by Herdís Þorgeirsdóttir | 15.09.2016 | Almanak
Á 20 ára afmæli stjórnlagadómstóls Georgíu, sem staðsettur er í hafnarborginni Batumi við Svartahafið blés ekki byrlega fyrir stjórnskipulegu réttlæti í landinu. Forseti dómstólsins, Giorgi Papuaschvili hefur ítrekað komið fram á s.l. ári og lýst því yfir að dómarar þessa æðsta dómstóls landsins væru beittir miklum pólitískum þrýstingi; hafi þeir jafnvel sætt fjárkúgunum. Forseti dómstólsins var skipaður í tíð fyrrum forseta landsins, Mikheil Saakashvili. Eftir að ný stjórn tók við völdum í landinu 2012 hafa þeir sem þóttu líklegir til að hafa stutt Saakaschvili mætt tortryggni nýrra valdhafa.
Frá panel við opnun. Við hlið forseta landsins situr Giorgi Papuashvili en hann hefur borið núverandi stjórnlands landsins þungum sökum.
Á ráðstefnu sem haldin var í Batumi dagana 10. og 11. september voru margir áhugaverðir fyrirlestarar fluttir bæði af dómurum við stjórnlagadómstóla í ríkjum Austur-Evrópu þar sem miklar breytingar urðu í kjölfar hruns kommúnismans, a.m.k. í orði kveðnu með breytingum á stjórnskipun ríkjanna, aukinni valddreifingu og innbyggðu aðhaldi. Einn þeirra sem flutti fyrirlestur var András Sajo varaforseti Mannréttindadómstóls Evrópu en hann er fyrrum lagaprófessor frá Búdapest auk þess sem hann kenndi við lagadeild New York-háskóla. Sajo hefur skrifað mikið um innleiðingu nýrrar réttarríkis-hugsunar, lýðræðis og mannréttinda í þessum ríkjum eftir að kommúnist skipulag var aflagt.
András Sajo varaforseti Mannréttindadómstóls Evrópu.
Hér fyrir neðan má sjá opnunarræðu Herdísar á fundinum en í viðtölum við fjölmiðla í kjölfarið ítrekaði hún mikilvægi þess að dómarar væru ekki beittir þrýstingi. Mikil viðbrögð urðu í fjölmiðlum í Georgíu við þessum ummælum. Sjá hér, hér, hér, hér
INTERNATIONAL CONFERENCE ON THE OCCASION OF THE 20th ANNIVERSARY OF THE CONSTITUTIONAL COURT OF GEORGIA
“Constitutional Justice in Transnational Democracy:
Success and Challenges of Constitutional Review
in Georgia and Eastern Europe”
Batumi, Georgia
10-11 September 2016
Opening speech
Herdís Kjerulf Thorgeirsdóttir
Vice-President of the Venice Commission
President of the Republic of Georgia
President of the Constitutional Court,
Honourable Presidents and Judges,
Ladies and Gentlemen,
It is a pleasure for me to be in this beautiful and –– judging from the cranes and construction sites –– ever growing city of Batumi today, to celebrate the 20th anniversary of the Constitutional Court of Georgia.
Twenty years is not a long time for a country like Georgia, with its rich history stretching over hundreds of years. But, it nevertheless represents two decades!
During this time, the Constitutional Court of Georgia has been anything but idle, contributing to building a basis for the modern state of Georgia as well as tackling difficult problems and challenging situations.
These are not small feats!
Mr President,
Ladies and Gentlemen,
Europe is increasingly witnessing situations in which undue pressure is placed on constitutional courts by other branches of government.
This is done either by questioning their jurisdiction or by drafting new laws that limit their powers or aim to control their composition. This tests the limits of the constitution and sometimes even breaches them.
The Venice Commission strongly condemns this type of practice. It runs counter to the model of a democratic state based on the rule of law and governed by the principle of the separation of powers.
This does not mean – however – that state bodies are prohibited from publicly disagreeing with a judgment of the constitutional court. But, it does mean that when they do so, they make it clear that the judgment will still be implemented, regardless of whether or not they agree with it.
We have to remember that Constitutional justice is a key component of the checks and balances of a constitutional democracy.
Georgia had adopted controversial amendments to its Law on the Constitutional Court and its proceedings in April of this year. These amendments were, among others, intended to increase the quorum required for the Constitutional Court to decide cases and would have placed the Court in danger of becoming dysfunctional.
The President of Georgia asked the Venice Commission to prepare an urgent opinion on these already adopted amendments at the end of May, and the preliminary opinion for Georgia, which ensued, was then endorsed last June.
In this opinion, the Venice Commission reiterated that a constitutional courts’ main task is to identify and remove unconstitutional provisions from the body of legislation. This is why the continued functioning of these courts is a precondition for the legitimacy of State action in a democracy – and this principle has practical repercussions on the constitutional court’s composition and on its procedure.
On the basis of the opinion, the President of Georgia vetoed the amendments and this was accepted by Parliament.
