AA13CR27

AS (2013) CR 27

2013 ORDINARY SESSION

________________________

(Third part)

REPORT

Twenty-seventh Sitting

Friday 28 June 2013 at 10 a.m.

In this report:

1.       Speeches in English are reported in full.

2.       Speeches in other languages are reported using the interpretation and are marked with an asterisk.

3.       Speeches in German and Italian are reproduced in full in a separate document.

4.       Corrections should be handed in at Room 1059A not later than 24 hours after the report has been circulated.

The contents page for this sitting is given at the end of the report.

Mr Mignon, President of the Assembly, took the Chair at 10.05 a.m.

THE PRESIDENT* – The sitting is open.

1. Death of a member

THE PRESIDENT* – I have very sad news for you all. Our colleague Jean-Louis Lorrain, French Senator and member of the French delegation, passed away yesterday evening. He was an active member of the Parliamentary Assembly of the Council of Europe and I learned of his passing a little earlier from our colleague Liliane Maury Pasquier. Yesterday she presented Jean-Louis Lorrain’s report on equality of access to healthcare, which was adopted unanimously. That was his final piece of work on behalf of the Assembly. This is of course extremely sad news for his family, for the Parliamentary Assembly and for the French delegation. I ask you to have every understanding of how emotional I am feeling, and to respect a minute’s silence in his memory.

The Assembly observed a minute’s silence.

(Ms de Pourbaix-Lundin, Vice-President of the Assembly, took the chair in place of Mr Mignon.)

2. Examination of credentials

THE PRESIDENT – We must first consider the examination of credentials of new members of the Italian delegation. The names of the members and substitutes are in Document 13235 Addendum. If no credentials are challenged, the credentials will be ratified. Are any credentials challenged? That is not the case.

The credentials are ratified. I welcome our new colleagues.

3. Changes in the membership of committees

THE PRESIDENT – Our next item of business is to consider changes proposed in the membership of committees, set out in two documents, Commissions (2013) 06 Addendums 4 and 5. Are the proposed changes in the membership of the Assembly’s committees agreed to?

The changes in membership of committee are agreed to.

4. Draft Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms

THE PRESIDENT – The next item of business is the debate on the report entitled “Draft Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms” (Document 13220), presented by Mr Chope on behalf of the Committee on Legal Affairs and Human Rights. Mr Chope, you have 13 minutes in total, which you may divide between the presentation of the report and your reply to the debate.

      Mr CHOPE (United Kingdom) – I am very pleased to be able to present this report for opinion, which I hope will be supported unanimously by members of the Assembly. Unlike draft Protocol No. 15, which we were discussing at the previous part session, this protocol can enter into force when only 10 countries have signed and ratified it, and it will then apply only to those countries that have done so but not to others. It is a permissive document rather than one that will mandatorily change the way in which the Court operates.

      As many members already know, Articles 47 to 49 of the European Convention on Human Rights allow the Committee of Ministers to ask the Court to give opinions on legal questions about the interpretation of the Convention and its protocols. Draft Protocol No. 16 would be slightly different; owing to the enormous number of applications brought before the Court, it proposes the introduction of a new advisory opinion procedure by which the highest courts of contracting State parties can ask for an opinion. That would enable them to find out before the event what the likely advice from the Court would be, which ultimately would reduce the number of cases coming before the Court.

Critics say, accurately, that the consequence could also be that in the short term there would be an even greater burden on the Court because it would have to deal with these advisory opinions as well as its other enormous work load, so the way in which this has been framed and considered by both the Court and the Committee of Ministers is quite tentative. I quote from paragraph 12(d) of the final declaration of the Brighton conference: “the interaction between the Court and national authorities could be strengthened” – it is not asserting that it will be strengthened but says that it could be – “by the introduction into the Convention of a further power of the Court, which States Parties could” – again, I emphasise the word “could” – “optionally accept, to deliver advisory opinions” – in other words, they would not be binding opinions – “upon request on the interpretation of the Convention in the context of a specific case at domestic level, without prejudice to the non-binding character of the opinions for the other States Parties”.

In other words, if one country obtains an advisory opinion from the Court, that opinion would not be binding on any other country. It is hoped that the protocol will be a means by which countries that are in some doubt about the applicability of European Court of Human Rights law to issues raised in their domestic courts can obtain advice.

      I shall not speak at great length, because a number of colleagues wish to contribute, and it is better if I retain some time so that I can answer any questions that they raise. The process provided for in the protocol could be very useful, particularly in the longer term. It has taken a very long time to reach this stage; it has been discussed for many years in the Court and by the Committee of Ministers. Different views have been expressed, and in a sense, what we are discussing today is a compromise. Countries could opt into this, and if it works successfully for those that do, I am sure that others will do so, and make use of it.

THE PRESIDENT – Thank you, Mr Chope. You have eight minutes and 30 seconds remaining. In the debate, I call Mr Kox, on behalf of the Group of the Unified European Left. You have four minutes.

Mr KOX (Netherlands) – Let me compliment the rapporteur on his advice on draft Protocol No. 16 to the European Convention on Human Rights. The UEL supports his proposal, and the adoption and ratification of the protocol. After Protocol No. 15, this is an important new step to improve the work of the Court and help lower its caseload by giving the highest national courts, at an early stage, the Court’s opinion on interpretation of the Convention. The opinions will be non-binding, but will nevertheless be part of the case law of the Court, together with its judgments and decisions. At the beginning, the process will cost the Court extra time, but it is a principle in making any economy that you have to invest before you can get the gains.

It was a wise decision to do this, because we all know that we should not have a European Court of Human Rights that decides on every problem that we have in our national member States; national courts should take care of problems that arise in their country in such a way that fewer people feel the need to go to Strasbourg to ask that justice be done. The initial investment of time and money is worthwhile to produce better verdicts in national member States, as that will lower the Court’s caseload.

The rapporteur used his explanatory memorandum to make some critical remarks. If you are from Great Britain and the Conservative Party, it would be unthinkable not to use this opportunity to make some critical remarks on Europe. That is fine, because we all use our presence here to do some work that can also be used at home. I am glad that he said that, although he has some criticisms, that does not affect the essence of the proposal. We are seeing something interesting – a Conservative from Great Britain and a Socialist from the Netherlands agreeing on adopting Protocol No. 16. Once again, I thank Mr Chope for his report.

THE PRESIDENT – Thank you, Mr Kox. Mr Nikoloski is not here, so I call Mr Gross on behalf of the Socialist Group.

Mr GROSS (Switzerland) – On behalf of the social democrats, I thank Mr Chope for the report. This is a good and wise proposal. The wisdom may lie in the fact that it integrates different kinds of national courts. Very old democracies, such as the British and Swiss, have national courts that often disagree with the Court and criticise it. This is an invitation to discuss issues well in advance of a decision, either at national or Strasbourg level. On the other hand, with so-called new, younger democracies, I sometimes have the impression that their courts do not know the standards, the thinking, and the logic behind the Strasbourg Court’s interpretations. This is another kind of invitation to discuss things before a judgment, and to come closer to each other with a common logic.

It is important to note that, as the report says on pages 4 and 5, courts can decide when they do not want to take up dialogue; that is up to them. They do not have to, if they do not want to. Courts can also disagree and can show that disagreement. That will improve the quality of the discussion. On the other hand, what the Court says to the national courts is not binding. Courts do not lose the freedom to have their own interpretation. I very much like the fact that our Commissioner for Human Rights can contribute to the debate, so three positions can come together. Importantly, this is the only point of Protocol No. 16, so I think that we will quickly find the 10 countries to ratify it. This is a wise idea that will make a small contribution to lowering costs and to integrating the continent so that there is a common understanding of the most important document that we have produced in the past 60 years.

THE PRESIDENT – Thank you, Mr Gross. I call Mr Xuclŕ on behalf of the Alliance of Liberals and Democrats for Europe.

Mr XUCLŔ (Spain)* – I congratulate Mr Chope on the report. In the last session, on a Friday, Mr Chope presented a report on Protocol No. 15 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, and today he is presenting a report on Protocol No. 16. This one appears to be less controversial, and to have gained support from across the political spectrum.

It is clearly important that the instrument gets the backing of the Parliamentary Assembly. It will make the Court’s work easier by providing it with a platform for judicial dialogue, and will act as an interface between national courts and the Strasbourg Court, bringing them together. As was rightly pointed out, the opinions will not be binding, but they will nevertheless be influential on the workings of domestic courts, and so will facilitate the work of the Court, so the protocol is wholly positive.

The protocol strengthens various principles. When we debated Protocol No. 15, we talked about the importance of reinforcing the subsidiarity principle. That applies here, too, and the protocol is a sound example of the way in which the subsidiarity principle applies. Courts will get an ex-post or ex-ante advisory opinion. How that works in practice will depend very much on the attitude of member States.

Many of us have been to law school and studied the philosophy of law, so we have an awareness of the hierarchy of laws. The principle of hierarchy applies when it comes to appeals in the final court of appeal. We like to think that member States have the final say, but we live in an interdependent world. It is important to preserve and strengthen the subsidiarity principle, but we must understand that opinions from the European Court in Strasbourg have a decisive role in determining the outcome of domestic courts’ deliberations. In the 21st century, we must move beyond the existing principles of normative hierarchies.

      On page 5, under the heading “A few critical remarks”, the rapporteur states that the text refers to “member States of the Council of Europe and other High Contracting Parties to the Convention”. Of course, there is the “case pending”, and I am Rapporteur of the Committee on Legal Affairs and Human Rights on the appointment of judges regarding the accession of the European Union. Notwithstanding those few critical remarks, we will be welcoming the European Union into the Strasbourg Court in due course.

      THE PRESIDENT – Thank you. The rapporteur does not wish to respond at this stage, so I call Mr Schneider.

      Mr SCHNEIDER (France*) – I want to clarify that on Wednesday morning, the Group of the European People’s Party asked me to speak on its behalf on the matter. One of my colleagues was supposed to do so, but we knew that he was going to be absent.

      Protocol No. 16 was supposed to do two things: enhance the link between national courts and the European Court of Human Rights and resolve some controversial cases on which there have been repeated appeals. Allowing nations’ highest courts to receive an advisory opinion from the European Court regarding the protection of human rights and fundamental freedoms defined by the Convention is a major step forward, which we must applaud. Too often, the Court’s jurisprudence is not entirely clear to all, and several law makers have noted that there can be serious contradictions between judgments handed down by different chambers. This approach should allow us to dispel much of the existing ambiguity and to resolve many of the issues of interpretation that arise, and it should make it easier to apply the provisions of the Convention in member States. The second objective may be subject to some criticism, as the rapporteur has said. I do not believe that we are taking a step forward by saying that you can refuse to accept an advisory opinion because you are required to have five judges together from the grand chamber. In addition, using a number of languages for such opinions may not be terribly helpful.

      We must recognise that the efficiency of the system will depend on how the advisory opinions are followed up at national level. They are advisory opinions; they are not binding. Member States must determine which of their courts is the highest and can thus bring a matter before the Court. The court systems in the 47 Council of Europe member States operate in very different ways, and many different “highest courts” may believe that they can bring an issue to the Court. Every country must, therefore, clearly identify its highest court, and those courts will play a key role. They must ensure that we do not simply have a plethora of meetings taking place just to hand down advisory opinions; they must look at the matter carefully and see how they can operate with the Court to prevent repeated appeals. There is a particular need to reform that aspect of operations in Italy.

