commission, 14 September 2010, § 54.
58. A distinction is admissible if the situations are not comparable and/or if it is based on an
objective and reasonable justification: See ECtHR Hämäläinen v. Finland, 37359/09, 26 July
2014, § 108: “The Court has established in its case-law that in order for an issue to arise
under Article 14 there must be a difference in treatment of persons in relevantly similar
situations. Such a difference of treatment is discriminatory if it has no objective and rea-
sonable justification; in other words, if it does not pursue a legitimate aim or if there is not
a reasonable relationship of proportionality between the means employed and the aim
sought to be realised. The Contracting States enjoy a margin of appreciation in assessing
whether and to what extent differences in otherwise similar situations justify a difference
in treatment (see Burden v. the United Kingdom GC, no. 13378/05, § 60, ECHR 2008)”.
59. Cf. Article 13 ECHR; Article 2.3 ICCPR ; Article 25 ACHR ; Article 7.1.a ACHPR.
60. Cf. Article 1.4 and 2.2 of the International Convention on the Elimination of All Forms of
Racial Discrimination (CEDR); Article 4 of the Convention on the Elimination of All Forms
of Discrimination against Women (CEDAW); Article 5.4 of the Convention on the Rights
of Persons with Disabilities (CRPD).

1. Independence and impartiality
a. Independence of the judiciary
Are there sufficient constitutional and legal guarantees of judicial

independence?
i. Are the basic principles of judicial independence, including
objective procedures and criteria for judicial appointments, ten-
ure and discipline and removals, enshrined in the Constitution
or ordinary legislation?62
ii. Are judges appointed for life time or until retirement age? Are
grounds for removal limited to serious breaches of disciplinary
or criminal provisions established by law, or where the judge can
no longer perform judicial functions? Is the applicable proce-
dure clearly prescribed in law? Are there legal remedies for the
individual judge against a dismissal decision?63
iii. Are the grounds for disciplinary measures clearly defined and are
sanctions limited to intentional offences and gross negligence?64
iv. Is an independent body in charge of such procedures?65
v. Is this body not only comprised of judges?
61. On the issue of access to justice and the Rule of Law, see SG/Inf(2016)3, Challenges for
judicial independence and impartiality in the member States of the Council of Europe,
Report prepared jointly by the Bureau of the CCJE and the Bureau of the CCPE for the
attention of the Secretary General of the Council of Europe as a follow-up to his 2015
report entitled “State of Democracy, Human Rights and the Rule of Law in Europe – a shared
responsibility for democratic security in Europe.
62. CDL-AD(2010)004, § 22: “The basic principles ensuring the independence of the judiciary
should be set out in the Constitution or equivalent texts”.
63. Cf. CM/Rec(2010)12 of the Committee of Ministers to member States on judges: independ-
ence, efficiency and responsibilities, § 49ff; CDL-AD(2010)004, § 33ff; for constitutional jus-
tice, see “The Composition of Constitutional Courts”, Science and Technique of Democracy
No. 20, CDL-STD(1997)020, p. 18-19.
64. “Judges… should enjoy functional – but only functional – immunity (immunity from
prosecution for acts performed in the exercise of their functions, with the exception of
intentional crimes, e.g. taking bribes)”: CDL-AD(2010)004, § 61.
65. OSCE Kyiv Recommendations on Judicial Independence, § 9.

vi. Are the appointment and promotion of judges based on rel-

evant factors, such as ability, integrity and experience?66 Are
these criteria laid down in law?
vii. Under which conditions is it possible to transfer judges to
another court? Is the consent of the judge to the transfer
required? Can the judge appeal the decision of transfer?
viii. Is there an independent judicial council? Is it grounded in the
Constitution or a law on the judiciary?67 If yes, does it ensure
adequate representation of judges as well as lawyers and the
public?68
ix. May judges appeal to the judicial council for violation of their
independence?
x. Is the financial autonomy of the judiciary guaranteed? In par-
ticular, are sufficient resources allocated to the courts, and is
there a specific article in the budget relating to the judiciary,
excluding the possibility of reductions by the executive, except
if this is done through a general remuneration measure?69 Does
the judiciary or the judicial council have input into the budget-
ary process?
xi. Are the tasks of the prosecutors mostly limited to the criminal
justice field?70
xii. Is the judiciary perceived as independent? What is the public’s
perception about possible political influences or manipulations
in the appointment and promotion of the judges/prosecutors, as
well as on their decisions in individual cases? If it exists, does the
judicial council effectively defend judges against undue attacks?
66. Cf. CM/Rec(2010)12, § 44.

67. The Venice Commission considers it appropriate to establish a Judicial Council having deci-
sive influence on decisions on the appointment and career of judges: CDL-AD(2010)004,
§ 32.
68. “A substantial element or a majority of the members of the Judicial Council should be
elected by the Judiciary itself”: CDL-AD(2007)028, § 29.
69. CDL-AD(2010)038, Amicus Curiae Brief for the Constitutional Court of the “the former
Yugoslav Republic of Macedonia” on amending several laws relating to the system of
salaries and remunerations of elected and appointed officials.
70. Recommendation CM/Rec(2012)11 of the Committee of Ministers to member States on
the role of public prosecutors outside the criminal justice system; CDL-AD(2010)040, §
81-83; CDL-AD(2013)025, Joint Opinion on the draft law on the public prosecutor’s office
of Ukraine, § 16-28.

xiii. Do the judges systematically follow prosecutors’ requests

(“prosecutorial bias”)?
xiv. Are there fair and sufficient salaries for judges?
74. The judiciary should be independent. Independence means that the judici-
ary is free from external pressure, and is not subject to political influence or
manipulation, in particular by the executive branch. This requirement is an
integral part of the fundamental democratic principle of the separation of
powers. Judges should not be subject to political influence or manipulation.
75. The European Court of Human Rights highlights four elements of judi-
cial independence: manner of appointment, term of office, the existence of
guarantees against outside pressure - including in budgetary matters - and
whether the judiciary appears as independent and impartial.71
76. Limited or renewable terms in office may make judges dependent on the
authority which appointed them or has the power to re-appoint them.
77. Legislation on dismissal may encourage disguised sanctions.
78. Offences leading to disciplinary sanctions and their legal consequences
should be set out clearly in law. The disciplinary system should fulfil the
requirements of procedural fairness by way of a fair hearing and the possibility
of appeal(s) (see section II.E.2 below).
79. It is important that the appointment and promotion of judges is not based
upon political or personal considerations, and the system should be constantly
monitored to ensure that this is so.
80. Though the non-consensual transfer of judges to another court may in
some cases be lawfully applied as a sanction, it could also be used as a kind of
a politically-motivated tool under the disguise of a sanction.72 Such transfer is
however justified in principle in cases of legitimate institutional reorganisation.
81. “[I]t is an appropriate method for guaranteeing the independence of the
judiciary that an independent judicial council have decisive influence on deci-
sions on the appointment and career of judges”. Judicial councils “should have
a pluralistic composition with a substantial part, if not the majority, of mem-
bers being judges.”73 That is the most effective way to ensure that decisions
71. See in particular ECtHR Campbell and Fell v. the United Kingdom, 28 June 2014, 7819/77 and
7878/77, § 78.
72. Cf. CDL-AD(2010)004, § 43.
73. CDL-AD(2010)004, § 32.

concerning the selection and career of judges are independent from the
government and administration.74 There may however be other acceptable
ways to appoint an independent judiciary.
82. Conferring a role on the executive is only permissible in States where
these powers are restrained by legal culture and traditions, which have grown
over a long time, whereas the involvement of Parliament carries a risk of
politicisation.75 Involving only judges carries the risk of raising a perception
of self-protection, self-interest and cronyism. As concerns the composition of
the judicial council, both politicisation and corporatism must be avoided.76
An appropriate balance should be found between judges and lay members.77
The involvement of other branches of government must not pose threats of
undue pressure on the members of the Council and the whole judiciary.78
83. Sufficient resources are essential to ensuring judicial independence from
State institutions, and private parties, so that the judiciary can perform its
duties with integrity and efficiency, thereby fostering public confidence in
justice and the Rule of Law 79 Executive power to reduce the judiciary’s budget
is one example of how the resources of the judiciary may be placed under
undue pressure.
84. The public prosecutor’s office should not be permitted to interfere in
judicial cases outside its standard role in the criminal justice system – e.g.
under the model of the “Prokuratura”. Such power would call into question
the work of the judiciary and threaten its independence.80
74. Cf. Recommendation (94)12 of the Committee of Ministers on the Independence, Efficiency
and Role of Judges (Principle I.2.a), which reflects a preference for a judicial council but
accepts other systems.
75. CDL-AD(2007)028, Report on Judicial Appointments, § 44ff. The trend in Commonwealth
countries is away from executive appointments and toward appointment commis-
sions, sometimes known as judicial services commissions. See J. van Zyl Smit (2015),
The Appointment, Tenure and Removal of Judges under Commonwealth Principles: A
Compendium and Analysis of Best Practice (Report of Research Undertaken by Bingham
Centre for the Rule of Law), available at http://www.biicl.org/documents/689_bing-
ham_centre_compendium.pdf.
76. CDL-AD(2002)021, Supplementary Opinion on the Revision of the Constitution of Romania,
§ 21, 22.
77. See CDL-PI(2015)001, Compilation of Venice Commission Opinions and Reports concerning
Courts and Judges, ch. 4.2, and the references.
78. CDL-INF(1999)005, Opinion on the reform of the judiciary in Bulgaria, § 28; see also, e.g.,
CDL-AD(2007)draft, Report on Judicial Appointments by the Venice Commission, § 33;
CDL-AD(2010)026, Joint opinion on the draft law on the judicial system and the status of
judges of Ukraine, § 97, concerning the presence of ministers in the judicial council.
79. CM/Rec(2010)12, § 33ff; CDL-AD(2010)004, § 52ff.
80. CDL-AD(2010)040, § 71ff.

