The Updated Rule of Law Checklist of the Venice Commission: Some Preliminary Remarks

Francesco Biagi

Francesco Biagi is Associate Professor of Comparative Public Law, University of Bologna Department of Legal Studies, and Deputy-Secretary General of the IACL

This post is part of the IACL Blog new series ‘Spotlight on the Venice Commission.’Previous posts in the series can be found here.

Origins, Methodology and Approach

At its Plenary Session on December 12-13, 2025, the Venice Commission adopted its Updated Rule of Law Checklist, a document which builds on the 2011 Report on the Rule of Law, and even more specifically on the 2016 Checklist. The process of updating the Checklist was launched in response to the Reykjavik Declaration, adopted at the 4th Summit of Heads of State and Government of the Council of Europe (May 2023), which called, among other things, for “raising the profile of, and strengthening, the Venice Commission, for example by giving more visibility and status to its Rule of Law Checklist and exploring ways the Organisation can better support the implementation of its recommendations.” The Updated Checklist was drafted by a 12-member working group led by Kaarlo Tuori. In the course of this update, a wide range of stakeholders were consulted, both within and outside the Council of Europe.

As was the case with the 2016 original Checklist, the updated version is “intended to provide a tool for assessing the Rule of Law in a given country from the viewpoint of its constitutional and legal structures, the legislation in force and the existing case law” (para. 15). The Checklist remains “a tool for a variety of actors who may decide to carry out such an assessment” (para. 16), including parliaments, governments, local authorities, civil society and international and regional organisations, such as the Council of Europe and the European Union. In this regard, one should recall that over the past decade the Checklist has been used as a “point of reference” (para. 9) not only in the opinions of the Venice Commission, but also in the resolutions of the Parliamentary Assembly of the Council of Europe, in the judgments of the European Court of Human Rights, as well as in the Rule of Law monitoring mechanisms of the European Union and the EU Court of Justice. Thus, for example, in the Annual Rule of Law Report that has been published by the EU since 2020, the standards for the assessment (mentioned in the Methodology) also include the standards of the Rule of Law Checklist of the Venice Commission.

From a methodological standpoint, the Checklist acknowledges the differences between the common-law notion of the rule of law and continental European concepts, such as Rechtsstaat, État de droit (prééminence du droit), estado de derecho and stato di diritto, but “aims to distil the common normative elements of these notions” (para. 15). Far from delving into theoretical debates on such concepts, the Checklist continues to follow a very practical approach, by asking, for each benchmark, specific questions with the aim of assessing whether a country meets the parameters required to be considered compliant with the standards of the rule of law. While conducting this assessment, the Checklist also takes into consideration the other key values of the Council of Europe, namely democracy and human rights, values that are “closely intertwined” (para. 21) with the rule of law. Although it retains a flexible structure that allows it to adapt to diverse contexts, the Updated Checklist is now, in many respects, more developed than the original 2016 version. This higher level of detail – which obviously reflects the numerous developments that took place between 2016 and 2025 – must be welcome, as it provides more precise answers and allows for better addressing specific issues.

As rightly pointed out by Rafael Bustos Gisbert, one of the members of the working group that drafted this updated version,

“…the correct use of the checklist always requires an overall assessment, not an individualized one. The checklist sets out the questions, and only an overall assessment of the answers will enable a diagnosis of the health of the rule of law at a given time and place. The analysis of the answers must therefore be systematic and comprehensive, never individualized and isolated. Thus, rules, conventions, or practices that make perfect sense in certain forms of implementation of the rule of law can be extremely harmful to it in different contexts where they perform completely different functions. In this way, the checklist is a guide for analyzing the health of the rule of law, not a kind of test with binary ‘right/wrong’ answers.”

Two New Benchmarks: Checks and Balances and Constitutional Review

In general terms, the Updated Checklist has largely maintained the structure of its predecessor. Most of the benchmarks have remained the same, namely legality, legal certainty, prevention of abuse of power, equality and non-discrimination, access to justice, and particular challenges to the rule of law. Two new benchmarks have now been included, i.e. checks and balances and constitutional review, with a view to better “provid[e] support for the Rule of Law and democracy and safeguard[e] against regression in these areas” (para. 7).

