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A. Draft
resolution
(open)
Report | Doc. 13339 | 22 October 2013
The discipline of the members of the Parliamentary Assembly
Committee on Rules of Procedure, Immunities and Institutional Affairs
Summary
The right to freedom of expression is the most important parliamentary privilege and an essential precondition for the independence of elected representatives. It also implies duties and responsibilities. However, in recent years, certain behaviour or modes of expression may have disrupted the normal running of the debates in the Assembly Chamber or committee meetings. The Committee on Rules of Procedure, Immunities and Institutional Affairs considers that there may be a danger that incidents become more common or more serious in the future – with regard to verbal expression and gestures, use of visual materials, symbols and logos, or clothing.
On the basis of various practices found in national and supranational assemblies, the report seeks to provide indicators that may make it easier to interpret the rules on the discipline of Assembly members. The Committee on Rules of Procedure proposes to complete the existing complementary provisions – in particular by laying down a general requirement for members to conduct themselves in a courteous, polite and respectful manner – in order to enable the presidency of the Assembly and committees to take appropriate action to maintain order and ensure that meetings proceed smoothly, in a way that respects parliamentarians’ freedom of speech. It is proposed to submit all disciplinary rules to the compliance procedure already set up in the code of conduct for Assembly members, which shall be supplemented with a list of sanctions.
A. Draft
resolution 
(open)1. The Parliamentary Assembly reaffirms its commitment
to the right to freedom of expression which is the most important
parliamentary privilege and an essential precondition for the independence
of the elected representatives of the people. There are various
ways to express one’s position in the context of a political debate,
including by displaying symbols or logos, or the wearing of a particular
garment or costume, which are protected by the right to freedom
of expression. Nonetheless, whoever exercises their freedom of expression also
has “duties and responsibilities”, the scope of which will depend
on the situation and the means used.
2. It is therefore imperative to strike a fair balance between
freedom of expression in the Assembly and the protection of a person’s
reputation and honour, as well to take into account the need to
guarantee the smooth running of the Assembly’s business. Assembly Resolution 1854 (2011) on ensuring protection against attacks on a person's
honour and reputation has been an important step in this direction.
3. In recent years, the Assembly has had to deal with cases in
which the behaviour of its members has been criticised by colleagues
and non-governmental organisations (NGOs), thus undermining, directly
or indirectly, the honour and reputation of members and the institution
in general. Moreover, some unusual incidents have occurred in the
Assembly Chamber or during committee meetings, suggesting that they
may be repeated or become more common or more serious in the future.
Breaches of existing ethical rules and poor conduct of parliamentarians
in parliamentary fora, including the Assembly, undermine representative democracy
as a whole and send the wrong message to citizens.
4. Therefore, recalling Rule 12 of the Assembly’s Rules of Procedure
and the code of conduct for members of the Assembly, the Assembly
considers it necessary to supplement the existing provisions regarding members’
conduct, in order to help the President of the Assembly and the
committee chairpersons interpret the Rules of Procedure, take appropriate
action to maintain order, and ensure that meetings proceed smoothly, in
a way that respects members’ freedom of expression.
5. The Assembly is entitled, under Article 28 of the Statute
of the Council of Europe (ETS No. 1), to draft its rules and manage
its internal affairs, including the right to discipline its members
for misconduct and the power to impose penalties for any interference
with its rules.
6. Accordingly, the Assembly decides to amend the complementary
texts of its Rules of Procedure by:
6.1. supplementing the “Additional provisions relating to the
Assembly debates” with the following new provisions on the “Conduct
of members of the Parliamentary Assembly during Assembly debates (Rule 21
of the Rules of Procedure)”:
6.1.1. “Pursuant to Rules 19.1
and 21 of the Rules of Procedure, the President of the Assembly maintains
order and decorum and ensures that debates are conducted in a civil
and orderly manner and in conformity with the rules and practices.
Members of the Parliamentary Assembly shall behave in a courteous,
polite and respectful manner towards each other and towards the President
of the Assembly or other person presiding. They shall refrain from
any action that may disrupt the proceedings. This provision shall
apply mutatis mutandis to meetings of the Bureau and of committees.
With regard to Assembly members' discipline and observance of the
rules of conduct, paragraphs 17 to [20] of the code of conduct for
members of the Parliamentary Assembly shall apply”;
6.1. adding in the code of conduct
for members of the Parliamentary Assembly, at the end of paragraph
19, the following sentence: “and/or inform the Speaker of the national
parliament concerned. In cases of serious or repetitive breaches
of the rules of conduct by a given member, and in accordance with
the powers and responsibilities granted to the President of the
Assembly in the Rules of Procedure, the President may take one or
several of the following decisions: temporary deprivation of the
right to speak and to be enrolled on the list of speakers, temporary
deprivation of the right to sign an amendment, a motion or a written
declaration. The President shall inform the Assembly accordingly.”
B. Explanatory memorandum by Mr Chope, rapporteur
(open)1. Introduction
1. On 27 April 2012, further to a decision by the Bureau
of the Assembly, the Committee on Rules of Procedure, Immunities
and Institutional Affairs was asked to report on the rules and principles
governing the discipline of Assembly members.
2. The decision followed an incident that occurred in the Assembly
Chamber on 25 January 2012. During the debate on the honouring of
obligations and commitments by Serbia, Ms Marietta de Pourbaix-Lundin,
Vice-President of the Assembly, who was chairing the sitting, asked
an Assembly member, Mr Tamás Gaudi Nagy (Hungary, NR), to remove
the Hungarian flag from his table, in accordance with the rule on
maintaining order during proceedings. The Chair’s request having
gone unheeded, the flag was removed by an usher, after Mr Gaudy
Nagy had left the Chamber. Later on, Mr
Gaudy Nagy expressed his displeasure at the Chair’s decision on
his personal websites, urging “all Hungarian patriots” to make their
views known directly to Ms de Pourbaix-Lundin and giving her e-mail
address. The message prompted a flurry of e-mails from hundreds
of Hungarian internet users, subjecting Ms de Pourbaix-Lundin to
threats, insults and abuse.
