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Quod licet Jovi non licet bovi?: The Venice Commission as Norm Entrepreneur

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Abstract

The Venice Commission was created in 1990, as a part of a wider, generous project to help the former Communist countries with provision of Western expertise. The fledgling Eastern European democracies were meant to be able, in their effort to build constitutional, rule of law states, to tap at short notice on the knowledge and wisdom of an apolitical constitutional Areopagus. The Commission proved adroit at this task and its early track record generated a reputational snowball effect. More and more jurisdictions have joined it as members, observers or special status entities, spanning now almost all continents. Furthermore, the Commission has recently engaged in an intense, fast-pace effort at multi-layer cooperation, liaising with both other structures of the Council of Europe system and with counterparts in other international organizations (EU, OSCE/ODHIR, even the IMF). For instance, in the context of the recent EU ‘populist crises’, the EU Commission has increasingly relied on its Council of Europe colleague, in order to put out the populist fire with the help of a genuine expert in the field of ‘democracy and the rule of law’. In its newer role, however, the Venice Commission has often displayed an unsettling degree of militancy, also by way of cross-hybridizing policy imperatives and normative criteria. Its country reports and guidelines are sometimes difficult to reconcile with traditional constitutional understandings of various concepts and institutions (and, frequently enough, with one another). By the same token, such determinations reinforce, in a vicious circle, preexisting deficiencies of procedural, methodological, and institutional design. The paper offers a critical assessment of the Commission’s recent work, with a focus on recent Romanian developments, comparatively assessed.

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Notes

  1. On the notion of norm entrepreneurship, Sunstein (1996).

  2. Tunisia is only a particularly apposite example. See, on the constitution-making, expertise-provision work of the VC, a synopsis at https://www.venice.coe.int/WebForms/pages/?p=02_Reforms&lang=EN.

  3. C-216/18 (Celmer/LM), Grand Chamber Judgment of 25 July 2018. ECLI:EU:C:2018:586.

  4. ECtHR, 23 June 2016, Baka v Hungary, Application no. 20261/12.

  5. See, critical, Kosař and Šipulová (2018).

  6. The Statute of the Council of Europe was amended in 2002, to allow non-European states to join the Venice Commission as full members. Kosovo, although its statehood is firmly contested by a number of Council of Europe and EU member states, which is why it cannot be a member of the parent organization, is paradoxically a full member (state?) of the Venice Commission, http://www.venice.coe.int/WebForms/members/countries.aspx?lang=EN. The associate status of Belarus, which is undoubtedly a state, raises however even greater imponderables.

  7. See, on the concept and phenomenon of constitutional acceleration, Blokker (2017).

  8. Romania and Bulgaria are under a form of post-accession monitoring via the Cooperation and Verification Mechanism. The initial goal of this instrument was to assess progress in terms of remaining judicial and anticorruption reforms for a limited period of time (the CVM was scheduled to lapse, unless extended, in 2010, 3 years after accession). In the meanwhile, it has been extended, seemingly for an indefinite duration.

  9. Commission Recommendation of 20.12.2017 regarding the rule of law in Poland complementary to Commission Recommendations (EU) 2016/1374, (EU) 2017/146 and (EU) 2017/1520 C (2017) 9050 final.

  10. Most articles on the topic are brief, descriptive, often encomiastic pieces authored by Venice Commission members. A handful of studies approach the institution in a normative, more sophisticated key (in this second category, see, notably, de Visser (2015), identifying procedural and methodological flaws in the Commission’s work and Volpe (2016), arguing that a counter-majoritarian bias exists in the Commission’s solutions, manifested in standardized preferences along a number of dimensions, for instance the role of international law in domestic orders, where the Commission advocates for monistic reception of treaties, with the primacy of international over domestic law). But cf. Craig (2017).

  11. See Șerban 2015, arguing at p. 202 that “[t]he very existence of the CVM suggests that Romania and Bulgaria continue to be seen as ‘bottom of the heap’ and the only two countries in the EU that face problems of corruption and inefficient judiciaries” [reference omitted] and that (at p. 208) “[r]ule of law indicators in Romania are a political technology of control driven by EU’s Cooperation and Verification Mechanism, which reinforces a rule of law discourse focused on corruption and institutional reform that is disruptive and silences alternative discourses”.