      Advisory opinions will be valuable only if they allow States to resolve some of the problems that they face, perhaps by appropriately amending their own legislation. We must look carefully at how the protocol is applied in our countries. Because the opinions are optional, only their operation will be of any value. However, I intend to vote in wholehearted support of this excellent report.

      Mr KALMÁR (Hungary) – I will be brief, because much has already been said. We are almost at the end of a long process that points towards the legal integration of the continent. We have made a wise decision, and I intend to vote for the adoption of the resolution. I would like us to investigate how we might set up common standards for Europe in other fields as well, with the aim of achieving integration in every field of activity.

      Mr SASI (Finland) – I welcome Mr Chope’s very good report. Advisory opinions in the European Court of Justice, which are binding, direct the legal system in the European Union in a fair way. In this case, I think it is fair to allow only the highest national courts to seek advisory opinions from the European Court of Human Rights, because the Court is dealing with so many cases. The highest courts are best placed to formulate questions to the Court. It also makes sense for the grand chamber to decide on advisory cases, because they develop European legal precedent.

The fact that advisory opinions are not binding is essential to promote dialogue. Some of the highest courts in Europe are challenging the decisions of the European Court of Human Rights, which emphasises the need for dialogue between the Court and national courts. There is huge expertise in the Supreme Court of the United Kingdom and in the Bundesverfassungsgericht in Germany, both of which have excellent lawyers and excellent opinions. Dialogue with such institutions leads to better decisions in Europe. National parliaments should also be included in that dialogue. It is interesting, as we heard yesterday, that if there is sound reasoning behind certain legislation in a national parliament, it might make some law in accordance with the human rights values of the Council of Europe. If there is no reasoning at all, the case will not be integrated in a positive way. That is quite reasonable, and it encourages our national parliaments to take into account human rights and provide good reasoning for our decisions. When the Court takes that into account, I think that is a very good way to proceed in this dialogue between the court and national parliaments.

We need clarification from the European Court of Human Rights, for example, on ne bis in idem, which says that no one shall be tried twice for the same offence in criminal cases. There is a huge mess as a result of the Court’s decisions. National courts in Nordic countries do not know what to do. In those cases, it would be useful to say, “We have these problems. Can you clarify, when there are dissenting decisions, what your reasoning is and what steps we have to follow?” There is a determination to ensure that no one will be sentenced twice.

      There is one problem, however. If the decisions or advisory opinions are not binding, will that mean that the authority of the Court will be reduced? We must follow that issue closely. We have to say, “This is the way to discuss and debate the matter, but finally the Court has the authority and countries have to follow decisions by the Court.”

I emphasise one role of the European Court of Human Rights: the Court must take care of the core values of the European Convention on Human Rights. There must be a reasonable margin of appreciation, however. We have different national traditions. Our countries are different. As long as the core values are respected, there should be room to make different national decisions on the basis of our history.

Mr REISS (France)* – Protocol No. 16 is the result of the reforms to the Court advocated by the States’ parties in the Brighton Declaration. The procedure that it lays down is an important step forward. It establishes an interaction between judges, which many people felt would be useful to ensure better application of the rights in the Convention. Nevertheless, the protocol is just the first stage in setting up the judicial interaction that the rapporteur rightly welcomes. As my colleague André Schneider said, acceptance of a request for an opinion involves the meeting of a five-judge panel in the grand chamber and they would have to explain or decline to submit such an opinion.

Furthermore, the Court says that where a party is not satisfied with the opinion, it can still bring an application to the Court once a final decision has been given at national level. This relates to paragraph 12 of the appendix of the report. Will these measures lighten the Court’s work load? I do not think they will. Protocol No. 16 should allow the development of an interaction between the judges which will be efficient and clarify and consolidate jurisprudence. The advisory, rather than binding, character of the opinions leads me to doubt whether that will actually happen.

The draft protocol recalls, referring to the high contracting parties, that the European Union will soon accede to the Convention, which leads us to draw a parallel with the system of preliminary rulings used in the European Court of Justice. Why is there such an imbalance of powers between the two Courts, which will have to work together in the near future? In the new context, would it not be more rational to set up a system of preliminary rulings worthy of the name, which would be binding on all? Then the Court could rule on points of law that cause problems of interpretation to national courts and could in that way prevent a lot of repetitive cases coming to its attention.

The points of law that would then be decided upon would shed light on the jurisprudence of the ECHR for all national courts and would facilitate the application of the case law in Europe. For all those reasons, it would be useful for our Organisation to consider setting up at a later stage a real system of preliminary rulings on the interpretation and application of the Convention and its protocols. Those questions would be forwarded to the Court by national supreme courts, if they so wish, drawing on the system that applies in the European Court of Justice of the European Union.

The European Court of Human Rights is at the heart of the system of protecting rights in Europe, so let us allow it play its role. President Bratza rightly said that human rights are not a luxury. They are fundamental. That has to apply in terms of the application of the Convention by the courts of our 47 member States. I will of course vote in favour of the draft opinion.

THE PRESIDENT – That concludes the list of speakers.

I call Mr Chope, the rapporteur, to reply. You have eight minutes 30 seconds.

Mr CHOPE (United Kingdom) – I thank everyone who has participated in the debate. I shall try my best to respond to each of the points that have been made.

      Tiny Kox said how important it is for politicians to emphasise the pragmatic rather than the ideological. He gave the example of how he, as a Dutch Socialist, can agree with me, a British Conservative, on this report. Andy Gross said how important it is that the Court can express a dissenting opinion, so the Court could have a majority opinion and dissenting opinions when asked to express its advice, which shows the flexibility and transparency of our Court on the European Convention on Human Rights, in contrast with the European Court of Justice, which does not allow a dissenting opinion to be expressed; everyone’s opinion has to be bound up in one particular judgment, which raises issues of transparency.

      Mr Xuclŕ said that this protocol was less controversial than Protocol No. 15. I am not sure that I agree. Members will be pleased to know that Protocol No. 15 already has 20 signatures and one country, Ireland, has already ratified it. Protocol No. 15 needs to be ratified by all countries before it can come into effect. Hopefully, that will not be controversial. This protocol is not controversial because it is permissive but, as we have heard, there are many different emphases and views on what should or should not be included in it. It is essentially a compromise.

Mr Xuclŕ also spoke about the hierarchy of laws and referred to his background in legal philosophy. He said that he would welcome the European Union into the Convention, but surely that can only be on the basis that the European Union unequivocally accepts through the European Court of Justice that it will be subordinate to the European Court of Human Rights on matters relating to the European Convention on Human Rights.

I am grateful to Mr Schneider for his support, albeit with some warnings about some of the consequences. Mr Kalmár spoke of the need for legal integration on the continent, but I am sure, particularly in the light of the debate earlier this week on Hungary, that he would accept that there is a need to have a margin of appreciation so that each country can determine its own constitution and constitutional principles, as long as they are in accordance with the core values of the Council of Europe.

Mr Sasi talked about how he hoped that this could be used to iron out different interpretations of what amounts to double jeopardy. Let us hope that that will be one way forward because that is the sort of issue that it is much better to resolve in advance, rather than only after individuals have gone through the court process. He emphasised the importance of having a margin of appreciation, which is the reason why member States and this Parliamentary Assembly do not really agree with the point made by Mr Reiss, who asked why we do not have preliminary rulings – in other words, mandatory rulings. How would you be able to have mandatory rulings in areas that are subject to the margin of appreciation? As we know from recent cases, the interpretation of the margin of appreciation is for the Court and it will take into account the particular circumstances of an individual member State and the conduct of its parliament in relation to a particular issue, as was discussed in the seminar that we had with the Committee on Political Affairs and Democracy yesterday.

      We have heard some interesting contributions, which shared enthusiasm for the new protocol. I am grateful to colleagues for their support and I hope that when we look back on the protocol’s implementation, we will see that it was a small step in the right direction that helped iron out a lot of difficulties and resulted in a reduction in the Court’s workload.

      THE PRESIDENT – Thank you, Mr Chope. Does the vice-chairperson of the committee wish to speak? You have two minutes.

      Mr CILEVIČS (Latvia) – We keep repeating that national legal systems and judiciaries are in the best position to remedy and prevent human rights violations, and the protocol seeks to enhance their capacity to do so. We need coherent interpretation of the European Convention on Human Rights and its basic principles. I do not think that would threaten limitation of the principle of margin of appreciation.

      This is particularly relevant with regard to new issues that arise every day, such as environmental rights and the rights of transgender people and of refugees and migrants, for which we have limited or no jurisprudence at present. The dialogue between national courts and the European Court of Human Rights is particularly important in such areas.

      One could express concern that this represents an extra burden for the Court. Yes and no: successful dialogue and deliberations about coherent interpretation might save a lot of the Court’s resources in the future. When controversial issues are addressed on a national level, the complaints simply do not reach the Court.

      The Committee on Legal Affairs and Human Rights unanimously supports Mr Chope’s report and voted in favour of the draft opinion. I hope that the Assembly will do the same.

      THE PRESIDENT – The debate is closed.

      The committee has proposed a draft opinion, to which no amendments have been tabled.

      We will now proceed to vote on the draft opinion contained in Document 13220. A two-thirds majority is required.

      The vote is open.

(Mr Mignon, the President of the Assembly, took the Chair in place of Ms de Pourbaix-Lundin.)

5. Keeping political and criminal responsibility separate

      THE PRESIDENT* – We now come to the debate on the report by the Committee on Legal Affairs and Human Rights, entitled “Keeping political and criminal responsibility separate”, Document 13214, presented by Mr Omtzigt. Mr van der Maelen will present an opinion on behalf of the Committee on Political Affairs and Democracy, Document 13251.

      Mr Omtzigt, you have 13 minutes in total, which you may divide between presentation of the report and reply to the debate.

      I call Mr Omtzigt to present the report.

      Mr OMTZIGT (Netherlands) – The report relates to an important subject that could remain with us for a long time: the distinction between political and criminal responsibility.

At this time of economic hardship, we are all involved in far-reaching political decisions, doing our best to overcome the crisis without leaving the next generation with a crushing mountain of debt. In a few years, and with the benefit of hindsight, we will be criticised a lot for the decisions we took, one way or the other. The resolution says, in essence, that in a democratic system ruled by law our political decisions should be subject to political responsibility, the ultimate judges being the voters. If we make political decisions and stay within the mandate of our constitutions, we may lose our seats as parliamentarians and our parties may lose their majorities, but we should not also be subject to criminal prosecution by order of our future successors for having decided political questions one way or another.

This does not mean, of course, that I am advocating any kind of impunity for politicians. Those who know me and who have followed my political actions in the Council of Europe and in the Netherlands will have no doubt about that. The same is true for the Committee on Legal Affairs and Human Rights, which has adopted the report, and for the Assembly as a whole, whose record on the fight against impunity is spotless.

Politicians can, of course, be held to account for criminal acts or omissions, both in a private capacity and in their exercise of public office. That is what we should agree upon. The difficulty lies in drawing a line between the legitimate criminal responsibility of politicians for criminal actions and the illegitimate criminalisation of political actions, political mistakes or political disagreements.

In order to obtain some qualified legal input, our committee held a hearing with a distinguished legal expert and requested the opinion of the Venice Commission on the subject. This has enabled me to propose a set of general principles, which are summed up in the draft resolution. I do not pretend that these are perfect, but the Venice Commission, in its collective wisdom, has not been able to propose any more specific general criteria. I am, therefore, grateful for the amendments tabled by the Committee on Political Affairs and Democracy aimed at improving the report.