Later on, Mr
Gaudy Nagy expressed his displeasure at the Chair’s decision on
his personal websites, urging “all Hungarian patriots” to make their
views known directly to Ms de Pourbaix-Lundin and giving her e-mail
address. The message prompted a flurry of e-mails from hundreds
of Hungarian internet users, subjecting Ms de Pourbaix-Lundin to
threats, insults and abuse.3. On 8 March 2012, the Committee on Rules of Procedure, to which
the matter had been referred by the Assembly’s Bureau following
a letter from Ms de Pourbaix-Lundin deploring the situation, held
an exchange of views on the subject. The committee members strongly
condemned Mr Gaudi Nagy’s behaviour and suggested that the President
of the Assembly, Mr Jean-Claude Mignon, write to the Speaker of
the Hungarian Parliament to inform him of the Assembly’s position
on the incident. The letter, sent on 27 March 2012, expressed regret that
a call to order, which was a purely procedural measure, should have
been used for political purposes and caused a member of the Assembly
to be inundated with hate messages.
4. The Committee on Rules of Procedure further noted that there
was a danger that such lapses could become more common in the future
in parliamentary fora and that more serious incidents might occur
during Assembly proceedings, and be exploited for political purposes
in order to hit the news.
5. While the above-mentioned incident occurred during a plenary
sitting, committee meetings have not been without their “moments
of tension”. For example, during the discussions surrounding the
adoption of the report of the Committee on Legal Affairs and Human
Rights on the definition of political prisoners, on 26 June 2012,
and then again on 3 October 2012, during the discussion on amendments
to the draft resolution, some members spoke in an extremely heated
manner.
6. Furthermore, in recent years, the Assembly has had to deal
with cases where the behaviour of its members has been criticised
by colleagues or non-governmental organisations (NGOs), thus undermining, directly
or indirectly, the honour and reputation of the members in particular
and the institution in general.
7. In view of the above, it was felt there was a need to bring
together in this report information about the various disciplinary
practices to be found in national and supranational assemblies.
Discipline is defined as, firstly, all the rules of conduct that
a person is required to observe, and secondly the behaviour or attitude controlled
through compliance with those rules. It is precisely this aspect
that is covered by the present report, a logical sequel to the report
on the conduct of members of the Parliamentary Assembly, which sets out an express requirement
for members to abide by the Rules of Procedure and decisions of
the President relating to conduct and discipline.
which sets out an express requirement
for members to abide by the Rules of Procedure and decisions of
the President relating to conduct and discipline.8. Quite apart from what might be anecdotal cases, there is the
question of what sort of behaviour it is appropriate to expect from
parliamentarians, members of an interparliamentary co-operation
organisation, who, although they stand for common values, also come
from different political cultures and different traditions. What
kind of attitudes, acts and/or comments might be considered by the
President of the Parliamentary Assembly or a Vice-President, during
a sitting, or a committee chairperson, during a meeting, as patently
failing to conform to “standards” of behaviour which, while not
enshrined in the rules, are nevertheless commonly accepted?
9. The report does not seek to impose set patterns of behaviour
on members but rather to provide, through examples, indicators that
may make it easier to interpret the rules. This should then help
the presidency of the Assembly and committees to take appropriate
action to maintain order and ensure that meetings proceed smoothly,
in a way that respects parliamentarians’ freedom of speech and action.
10. The report looks at incidents that have occurred during meetings
of various assemblies and at how these situations were addressed.
It also examines parliaments’ rules of procedure and the position
taken by the European Court of Human Rights (“the Court”) on certain
relevant issues. The areas examined cover the dress code and the
various methods employed to express a political view during debates,
including the use of symbols and logos.
2. Current rules
11. The Assembly’s Rules of Procedure were recently supplemented
by two resolutions widening and elaborating on the disciplinary
provisions. Accordingly, Resolution
1854 (2011) on ensuring protection against attacks on a person's
honour and reputation amended the provisions of Rule 21 of the Assembly’s
Rules of Procedure in such a way as to also cover attacks on a person’s
honour and reputation through the right to respect for private life, and
added a specific provision on maintenance of order to the rules
on procedure in committee. It also introduced a new procedure that
allows any person directly affected by a statement to express their
disagreement with that statement through a right of reply.
and
added a specific provision on maintenance of order to the rules
on procedure in committee. It also introduced a new procedure that
allows any person directly affected by a statement to express their
disagreement with that statement through a right of reply. 12. Resolution 1903
(2012) “Code of conduct of members of the Parliamentary Assembly:
good practice or a core duty?” provides a framework of reference,
in the form of a code of conduct for Assembly members with regard
to conflicts of interest, offers of gifts or hospitality, and so
on. It also gives the Assembly a mechanism for enforcing disciplinary
standards based on an investigation and sanction procedure. Although
this is primarily a matter for the President of the Assembly, he
or she may consult the Committee on Rules of Procedure, which is
well placed, given its terms of reference, composition and experience,
to conduct investigations and make recommendations.
13. Lastly, as regards in particular access to, and movement and
security within Council of Europe premises, responsibility for the
smooth running of the part-sessions lies with the Secretary General
of the Assembly (and the Director General of Administration of the
Council of Europe) who has a number of powers relating to the prevention
of any disturbances that might interfere with the smooth conduct
of the proceedings.
3. Expressing a political opinion
14. Freedom of expression for all citizens and hence
for their legitimately appointed representatives forms part of a
long-standing European tradition enshrined in Article 10 of the
European Convention on Human Rights (ETS No. 5). The corollary of
this is the absolute immunity granted to parliamentarians against
any prosecution for opinions expressed in the exercise of their
functions.