  12. On the methodological implications (similar cases, prototypical cases), see Hirschl (2005).

  13. Frankenberg 2010.

  14. Cf. Craig, supra, at p. 70: “[T]he Venice Commission did not have to build its legitimacy from scratch. Association with the CoE meant that the Venice Commission was not just another organization among many seeking to promote human rights.”.

  15. http://www.venice.coe.int/WebForms/pages/?p=01_01_Statute.

  16. Sometimes, local civil society interlocutors are indicated, e.g., Opinion 833/2015, CDL-AD (2016)001 (on amendments to the act of the Constitutional Tribunal of Poland). Sometimes, general reference is made to discussions held by the delegation with “civil society” organizations, e.g., Opinion 892/2017, CDL-AD (2017)028, Poland-Opinion on the Act on the Public Prosecutor’s Office as Amended. In the recently published Preliminary Opinion on Draft Amendments to the Judiciary Laws in Romania, CDL-PI (2018)007, the phrase appears for instance often outside the purely technical mention of the role of the civil society representatives in the Superior Council of the Magistracy, to substantiate the report’s positions by reference to Romanian civil society positions or to indicate that parliamentary procedure must factor in not only the opposition but also ‘the civil society’ (par. 30). In polarized environments, given a multitude of non-governmental organizations which often speak with distinct voices or at least tonalities, the need to know transparently and with a minimal degree of accuracy, how and which views were selected or -respectively- should be integrated in the Commission’s assessment, is legitimate.

  17. For example, the positions of Romanian professional magistrates’ associations differ sometimes diametrically, with the National Union of Romanian Judges (UNJR) and the Association of Romanian Magistrates (AMR) or supporting most of the measures taken by the current coalition in terms of strictly judicial reforms (discussed infra, Sect. 3), whereas the ‘Judges’s Forum’ (Forumul Judecătorilor) routinely takes clearly pro-anticorruption, anti-governmental stands. This polarization duplicates, if translated into political divides, a center left/center right cleavage or a pro-presidential/pro-governmental division. Ideological polarization within the judiciary is of course common in the ‘self-government’ model of judicial organization (e.g., Italian correnti). The argument here is that selective citations, with a vague metonymical aureole (“civil society”) reinforce biases, most especially when sources are not precisely indicated.

  18. With the exception of the Andorran and Montenegrin representatives, all current members are lawyers, usually Constitutional Court justices, sometimes members of the ordinary judiciary, sitting in the upper tier common or administrative courts (e.g., court of appeal of Tallinn, Estonia, supreme courts of Brazil, Cyprus, and Iceland, the Dutch Council of State). Mexico is represented by the President of the Federal Electoral Tribunal. http://www.venice.coe.int/WebForms/members/default.aspx?lang=EN.

  19. Romania is not an exception in this respect. Tunisia and Moldova are represented by Ministers of Justice, Serbia by its Deputy (“assistant”) Minister of Justice, Poland by an undersecretary of state in the Justice Ministry, Ireland by the Deputy Director General in the Attorney General’s Office, Montenegro by the Minister of Foreign Affairs, Kyrgyzstan by an MP, Kazakhstan by the Deputy Executive Director of the Foundation of the First President of the Republic of Kazakhstan, Israel by its former deputy PM (and former Minister of Justice, Finance, Intelligence in various Israeli governments).

  20. The current President has worked in the Council of Europe since 1971 and, upon retirement, in 2009, was elected President of the Venice Commission (reelected in 2011, 2013, 2015). http://www.venice.coe.int/WebForms/pages/?p=cv_1376.

  21. CDL-AD(2015)044 Or. Engl. Rules of Procedure (revised), art. 14 (1) “Draft reports and draft opinions of the Commission are as a general rule prepared by one or more rapporteurs appointed by the President. 2. For specific issues working groups of members of the Commission may be established to which outside experts may be added as advisers. Representatives of other institutions or bodies may be invited to participate in such working groups.”.

