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Committee Opinion | Doc. 13251 | 25 June 2013
Keeping political and criminal responsibility separate
Committee on Political Affairs and Democracy
A. Conclusions of the committee
(open)1. The Committee on Political Affairs and Democracy
welcomes the draft resolution presented by the Committee on Legal
Affairs and Human Rights to the extent that it aims to develop guiding
principles for distinguishing between legitimate criminal responsibility
of politicians and unacceptable criminalisation of political decision-making.
These principles are addressed to the legislative bodies and other
competent authorities of member States.
2. The committee congratulates the European Commission for Democracy
through Law (Venice Commission) on the excellent opinion and comparative
analysis it provided on the matter. The opinion focused on ministerial
criminal responsibility and its conclusions should be faithfully
reflected in the principles to be adopted by the Assembly.
3. At the same time, the committee cannot agree with the approach
followed in the draft resolution to the extent that it is proposed
to apply those guiding principles to concrete cases in a single
member State. It understands that this was the choice of the majority
of the Committee on Legal Affairs and Human Rights.
4. Nevertheless, the Committee on Political Affairs and Democracy
is of the opinion that, whereas this choice can be reflected in
the explanatory memorandum of the report, which is the sole responsibility
of the rapporteur of the Committee on Legal Affairs and Human Rights,
it cannot commit the whole Assembly. The latter should not substitute
itself for the national competent authorities in the member States
which it calls on to respect and implement the proposed principles.
Furthermore, there is a country-specific monitoring procedure for
Ukraine and the mandate of the Monitoring Committee’s co-rapporteurs
covers the issues raised in the draft resolution in question.
B. Proposed amendments
(open)Amendment A (to the draft resolution)
In the draft resolution, replace paragraph 3.5 with the following text:
“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 should not be influenced by political considerations;”
Amendment B (to the draft resolution)
In the draft resolution, delete paragraph 4.
Amendment C (to the draft resolution)
In the draft resolution, before paragraph 5.1, insert the following sub-paragraph:
“urges governing majorities in member States to refrain from abusing the domestic criminal justice system for the persecution of political opponents;”
Amendment D (to the draft resolution)
In the draft resolution, replace paragraph 5.3 with the following sub-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;”
C. Explanatory memorandum by Mr Van der Maelen, rapporteur for opinion
(open)1. I welcome the work carried out by the rapporteur
of the Committee on Legal Affairs and Human Rights, Mr Pieter Omtzigt,
to the extent that it aims to develop guiding principles (standards)
for distinguishing between legitimate criminal responsibility of
politicians and unacceptable criminalisation of political decision-making, indeed
a challenging task. The proposed principles are addressed to the
legislative bodies and other competent authorities of member States.
The latter are respectively invited to abolish or redraft broad
abuse-of-office criminal law provisions and to interpret and apply
with caution and restraint special impeachment procedures for ministerial
criminal responsibility.
2. In this respect, both the main rapporteur’s work and its outcome,
namely the draft resolution adopted by the Committee on Legal Affairs
and Human Rights, correspond to the motion for a resolution which
constitutes the basis of the report, namely the need to develop
“clear European standards … on the delimitation of criminal and
political responsibility” (Doc.
12749).
3. I congratulate the Venice Commission on the excellent opinion
and comparative analysis it provided on “the relationship between
political and criminal ministerial responsibility”, upon the request
of the Committee on Legal Affairs and Human Rights (document CDL-AD(2013)001).
Its conclusions should be faithfully reflected in the principles
to be adopted by the Assembly.
4. At the same time, whereas I understand that concrete case
studies can be used as examples to illustrate the need to elaborate
“clear European standards” or guiding principles in the field, I
fail to understand why the rapporteur applied the proposed principles
only to three cases in two member States in his explanatory memorandum
and, even more, why the draft resolution adopted by the Committee
on Legal Affairs and Human Rights refers only to two cases in one
single member State.
5. It is not my intention to enter into the merits of whether
or not the principles of the separation of political and criminal
responsibility have been violated in the cases of former Ukrainian
Prime Minister Julia Tymoshenko and former Ukrainian Interior Minister
Yuri Lutsenko, or in the case of former Icelandic Prime Minister
Geir Haarde. But I cannot understand, from a methodological point
of view, the choice made not simply to mention these cases as examples
illustrating the problem and the need to establish guiding principles
on the distinction between political and criminal responsibility,
or even as a source of inspiration for proposing certain principles,
but actually to apply such principles to these cases only.
6. Firstly, such an approach can create the impression that these
are the only cases in Europe where the principles of the separation
of political and criminal responsibility have been violated. But
this was surely not the intention of the rapporteur and of the Legal
Affairs Committee. Secondly, as regards the cases of Tymoshenko
and Lutsenko, the only ones which are referred to in the draft resolution,
I find problematic the fact that these cases are also closely followed
by the co-rapporteurs of the Monitoring Committee on Ukraine. Indeed,
a debate under urgent procedure was held last year precisely on
these cases, the report was entrusted to the Monitoring Committee
co-rapporteurs on Ukraine and the Assembly adopted Resolution 1862 (2012) whereby
it clearly expressed its concerns. The long and detailed analysis
of these two cases by the rapporteur of the Committee on Legal Affairs
and Human Rights and, in particular, its conclusions on the application
of the guiding principles he proposes in general to these specific
cases may undermine the work and mandate of the co-rapporteurs of
the Monitoring Committee who are in constant dialogue with the Ukrainian
authorities on the same matters.
