Report | Doc. 13193 | 24 April 2013

Challenge on procedural grounds of the still unratified credentials of Mr Andriy Shevchenko (Ukraine, EPP/CD)

Committee on Rules of Procedure, Immunities and Institutional Affairs

Rapporteur : Ms Nataša VUČKOVIĆ, Serbia, SOC

Origin - Reference to Committee: Assembly decision of 22 April 2013. 2013 - Second part-session

Summary

On 22 April 2013, the still unratified credentials of Mr Andriy Shevchenko were challenged on procedural grounds, in accordance with Rule 7 of the Rules of Procedure of the Parliamentary Assembly, on the ground that he was replacing, in the Ukrainian delegation, Mr Serhiy Vlasenko, who had been deprived of his national parliamentary mandate under a judicial decision which may have been politically motivated. In accordance with the Assembly’s Rules of Procedure, these credentials were referred to the Committee on Rules of Procedure, Immunities and Institutional Affairs.

The Committee on Rules of Procedure considers that the procedural grounds for challenges set out in Rule 7.1 of the Rules of Procedure of the Assembly do not apply in the present case, and that the credentials of Mr Andriy Shevchenko are in accordance with Rule 6 of the Rules of Procedure of the Assembly.

In pursuance of Article 25 of the Statute of the Council of Europe, no representative can be deprived of his or her mandate during an Assembly session without the latter’s consent. Consequently, the Assembly is invited to take a formal decision on the deprivation of Mr Serhiy Vlasenko’s mandate.

The committee therefore proposes that the Assembly deprive Mr Serhiy Vlasenko of his mandate and ratify the credentials of Mr Andriy Shevchenko.

A. Draft resolution

(open)

1. On 22 April 2013, the still unratified credentials of Mr Andriy Shevchenko (Ukraine, EPP/CD) were challenged by Mr Pieter Omtzigt on procedural grounds, in accordance with Rule 7 of the Rules of Procedure of the Parliamentary Assembly, on the ground that he was replacing, in the Ukrainian delegation, Mr Serhiy Vlasenko, who had been deprived of his national parliamentary mandate under a judicial decision which may have been politically motivated.

2. The Assembly recalls that, in pursuance of Article 25 of the Statute of the Council of Europe, no representative can be deprived of his mandate during an Assembly session without the latter’s consent. This provision is designed to protect elected representatives against any arbitrary authority, in particular in the case of prosecution possibly leading to the revocation of their mandate for reasons of opinions expressed or positions defended in the Assembly. Both the Statute of the Council of Europe and the Rules of Procedure of the Assembly stipulate that national parliaments are entitled to fill vacant seats in the Assembly only if the vacancy is due to death, resignation or parliamentary elections. This is why the possibility of filling vacant seats, in all other cases, is accompanied by the major safeguard set out in Article 25.b of the Statute of the Council of Europe, which lays down that the Assembly is the sole authority which can decide on the revocation, during a given session, of the mandate of one of its members.

3. The Assembly notes that the appointment of Mr Andriy Shevchenko, whose as yet unratified credentials have been challenged, to the seat which became vacant following the revocation of Mr Serhiy Vlasenko’s national mandate by the Ukrainian High Administrative Court, has been examined by the Committee on Rules of Procedure, Immunities and Institutional Affairs in the light of the procedural requirements set out in Rule 7 of the Rules of Procedure, with reference to which the said credentials have been challenged. It has concluded that Mr Andriy Shevchenko belongs to the same political faction, known as “Batkivtshchyna”, as Mr Vlasenko. Furthermore, he was appointed to replace Mr Serhiy Vlasenko by the President of the “Batkivtshchyna” faction in conformity with the procedures of the Verkhovna Rada, and his appointment is not incompatible with the fair representation of political groups and parties in the current composition of the Verkhovna Rada.

4. The Assembly recalls its position that, where an Assembly member has been deprived of his mandate under a final judicial decision, and provided that all domestic remedies have been exhausted, there is a presumption that the decision applies mutatis mutandis to the Assembly, in the light of Article 25.a of the Statute of the Council of Europe, which stipulates that “the Assembly shall consist of Representatives of each Member, elected by its Parliament from among the members thereof, or appointed from among the members of that Parliament”. It considers, moreover, that it should not appraise, in the place of either the Verkhovna Rada or the European Court of Human Rights – which has been formally seized –, the validity of the judicial decision which is at the origin of the revocation of Mr Vlasenko’s mandate in the light of the relevant national legislation, regulations and procedures or the provisions of the European Convention on Human Rights.

