The Venice Commission and the European Court of Human Rights: common grounds

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Author: Anatoly Kovler, Evgeniy Fokin

DOI: 10.21128/2226-2059-2021-2-72-92

Keywords: evolutive interpretation, judgments of the European Court, legal positions, opinions and reports of the Venice Commission, The European Court of Human Rights, Venice Commission of the Council of Europe

Abstract

Interaction of international justice bodies with expert organizations has not been the subject of an analysis performed by legal scholars. Meanwhile, cooperation between the European Commission for Democracy through Law (better known as Venice Commission) and the European Court of Human Rights makes it possible to establish many touch points in their activities. Despite the obvious differences in their status and subject competences both bodies are distinguished by the similarity of methodological approaches as evolutive interpretation of law, doctrine of margin of appreciation, conceptual framework. In the last decade the convergence of legal positions of the European Venice Commission and the European Court has noticeably increased. This is particularly evident in the reports of the Venice Commission and the European Court Grand Chamber’s judgments. The Commission’s 2020 report on individual access to constitutional justice, presented by a former judge of the European Court of Justice and now a member of the Venice Commission, Angelika Nussberger, is an illustrative example of this convergence of the positions of both institutions on the highly sensitive area of public relations. The practice of providing amicus curiae expert opinions by the Commission at the request of the European Court has also become more widespread. Dozens of judgments of the ECHR of the last decade contain lengthy references to the legal positions of the Commission. The article analyzes some of them. The authors conclude that this methodology strengthens the credibility of the reasoning for the Commission’s Opinions and the Court’s judgments. In the judgments of the European Court in cases concerning Russia there are also some references to the legal positions of the Venice Commission. This applies primarily to decisions on the implementation of civil and political rights of citizens. The article also analyses some of the acts of the Commission and the Court that have similar subjects of consideration. The authors conclude that the interaction of the Venice Commission and the European Court provides a unique example of the synergy of judicial interpretation of law and the opinions of the expert community. First of all, these are the issues of the functioning of the justice systems, the participation of citizens in political life, the electoral system, and freedom of speech. Ultimately, both institutions are involved in the realization of the quasi-utopia of creating a common European legal space.

About the authors: Anatoliy Kovler – Doctor of Sciences in Law, Professor, Head of Center, Institute of Legislation and Comparative Law, Judge (in ret.) of the ECtHR, Substitute Member, Venice Commission, Moscow, Russia; Evgeniy Fokin – Research Fellow, Institute of Legislation and Comparative Law, Moscow, Russia.

Citation: Kovler A., Fokin E. (2021) Venetsiantskaya komissiya i Evropeyskiy Sud po pravam cheloveka: tochki soprikosnoveniya [The Venice Commission and the European Court of Human Rights: common grounds]. Mezhdunarodnoe pravosudie, vol. 11, no. 2, pp. 72–92. (In Russian).