85. Benchmarks xii-xiv deal, first of all, with the perception of the independ-
ence of the judiciary. The prosecutorial bias is an example of absence of
independence, which may be encouraged by the possibility of sanctions in
case of “wrong” judgments. Finally, fair and sufficient salaries are a concrete
aspect of financial autonomy of the judiciary. They are a means to prevent
corruption, which may endanger the independence of the judiciary not only
from other branches of government, but also from individuals.81
b. Independence of individual judges
Are there sufficient constitutional and legal guarantees for the inde-
pendence of individual judges?
i. Are judicial activities subject to the supervision of higher courts
– outside the appeal framework -, court presidents, the execu-
tive or other public bodies?
ii. Does the Constitution guarantee the right to a competent judge
(“natural judge pre-established by law”)82?
iii. Does the law clearly determine which court is competent? Does
it set rules to solve any conflicts of competence?
iv. Does the allocation of cases follow objective and transparent
criteria? Is the withdrawal of a judge from a case excluded other
than in case a recusal by one of the parties or by the judge him/
herself has been declared founded??83
86. The independence of individual judges must be ensured, as also must the
independence of the judiciary from the legislative and, especially, executive
branches of government.
87. The possibility of appealing judgments to a higher court is a common
element in judicial systems and must be the only way of review of judges
when applying the law. Judges should not be subject to supervision by their
colleague-judges, and a fortiori to any executive hierarchical power, exercised
81. Cf. CDL-AD(2012)014, Opinion on Legal Certainty and the Independence of the Judiciary
in Bosnia and Herzegovina, § 81.
82. CDL-AD(2010)004, § 78; see e.g. European Commission on Human Rights, Zand v. Austria,
7360/76, 16 May 1977, D.R. 8, p. 167; ECtHR Fruni v. Slovakia, 8014/07, 21 June 2011, § 134ff.
83. On the allocation of cases, see CM/Rec(2010)12, § 24; CDL-AD(2010)004, § 73ff. The OSCE
Kyiv Recommendations cite as a good practice either random allocation of cases or alloca-
tion based on predetermined, clear and objective criteria (§ 12).

for example by civil servants. Such supervision would contravene their indi-
vidual independence, and consequently violate the Rule of Law84.
88. “The guarantee can be understood as having two aspects. One relates
to the court as a whole. The other relates to the individual judge or judicial
panel dealing with the case. … It is not enough if only the court (or the
judicial branch) competent for a certain case is determined in advance. That
the order in which the individual judge (or panel of judges) within a court is
determined in advance, meaning that it is based on general objective prin-
ciples, is essential”.85
c. Impartiality of the judiciary86
Are there specific constitutional and legal rules providing for the
impartiality of the judiciary?87
i. What is the public’s perception of the impartiality of the judiciary
and of individual judges?
ii. Is there corruption in the judiciary? Are specific measures in
place against corruption in the judiciary (e.g. a declaration of
assets)? What is the public’s perception on this issue?88
89. Impartiality of the judiciary must be ensured in practice as well as in the

law. The classical formula, as expressed for example by the case-law of the
European Court of Human Rights, is that “justice must not only be done, it
must also be seen to be done”.89 This implies objective as well as subjective
impartiality. The public’s perception can assist in assessing whether the judici-
ary is impartial in practice.
84. CM/Rec(2010)12, § 22ff; CDL-AD(2010)004, § 68ff; CM/Rec(2000)19 of the Committee

of Ministers to member States on the role of public prosecution in the criminal justice
system, § 19; CDL-AD(2010)004, Report on the Independence of the Judicial System Part
I: The Independence of Judges), § 72.
85. CDL-AD(2010)004, § 79.
86. Article 6.1 ECHR; Article 14.1 ICCPR; Article 8.1 ACHR; Article 7.1.d ACHPR. See also the
various aspects of impartiality in the Bangalore principles of judicial conduct, Value 2,
including absence of favour, bias or prejudice.
87. See e.g. ECtHR Micallef v. Malta [GC], 17056/06, 15 October 2009, § 99-100.
88. On corruption, see in general II.F.1.
89. See e.g. ECtHR De Cubber v. Belgium, 9186/80, 26 October 1984, § 26: Micallef v. Malta, 17056/06,
15 October 2009, § 98; Oleksandr Volkov v. Ukraine, 21722/11, 9 January 2013, § 106.

90. Declaration of assets is a means of fighting corruption because it can

highlight any conflict of interest and possibly lead to scrutiny of any unusual
income.90
d. The prosecution service: autonomy and control
Is sufficient autonomy of the prosecution service ensured?

i. Does the office of the public prosecution have sufficient auton-
omy within the State structure? Does it act on the basis of the
law rather than of political expediency?91
ii. Is it permitted that the executive gives specific instructions to
the prosecution office on particular cases? If yes, are they rea-
soned, in writing, and subject to public scrutiny?92
iii. May a senior prosecutor give direct instructions to a lower pros-
ecutor on a particular case? If yes, are they reasoned and in
written form?
iv. Is there a mechanism for a junior prosecutor to contest the
validity of the instruction on the basis of the illegal character
or improper grounds of the instruction?
v. Also, can the prosecutor contesting the validity of the instruction
request to be replaced?93
vi. Is termination of office permissible only when prosecutors reach
the retirement age, or for disciplinary purposes, or, alternatively,
are the prosecutors appointed for a relatively long period of time
without the possibility of renewal?94
vii. Are these matters and the grounds for dismissal of prosecutors
clearly prescribed by law?95
viii. Are there legal remedies for the individual prosecutor against
a dismissal decision?96
90. CDL-AD(2011)017, Opinion on the introduction of changes to the constitutional law “on
the status of judges” of Kyrgyzstan, § 15.
91. See in particular CM/Rec(2000)19, § 11ff; CDL-AD(2010)040, § 23ff.
92. Cf. CDL-AD(2010)040, § 22.
93. Cf. CDL-AD(2010)040, § 53ff.
94. CDL-AD(2010)040, § 34ff, 47ff.
95. CDL-AD(2010)040, Report on European Standards as regards the Independence of the
Judicial System: Part II - the Prosecution Service, § 39.
96. CDL-AD(2010)040, § 52.

ix. Is the appointment, transfer and promotion of prosecutors

based on objective factors, in particular ability, integrity and
experience, and not on political considerations? Are such prin-
ciples laid down in law?
x. Are there fair and sufficient salaries for prosecutors?97
xi. Is there a perception that prosecutorial policies allow selective
enforcement of the law?
xii. Is prosecutorial action subject to judicial control?
91. There is no common standard on the organisation of the prosecution

service, especially about the authority required to appoint public prosecu-
tors, or the internal organisation of the public prosecution service. However,
sufficient autonomy must be ensured to shield prosecutorial authorities from
undue political influence. In conformity with the principle of legality, the public
prosecution service must act only on the basis of, and in accordance with,
the law.98 This does not prevent the law from giving prosecutorial authorities
some discretion when deciding whether to initiate a criminal procedure or
not (opportunity principle).99
92. Autonomy must also be ensured inside the prosecution service. Prosecutors
must not be submitted to strict hierarchical instructions without any discretion,
and should be in a position not to apply instructions contradicting the law.
93. The concerns relating to the judiciary apply, mutatis mutandis, to the
prosecution service, including the importance of assessing legal regulations,
as well as practice.
94. Here again,100 sufficient remuneration is an important element of auton-
omy and a safeguard against corruption.
95. Bias on the part of public prosecution services could lead to improper
prosecution, or to selective prosecution, in particular of those in, or close to,
power. This would jeopardise the implementation of the legal system and is
therefore a danger to the Rule of Law. Public perception is essential in iden-
tifying such a bias.
97. CDL-AD(2010)040, § 69.

98. See II.A.1.
99. CDL-AD(2010)040, § 7, 53ff.
100. See II.E.1.a.xiv for judges.

96. As in other fields, the existence of a legal remedy open to individuals

whose rights have been affected is essential to ensuring that the Rule of Law
is respected.
e. Independence and impartiality of the Bar
Are the independence and impartiality of the Bar ensured?

i. Is there a recognised, organised and independent legal profes-
sion (Bar)?101
ii. Is there a legal basis for the functioning of the Bar, based on the
principles of independence, confidentiality and professional
ethics, and the avoidance of conflicts of interests?
iii. Is access to the Bar regulated in an objective and sufficiently
open manner, also as remuneration and legal aid are concerned?
iv. Are there effective and fair disciplinary procedures at the Bar?
v. What is the public’s perception about the Bar’s independence?
97. The Bar plays a fundamental role in assisting the judicial system. It is there-
fore crucial that it is organised so as to ensure its independence and proper
functioning. This implies that legislation provides for the main features of its
independence and that access to the Bar is sufficiently open to make the right
to legal counsel effective. Effective and fair criminal and disciplinary proceed-
ings are necessary to ensure the independence and impartiality of the lawyers.
98. Professional ethics imply inter alia that “[a] lawyer shall maintain independ-
ence and be afforded the protection such independence offers in giving clients
unbiased advice and representation”102. He or she “shall at all times maintain
the highest standards of honesty, integrity and fairness towards the lawyer’s
clients, the court, colleagues and all those with whom the lawyer comes
into professional contact”,103 “shall not assume a position in which a client’s
interest conflict with those of the lawyer”104 and “shall treat client interest as
paramount”.105
101. See Recommendation No. R(2000)21 of the Committee of Ministers to member States on
the freedom of exercise of the profession of lawyer.
102. International Bar Association – International Principles of Conduct for the Legal Profession, 1.1.
103. Ibid., 2.1.
104. Ibid., 3.1.
105. Ibid., 5.1.