15. Generally accepted behaviour in a parliamentary context when
it comes to expressing political ideas and opinions is deeply rooted
in a cultural, historical and social context, and this accounts,
for example, for the different ways in which parliamentarians express
their disapproval or support for an idea in their respective parliaments.
16. It goes without saying that it is hardly possible to examine
or anticipate all the circumstances that the President of the Assembly
or the chairs of committees might face. Therefore, they must apply
the rule of reason, which is that the privilege of freedom of expression
must be used responsibly by those who have been given a public platform
or otherwise be restricted in accordance with the Rules of Procedure.
3.1. Making oral statements
17. Verbal messages are still the ultimate tool for parliamentarians,
who will adjust their words according to the debate or the audience
they are addressing. To achieve the best effect on their audience,
people tend to make use of the accentuation, rhythm or tone of their
message. It is not rare in the course of a debate for people to
make virulent comments or refer to shocking examples. Consequently,
the question is whether, in view of the total freedom of expression
that is granted to parliamentarians, everything that they say can
be considered to be acceptable.
18. The Assembly recently adopted Resolution 1854 (2011) on ensuring protection against attacks on a person's
honour and reputation, which enhances the protection afforded by
the Rules of Procedure against the dissemination of false and defamatory
information by striking the right balance between the right to freedom
of expression and the right for a person's honour and reputation
to be protected. The new wording of Rule 21.6 now prohibits words
which “undermine the right to respect for private life”. Furthermore,
if a member of the Assembly considers that his or her reputation
has been adversely affected by a statement made in the course of
a debate, he or she may ask the President of the Assembly to make
a statement at the end of the debate. More generally, anyone wishing
to dispute such statements may ask the President to see to it that
an appropriate response is included in the record.
19. The rapporteur would like more particularly to draw attention
to paragraph 29 of Ms Marie-Louise Bemelmans-Videc’s report, setting out the criteria
established by the European Court of Human Rights, which may enable
the President to assess the existence and degree of an affront:
“These include, first and foremost, the relevance of what has been
said to the context of the debate. Moreover, the status of the person against
whom the remarks have been made is also an important factor. It
has been accepted on several occasions that the limits of acceptable
criticisms are wider as regards a politician acting as a public
personality than as regards a private individual, since the former
‘inevitably and knowingly lays himself or herself open to close
scrutiny of his or her every word and deed, in particular by a political
adversary’. Account must then be taken of the terms employed, which,
for example, should not exceed the limits of political criticism,
thus proscribing the use of insulting remarks and gratuitous personal
attacks. In this connection, it should also be noted that even where
the veracity of a value judgment of a person in the context of a
debate cannot be demonstrated, it may be excessive if there is no
factual basis to support it.”
setting out the criteria
established by the European Court of Human Rights, which may enable
the President to assess the existence and degree of an affront:
“These include, first and foremost, the relevance of what has been
said to the context of the debate. Moreover, the status of the person against
whom the remarks have been made is also an important factor. It
has been accepted on several occasions that the limits of acceptable
criticisms are wider as regards a politician acting as a public
personality than as regards a private individual, since the former
‘inevitably and knowingly lays himself or herself open to close
scrutiny of his or her every word and deed, in particular by a political
adversary’. Account must then be taken of the terms employed, which,
for example, should not exceed the limits of political criticism,
thus proscribing the use of insulting remarks and gratuitous personal
attacks. In this connection, it should also be noted that even where
the veracity of a value judgment of a person in the context of a
debate cannot be demonstrated, it may be excessive if there is no
factual basis to support it.” 20. The rapporteur would also like to make some additional comments.
The chair should take account of the context in which words are
said. Discussions in committee meetings are often rapid and spontaneous
and do not allow every word to be weighed properly, unlike statements
during plenary sessions, which are often prepared in advance. In
addition to this, the impact of comments made in a committee meeting
is clearly different, as such meetings are not open to the public
– or may even be held in camera – whereas plenary sessions are broadcast
live. Account should also be taken of the recurring or continuous
way in which certain members make comments which could be considered
to be offensive.
In
addition to this, the impact of comments made in a committee meeting
is clearly different, as such meetings are not open to the public
– or may even be held in camera – whereas plenary sessions are broadcast
live. Account should also be taken of the recurring or continuous
way in which certain members make comments which could be considered
to be offensive. 21. However, the above resolution has not foreseen any specific
disciplinary procedure concerning defamatory statements. In January
2013, the Bureau of the Assembly considered the issue of statements
that may be made by a member during a meeting of the Bureau (and
by extension during a committee meeting) which call into question
the honour and reputation of a member of the Assembly. It also instructed the Committee
on Rules of Procedure to examine the question of setting up a special
committee responsible for order-related matters, including complaints
about defamatory statements made by Assembly members. The committee
has already had a first exchange of views on this topic. The rapporteur’s
proposals below (Chapter 7) encompass the outcome of the first discussion.
It also instructed the Committee
on Rules of Procedure to examine the question of setting up a special
committee responsible for order-related matters, including complaints
about defamatory statements made by Assembly members. The committee
has already had a first exchange of views on this topic. The rapporteur’s
proposals below (Chapter 7) encompass the outcome of the first discussion. 3.2. Physical confrontation
22. The rapporteur considers it necessary to highlight
a phenomenon which, although not new, has been becoming
more pronounced in recent years, namely the physical intimidation
and assault of parliamentarians, not by people from outside the
parliament in the form of hostile demonstrations against their positions
or ideas, but by their own colleagues inside the debating chamber.