“Checks and balances” has become a key expression in the Updated Checklist. Indeed, it is mentioned 23 times, whereas in the original version it was mentioned only once. The Updated Checklist focuses on both institutional checks and balances and non-institutional mechanisms, in the form of an adequately protected civic space (including free media, independent academic institutions and non-governmental organisations) capable of monitoring institutions and contributing to deliberative decision-making. It should be stressed that now the Checklist gives special importance not only to the horizontal separation of powers, but also to the vertical separation of powers, as the rule of law “must be realised at all levels of public power “ (para. 26, emphasis added). According to the Checklist, “Self-governance at local and regional level not only promotes democracy but constitutes an integral element of institutional checks and balances. In this context, respect for the principle of subsidiarity is important: when an issue can more adequately be dealt with at local or regional level, central authorities should refrain from intervening” (para. 82). This focus on local government should not by any means be taken for granted, especially if one considers that this dimension had been overlooked for a long time by international and regional organizations assessing the state of democracy and rule of law. In this regard, it seems evident that the Updated Checklist has taken into serious consideration the recommendation of the Congress of Local and Regional Authorities of the Council of Europe in its 2024 Report, which urged the bodies of the Council of Europe to pay greater attention to the role played by local and regional authorities as “actors and guarantors of the rule of law.”

As for constitutional review, whilst in the original 2016 Checklist this topic was listed under the “Access to justice” benchmark and was not particulary developed, the Updated Checklist, as already mentioned, has raised constitutional review – which is defined as “a central feature of constitutional democracy and a determining criterion of the Rule of Law” (para. 132) – to a specific benchmark, providing extended guidance in four areas: a) constitutional review as a key element of the checks and balances mechanism; b) the composition of constitutional courts and the system of appointment of their members; c) access to constitutional justice; d) the effects of constitutional courts’ decisions. The requirements identified in the Checklist, which are all aimed at ensuring the independence and effectiveness of constitutional justice, could not be more timely. Indeed, illiberal-populist regimes – even in some European countries, such as Hungary and Poland – have captured constitutional courts, turning these bodies from counter-majoritarian institutions into bodies supporting the majority in power.

New Challenges: Growing Influence of Private Actors, Technological Developments, and Democratic Backsliding

The Updated Checklist reflects a series of (partially) new challenges that have become even more pressing in the decade between 2016 and 2025. These challenges include those arising from the growing influence of private actors, technological developments, and the regression of the rule of law. The conduct of private actors had already been addressed in the 2016 Checklist, but the updated version places greater emphasis on this topic. Increasingly, private entities and hybrid (state-private) actors perform public tasks, including in prison management, surveillance, counterterrorism, and access to health care and media. The Checklist requires that private actors, whose power is “comparable to and sometimes even exceeding that of public bodies” (para. 25), be subject to the “requirements of the Rule of Law and accountable in a manner comparable to that of public authorities”, and that “effective judicial review [be] available in relation to the acts and decision of such private actors” (A.3.ii).

Technological developments is a field that is often closely linked to the role played by private entities. It suffices to consider the role of online platforms. As highlighted in the Checklist, platforms with a major social impact “may be considered private actors whose decisions impact ordinary citizens similarly to those of public authorities”, and therefore it is necessary to establish “a responsibility framework for these platforms to ensure compliance with the rule of law” (para. 87). In a similar vein, in the case of private providers of AI systems, the Checklist requires compliance with a “governance framework that authorises and supervises the commercialisation of AI systems which could undermine the fundamental principles of the Rule of Law” (para. 30). A special focus on digital technologies can also be found in the benchmarks concerning legal certainty, equality and non-discrimination, and access to justice. In this latter field, the Checklist draws an important distinction between AI systems aimed at improving the administrative management of the judiciary and those intended for use by judges in the concrete exercise of judicial functions. The Checklist requires the former to be subject to the “general requirements for the use of AI systems by public authorities”, while the latter requires “careful implementation in order to guarantee citizens’ rights to a fair trial” (para. 127). Thus, for example, AI systems may assist judges, but fully automated decision-making is not permitted. Furthermore, risk assessment, pre-testing, and monitoring of AI systems need to be guaranteed. The law must also provide “accessible and effective remedies for human rights violations resulting from the operation of AI systems” (para. 130).