2. Fair trial106
a. Access to courts
Do individuals have an effective access to courts?

i. Locus standi (right to bring an action): Does an individual have
an easily accessible and effective opportunity to challenge a
private or public act that interferes with his/her rights?107
ii. Is the right to defence guaranteed, including through effec-
tive legal assistance?108 If yes, what is the legal source of this
guarantee?
iii. Is legal aid accessible to parties who do not have sufficient
means to pay for legal assistance, when the interests of justice
so require?109
iv. Are formal requirements,110 time-limits111 and court fees
reasonable?112
106. Article 6 ECHR, Article 14 ICCPR, Article 8 ACHR, Article 7 ACHPR. The right to a fair trial
was recognised by the European Court of Justice, as “inspired by Article 6 of the ECHR”:
C-174/98 P and C-189/98 P, Netherlands and Van der Wal v Commission, 11 January 2000, §
17. See now Article 47 of the Charter of Fundamental Rights.
107. “The degree of access afforded by the national legislation must also be sufficient to secure the
individual’s “right to a court”, having regard to the principle of the Rule of Law in a democratic
society. For the right of access to be effective, an individual must have a clear, practical oppor-
tunity to challenge an act that is an interference with his rights”, ECtHR Bellet v. France, 23805/94,
4 December 1995, § 36; cf. ECtHR M.D. and Others v. Malta, 64791/10, 17 July 2012, § 53.
108. Article 6.3.b-c ECHR, Article 14.3 ICCPR; Article 8.2 ACHR; the right to defence is protected
by Article 6.1 ECHR in civil proceedings, see e.g. ECtHR Oferta Plus SRL v. Moldova, 14385/04,
19 December 2006, § 145. It is recognised in general by Article 7.1.c ACHPR.
109. Article 6.3.c ECHR, Article 14.3.d ICCPR for criminal proceedings; the right to legal aid is pro-
vided up to a certain extent by Article 6.1 ECHR for civil proceedings: see e.g. ECtHR A. v. the
United Kingdom, 35373/97, 17 December 2002, § 90ff; for constitutional courts in particular,
see CDL-AD(2010)039rev, Study on individual access to constitutional justice, § 113.
110. For constitutional justice, see CDL-AD(2010)039rev, § 125.
111. For constitutional justice, see CDL-AD(2010)039rev, § 112; for time limits for taking the
decision, see § 149.
112. On excessive court fees, see e.g. ECtHR Kreuz v. Poland (no. 1)¸ 28249/95, 19 June 2001, §
60-67; Weissman and Others v. Romania, 63945/00, 24 May 2006, § 32ff; Scordino v. Italy,
36813/97, 29 March 2006, § 201; Sakhnovskiy v. Russia, 21272/03, 2 November 2010, § 69;
on excessive security for costs, see e.g. ECtHR Aït-Mouhoub v. France, 22924/93, 28 October
1998, § 57-58; Garcia Manibardo v. Spain, 38695/97, 15 February 2000, § 38-45; for consti-
tutional justice, see CDL-AD(2010)039rev, § 117.

v. Is access to justice easy in practice?113 What measures are taken to

make it easy?
vi. Is suitable information on the functioning of the judiciary available
to the public?
99. Individuals are usually not in a position to bring judicial proceedings on

their own. Legal assistance is therefore crucial and should be available to
everyone. Legal aid should also be provided to those who cannot afford it.
100. This question addresses a number of procedural obstacles which may
jeopardise access to justice. Excessive formal requirements may lead to even
serious and well-grounded cases being declared inadmissible. Their complex-
ity may further necessitate recourse to a lawyer even in straightforward cases
with little financial impact. Simplified standardised forms easily accessible to
the public should be available to simplify judicial procedures.
101. Very short time-limits may in practice prevent individuals from exercis-
ing their rights. High fees may discourage a number of individuals, especially
those with a low income, from bringing their case to court.
102. Responses to the preceding questions concerning procedural obstacles,
should enable a preliminary conclusion to be made regarding how access to
the court is guaranteed. However, a complete reply should take into account
the public’s perception on these matters.
103. The judiciary should not be perceived as remote from the public and
shrouded in mystery. The availability, in particular on the internet, of clear
information regarding how to bring a case to court is one way of guaranteeing
effective public engagement with the judicial system. Information should be
easily accessible to the whole population, including vulnerable groups and
also made available in the languages of national minorities and/or migrants.
Lower courts should be well-distributed around the country and their court
houses easily accessible.
113. On the need for an effective right of access to court, see e.g. Golder v. the United Kingdom,
4451/70, 21 January 1975, § 26ff; Yagtzilar and Others v. Greece, 41727/98, 6 December
2001, § 20ff.

b. Presumption of innocence114
Is the presumption of innocence guaranteed?

i. Is the presumption of innocence guaranteed by law?
ii. Are there clear and fair rules on the burden of proof?
iii. Are there legal safeguards which aim at preventing other
branches of government from making statements on the guilt
of the accused?115
iv. Is the right to remain silent and not to incriminate oneself nor
members of one’s family ensured by law and in practice?116
v. Are there guarantees against excessive pre-trial detention?117
104. The presumption of innocence is essential in ensuring the right to a fair

trial. In order for the presumption of innocence to be guaranteed, the bur-
den of proof must be on the prosecution.118 Rules and practice concerning
the required proof have to be clear and fair. The unintentional or purposeful
exercise of influence by other branches of government on the competent
judicial authority by prejudging the assessment of the facts must be avoided.
The same holds good for certain private sources of opinion like the media.
Excessive pre-trial detention may be considered as prejudging the accused’s
guilt.119
114. Article 6.2 ECHR; Article 15 ICCPR; Article 8.2 ACHR; Article 7.1.b ACHPR.
115. ECtHR Allenet de Ribemont v. France, 15175/89, 10 February 1995, § 32ff. On the involve-
ment of authorities not belonging to the judiciary in issues linked to a criminal file, see
CDL-AD(2014)013, Amicus Curiae Brief in the Case of Rywin v. Poland (Application Nos
6091/06, 4047/07, 4070/07) pending before the European Court of Human Rights (on
Parliamentary Committees of Inquiry). The European Court of Human Rights decided on
the Rywin case on 18 February 2016: see in particular § 200ff. On the issue of the systematic
follow-up to prosecutors’ requests (prosecutorial bias), see item II.E.1.a.xiii.
116. ECtHR Saunders v. the United Kingdom, 19187/91, 17 December 1996, § 68-69; O’Halloran
and Francis v. the United Kingdom, 5809/02 and 25624/02, 29 June 2007, § 46ff, and the
quoted case-law. On the incrimination of members of one’s family, see e.g. International
Criminal Court, Rules of Procedure and Evidence, Rule 75.1.
117. Cf. Article 5.3 ECHR.
118. “The burden of proof is on the prosecution”: ECtHR Barberá, Messegué and Jabardo v. Spain,
10590/83, 6 December 1988, § 77; Telfner v. Austria, 33501/96, 20 March 2001, § 15; cf. Grande
Stevens and Others v. Italy, 18640/10, 18647/10, 18663/10, 18668/10 and 18698/10, 4 March
2014, § 159.
119. Human Rights Committee, General Comment No. 32, Article 14: Right to equality before
courts and tribunals and to a fair trial, U.N. Doc. CCPR/C/GC/32 (2007), IV.

c. Other aspects of the right to a fair trial
Are additional fair trial standards enshrined in law and applied in

practice?
i. Is equality of arms guaranteed by law? Is it ensured in practice?120
ii. Are there rules excluding unlawfully obtained evidence?121
iii. Are proceedings started and judicial decisions made without
undue delay?122 Is there a remedy against undue lengths of
proceedings?123
iv. Is the right to timely access to court documents and files ensured
for litigants?124
v. Is the right to be heard guaranteed?125
vi. Are judgments well-reasoned?126
vii. Are hearings and judgments public except for the cases pro-
vided for in Article 6.1 ECHR or for in absentia trials?
viii. Are appeal procedures available, in particular in criminal cases?127
ix. Are court notifications delivered properly and promptly?
105. The right to appeal against a judicial decision is expressly guaranteed

by Article 2 Protocol 7 ECHR and Article 14.5 ICCPR in the criminal field, and
by Article 8.2.h ACHR in general. This is a general principle of the Rule of Law
120. See e.g. Rowe and Davis v. the United Kingdom, 28901/95, 16 February 2000, § 60.
121. See e.g. Jalloh v. Germany, 54810/00, 17 July 2006, § 94ff, 104; Göçmen v. Turkey, 72000/01,
17 October 2006, § 75; O’Halloran and Francis v. the United Kingdom, 5809/02 and 25624/02,
29 June 2007, § 60.
122. Article 6.1 ECHR; Article 8.1 ACHR; Article 7.1.d ACHPR (« within reasonable time »).
123. CDL-AD(2010)039rev, § 94. See e.g. ECtHR Panju v. Belgium, 18393/09, 28 October 2014, §
53, 62 (the absence of an effective remedy in case of excessive length of proceedings goes
against Article 13 combined with Article 6.1 ECHR).
124. This right is inferred in criminal matters from Article 6.3.b ECHR (the right to have adequate
time and facilities for the preparation of one’s defence): see e.g. Foucher v. France, 22209/93,
18 March 1993, § 36.
125. Cf. ECtHR Micallef v. Malta, 17056/06, 15 October 2009, § 78ff; Neziraj v. Germany, 30804/07,
8 November 2012, § 45ff.
126. “Article 6 § 1 (Article 6-1) obliges the courts to give reasons for their judgments”: ECtHR Hiro
Balani v. Spain, 18064/91, 9 September 1994, § 27; Jokela v. Finland, 28856/95, 21 May 2002,
§ 72; see also Taxquet v. Belgium, 926/05, 16 November 2010, § 83ff. Under the title “Right to
good administration”, Article 41.2.c of the Charter of Fundamental Rights of the European
Union provides for “the obligation of the administration to give reasons for its decisions”.
127. On appeals procedures, see ODIHR Legal Digest of International Fair Trial Rights, p. 227.