Cases of intimidation, such as grabbing a political adversary's
jacket or tie or pouring a glass of water over them, sometimes descend
into violent quarrels with serious consequences if one of the parliamentarians
is subject to a full physical assault. There has been much media
coverage of the worst cases of confrontation in parliaments.
has been becoming
more pronounced in recent years, namely the physical intimidation
and assault of parliamentarians, not by people from outside the
parliament in the form of hostile demonstrations against their positions
or ideas, but by their own colleagues inside the debating chamber.
Cases of intimidation, such as grabbing a political adversary's
jacket or tie or pouring a glass of water over them, sometimes descend
into violent quarrels with serious consequences if one of the parliamentarians
is subject to a full physical assault. There has been much media
coverage of the worst cases of confrontation in parliaments. 23. To date, the Parliamentary Assembly has been spared such physical
violence. However, conduct of this kind in some of the parliaments
of the member States discredits the system of representative democracy
as a whole and sends the wrong message to society and to young people
in particular. Physical confrontation does not make any constructive
contribution to debates and should not be allowed to supplant the
confrontation of ideas. One of the distinctive features of parliamentary
rules of procedure is that they ritualise political confrontation
within a framework that everyone accepts.
3.3. “Show, don't tell”
24. Scientists believe that 80% of information is transmitted
to the human brain through the eyes and therefore it is important
to use visual materials. A short slogan or a spontaneous gesture
are a guaranteed and rapid means of attracting the public’s attention
and increasing the impact of messages. Here are a few examples:
- on 4 July 2012, during the vote on the draft Anti-Counterfeiting Trade Agreement (ACTA) in the European Parliament, parliamentarians who opposed this agreement held up posters carrying the message “Hello democracy. Goodbye ACTA” on a yellow and black background;
- on 22 May 2012, during the debate on the situation of the former Ukrainian Prime Minister, Ms Yulia Tymoshenko, some parliamentarians unfurled a large banner carrying a photo of Ms Tymoshenko and the words “Freedom for Yulia”;
- the MEP Nigel Farage, the leader of the UK Independence Party and co-chair of the Europe of Freedom and Democracy Group in the European Parliament, often displays a small British flag in plenary sessions. During a debate on migration policy held on 10 May 2011 when talking about national prerogatives on the issue of migration, he held up this flag in support of his words (“this flag will go on long after your star-spangled banner has disappeared”);
- on 27 April 2010, during the vote in the Ukrainian Parliament on the ratification of the agreements on the maintenance of the Russian fleet in the Crimea, the opposition representatives covered all their seats in a Ukrainian flag, thus conveying the message that the agreements would compromise the sovereignty of Ukraine;
- on the day of a debate on battery hen farming in the British House of Commons, an MP brought in a cage to illustrate the cruelty of this type of farming.
25. More commonly, it is a frequent occurrence in debating chambers
for parliamentarians to respond to others’ statements by booing,
applauding or laughing.
26. As far as the Parliamentary Assembly is concerned, the following
rare examples should be mentioned:
- in 1992 and 1995, the Turkish delegation left the Assembly Chamber during a debate on the human rights situation in Turkey
- in 2004, some members of the French delegation left the Assembly Chamber to signal their disapproval of the fact that Mr Jean-Claude Trichet, President of the European Central Bank and senior French civil servant, had begun his speech in English.
27. Visitors who attend plenary sessions do not have the same
degree of freedom of expression. Those who are authorised to enter
the galleries are often asked to sit quietly, as expressions of
approval or disapproval are prohibited. The
same rule applies, for example, to wearing T-shirts carrying political
messages.
The
same rule applies, for example, to wearing T-shirts carrying political
messages. 4. Use of symbols
28. A symbol reflects an idea, doctrine or ideology and
accordingly conveys a message in itself. The public use of symbols
consequently comes under the protection of Article 10 of the European
Convention on Human Rights, which guarantees freedom of expression.
It must be ensured that the form taken by this expression is not
likely to disrupt the functioning of the Assembly or that a symbol
is not being abused.
4.1. Symbols of the State
29. Flags, anthems and coats of arms are national symbols
which are often regarded as attributes of sovereignty. Because it
is flown on public buildings and during official ceremonies and
public events of all kinds, the flag is the most visible of these
symbols of a country. Its use by individuals on private occasions
is governed by the specific rules laid down by the State concerned. It may be forbidden to use the national
flag as a background or part of a logo. It should be noted that
sensitivities regarding use of the flag are specific to each State
and depend on historical connotations. The great significance attached to
flags, which often symbolise the values adhered to by a country,
has led many States to criminalise contempt for their national flag.
It may be forbidden to use the national
flag as a background or part of a logo. It should be noted that
sensitivities regarding use of the flag are specific to each State
and depend on historical connotations. The great significance attached to
flags, which often symbolise the values adhered to by a country,
has led many States to criminalise contempt for their national flag. 30. Although many members of the Parliamentary Assembly wear insignia
of their national identity in a visible manner, notably in the form
of their parliament's lapel pin, the Assembly's practice has always
been to prohibit the display of other distinctive signs of national
identity (conversely, in the European Parliament some members have
adopted the habit of placing their country's flag on the desk in
front of them).
4.2. The Assembly's logo
31. The Assembly has no formally approved written rules
on the use of its logo by members or former members. In practice,
use of the logo by members (in letterheads or on their personal
websites, for
instance) is tolerated, since it helps promote the Assembly's visibility.
It must be ensured that no harm will be done to the Assembly's reputation
as a result of this use.
for
instance) is tolerated, since it helps promote the Assembly's visibility.
It must be ensured that no harm will be done to the Assembly's reputation
as a result of this use. 4.3. Symbols linked to a cause or an ideology
32. In the member States, although the use of symbols
in the halls or chambers where plenary sittings are held is generally
confined to symbols of the State (flag or coat of arms) or of the
national parliament in question, in some parliaments, as a matter
of practice, it is permissible, for example, to display the logos
or flags of parties or political groupings when members of that
party or grouping are present. In countries
where religion played an important historical role in forging the
national identity, crucifixes or
murals on religious themes can still be
found in parliament buildings.
