Draft resolution
1The Parliamentary Assembly considers that democracy
and the rule of law require that politicians shall be effectively
protected from criminal prosecutions based on their political decisions.
Political decisions shall be subject to political responsibility,
the ultimate judges being the voters.
2The Assembly also reconfirms its principled opposition to
all forms of impunity, as expressed in its Resolution 1675 (2009)on the state of human rights in Europe: the need to eradicate
impunity. Consequently, politicians shall be held to account for
criminal acts or omissions they commit both in their private capacity
and in the exercise of their public office.
3The distinction between political decision-making and criminal
acts or omissions must be based on national constitutional and criminal
law, which in turn should respect the following principles, in line
with the conclusions of the European Commission for Democracy through
Law (Venice Commission):
3.1criminal
proceedings should not be used to penalise political mistakes or
disagreements;
3.2politicians should be accountable for ordinary criminal
acts in the same way as ordinary citizens;
3.3substantive national rules on ministerial criminal responsibility
must comply both with Article 7 of the European Convention on Human
Rights (ETS No. 5, “the Convention”) and other requirements derived
from the principle of the rule of law, including legal certainty,
predictability, clarity, proportionality, and equal treatment;
3.4in particular, wide and vague national criminal law provisions
on “abuse of office” can be problematic, both with regard to Article
7 of the Convention and other basic requirements under the rule of
law, and they can also be particularly vulnerable to political abuse;
3.5politicians should, as a rule, be held criminally liable
for acts or omissions committed in the exercise of their office
when they act for personal gain or violate fundamental rights of
others;
Tabled by the Committee on Political Affairs and Democracy
In the draft resolution, replace paragraph 3.5 with the following paragraph:
"national provisions on “abuse of office” should be interpreted narrowly and applied with a high threshold, by reference to additional criteria, such as, in cases involving economic interests, intent of personal gain; they should only be invoked against politicians as the last resort and the level of sanctions should be proportional to the legal offence and not influenced by political considerations;"
3.6As regards procedure, to the extent that charges brought
against politicians are of a “criminal” nature according to Article
6 of the Convention, the same fair trial requirements must apply
both to ordinary criminal procedures and to the special impeachment
procedures which exist in a number of Council of Europe member States;
3.7special rules for impeachment of ministers must not be
in breach of basic principles of the rule of law. As such rules
are susceptible to political abuse, they call for extra caution
and restraint as to the manner in which they are interpreted and
applied.
4Concerning Ukraine, the criminal cases brought against former
Prime Minister Yulia Tymoshenko and former Interior Minister Yuri
Lutsenko have given rise to severe criticism by the international
community. The Assembly is deeply troubled by the manner in which
the country’s criminal justice system is abused for the persecution
of political opponents. It considers that in both cases the principles
on the separation of political and criminal responsibility have
been violated.
(If adopted, amendment 5 falls)
Tabled by the Committee on Political Affairs and Democracy
In the draft resolution, delete paragraph 4.
(Falls if amendment 2 is adopted)
Tabled by Mr Volodymyr PYLYPENKO, Mr Ivan POPESCU, Mr Tedo JAPARIDZE, Ms Guguli MAGRADZE, Ms Nadezda GERASIMOVA
In the draft resolution, replace paragraph 4 with the following paragraph:
"The Assembly condemns any abuses in the criminal justice system of the member states holding ex-or acting ministers criminally liable, as they turn the judiciary into the persecutor of political opponents. In such a case there is a danger that the principles of keeping political and criminal responsibility separate can be violated."
5In view of the above, the Assembly:
5.1invites the legislative bodies of those member States
whose criminal law still includes broad abuse-of-office provisions
to consider abolishing or redrafting such provisions, with a view
to limiting their scope in line with the recommendations of the
Venice Commission;
Tabled by the Committee on Political Affairs and Democracy
In the draft resolution, before paragraph 5.1, insert the following paragraph:
"urges governing majorities in member States to refrain from abusing the criminal justice system for the persecution of political opponents."
5.2invites the competent authorities of those member States
whose constitutions provide for special impeachment procedures for
ministerial criminal responsibility to ensure that they are interpreted
and applied with the degree of caution and restraint recommended
by the Venice Commission;
5.3urges the Ukrainian authorities to take specific measures
to ensure the effective independence of the judiciary, in particular
by implementing the recommendations of the Venice Commission in
this respect and by speedily and comprehensively executing the relevant
judgments of the European Court of Human Rights.
(If adopted, amendment 6 falls)
Tabled by the Committee on Political Affairs and Democracy
In the draft resolution, replace paragraph 5.3 with the following paragraph:
"urges the competent authorities of those member States which have been condemned for violation of Article 18 of the European Convention of Human Rights (prohibition of misuse of power in restricting the rights and freedoms) to take specific measures to ensure the effective independence of the judiciary and speedily and comprehensively execute the relevant judgements of the European Court of Human Rights."