often guaranteed at constitutional or legislative level by domestic legisla-

tion, in particular in the criminal field. Any court whose decisions cannot be
appealed would run the risk of acting arbitrarily.
106. All aspects of the right to a fair trial developed above may be inferred
from the right to a fair trial as defined in Article 6 ECHR, as elaborated in the
case-law of the European Court of Human Rights. They ensure that legal
subjects are properly involved in the whole judicial process.
d. Effectiveness of judicial decisions
Are judicial decisions effective?

i. Are judgments effectively and promptly executed?128
ii. Are complaints for non-execution of judgments before national
courts and/or the European Court of Human Rights frequent?
iii. What is the perception of the effectiveness of judicial decisions
by the public?
107. Judicial decisions are essential to the implementation of the Constitution

and of legislation. The right to a fair trial and the Rule of Law in general would
be devoid of any substance if judicial decisions were not executed.
3. Constitutional justice (if applicable)
Is constitutional justice ensured in States which provide for consti-

tutional review (by specialised constitutional courts or by supreme
courts)?
i. Do individuals have effective access to constitutional justice
against general acts, i.e., may individuals request constitutional
review of the law by direct action or by constitutional objec-
tion in ordinary court proceedings?129 What “interest to sue” is
required on their part?
128. See e.g. Hirschhorn v. Romania, 29294/02, 26 July 2007, § 49; Hornsby v. Greece, 18357/91,
19 March 1997, § 40; Burdov v. Russia, 59498/00, 7 May 2002, § 34ff ; Gerasimov and Others
v. Russia, 29920/05, 3553/06, 18876/10, 61186/10, 21176/11, 36112/11, 36426/11, 40841/11,
45381/11, 55929/11, 60822/11, 1 July 2014, § 167ff.
129. CDL-AD(2010)039rev, Study on individual access to constitutional justice, § 96.

ii. Do individuals have effective access to constitutional justice

against individual acts which affect them, i.e. may individuals
request constitutional review of administrative acts or court
decisions through direct action or by constitutional objection?130
iii. Are Parliament and the executive obliged, when adopting new
legislative or regulatory provisions, to take into account the
arguments used by the Constitutional Court or equivalent body?
Do they take them into account in practice?
iv. Do Parliament or the executive fill legislative/regulatory gaps
identified by the Constitutional Court or equivalent body within
a reasonable time?
v. Where judgments of ordinary courts are repealed in constitu-
tional complaint proceedings, are the cases re-opened and set-
tled by the ordinary courts taking into account the arguments
used by the Constitutional Court or equivalent body?131
vi. If constitutional judges are elected by Parliament, is there a
requirement for a qualified majority132 and other safeguards for
a balanced composition?133
vii. Is there an ex ante control of constitutionality by the executive
and or/legislative branches of government?
108. The Venice Commission usually recommends providing for a constitu-

tional court or equivalent body. What is essential is an effective guarantee
of the conformity of governmental action, including legislation, with the
Constitution. There may be other ways to ensure such conformity. For example,
130. CDL-AD(2010)039rev, § 62, 93, 165.

131. CDL-AD(2010)039rev, § 202; CDL-AD(2002)005 Opinion on the Draft Law on the
Constitutional Court of the Republic of Azerbaijan, § 9, 10.
132. CDL-AD(2004)043, Opinion on the Proposal to Amend the Constitution of the Republic of
Moldova (introduction of the individual complaint to the constitutional court), § 18, 19;
CDL-AD(2008)030, Opinion on the Draft Law on the Constitutional Court of Montenegro,
§ 19; CDL-AD(2011)040, Opinion on the law on the establishment and rules of procedure
of the Constitutional Court of Turkey, § 24.
133. CDL-AD(2011)010, Opinion on the draft amendments to the Constitution of Montenegro,
as well as on the draft amendments to the law on courts, the law on the State prosecutor’s
office and the law on the judicial council of Montenegro, § 27; CDL-AD(2012)024, Opinion
on two Sets of draft Amendments to the Constitutional Provisions relating to the Judiciary
of Montenegro, § 33; CDL-AD(2009)014, Opinion on the Law on the High Constitutional
Court of the Palestinian National Authority, § 13; The Composition of Constitutional Courts,
Science and Technique of Democracy No. 20, CDL-STD(1997)020, pp. 7, 21.

Finnish law provides at the same time for a priori review of constitutionality by
the Constitutional Law Committee and for a posteriori judicial control in case
the application of a statutory provision would lead to an evident conflict with
the Constitution. In the specific national context, this has proven sufficient.134
109. Full judicial review of constitutionality is indeed the most effective means
to ensure respect for the Constitution, and includes a number of aspects
which are set out in detail above. First, the question of locus standi is very
important: leaving the possibility to ask for a review of constitutionality only
to the legislative or executive branch of government may severely limit the
number of cases and therefore the scope of the review. Individual access to
constitutional jurisdiction has therefore been developed in a vast majority of
countries, at least in Europe.135 Such access may be direct or indirect (by way
of an objection raised before an ordinary court, which refers the issue to the
constitutional court).136 Second, there should be no limitation as to the kinds
of acts which can be submitted to constitutional review: it must be possible
to do so for (general) normative as well as for individual (administrative or
judicial) acts. However, an individual interest may be required on the part of
a private applicant.
110. The right to a fair trial imposes the implementation of all courts’ decisions,
including those of the constitutional jurisdiction. The mere cancellation of
legislation violating the Constitution is not sufficient to eliminate every effect
of a violation, and would at any rate be impossible in cases of unconstitutional
legislative omission.
111. This is why this document underlines the importance of Parliament
adopting legislation in line with the decision of the Constitutional Court or
equivalent body.137 What was said about the legislator and the executive is
also true for courts: they have to remedy the cases where the constitutional
jurisdiction found unconstitutionality, on the basis of the latter’s arguments.
112. “The legitimacy of a constitutional jurisdiction and society’s accept-
ance of its decisions may depend very heavily on the extent of the court’s
consideration of the different social values at stake, even though such values
are generally superseded in favour of common values. To this end, a balance
which ensures respect for different sensibilities must be entrenched in the
134. CDL-AD(2008)010, Opinion on the Constitution of Finland, § 115ff.

135. There is only one (limited) exception in the Council of Europe member States with a
constitutional jurisdiction: CDL-AD(2010)039rev, § 1, 52-53.
136. CDL-AD(2010)039rev, § 1ff, 54-55, 56 ff.
137. Cf. CDL-AD(2008)030, Opinion on the Draft Law on the Constitutional Court of Montenegro,
§ 71.

rules of composition of these jurisdictions”.138 A qualified majority implies a

political compromise and is a way to ensure a balanced composition when
no party or coalition has such a majority.
113. Even in States where ex post control by a constitutional or supreme court
is possible, ex ante control by the executive or legislative branch of govern-
ment helps preventing unconstitutionalities.
F. Examples of particular challenges to the Rule of Law

114. There are many examples where particular actions and decisions offend
the Rule of Law. However, because they are topical and pervasive at the time
of the drafting of this document, two such examples are presented in this sec-
tion: corruption and conflict of interest; and collection of data and surveillance.
1. Corruption139 and conflict of interest
a. Preventive measures
What are the preventive measures taken against corruption?

i. In the exercise of public duties, are specific rules of conduct
applicable to public officials? Do these rules take into account:
(1) the promotion of integrity in public life by means of
general duties (impartiality and neutrality etc.);
(2) restrictions on gifts and other benefits;
(3) safeguards with respect to the use of public resources and
information which is not meant to be public;
(4) regulations on contacts with third parties and persons
seeking to influence a public decision including
governmental and parliamentary work?
ii. Are there rules aimed at preventing conflicts of interest in deci-
sion-making by public officals, e.g. by requiring disclosure of any
conflicts in advance?
138. CDL-STD(1997)020, p. 21.