In countries
where religion played an important historical role in forging the
national identity, crucifixes or
murals on religious themes can still be
found in parliament buildings. 33. The Assembly has no specific rule in this matter, but the
customary norm is that use of symbols should be restricted. It can
reasonably be assumed that it would be harmful for symbols associated
with a group or ideology to be displayed systematically within an
Assembly that represents the whole of Europe's citizens.
34. The rapporteur nonetheless considers that, in the light of
the political context in Europe, namely the emergence and rise in
some countries of parties representing the two extremes of the political
spectrum, it is necessary to examine in more detail the use of certain
symbols.
35. In a number of member States it is an offence to incite hatred
or discrimination, which often includes the use and dissemination
of symbols.
36. In Europe, specific rules governing the use of the symbols
of two regimes, Nazism and Communism, have for historical reasons
been adopted at national level. A typical feature of the legislation banning
or restricting their use is that it often concerns the symbols of
both these totalitarian regimes. In 2005, some members of the European
Parliament initiated a proposal for a total ban on the use of Nazi
symbols in the member States of the European Union. This initiative
was supplemented with a proposal to outlaw the symbols of Communism.
However, these proposals encountered opposition from certain delegations
and senior European Union officials, who considered that this type
of prohibition was a matter for national law.
A typical feature of the legislation banning
or restricting their use is that it often concerns the symbols of
both these totalitarian regimes. In 2005, some members of the European
Parliament initiated a proposal for a total ban on the use of Nazi
symbols in the member States of the European Union. This initiative
was supplemented with a proposal to outlaw the symbols of Communism.
However, these proposals encountered opposition from certain delegations
and senior European Union officials, who considered that this type
of prohibition was a matter for national law. 37. A number of former Soviet republics and many East European
countries have adopted legislation prohibiting the use of Nazi and
Communist symbols. This was the case in Hungary in 1989, Latvia
in 1991, Estonia in 2007, Lithuania in 2008 and Poland in 2009.
Very recently, the Constitutional Court of the Republic of Moldova
has declared anti-constitutional the decision taken by the parliament
in July 2012 to ban the use of Communist symbols. In several other
countries, the use of totalitarian or unconstitutional symbols or
relating propaganda is prohibited, without specifying whether the
regulation extends to Communist symbols and ideology or not.
38. The right to use symbols is protected under Article 10 of
the European Convention on Human Rights, provided their use comes
within the scope of that article. For instance, the Court considers
that acts which could destroy rights and freedoms protected by the
Convention fall outside the protection of this article, in particular so as to prevent
“totalitarian groups from exploiting in their own interests the
principles enunciated in the Convention”. Considerable
attention has always been paid to the context in which a symbol
is used. However,
the mere fact that a symbol is used in a provocative manner does
not rule out protection under Article 10 of the Convention, even
if it may cause a feeling of unease with regard to the victims of
the regime it symbolises. Understandable though they may be, such
feelings alone cannot, however, set the limits of freedom of expression.
in particular so as to prevent
“totalitarian groups from exploiting in their own interests the
principles enunciated in the Convention”. Considerable
attention has always been paid to the context in which a symbol
is used. However,
the mere fact that a symbol is used in a provocative manner does
not rule out protection under Article 10 of the Convention, even
if it may cause a feeling of unease with regard to the victims of
the regime it symbolises. Understandable though they may be, such
feelings alone cannot, however, set the limits of freedom of expression. 39. While, as a political body and European debating forum, the
Assembly must guarantee its members the broadest and fullest possible
freedom of expression, that freedom can solely be exercised in accordance
with the values and principles that found the Council of Europe
and with its general aim of achieving greater unity between European
countries “for the purpose of safeguarding and realising the ideals
and principles which are their common heritage”.
5. Dress code
5.1. General remarks
40. Some parliaments have an explicit dress code. In
Andorra, for example, the traditional costume introduced several
centuries ago to ensure a uniform appearance – a robe made of local
fabric and a three-cornered hat – is still worn today by the country’s
elected representatives at solemn sittings of the General Council.
Under Rule 56 of the Turkish Grand National Assembly’s rules of
procedure, men are required to wear a tie and women a skirt suit.
41. However, many European parliamentary bodies, including our Assembly,
have no rules laying down detailed dress code requirements, whether
at sittings or, generally, on parliamentary premises.
including our Assembly,
have no rules laying down detailed dress code requirements, whether
at sittings or, generally, on parliamentary premises.42. The lack of any specific requirements does not mean this area
is a regulatory vacuum. It is assumed that the mode of dress adopted
by parliamentarians should be in keeping with the nature of their
representative duties, or
meet certain informal criteria, and should therefore be “official,
moderately conservative and presentable” or
proper and neat.
or
meet certain informal criteria, and should therefore be “official,
moderately conservative and presentable” or
proper and neat. 43. It may also be observed that some customary practices have
been laid down in writing or
are the subject of regular reminders by the speaker or president
of the parliament. Rules and customs
mostly apply to plenary sittings. The dress code for parliamentarians
attending committee meetings is more flexible.
or
are the subject of regular reminders by the speaker or president
of the parliament. Rules and customs
mostly apply to plenary sittings. The dress code for parliamentarians
attending committee meetings is more flexible.44. While the dress code for male parliamentarians is generally
more or less well defined, the code for women is still an open debate. Some
assemblies which have no dress code for women recommend “appropriate” or
“business” attire. In 2008, the Inter-Parliamentary Union
conducted a survey of women and men in parliaments. Some women parliamentarians
reported practices still existing in their parliaments, such as
not being allowed to take their handbags into the chamber or being
prevented from wearing trousers. Several parliaments
also have dress code requirements applying to members of the secretariat
and visitors.