General principles are important, but they tend to be abstract and very difficult to understand if they are not underpinned by political examples. Therefore, at the beginning of my mandate as a rapporteur, I proposed in the introductory memorandum that the Committee on Legal Affairs and Human Rights should present a few case studies in order to illustrate the general principles and make them clearer.

At that time, in early 2011, two countries had hit the headlines: Iceland, where former Prime Minister Geir Haarde was criminally prosecuted for not having prevented the Icelandic banking crisis, and Ukraine, where former Prime Minister Yulia Tymoshenko and former Minister Yuriy Lutsenko were prosecuted on grounds that were widely criticised as politically motivated. These cases relate to one established democracy and one so-called new democracy.

The limited resources at my disposal did not allow me to undertake more than two or three serious case studies. I honestly believe that the selection was fair and balanced. The committee agreed and authorised me to proceed as proposed.

In my research, I also realised that Article 18 of the European Convention on Human Rights was an important element for distinguishing legitimate from illegitimate criminal responsibility. Article 18 essentially forbids the restriction of the human rights, including the deprivation of liberty, for other reasons than those foreseen in the Convention – for example, prosecutions for political motives. I found that findings of violations of Article 18 by the Strasbourg courts are extremely rare, and that two out of the three violations found so far concern precisely the cases of Yulia Tymoshenko and Yuriy Lutsenko in Ukraine. These two judgments were published in the last few months, which makes this report a bit late. The court has been clear – the reasons these people have been taken into pre-trial detention were not legal ones.

The third case, Gusinsky v Russia, was more than 10 years ago, so I feel vindicated in my choice of examples, and I am a little disappointed that some colleagues have accused me of being biased, or just speaking about one or two countries. Those who know me will know that I would have loved to pick on some more countries, but time and resources – my own and the Assembly’s – being limited as they are, I had to make a choice. That choice does not seem to be so far off the mark in view of the statistics of the Strasbourg Court. If you want to know how the prosecutions went, please read my report. There are serious problems in those two cases.

That said, the case studies in my report are merely designed to illustrate the general principles by applying them in practice to some examples – no more, no less. I can therefore live with the proposed amendments by the Committee on Political Affairs and Democracy to remove references to individual countries in the draft resolutions and referring to the court cases in Strasbourg, because that clearly refers to three cases. We should consequently be able to adopt this text with a large majority, which would give our principles for distinguishing criminal and political responsibility the kind of authority they deserve, in the interests of the principles of democracy and the rule of law that we all uphold.

THE PRESIDENT* – Thank you. You have seven minutes to reply. I call Mr Van der Maelen on behalf of the Committee on Political Affairs and Democracy.

Mr Van der MAELEN (Belgium) – The committee decided that it would be better to take a step by step approach. After reading the resolution, we expected a draft resolution – I do not contest the right of the rapporteur to write an explanatory note in his report, and certainly not when that is backed by a decision of the committee – that offered general principles and standards by which we could distinguish political and criminal responsibility in politicians. That is the why the Committee on Political Affairs and Democracy – and later the Committee on Legal Affairs and Human Rights – unanimously proposed to skip any reference in the draft resolution to specific countries and, as our rapporteur said, when there are decisions made by the court in Strasbourg, as there have been in three cases, we should send the general recommendation to the two countries concerned that they should respect the judgment of the court. That is the thinking behind Amendments 2 to 4.

The committee was of the opinion that the best methodology was for the Assembly first to agree the general principles by which we can distinguish political and criminal responsibility of politicians, and then, once we have decided that, to ask rapporteurs who are making a country-specific report to apply the general principles. Alternatively, if a monitoring procedure is active, the rapporteurs can apply the principles. Thirdly, the Committee felt that the Venice Commission gave us an excellent opinion and a very interesting comparative analysis, and that we should stick as closely as possible to the commission’s opinion. That is why we propose Amendment 1. As the rapporteur said, the provisions on abuse of power or misuse of office are crucial in many of our legislatures, but the Venice Commission is right to say that the use of those provisions can be problematic. They are necessary to prosecute politicians for criminal acts, but care is needed. The provisions should be interpreted narrowly and face a high threshold.

All the amendments from the committee were approved unanimously by both my committee and the Committee on Legal Affairs and Human Rights. I hope that the Assembly will agree with our proposals.

THE PRESIDENT* – Thank you. I call Mr Kox, on behalf of the Group of the Unified European Left.

Mr KOX (Netherlands) – I congratulate my compatriot, Peter Omtzigt, on his work. It was quite a job, and good reports take a lot of time and preparation. It was also difficult, because we have already had several debates on political prisoners, and in all those debates we have learned that no country puts people into prison for political reasons – at least, that is what governments and courts say. Nevertheless, the Assembly thinks that in certain circumstances people are put into prisons for political reasons and we should investigate such cases and oppose such practices. As I have said time and again in this Assembly, parliamentarians and politicians should not be put in prison: they should be put in parliaments and governments to do their work.

It is good that the report investigates the relationship between politics and criminal prosecutions of politicians, and where criminal proceedings should be avoided because they would harm democracy, as well as where criminal proceedings should be employed, because – as the rapporteur also says – there is no room for impunity for politicians. We all know that politicians have access to power, and that can be misused or even abused. We are all aware that in several places on our fine continent, power is misused and abused by politicians. It is in line with the rule of law for national States to develop rules to address that problem. In the report, Peter Omtzigt does not criticise that: he criticises the fact that the rules that he found throughout Europe, with the help of the Venice Commission, are often too vague and inappropriate. They should be improved in order to avoid politicians being put into prison for political reasons and not because they face criminal charges with substance.

The rapporteur asked the Committee on Political Affairs and Democracy permission to include some case studies, and that is good because it makes the abstract principles more concrete. But in the end the case studies overloaded the report. The report and especially the explanatory memorandum look as if they are about Ukraine, Yulia Tymoshenko and others who are in prison there. The report is therefore unbalanced. I supported amendments proposed by the Committee on Political Affairs and Democracy and Dirk Van der Maelen to make the report and resolution more general, so that they do not contain concrete references to one country, which in this case is Ukraine. Such amendments would be wise.

      My group will support the committee’s amendments, but it will not support other amendments, especially those that try to include other countries in the resolution. Pieter Omtzigt’s report is very useful. As Dirk Van der Maelen said, we can use it as well as the conclusions of the Venice commission.

      THE PRESIDENT* – Thank you. I call Mr Sasi to speak on behalf of the Group of the European People’s Party.

      Mr SASI (Finland) – The EPP feels that the report is important. In some countries, the human rights situation is deteriorating. In those countries, we often see the misuse of the judicial system. It is clear that there should be no guarantee of impunity for politicians. If you are a politician, you must be responsible for acts in your private life and in your public office, like any other civil servant or ordinary citizen. However, our opinion is that people should not be penalised for political mistakes or disagreements.

      The judicial system is different from political life, and judicial responsibility is different from political responsibility. If a politician acts for personal gain or violates the fundamental rights of other people, it is a criminal action. The report draws the line in the Venice Commission principles more clearly. We must clarify the dividing line to all Assembly members and all politicians in our countries.

      Mr Omtzigt studied two countries with developed legal systems – Iceland and Ukraine – where there are problems. That was reasonable. I come from a Nordic country. The situation in Iceland is very strange. The case of Prime Minister Haarde is unique in Nordic legal history. A majority decision of parliament put him on trial. However, only the Prime Minister was put on trial – the Finance Minister, who was responsible for the banks, and who belonged to the ruling coalition, was not put on trial, which was strange. The Icelandic legal system worked and the prime minister was acquitted of the main accusations. However, the court showed that Mr Haarde had made a mistake because an item was not on the formal agenda of the government meeting – that was an attempt to defend the actions of the politicians behind the accusations. The process in Iceland was political and unfair. The only good thing about it is that Mr Haarde was not put in jail immediately as politicians are in many other countries when accusations are made.

      The case of Ukraine is very sad. We have discussed many times the situation of Prime Minister Tymoshenko and Interior Minister Yuriy Lutsenko. Everyone who has followed the processes, including Ukrainian experts, say that they are not judicial, but something else. The unfair reason given for the situation is that there is good reason to keep those politicians out of politics. In the case of Ukraine, the politicians were immediately put in jail to prevent them from acting in political life.

      Other countries are not mentioned in the report. There are signs in Russia that opposition politicians will end up in court, but the most worrying cases have arisen in Georgia. A former Prime Minister and a likely presidential candidate are in jail. That is not the right way to do politics. This week, 30 elected representatives have been arrested or detained by an emergency procedure to keep them out of political life.

      If someone presents accusations, the accused should be able to respond freely – they should not be put in jail immediately. Another proposal is that, when former or current prime ministers and ministers are accused, the court trying them should include one or two judges from the European Court of Human Rights or other international judges to look into the reasons for the court’s decisions.

      THE PRESIDENT* – Thank you. I call Mr Cilevičs to speak on behalf of the Socialist Group.

      Mr CILEVIČS (Latvia) – The subject of Mr Omtzigt’s report is of great importance for many if not all Council of Europe member States. I agree with Mr Sasi that we should continue to look into countries that face problems The Socialist Group appreciates the rapporteur’s courage and energy in tackling this complicated issue.

The report and the draft resolution as presented to the Assembly give rise to serious concerns. First, the bulk of the report is not on the general problem mentioned in the title but on one particular case – that of the former Prime Minister of Ukraine. Of course, it is impossible to study the issue without considering particular cases. However, the focus of the report was almost entirely changed. We agree with the harsh criticisms directed towards the Ukrainian authorities, which our Assembly has reiterated on several occasions, particularly in the context of the monitoring procedure. Nevertheless, one should reasonably expect much more comprehensive general conclusions and proposals on such an important subject, rather than just the next advocacy effort, even if it is for completely right cause.

The shift of focus inevitably entails serious omissions. In particular, the report refers to the relevant opinion of the Venice Commission. That opinion deals with ministerial responsibility, but while the draft resolution relies on the Venice Commission's conclusions, it substantially expands its scope and applies the conclusions to all politicians in paragraphs 1, 2, 3.2, 3.5 and 3.6. We agree that politicians cannot be immune from criminal responsibility under certain circumstances. Impunity is unacceptable, with no exceptions. However, the concrete concepts, forms and methods of responsibility cannot be identical for, on the one hand, people occupying top executive positions, such as ministers, who have clearly defined areas of responsibility and competence, and, on the other hand, members of parliament, local councillors or functionaries of political parties. Those aspects deserved detailed elaboration in the report, but unfortunately, that has not been done.

The group believes that the amendments tabled by the Committee on Political Affairs and Democracy fix to a considerable extent the deficiencies I have described. We will support the draft resolution if they are adopted. In the meantime, we believe that the Assembly should continue to work on this very important subject to clarify remaining essential practical aspects of the problem. I very much hope that there will be some follow-up. I ask the rapporteur not to drop his efforts, although he should think about how to handle several issues that are not covered in the report and draft resolution.

      THE PRESIDENT* – I call Ms Khidasheli, on behalf of the Alliance of Liberals and Democrats for Europe.

      Ms KHIDASHELI (Georgia) – I thank the rapporteur for his brilliant work and the Assembly for putting the issue on the agenda and taking it on board. It is a crucial one, and it is absolutely necessary to have a report such as this one supported and voted on here and to make action compulsory for all countries.