139. On the issue of corruption, see Group of States Against Corruption (GRECO), Immunities
of public officials as possible obstacles in the fight against corruption, in Lessons learned from
the three Evaluation Rounds (2000-2010) - Thematic Articles.

iii. Are all categories of public officials covered by the above meas-
ures, e.g. civil servants, elected or appointed senior officials at
State and local levels, judges and other holders of judicial func-
tions, prosecutors etc. ?
iv. Are certain categories of public officials subject to a system of
disclosure of income, assets and interests, or to further require-
ments at the beginning and the end of a public office or man-
date e.g. specific integrity requirements for appointment, profes-
sional disqualifications, post-employment restrictions (to limit
revolving doors or so-called “pantouflage”)?
v. Have specific preventative measures been taken in specific
sectors which are exposed to high risks of corruption, e.g. to
ensure an adequate level of transparency and supervision
over public tenders, and the financing of political parties and
election campaigns?
b. Criminal law measures
What are the criminal law measures taken against corruption?

i. To what extent does bribery involving a public official constitute
an offence?
ii. Is corruption defined in policy documents or other texts, in
conformity with international standards? Are there criminal law
provisions aimed at preserving public integrity, e.g. trading in
influence, abuse of office, breach of official duties?
iii. Which public officials are within the scope of such measures,
e.g. civil servants, elected or appointed senior officials includ-
ing the head of State and members of government and public
assemblies, judges and other holders of judicial functions,
prosecutors etc. ?
iv. What consequences are attached to convictions for corruption-
related offences? Do these include additional consequences
such as exclusion from a public office or confiscation of profits?

c. Effective compliance with, and implementation of preventive and

repressive measures
How is effective compliance with the above measures ensured?

i. How is the overall level of compliance with anti-corruption
measures and policies perceived domestically?
ii. Does the State comply with the results of international monitor-
ing in this field?
iii. Are effective, proportionate and dissuasive criminal and admin-
istrative sanctions provided for corruption-related acts and
non-compliance with preventive mechanisms?
iv. Are the bodies responsible for combating corruption and
preserving public sector integrity provided with adequate
resources, including investigative powers, personnel and finan-
cial support? Do these bodies enjoy sufficient operational inde-
pendence from the executive and the legislature?140
v. Are measures in place to make the above bodies accessible to
individuals and to encourage disclosure of possible corrupt acts,
notably reporting hotlines and a policy on whistle-blowers141
which offers protection against retaliation in the workplace and
other negative consequences?
vi. Does the State itself assess the effectiveness of its anti-corrup-
tion policies, and is adequate corrective action taken when
necessary?
vii. Have any phenomena been observed in practice, which would
undermine the effectiveness or integrity of anti-corruption
efforts, e.g. manipulation of the legislative process, non-com-
pliance and non-enforcement of court decisions and sanctions,
immunities, interference with the enforcement efforts of anti-
corruption and other responsible bodies – including political
intimidation, instrumentalisation of certain public institutions,
intimidation of journalists and members of civil society who
report on corruption?
140. On the issue of corruption in the judiciary, see II.E.1.c.ii.

141. See Recommendation CM/Rec(2014)7 on the protection of whistle-blowers, of the Council
of Europe’s Committee of Ministers.

115. Corruption leads to arbitrariness and abuse of powers since decisions

will not be made in line with the law, which will lead to decisions being
arbitrary in nature. Moreover, corruption may offend equal application of
the law: it therefore undermines the very foundations of the Rule of Law.
Although all three branches of powers are concerned, corruption is a par-
ticular concern for the judiciary, prosecutorial and law enforcement bodies,
which play an instrumental role in safeguarding the effectiveness of anti-
corruption efforts. Preventing and sanctioning corruption-related acts are
important elements of anti-corruption measures, which are addressed in a
variety of international conventions and other instruments.142
116. Preventing conflicts of interest is an important element of the fight
against corruption. A conflict of interest may arise where a public official has
a private interest (which may involve a third person, e.g. a relative or spouse)
liable to influence, or appearing to influence, the impartial and objective
performance of his or her official duties.143 The issue of conflicts of interest is
addressed in international conventions and soft law.144 Legislation on lobby-
ing and the control of campaign finance may also contribute to preventing
and sanctioning conflicts of interest.145
2. Collection of data and surveillance
a. Collection and processing of personal data
How is personal data protection ensured?

i. Are personal data undergoing automatic processing sufficiently
protected with regard to their collection, storing and processing
142. See for example the United Nations Convention against Corruption; Criminal Law
Convention on Corruption (CETS 173); Civil Law Convention on Corruption (CETS 174);
Additional Protocol to the Criminal Law Convention on Corruption (CETS 191); CM/
Rec(2000)10 on codes of conduct for public officials; CM/Res (97) 24 on the twenty guid-
ing principles for the fight against corruption.
143. CM/Rec(2000)10 on codes of conduct for public officials, Article 13.
144. United Nations Convention against Corruption, in particular Article 8.5; CM/Rec(2000)10,
Appendix - Model code of conduct for public officials, Articles 13ff; cf. CM/Res (97) 24 on
the twenty guiding principles for the fight against corruption.
145. The Venice Commission adopted in 2013 a Report on the Role of Extra-Institutional Actors
in the Democratic System (Lobbying) (CDL-AD(2013)011). The European Committee on
Legal Co-operation (CDCJ) carried out in 2014 a feasibility study on a Council of Europe
legal instrument concerning the legal regulation of lobbying activities. It is expected that
the draft recommendation will be submitted for approval to the CDCJ plenary meeting
in November 2016.

by the State as well as by private actors? What are the

safeguards to secure that personal data are:
– processed lawfully, fairly and in a transparent manner
in relation to the data subject (“lawfulness, fairness and
transparency”);
– collected for specified, explicit and legitimate purposes and
not further processed in a way incompatible with those
purposes (“purpose limitation”)?
– adequate, relevant and limited to what is necessary in
relation to the purposes for which they are processed (“data
minimisation”)?
– accurate and, where necessary, kept up to date (“accuracy”)?
– kept in a form which permits identification of data subjects
for no longer than is necessary for the purposes for which the
personal data are processed (“storage limitation”);
– processed in a way that ensures appropriate security of the
personal data, including protection against unauthorised or
unlawful processing and against accidental loss, destruction
or damage (“integrity and confidentiality”)?146
Is the data subject provided at least with information on:
– the existence of an automated personal data file, its main
purposes;
146. An early document (of 1981) is Article 5 of the Council of Europe Convention for the
Protection of Individuals with regard to Automatic Processing of Personal Data (CETS 108);
see also Directive 95/46/EC of the European Parliament and of the Council of 24 October
1995 on the protection of individuals with regard to the processing of personal data and
on the free movement of such data, Articles 6, 7; in the meantime in the EU a “Proposal
for a Regulation of the European Parliament and of the Council on the protection of
individuals with regard to the processing of personal data and on the free movement of
such data (General Data Protection Regulation)” has been agreed on (Interinstitutional
File 2012/0011 (COD) of Dec 15, 2015). Principles of data protection are enshrined in Art.
5. See also a “Proposal for a Directive of the European Parliament and the Council on the
protection of individuals with regard to the processing of personal data by competent
authorities for the purpose of prevention, investigation, detection or prosecution of crimi-
nal offences or the execution of criminal penalties, and the free movement of such data”
(Interinstitutional file: 2012/0010 (COD) of 16 December 2015. In 2013 the OECD adopted
“The OECD Privacy Framework”, with “principles” in Part 2.

– the identity and the contact details of the controller and of

the data protection officer;
– the purposes of the processing for which the personal data
are intended;
– the period for which the personal data will be stored;
– the existence of the right to request from the controller access
to and rectification or erasure of the personal data concerning
the data subject or to object to the processing of such
personal data;
– the right to lodge a complaint to the supervisory authority
and the contact details of the supervisory authority; the
recipients or categories of recipients of the personal data;
– where the personal data are not collected from the data
subject, from which source the personal data originate;
– any further information necessary to guarantee fair
processing in respect of the data subject.147
ii. Does a specific independent authority ensure compliance with
the legal conditions under domestic law giving effect to the
international principles and requirements with regard to the
protection of individuals and of personal data?148
iii. Are effective remedies provided for alleged violations of indi-
vidual rights by collection of data?149
117. The increasing use of information technology has made the collection of
data possible to an extent which was unthinkable in the past. This has led to
the development of national and international legal protection of individu-
als with regard to automatic processing of personal information relating to
them. The most important requirements of such protection are enumerated
above. These are also applicable mutatis mutandis to data processing for
security purposes.
147. See the Proposal for a Regulation quoted in the previous footnote, Article 14; Directive
95/46/EC, Articles 10-11; CETS 108, Article 8.
148. CDL-AD(2007)014, § 83.
149. Cf. Articles 8 and 13 ECHR

b. Targeted surveillance
What are the guarantees against abuse of targeted surveillance?

i. Is there a mandate in the primary legislation and is it restricted
by principles like the principle of proportionality?
ii. Are there norms providing for procedural controls and oversight?
iii. Is an authorisation by a judge or an independent body required?
iv. Are there sufficient legal remedies available for an alleged viola-
tion of individual rights?150
118. Surveillance may seriously infringe the right to private life. The develop-
ments of technical means make it easier and easier to use. Ensuring that it does
not provide the State an unlimited power to control the life of individuals is
therefore crucial.
119. Targeted surveillance must be understood as covert collection of con-
versations by technical means, covert collection of telecommunications and
covert collection of metadata).151
c. Strategic surveillance
What are the legal provisions related to strategic surveillance which

guarantee against abuse?
i. Are the main elements of strategic surveillance regulated in
statute form, including the definition of the agencies which are
authorised to collect such intelligence, the detailed purposes
for which strategic surveillance can be collected and the limits,
including the principle of proportionality, which apply to the
collection, retention and dissemination of the data collected?152
150. Cf. Articles 8 and 13 ECHR.