Some
assemblies which have no dress code for women recommend “appropriate” or
“business” attire. In 2008, the Inter-Parliamentary Union
conducted a survey of women and men in parliaments. Some women parliamentarians
reported practices still existing in their parliaments, such as
not being allowed to take their handbags into the chamber or being
prevented from wearing trousers. Several parliaments
also have dress code requirements applying to members of the secretariat
and visitors. 45. In conclusion, “proper” or “suitable” attire is generally
required, bearing in mind that this concept may vary according to
the degree of solemnity attached to the parliamentarian’s status
in each country.
5.2. Clothing as an element of freedom of expression
46. The wearing of a particular garment or costume may
sometimes reflect – or deliberately express – support for a political
movement, a philosophy or current of thought, or a religion, and
thus convey a political message. For example, representatives of
nationalist parties may attend sittings wearing items forming part
of the traditional costume. In some parliaments,
representatives of national or ethnic minorities wear traditional dress
on national holidays or at the opening of a session. Lastly, in some
cases, regardless of any political connotations, parliamentarians
may adopt a highly distinctive mode of dress, which, over time,
becomes their “trademark”.
In some parliaments,
representatives of national or ethnic minorities wear traditional dress
on national holidays or at the opening of a session. Lastly, in some
cases, regardless of any political connotations, parliamentarians
may adopt a highly distinctive mode of dress, which, over time,
becomes their “trademark”. 47. Clothing can therefore be part of a parliamentarian’s political
identity; consequently, when used in a particular context (debate
on a controversial issue, speech by a distinguished guest, etc.)
with the deliberate aim of proselytising or provoking, it may cause
offence and trigger reactions, first and foremost among the members
themselves. It may also be used by elected representatives or political
leaders to try and “break the mould” of social conformism by challenging
a traditional dress code deemed unduly restrictive or conservative.
5.3. Religious attire and symbols
48. In view of the scale of the controversy over the
wearing of religious symbols in public, including, therefore,
in parliaments, I feel that this question should be studied in greater
detail.
including, therefore,
in parliaments, I feel that this question should be studied in greater
detail. 49. The wearing of religious attire is first of all a matter of
freedom of religion and personal conviction. Freedom of religion
generally implies the freedom to manifest one’s religion in public,
which restricts the possibility of imposing rules. Furthermore,
religious attire may form part of a historical and cultural tradition
and be an identity marker. Viewed in a political context, the wearing
by parliamentarians of religious (and national) signs and symbols
is intended to enable the population to identify more closely with
its representatives.
50. Questions relating to religious expression are nothing new.
However, the dynamics of change and the realisation that present-day
European societies are multi-ethnic, multicultural and multiconfessional
societies, give it a completely new practical dimension. Within the Council
of Europe, sensibilities with regard to the wearing of religious
symbols in public differ from one country to another. This
question continues to arouse controversy in several member States.
Within the Council
of Europe, sensibilities with regard to the wearing of religious
symbols in public differ from one country to another. This
question continues to arouse controversy in several member States.51. Some States whose constitutional system is based on the principles
of secularism and neutrality have had to address the issue of the
use of different religious signs in public areas. The most widespread
cases have involved schools, and in particular the wearing of the
Islamic veil, whether by pupils or by teachers, or the presence of crucifixes
in classrooms in State schools. Faced with
new social realities, national authorities are constantly seeking
to balance freedom of religion with the various imperatives that
are “necessary in a democratic society”, an exercise in which the
European Court of Human Rights allows them a wide margin of appreciation.
or the presence of crucifixes
in classrooms in State schools. Faced with
new social realities, national authorities are constantly seeking
to balance freedom of religion with the various imperatives that
are “necessary in a democratic society”, an exercise in which the
European Court of Human Rights allows them a wide margin of appreciation. 52. Although there are a large number of items through which an
individual may express religious belief (turban, hijab, kirpan,
skullcap, etc.), the question which fuels debate and controversy
in Europe is still that of the wearing of the veil or Islamic headscarf by
women and girls, owing in particular to the growth of the Muslim
population.
by
women and girls, owing in particular to the growth of the Muslim
population.53. It is important to point out that the Parliamentary Assembly
as such, in its internal functioning, seems to have been spared
controversy. This is probably due to the very essence of the Organisation, its active commitment
to “living together” and the promotion of intercultural and inter-faith
dialogue, as well as, more recently, to the development of relations
with the Muslim countries of the sub-Mediterranean region, reflected in
the award of “partner for democracy” status to the Moroccan Parliament
and the Palestinian National Council. Hence, some members of the
partner for democracy delegations wear the veil during sittings.
its active commitment
to “living together” and the promotion of intercultural and inter-faith
dialogue, as well as, more recently, to the development of relations
with the Muslim countries of the sub-Mediterranean region, reflected in
the award of “partner for democracy” status to the Moroccan Parliament
and the Palestinian National Council. Hence, some members of the
partner for democracy delegations wear the veil during sittings. 54. However, the Parliamentary Assembly, like all other Council
of Europe bodies, attaches great importance to the protection of
women’s rights and cannot dismiss the arguments of supporters of
secularism who stress that the Islamic veil is also symbolic of
an increasingly influential political Islam. Furthermore,
the Islamic headscarf constitutes a “powerful external symbol” and
might therefore have a “proselytising effect … imposed on women
by a precept which … is hard to square with the principle of gender
equality”.
Furthermore,
the Islamic headscarf constitutes a “powerful external symbol” and
might therefore have a “proselytising effect … imposed on women
by a precept which … is hard to square with the principle of gender
equality”. 55. All this explains the controversy arising from the wearing
of religious signs, which, as well as expressing religious belief,
may also be associated with a symbol used by a line of political
thought to promote its values.
5.4. Practical application of the above remarks
56. I would conclude that the dress code in the Assembly
should be restricted to proper or suitable attire, as is already
generally required in the parliaments of all the member States.
