EUROPEAN COURT OF HUMAN RIGHTS IN ACTION / Alla Tymofeyeva (ed.)

2. OPINIONS AND STUDIES The Venice Commission’s primary task is to provide States with legal advice in the form of opinions on draft national legislation or national legislation already in force. The opinions are prepared at the request of members states, Council of Europe organs (Secretary General, Parliamentary Assembly etc.) or one of the international organizations cooperating with the Venice Commission (OAS, EU or the OSCE). Since 1994, the Venice Commission has produced more than 600 opinions on more than 50 countries. Most of these opinions relate to the post- communist countries and about half of them pertain to just five countries (Ukraine, Bosnia and Herzegovina, Armenia, Moldova and Georgia). At the request of a constitutional court or the European Court of Human Rights, the Commission may also provide amicus curiae opinions, which usually answer concrete questions that courts formulate in their request. The Commission also co-operates with ombudspersons institutions through amicus ombud opinions, which mainly concern the legislation that governs the work of these institutions. The Venice Commission also adopts studies and reports, which usually deal with a topic of a general nature. Studies and reports may be produced at the request of a State, a Council of Europe body or international organization, or at the initiative of the Commissions’ members. Sometimes, studies and reports are prepared in cooperation with other international bodies, especially the ODIHR-OSCE. The Commission has produced more than 80 studies including, for instance, the Study on the Individual Access to Constitutional Justice (2010) or the Study on the Rule of Law (2011). The Commission has also, usually together with the ODIHR-OSCE, adopted several sets of Guidelines, such as the Guidelines on Political Party Regulation (2010), or the Guidelines on Freedom of Association (2014). The Venice Commission and the European Court on Human Rights both operate within the Council of Europe. They also share the overall aim of contributing to the protection and promotion of human rights, democracy and the rule of law. However, the two bodies differ in their mandate, the nature of their activities, the mode of their operation and their outputs. a) Mandate = the Commission deals with a general topic or, more frequently, with a specific piece of legislation. The ECtHR conversely considers individual cases. Whereas, the Court decides primarily on the basis of one legal instrument, the ECHR, the Commission can rely on any hard law (and even soft law ) instrument that it finds appropriate. b) Nature of activities = the Commission operates in an ex ante manner, assessing legal acts that might potentially give rise to violations of legal rules, rather than deciding cases of such alleged violations. Contrarily, the ECtHR operates in an ex post manner, dealing with instances of (alleged) violations of the ECHR. c) Mode of operation = the Commission works in a cooperative, consensus-seeking manner, seeing itself more as a partner in a dialogue than an adjudicator. Moreover, the Commission does not decide along binary lines (violation/non-violation, lawful/unlawful), which allows it to formulate its positions in a nuanced way. d) Outputs = all outputs adopted by the Commission (opinions, studies) are non-binding in nature. Nonetheless, the Court adopts opinions that are legally binding on the state concerned and, one can argue, on other State Parties to the ECHR as well. Despite these differences or maybe due to them, the Venice Commission and the European Court of Human Rights complement each other in their work rather than being in competition with one another. For the Commission, the European Convention and the case-law of the 3. VENICE COMMISSION AND THE EUROPEAN COURT ON HUMAN RIGHTS

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EUROPEAN COURT OF HUMAN RIGHTS IN ACTION