(Falls if amendment 4 is adopted)
Tabled by Mr Volodymyr PYLYPENKO, Mr Ivan POPESCU, Mr Tedo JAPARIDZE, Ms Guguli MAGRADZE, Ms Nadezda GERASIMOVA
In the draft resolution, replace paragraph 5.3 with the following paragraph:
"urges member-states of the Council of Europe to more actively implement the recommendations of the Venice Commission to ensure the effective and independent model of legal proceedings and the prompt and full execution of the judgments of the European Court of Human Rights;"
Tabled by Mr Luca VOLONTÈ, Mr Thierry MARIANI, Mr Peter van DIJK, Mr Viorel-Riceard BADEA, Mr Kimmo SASI, Mr Andrzej HALICKI, Mr Marek KRZĄKAŁA, Ms Anne-Mari VIROLAINEN, Mr Robert WALTER, Mr Robert NEILL, Mr Joachim HÖRSTER, Mr Axel FISCHER, Mr Erich Georg FRITZ, Mr Serhii SOBOLIEV, Mr Cezar Florin PREDA, Mr Arcadio DÍAZ TEJERA, Mr José MENDES BOTA, Mr Roel DESEYN, Mr Emanuelis ZINGERIS, Ms Marietta de POURBAIX-LUNDIN, Mr Volodymyr ARIEV, Mr Márton BRAUN, Mr László KOSZORÚS, Mr Péter HOPPÁL, Ms Katalin CSÖBÖR, Mr Gergely GULYÁS, Mr Pedro AGRAMUNT, Ms Sylvi GRAHAM, Ms Ingjerd Schie SCHOU, Mr Gábor Tamás NAGY, Mr Imre VEJKEY, Mr João Bosco MOTA AMARAL, Mr Valeriu GHILETCHI, Mr Terry LEYDEN, Ms Orinta LEIPUTĖ, Ms Ana GUŢU, Ms Carmen QUINTANILLA, Mr Robert BIEDROŃ, Ms Inese LĪBIŅA-EGNERE, Sir Edward LEIGH, Mr Otto CHALOUPKA, Mr Giorgi KANDELAKI
In the draft resolution, after paragraph 5.3, insert the following paragraph:
"urges the Georgian authorities to take specific measures to ensure the effective independence of the judiciary and in this respect regrets the repeated verbal attacks by the Minister of Justice on individual judges who refuse the prosecutor's office requests. The Minister of Justice should refrain from attacking judges' personalities or decisions. The Assembly also calls upon the Government of Georgia to comply with the opinion of the Venice Commission on its initiative to set up a commission on miscarriage of justice.
Tabled by Mr Luca VOLONTÈ, Mr Thierry MARIANI, Mr Peter van DIJK, Mr Viorel-Riceard BADEA, Mr Kimmo SASI, Mr Andrzej HALICKI, Mr Marek KRZĄKAŁA, Ms Anne-Mari VIROLAINEN, Mr Robert WALTER, Mr Robert NEILL, Mr Joachim HÖRSTER, Mr Axel FISCHER, Mr Erich Georg FRITZ, Mr Serhii SOBOLIEV, Mr José MENDES BOTA, Mr Cezar Florin PREDA, Mr Arcadio DÍAZ TEJERA, Mr Roel DESEYN, Mr Emanuelis ZINGERIS, Mr Volodymyr ARIEV, Mr Márton BRAUN, Mr László KOSZORÚS, Mr Péter HOPPÁL, Ms Katalin CSÖBÖR, Mr Gergely GULYÁS, Mr Pedro AGRAMUNT, Ms Sylvi GRAHAM, Ms Ingjerd Schie SCHOU, Mr Gábor Tamás NAGY, Mr Imre VEJKEY, Mr João Bosco MOTA AMARAL, Mr Valeriu GHILETCHI, Mr Terry LEYDEN, Ms Orinta LEIPUTĖ, Ms Ana GUŢU, Ms Carmen QUINTANILLA, Mr Robert BIEDROŃ, Ms Inese LĪBIŅA-EGNERE, Sir Edward LEIGH, Mr Otto CHALOUPKA, Mr Giorgi KANDELAKI
In the draft resolution, after paragraph 5, insert the following paragraph:
"Concerning Georgia, the prosecution and, in particular, the pre-trial detention of former Prime Minister and leader of the main opposition party UNM, Ivane Merabishvili, as well as the prosecution and charging of more than 100 former officials and opposition members, is a matter for concern. The Assembly considers the link publicly made on several occasions by the current Prime Minister between these prosecutions and the rhetoric of the opposition as a sign of selective justice."