      The report clearly and correctly underlines the importance of the absolute prohibition of prosecution on the basis of political differences. That is a must, and there can be no reservations about it. That said, it is crucial that all politicians know that political party membership or being at a certain level of power gives no immunity. When crimes are committed, the perpetrators must be punished regardless of their political affiliations or former positions. The Assembly should be the guardian against the abuse of power and other illegalities. Earlier this week, we discussed the report by Ms Reps on corruption, and that is where the two reports tie in. It is important to set the right tone and have clear definitions of the terms involved.

      Given the importance of the issue, we should ensure that all member States support the report without reservations. We need to agree on the fundamental principles – on the one hand the absolute prohibition of political persecution, and on the other hand the importance of there being no impunity for crimes that have been committed. That is why it is crucial that we support the amendments proposed by the Committee on Political Affairs and Democracy. Everyone should get on board with them and then obey the principles that we approve here today.

When we make rules, we make them applicable to all countries, so we should refrain from any references to particular States. The States that we have in mind today will be bound by the report, and I hope they will vote for it. Another problem when we make references to particular countries is that we undermine our own procedures, rules and mechanisms for having countries under monitoring through the Monitoring Committee. On behalf of ALDE, I suggest that all members vote for the report along with the amendments from the Committee on Political Affairs and Democracy.

In my personal capacity, I want to address the point made by Mr Sasi and others, which may also be made by other speakers still to come. My only advice to them is: do not rush to conclusions. That is crucial for the credibility of this Organisation. The Assembly made a mistake in January when it voted for the resolution on Georgia. The Council of Europe condemned something that is greatly important to the Assembly and this institution – freedom of speech and the media. It said that restoring the ownership and rights of a TV company that had been raided by the police force was a regrettable step. Journalists and pregnant women were beaten up during the raid, equipment and property was destroyed or taken away from its owners, yet that was what the January resolution said. You were misled.

I make only one point to Mr Sasi and all my colleagues who are so worried about the arrest of the former Prime Minister – or the former Minister of the Interior, as we say, because he was arrested for what he did in that capacity. Tens of thousands of Georgians, including myself, were put under surveillance in our bedrooms, offices and cars, and wherever we went. If anybody in the Assembly truly believes that they can say that that was possible without the permission and order of the heads of police stations and the Minister of the Interior, I will sit down without complaint. However, it is a fact proved by tangible, undeniable evidence that tens of thousands were under illegal surveillance. That is the point that I leave the Assembly with on the subject of political persecution.

THE PRESIDENT* – I call Mr Walter, on behalf of the European Democrat Group.

Mr WALTER (United Kingdom) – I pay tribute to the rapporteur for his good and diligent work. As other speakers have said, however, we are a little concerned that the focus of the report, particularly in the draft resolution, appears to be on one country, Ukraine. There is, of course, also passing reference to Iceland, where the former Prime Minister Geir Haarde was prosecuted. The rapporteur suggests political motivation for that prosecution. I can report that Mr Haarde is free, alive and well, and when I was in Reykjavik six weeks ago, I had dinner with him and his wife. I am delighted to report that his party, the Independence Party, did well in the general election and now forms half of the ruling coalition. As a result, we have two members of the party in our EDG group here in the Parliamentary Assembly, and they are very welcome.

The core of the report is the separation of political and criminal responsibility. I am concerned that when we look at the former Comecon countries of the former Soviet Union, if somebody who was running an NGO, or who was a journalist or a politician, is charged with criminal offences, there is a tendency to jump to the conclusion that the charges are politically motivated. Our assumption is a little different if it is in western Europe. I do occasionally hear people in my own country suggesting that our former Prime Minister should be charged with war crimes as a result of his decision that the country participate in the invasion of Iraq, but generally in western Europe – with the exception of Iceland, I suppose – criminal proceedings against those who run NGOs, journalists or politicians are regarded as legitimate. It is assumed that they have committed crimes.

We know that corruption is an issue in the eastern countries. We have produced reports on it. Politicians are sometimes corrupt, and they sometimes misuse their privileges. In my country, we would call it misconduct in public office or it would be covered under the Bribery Act. My plea to the Assembly is: do not jump to conclusions. Do not always assume that in the West these are genuine crimes but in the East the charges are always politically motivated.

The report is good, but I agree with other speakers that we should take the focus off Ukraine. I therefore support the amendments tabled by the Committee on Political Affairs and Democracy and Mr Van der Maelen, which will make the conclusions of the report more balanced. None the less, I repeat what I said at the start of my speech: I congratulate the rapporteur on the work in this report.

THE PRESIDENT* – Does the rapporteur wish to respond at this point?

Mr OMTZIGT (Netherlands) – I would like to take about three minutes now and the rest of my time later.

I thank the five speakers on behalf of the political groups for their comments. I agree with Mr Kox that rules for politicians are sometimes too vague. In a number of countries, that is the main problem. Acts of omission are a good example. In France, a minister went to prison for an act of omission when she knew that the blood being given to haemophiliac patients could be HIV-positive. Such acts of omission can lead to politicians going to prison when lives are at stake and they fail to act. There is nothing wrong with that. Politicians stand trial in Eastern and Western Europe, mostly for good reason. We know of some southern countries where such things happen, but for good reasons I do not deal with those in my report. However, this is about the vagueness of the provision on Iceland.

      A number of people have said that Ukraine features too much in this report. My report originally had two parts – one on Ukraine and the other on Iceland. Unfortunately, the part on Iceland was not printed, although it was initially approved by the committee as an integral section of the report before us. My report therefore consists of a general part and reference to two specific cases.

      Mr Cilevičs mentioned ministerial responsibility, but the title of the report is “Keeping political and criminal responsibility separate”, and is about all politicians with executive powers. I agree with Mr Cilevičs that there is a difference between parliamentarians and those who hold executive powers, although as Mr Walter mentioned, someone can be both Prime Minister and an MP. The report recommends that the measures be extended to governors of districts, for example, or mayors, because they also hold executive powers. I do not think there is much difference.

      I say to Ms Khidasheli that I am worried about the situation in Georgia, although that is not part of the report or this debate. There is tension in Georgia among political parties, and the criminal cases do not involve just one or two politicians; over the past days, we have heard about dozens of cases of people being charged. When those in power try to round up a lot of people in the opposition, it is not conducive to the style of politics that we favour in Europe. However, I am not referring to any particular cases, and for now that is a matter for the courts – that is also my reply to Mr Sasi.

      To Mr Walter I say that I am trying carefully to analyse the available testimony. When I started the research, people were in prison. We wanted to apply that research, but we had to be careful. If you want to be careful, it sometimes takes a few pages more. Now, however, the cases have been decided in the courts. In the case of Mr Lutsenko there has been no appeal in three months; the sentence is definite. No appeal has been lodged, although I think there are still a few days in which to do so. The court has been very clear on that case. I look forward to hearing what politicians from the countries involved think of these cases, and what they will do with the recommendations in the report.

      THE PRESIDENT* – Thank you, Mr Omtzigt. In the general debate, I call Mr Herkel.

      Mr HERKEL (Estonia) – First, I thank Mr Omtzigt for this timely and important report. Its title, “Keeping political and criminal responsibility separate” says a lot, because there is a growing tendency to confuse those things. That is why we need such a report. It is about not having impunity for politicians on the one hand, and not allowing selective justice for political motives on the other. The two things should be separate.

      I did not understand the remarks by Mr Cilevičs on general principles and concrete examples. I think the report is quite well balanced. The general principles in the report make it a valuable document, as approved by the Venice Commission, and it sets out general guidelines for the future. On concrete examples, what happened with Ms Tymoshenko is the most well-known and best example – it is important to elaborate on that in the explanatory memorandum – as well as the cases of Lutsenko and Geir Haarde. It is an interesting idea to compare the case of Ms Tymoshenko with that of the former Icelandic Prime Minister in the same report, but one big difference must be outlined: Ms Tymoshenko is still in prison in Kharkiv, and she has been there for a long time; Geir Haarde was never arrested.

      Ms Khidasheli said that there is a link with the report we had on corruption, but there is also a strong link to the report on the definition of political prisoners from last October. We are discussing such matters because there is a growing tendency to have political prisoners in Council of Europe member States. Once again, I repeat that our ultimate goal must be for all countries in the Council of Europe to be without political prisoners. This report is one step to elaborate intellectually and to make a difference.

      Finally, at the beginning of the week, there was a request for an urgent debate on Georgia. Andreas Gross said that the issue was of concern, but that it could be debated when we discussed the report by Mr Omtzigt on Friday. That is right. This is a general debate, and now is the time to say something. It is important to note what happened after the report on political prisoners in Azerbaijan failed in this Chamber in January. That seemed to be seen in Baku as some kind of signal, and several people from the opposition were newly arrested. We failed to hold a separate debate about the situation in Georgia this week, although we have the opportunity to discuss it now. Let me say clearly that what happened in Azerbaijan after the Assembly failed to reach a clear position must not be repeated. News about detained persons in Tbilisi is a matter of concern. Political and criminal responsibility must be separated.

      Mr POPESCU (Ukraine)* – Distinguished colleagues, to be frank I came here intending to make a different speech from the one I am about to make, but I have listened to what Mr Van der Maelen said on behalf of the Committee on Political Affairs and Democracy, and I heard his proposals to move towards a compromise. To a large extent, he said a lot of what I was going to say – I basically agree with that committee.

      If we were just voting on the report and not the resolution, I would certainly call for it to be sent back to the committee, and we would ask the rapporteur to look at the issue more broadly and be more accurate in establishing facts about how different procedures and legal processes are followed in all countries of Europe. We should certainly look more carefully at the whole issue of keeping political and criminal responsibility apart, not just in one or two countries but in all countries of the Council of Europe. We must have a clear definition that applies to each and every country, which is what I said at the Standing Committee in Yerevan and at the Committee on Political Affairs and Democracy earlier this week.

      However, we will vote not on the report but on the resolution, and although the report could have been amended, today we will just look at the resolution. A compromise appears to have emerged which allows us to put forward a balanced text. I therefore welcome the climate that has been created. The discussions in the Committee on Political Affairs and Democracy and the Committee on Legal Affairs and Human Rights were positive. All the amendments proposed by Mr Van der Maelen were adopted unanimously yesterday by the Committee on Legal Affairs and Human Rights, which was good. I thank members of the committee, as well as Mr Omtzigt for the spirit of compromise he has shown. I call on everyone to vote for the resolution if those four amendments are adopted.

      Today’s debate is about an issue that is important to us all, but it also takes place on a day when we are celebrating the constitution of Ukraine. Adopting the constitution was a significant step for our involvement in the Council of Europe. It was on 28 June, all those years ago, that we adopted our constitution, which was recognised as being one of the most democratic that existed at that time. We guarantee freedom of political activity in accordance with our constitution.

      I am glad that today we have an opportunity in the Council of Europe to adopt a balanced resolution that will show that we all respect equal standards and the need to keep political and criminal responsibility apart, which is fully in line with the values upheld by our Organisation. I thank the rapporteur for the constructive spirit he has shown. I call for all four amendments – I remind you that they were adopted unanimously by the Committee on Political Affairs and Democracy and the Committee on Legal Affairs and Human Rights – to be agreed. Please vote for the resolution with those amendments. I thank colleagues for the constructive spirit that I am sure they will show.

      Ms OROBETS (Ukraine) – We thank Mr Omtzigt and the whole Assembly for raising this issue – the separation of political and criminal responsibility – which is a vital question for Ukraine and other transitional democracies. That is probably why the Lutsenko and Tymoshenko cases, as well as recent events in Georgia, are the best illustrations for this report.