I am pleased that a compromise could be reached on this matter, but it seems that the Amendments contributed to slowing down the Court in its work.
The Constitutional Court of Georgia is facing problems from within and without.
As regards the pressure from outside – and I cannot stress this enough – it should be clear that the decision-making process of judges must be independent and there should be sanctions against those who are seeking to influence judges.
As regards the functioning of the Court – it is crucial that judges exercise their work in a professional manner and, it must be underlined that they have a constitutional duty to do so. Deliberate failure to appear at hearings and deliberate failure to sign judgments that result in the Court not being able to function correctly, damage the Court’s work, effectiveness and, finally, its reputation. This is absolutely unacceptable.
I hope that the Court will cease to be a target both from within and from without and that constitutional justice in Georgia will once again be appreciated and respected.
Mr President,
Ladies and Gentlemen,
Today, we are gathered here to discuss constitutional justice in a transnational democracy: success and challenges of constitutional review in Georgia and Eastern Europe.
Transnational democracy – democracy beyond national borders – is a very topical subject. In an increasingly globalised world, where political and economic decisions made in one country often have an impact beyond this country’s national borders, it is helpful and important for common democratic standards to exist and to be observed.
The Venice Commission, which was set up after the fall of the Berlin Wall, bases its legal advice on European standards and on international experience that have been established and gathered since the Second World War by the Council of Europe in the fields of democracy, human rights and the rule of law.
States, for the most part, secure the protection of human rights through their constitutions. Since the constitutional court is known as the guarantor of the constitution, protecting constitutionally guaranteed rights, this court must be able to carry out its task effectively.
If the constitutional court has an individual complaints procedure, this strengthens the protection of fundamental human rights contained in the constitution.
The Venice Commission found that, in practice, in all countries, most human rights violations are not due to unconstitutional laws, but to unconstitutional individual acts. The full individual complaint procedure can remedy these types of violations, because it is the most comprehensive individual access to constitutional justice there is. This is why the Venice Commission considers it to be the best means of protecting individual rights.
I would therefore like to strongly encourage Georgia to introduce a full individual complaint procedure.
Your Court has the capacity and means both on the organisational and, most importantly, on the intellectual resource-level, to become a very effective filter, and more importantly, to become a cornerstone for the protection of human rights in Georgia.
Mr President,
Ladies and Gentlemen
Georgia and its Constitutional Court can, and should, be proud of the achievements they have accumulated over the past 20 years.
I am confident that democracy, the protection of human rights and the rule of law are going to continue to grow in your country.
I would like to end by congratulating the Constitutional Court of Georgia and all its judges and staff on this Court’s 20th birthday and wish it all the best for the future.
Thank you for your attention.
by Herdís Þorgeirsdóttir | 15.06.2016 | Almanak
The Venice Commission of the Council of Europe (CoE) has urged Turkish government to amend its law on the internet, which allows Turkish Information Technologies and Communications Authority (TİB) to block websites for “illegal or unsafe” content.
The law allows TİB to block websites for “illegal or unsafe” content such as piracy, pornography or terrorism without any authorization from the government or a legal office.
The Venice Commission strongly recommended the internet law be amended, saying, “The only measure provided … is the measure of access-blocking/removal of content which is the most severe measure possible on the Internet. The Law does not provide for any other measure, less intrusive than blocking/removal, as for instance, requirement of “explanation” from the interested party (content provider, web-site owner, etc.), “response”, “correction”, “apology”, “content renewal”, “access renewal” etc. … It is strongly recommended that Law No. 5651 be amended in order to introduce a list of less intrusive measures than access-blocking/removal of content, which would allow the judge to make a decent proportionality assessment and apply the least restrictive measures if they are considered as sufficient and adequate to reach the legitimate aim pursued by the restriction.”
“The requirement that the restriction must be ‘necessary in a democratic society’ should be introduced in the provisions concerning the four access-blocking procedures. The necessity of a fair balance between competing rights and interests when restricting the internet freedoms should be the guiding principle for the administrative authorities and the courts; an appropriate notification procedure should be put in place in all the access-blocking procedures under the law. The notification should contain information on the blocking measure and the reasons put forth by the authorities to justify the measure as well as existing remedies,” the commission said in a series of recommendations.
“The system of access blocking by a decision of the Telecommunications Directorate without prior judicial review [administrative measure] should be reconsidered. The balancing between competing rights and/or between the measure restricting the freedom of expression and the legitimate aims pursued by the measure should be carried out by a court and not by an administrative body,” the commission also said.
In a resolution on “the Protection of the safety of journalists and of media freedom in Europe,” adopted in late January 2015, the Parliamentary Assembly of the Council ofEurope (PACE) requested that Venice Commission “analyze the conformity with European human rights standards of Law No. 5651 as well as its application in practice.”
The commission completed the draft in late May and presented it in its plenary session held on June 10-11.
http://www.hurriyetdailynews.com/venice-commission-urges-ankara-to-review-internet-code.aspx?pageID=238&nID=100497&NewsCatID=351
