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Venice Commission examines important issues on the international scene

Monday, October 17h 2011.

An opinion on a accusation of crime against humanity in Peru, Bolivia judicial reform and constitutional development of Egypt and Tunisia after the so-called "Arab Spring" were the main topics discussed at the 88th Plenary Session of the Venice Commission, which took place on 14 and 15 October in that city in northern Italy. The International Advisory of the Brazilian Federal Supreme Court (STF) attended the event.

By request of the Constitutional Court of Peru, the Venice Commission acted as amicus curiae in a criminal action that verifies the deaths of 111 prisoners during a riot in the prison "El Frontón" in 1986. In June of that year, prisoners simultaneously rioted and took control of several Peruvian prisons. The government of President Fujimori decreed a "state of emergency" in the territories in which there were prison riots and considered the prisons "restricted military zones", off-limits to access of any judicial and civil authorities. On June 19, the Navy ordered the demolition of a pavilion of "El Frontón", killing 111 people and injuring 34 others.

The Fujimori government decided the operation should be judged only by the Military Justice. In 2000, the Inter-American Court of Human Rights condemned the trial by military courts. The case was then taken to the Peruvian Constitutional Court, which requested the opinion of the Venice Commission in July 2011.

In its conclusions, the Commission's analysis found that in 1986 there was an international law already in place by which the events of "El Frontón" could be typified as crimes against humanity. Thus, concluded that the deaths of 111 prisoners may be subject to prosecution without violating the principle nullum crimen sine lege. As for the extension of penalties, the Commission's study found that international courts distinguish between who ordered and mere executors of the operation. Also pointed out that international experience can not have greater influence on definition of penalties, which should be determined on a case by case basis. The opinion was adopted by the Plenary of the Commission, which is made available to the court for further cooperation Peru.

The Commission also assessed the bill of the Bolivian Congress that establishes procedures for appeals to the Constitutional Court of that country. Israel Campero Mendez, representative of the Bolivian Plurinational Assembly, presented the outline of the project. He also spoke about the constitutional reform approved in 2009 in his country, which recognized, alongside the traditional positive law, the indigenous customs as sources of law. He explained that the so-called "indigenous rights" are recognized as normative sources to address private issues between members of indigenous communities, but do not apply to criminal matters and tax. He also pointed out that conflicts between the traditional law and the "indigenous rights" must be solved by the constitutional court of his country.

The representative made a brief statement on the elections for judges of the Constitutional Court, the superior courts and courts of first instance, scheduled for October 16. He explained that because of the modifications introduced by the Constitution of 2009, candidates must prove training and legal experience, can not be linked to political parties and are not allowed to advertise their applications. The old magistrates were unable to run in the elections.

When assessing the Bolivian bill, experts of the Venice Commission observed that many countries choose to let their own constitutional courts to define, through internal regulations, most of the rules of constitutional processes.

Yahim El Gamal, a former deputy prime minister of Egypt, presented a report of the political and constitutional developments of his country after the fall of President Mubarak. He noted that, after much hesitation, the Military Commission which governs the country since the events of last January decided that the text of the new Constitution will be drafted by a committee appointed by Parliament to be elected next year. The text will then be submitted to popular referendum.

The Egyptian leader acknowledged that the complexities of the political process in their country brings distrust to many observers. But guaranteed that Egypt will have a full democracy after overcoming the current difficulties, "in one, five, seven or ten years". The president of the Venice Commission Gianni Buquicchio said that after the Egyptian elections, the institution will return to offer technical support for the development of the democratic constitution of Egypt.

When making an assessment of the political situation in Tunisia, the jurist Ben Achdour emphasized the differences between the Tunisian and Egyptian cases. He pointed out that Tunisia shall elect its National Constituent Assembly in late October and that the Parliament will exercise simultaneously the constituent power and legislative power. He added that the new Constitution should be completed within one year.

The Venice Commission also analyzed consultations submitted by Ukraine, Armenia, Turkey, Bosnia and Herzegovina, Azerbaijan, Belarus, Montenegro and Georgia. The next Commission meeting is scheduled for December 16th and 17th.

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