151. The level of the interference metadata collection involves in private life is disputed. The
CJEU has extended privacy protection to metadata as well. The case law of the ECtHR so
far accepts that lesser safeguards can apply for less serious interferences with private life.
see CDL-AD(2015)006 §62, 63, 83. Where no prior judicial authorisation is provided for
metadata collection, there must at least be strong independent post hoc review.
152. CDL-AD(2015)011, § 8, 69, 129; cf. ECtHR Liberty and others v. the United Kingdom, 58240/00,
1 July 2008, § 59 ff; Weber and Saravia v. Germany (dec.) 54934/00, 29 June 2006, § 85 ff.

ii. Does the legislation extend data protection/privacy also to

non-citizens/non-residents?
iii. Is strategic surveillance submitted to preventive judicial or inde-
pendent authorisation? Are there independent review and over-
sight mechanisms in place?153
iv. Are effective remedies provided for alleged violations of indi-
vidual rights by strategic surveillance?154
120. Signals intelligence must be understood as means and methods for the
interception of radio – including satellite and cell phone and cable-borne
communications.155
121. “One of the most important developments of intelligence oversight in
recent years has been that signals intelligence… can now involve monitoring
“ordinary telecommunications” (it is “surveillance”) and it has a much greater
potential for affecting human rights.”156
d. Video surveillance
What are the guarantees against abuse of video surveillance, espe-

cially of public places?157
i. Is video surveillance performed on grounds of security or safety
requirements, or for the prevention and control of criminal
offences, and submitted in law and in practice to the require-
ments laid down in Article 8 ECHR?158
ii. Are people notified of their being surveyed in places accessible
to the public?
iii. Do people have access to any video surveillance that may relate
to them?
153. CDL-AD(2015)011, § 24-27, 115ff, 129.

154. Cf. Articles 8 and 13 ECHR; CDL-AD(2015)011, § 26, 126 ff.
155. CDL-AD(2015)011, § 33.
156. CDL-AD(2015)011, § 1.
157. See e.g. CJEU, C-212/13, František Ryneš v. Úřad pro ochranu osobních údajů, 11 December
2014.
158. CDL-AD(2007)014, § 82.

III. Selected standards
III.a. General Rule of Law Standards
1. Hard Law
Council of Europe, European Convention on Human Rights (1950)
http://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/005
European Union (EU), Charter of Fundamental Rights of the EU (2009)

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:O
J.C_.2010.083.01.0389.01.ENG
United Nations (UN), International Covenant on Civil and Political Rights (1966)
(ICCPR)
http://www.unhcr.org/refworld/pdfid/3ae6b3aa0.pdf
Council of Europe, Statute of the Council of Europe, Preamble (1949)

OAS, American Convention on Human Rights (‘Pact of San Jose’) (1969)

http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_
Rights.htm
African Union (AU), Constitutive Act

http://www.au.int/en/sites/default/files/ConstitutiveAct_EN.pdf
African Union (AU) Charter on Democracy, Elections and Governance (2007),

Article 3
http://www.au.int/en/sites/default/files/AFRICAN_CHARTER_ON_
DEMOCRACY_ELECTIONS_AND_GOVERNANCE.pdf
Page 57
2. Soft Law
a. Council of Europe
European Commission for Democracy through Law (Venice Commission),

Report on the Rule of Law, CDL-AD (2011)003rev
http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2011)003rev-e
Council of Europe Committee of Ministers, ‘The Council of Europe and the

Rule of Law’, CM(2008)170
http://www.coe.int/t/dghl/standardsetting/minjust/mju29/CM%20170_en.pdf
The European Commission for the Efficiency of Justice’s Evaluation of European

Judicial Systems project
http://www.coe.int/t/dghl/cooperation/cepej/series/Etudes6Suivi_en.pdf
b. European Union
EU, Justice Scoreboard (ongoing annual reports)

http://ec.europa.eu/justice/effective-justice/scoreboard/index_en.htm
Communication from the European Commission to the European Parliament

and the Council, ‘A new EU Framework to strengthen the Rule of Law’,
COM(2014) 158 final/2.
http://ec.europa.eu/justice/effective-justice/files/com_2014_158_en.pdf
Council of the EU, Conclusions on fundamental rights and rule of law and on
the Commission 2012 Report on the Application of the Charter of Fundamental
Rights of the European Union (2013) http://www.consilium.europa.eu/uedocs/
cms_data/docs/pressdata/en/jha/137404.pdf
EU Accession Criteria (‘Copenhagen Criteria’)

http://europa.eu/rapid/press-release_DOC-93-3_en.htm?locale=en
c. Other international organisations
Conference on Security and Co-operation in Europe (CSCE, now OSCE),

Document of the Copenhagen Meeting of the Conference on the Human
Dimension of the CSCE (“the Copenhagen document”) (1989)
http://www.osce.org/odihr/elections/14304?download=true
Organization for Security and Co-operation in Europe, Decision No. 7/08,

‘Further strengthening the rule of law in the OSCE area’ (2008).
http://www.osce.org/mc/35494?download=true

Organization of American States (OAS), Inter-American Democratic Charter (2001),

http://www.oas.org/OASpage/eng/Documents/Democractic_Charter.htm
Conference on Security and Co-operation in Europe (CSCE, now OSCE),

Document of the Moscow meeting of the Conference on the Human Dimension
of the CSCE (“the Moscow document) (1991)
http://www.osce.org/odihr/elections/14310?download=true
d. Rule of Law Indicators
World Justice Project Rule of Law Index

http://worldjusticeproject.org/sites/default/files/files/wjp_rule_of_law_
index_2014_report.pdf
Vera-Altus Rule of Law Indicators

http://www.altus.org/pdf/dimrol_en.pdf
The United Nations Rule of Law Indicators

http://www.un.org/en/events/peacekeepersday/2011/publications/un_rule_
of_law_indicators.pdf
World Bank’s World Governance Indicators

http://info.worldbank.org/governance/wgi/index.aspx#home
III.b. Standards relating to the Benchmarks
A. Legality
1. Hard Law
ECHR Articles 6ff, in particular 6.1, 7, 8.2, 9.2, 10.2 and 11.2
EU, Charter of Fundamental Rights of the EU (2009), Article 49 (concerning the

principles of legality and proportionality of criminal offences and penalties)
http://www.europarl.europa.eu/charter/pdf/text_en.pdf
UN, ICCPR Articles 14ff, in particular 14.1, 15, 18.3, 19.3, 21; 22.3
UN, International Covenant on Civil and Political Rights (1966), Article 4 (emer-
gency derogations must be strict), 15 (nullum crimen, nullum poena)
http://www.unhcr.org/refworld/pdfid/3ae6b3aa0.pdf
III. Selected standards Page 59

UN, International Convention on the Protection of the Rights of All Migrant

Workers and Members of their Families (1990), Articles 16(4), 19
http://www2.ohchr.org/english/bodies/cmw/cmw.htm
Rome Statute of the International Criminal Court (1998), Article 22

http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-
0a655eb30e16/0/rome_statute_english.pdf
AU Charter on Democracy, Elections and Governance (2007), Article 10

OAS, American Convention on Human Rights (‘Pact of San Jose’) (1969), Article 27
Rights.htm
2. Soft Law
UN, Universal Declaration of Human Rights (1948), Article 11(2) (concerning
criminal offences and penalties)
http://www.un.org/en/documents/udhr/index.shtml
Organization of American States (OAS), American Declaration of the Rights

and Duties of Man (1948), Article XXV (protection from arbitrary arrest)
http://www.oas.org/dil/1948%20American%20Declaration%20of%20the%20
Rights%20and%20Duties%20of%20Man.pdf
Commonwealth (Latimer House) Principles on the Accountability of and the

Relationship Between the Three Branches of Government (1998), Principles
II, VIII
http://www.cmja.org/downloads/latimerhouse/commprinthreearms.pdf
Charter of the Commonwealth (2013), Sections VI, VIII

http://thecommonwealth.org/sites/default/files/page/documents/
CharteroftheCommonwealth.pdf
Association of Southeast Asian Nations (ASEAN) Human Rights Declaration

(2012), para 20(2)
Available at http://aichr.org/documents

B. Legal certainty
1. Hard Law
ECHR Articles 6ff, in particular 6.1, 7, 8.2, 9.2, 10.2 and 11.2
OAS, American Convention on Human Rights (‘Pact of San Jose’) (1969), Article 9
Rights.htm
AU, African Charter on Human and People’s Rights (Banjul Charter) (1981),
Article 7(2)
http://www.unhcr.org/refworld/pdfid/3ae6b3630.pdf
League of Arab States (LAS), Arab Charter on Human Rights (Revised) (2004),
Article 16
http://www.refworld.org/docid/3ae6b38540.html
2. Soft Law
UN, Universal Declaration of Human Rights (1948), Article 11
UN, Declaration of the High-level Meeting of the General Assembly on the

Rule of Law at the National and International Levels (2012), para 8
http://www.unrol.org/article.aspx?article_id=192
ASEAN, Human Rights Declaration (2012), para 20(3)

C. Prevention of abuse of powers
1. Hard Law
UN, International Covenant on Civil and Political Rights (1966), Article 17
(interference with freedoms)
http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

Workers and Members of their Families (1990), Articles 14 (interference with
freedoms), 15 (deprivation of property)

UN, Convention on the Rights of the Child (1989), Article 37(b) (arbitrary arrest
or detention)
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx
Article 14
2. Soft Law
Council of Europe Committee of Ministers, ‘The Council of Europe and the
Rule of Law’, CM(2008)170, section 46
http://www.coe.int/t/dghl/standardsetting/minjust/mju29/CM%20170_en.pdf
UN, Universal Declaration of Human Rights (1948), Articles 9, 12, 17