  22. De Visser, supra, at pp. 995–996.

  23. De Visser, at p. 997: [T]he Commission has been known to reject institutional arrangements in place in mature constitutional orders as being inappropriate for younger democracies, with the argument that the latter lack the legal tradition that would allow such designs to work in a satisfactory manner. For such assessments to be accurately made, knowledge of the country’s legal framework must be complemented by a good understanding of its constitutional and political culture.

  24. CDL-AD(2010)004-e, Report on the Independence of the Judicial System Part I: The Independence of Judges adopted by the Venice Commission at its 82nd Plenary Session (Venice, 12–13 March 2010).

  25. See generally Volpe, supra.

  26. For all the ubiquity of the phrase in recent EU discourses and narratives, Eurocrats appear to be somewhat remiss when asked to elaborate on the meaning of this passe-partout concept. See the study by Burlyuk (2014), based on extensive interviews with high-ranking EU officials in Brussels and the Ukraine. An emblematic sample is provided at p. 31: ‘The rule of law starts up here [points at the temples]. It concerns the whole of the society… It is the unquantifiable thing. You just know it.’ (emphasis in original)).

  27. Often, the EU Commission translates fundamental law imperatives though the lens of policy imperatives, thus instrumentalizing them. An example should suffice. In pre-accession reports on Romania, the Commission insisted on the value of free speech and on decriminalizing libel and slander, since journalists, faced with criminal sanctions, would be less than effective in uncovering corruption (muckraking efforts had to be promoted, anticorruption rather than free speech in itself being the predicate value). After the accession, in its CVM monitoring, the Commission insisted a number of times on the lack of dissuasive sanctions and advocated various measures to rein in journalists attacking judicial independence (read: uncovering scandals in the anticorruption institutions, free speech having become in the meanwhile a liability in terms of the paramount EU good, namely, anticorruption).

  28. See Nergelius (2015).

  29. CDL-AD (2016)007.

  30. Grimm (2009).

  31. Craig supra at p. 70.

  32. CDL-AD (2017) 028, par. 7 (emphasis supplied, quotation omitted).

  33. The inference in the Venice Commission’s report is so evidently wrong that no citation is needed to refute it. An extensive account of the quandaries of prosecutorial “independence” during the times of Polish “socialist rule of law” can be found in Krajewski (2012).

  34. This is not to deny the truth of Kim Lane Scheppele’s ‘Frankenstates’ observation, particularly apposite in the Hungarian context. She argues that disparate Western institutions and practices, each of these functioning well in its respective context, may be combined in authoritarian jigsaw puzzles: “Legalistic autocrats become adept at culling the worst practices from liberal democracies to create something illiberal and monstrous when stitched together.” In Scheppele (2018), at p. 567.

  35. http://www.venice.coe.int/WebForms/pages/?p=01_01_Offices&lang=EN.

  36. Presidential elections also mobilize segments of the electorate which disproportionally vote centre-right, for instance, the sizable Romanian diaspora. The diaspora vote has for instance tipped the balance in the 2009 presidential elections.

  37. https://www.greens-efa.eu/en/article/document/the-costs-of-corruption-across-the-european-union/ Such "estimates of corruption costs" are however rough extrapolations of (extrapolations of) perceptions.

  38. According to a study by Ginsburg and Versteeg, rule of law indicators (WB, Freedom House, etc.) converge and correlate saliently only with the Transparency International CPI, irrespective of the way in which these indicators are normatively conceptualized. Versteeg and Ginsburg (2017).

  39. See, e.g., Humphreys (2011).

  40. See Parau (2015), arguing that a degree of interlocking had existed from the onset, by virtue of the fact that the Commission delegation recruited its Romanian staff and experts from among key political appointees in the center-right, outgoing Justice Ministry staff, right after the Democratic Convention lost elections to the PSD in 2000: “Both the Commission and its transnational elite allies became interlocked with certain domestic ideological tendencies, and the political parties that embodied them, and not others.” (at p. 428).

  41. Romania: Statement by the President of the Venice Commission, 07/08/2012 http://www.venice.coe.int/webforms/events/?id=1557.

