Centre for Civic Education (CCE) draws the public’s attention to the updated Rule of Law Checklist, recently adopted by the Venice Commission of the Council of Europe. This document represents a key reference tool for assessing the rule of law in practice across different legal systems. The Checklist serves as an authoritative benchmark for the institutions of the European Union and the Council of Europe, as well as for legislative, executive, and judicial authorities, and civil society organisations engaged in monitoring and evaluating rule of law standards.
The document covers the core principles of the rule of law, including legality and legal certainty, transparent law-making, and the clarity and predictability of legislation. It also examines mechanisms for protection against abuse of power, equality before the law and the prohibition of discrimination, as well as effective access to justice, with a particular emphasis on the independence and impartiality of the judiciary. The updated Checklist, which builds upon the 2016 version, retains the basic structure of the document while introducing a number of significant innovations. Particular emphasis is placed on the functioning of the system of checks and balances between the legislative, executive, and judicial branches of government, as well as on the role of constitutional courts and other oversight bodies in ensuring accountability, protecting fundamental rights, and safeguarding democratic governance.
The most significant amendment relates to the strengthening of the role of checks and balances and constitutional review, which are now set out as separate rule of law standards. This highlights their crucial importance in preventing the concentration of power, protecting democracy, and countering regression in the field of the rule of law, as stable institutions and effective oversight mechanisms constitute the foundation of any democratic society.
The rule of law requires strong and independent mechanisms for overseeing the work of public authorities and private actors vested with public powers, with a focus on protection against the abuse of discretionary authority and on cooperation between the branches of government. The separation of powers, particularly judicial independence, is a fundamental principle of constitutional democracy, while checks and balances represent an indispensable guarantee of the proper functioning of democratic institutions.
The system of checks and balances does not encompass only institutional frameworks, but also non-institutional mechanisms, primarily through a strong and protected civic space. Free and pluralistic media, independent academic institutions, and civil society organisations play a decisive role in monitoring the work of institutions and contributing to informed and high-quality decision-making. This presupposes full freedom of expression, assembly, and association, both in physical and digital environments, in order to ensure a civil society capable of realising its full potential.
The updated Checklist emphasises the independence and impartiality of the judiciary, along with the obligation to respect and enforce court decisions, and highlights the need for judicial reforms to strengthen protective mechanisms and prevent unjustified interference by the legislative or executive branches in the work of the courts.
Effective constitutional review is recognised as a pillar of democracy and the balance of power. The document underscores the need to strengthen, through normative frameworks, the regulation of the jurisdiction, composition, and appointment procedures of constitutional court judges, as well as their status and length of mandate, in order to ensure institutional stability and the independence of their work. It further assesses that constitutional review should be reinforced through a transparent and merit-based system for the selection of judges, clear rules on incompatibility of functions, and the establishment of effective mechanisms to prevent deadlocks in the appointment of constitutional court judges and to ensure continuity in the Court’s work. The appointment of constitutional court judges is identified as one of the recurring stumbling blocks, particularly in countries where judges are elected by parliamentary majorities, as was the case in Montenegro. Therefore, the document points to the need to identify solutions that prevent institutional crises, including allowing judges to remain in office until their successors are appointed.
The Checklist introduces detailed benchmarks regarding the impact of new technologies, particularly artificial intelligence, on the rule of law. It highlights the importance of personal data protection and the transparent and accountable use of AI systems, alongside effective oversight mechanisms to safeguard human rights and democracy. Targeted and mass surveillance must be regulated by law and limited by the principles of necessity and proportionality, while the use of artificial intelligence by public authorities must be transparent, reliable, and subject to oversight, including mandatory risk assessments and accessible legal remedies for citizens. In the judiciary, the application of artificial intelligence may contribute to greater efficiency, but only with a clear distinction between administrative support and judicial decision-making, which must remain the exclusive competence of judges.
The document also addresses rules governing conduct in states of emergency, emphasising that even in crisis situations the principles of necessity, proportionality, temporariness, and continuous parliamentary and judicial oversight must be respected, alongside the prohibition of abuse of emergency powers for the purpose of maintaining power or imposing any form of unjustified restriction of human rights.
Particular emphasis is placed on the importance of legal and civic education, free media, and an active civil society for the sustainable protection of the rule of law. Quality education of legal professionals, the strengthening of social awareness, and the development of critical thinking are crucial for building trust in institutions and safeguarding human rights. It is highlighted that civil society organisations, among others, should play a role in educating the public on these issues, while civic education directly contributes to the preservation of the rule of law and democracy, as these principles are lived through everyday practice and the engagement of all members of society.
The updated Rule of Law Checklist of the Venice Commission confirms that the rule of law is not merely a normative framework, but the foundation of a stable and just society, requiring strong institutions, independent courts, and the active participation of citizens in protecting democratic values. Its standards also represent an important point of reference for Montenegro in the process of strengthening institutional stability, constitutional functionality, and European integration.
Mira Popović Trstenjak, Democratisation and Europeanisation Programme Coordinator