7. I would have found it more appropriate if the report and the
draft resolution had been limited to defining the guiding principles
or standards and left to specific reports, either ongoing, such
as country-specific monitoring reports, or future reports to be
initiated, to deal with the application of the general, guiding
principles to specific cases in one or more member States.
8. That said, I understand that the choice of the case studies
of Ukraine and Iceland was approved by the majority of the Committee
on Legal Affairs and Human Rights and therefore the rapporteur accomplished
his mission as his committee asked him to do.
9. Nevertheless, as rapporteur for opinion on behalf of the Committee
on Political Affairs and Democracy, I believe that, whereas this
choice can be reflected in the explanatory memorandum of the report,
which is the sole responsibility of the rapporteur of the Committee
on Legal Affairs and Human Rights, it cannot commit the whole Assembly.
The latter should not substitute itself to the national competent
authorities in the member States which it calls on to respect and
implement the proposed principles, not, at least, in a resolution
resulting from a thematic report which is meant to establish these
principles. As said above, these principles could be applied to
specific cases, at a second step.
10. In view of the above-mentioned considerations, of mainly a
methodological nature, I suggest Amendments B and C, which should
be read in conjunction. More specifically, Amendment B proposes
deleting reference in the resolution to two specific cases in Ukraine
and Amendment C proposes instead addressing, in similar terms, the
authorities of all member States. Thus, it is clear that the problem
of distinguishing between legitimate criminal responsibility and
unacceptable criminalisation of political decision-making is not
only relevant to Ukraine (or Iceland, according to the explanatory
memorandum), but is or may be a problem elsewhere in Europe. If
accepted, the authorities of all member States would be urged to
refrain from using their criminal justice system for the persecution
of political opponents.
11. For similar reasons, I also suggest Amendment D. Instead of
simply asking Ukraine to ensure “the effective independence of the
judiciary” and execute “the relevant judgments of the European Court
of Human Rights”, I propose to address similar recommendations to
the authorities of those member States which have been (or might
be in future) condemned for violation of Article 18 of the European
Convention on Human Rights (ETS No. 5, “the Convention”).
12. More specifically, Article 18 provides that “the restrictions
permitted under this Convention to the said rights and freedoms
shall not be applied for any purpose other than those for which
they have been prescribed”. Thus, in prohibiting the “misuse of
power”, Article 18 of the Convention is of direct relevance to the
subject matter of the report. The European Court of Human Rights
has found a violation of Article 18, in conjunction with Article
5.1.c, in three cases: the
cases of Lutsenko and Tymoshenko against Ukraine 
and
the case of Gusinskiy against Russia, concluding in all three of them that detention
of the applicants pursued another purpose than that for which detention
is prescribed by law.
and
the case of Gusinskiy against Russia, concluding in all three of them that detention
of the applicants pursued another purpose than that for which detention
is prescribed by law.13. Therefore the amendment I propose aims to draw attention to
cases where “misuse of power” was asserted by the European Court
of Human Rights and is equally addressed to the Ukrainian and Russian authorities,
as far as existing case law is concerned, without excluding the
need to execute similar future judgments of the Court with respect
to other member States.
14. Last but not least, when it comes to what should be the main
objective of the report, namely defining criteria for distinguishing
between legitimate criminal responsibility of politicians and unacceptable criminalisation
of political decision-making, I have an objection when it comes
to sub-paragraph 3.5 of the draft resolution. Indeed, paragraph
3 proposes guiding principles “in line with the conclusions of the
Venice Commission”. However, the Venice Commission’s report is not
as restrictive as the draft resolution and underlines that in some
member States the problem is not that government ministers are held
criminally responsible too often but rather too rarely (see paragraph
107 of the report). For that reason, the Venice Commission, although
it considers that national provisions on “abuse of office” can be
“problematic”, does not exclude their use but recommends that they
should be “interpreted narrowly and applied with a high threshold” (see
paragraphs 113 and 114).
15. Sub-paragraph 3.4 of the draft resolution, read in conjunction
with sub-paragraph 3.5, as the latter stands now, may give the impression
that “abuse of office” provisions must be excluded. In particular,
sub-paragraph 3.5 gives a very restrictive interpretation of the
Venice Commission’s report and does not explain why politicians
should only be criminally liable in the exercise of their office
when they act “for personal gain” or “violate fundamental rights
of others”. Would the criterion of “personal gain” be retained if
the politicians were favouring a political party, friends doing
business or a non-governmental organisation, without retaining money for
themselves? And why should there be no mention of other criteria,
such as those listed in paragraph 102 of the Venice Commission’s
report?
16. Therefore, I propose Amendment A with a view to aligning the
text of the resolution to that of the Venice Commission’s report
(namely paragraphs 114 and 115). I suggest mentioning the need to
refer to “additional criteria” when provisions on “abuse of office”
are drafted or applied and l propose reference to “personal gain” in
cases involving economic interests only as an example, rather than
making an exhaustive list. I hope that if this amendment is accepted,
it will be clearer that our Assembly, as much as it does not wish
to see politicians being victims of abuse of the law, neither does
it wish to see politicians above the law.