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Resolution 2381 (2021)
Should politicians be prosecuted for statements made in the exercise of their mandate?
1. The Parliamentary Assembly stresses
the crucial importance, in a living democracy, of politicians being able
to freely exercise their mandates. This requires a particularly
high level of protection of politicians’ freedom of speech and freedom
of assembly, both in parliament and when speaking to their constituents
in public meetings or through the media, including social media.
2. The European Convention on Human Rights (ETS No. 5, “the Convention”)
protects everyone’s freedom of speech, including the right to make
statements that “shock or disturb” those who do not share the same opinions,
as established in the case law of the European Court of Human Rights
(“the Court”).
3. The Assembly also notes that freedom of speech is not unlimited
and should be enforced while ensuring full respect for the rule
of law. Hate speech condoning violence against certain people or
groups of people on the grounds of race, origin, religion or political
opinions, as well as calls for the violent overthrow of democratic institutions
are not protected. Politicians have an even greater responsibility,
due to their high visibility, to refrain from such abuses.
4. Everyone, politicians in particular, has the right to make
proposals whose implementation would require changes to the constitution,
provided the means advocated are peaceful and legal and the objectives
do not run contrary to the fundamental principles of democracy and
human rights.
5. This includes calls to change a centralist constitution into
a federal or confederal one, or vice versa, or to change the legal
status and powers of territorial (local and regional) entities,
including to grant them a high degree of autonomy or even independence.
6. The Assembly considers that freedom of expression and freedom
of assembly and association must be enforced without discrimination
on any grounds, as stipulated by Article 14 of the Convention.
7. The Assembly recalls its Resolution 1900 (2012) “The definition
of political prisoner”. It considers that politicians who are detained
for making statements in the exercise of their political mandates
that respect the limits of freedom of speech recalled above fall
under this definition and should be released without delay.
8. Concerning more specifically Turkey, the Assembly recalls
its Resolution 2156 (2017) and Resolution 2376 (2021) “The
functioning of democratic institutions in Turkey” and notes that
numerous politicians are incarcerated for statements they made in
the exercise of their political mandates.
8.1. Some stand accused or have even been convicted and handed
long prison terms on the basis of criminal provisions penalising
links to and support for terrorist organisations for merely referring
to the inhabitants of the south-eastern region of Turkey as “Kurds”,
or to the region in question as the “Kurdish region”, or for advocating
greater autonomy for this region, criticising the actions of the
security forces in this region or even merely requesting information
on these actions in the form of parliamentary questions.
8.2. Others have been prosecuted for insulting the president,
or other representatives of the State, or for merely criticising,
as opposition politicians, the policies pursued by the government
in different fields, including the management of the economy and
the fight against corruption.
8.3. These cases are particularly egregious as they have arisen
after numerous findings by the Court of violations of freedom of
speech in similar circumstances. In the case of Mr Selahattin Demirtaş,
the president of one of the main opposition parties, the authorities
are openly defying a judgment by the Court which ordered Mr Demirtaş’s
immediate release. Also, the incriminating political statements
often date back several years, to when the position of the government
was more tolerant with regard to the Kurdish issue and the politicians
in question could not predict that their statements would one day
be considered as criminal. These prosecutions often take many years,
during which the accused politicians are either in pre-trial detention,
or otherwise prevented from exercising their political mandates.
8.4. While reiterating its unequivocal condemnation of terrorism
on the part of the Kurdistan Workers’ Party (PKK), as much within
as outside Turkey, in line with Recommendation 1266 (1995), Resolution 1754 (2010), Resolution 1925 (2013) and Resolution 2156 (2017),
the Assembly notes that the unclear wording and overly broad interpretation
of Turkish legislation concerning the fight against terrorism and the
harsh penalties, including prison terms, handed down in practice
by criminal courts for insult or defamation appear to violate the
Convention as interpreted by the Court.
8.5. The Assembly condemns the removal and imprisonment of
at least 47 democratically elected mayors from office (including
the mayors of Diyarbakır, Van, Mardin and Kars), based on questionable evidence
and their arbitrary replacement by unelected trustees appointed
by the central government.
8.6. The Assembly notes that the independence of the Turkish
courts has increasingly been put in doubt. Instances of public accusations
made by senior officials that were soon followed by the arrest and prosecution
of the individuals concerned confirm the perception of the judiciary’s
lack of independence.
