The Rule of Law is a current issue in European politics, which has gained visibility in recent times, both because of the presentation of the Annual Reports on the Situation of the Rule of Law in EuropeFootnote 1 and, unfortunately, because of the situation experienced in some Member States.

This theme was elected as one of the transversal priorities of the Portuguese Presidency of the Council of the European Union in the first semester of 2021, and, in line with the German Presidency that preceded it, Portugal brought to the political debate, in the Justice Council, specific aspects of the Rule of Law more directly related to Justice, such as the independence of the judiciary and the prevention and fight against corruption, two of the most important pillars on which the Report is structured.

Thus, the meeting of Ministers of Justice held on June 7th discussed the importance of well-functioning Public Prosecutors’ Offices, in particular for the proper functioning of the criminal justice system, the effectiveness of prosecutions and judicial cooperation in criminal matters between the Member StatesFootnote 2.

The case-law of the Court of Justice of the European Union concerning prosecutors, particularly in judicial cooperation in criminal matters based on the European arrest warrant, was also analysed. It follows that prosecutors must be independent of the executive, to be considered as a judicial authority competent to issue an arrest warrant.Footnote 3

This is also the line taken by the European Commission for Democracy through Law, known as the Venice Commission, when it states that “sufficient autonomy must be ensured to shield prosecutorial authorities from undue political influence”Footnote 4.

Also, during the Portuguese Presidency two international conferences on the Rule of Law were organised, in Coimbra and Lisbon, and in the same time the European Commission organised a seminar on the Rule of Law and the prevention of corruption for media representatives from Croatia.

Portugal has thus made an important contribution to keeping alive the discussion on this issue, which is not a new one. Among the many academic writings, the vast existing documentation, and the various definitions available, this one from the United Nations is worth mentioning:

“The rule of law is a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforces and independently adjudicated, and which are consistent with human rights norms and standards.”Footnote 5.

The separation of powers and the independence of the judiciary are essential elements to the functioning of the Rule of Law and for the protection of citizens against the arbitrary exercise of power. The principle of democratic legality and the respect and guarantee of fundamental rights constitute its inseparable founding blocks.

The concept of the Rule of Law is, for all these reasons, the foundation on which our democratic societies are built. It is part of the humanist history of Europe, as a common feature of European identity that was at the origin of the creation of the Council of Europe, as highlighted in the Preamble to the European Convention on Human Rights adopted in 1950.

It is also undeniably inscribed in the matrix of the European project. Alongside respect for human dignity, freedom, democracy, equality and respect for human rights, Article 2 of the Treaty on European Union enshrines the principle of the Rule of Law as a founding value of the Union, a value shared by the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between men and women prevail.

The Rule of Law is not only central to the construction of the European Union. It is critical to our common future. As the preamble to the Charter of Fundamental Rights of the European Union states, the Union has a duty to contribute to the preservation and to the development of these common values in its Member StatesFootnote 6.

The Rule of Law, democracy and fundamental rights are inseparable and structural references of our societies. Fundamental rights can only be guaranteed if effective judicial protection is ensured, if the principle of equality is respected, if there is freedom of expression and informed debate, with independent and responsible media and an active civil society.

The times we live call upon us to reaffirm the importance of the Rule of Law, the need to protect fundamental values and individual freedoms, as shown by the COVID-19 pandemic, with the compression of some rights and the restriction of freedom of movement, the worsening of inequalities that it led to, and the spread of populist discourses that have fuelled hatred, xenophobia and discrimination against minorities, and associated migration with issues like insecurity and crime.

The discussion on the effects of the pandemic on the Rule of Law is therefore unavoidable.

In Portugal, the constitutional framework of the state of emergency was put into practice for the first time in our democratic regimeFootnote 7. It became necessary to take difficult decisions and impose restrictions on the fundamental rights of citizens. At European level, the measures had a substantial impact on freedom of movement.

The Parliament remained in function and played a central role in defining and monitoring the state of emergency. The Ombudsman and the Public Prosecutor’s Office remained permanently operational, monitoring the observance of democratic legality and citizens’ rights.Footnote 8

The restriction of rights and the requirement for the normal functioning of institutions entails responsibility and control. The courts have also played an essential role in this context as guarantors of the Constitution and fundamental rightsFootnote 9.

The pandemic has also shown how the criteria of necessity and proportionality in the restriction of rights and the effective independence of the powers of the State are essential to guarantee the Rule of LawFootnote 10.

Alongside the pandemic reality, the digital transition has brought new opportunities to make fundamental rights more effective and more visible, due to the ease of access to knowledge and justice, but it has also posed new challenges. The rapid dissemination of online content, the vulnerability in which a fringe of the population has been placed regarding abuses, such as domestic violence, sexual abuse of children, the spread of terrorist and radicalisation propaganda and the increase of cybercrime, in general, are just a few examples.

The fight against crime, in particular organised crime, which constitutes a serious threat to the Rule of Law, to the values on which our democratic societies are based and to individual rights, is therefore an obligation for all States, and must be pursued through all admissible legal means.

It should also be recalled, in this field, the publication of the “Strategy to strengthen the application of the EU Charter of Fundamental Rights”, by the European Commission, in December 2020, to respond to current challenges and making the Charter a reality for citizens’ lives, by creating obligations for the European Union and the Member StatesFootnote 11.

The Portuguese Presidency of the Council of the European Union has made the defence and strengthening of the Rule of Law one of its priorities and therefore could not fail to also promote the implementation of this Strategy, also including it in the priority objectives in the field of Justice.

In that context the Ministers of Justice approved, in March 2021, the Council Conclusions on the strengthening of the Charter of Fundamental Rights, which identify a set of guidelines, with emphasis on training and on the role of the Court of Justice and the national courtsFootnote 12.

Due to its relevance, it stands out from these Conclusions:

  • The importance of universities and training schools for legal practitioners in promoting awareness of the Charter through academic research and training activities, in cooperation with the Union institutions, national authorities and civil society organisations.

  • The importance of CJEU case-law in interpreting and applying the Charter, which should be an integral part of the training of those professionals, as a way of raising awareness of the Court’s reading of the Treaties, thereby fully promoting the acquis of the Union.

  • The vital role played by the courts in upholding fundamental rights and the Rule of Law. Judges are the true guarantors of the Charter, since they are called upon to ensure the effective judicial protection of the rights enshrined in it.

The protection of Human Rights and individual freedoms can never be taken for granted. The Rule of Law, as a corollary of just and inclusive, participatory, and peaceful societies, is a reality under permanent construction that is sometimes the target of attacks on its foundations and needs to be protected.

Therefore, qualified judges, prosecutors and other legal professionals are essential to fostering the protection of citizens’ rights and the proper functioning of the Rule of Law.

It is also for these reasons that the European Strategy for Judicial Training for 2021–2024, assumes an important role in this field, in the construction and deepening of a European area of JusticeFootnote 13. The synergies created between this Strategy, the European Democracy Action PlanFootnote 14, the Citizenship ReportFootnote 15 and the Rule of Law Cycle in the Union allow to pursue a common and coherent approach for the promotion and protection of the European Union’s fundamental values.

It is up to everyone, members of government, parliamentarians, judges, prosecutors, lawyers, and academics to defend the Rule of Law and the separation of powers and to promote a democratic and humanist culture.

Protecting, promoting and strengthening the Rule of Law is not only a duty of public institutions, but also an imperative of citizenship that should concern us all.