  42. See the (according to the press release) unanimous appeal made on the 5th of June 2018 by the Constitutional Court (Plenary Session) to the Secretary General of the Council of Europe, the European Commission for Democracy through Law and the President of the Conference of Constitutional Courts, at https://www.ccr.ro/noutati/COMUNICAT-DE-PRES-308 (in Romanian) In the meanwhile, another scandal occurred, with one of the justices declaring publicly that, although the press release uses the term unanimity, she had not signed the letter since it was not in accord with what had been discussed in the plenary session. This new appeal to Venice occurs in the midst of a scandal, occasioned by a 6 to 3, controversial CCR decision obliging the president to issue the decree removing the head of the anticorruption prosecutors’ office. The procedure provided for by the Law on the status of judges and prosecutors, 303/2004, is that removal of a chief prosecutor before the end of the 3-year term can be requested by the minister of justice and is ‘accomplished by the President of Romania’, whereas the Superior Council of the Magistracy renders an advisory, non-binding opinion. According to the majority reasoning, the determining argument is that, according to the Constitution, Art. 132 (1), prosecutors are placed “under the authority of the minister of justice”, who, unlike the President, would have an explicit constitutional competence, so that the law must be interpreted accordingly.

  43. Iorgovan (1998).

  44. The Court consists in nine justices, appointed for desynchronized terms of office of 9 years by the President, the Chamber of Deputies, and the Senate (a third of the Court is renewed every 3 years). The Court’s jurisprudence often echoes the staggered reality of Romanian semi-presidentialism, with a judicature relatively favourable to President Băsescu in 2012, a Court less affable toward the current President, Klaus Iohannis, nowadays.

  45. See, on the vagaries of the Court’s jurisprudence, Selejan-Guțan (2016), at pp. 123–124. A table at p. 123, comparing the two impeachment referenda (2007, 2012), reveals both the inconsistencies and their practical effects.

  46. http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2012)026-e.

  47. DCC 732 din 10 iulie 2012, M.Of. 480 din 12.07.2012 (refusing to enter the merits of the revocation, holding that the resolution revoking the Ombudman was an “individual act” that concerned no constitutional values and principles, hence not subject to review). As mentioned, the Ombudsman was revoked by the Parliament with the argument that he had raised an objection against an ordinance unrelated to ‘his’ constitutional mandate.

  48. Cf. Avbelj (2015), accusing an ideologically-charged, partisan degree of attention in EU/Western narratives about democratization in the East-Central Europe: “What was really going on and the actual existing quality of the social capital on which the new liberal democratic frame was attached in these countries was of little concern, as long as the external interests were not threatened.” (at p. 290) More on point, see Vassileva, Radosveta: The Disheartening Speech by the President of Bulgaria’s Supreme Court Which Nobody in Brussels Noticed, VerfBlog, 2018/7/11, https://verfassungsblog.de/the-disheartening-speech-by-the-president-of-bulgarias-supreme-court-which-nobody-in-brussels-noticed/, Doi: https://doi.org/10.17176/20180711-152643-0 (arguing that in Bulgaria the Commission downplays in its CVM reports corruption scandals, because “Bulgaria’s corrupt government does not challenge Brussels’ authority”). Since Romania and Bulgaria are both under the CVM, and since benchmark are almost identically defined (Bulgaria is also monitored with respect to organized crime), comparisons and conclusions may be easily drawn.

  49. None of this is to deny that corruption is a problem in Romania but only to stress that anticorruption is not necessarily a master-key solution to the problem.

  50. Kosař (2016).

  51. Report from the Commission to the European Parliament and the Council on Progress in Romania under the Co-operation and Verification Mechanism (hereinafter CVM Report), COM(2014) 37 final).