As for the rule of law regression, the Checklist addresses two main aspects. On the one hand, it identifies specific constitutional tools aimed at hindering a process of democratic backsliding. The introduction of the benchmarks on checks and balances and constitutional review (as discussed above) clearly serves this purpose. A strong emphasis is also placed on the legal guarantees and mechanisms that can protect the independence and impartiality of the judiciary. The Checklist focuses, for example, on judicial councils, which are responsible for making key decisions concerning the careers of judicial personnel, including appointments, promotions, transfers, and disciplinary sanctions. When addressing the composition and appointment systems of these bodies, the Checklist goes into specific details. It not only states that “both politicisation and corporatism must be avoided” and that an “appropriate balance should be found between judges and lay members” (para. 108), but it also specifies that “at least half [of the council’s members should be] judges elected by their peers” (F.1.iii.). Among the best-known cases of judicial councils that fail to comply with these standards, one can certainly recall those of Poland and Spain.

On the other hand, the Checklist devotes a specific section to the measures aimed at restoring the rule of law after a period of democratic deterioration. This is the kind of process that Poland (and hopefully, in the future, other “illiberal democracies” such as Hungary) has been experiencing since the October 2023 parliamentary elections, which saw the defeat of the Law and Justice party (PiS) and the victory of a coalition of parties led by Donald Tusk (who is currently serving as Prime Minister). These processes of “constitutional repair” (also known as “transitions 2.0” in the context of Central and Eastern Europe) present incredibly complex challenges both from a theoretical and practical standpoint, especially because “some balancing between different – apparently conflicting – elements of the Rule of Law” (para. 157) is often required. For example, the obligation to implement the decisions of international courts may justify a departure from the principle of res judicata (the finality of judgments). However, as explained in the Checklist, it is crucial that “safeguards are put in place to guarantee an adequate balance between the principles engaged (i.e. the right to a fair trial before an independent tribunal and the principle of res judicata as element of the right to legal certainty)” (para. 58).

A Largely Positive Assessment (With a Weak Point)

Overall, one cannot help but agree with those who have expressed a very positive assessment of the Updated Checklist. This new version has retained the strengths of the original 2016 Checklist (especially its clear structure, flexible nature and practical approach), adding some other valuable elements, namely greater guidance in several areas, the introduction of two specific benchmarks (i.e., checks and balances (with an emphasis on both the horizontal and the vertical separation of powers) and constitutional review), and a focus on some key challenges to the rule of law (namely, growing influence of private actors, new technologies, and rule of law regression). Furthermore, compared to the 2016 version, the Updated Checklist has strengthened its “proactive and not merely analytical character”, which is aimed at actively defending the rule of law against threats, regressions, and setbacks. The long-overdue update to the Checklist will ensure that this document remains a point of reference and continues to exert a strong influence both within and outside the Council of Europe.

There is only one aspect of the Updated Checklist that has left me somewhat puzzled: the section devoted to emergency situations. In such an important and sensitive field, I would have expected further guidance. However, “Exceptions in emergency situations”, which has remained a sub-section of the benchmark on legality, has not been particularly expanded compared to the 2016 Checklist, despite the fact that the 2016-2025 decade witnessed a number of serious emergencies of various kinds (including the COVID-19 pandemic). The Updated Checklist has now been only partially integrated with some requirements that can be found in the 2020 Venice Commission’s Report on the challenges posed by states of emergency, and in the 2024 Recommendation of the Committee of Ministers of the Council of Europe on the effective protection of human rights in situations of crisis. In a world where the exception is increasingly becoming the norm, a greater level of detail would have certainly been helpful. Expanding the section on emergency situations is something that the Venice Commission might consider doing in the future. Indeed, the Checklist itself underscores that it is “neither exhaustive nor final”, and therefore the Venice Commission “will continue to review and update the Checklist on a regular basis” in order to “cover new aspects or to provide greater particularity in respect of certain benchmarks” (para. 18). This addition would help to make the Checklist an even more powerful and useful tool.

Francesco Biagi is Associate Professor of Comparative Public Law, University of Bologna Department of Legal Studies, and Deputy-Secretary General of the IACL

Suggested Citation: Francesco Biagi, ‘The Updated Rule of Law Checklist of the Venice Commission: Some Preliminary Remarks’ IACL-AIDC Blog (19 February 2026) The Updated Rule of Law Checklist of the Venice Commission: Some Preliminary Remarks — IACL-IADC Blog