The Assembly should remain a forum for dialogue built around the
promotion of democratic values and human rights. Such an approach
would serve to prevent situations where a regulatory vacuum might
be used to transgress rules by which members are nevertheless bound
under the rules of procedure of their national parliaments.
57. In any event, the dress of members and guests of the Assembly
and its committees must be consistent with respect for the security
rules which apply to everyone, must not transgress the values which
it is the Council’s mission to uphold, and must not hinder normal
communication.
6. Improving the general mechanism for disciplinary matters concerning Assembly members
6.1. Disciplinary power of the Assembly
58. The Assembly has a permanent schedule of gatherings
and is entitled, under Article 28 of the Statute of the Council
of Europe (ETS No. 1), to draft its own rules and manage its internal
affairs including, as in the case of almost all national parliaments,
the right to discipline its own members for misconduct and the power
to impose penalties for interfering with its rules. Assembly members
enjoy privileges and immunities similar to those that almost all
of them enjoy at national level.
59. The Assembly members are invited to respect these rules when
they participate in plenary sittings, work in Assembly committees,
make fact-finding visits or participate in the work of various internal
Council of Europe or external international bodies. Though the rules
of conduct in plenary sittings and committee meetings have long
been sufficient to allow a smooth functioning of the Assembly, there
has been a growing demand from parliamentarians in recent years
to have a better framework for conduct expected of them, applicable
not only to sittings and committee meetings. This call
coincides with the first reports released on results of the 4th GRECO
(Group of States against Corruption) evaluation round which recommend
that such a framework be elaborated. A unique document covering
all possible requirements, instead of being spread over different documents,
supported by a compliance mechanism, would be a better guideline
for parliamentarians and a suitable basis for the exercise of public
scrutiny. The code of conduct of the Assembly members was therefore adopted
in 2012 together with a separate chapter
on the enforcement mechanism which
was conceived with regard to the liability members may also face
according to their respective national regulations and laws. This
mechanism grants a certain amount of discretion to the President
of the Assembly with regard to both the initiation of the investigation
into the breach of conduct and the sanctions to be imposed.
there
has been a growing demand from parliamentarians in recent years
to have a better framework for conduct expected of them, applicable
not only to sittings and committee meetings. This call
coincides with the first reports released on results of the 4th GRECO
(Group of States against Corruption) evaluation round which recommend
that such a framework be elaborated. A unique document covering
all possible requirements, instead of being spread over different documents,
supported by a compliance mechanism, would be a better guideline
for parliamentarians and a suitable basis for the exercise of public
scrutiny. The code of conduct of the Assembly members was therefore adopted
in 2012 together with a separate chapter
on the enforcement mechanism which
was conceived with regard to the liability members may also face
according to their respective national regulations and laws. This
mechanism grants a certain amount of discretion to the President
of the Assembly with regard to both the initiation of the investigation
into the breach of conduct and the sanctions to be imposed. 6.2. Observance mechanisms existing in national parliaments
60. When the code of conduct of Assembly members was
being drafted, the Rules Committee had already studied the models
existing in national parliaments of member States.
6.2.1. Independent authority
61. An example of such an independent authority is the
Parliamentary Commissioner for Standards of the House of Commons
of the United Kingdom. The Commissioner is appointed by a resolution
of the House of Commons for a fixed term of five years. If a complaint
for breach of conduct is brought against a member, the Commissioner
has discretionary competence to order a further inquiry, after having
examined the evidence provided. Should a breach be established following
the inquiry, the Commissioner can resolve the matter him/herself.
However, in serious cases or at a member’s request, a report by
the Commissioner is referred to the Committee on Standards and Privileges
of the House of Commons, which draws its own conclusions. If a sanction
has to be proposed, it is a matter for the House of Commons. Other
parliaments of common law countries have a similar system.
62. Since 2011, the Bureau of the French National Assembly has
appointed, for the duration of the National Assembly parliamentary
term, a deontologist who supervises the compliance with the code
of ethics. In the event that a breach is established, the deontologist
tries to resolve the matter him/herself. If a member disagrees with
the deontologist’s findings, the matter is referred, via the President,
to the Bureau, which decides on the matter.
63. It follows from the above that even though an independent
authority has a necessary competence to resolve a matter, in the
case of a serious violation the right to sanction its own member
remains with the parliamentary body.
6.2.2. Specialised parliamentary committees
64. National parliaments often set up specialised standing
committees responsible for matters related to the observance of
the rules of ethics and conduct, including the analysis of financial
declarations. These committees are mainly composed of parliamentarians, with
a few exceptions. In some
countries, the composition of such committees is based on political
membership and
takes into consideration a proportional representation of all parliamentary
groups. In
Italy, an ad hoc committee can also be appointed by the President,
at the offended member’s request, to investigate an alleged attack
on the member’s honour and reputation resulting from a statement
made during a debate. The
procedure may be launched following a motion by a member, a group
of members or a parliamentary
group or
upon the President’s or the Assembly’s request.
with
a few exceptions. In some
countries, the composition of such committees is based on political
membership and
takes into consideration a proportional representation of all parliamentary
groups. In
Italy, an ad hoc committee can also be appointed by the President,
at the offended member’s request, to investigate an alleged attack
on the member’s honour and reputation resulting from a statement
made during a debate. The
procedure may be launched following a motion by a member, a group
of members or a parliamentary
group or
upon the President’s or the Assembly’s request. 6.2.2.1. Investigative functions
65. Some committees have a mandate to carry out a quasi-judicial
investigation into any alleged breach of disciplinary rules with, in some
cases, general principles of a fair trial being respected, such
as the possibility for the member concerned to be represented by
an attorney at a hearing and a right to appeal.
with, in some
cases, general principles of a fair trial being respected, such
as the possibility for the member concerned to be represented by
an attorney at a hearing and a right to appeal. 6.2.2.2. Advisory functions
66. Some of these committees have a merely consultative
function and provide, at the President’s request, opinions related
to matters concerning discipline and parliamentary ethics.