  52. CVM Progress Report, Brussels, 28.1.2015 COM(2015) 35 final).

  53. CVM Progress Report, Brussels, 27.1.2016 COM(2016) 41 final).

  54. CVM Progress Report, Brussels, 25.1.2017 COM (2017) 44 final.

  55. For instance, a justice of the Constitutional Court was detained by the DNA and charged, 1 day after he voted in a unanimous decision (DCC 17/2015) declaring the Cybersecurity Law unconstitutional, in abstract, a priori review. The law, if promulgated, would have increased significantly the data retention powers of the SRI. The bill purported to ‘transpose’ the not yet adopted NIS Directive, although the directive insists on monitoring by a civilian data protection institution (the Romanian internal intelligence service, by evident contrast, is militarized). Three years later, in 2018, the justice was acquitted in first instance by the High Court. The two issues (arrest and vote) may of course hypothetically be fully unrelated and the rate of acquittals per se is prima facie unproblematic (Uzbekistan has a 0% acquittal rate, unindicative of a healthy democratic culture). But such high-profile coincidences abound. The more coincidences, the more they are hard to tabulate as accidental, incidental, anecdotal and one may establish correlations, causations, etc. The current rate of acquittals stands very high, at 36.3% but most of this percentage is attributed to partial decriminalization as a result of the abuse of office decisions recently rendered by the CCR (13.8 represent other grounds of acquittal). Conversely, one may wonder why such a large number of the indictments were based on the ‘malleable’ crime of abuse of office rather than standard corruption crimes (active and passive bribery, trafficking in influence, money laundering, and the like). A synthesis of the report is available at http://www.pna.ro/obiect2.jsp?id=376.

  56. According to data collected on wiretap warrants requested by the prosecution and approved by the county courts, tribunals, courts of appeal, and the High Court of Cassation and Justice by a human rights and constitutional law professor at the Babeș-Bolyai University in Cluj-Napoca, the total rate of approval is 93.44%, https://raduchirita.ro/interceptari.pdf At the High Court of Cassation, which issues national security warrants, the rate is 99.98% (4523 requests between 2010 and 2015, 4522 approved). ‘Prosecution biases’ are (rightly) castigated as problematic by the Venice Commission in its general report on prosecutors CDL-AD (2010)040) (reference, infra note 50 and associated text) but not in its special 2018 opinion on judicial organization in Romania.

  57. The a. conclusion of two recently declassified protocols, 00750/2009 and 09472/2016 (with respect to three specific provisions in the latter), between the General Prosecutor’s Office and the SRI and b. the lack of effective parliamentary oversight of the SRI were held by the Constitutional Court to have generated a constitutional conflict of a constitutional nature. A practical implication of the decision is that all courts must verify breaches of competence rules in pending criminal cases. CCR decision of 16.01.2019, yet unpublished. See press release at https://www.ccr.ro/noutati/COMUNICAT-DE-PRES-356.

  58. http://medelnet.eu/images/2018/Medel_-_Resolution_on_Romania.pdf.

  59. A scandal occurred in 2015, when General Dumitru Dumbravă, then head of the legal department of the SRI, declared that the judicial system constituted “a tactical field” for the Service, from the moment a complaint is lodged with the DNA to the rendering of a final judgement on appeal. Available at: https://www.juridice.ro/373666/dumitru-dumbrava-sri-este-unul-dintre-anticorpii-bine-dezvoltati-si-echipati-pentru-insanatosirea-societatii-si-eliminarea-coruptiei-v1.html.

  60. DCC Nr. 51 din 16 februarie 2016, M.Of. Nr 190 din 14.03.2016. In 2014, the last year for which a full report is available on the SRI website, the institution implemented 44.759 authorization acts (out of which 2762 national security warrants, the rest being technical surveillance warrants (requested by prosecutors) and 48 h intercepts on the basis of prosecutorial ordinances). In 2007, the figure had been 10.272. Available at https://www.sri.ro/rapoarte-de-activitate.

  61. The number of employees is confidential but, extrapolating from budgetary categories, is estimated often at over 10.000. Yearly budgets have constantly increased, to over 2,3 billion Romanian Lei in 2018 (approximately 492 million Eur, at the current exchange rate; Serviciul de Informații Externe (Foreign Intelligence Service) received in the same fiscal year 62 million Eur.). The amount compares favourably with the sensibly lower budget of the closest German equivalent of the SRI, the Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz, 348.9 million Eur in 2017) or even that of the Federal Intelligence Office (Bundesnachrichtendienst, 832.8 million in 2017), particularly if figures are pondered for relative GDPs (1:17, nominal), populations (1:4), perhaps also security risks (https://www.bundeshaushalt-info.de/#/2017/soll/ausgaben/einzelplan/0414.html). The SRI has by law (L. 51/91) the right to operate commercial enterprises, which generate revenue. The actual degree of involvement in the justice system is not yet certain but a number of professional associations have in the past accused the Service of recruiting magistrates as undercover collaborators.