8.7. The Assembly recalls that the parliamentary immunity of
139 mainly opposition members of parliament was withdrawn in 2016
in a collective procedure that did not allow for individual members
to defend themselves. To achieve this, the parliament even adopted
an ad hoc temporary change of the constitution suspending the normal
protections to the detriment of this group of parliamentarians.
8.8. The Assembly finally notes that politicians belonging
to opposition parties, journalists and civil society activists were
excluded de facto from extraordinary pardons and reductions of prison
terms motivated by the need to reduce prison overcrowding in the
face of the Covid-19 pandemic.
9. As regards more specifically Spain, the Assembly recognises
that Spain is a living democracy, with a culture of free and open
public debate, and that the mere expression of pro-independence
views is not a ground for criminal prosecution. The Assembly fully
respects the constitutional order of Spain. Nevertheless, several senior
Catalan politicians were prosecuted and eventually sentenced to
long prison terms for sedition and other crimes, inter alia for
statements made in the exercise of their political mandates, in
support of the unconstitutional referendum on the independence of
Catalonia in October 2017 – organised by application of the “disconnection
laws” approved by the Parliament of Catalonia in September 2017
and found to be unconstitutional by the Spanish Constitutional Court
– and calling for participation in the mass protests surrounding
this event.
9.1. Incriminatory statements
included public speeches supporting the unconstitutional referendum
in October 2017 on the independence of Catalonia and calling for
participation in several demonstrations, as well as votes in the
Catalan Parliament expressing the same support or allowing debates
on this topic to be included in the agenda of the parliament. The
Assembly notes that the referendum had previously been ruled unconstitutional
by the Spanish Constitutional Court, which had also warned the politicians in
question against organising it.
9.2. Some of the politicians in question were also found guilty
of abusing public funds and other resources, in particular by allowing
public buildings to be used as polling stations.
9.3. The Assembly notes that the crime of organising an illegal
referendum, punishable by up to five years in prison, was abrogated
by the Spanish legislature in 2005. In this reform of the Criminal
Code, the crime of sedition, punishable by up to fifteen years in
prison, which requires an element of violence (“tumultuous uprising”)
remained unchanged. The organisers of the illegal referendum on
1 October 2017 were convicted of sedition.
9.4. It is undisputed that none of the politicians in question
called for violence. On the contrary, it is recognised, also by
the prosecution, that they called on demonstrators to refrain from
any violent acts. Indeed, on several occasions, hundreds of thousands
of people demonstrated without any violent incidents, thanks also
to the restraint exercised most of the time by the Catalan and Spanish
security forces, who were also deployed in large numbers.
9.5. The Assembly warmly welcomes the fact that the criminal
provisions on rebellion and sedition have become subject to intense
debate in the political and legal spheres in Spain, in particular
as regards the need to update and restrict the definition of the
crime of sedition. These provisions were enacted in response to
the frequent attempts at military takeover in the past. Doubts were
therefore expressed as to their application to the organisers of
peaceful demonstrations. This required novel interpretations such as
the notion of “violence without violence” developed by the prosecution,
according to which the sheer number of demonstrators exercised psychological
coercion on the police officers facing them, and a very wide meaning
given to the term of “tumultuous uprising” required for the crime
of sedition.
9.6. The Assembly further notes that, even after the conviction
of the leading Catalan politicians involved in the 2017 unconstitutional
referendum, the Spanish judicial authorities also prosecuted the succeeding
set of Catalan leaders and a number of lower-ranking Catalan officials
involved in the events in 2017. The Spanish authorities also continue
to pursue the extradition of Catalan politicians living in other
European countries, despite several setbacks in Belgian, British
and German courts. Finally, it notes a positive development in that
several high-profile prosecutions, of the head of the Catalan police force
and of members of the Catalan election commission, have recently
ended in acquittals.
9.7. The Spanish authorities have reportedly made the application
of the milder prison regime, usually applied to non-violent offenders,
or the consideration of a pardon subject to the prisoners’ expressing regret
for their actions and/or undertaking not to commit further crimes,
as is the case for all convicts under Spanish law. The prisoners
in question consider that they cannot be obliged to disown their
deeply held political convictions.
9.8. The Assembly respects the independence of the Spanish
tribunals to solve pending appeals, while respecting the right to
appeal to the European Court of Human Rights in due course.
