The committee considers that democracy and the rule of law
require that politicians shall be effectively protected from criminal
prosecutions based on their political decisions. Political decisions
shall be subject to political responsibility, the ultimate judges
being the voters.
In line with its opposition to all forms of impunity, the
committee considers that politicians shall be held to account for
criminal acts or omissions they commit both in their private capacity
and in the exercise of their public office.
The distinction between political decision-making and criminal
acts or omissions must be based on national constitutional and criminal
law, which in turn should respect certain principles, in line with
the conclusions of the European Commission for Democracy through
Law (Venice Commission).
In particular, wide and vague national criminal law provisions
on “abuse of office” can be problematic, both with regard to Article
7 of the European Convention on Human Rights and other basic requirements
under the rule of law, and they can also be particularly vulnerable
to political abuse. As regards procedure, to the extent that charges
brought against politicians are of a “criminal” nature according
to Article 6 of the Convention, the same fair trial requirements
must apply both to ordinary criminal procedures and special impeachment
procedures which exist in a number of Council of Europe member States
and which call for extra caution and restraint as to the manner
in which they are interpreted and applied.
Concerning Ukraine, the criminal cases brought against former
Prime Minister Yulia Tymoshenko and former Interior Minister Yuri
Lutsenko have given rise to severe criticism by the international
community. The committee is deeply troubled by the manner in which
the country’s criminal justice system is abused for the persecution
of political opponents. It considers that in both these cases the
principles on the separation of political and criminal responsibility
have been violated.