The Venice Commission’s Rule of Law Checklist is one of the most influential soft-law instruments for assessing constitutional governance in Europe and beyond. Originally adopted in March 2016, this comprehensive framework has recently undergone a significant update, adopted in December 2025.

The revised text reframes the rule of law in light of the challenges that have emerged over the past decade. The result is a complex document that captures the defining features of today’s digital constitutionalism, where constitutional democracies and human rights are not only threatened by public authorities, but also by private actors governing spaces which are formally private but that practically function as public squares.

What is the Rule of Law Checklist?

The rule of law is widely recognized as one of the pillars of democratic states. Yet, it is hard to find a single definition that suits all legal systems where this principle exists. The concepts of Rechtsstaat, Estado de derecho, Stato di diritto, État de droit (la prééminence du droit), just to name some, cannot be reduced to mere translations of the same concept: the concrete meanings of these expressions do not perfectly overlap, as they originate from different legal traditions and cultures.

The Rule of Law Checklist was issued in 2016 by the Venice Commission, the Council of Europe’s advisory body on constitutional matters, exactly to distil the normative elements common to all these notions, thus creating a detailed assessment tool designed to evaluate the state of the rule of law in a given country. In order to do so, the Checklist translates the abstract principle of the rule of law into concrete parameters, to be applied taking into consideration constitutional and legal structures, the legislation in force, and the existing case law of a country. These parameters are organized under a set of benchmarks intended as a holistic guide to allow an accurate overall assessment, rather than a set of mandatory requirements applicable in every respect and in all circumstances (RoL Checklist 2025, para. 15).

The Checklist is primarily designed as an instrument intended for self-assessment for the States and their bodies, but it is also used and referenced by civil society organizations and international bodies, including the Council of Europe and European Union. The principal user of the Checklist is the Venice Commission itself, which uses it as the starting point when drafting country-specific opinions and other documents.

Why an update?

The 2016 version of the Checklist was not meant to be set in stone: it explicitly anticipated the need for periodic revisions, recognizing that it was “neither exhaustive nor final” (RoL Checklist 2016, para. 30). And, indeed, the 2016 Checklist was itself the evolution of another document, the Venice Commission’s 2011 Report on the Rule of Law. In 2016, the Checklist rearranged and reorganized the 2011 document (and specifically, its appendix, the “Checklist for evaluating the state of the Rule of Law in single states”). It could be said that the 2025 document is positioned in the continuum (as Kaarlo Tuori calls it) that already linked the 2011 Report and the 2016 Checklist. In turn, the 2025 document anticipates that the Venice Commission “will continue to review and update the Checklist on a regular basis” (RoL Checklist 2025, para. 18).

This update is motivated by the need to address some of the new challenges that the rule of law has faced in the last ten years.

First, we have witnessed severe rule of law backsliding in Europe and beyond, often taking the form of attacks on judicial independence and the system of check and balances. These attacks pose new questions on how to rebuild the rule of law without violating it in the restoration process (a challenge that has been called, with respect to Eastern European countries, “Transition 2.0”).

Second, technological transformation has generated entirely new rule of law challenges, unforeseeable in 2016. For instance, AI systems today fundamentally impact different aspects of the rule of law, such as (but not limited to) accountability of decision-makers, transparency, legal certainty, equality, and judicial independence.

Third, the rise of powerful private actors, especially digital platforms, has intensified concerns about the “horizontal” application of rule of law principles. While the 2016 Checklist already referred to the privatization of public functions, it did not focus on situations where private entities accumulate power comparable to state authorities without explicitly exercising delegated public functions.

Elements of continuity

This new version of the Checklist keeps the 2016 structure largely intact. This structural continuity implies that the five benchmarks of the Checklist (Legality, Legal Certainty, Prevention of Abuse of Powers, Equality and Non-discrimination, and Access to Justice) are preserved, though updated and expanded. At the same time, the update introduces two new benchmarks which will be discussed next: Checks and Balances and Constitutional Review.

The fundamental methodology stays the same: the Checklist is composed of specific and direct questions, supplemented by more discursive paragraphs. As such, the Checklist is more than a mere code or textbook on the rule of law; instead, it serves as a  dynamic and complex instrument that offers questions to evaluate the state of the art of the rule of law in a given country.

Methodological innovations

The updated Checklist introduces several methodological innovations.

Firstly, while the five original benchmarks have remained, their internal organization and structure have been altered to reflect their evolution over the last years. For instance, the standards set in the new document tend to be more detailed. This is because the Checklist recollects and systematises the standards that had already emerged from the activities of the Venice Commission and other bodies (bottom-up dynamic): ten more years of practice have led to more elaborated standards.