10. In view of the above, the Assembly invites:
10.1. all member States of the Council
of Europe to:
10.1.1. ensure that everyone, including politicians,
enjoys freedom of speech and assembly in law and practice and refrain
from imposing any restrictions not covered by the Convention as interpreted
by the Court;
10.1.2. notably examine their relevant criminal provisions and
their application in practice in light of the judgments and decisions
of the Court, also vis-à-vis other countries, to ensure that their provisions
are drafted sufficiently clearly and narrowly and that they do not
lead to disproportionate penalties;
10.1.3. free without delay any and all politicians who fulfil
the Assembly’s definition of a political prisoner in line with Resolution 1900 (2012);
10.2. the Turkish authorities to:
10.2.1. urgently release
Mr Demirtaş, thereby implementing the European Court of Human Rights’
judgment and the decision of the Committee of Ministers;
10.2.2. take urgent steps to restore the independence of the judiciary,
in particular of the criminal courts, and refrain from making public
allegations that could be interpreted as instructions to the courts
by senior officials;
10.2.3. refrain from systematically prosecuting politicians for
terrorism-related offences whenever they refer to the Kurdish people
or the Kurdish region as such or criticise the actions of the security
forces in this region;
10.2.4. re-examine all cases of politicians prosecuted or even
convicted because of statements they made in the exercise of their
political mandate; and to terminate any prosecutions and release
those detained on such grounds, provided the politicians’ statements
concerned did not call for or condone violence or the overthrow
of democracy and human rights;
10.2.5. uphold and strengthen the privileges and immunities of
members of parliament in the face of politically motivated prosecutions,
in particular when they concern statements made by politicians in
the exercise of their political mandate;
10.2.6. recognise as elected the six mayoral candidates who received
the highest number of votes at the local elections of 31 March 2019
but have been denied the mayoral mandate, and reinstate the three
mayors who were suspended by the decision of the Supreme Election
Council of 11 April 2019, or implement an alternative solution which
respects the will of the voters, as recommended by the European
Commission for Democracy through Law (Venice Commission) in its
opinion “Turkey – The replacement of elected candidates and mayors”
adopted on 18 June 2020 and in line with Assembly Resolution 2347 (2020) “New
crackdown on political opposition and civil dissent in Turkey: urgent
need to safeguard Council of Europe standards”;
10.2.7. refrain from discriminating against political opponents
when deciding on early releases from detention prompted by the need
to reduce prison overcrowding due to the Covid-19 pandemic;
10.2.8. promote a culture of open debate in the political sphere,
on all issues, including sensitive ones, without the use or threat
of criminal sanctions against politicians who are peacefully exercising
their political mandates and to treat even fundamental opposition
as a necessary and welcome part of a living democracy;
10.2.9. sign and ratify the Framework Convention for the Protection
of National Minorities (ETS No. 157) and co-operate with its monitoring
mechanism;
10.3. the Spanish authorities to:
10.3.1. reform the
criminal provisions on rebellion and sedition so that they cannot
be interpreted in such a way as to invalidate the decriminalisation
of the organisation of an illegal referendum, as intended by the
legislature when it abolished this specific crime in 2005, or lead to
disproportionate sanctions for non-violent transgressions;
10.3.2. consider pardoning or otherwise releasing from prison
the Catalan politicians convicted for their role in the organisation
of the October 2017 unconstitutional referendum and the related peaceful
mass demonstrations, and consider dropping extradition proceedings
against Catalan politicians living abroad who are wanted on the
same grounds;
10.3.3. drop the remaining prosecutions also of the lower-ranking
officials involved in the 2017 unconstitutional referendum and refrain
from sanctioning the successors of the imprisoned politicians for
symbolic actions that merely express their solidarity with those
in detention;
10.3.4. ensure that the criminal provision on misappropriation
of public funds is applied in such a way that liability arises only
when actual, quantified losses to the State budget or assets can
be established;
10.3.5. refrain from requiring the detained Catalan politicians
to disown their deeply held political opinions in exchange for a
more favourable prison regime or a chance of pardon; they may however
be required to pledge to pursue their political objectives without
recourse to illegal means;
10.3.6. enter into an open, constructive dialogue with all political
forces in Catalonia, including those opposing independence, in order
to strengthen the quality of Spanish democracy through the authority
of the rule of law, good governance and total respect of human rights,
without recourse to criminal law, but in full respect of the constitutional
order of Spain and reach a compromise that enables Spain, a strong
European democracy, to settle political differences, including on
sensitive issues;
10.3.7. implement these recommendations according to the principles
of the rule of law as defined by the Council of Europe, paying due
attention to the principle of equality of all citizens before the
law.