5. The Committee on Rules of Procedure, Immunities and Institutional Affairs has also considered the various objections raised, and has established that Mr Andriy Shevchenko’s appointment to the Parliamentary Assembly was in conformity with Article 25 of the Statute of the Council of Europe and Rule 6 of the Rules of Procedure of the Assembly. Furthermore, the Assembly notes that substantive violations of the Statute of the Council of Europe, whose obligations are binding on member States, are governed by a separate procedure which was not initiated by the challenging parties at the opening of the part-session.

6. Consequently, in view of these circumstances, the Assembly decides to deprive Mr Serhiy Vlasenko of his mandate and to ratify the credentials of Mr Andriy Shevchenko.

B. Explanatory memorandum by Ms Vučković, rapporteur

(open)

1. Introduction

1. On 22 April 2013, the as yet unratified credentials of Mr Andriy Shevchenko (Ukraine, EPP/CD) were challenged by Mr Pieter Omtzigt (Netherlands, EPP/CD) on procedural grounds, in accordance with Rule 7 of the Rules of Procedure of the Parliamentary Assembly, on the ground that he was replacing, in the Ukrainian delegation, Mr Serhiy Vlasenko, who had been deprived of his national parliamentary mandate on a judicial decision which may have been politically motivated. In pursuance of Rule 7.2, the Assembly referred, without debate, the credentials to the Committee on Rules of Procedure, Immunities and Institutional Affairs.

2. The committee must therefore consider whether Mr Andriy Shevchenko’s appointment procedure:

complied with the principles set out in Article 25 of the Statute of the Council of Europe in conjunction with Rule 6 of the Rules of Procedure of the Assembly; and

was in line with the principles set out in Rules 7.1.a and 7.1.b of the Rules of Procedure of the Assembly.

3. Under the terms of Rule 7.2, “[i]f the Committee concludes that the credentials should be ratified, it may submit an opinion to the President of the Assembly, who shall read it out in the plenary sitting of the Assembly or the Standing Committee, without debate. If the Committee concludes that the credentials should not be ratified or that they should be ratified but that some rights of participation or representation should be denied or suspended, the Committee’s report shall be placed on the agenda for debate within the prescribed deadlines”.

2. The applicable provisions and their interpretation

4. Under the terms of Article 25 of the Statute of the Council of Europe:

“a. The Consultative (Parliamentary) Assembly shall consist of Representatives of each Member, elected by its Parliament from among the members thereof, or appointed from among the members of that Parliament, in such manner as it shall decide, subject, however, to the right of each Member Government to make any additional appointments necessary when the Parliament is not in session and has not laid down the procedure to be followed in that case. Each Representative must be a national of the Member whom he represents, but shall not at the same time be a member of the Committee of Ministers.

The term of office of Representatives thus appointed will date from the opening of the Ordinary Session following their appointment; it will expire at the opening of the next Ordinary Session or of a later Ordinary Session, except that, in the event of elections to their Parliaments having taken place, Members shall be entitled to make new appointments.

If a Member fills vacancies due to death or resignation, or proceeds to make new appointments as a result of elections to its Parliament, the term of office of the new Representatives shall date from the first Sitting of the Assembly following their appointment.

b. No Representative shall be deprived of his position as such during a Session of the Assembly without the agreement of the Assembly.

c. Each Representative may have a Substitute who may, in the absence of the Representative, sit, speak and vote in his place. The provisions of paragraph a above apply to the appointment of Substitutes.”

5. Under the terms of Rule 10 of the Rules of Procedure of the Assembly on the duration of the term of office of representatives and substitutes:

“10.1. The term of office of representatives and substitutes shall begin when their credentials are ratified.

10.2. Subject to the provisions of paragraphs 3 and 4, the term of office of representatives and substitutes shall expire at the opening of the next ordinary session.

10.3. Following parliamentary elections, the national parliament concerned or other competent authority shall make appointments to the Assembly within six months of the election. …

10.4. If a seat becomes vacant through death or resignation, it may be provisionally filled in the Assembly by a substitute, and in a committee by another representative or substitute, of the same nationality, pending a new appointment by the national delegation concerned.”

6. A legal opinion prepared in 1997 for the Committee on Rules of Procedure by the Directorate of Legal Affairs of the Council of Europe on the “terms of office of Assembly members who have lost their seat in their national parliament”

presents the following conclusions regarding the interpretation of these provisions:

“a. the loss of the seat in the national parliament leads to a quasi-automatic loss of the seat in the Assembly only if it is due to death, resignation or new legislative elections;

b. in all other cases, when the member was deprived of his seat and did not lose it due to death, resignation or elections, the agreement of the Assembly is required.

c. there is a principle that the composition of the Assembly should be based on membership in a national parliament (Art. 25.a) but this principle applies strictly only to the appointment of members for the full session. In case of a later replacement, the Assembly may take the decision to maintain the member on the basis of unspecified criteria.