Relationship Between the Three Branches of Government (1998), Principle VII
ASEAN Human Rights Declaration (2012), paras 11-12, 21 (arbitrary deprivations

of life, liberty, privacy)
D. Equality before the law and non-discrimination
1. Hard Law
ECHR (1950), Article 14
b. European Union
Charter of Fundamental Rights of the EU (2009), Articles 20-21

EU Equality Directives, including Council Directive 2000/78/EC of 27 November
2000 establishing a general framework for equal treatment in employment
and occupation and Council Directive 2000/43/EC of 29 June 2000 implement-
ing the principle of equal treatment between persons irrespective of racial
or ethnic origin

http://eur_lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0078:en:HTML
http://eur_lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0043:en:HTML
c. Other international organisations
UN, International Covenant on Civil and Political Rights (1966), Articles 2, 14(1),
26 (equality before courts and tribunals)
UN, International Convention on the Elimination of All Forms of Racial

Discrimination (CEDR) (1969), especially Article 5
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx

Workers and Members of their Families (1990), Articles 1, 7, 18
UN, International Covenant on Economic, Social and Cultural Rights (1966), Article 3
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx
UN, Convention on the Elimination of All Forms of Discrimination against

Women (CEDAW) (1979)
UN, Convention on the Rights of Persons with Disabilities (CRPD) (2006)

http://www.un.org/disabilities/convention/conventionfull.shtml
UN, Convention on the Rights of the Child (1989), Article 2

International Committee of the Red Cross and Red Crescent Societies, Geneva
Conventions (1949), Common Article 3
https://www.icrc.org/ihl/WebART/375-590006
Articles 3, 19
AU Charter on Democracy, Elections and Governance (2007), Article 8

OAS, American Convention on Human Rights (‘Pact of San Jose’) (1969), Articles 3, 24
Rights.htm

LAS, Arab Charter on Human Rights (Revised) (2004), Articles 2, 9

2. Soft Law
Council of Europe, Recommendation CM/Rec(2007)7 of the Committee of

Ministers to member States on good administration, Article 3
https://wcd.coe.int/ViewDoc.jsp?id=1155877

Report on the scope and lifting of parliamentary immunities, CDL-AD(2014)011
http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2014)011-e
UN, Universal Declaration of Human Rights (1948), Articles 1, 2, 6-7, 16-17, 22-23
UN Declaration of the High-level Meeting of the General Assembly on the Rule

of Law at the National and International Levels (2012), sections 12, 14
UN Human Rights Committee, General Comment No. 32 (2007), Article 14:

Right to equality before courts and tribunals and to a fair trial
http://www1.umn.edu/humanrts/gencomm/hrcom32.html
The Commonwealth, Harare Commonwealth Declaration (1991), para 4

http://thecommonwealth.org/sites/default/files/history-items/documents/
Harare%20Commonwealth%20Declaration%201991.pdf
The Commonwealth, Singapore Declaration of Commonwealth Principles

(1971), Principle 6
Singapore%20Declaration.pdf
ASEAN, Human Rights Declaration (2012), paras 2, 7-9

OAS, American Declaration of the Rights and Duties of Man (1948), Articles II, XVII
http://www.oas.org/dil/1948%20American%20Declaration%20of%20the%20
Rights%20and%20Duties%20of%20Man.pdf
OAS, Inter-American Democratic Charter (2001), Article 9

South Asian Association for Regional Cooperation (SAARC), Charter of

Democracy (2011)
http://saarc-sec.org/SAARC-Charter-of-Democracy/88/
E. Access to justice
1. Hard Law
ECHR (1950), Article 6
Charter of Fundamental Rights of the EU (2009), Articles 41, 47, 48, 50

Directive 2010/64/EU of the European Parliament and of the Council of 20 October

2010 on the right to interpretation and translation in criminal proceedings
http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1455724770445&uri=C
ELEX:32010L0064
Directive 2012/13/EU of the European Parliament and of the Council of 22 May
2012 on the right to information in criminal proceedings
ELEX:32012L0013
Directive 2013/48/EU of the European Parliament and of the Council of

22 October 2013 on the right of access to a lawyer in criminal proceedings
and in European arrest warrant proceedings, and on the right to have a third
party informed upon deprivation of liberty and to communicate with third
persons and with consular authorities while deprived of liberty
ELEX:32013L0048
UN, International Covenant on Civil and Political Rights (1966), Articles 9, 14

UN, International Convention on the Elimination of All Forms of Racial

Discrimination (1969), Article 6
UN, Convention on the Rights of the Child (1989), Articles 12(2), 40

Workers and Members of Their Families (1990), Articles 16, 18

Rome Statute of the International Criminal Court (1998), Article 55

http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-
0a655eb30e16/0/rome_statute_english.pdf
OAS, American Convention on Human Rights (‘Pact of San Jose’) (1969), Articles
8, 25
Rights.htm
LAS, Arab Charter on Human Rights (Revised) (2004), Articles 7, 9

LAS, The Riyadh Arab Agreement for Judicial Cooperation (1983), Articles 3-4
http://www.refworld.org/docid/3ae6b38d8.html
2. Soft Law
Council of Europe Commission for Democracy through Law (Venice Commission),

Report on the Independence of the Judicial System Part I: The Independence
of Judges, CDL-AD(2010)004
Venice Commission, Report on European Standards as regards the Independence

of the Judicial System: Part II - the Prosecution Service, CDL-AD(2010)040
Venice Commission, Report on Judicial Appointments, CDL-AD(2007)028

http://www.venice.coe.int/webforms/documents/default.
aspx?pdffile=CDL-AD%282007%29028-e
Venice Commission, Compilation of Venice Commission opinions, reports and

studies on Constitutional Justice, CDL-PI(2015)002
http://www.venice.coe.int/webforms/documents/?pdf=CDL-PI%282015%29002-e
Venice Commission, Compilation of Venice Commission Opinions and Reports

concerning Prosecutors, CDL-PI(2015)009
Venice Commission, Compilation of Venice Commission Opinions and Reports

concerning Courts and Judges, CDL-PI(2015)001

Council of Europe, Recommendation CM/Rec(94)12 of the Committee of Ministers

to member States on the Independence, Efficiency and Role of Judges (1994)
https://wcd.coe.int/ViewDoc.jsp?id=524871&Site=CM&BackColorInternet=C
3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383
Council of Europe, Recommendation CM/Rec(2010)12 of the Committee

of Ministers to member States on judges: independence, efficiency and
responsibilities
https://wcd.coe.int/ViewDoc.jsp?id=1707137

Ministers to member States on the role of public prosecution in the criminal
justice system
https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.Cmd
BlobGet&InstranetImage=2719990&SecMode=1&DocId=366374&Usage=2

Ministers to member States on the role of public prosecutors outside the
criminal justice system
https://wcd.coe.int/ViewDoc.jsp?id=1979395&Site=CM&BackColorInternet=
C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383
Consultative Council of European Judges (CCJE), Opinion No. 1 on stand-

ards concerning the independence of the judiciary and the irremovability
of judges (2001)
https://www.coe.int/t/dghl/monitoring/greco/evaluations/round4/CCJE%20
Opinion%201_EN.pdf
Council of Europe, Recommendation No. R(2000)21 of the Committee of Ministers

to member States on the freedom of exercise of the profession of lawyer
b. European Union
European Network of Councils for the Judiciary, Dublin Declaration on Standards

for the Recruitment and Appointment of Members of the Judiciary (2012)
http://www.encj.eu/images/stories/pdf/GA/Dublin/encj_dublin_declara-
tion_def_dclaration_de_dublin_recj_def.pdf
European Network of Councils for the Judiciary, Judicial Ethics: Principles,

Values and Qualities (2010)
http://encj.eu/images/stories/pdf/ethics/judicialethicsdeontologiefinal.pdf

European Network of Councils for the Judiciary, Resolution on Transparency

and Access to Justice (2009)
http://encj.eu/images/stories/pdf/opinions/resolutionbucharest29may_final.pdf
Council of Bars and Law Societies in Europe, Charter of Core Principles of the
European Legal Profession (2006) and Code of Conduct for European Lawyers
(1988, latest amendment 2006)
http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/EN_CCBE_
CoCpdf1_1382973057.pdf
European Association of Judges, Judges’ Charter in Europe (1997)

http://www.richtervereinigung.at/international/eurojus1/eurojus15a.htm
c. United Nations
UN, Universal Declaration of Human Rights (1948), Articles 8, 10

http://www.un.org/en/documents/udhr/
UN Human Rights Council Resolution 25/4, Integrity of the judicial system (2014)
http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/25/4
UN Human Rights Council, Resolution 23/6, Independence and impartiality

of the judiciary, jurors and assessors and the independence of lawyers (2013)
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G13/148/94/PDF/G1314894.
pdf?OpenElement
UN Declaration of the High-level Meeting of the General Assembly on the Rule

of Law at the National and International Levels (2012), para 13
UN Human Rights Committee, General Comment No. 32 (2007), Article 14:

Right to equality before courts and tribunals and to a fair trial
http://www1.umn.edu/humanrts/gencomm/hrcom32.html
UN Office on Drugs and Crime Judicial Group on Strengthening Judicial

Integrity, The Bangalore Principles of Judicial Conduct (2002)
http://www.unodc.org/pdf/crime/corruption/judicial_group/Bangalore_prin-
ciples.pdf
UN OHCHR, Principles relating to the Status of National Institutions (The Paris

Principles) (1993), section 2 (Composition and guarantees of independence
and pluralism)
http://www.ohchr.org/EN/ProfessionalInterest/Pages/
StatusOfNationalInstitutions.aspx