      Unnaturally merged judicial and law enforcement systems are spread across post-Soviet countries and democracies in transition – including Ukraine, where the president controls both the judicial and law enforcement branches – and misuse the absence of clearly separated political and criminal responsibility for their own benefit. Recent political arrests in Georgia illustrate this. For us, as representatives of democratic political parties, it is obvious that it is the voters – the people who elected the politicians – who should take those political decisions and make these political evaluations.

      This issue should not be confined to cases of a strictly criminal nature, such as when high-ranking officials misuse their access to budget funds for personal gain or where crimes are committed against human rights. For political decisions, there are procedures available – elections and impeachment. When power changes hands, there is obviously a big temptation to get rid of opponents through political persecution. That is why adopting this resolution is necessary to reduce that temptation and prevent the reintroduction of medieval methods into political competition. Although practice shows that personal sanctions such as visa bans for those who order or execute politicised judgments have proven effective, under the current circumstances, adopting this resolution should be seen as the first step towards decreasing the opportunities for political persecution.

      Finally, and most importantly, contemporary Europe should not be a place where new inquisitors can fan the flames in a political auto-da-fé as did those who conducted the Tymoshenko, Lutsenko and other political processes. Let us show them that they have mistaken this epoch for another. The 21st century is a century of open political competition in the interests of people, not a time for misusing power and destroying political opponents.

      Mr SLUTSKY (Russian Federation)* – The first draft of this report would have taken us in a dangerous direction. Finding general criteria for separating political and criminal responsibility is a very difficult task. Only a court can decide in every single case to what extent a decision or ruling is right, or whether it is politicised or directed against a politician for political reasons. The title of the first draft referred to the abuse of political power – which is dealt with by Articles 17 and 18 of European Convention on Human Rights – but this is a very sensitive area. These matters can be solved only in courts. In the first draft of the report, Mr Omtzigt was virtually encroaching on the job of the European Court of Human Rights and turning this Assembly into a court. Indeed, the first draft referred to both the Assembly and the Strasbourg Court.

      I therefore welcome the efforts of Dirk Van der Maelen and the Committee on Political Affairs and Democracy, which yesterday adopted some balanced amendments. Now the draft resolution is balanced. It concentrates more on the principles of the Venice Commission, which, along with the unique procedure of monitoring, is the body that can tell us about the role played by the Council of Europe and the niche it occupies in the European architecture. The Council of Europe is not the same as all the other European institutions. That is why we should support the report if the amendments tabled by the Committee on Political Affairs and Democracy are agreed.

      At the same time, I again draw your attention to the fact that the separation of political and criminal responsibility is a sphere where no European international organisation can draw up general criteria. This is something that the courts should decide. Each case must be decided on the basis of all its different components, because each case is different. Trying to apply general criteria for the separation of these responsibilities is to politicise the issue. This should serve as a warning to us all that we are encroaching on the territory of the European Court, which is the excellent result of the decades of work of the Council of Europe, which has set up a unique judicial area in this geographic area.

      I congratulate my colleagues from Ukraine on this, their Constitution Day. I do not think we should be fierce in our criticism of Ukraine. If we compare its judicial system now with the system years ago, we can see that the constitution has made considerable strides forward – we saw that in the recent Moscow conference, at which more than 100 lawyers from Ukraine were present. The Tymoshenko case is before the European Court of Human Rights – there are also other individuals we could mention who could be considered political prisoners, including in Lithuania – but we have to appreciate that this is not a very relevant exercise. However, we have now come up with a balanced draft resolution, which I commend to the Assembly.

      Mr ZINGERIS (Lithuania) – Lithuania will chair the Council of the European Union from 1 July to 28 November. We will hold a European Union eastern neighbourhood summit. We hope to sign five agreements, relating to justice and the “maturity” of the countries concerned – I admit that they will have their homework to do when it comes to their systems of justice and relations with European values. In some cases, though, we are addressing the authorities in some countries and asking them to take steps to ensure that, abiding by the tenets of the European Union and of course the Council of Europe, they remain neutral and avoid a permanent vicious cycle of political vendettas.

Just yesterday in Georgia, 30 people, most of them politicians, were arrested and handcuffed for a few hours before being released. That is a bad example of political governance, and we hope that the newly elected Georgian authorities will show us that Georgia will not indulge in such political witch hunts. Also, of course, we all know the case of Tymoshenko. I ask everyone in this Chamber to support Mr Omtzigt’s report. It is high time to say what is said in every paragraph of his report. I congratulate the rapporteur on his clear, neutral and balanced judgment.

      Ms GERASHCHENKO (Ukraine)* – I thank Mr Omtzigt for his report and for raising these issues. Clearly, though, these issues do not concern only Ukraine. In States in the post-Soviet area, we see certain mistakes being made. In Georgia, we see the Yanukovych scenario from Ukraine to some extent being repeated. The report is extremely important, and it is symbolic that so much attention is being paid to Ukrainian opposition leaders in this way.

In politics, leaders have to take decisions. Heads of State or government frequently have to take very significant decisions that sometimes can be unpopular or risky. If there is any element of corruption or criminality in the taking of these decisions, they have to bear criminal responsibility for that. However, that has to be decided by a court in a country with a properly functioning judicial system. Ukraine does not have a real, properly functioning judicial system, which is a problem not only for European integration but even for the signing of any association agreement. We hope that some progress will be made in that regard at the summit in November this year, but this is nevertheless a serious problem. The report will be one of the arguments that the Ukrainian opposition can use to put this issue to the authorities again and say, “We have to do something about this because it is creating a problem for our country, not just for Yulia Tymoshenko and her party, or even just for the opposition, but for the whole country.” The way in which she has been deprived of all her rights cannot be justified.

Obviously, the Tymoshenko case has not been dealt with by due legal process. Her very dignity has been damaged by the ordeal that she has gone through. If a politician has made a political mistake, they should pay for that in political terms. It is up to the voters to decide whether or not to punish Ms Tymoshenko for any political mistakes that she may have made. That is how the system is supposed to work. Everything else – the arrest, the confusion of political and criminal responsibility, her imprisonment – is something totally different that her political opponents, such as Mr Yanukovych, have used against her.

      We recognise that the report is important and hope that it will be voted for. However, we also recognise that this has to be a first step in a real dialogue between our country and the Council of Europe, and we are sure that by voting for the report we will be sending a strong signal. It will give the Ukrainian opposition an argument that will allow us to raise this issue again before the Ukrainian Parliament. Time and again we have tried to do so, but now this will really help us. We need to have legislation adopted in our country that will properly divide political and criminal responsibility. We have also called for the release of Mr Lutsenko and Ms Tymoshenko. Not only should they be released but all their rights should be restored.

It is true that Ukraine has a very progressive constitution. However, it is all very well having that on paper and celebrating it on Constitution Day, but you also have to put it into practice and ensure that it is implemented properly in each and every electoral campaign.

Mr ROUQUET (France)*– The principle of equality that requires that all citizens be entitled to a fair trial applies to all. What is more, the criminal justice system cannot be used as a means of resolving disputes. Political responsibility presupposes that elected representatives are accountable to the people who have elected them. There are ways of calling the government to account, and of course there is universal suffrage.

Criminal responsibility attributes a criminal act to an identified individual. If that individual happens to be a politician, he has to be treated like any other citizen if the crime has nothing to do with his office. In such cases, there are several solutions. In France, Finland and Poland, for example, there are special impeachment tribunals, while François Hollande has asked all members of his government who are under investigation to hand in their resignation in order to ensure that the criminal cases do not interfere with the work of the government, which is a very good thing. However, in some countries it would appear that challenging the criminal responsibility of former members of a government or opposition members of parliament amounts to selective justice, more akin to a political trial than to a criminal one. As Voltaire said, “I may not agree with what you say but I will defend to the death your right to say it”.

The Venice Commission has looked at the cases of former members of the Government of Ukraine. Although of course we welcome the freeing of Mr Lutsenko, the conditions under which Ms Tymoshenko is being detained and the proliferation of cases brought by the prosecutor against members of the opposition are, rightly, cause for concern. Having said that, I very much regret that the report does not refer to other cases that are also problematic in terms of what we should expect from a State governed by the rule of law. I am thinking specifically of the situation in Georgia and of the arrest on 21 May of the former Prime Minister, Ivane Merabishvili, who was planning to stand as a candidate for the United National Movement in October. I cannot comment on the serious charges that have been levelled against him, but declarations made by members of the government to the press undermine the presumption of innocence. It is important that the situation calms down before elections are held. In order for that to happen, our Commissioner for Human Rights is attempting to restore dialogue between the two camps.

In Russia, too, judicial pressure on opposition movement leaders has been ramped up following demonstrations in 2012. How, for example, can the Duma strip a member, Mr Gudkov, of his office, though not his immunity? In a real democracy, power is constrained; one cannot have unlimited power. There are many other examples of concerns over issues of impartiality and the workings of the judiciary. In a democracy, the opposition has to be allowed to express itself and justice has to be allowed to take its course. That is why we have to keep political and criminal responsibility separate.

To conclude, I pay tribute to Nelson Mandela. In his book “Long Walk to Freedom” he said some words that echo our debate today: “If you want to make peace with your enemy, you have to work with your enemy. Then he becomes your partner.”

      Mr ARIEV (Ukraine) – Dear colleagues, can you imagine a situation in which your political decisions led to your imprisonment? Most of you will say no, as one of the main principles of the Council of Europe is that political decisions cannot be the basis of any kind of persecution, but in 2010, the newly elected Ukrainian President, Mr Yanukovych, immediately started political persecution of his opponents, sometimes using fake allegations by prosecutors – allegations for which there was no evidence at all. Since then, corrupt judges have convicted the opposition leaders Mr Lutsenko and Ms Tymoshenko, and sentenced them to various terms in prison.

Other politicians and their families have managed to leave Ukraine and have applied for political asylum. Yulia Tymoshenko’s husband and former Finance Minister Bohdan Danylyshyn have sought asylum in the Czech Republic. A former parliamentarian, Deputy Andriy Shkil, has asked for political asylum in France. By the way, I have asked some French MPs and the representatives of French authorities to help ensure that he is granted asylum. A letter in support of Mr Shkil has been signed by all leaders of the Ukrainian opposition and has been sent to the Interior Minister of France. Sviatoslav Piskun – a former MP from the ruling Party of Regions, and prosecutor general from 2005 to 2007 – is seeking asylum in France, because he did not agree to give false evidence against Yulia Tymoshenko.

Even our fellow Assembly member from Ukraine, Lesia Orobets, has suffered at the hands of the current regime, which started to put severe pressure on her husband. He was forced to leave Ukraine last week. I remind colleagues of the case of Mr Vlasenko, who was unlawfully stripped of his mandate in the national parliament because he was the public defender of Tymoshenko. The Ukrainian regime uses every kind of intimidation, blackmail and pressure, as well as faked criminal charges, to eliminate individuals who can effectively resist the process of transforming Ukraine into a State ruled by former criminal leaders and their gangs.

The European Union has produced an honest assessment of what is going on in Ukraine. European Union authorities did not recognise Mr Lutsenko’s conviction, and he was pardoned in April this year after steps were taken by the European Union. Lutsenko never asked for a pardon, because he always wanted justice to be done. Yulia Tymoshenko’s life is under threat because of the absence of appropriate treatment in her hospital prison. Yanukovych is so afraid of her that he does not even want to modify several articles in the Soviet-era criminal code that provided the grounds for Ms Tymoshenko’s conviction. His fear – I am not even speaking of his greed – does not let Ukraine move forward.