6.2.3. The leading role of the president
67. In the German Bundestag, the president is a first
instance which looks into the matter if a breach of the code of
conduct has been reported. He or she carries out an investigation
with the help of a secretariat department and may ask for further
information from the member concerned or the chairperson of the member’s
political group. If the breach once established is minor, the president
may address an admonishment to the member. Otherwise, the findings
are sent to the Presidium, which decides on the matter. In the Norwegian
Parliament, in the absence of any specialised committee, the president
and the Presidium also deal with cases related to members’ misconduct.
In the European Parliament, the president decides on a matter and
a sanction to be imposed on a given member with
the possibility to ask, if a breach of the Code of Conduct is at
stake, the Advisory Committee for a recommendation.
with
the possibility to ask, if a breach of the Code of Conduct is at
stake, the Advisory Committee for a recommendation. 6.2.4. Sanctions
68. Sanctions are often imposed by a specialised committee
with the approval of the president or the plenary. They include
a warning, a reprimand, an admonishment, an apology, a temporary
exclusion from sittings and financial sanctions. The outcomes of
the findings are often made public.
6.3. General compliance mechanism for Assembly members
6.3.1. Procedure
69. It has been mentioned above that the procedure suggested
by the code of conduct meets the spirit of the current Rules of
Procedure, is consistent with existing policies and is flexible
enough to take into consideration the liability members may also
face according to their respective national regulations and laws. According
to the Rules of Procedure, the President of the Assembly is generally
responsible for the smooth running of Assembly business, and is
the first instance to investigate a member’s alleged misconduct
by consulting, where necessary, the Committee on Rules of Procedure
or political groups or national delegations in order to clarify
the matter. Therefore, in the rapporteur’s view, the existing regulatory
framework provides necessary guarantees and enforcement mechanism
allowing the Assembly to react promptly to a breach of its own rules.
70. However, the authority of the President to launch an inquiry
could be kept by adding a possibility for him/her – or the Committee
of the Rules of Procedure to which the matter may be referred by
the President in accordance with paragraph 18 of the code of conduct
– to seek, given the complexity of issues related to disciplinary
matters, including defamation, an
expert assessment. After having studied practices existing in other
parliaments, the rapporteur has come to the conclusion that independent
advice dealing with disciplinary matters often represents additional
guarantees of independence vis-à-vis parliamentarians themselves
and also with respect to the general public.
an
expert assessment. After having studied practices existing in other
parliaments, the rapporteur has come to the conclusion that independent
advice dealing with disciplinary matters often represents additional
guarantees of independence vis-à-vis parliamentarians themselves
and also with respect to the general public. 6.3.2. Sanctions
71. It has to be noted that, contrary to many national
parliaments and the European Parliament, the Parliamentary Assembly
has never had a financial penalty among available sanctions. “Naming
and shaming” is the most effective sanction that the Assembly has
used in practise to tackle the violation of its rules. That is why,
during the elaboration of the code of conduct, the reading of the
conclusion of the investigation during a plenary sitting by the
President was chosen as the more effective sanction and
was explicitly mentioned in the code of conduct. The report on the
code of conduct also referred to the possibility of intermediary
sanctions such as a reprimand or an admonition, an apology or expulsion
of the member concerned from the sittings by the way of a motion
for censure or a letter to the speaker of the parliament concerned.
In addition, members could also be temporarily deprived of their
rights granted by the Rules of Procedure, such as the right to vote,
to enrol on speakers lists or to sign a motion.
“Naming
and shaming” is the most effective sanction that the Assembly has
used in practise to tackle the violation of its rules. That is why,
during the elaboration of the code of conduct, the reading of the
conclusion of the investigation during a plenary sitting by the
President was chosen as the more effective sanction and
was explicitly mentioned in the code of conduct. The report on the
code of conduct also referred to the possibility of intermediary
sanctions such as a reprimand or an admonition, an apology or expulsion
of the member concerned from the sittings by the way of a motion
for censure or a letter to the speaker of the parliament concerned.
In addition, members could also be temporarily deprived of their
rights granted by the Rules of Procedure, such as the right to vote,
to enrol on speakers lists or to sign a motion.72. In the rapporteur’s view, a flexible, common-sense approach
should be kept, as outlined in the code of conduct for members of
the Parliamentary Assembly, giving the President of the Assembly
a margin of discretion.
7. Conclusions
73. In the light of the foregoing considerations and
the observations made by committee members, the rapporteur would
like to submit the following proposals.
7.1. Additional provisions on members’ conduct
74. It is proposed to add to the additional provisions
relating to Assembly debates new provisions on the behaviour of
Assembly members in plenary, laying down a general requirement for
members to conduct themselves in a courteous, polite and respectful
manner such as to enhance the dignity of the institution and its
members, and refrain from any action that may disrupt the proceedings.
Such a general provision ensures a comprehensive coverage of members’
conduct including verbal expression and gesture, use of visual materials,
symbols and logos, clothing; it strengthens the existing prohibition
(Rule 21.6 of the Rules of Procedure) on the use of words affronting
human dignity and undermining the right to respect for private life (namely
defamation). These new complementary provisions shall apply to members'
conduct in plenary sittings and also during committee and Bureau
meetings.
7.2. Additional provisions on sanctioning members’ conduct
75. With regard to members’ discipline and observance
of the rules of conduct, it is proposed to submit all disciplinary
rules to the compliance procedure already set up in the code of
conduct for members of the Parliamentary Assembly.
76. The sanction mechanism set out in the code of conduct should
be completed in order to establish a list of sanctions left to the
President’s discretion in cases of serious or repetitive breaches
of rules of conduct by a given member.