UN Basic Principles on the Role of Lawyers (welcomed by General Assembly

resolution 45/166, 1990)
http://www.ohchr.org/EN/ProfessionalInterest/Pages/RoleOfLawyers.aspx
UN Guidelines on the Role of Prosecutors (welcomed by General Assembly

resolution 45/166, 1990)
http://www.ohchr.org/EN/ProfessionalInterest/Pages/RoleOfProsecutors.aspx
UN Draft Universal Declaration on the Independence of Justice (“Singhvi

Declaration”) (referenced by UN Commission on Human Rights, resolution
1989/32)
http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2014/03/
SR-Independence-of-Judges-and-Lawyers-Draft-universal-declaration-
independence-justice-Singhvi-Declaration-instruments-1989-eng.pdf
UN Basic Principles on the Independence of the Judiciary (endorsed by General

Assembly resolutions 40/32 and 40/146, 1985)
http://www.ohchr.org/EN/ProfessionalInterest/Pages/IndependenceJudiciary.aspx
United Nations Principles and Guidelines on Access to Legal Aid in Criminal

Justice Systems
https://www.unodc.org/documents/justice-and-prison-reform/UN_princi-
ples_and_guidlines_on_access_to_legal_aid.pdf
International Association of Prosecutors, Standards of professional responsi-

bility and Statement of the essential duties and rights of prosecutors (1999)
http://www.iap-association.org/getattachment/34e49dfe-d5db-4598-91da-
16183bb12418/Standards_English.aspx
OSCE Ministerial Council Decision No. 12/05 on Upholding Human Rights and
the Rule of Law in Criminal Justice Systems (Ljubljana)
OSCE, Brussels Declaration on Criminal Justice Systems (2006)

d. The Commonwealth of Nations
Charter of the Commonwealth (2013), section 7

http://thecommonwealth.org/sites/default/files/page/documents/
CharteroftheCommonwealth.pdf


Relationship Between the Three Branches of Government (2003), Principles III-VI
Harare Commonwealth Declaration (1991), para 4

Harare%20Commonwealth%20Declaration%201991.pdf
Limassol Conclusions on Combating Corruption within the Judiciary (2002)

http://www.cmja.org/downloads/limassolconclusionwithannexe.pdf
e. Organization for Security and Co-operation in Europe
Organization for Security and Co-operation in Europe, Office for Democratic

Institutions and Human Rights, ‘Kyiv Recommendations on Judicial
Independence in Eastern Europe, South Caucasus and Central Asia: Judicial
Administration, Selection and Accountability’ (2010)
http://www.osce.org/odihr/KyivRec?download=true
Organization for Security and Co-operation in Europe, Office for Democratic

Institutions and Human Rights, Legal Digest of International Fair Trial Rights,
http://www.osce.org/odihr/94214.
f. Other international organisations
OAS, American Declaration of the Rights and Duties of Man (1948), Articles
XVII, XXVI
http://www.oas.org/dil/1948%20American%20Declaration%20of%20
the%20Rights%20and%20Duties%20of%20Man.pdf
OAS, Inter-American Democratic Charter (2001), Articles 2-4

African Union (AU), Constitutive Act (2000), Article 4(m)

http://www.au.int/en/sites/default/files/ConstitutiveAct_EN.pdf
Articles 7, 26
ASEAN, Human Rights Declaration (2012), para 5

SAARC, Charter of Democracy (2011)

http://saarc-sec.org/SAARC-Charter-of-Democracy/88/

g. Other
American Bar Association Rule of Law Initiative – Arab Council for Judicial and
Legal Studies, Justice Sector Benchmarks – A User’s Guide for Civil Society
Organizations
http://www.albersconsulting.eu/justicebenchmarks.html
The Appointment, Tenure and Removal of Judges under Commonwealth

Principles: A Compendium and Analysis of Best Practice (J. van Zyl Smit, Report
of Research Undertaken by Bingham Centre for the Rule of Law) (2015)
http://www.biicl.org/documents/689_bingham_centre_compendium.pdf
Bingham Center for the Rule of Law, Cape Town Principles on the Role of
Independent Commissions in the Selection and Appointment of Judges (2016)
http://www.biicl.org/documents/868_cape_town_principles_-_febru-
ary_2016.pdf
F. Examples of particular challenges to the Rule of Law
1. Hard Law
a. Corruption
Council of Europe, Criminal Convention against Corruption,

Council of Europe, Civil Convention on Corruption,

Council of Europe, Additional Protocol to the Criminal Law Convention on

Corruption
UN, Convention Against Corruption (2003)

http://www.unodc.org/unodc/en/treaties/CAC/
OAS, Inter-American Convention against Corruption (1996)

http://www.oas.org/juridico/english/treaties/b-58.html
b. Collection of data and surveillance
Council of Europe, Convention for the Protection of Individuals with regard

to Automatic Processing of Personal Data

European Union, Directive 95/46/EC of the European Parliament and of the

Council of 24 October 1995 on the protection of individuals with regard to the
processing of personal data and on the free movement of such data
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:31995L004
6&from=EN
2. Soft Law
a. Corruption

Ministers to members States on codes of conduct for public officials,
CM/Res (97) 24 on the twenty guiding principles for the fight against
corruption
Group of States Against Corruption (GRECO), Immunities of public officials as

possible obstacles in the fight against corruption, in Lessons learned from the
three Evaluation Rounds (2000-2010) - Thematic Articles
https://www.coe.int/t/dghl/monitoring/greco/general/
Compendium_Thematic_Articles_EN.pdf
European Union, regular EU-Anti Corruption report, e.g. COM(2014) 38 final

as of 3 February 2015
http://ec.europa.eu/dgs/home-affairs/e-library/documents/policies/
organized-crime-and-human-trafficking/corruption/docs/acr_2014_en.pdf
b. Collection of data and surveillance

Opinion on Video Surveillance in Public Places by Public Authorities and the
Protection of Human Rights, CDL-AD(2007)014
http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD%282007%29014-e
European Commission for Democracy through Law (Venice Commission

Report on the Democratic Oversight of Signals Intelligence Agencies,
CDL-AD(2015)011
http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD%282015%29011-e

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The principle of the Rule of Law is enshrined in
legal texts – whether at national constitutional
level or at the level of the Council of Europe or the
European Union. The Rule of Law is often and easily
used in political debate, as it lacks a clear definition.
However, is it implemented in an objective,
thorough, transparent and equal manner? The
Venice Commission’s checklist aims to address
these issues. It contains detailed questions to
assess the degree of respect for the Rule of Law in
any given country. This assessment will not merely
consist of counting the right answers, but provide
a global overview of the situation, while focusing
on the respect for the most important criteria.
The Rule of Law Checklist is a tool that is available to

all stakeholders, including international organisations,
national authorities and civil society.
www.venice.coe.int
PREMS 090416
ENG
The Council of Europe is the continent’s leading human rights
organisation. It comprises 47 member states, 28 of which are
members of the European Union. All Council of Europe member
www.coe.int states have signed up to the European Convention on Human
Rights, a treaty designed to protect human rights, democracy and
the rule of law. The European Court of Human Rights oversees
the implementation of the Convention in the member states.

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THE RULE OF LAW

Access to justice Access to courts

Equality before the law

Equality before the law

Stability and consistency of law

Rule of Law International law Constitutional justice

Accesstocourts Compliance with the law Supremacy of the law Compliance

Adopted by the Venice Commission

on the basis of comments by

A. Purpose and scope

Rule of Law Checklist Page 8

droit” or “prééminence du droit”, encompassing the principles of legality

Rule of Law Checklist Page 10

Access to justice before independent and impartial courts, including judicial

Declaration of the High-level Meeting of the General Assembly on the Rule

Rule of Law Checklist Page 12

B. The Rule of Law in an enabling environment

Rule of Law Checklist Page 14

of human rights has changed in many States as well as in European and

well-adjusted through a system of checks and balances. The exercise of legis-

Rule of Law Checklist Page 16

1. Supremacy of the law

Is supremacy of the law recognised?

2. Compliance with the law19

Do public authorities act on the basis of, and in accordance with

Rule of Law Checklist Page 18

3. Relationship between international law and domestic law

II. Benchmarks Page 19

4. Law-making powers of the executive

Is the supremacy of the legislature ensured?

Rule of Law Checklist Page 20

Is the process for enacting law transparent, accountable, inclusive

II. Benchmarks Page 21

6. Exceptions in emergency situations

Are exceptions in emergency situations provided for by law?

Rule of Law Checklist Page 22

52. The relevant provisions of the International Covenant on Civil and

7. Duty to implement the law

What measures are taken to ensure that public authorities effectively

53. Although full enforcement of the law is rarely possible, a fundamental

36. Article 15 ECHR: Article 4 ICCPR; Article 27 ACHR.

II. Benchmarks Page 23

8. Private actors in charge of public tasks

Does the law guarantee that non-State entities which, fully or in

Rule of Law Checklist Page 24

Are laws accessible?

2. Accessibility of court decisions

Are counts decisions accessible?

3. Foreseeability of the laws

Are the effects of laws foreseeable?42

II. Benchmarks Page 25

59. The necessary degree of foreseeability depends however on the nature of

4. Stability and consistency of law

Are laws stable and consistent?

60. Instability and inconsistency of legislation or executive action may affect

Is respect for the principle of legitimate expectations ensured?

61. The principle of legitimate expectations is part of the general principle

Rule of Law Checklist Page 26

also by their promises and raised expectations. According to the legitimate