You may ask why this gang’s regime wants to join Europe via an association agreement, when a trade agreement would be more natural and have greater appeal to Yanukovych. The answer is that the mutual antagonism between Yanukovych and Putin is pushing Ukraine’s temporary leader to find partners in Europe. However, European Union officials have clearly set out their demands: the release of Ms Tymoshenko and the introduction of electoral, judicial and legal reforms, so that the criminal code is not used against political opponents in future. If those are not met, Ukraine will not become an associate member of the European family of nations. There is a possibility that we may see the creation of a grey criminal zone in Ukraine. We already have statistical evidence of a sharp increase in criminal activity in Ukraine, and that is against our common interests.

Ms Tymoshenko must be freed, as she has been convicted for taking political decisions – and she will be freed. Ukraine must be freed of the gangs, corrupt people and criminals who rule our State now. Europe must ensure that it is free from double standards by weighing in the balance everything that it finds profitable, and freedom and justice.

Mr JAKAVONIS (Lithuania)* – I thank Mr Omtzigt for his excellent report and the good work that he has done. For once, I support Mr Popescu, our Ukrainian colleague, who said that the report should be added to. The Labour party in Lithuania has been in its current situation for eight years now, and we are continuing to defend ourselves in our court case. The media is selective in its coverage of the case. However, the courts are going down and the Labour party is going up in the public’s estimation.

Over the past few years, we have managed to gain the trust of the people, but we cannot defend ourselves adequately from attacks, so we are obliged to ask for your help in every part-session of the Parliamentary Assembly of the Council of Europe. The Assembly calls for the development of democratic values and the protection of human rights, but that does not always seem to apply to countries beyond the borders of Europe, or even to those countries that have become fully fledged members of Europe since the collapse of the Soviet Union.

Colleagues have discussed the separation of political and criminal responsibility in Ukraine. The resolution says that the Assembly is concerned about the use of the criminal justice system to pursue political opponents. There is a feeling that there has been no separation of political and criminal responsibility in that country. The same applies to the criminal prosecution of the Labour party in Lithuania. Nine years ago, Lithuania tried to impeach its president. That case has been dropped, and he is now a member of the European Parliament. The trial was not covered much in the European media, so people do not know much about it. I draw colleagues’ attention to the draft resolution. A rapporteur should consider the issue, so that for the first time we can have an international investigation of what happened, and is happening, in the European country of Lithuania, which seems so democratic at first sight.

Mr KIVALOV (Ukraine)* – This is undoubtedly an important issue. It touches on some serious problems that have built up over the past few decades in most member countries of the Council of Europe. The practical value of the report and the resolution lie in the fact that the problem has been considered from both a judicial and political perspective, so we can see where the two meet.

The rapporteur has carefully studied the Venice Commission’s conclusions. That may be why he changed his opinion yesterday in the meeting of the Committee on Legal Affairs and Human Rights, at which it was unanimously recommended that four amendments be tabled. Those amendments have been referred to several times today. I think it would be appropriate to accept those amendments.

      The rapporteur has taken an objective and professional approach, as has Mr Van der Maelen. His work was extremely professional and has enhanced the previous body of work on the subject. It has allowed us to move towards a balanced resolution of the situation. We must take properly weighted decisions after careful thought, and the same rules must be applied to all member States of the Council of Europe. We cannot simply point the finger at one country, such as Ukraine. That is not our job, although it might be the job of the Monitoring Committee or of the ECHR.

      In the light of what I have said, I invite everyone to support the amendments tabled by the Committee on Political Affairs and Democracy and endorsed by the Committee on Legal Affairs and Human Rights. I also invite everyone to vote in favour of the resolution, because it is a positive step towards tackling a very topical issue.

      Mr TRIANTAFYLLOS (Greece)* – Today, we are debating a report to which certain amendments were tabled in the Committee on Legal Affairs and Human Rights yesterday and adopted by the Committee on Political Affairs and Democracy. Those committees have made a real contribution to an important issue that concerns not only eastern European countries but the family of democratic countries across Europe.

      I want to address a rather different aspect of the report. We are talking about political and criminal responsibility at a time of crisis in Europe. There has been a rise in neo-Nazi and populist parties not only in the European Union but elsewhere, and attitudes towards politicians are increasingly negative. In many countries, there has been a backlash against democracy and resistance to European ideas. Increasing populism on both ends of the political spectrum has only exacerbated the situation and undermined representative democracy. Why is that so? Such forces do not help us to analyse the real state of politics and the economy, because there are no easy answers. All we can do is to follow the difficult way ahead that will lead us to our goals. We must continue down that path and not yield to ways of thinking that undermine or sap democracy. Democracy will, ultimately, be the winner.

We are talking today about not having a discriminatory approach towards elected representatives, but we cannot allow certain actions of politicians to pass without sanction: there can be no impunity. Having said that, we must define such crimes and offences carefully and introduce rules to preserve the principle of equality. All citizens must be equal when it comes to the investigation or prosecution of crimes. Those rules must be strictly observed, and the definitions must be watertight. That is the only way to bolster European democracy and allow everyone to make a contribution to a better society.

Mr SOBOLEV (Ukraine) – I thank the rapporteur and the representative of the Committee on Political Affairs and Democracy. It is impossible to solve the problem we are discussing without concrete examples, but the examples that they gave offer the possibility of solving such problems in many European countries. Why did we not hear about political imprisonments after the recent events in Italy? Why did we not hear about political imprisonments in the Czech Republic, where there are different cases against opposition and ruling parties? In all those countries, the main answer is that justice will solve all those problems. What is the situation in the Ukraine? Who were the judges of the cases of Tymoshenko and Lutsenko? One of the judges in the Tymoshenko case had been appointed only two years before, and that complicated case was his first case in all his life. In the Lutsenko case, one of the judges was being prosecuted for previous criminal actions. He was judged to be not guilty and had to be reappointed to his position. How can such judges solve such problems? President Yanukovych and our parliamentary majority have not solved the problem.

What was the problem that led to the Tymoshenko case? Yulia Tymoshenko signed an agreement with the Prime Minister of the Russian Federation, Mr Putin, together with all the representatives of the European Commission, during the horrible events of January 2009, when the temperature was minus 15 and European Union countries had only two weeks’ supply of gas. After three years, the new prosecutor decided to initiate a process against her. Why was that process started? Was the gas deal corrupt? No. Did she do it for personal profit? No. It was just a political decision. Leaders of all the countries in the European Union, including the president and former president of France, announced that Tymoshenko was a political prisoner. That was the position of all government and opposition leaders in Europe and beyond.

      This is an issue not only for Ukraine. The question is how to avoid the same cases that we have in Ukraine arising in all other countries of the European Union and the Council of Europe. I thank everyone who proposed amendments that take a realistic approach to the main issue. We must never have political prisoners. The first step was the report that was produced a year ago. The next step will be the Monitoring Committee report to answer questions such as who the political prisoners are in Ukraine. Therefore, the opposition will support the proposals. We think that they are the best answer to all those who exercise repression in Ukraine – first of all, Yanukovych and all the others.

Ms ČIGĀNE (Latvia) – I thank the rapporteur for this timely report on a difficult topic. The subject of the criminalisation of political responsibility will never be an exact science, just as the subject of political prisoners will never be an exact science. Therefore, a political debate such as the one we are having is appropriate. It is right to discuss different cases and whether criminal charges have been politicised or not.

Mr Omtzigt’s report is valuable because it clearly states that, in discussing the politicisation of criminal responsibility, we are not advocating impunity for public officials. Public officials should be accountable for their criminal acts, just like every other citizen. However, it is always a question of how justice is carried out. In that respect, I recall the speech by our colleague Mr Sobolev, who clearly pointed out that in Italy a very high public official was charged with serious criminal offences. In the Czech Republic recently, serious criminal charges were pressed against a high-level official. We did not raise the possibility of the politicisation of those criminal charges. Why not? Because there is trust in law enforcement. There is trust in those countries that the courts will proceed impartially.

On law enforcement authorities proceeding impartially, I offer some criteria for judging these processes. First, we should ask to what extent they are transparent, whether the charges that are being pressed against public officials are clear and whether the provisions of the law according to which they are held responsible are clear. It is also important that one official is not punished twice for the same crime, as has sometimes happened in Ukraine, as we have heard.

The process also has to be clear and discreet. It should not be political window dressing, where a lot of publicity is created around the detention of public officials and their court cases. Of course such charges should be pressed against public officials by law enforcement agencies that enjoy high trust in society. Unfortunately, especially in the former communist countries, trust in law enforcement is very low because of the legacy of politicisation of the criminal processes.

The arrest and charges should not be arbitrary. Our colleague Mr Herkel pointed out that, in Azerbaijan, political prisoners have been detained, released and detained again, according to how the Assembly defines political prisoners and to the resolutions that it has adopted. What is that if not arbitrary implementation? The process of detaining 30 public officials in Tbilisi also looks to me like political window dressing. I apologise if it does not look like that to other people but to me the criterion of discretion in law enforcement has not been met.

Ms TAKTAKISHVILI (Georgia)* – I thank the rapporteur for an excellent report. I deplore the fact that in committee there was a decision to cross out quite a lot of the resolution, particularly the parts referring to specific States. The situation is grave in countries of the Council of Europe. In Georgia, dozens of civil servants in Tbilisi have been arrested. They were released the same day but they were arrested again in the evening, when a high delegation from NATO left the capital. Five people are still in prison.

More than 100 representatives of the former leadership of the Government of Georgia are under criminal investigation, including five former ministers and various representatives of political parties. Two former ministers of defence and the interior are in prison following the electoral transition in Georgia on 1 October 2012. How can we explain that situation? How does that behaviour come about? Civil servants in Tbilisi are being prosecuted under the criminal law. The only motivation is to intimidate the municipality of Tbilisi, where the opposition has always been in the majority. Things become clearer in Georgia when you hear that the prosecutor general was the private lawyer of a billionaire – the prime minister of the country. In a member State of the Council of Europe, separation is not occurring between political and criminal responsibility.

We have two different types of State in the Council of Europe. One consists of countries that have a solid history of democracy and protection of human rights, and respect for the rule of law. If political or criminal responsibility is ever called into question in the case of former leaders, we have no doubt that the court will follow due process in its investigations, that the law will prevail and that there will be no impunity. There is a danger involved with impunity, where politicians can perhaps never be brought to book when they carry out violations of human rights or acts of corruption.

In the Council of Europe, we also have States that this very Assembly has questioned regarding the degree to which they are upholding their commitments to the Council of Europe and respecting the separation of powers and the independence of the judiciary from politicians and other branches of power. Unfortunately, with countries such as Ukraine, the Russian Federation and even Georgia now, we are right to ask questions when we look at the witch hunt that occurred after the elections, which were considered to be democratic.

I also want to mention Mr Navalny from the Russian Federation. We know the accusations that were made against him; he was accused of corruption when he worked in one of the municipalities of the Russian Federation four years ago. Just by chance, that coincided with a great deal of activity in civil society in Russia; there was a lot of opposition to the authoritarian measures introduced by President Putin. In that case, the Russian Federation said that it wanted to examine the corruption charges against Mr Navalny. Again, I regret the fact that today we cannot discuss specific cases, but I encourage the rapporteur to continue his work and to take a lively interest in the situations in other countries of the Council of Europe.

      Mr RECORDON (Switzerland)* – I add my voice to the chorus of praise for the rapporteur and endorse many of the comments that have been made. Like the previous speaker, I think that, despite the excellent work that has been done thus far, there is still a long way to go. We have to look at two areas: material law, as outlined by Mr Triantafyllos, and procedural law.