  62. The budget of the SRI has increased fivefold between 2002 and 2018, in lockstep with the entrenchment and spike in the fight against corruption (see Mendelski 2019, forthcoming, on file with the author).

  63. Cf. Bobek (2008). On the general problematic of past and current intersections and implications of post-communist ‘juristocracy’, Czarnota (2018).

  64. Two separate reports were in fact adopted, namely a REPORT ON THE INDEPENDENCE OF THE JUDICIAL SYSTEM PART I: THE INDEPENDENCE OF JUDGES, CDL-AD(2010)004, and a REPORT ON EUROPEAN STANDARDS AS REGARDS THE INDEPENDENCE OF THE JUDICIAL SYSTEM: PART II—THE PROSECUTION SERVICE, CDL-AD (2010)040).

  65. CDL-PI (2018)007, at par. 67.

  66. DCC No. 358/2018, M. Of. nr. 473/7 iun. 2018.

  67. CDL-PI (2018)007, at par. 58. In the final report, Opinion No. 924/20 October 2018, CDL-AD (2018) 017, par. 61. The preliminary and the final reports differ marginally. In between, an ordinance (OUG 92/2018) was adopted, ostensibly to respond to criticism and placate the Commission before the final report. The implementation of the early retirement provision was deferred until 2020 and the recall procedure was mollified.

  68. Id., par. 69. Picasso reportedly remarked in retort to the observation that his portrait of Gertrude Stein did not resemble the model: “[N]ever mind, in the end she will manage to look just like it.” Roland Penrose, Picasso: His Life and Work (Berkeley & Los Angeles: UC Press, 1981 (3rd ed.)), at p. 118.

  69. This is not the first time when the Venice Commission requests impossible changes. In a 2003, the report on the revision bill strongly suggested deleting the word “national” in the definition of the state, although the Constitution forbids such amendments in no uncertain terms. According to Art. 152 (1) (at the time 148), “The provisions of this Constitution with regard to the national, independent, unitary and indivisible character of the Romanian State…shall not be subject to revision.” See CDL-AD (2003) 4 Opinion on the Draft Revision of the Constitution of Romania.

  70. See Opinion 930/13 September 2018, CDL-REF (2017)045 on draft changes to the Criminal Code and the Criminal Procedure Code, where the Venice Commission rightly points out deficiencies. The impugned provisions had by the time the opinion issued already been declared unconstitutional by the CCR. Some of those proposed changes to criminal legislation hewed very close to the current legal imbroglios of Social Democratic Party president (and House Speaker) Liviu Dragnea, currently undergoing trial on appeal, on a corruption charge. Likewise, an ordinance (OUG 13/2017) adopted in 2017 to redefine the crime of abuse of office by introducing a high damage threshold, clearly appeared to benefit the PSD President. Massive protests against the ordinance led to its abrogation. However, most of the recent amendments to the judiciary laws are, at least prima facie, different in nature. They do not profit a political faction but rather seek to reshuffle a status quo that has been demonstrably riddled with deficiencies (power aggrandizement, opaqueness, lack of accountability), by introducing internal checks and balances and increased stress on professional training and seniority.

  71. See for instance Ukraine’s “first ever corruption park”, opened by the External Action Service in Kyiv https://eeas.europa.eu/delegations/ukraine_en/43742/Corruption%20Park%20to%20open%20in%20Kyiv.

  72. https://www.coe.int/en/web/corruption/anti-corruption-digest/ukraine.

  73. In the 2018 CPI, the Ukraine ranks 120 out of 180 countries (up from 130 in 2017, however). To compare, Romania ranks 61st, slightly below Croatia (60), above Hungary, Greece and Bulgaria (among EU member states). At https://www.transparency.org/cpi2018.

  74. Popova 2012. In line with the tenor of my argument, however, Popova is sceptical of institutional solutions, especially in the short run: “[J]udicial independence is unlikely to come about through institutional engineering, especially in the short term. Independence-fostering formal institutions may trigger the expected response in behaviour if they are introduced in a brand-new system but they virtually never are.” (At. p. 146). As I understand her argument, a brand new system would mean an overhaul of the constitutional, legislative, and institutional foundations.