2. The Rules of Procedure of the Assembly, in particular Rules 6 and 7, are based on Art. 25 of the Statute. …

However, no express provision determines according to which criteria the Assembly should give or withhold its agreement under Art. 25.b of the Statute. There remains therefore a large room for the political discretion of the Assembly.”

3. Revocation of the parliamentary mandate of the Ukrainian opposition MP Mr Serhiy Vlasenko

7. Over the past few years, Mr Serhiy Vlasenko has played a frontline role in defending the former Ukrainian Prime Minister Ioulia Timochenko in her different judicial proceedings. He was a member of the Verkhovna Rada in the previous legislature. Following the parliamentary elections held in Ukraine on 22 October 2012, Mr Serhiy Vlasenko was re-elected on the list of the “Batkivtshchyna” party, which currently holds 99 seats out of a total 450 (elected either by proportional representation list ballot or by majority constituency-based voting).

8. Mr Serhiy Vlasenko has been a member of the Parliamentary Assembly since 21 January 2013. His status in the delegation is that of substitute registered as a representative of the “Batkivtshchyna” political faction, as stipulated in the letter of 14 January 2013 sent to the Assembly on 15 January 2013 by the Speaker of the Verkhovna Rada of Ukraine, Mr Volodymyr Rybak, communicating the membership of the Ukrainian delegation to the Parliamentary Assembly for the duration of the 2013 session.

9. On 28 February 2013, the Speaker of the Verkhovna Rada of Ukraine, drawing on the opinion of the Committee on Rules of Procedure, Parliamentary Ethics and the Functioning of Parliament challenging the concurrent holding by Mr Serhiy Vlasenko of his parliamentary mandate and his activity as a lawyer, lodged the relevant court application.

10. On 6 March 2013, the High Administrative Court revoked Mr Serhiy Vlasenko’s parliamentary mandate on the grounds that he had omitted to declare an incompatibility between the exercise of a legal practice and his parliamentary mandate to the Commission on Bar Qualification and Discipline, in accordance with the transitional provisions of the Law on the Legal Profession and Bar Activity within 90 days from 15 August 2012, the date of its entry into force. This final domestic decision is not subject to an appeal before the ordinary courts or the Court of Cassation.

11. On 18 March 2013, the Central Electoral Commission appointed Mr Roman Stadniychuk, who was number 65 on the “Batkivtshchyna” party list, as a member of parliament. Mr Stadniychuk was sworn in the next day.

12. On 5 April 2013, the President of the “Batkivtshchyna” faction, Mr Arceniy Yatsenyuk, submitted an application to the Chairperson of the Verkhovna Rada Foreign Affairs Committee, M. Kaluyzhniy, to replace Mr Serhiy Vlasenko with another member of the “Batkivtshchyna” faction, Mr Andriy Shevchenko. Having examined this application at its meeting on 16 April 2013, the Committee approved this change to the delegation.

13. On 17 April 2013, the Speaker of the Verkhovna Rada communicated this decision to the President of the Assembly.

4. Reactions within the European institutions following the revocation of Mr Serhiy Vlasenko’s mandate

4.1. Council of Europe

14. On 7 March 2013, the corapporteurs for Ukraine of the Assembly’s Monitoring Committee, Mailis Reps (Estonia, ALDE) and Marietta de Pourbaix-Lundin (Sweden, EPP/CD), and the rapporteur of the Committee on Legal Affairs and Human Rights on “Keeping political and criminal responsibility separate”, Pieter Omtzigt, jointly expressed their deep concern and disappointment at the revocation of the parliamentary mandate of Ukrainian opposition MP Serhiy Vlasenko.

15. On the same day, the Secretary General of the Council of Europe, Thorbjørn Jagland, asked the Ukrainian authorities to explain on what legal basis Mr Serhiy Vlasenko, an opposition member of parliament, had been stripped of his parliamentary mandate.

16. Finally, on 27 March 2013, the Committee of Ministers, at its 1166th meeting, examined the explanations communicated by the Minister of Justice, Mr Oleksandr Lavrynovych, concerning the revocation procedure.

