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Resolution 1950 (2013) Final version
Keeping political and criminal responsibility separate
1. The Parliamentary Assembly 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.
2. The Assembly also reconfirms its principled opposition to
all forms of impunity, as expressed in its Resolution 1675 (2009) on the state
of human rights in Europe: the need to eradicate impunity. Consequently, 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.
3. 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 the following principles, in line
with the conclusions of the European Commission for Democracy through
Law (Venice Commission):
3.1. criminal
proceedings should not be used to penalise political mistakes or
disagreements;
3.2. politicians should be accountable for ordinary criminal
acts in the same way as ordinary citizens;
3.3. substantive national rules on ministerial criminal responsibility
must comply both with Article 7 of the European Convention on Human
Rights (ETS No. 5, “the Convention”) and other requirements derived
from the principle of the rule of law, including legal certainty,
predictability, clarity, proportionality and equal treatment;
3.4. in particular, wide and vague national criminal law provisions
on “abuse of office” can be problematic, both with regard to Article
7 of the Convention and other basic requirements under the rule of
law, and they can also be particularly vulnerable to political abuse;
3.5. national provisions on “abuse of office” should be interpreted
narrowly and applied with a high threshold, with reference to additional
criteria, such as, in cases involving economic interests, the intent of
personal gain; they should only be invoked against politicians as
a last resort and the level of sanctions should be proportional
to the legal offence and not influenced by political considerations;
3.6. 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 to the special impeachment
procedures which exist in a number of Council of Europe member States;
3.7. special rules for impeachment of ministers must not be
in breach of basic principles of the rule of law. As such rules
are susceptible to political abuse, they call for extra caution
and restraint as to the manner in which they are interpreted and
applied.
4. In view of the above, the Assembly:
4.1. urges governing majorities in member States to refrain
from abusing the criminal justice system for the persecution of
political opponents;
4.2. invites the legislative bodies of those member States
whose criminal law still includes broad abuse-of-office provisions
to consider abolishing or redrafting such provisions, with a view
to limiting their scope in line with the recommendations of the
Venice Commission;
4.3. invites the competent authorities of those member States
whose constitutions provide for special impeachment procedures for
ministerial criminal responsibility to ensure that they are interpreted
and applied with the degree of caution and restraint recommended
by the Venice Commission;
4.4. urges the competent authorities of those member States
which have been condemned for violation of Article 18 of the Convention
(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
judgments of the European Court of Human Rights.