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Resolution 2188 (2017)
New threats to the rule of law in Council of Europe member States: selected examples
1. The Parliamentary Assembly recalls
its previous resolutions on upholding the rule of law in the member States
of the Council of Europe, in particular Resolutions 1594 (2007) on the principle
of the rule of law, Resolution
1685 (2009) on allegations of politically motivated abuses
of the criminal justice system in Council of Europe member States, Resolution 2040 (2015) “Threats
to the rule of law in Council of Europe member states: asserting
the Parliamentary Assembly’s authority”, Resolution 1703 (2010) and Recommendation 1896 (2010) on
judicial corruption, Resolution
1943 (2013) and Recommendation
2019 (2013) on corruption as a threat to the rule of
law, and Resolution 2098
(2016) and Recommendation
2087 (2016) “Judicial corruption: urgent need to implement
the Assembly’s proposals”.
2. The Assembly notes with concern serious problems related to
the rule of law in many member States of the Council of Europe.
In its Resolution 2040
(2015), it regretted that a number of its recommendations concerning
the safeguarding and strengthening of the rule of law had still
not been implemented by certain member States.
3. The Assembly is also deeply concerned about cases in certain
member States in which national judiciaries are used to silence
political opponents and to repress those who disagree with government
policies.
4. Fully aware of the diversity of the legal systems and cultures
of the member States, the Assembly underlines that respect for the
rule of law is one of the core values of the Organisation and is
closely interlinked with democracy and respect for human rights.
Article 6 of the European Convention on Human Rights (ETS No. 5)
enshrines one of its main components: the principle of independence
and impartiality of the judiciary. Furthermore, the Council of Europe
is the international organisation that developed legal and political documents
in this field, through the work of its statutory bodies and specialised
instances, such as the European Commission for Democracy through
Law (Venice Commission), the Group of States against Corruption
(GRECO), the European Commission for the Efficiency of Justice (CEPEJ),
the Consultative Council of European Judges (CCJE) and the Consultative
Council of European Prosecutors (CCPE).
5. The Assembly calls again on all Council of Europe member States
to fully implement the principle of the rule of law, in line with
the above-mentioned instruments of the Council of Europe, and to
continue to co-operate with its relevant bodies and instances.
6. The Assembly has thoroughly examined the situation in five
member States: Bulgaria, the Republic of Moldova, Poland, Romania
and Turkey. Although the list of problems found in these States
does not encompass all of those to be found in Council of Europe
member States, the Assembly is concerned about some recent developments
which put at risk the respect for the rule of law, and, in particular,
the independence of the judiciary and the principle of the separation
of powers. This is mainly due to tendencies to limit the independence
of the judiciary though attempts to politicise the judicial councils
and the courts (mainly in Bulgaria, Poland and Turkey), the massive
revocation of judges and prosecutors (Turkey) or attempts to do
so (Poland) and tendencies to limit the legislative power of the
parliament (the Republic of Moldova, Romania and Turkey). Moreover,
corruption, which is a major challenge to the rule of law, remains
a widespread phenomenon in Bulgaria, the Republic of Moldova and
Romania.
7. The Assembly therefore calls on the Bulgarian authorities
to:
7.1. continue the reform of
the Supreme Judicial Council, the judiciary and the prosecution
service in line with Council of Europe recommendations;
7.2. strengthen efforts to combat corruption and, in particular,
establish an anti-corruption agency.
8. The Assembly calls on the authorities of the Republic of Moldova
to:
8.1. continue the reform of
the Superior Council of Magistracy, the judiciary and the prosecution service
in line with the recommendations of Council of Europe bodies;
8.2. considerably strengthen its efforts to combat corruption
and, in particular, ensure full independence of the major institutions
that are competent in this field;
8.3. refrain from taking measures which would undermine the
separation of powers.
9. The Assembly calls on the Polish authorities to:
9.1. refrain from conducting any
reform which would put at risk respect for the rule of law, and
in particular the independence of the judiciary, and, in this context,
to refrain from amending the Act on the National Council of the
Judiciary in a way that would modify the procedure for appointing
member judges of the council and would establish political control
over the appointment process of member judges;
9.2. ensure that the justice reform which is now under way
will be compliant with Council of Europe standards on the rule of
law, democracy and human rights and, in this context, to refrain
from implementing any legal provisions that would terminate the
term of office of member judges of the Polish National Council of
the Judiciary or of the First President of the Supreme Court;
9.3. fully co-operate with the Venice Commission and implement
its recommendations, especially those with respect to the composition
and the functioning of the Constitutional Court.
10. The Assembly asks the Venice Commission for an opinion on
the compatibility with the Council of Europe's standards on the
rule of law of the Polish Ordinary Courts Organisation Act of 12
July 2017, as well as of the two bills recently submitted to the
Sejm by the President of the Republic, on amending the National Council
of the Judiciary and the Supreme Court Act.
11. The Assembly calls on the Romanian authorities to:
11.1. facilitate an appropriate public
debate on the constitutional criteria for lifting parliamentary immunity
and adopt clear criteria for this, respecting the recommendations
of the Venice Commission;
11.2. revise as soon as possible the country’s criminal legislation
by implementing the decisions of the Constitutional Court that declared
unconstitutional an important number of articles of the Criminal
Code and the Criminal Procedure Code focusing on the fight against
corruption and the abuse of authority, and by implementing the recommendations
of the Venice Commission and GRECO;
11.3. ensure that the separation of powers is respected by the
government and the judiciary as regards the competences of the parliament,
refraining especially from the excessive use of emergency ordinances;
11.4. support, politically and financially, the remarkable work
of the National Anti-Corruption Directorate, respecting the legal
framework and the need for an effective fight against corruption
and the abuse of authority;
11.5. ensure that all political parties respect the essential
role and the authority of the Constitutional Court and the National
Anti-Corruption Directorate.
12. Recalling its Resolution
2156 (2017) on the functioning of democratic institutions
in Turkey, the Assembly reiterates its deepest concern about the
scope of measures taken under the state of emergency and the amendments
to the constitution adopted by the Grand National Assembly on 21 January
2017 and approved in the national referendum of 16 April 2017. It
therefore calls on the Turkish authorities to:
12.1. lift the state of emergency
as soon as possible;
12.2. reconsider the constitutional amendments approved in the
referendum of 16 April 2017, in line with Opinion No. 875/2017 of
the Venice Commission, so that there will again be a functioning
separation of powers, especially with respect to the parliament
and the Constitutional Court;
12.3. make sure that all emergency decree laws passed by the
government under the state of emergency are approved by the parliament
and that their constitutionality can be verified by the Constitutional
Court;
12.4. put an immediate end to the collective dismissal of judges
and prosecutors, as well as other civil servants, through decree
laws and ensure that those who have already been dismissed will
have their cases reviewed by a “tribunal” fulfilling the requirements
of Article 6 of the European Convention on Human Rights.
13. The Assembly recalls its Resolution 2178 (2017) on the implementation
of judgments of the European Court of Human Rights and calls on
all member States of the Council of Europe to fully implement these judgments
and give political priority to those which reveal a strong need
to carry out comprehensive reforms of the judicial system. The Assembly
is greatly disappointed by the fact that some member States are
discussing and introducing legal instruments to avoid implementing
rulings of the European Court of Human Rights.
14. The Assembly calls on all member States to promote a legal
and political culture that is conducive to the implementation of
the rule of law, in conformity with the underlying principles of
all Council of Europe standards.