      On material law, we are talking about allegations of economic crimes, which are difficult to define. It is difficult to decide where the parameters lie. Economic crime relates to abuse of power, abuse of property and unfair competition, but there is a large margin of appreciation in such cases. Public authorities and States handle large amounts of money and it is important to ensure that that responsibility is not abused. There should be no corruption and penal law should not be used for political purposes. We have to look carefully at that.

      Secondly, process and procedures boil down to trust in our judges. Ultimately, the highly placed body of the European Court of Human Rights is the final arbiter of the relevant cases. Sadly, however, the Court’s judgments are not always put into practice. Perhaps our own Monitoring Committee could be a little more strict about the Court’s decisions. I am, however, a little pessimistic about our monitoring procedures in the light of recent events. We all seem to be speaking with one voice this morning, but that has not always been the case.

      I have one further question: could we not have more direct procedures? When someone in high office in a particular country complains of abuses, could we not make it possible for them to have direct recourse to the European Court of Human Rights, rather than having to go through the many bureaucratic channels, which are excessive in some cases? Perhaps individuals could bring issues directly before the Court or some other body.

      THE PRESIDENT* – That concludes the list of speakers. I am delighted to have been able to give the floor to everyone on the list. Even though it is a Friday morning, there is a good turnout in the Chamber. There are 70 voting cards in their slots so far, which I think attests to the fact that these Friday morning sessions are worthwhile.

      I call Mr Omtzigt to reply. You have three minutes left.

      Mr OMTZIGT (Netherlands) – Mr President, you took away my first words, which were a big thank you to members for taking an interest in this important debate that goes to the heart of democracy: when are we politically liable and when are we criminally liable for the very important, far-reaching decisions we take?

      I was happy with the way in which Mr Sobolev explained the things that went wrong in his country. It is not that the laws are imperfect: the laws of most countries are perfectly in order and my report on Cyprus and money laundering notes that MONEYVAL says as much. The issue is the way in which they are applied.

      Sometimes, however, the laws are not in order, which is why my stance differs from that of Mr Slutsky. It is not that we cannot debate political decisions. That is what we do as politicians – we make laws. In Ukraine, Mr Lutsenko was sent to prison for a few years because he arranged a ceremony to give flowers to the widows of politicians and of policemen who had died in service. If such laws are used to jail political opponents, they should be changed. The case involved no personal gain whatsoever. Silly laws can lead to silly conclusions.

      I have found this debate interesting. I wrote quite a few pages on some countries and my conclusions were very strong, yet nobody who has spoken has taken offence at one word that I wrote.

      Some amendments have been adopted unanimously, but I commend in particular Amendment 4, tabled by Mr Van der Maelen, on behalf of the Committee on Political Affairs and Democracy, which “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.” If the Monitoring Committee agrees that this is a good report – I have heard much support for it – it will have to take action on the two particular cases I have mentioned.

      THE PRESIDENT* – The chairperson of the committee has two minutes.

      Mr CHOPE (United Kingdom) – I thank the rapporteur and everybody who has participated in this debate. Many in the Bureau often argue that they do not want a Friday debate, because nobody will be here and we only have non-serious debates on Fridays. I think that this debate has demonstrated that if we put serious topics on the agenda for Friday, members will come along. Holding trivial debates on a Friday creates a vicious circle, because not many people will attend. I hope that today’s example will be heard loud and clear by Bureau members and that they will put more serious issues on the agenda for future Fridays.

      Another good thing to come from the debate is the co-operation between the two committees. The Committee on Political Affairs and Democracy came up with some sensible amendments, which our committee has accepted unanimously. There has not been a stand-off on the basis that we are separate committees that want to demonstrate our independence. We have reached a collective opinion and I hope it will be endorsed by the Assembly. I think that this is an example of the Parliamentary Assembly at its best.

      THE PRESIDENT* – Thank you, Mr Chope. I take it that we can assume that you are saying that some reports are less important than others, but that is not the case. It is important that everyone attends the Assembly every day.

      The debate is closed.

      The report, “Keeping political and criminal responsibility separate”, Document 13214, proposes a draft resolution to which eight amendments have been tabled.

      I understand that the Chair of the Committee on Legal Affairs and Human Rights wishes to propose to the Assembly that the following amendments, which were unanimously approved by the committee, should be declared as agreed by the Assembly under Rule 33.11.

      The amendments are Amendments 1 and 3 to the draft resolution.

      The committee also agreed unanimously to accept Amendments 2 and 4, but as their adoption would have the effect of nullifying Amendments 5 and 6, we must take these amendments separately.

      Is that so, Mr Chope?

      Mr CHOPE (United Kingdom) – Yes.

      THE PRESIDENT* – Are there any objections? That is not the case.

      The following amendments have been adopted:

      Amendment 1, tabled by the Committee on Political Affairs and Democracy, which is, 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;”Am

      Amendment 3, tabled by the Committee on Political Affairs and Democracy, which is, 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.”

We come to Amendment 2, tabled by the Committee on Political Affairs and Democracy, which is, in the draft resolution, delete paragraph 4.

      I call Mr Van der Maelen to support Amendment 2.

      Mr Van der MAELEN (Belgium)* – This amendment has been tabled because there was an agreement in the Committee on Political Affairs and Democracy, as well as in the Committee on Legal Affairs and Human Rights, that we wished to delete from the resolution all references to a certain country. As paragraph 4 refers to a certain country, we suggest that it be deleted.

      THE PRESIDENT* – Does anyone wish to speak against the amendment? That is not the case.

      The committee is clearly in favour. The vote is open.

      We come to Amendment 4, tabled by the Committee on Political Affairs and Democracy, which is, 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.”

      I call Mr Van der Maelen to support Amendment 4.

      Mr Van der MAELEN (Belgium)* – This is for exactly the same reason as Amendment 2. We made a general decision to avoid reference to specific countries. Two countries have been found in violation, but we do not name them.

      THE PRESIDENT* – Does anyone wish to speak against the amendment? That is not the case.

      The committee is of course in favour. The vote is open.

We come to Amendment 7, tabled by Mr Volontč, Mr Mariani, Mr Van Dijk, Mr Badea, Mr Sasi, Mr Halicki, Mr Krząkała, Ms Virolainen, Mr Walter, Mr Neill, Mr Hörster, Mr Fischer, Mr Fritz, Mr Sobolev, Mr Preda, Mr Díaz Tejera, Mr Mendes Bota, Mr Deseyn, Mr Zingeris, Ms de Pourbaix-Lundin, Mr Ariev, Mr Braun, Mr Koszorús, Mr Hoppál, Ms Csöbör, Mr Gulyás, Mr Agramunt, Ms Graham, Ms Schou, Mr Gábor Tamás Nagy, Mr Vejkey, Mr Mota Amaral, Mr Ghiletchi, Mr Leyden, Ms Leiputė, Ms Guţu, Ms Quintanilla, Mr Biedroń, Ms Lībiņa-Egnere, Sir Edward Leigh, Mr Chaloupka and Mr Kandelaki, which is, 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.”

      I understand that Mr Mariani wishes not to move Amendment 7.

      Mr KANDELAKI (Georgia) – I withdrew this amendment in the committee, because the two committees jointly made a political decision not to mention any country in the text of the resolution. However, the opinion of the Assembly has been clear in the debate that we have seen very strong signs of a witch hunt and score settling in Georgia, and I hope that we will continue discussion on this matter.

THE PRESIDENT* – Amendment 7 is not moved.

We come to Amendment 8, tabled by Mr Volontč, Mr Mariani, Mr Van Dijk, Mr Badea, Mr Sasi, Mr Halicki, Mr Krząkała, Ms Virolainen, Mr Walter, Mr Neill, Mr Hörster, Mr Fischer, Mr Fritz, Mr Sobolev, Mr Mendes Bota, Mr Preda, Mr Díaz Tejera, Mr Deseyn, Mr Zingeris, Mr Ariev, Mr Braun, Mr Koszorús, Mr Hoppál, Ms Csöbör, Mr Gulyás, Mr Agramunt, Ms Graham, Ms Schou, Mr Gábor Tamás Nagy, Mr Vejkey, Mr Mota Amaral, Mr Ghiletchi, Mr Leyden, Ms Leiputė, Ms Guţu, Ms Quintanilla, Mr Biedroń, Ms Lībiņa-Egnere, Sir Edward Leigh, Mr Chaloupka and Mr Kandelaki, which is, 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.”I

      I understand that Mr Mariani wishes does not wish to move Amendment 8.

      Mr SASI (Finland) – As has been said, the situation in Georgia is worrying and we should follow events closely, but this is not the right place for this amendment as no country is now mentioned in the report. I withdraw the amendment, but I hope that we will return to the issue of Georgia soon.

      THE PRESIDENT* – Amendment 8 is not moved.

      We will now proceed to vote on the whole of the draft resolution contained in Document 13214, as amended. The vote is open.

6. References to committees

      THE PRESIDENT* – The Bureau has proposed a number of references to committees for ratification by the Assembly. They are set out in AS/Inf (2013) 06.

      Are there any objections to the proposed references to committees?

      There is no objection, so the references are approved.

7. Voting Champions

      THE PRESIDENT* – I am pleased to be able to announce the names of our voting champions, those members who have been the most assiduous attendees and who have voted most frequently. They are Ms Christoffersen, Mr Gross and Ms Ohlsson. I congratulate all of them. We have small gifts for the champions and I invite them to come and collect them.

8. End of the part-session

      THE PRESIDENT* – We have now come to the end of our business.

      I thank all members of the Assembly, particularly the rapporteurs of committees, for their hard work during this part-session. I also thank the staff and interpreters, both permanent and temporary, who have worked hard to make the part-session a success.

      The fourth part of the 2013 Session will be held from 30 September to 4 October.

      I declare the third part of the 2013 Session of the Parliamentary Assembly of the Council of Europe closed.

      (The sitting was closed at 12.40 p.m.)