Secondly, it shows greater sensitivity to the horizontal dimension of the rule of law: “accumulation and exercise of power must be controlled and its abuse prevented at all levels, wherever the power resides, whether with public or private actors” (RoL Checklist 2025, para. 25, emphasis added).

This Checklist also embraces more clearly a “thick conception” of the rule of law. The rule of law is not assessed as a mere set of rules, but rather as a conceptual framework that takes into account the rule of law, human rights and democracy, that are described as interdependent (RoL Checklist 2025, para. 21).

Finally, the supranational dimension of the protection of the rule of law is even more emphasised than in the 2016 version, with various references to the need to ensure a multi-level protection of the rule of law (RoL Checklist 2025, paras. 24–26).

Integration of new technologies

One of the most visible innovations of the updated Checklist is the inclusion of considerations concerning new technologies across multiple benchmarks. Rather than creating an ad hoc section on the digital dimension of the rule of law, the Checklist deliberately integrates these considerations throughout the document. This places States’ positive obligations to regulate the digital sphere appropriately on a par with the more traditional obligations stemming from a vertical dimension of the rule of law.

For instance, under the Legality benchmark, there must be safeguards in force for the collection, storing and processing of data, both by the state and by private actors (RoL Checklist 2025, para. 42). Under the Legal Certainty benchmark, public authorities must disclose the introduction of AI systems and ensure reliability, cybersecurity, transparency and interpretability (RoL Checklist 2025, paras. 62–63). The Checklist also analyses the discriminatory effects of AI (Section E.5), and its impacts on judicial systems (Section F.4).

Two new benchmarks

Another major structural change is the elevation of Checks and Balances and Constitutional Review to independent benchmarks. This unprecedented emphasis reflects the growing centrality of these elements in the context of democratic backsliding in many countries.

The new Checks and Balances benchmark sets out guidelines both on institutional mechanisms and the regulation of civic space. Notably, the digital dimension of civic space now requires platforms with significant social impact to comply with rule of law standards and be subject to independent regulation and judicial review (RoL Checklist 2025, para. 87). Once again, this creates a positive obligation for States to establish appropriate normative frameworks and controls.

The Constitutional Review benchmark provides for detailed parameters and criteria for the assessment of constitutional courts (or equivalent bodies), including indications concerning the composition and appointment procedures, access to constitutional justice, and the effectiveness of their decisions. Interestingly, in the paragraph dealing with effectiveness of the decisions of constitutional courts or equivalent bodies, a whole paragraph stresses the importance of respecting the obligations stemming from international and supranational law, where the constitution so provides (RoL Checklist 2025, para. 151).

Two particular challenges to the rule of law

Two new sections have been introduced to address two specific challenges to the Rule of Law: the restoration of the rule of law and the need to ensure legal and civic education. The first explores the challenges that have emerged in Poland after the 2023 elections, and seeks to determine the criteria that must be respected when States try to restore the rule of law after democratic backsliding, in order to ensure that the restoration process itself does not break (again) the Rule of Law. This section condensates the principles emerged in four 2024 Opinions issued by the Venice Commission with regards to proposed laws aimed at reforming key institutions that had been reformed by the previous Polish government in a way deemed incompatible with the rule of law by most independent experts. The Venice Commission warns that the aim of restoring the rule of law should not be interpreted as a blank cheque for the States:

“any measure taken with a view to restoring the Rule of Law has to meet the overall requirements of the Rule of Law” (RoL Checklist 2025, para. 157).

The second new section emphasises the need to provide legal and civic education, both for public officials and the population:

“the Rule of Law can only flourish in a country whose decision-makers and the population in its entirety in all its diversity feel collectively responsible for its implementation, making it an integral part of their own legal and political culture” (RoL Checklist 2025, para. 19).

Conclusion

The updated Checklist is a timely reminder that the rule of law is not a static concept, but an evolving set of principles, values and guarantees that must respond to specific and evolving risks and realities. While preserving the overall structure of the previous version, the new text introduces important innovations and complements general principles with more specific rules, facilitating future (self-)assessments of compliance with the rule of law.

The two new benchmarks, in particular, will prove useful both as guidelines to (attempt to) prevent rule of law backslidings and as frameworks for guiding restoration efforts where backsliding has already occurred. The focus on new technologies and their impact on human rights and the rule of law anticipates some questions that will become even more central in the years ahead. In this respect, the Checklist also sets an example for other rule of law instruments: preserving the relevance of concepts such as constitutionalism and the rule of law requires taking their horizontal dimension seriously and developing safeguards capable of addressing the exercise of private power.