  75. See, generally, Szarek-Mason (2010).

  76. Schroth and Bostan (2004).

  77. CDL-AD(2014)011.

  78. See, for an authoritative academic rendition of this position, i.e., Rose-Ackerman (1999) and same (ed.), (2006).

  79. See Mendelski (2016).

  80. See Kosař (2016); Guarnieri (2013).

  81. Sberna and Vannucci (2013). See, on overlaps with Romanian developments, Mungiu-Pippidi (July 2018).

  82. See Perry Anderson, “Crisis in Brazil”, London Review of Books, Vol. 38 (8), pp. 15–22 (April 21, 2016) and “Bolsonaro’s Brasil”, London Review of Books, Vol. 41 (3), pp. 11–22 (February 7, 2019). Also see, the public letter of a group of Brazilian academics, protesting against what they perceive to be the lionizing of Sérgio Moro in the Western discourse; Moro is the public face of Brazilian anticorruption. The letter, sent to the host of an event at the University of Heidelberg, is available at https://amerika21.de/dokument/165521/sergio-moro-kritik-heidelberg.

  83. Moro 2004. Available at: https://www.conjur.com.br/dl/artigo-moro-mani-pulite.pdf.

  84. Id., at p. 59. As it eventually happened, Moro did shift to a political career, accepting to serve as Minister of Justice and Public Security in the government of newly-elected President Bolsonaro. Judge Moro had disqualified Bolsonaro’s main opponent, former President Lula, by pursuing anticorruption justice with all its accoutrements (the dawn arrest with press in attendance, the unauthorized phone tap**, the occasional leaks to the friendly media).

  85. See, supra, FN 55 and associated text.

  86. Ukraine-Opinion on the Draft Law on Anti-Corruption Courts and on the Draft Law on Amendments to the Law on the Judicial System and the Status of Judges (Concerning the Introduction of Mandatory Specialization of Judges on the Consideration of Corruption and Corruption-related Offences), CDL-AD(2017)020.

  87. CDL-AD(2017)020, par. 72.

  88. https://rm.coe.int/16807477d9#_ftn9.

  89. CDL-AD(2017)020, par. 23.

  90. By the same token, should one accept the interpretation of the Commission concerning the Ukrainian High Anti-Corruption Court, the position fits uneasily with the recent Venice report on Romanian judiciary laws amendments, particularly in what concerns the newly-established Special Prosecutorial Section for Investigating Crimes Committed by Magistrates. The latter is only a specialized prosecutorial body, with redress against almost all its solutions readily available in courts of general jurisdiction.

  91. BVerfGe 26, 186-Ehrengerichte.

  92. http://rai-see.org/judiciary-croatia-anti-corruption-institutional-framework/.

  93. http://rai-see.org/wp-content/uploads/2015/06/Legislation__Office-for-the-Suppression-of-Corruption-and-Organized-Crime.pdf.

  94. https://www.cmi.no/publications/5884-specialised-anti-corruption-courts-philippines.

  95. CDL-AD(2017)020, par. 75.

  96. “Procedure is to law what ‘scientific method’ is to science.” In Re Gault, 387 U.S. 1, 21 (1967).

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Acknowledgements

Research for this paper was undertaken within the project Heads of State (Princes, Kings and Presidents) and the Authoritarian Dynamic of Political Power in Romanian Constitutional History, funded by the Romanian Research Funding Agency (UEFISCDI), PN-III-P4-ID-PCE-2016-0013. I thank the organizer, Professor Adam Czarnota, the assigned commentator, Dr. Martin Mendelski, and all participants to the 2018 Oñati-IISL workshop on New Constitutionalism? New Forms of Democracy and Rule of Law Beyond Liberalism for insightful comments on an earlier version of the paper. I also want to give thanks to Professor Ronald Janse and the HJRL Board for an impeccable editorial process and to the three anonymous reviewers for their thorough and constructive criticism, which has significantly improved my argument. The usual disclaimer applies.

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    Bogdan Iancu

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Iancu, B. Quod licet Jovi non licet bovi?: The Venice Commission as Norm Entrepreneur. Hague J Rule Law 11, 189–221 (2019). https://doi.org/10.1007/s40803-019-00088-0

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