CONTENTS

1. Death of a member

2. Examination of credentials

3. Changes in the membership of committees

4. Draft protocol No. 16 to the convention for the protection of human rights and fundamental freedoms

Presentation by Mr Chope of report of the Committee on Legal Affairs and Human Rights in Doc. 13220

Speakers: Mr Kox (Netherlands), Mr Gross (Switzerland), Mr Xuclŕ (Spain), Mr Schneider (France), Mr Kalmár (Hungary), Mr Sasi (Finland), Mr Reiss (France)

Replies: Mr Chope (United Kingdom), Mr Cilevičs (Latvia)

Draft opinion in Document 13220 adopted

5. Keeping political and criminal responsibility separate

Presentation by Mr Omtzigt of report of the Committee on Legal Affairs and Human Rights in Doc. 13214

Presentation by Mr van der Maelen of opinion of the Committee on Political Affairs and Democracy in Doc. 13251

Speakers: Mr Kox (Netherlands), Mr Sasi (Finland), Mr Cilevičs (Latvia), Ms Khidasheli (Georgia), Mr Walter (United Kingdom)

Reply to the speakers from political groups: Mr Omtzigt (Netherlands)

Speakers: Mr Herkel (Estonia), Mr Popescu (Ukraine), Ms Orobets (Ukraine), Mr Slutsky (Russian Federation), Mr Zingeris (Lithuania), Ms Gerashchenko (Ukraine), Mr Rouquet (France), Mr Ariev (Ukraine), Mr Jakavonis (Lithuania), Mr Kivalov (Ukraine), Mr Triantafyllos (Greece), Mr Sobolev (Ukraine), Ms Čigāne (Latvia), Ms Taktakishvili (Georgia), Mr Recordon (Switzerland)

Replies: Mr Omtzigt (Netherlands), Mr Chope (United Kingdom)

Amendments 1, 3, 2 and 4 adopted

Draft resolution in Document 13214, as amended, adopted

6. References to committees

7. Voting champions

8. End of the part-session

Appendix

Representatives or Substitutes who signed the Attendance Register in accordance with Rule 11.2 of the Rules of Procedure. The names of Substitutes who replaced absent Representatives are printed in small letters. The names of those who were absent or apologised for absence are followed by an asterisk

Pedro AGRAMUNT

Arben AHMETAJ*

Miloš ALIGRUDIĆ*

Jean-Charles ALLAVENA*

Karin ANDERSEN

Lord Donald ANDERSON*

Paride ANDREOLI*

Khadija ARIB*

Volodymyr ARIEV

Francisco ASSIS*

Danielle AUROI*

Daniel BACQUELAINE/Dirk Van Der Maelen

Theodora BAKOYANNIS*

David BAKRADZE*

Gérard BAPT*

Gerard BARCIA DUEDRA*

Doris BARNETT*

José Manuel BARREIRO*

Deniz BAYKAL

Marieluise BECK*

José María BENEYTO*

Levan BERDZENISHVILI/Tinatin Khidasheli

Deborah BERGAMINI*

Robert BIEDROŃ*

Gülsün BİLGEHAN*

Brian BINLEY*

Ľuboš BLAHA*

Delia BLANCO*

Jean-Marie BOCKEL*

Eric BOCQUET*

Mladen BOJANIĆ

Olga BORZOVA

Mladen BOSIC*

António BRAGA*

Anne BRASSEUR

Márton BRAUN

Federico BRICOLO*

Ankie BROEKERS-KNOL/Pieter Omtzigt

Gerold BÜCHEL

Patrizia BUGNANO*

André BUGNON

Natalia BURYKINA /lga Kazakova

Sylvia CANEL*

Mevlüt ÇAVUŞOĞLU*

Mikael CEDERBRATT*

Otto CHALOUPKA*

Irakli CHIKOVANI

Vannino CHITI*

Tudor-Alexandru CHIUARIU*

Christopher CHOPE

Lise CHRISTOFFERSEN

Desislav CHUKOLOV*

Lolita ČIGĀNE

Boriss CILEVIČS

Henryk CIOCH*

James CLAPPISON*

Deirdre CLUNE*

Agustín CONDE*

Telmo CORREIA

Carlos COSTA NEVES*

Katalin CSÖBÖR/László Koszorús

Joseph DEBONO GRECH*

Armand De DECKER*

Roel DESEYN*

Arcadio DÍAZ TEJERA

Peter van DIJK*

Şaban DİŞLİ

Aleksandra DJUROVIĆ

Jim DOBBIN*

Karl DONABAUER*

Ioannis DRAGASAKIS

Damian DRĂGHICI*

Daphné DUMERY*

Alexander [The Earl of] DUNDEE*

Josette DURRIEU/ Maryvonne Blondin

Mikuláš DZURINDA*

Baroness Diana ECCLES*

Tülin ERKAL KARA*

Gianni FARINA*

Joseph FENECH ADAMI*

Cătălin Daniel FENECHIU*

Vyacheslav FETISOV*

Doris FIALA/ Raphaël Comte

Daniela FILIPIOVA*

Axel E. FISCHER*

Jana FISCHEROVÁ*

Gvozden Srećko FLEGO*

Hans FRANKEN*

Jean-Claude FRÉCON*

Béatrice FRESKO-ROLFO*

Erich Georg FRITZ

Martin FRONC*

Sir Roger GALE

Karl GARĐARSON

Tamás GAUDI NAGY

Nadezda GERASIMOVA

Valeriu GHILETCHI*

Paolo GIARETTA*

Michael GLOS*

Pavol GOGA*

Jarosław GÓRCZYŃSKI*

Alina Ştefania GORGHIU

Svetlana GORYACHEVA

Martin GRAF*

Sylvi GRAHAM*

Andreas GROSS

Arlette GROSSKOST*

Dzhema GROZDANOVA*

Attila GRUBER

Gergely GULYÁS/Imre Vejkey

Pelin GÜNDEŞ BAKIR*

Antonio GUTIÉRREZ*

Ana GUŢU*

Maria GUZENINA-RICHARDSON/Jouko Skinnari

Carina HÄGG*

Sabir HAJIYEV

Andrzej HALICKI*

Mike HANCOCK*

Margus HANSON

Davit HARUTYUNYAN

Hĺkon HAUGLI*

Norbert HAUPERT

Alfred HEER

Martin HENRIKSEN*

Andres HERKEL

Adam HOFMAN*

Jim HOOD*

Joachim HÖRSTER*

Arpine HOVHANNISYAN/Naira Karapetyan

Anette HÜBINGER*

Andrej HUNKO*

Ali HUSEYNLI/Sahiba Gafarova

Rafael HUSEYNOV/Sevinj Fataliyeva

Shpëtim IDRIZI*

Vladimir ILIĆ/Vesna Marjanović

Florin IORDACHE*

Igor IVANOVSKI*

Tadeusz IWIŃSKI*

Denis JACQUAT*

Gediminas JAKAVONIS

Stella JANTUAN*

Tedo JAPARIDZE*

Ramón JÁUREGUI*

Michael Aastrup JENSEN*

Mogens JENSEN*

Jadranka JOKSIMOVIĆ*

Ögmundur JÓNASSON

Čedomir JOVANOVIĆ*

Antti KAIKKONEN*

Ferenc KALMÁR

Božidar KALMETA*

Mariusz KAMIŃSKI*

Marietta KARAMANLI*

Ulrika KARLSSON*

Burhan KAYATÜRK*

Jan KAŹMIERCZAK*

Serhii KIVALOV

Bogdan KLICH*

Serhiy KLYUEV/Volodymyr Pylypenko

Haluk KOÇ*

Igor KOLMAN*

Attila KORODI*

Alev KORUN*

Tiny KOX

Borjana KRIŠTO*

Dmitry KRYVITSKY*

Václav KUBATA*

Ertuğrul KÜRKÇÜ*

Athina KYRIAKIDOU*

Jean-Yves LE DÉAUT*

Igor LEBEDEV*

Harald LEIBRECHT*

Orinta LEIPUTĖ

Christophe LÉONARD*

Terry LEYDEN*

Inese LĪBIŅA-EGNERE

Lone LOKLINDT*

François LONCLE*

Jean-Louis LORRAIN*

George LOUKAIDES*

Younal LOUTFI*

Yuliya L'OVOCHKINA

Saša MAGAZINOVIĆ*

Philippe MAHOUX*

Gennaro MALGIERI*

Pietro MARCENARO*

Thierry MARIANI/André Schneider

Epameinondas MARIAS

Milica MARKOVIĆ*

Meritxell MATEU PI

Pirkko MATTILA*

Frano MATUŠIĆ*

Liliane MAURY PASQUIER

Michael McNAMARA*

Sir Alan MEALE*

Ermira MEHMETI DEVAJA*

Ivan MELNIKOV*

Nursuna MEMECAN

José MENDES BOTA*

Jean-Claude MIGNON/Frédéric Reiss

Djordje MILIĆEVIĆ*

Federica MOGHERINI REBESANI*

Andrey MOLCHANOV*

Jerzy MONTAG*

Rubén MORENO PALANQUES*

Patrick MORIAU*

Joăo Bosco MOTA AMARAL

Arkadiusz MULARCZYK*

Lydia MUTSCH/ Félix Braz

Lev MYRYMSKYI/Serhiy Labaziuk

Philippe NACHBAR*

Oľga NACHTMANNOVÁ*

Marian NEACŞU*

Aleksandar NENKOV*

Pasquale NESSA*

Fritz NEUGEBAUER*

Baroness Emma NICHOLSON*

Brynjar NÍELSSON

Elena NIKOLAEVA/Anvar Makhmutov

Aleksandar NIKOLOSKI

Mirosława NYKIEL*

Judith OEHRI

Carina OHLSSON

Joseph O'REILLY*

Lesia OROBETS

Sandra OSBORNE*

José Ignacio PALACIOS

Liliana PALIHOVICI*

Dimitrios PAPADIMOULIS*

Eva PARERA/Jordi Xuclŕ

Ganira PASHAYEVA*

Lajla PERNASKA*

Johannes PFLUG*

Danny PIETERS*

Foteini PIPILI*

Ivan POPESCU

Lisbeth Bech POULSEN*

Marietta de POURBAIX-LUNDIN

Cezar Florin PREDA*

John PRESCOTT*

Jakob PRESEČNIK*

Gabino PUCHE*

Alexey PUSHKOV*

Mailis REPS*

Eva RICHTROVÁ*

Andrea RIGONI*

François ROCHEBLOINE*

Maria de Belém ROSEIRA*

René ROUQUET

Marlene RUPPRECHT*

Ilir RUSMALI*

Pavlo RYABIKIN/Iryna Gerashchenko

Rovshan RZAYEV

Giacomo SANTINI*

Giuseppe SARO*

Kimmo SASI

Deborah SCHEMBRI

Stefan SCHENNACH

Marina SCHUSTER*

Urs SCHWALLER/ Luc Recordon

Senad ŠEPIĆ*

Samad SEYIDOV*

Jim SHERIDAN*

Oleksandr SHEVCHENKO/Oleh Pankevych

Boris SHPIGEL*

Arturas SKARDŽIUS*

Ladislav SKOPAL*

Leonid SLUTSKY

Serhiy SOBOLEV

Lorella STEFANELLI*

Yanaki STOILOV*

Christoph STRÄSSER*

Karin STRENZ*

Ionuţ-Marian STROE

Giacomo STUCCHI*

Valeriy SUDARENKOV*

Björn von SYDOW

Petro SYMONENKO*

Vilmos SZABÓ*

Chiora TAKTAKISHVILI

Vyacheslav TIMCHENKO/Tamerlan Aguzarov

Romana TOMC*

Lord John E. TOMLINSON

Latchezar TOSHEV*

Mihai TUDOSE *

Ahmet Kutalmiş TÜRKEŞ

Tuğrul TÜRKEŞ

Theodora TZAKRI*

Tomáš ÚLEHLA*

Ilyas UMAKHANOV*

Giuseppe VALENTINO*

Miltiadis VARVITSIOTIS/Konstantinos Triantafyllos

Volodymyr VECHERKO/Ivan Fursin

Mark VERHEIJEN*

Anne-Mari VIROLAINEN*

Luigi VITALI*

Luca VOLONTČ*

Vladimir VORONIN*

Tanja VRBAT*

Klaas de VRIES*

Nataša VUČKOVIĆ

Zoran VUKČEVIĆ

Draginja VUKSANOVIĆ*

Piotr WACH*

Johann WADEPHUL*

Robert WALTER

Dame Angela WATKINSON*

Katrin WERNER

Karin S. WOLDSETH/Ingjerd Schou

Gisela WURM*

Karl ZELLER*

Barbara ŽGAJNER TAVŠ*

Svetlana ZHUROVA*

Emanuelis ZINGERIS

Guennady ZIUGANOV*

Naira ZOHRABYAN/Vahe Hovhannisyan

Levon ZOURABIAN

Vacant seat, Cyprus*

ALSO PRESENT

Representatives and Substitutes not authorised to vote

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Observers

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Partners for Democracy

Bernard SABELLA