4.2. European Union

17. On 6 March 2013, the spokespersons of Catherine Ashton, High Representative of the European Union for Foreign Affairs and Security Policy and Vice-President of the European Commission, and Štefan Füle, European Commissioner for Enlargement and European Neighbourhood Policy, made a declaration in which they said that they were deeply concerned by recent legal proceedings leading to possible annulment of the parliamentary mandates of two members of parliament on contested legal grounds. They thus gave particular attention to the situation in relation to the case of Mr Serhiy Vlasenko, and to the possible revocation of his parliamentary mandate, and called on the Ukrainian authorities to address this situation so as to avoid creating any perception of the misuse of the judiciary for political purposes. According to them, legal proceedings which came months after the confirmation of the final election results raised political and legal concerns.

5. Assessment

18. The verification of credentials carried out by the Committee on Rules of Procedure on the occasion of the examination conducted in pursuance of Rule 7 of the Rules of Procedure does not enable it to rule on any disagreements that exist within national parliaments between political parties, or those within a single political force. It seeks to establish whether the formal requirements set out in Rule 7.1, in this case in sub-paragraphs a and b, have been complied with. In this context, the Committee on Rules of Procedure should also examine whether the General Agreement on Privileges and Immunities has been complied with in so far as the expulsion from a national parliament was not related to an act committed in the capacity of a member of the Assembly, and, on the other hand, whether the new appointment jeopardises the balance of the fair representation of political forces within the delegation concerned.

5.1. Consequences of the loss of mandate of member of the national parliament in the context of compliance with the applicable provisions of the Statute, particularly Article 25

19. In pursuance of Article 25 of the Statute, whatever arrangements are made by a member State for the appointment and renewal of its delegation, the mandate of a representative begins with the opening of the ordinary session following his or her appointment and expires only on the opening of the following ordinary session. However, Article 25 of the Statute provides for the possibility of the filling of seats which have become vacant following a representative’s resignation or following a death. Furthermore, if parliamentary elections take place during an ordinary session, the national parliaments have to make the appointments of the members of their delegations to the Assembly within the six months following those elections.

In all these cases, the Assembly’s consent is essential for the mandate of a member of the Assembly to be revoked in the course of the parliamentary year.

20. The position of the Parliamentary Assembly, prior to 1997, was to consider that, other than in the event of a death, resignation or fresh appointments following elections, the mandate of a member of the Assembly whose credentials had been duly ratified remained valid for the rest of the parliamentary year, up to the opening of the following ordinary session.

However, in 1997, the Assembly for the first time had to deal with a case in which a member of the Assembly was stripped of his national mandate ipso jure following a court decision,

giving it the opportunity to specify its position in this respect. The view was taken that, in the event that a member has been stripped of his or her mandate by a court decision, and to the extent that all domestic remedies have been exhausted, there is a presumption that the decision applies mutatis mutandis to the Parliamentary Assembly.

This interpretation would also chime with the spirit of Article 25.a, which stipulates that “[t]he Consultative [Parliamentary] Assembly shall consist of Representatives of each Member, elected by its Parliament from among the members thereof”.

21. Nevertheless, it was decided that the final decision on revocation of a mandate was for the Assembly to take in pursuance of Article 25.b of the Statute and on the basis of a report by the Committee on Rules of Procedure.

5.2. Link between the loss of mandate as a member of the national parliament and compliance with the General Agreement on Privileges and Immunities of the Council of Europe

22. The immunities of Assembly representatives and substitutes are defined by the following texts:

Article 40.a of the Statute of the Council of Europe:

“… representatives of members … shall enjoy in the territories of its members such privileges and immunities as are reasonably necessary for the fulfilment of their functions. These immunities shall include immunity for all representatives to the Consultative (Parliamentary) Assembly from arrest and all legal proceedings in the territories of all members, in respect of words spoken and votes cast in the debates of the Assembly or its committees or commissions”;

the General Agreement on Privileges and Immunities of the Council of Europe, of 2 September 1949, and the Protocol thereto of 6 November 1952, which supplement Article 40.a of the Statute and introduce two kinds of immunity:

Freedom from liability of members of parliament:

Article 14: “Representatives to the Consultative (Parliamentary) Assembly and their substitutes shall be immune from all official interrogation and from arrest and all legal proceedings in respect of words spoken or votes cast by them in the exercise of their functions.”

Inviolability of members of parliament:

Article 15: “During the sessions of the Consultative (Parliamentary) Assembly, the Representatives to the Assembly and their substitutes, whether they be members of parliament or not, shall enjoy:

a. on their national territory, the immunities accorded in those countries to members of parliament;

b. on the territory of all other member States, exemption from arrest and prosecution.”

23. The members of the Parliamentary Assembly benefit from two kinds of protection, namely freedom from liability, guaranteed by Article 14, which exempts them from any judicial proceedings – not only criminal, but also civil and administrative – on the grounds of an opinion expressed or a vote cast in the exercise of their parliamentary functions, and inviolability, exemption from arrest, detention or prosecution.

24. Article 5 of the Protocol to the General Agreement states that “[p]rivileges, immunities and facilities are accorded to the representatives of members not for the personal benefit of the individuals concerned, but in order to safeguard the independent exercise of their functions in connection with the Council of Europe …”. Furthermore, as stipulated by Rule 66 of the Rules of Procedure, these immunities are granted in order to preserve the integrity of the Assembly and to safeguard the independence of its members in exercising their European office.

25. It should be emphasised in this respect that Mr Serhiy Vlasenko is a political ally and legal adviser of the imprisoned former Prime Minister Yulia Tymoshenko. Inter alia he represents her before the European Court of Human Rights. However, it is difficult to argue that the revocation of Mr Serhiy Vlasenko’s mandate was linked to an act committed by him in his capacity as a member of the Assembly. Consequently, the rapporteur cannot conclude that the revocation of his mandate was linked to an act committed by Mr Serhiy Vlasenko in his capacity as a member of the Assembly.

5.3. Compliance with the requirement for fair representation of political parties or groups within the national delegation

26. The concept of fair representation of political parties and groups has progressively been fleshed out through several Assembly resolutions.

On the occasion of the debates which gave rise to these resolutions, it was pointed out that the Assembly should avoid getting involved in the details of the proportions in the political composition of national parliaments’ delegations. The Assembly in principle merely has to verify that the major political tendencies present in a given parliament are represented, and that the delegation comprises, in particular, representatives of parties which are in the opposition.

For example, during the Assembly debate of 29 January 1986 on the subject of the amendment of Articles 14 and 25 of the Statute of the Council of Europe, the rapporteur said that “this does not mean that the membership of delegations should be determined with the exactitude of a medical prescription but that we should be given the assurance that delegations to the Assembly are truly representative of their parliaments and of the political spectrum in their respective home countries. ... This is a very important provision that will help to enable us truly to speak on behalf of our own countries.”

27. The Committee on Rules of Procedure notes that Mr Andriy Shevchenko, whose credentials, not yet ratified, have been challenged, belongs to the same political group, “Batkivtshchyna”, that Mr Serhiy Vlasenko belonged to. Furthermore, he has been appointed as Mr Serhiy Vlasenko’s substitute by the chair of the “Batkivtshchyna” faction, in accordance with the procedures, and his appointment does not call into question the fair representation of political groups and parties as compared to the current membership of the Verkhovna Rada. Quite the contrary, Mr Serhiy Shevchenko’s appointment offers the Ukrainian parliamentary opposition the opportunity to retain a substitute’s seat in the Assembly which will be able to be effectively occupied.

6. Conclusions

28. At its meeting on 24 April 2013, the Committee on Rules of Procedure heard the observations made by Mr Ivan Popescu, Chairperson of the Ukrainian delegation, as well as Mr Serhiy Sobolev, member of the Ukrainian delegation and member of the Committee on Rules of Procedure.

29. Having examined the objections raised, the Committee on Rules of Procedure, Immunities and Institutional Affairs considers that the procedural grounds for challenges set out in Rule 7.1 of the Rules of Procedure of the Assembly do not apply in the present case, and that the credentials of Mr Andriy Shevchenko are in accordance with Rule 6 of the Rules of Procedure of the Assembly.

30. The Committee on Rules of Procedure observes that the case of Mr Serhiy Vlasenko is the subject of the full attention of the corapporteurs of the Monitoring Committee in the context of the monitoring of Ukraine’s obligations and commitments, and that there is therefore no need to engage in political considerations which are not strictly within its terms of reference. Where legal assessment of the case is concerned, the committee notes that Mr Vlasenko lodged an application with the European Court of Human Rights on 12 March 2013.

31. The committee therefore proposes that the Assembly deprive Mr Serhiy Vlasenko of his mandate and ratify the credentials of Mr Andriy Shevchenko.

32. In pursuance of Rule 7.2, “[i]f the Committee concludes that the credentials should be ratified, it may submit an opinion to the President of the Assembly, who shall read it out in the plenary sitting of the Assembly or the Standing Committee, without debate”. However, in application of Article 25 of the Statute of the Council of Europe, no representative may be deprived of his or her mandate during a session of the Assembly without the latter’s consent. Consequently, the Assembly is invited to take a formal decision on the deprivation of Mr Serhiy Vlasenko’s mandate. The committee’s report and the draft resolution will therefore be included on the agenda of the Assembly for debate.