Challenge of credentials of national delegations in the course of an ordinary session

Doc. 7481

9 February 1996

REPORT (1)

Rapporteurs: Mr CUMMINGS, United Kingdom, Socialist Group and Sir Anthony DURANT, United Kingdom, European Democratic Group


Summary

At present the Assembly's Rules of Procedure do not provide explicitly for the case when credentials of a national delegation are challenged in the course of an ordinary session (parliamentary year). To remedy this, the report proposes to add to Rule 6 of the Assembly's Rules of Procedure by allowing, under certain conditions, the annulment of the Assembly's ratification. The new provisions also deal with the consequences of such annulment.

I. Draft resolution [link to the Adopted Text]

    The Assembly notes that its Rules of Procedure do not provide explicitly for the re-examination of ratified credentials of a national delegation in the course of an ordinary session (parliamentary year).

    It considers that it should be able to challenge ratified credentials when urgent action is deemed necessary.

    The Assembly therefore decides to insert in Rule 6, after paragraph 6, the following new paragraphs:

"7.    Ratified credentials may be reconsidered in the course of the same ordinary session if a motion for a resolution has been tabled with a view to annulling the ratification. Such a motion must state the reasons and shall be based:

    _    on a serious violation of the basic principles of the Council of Europe mentioned in Article 3 and the Preamble of the Statute;

    _    or on paragraph 9 of Order No. 508 (1995).See footnote 2

    The motion must be tabled by at least two political groups and two national delegations and be distributed at least two weeks before the opening of a part-session.

8.    The motion shall be referred to the Political Affairs Committee for report and to the Committee on Legal Affairs and Human Rights and the Committee on Rules of Procedure for opinion. The report including a draft text shall be submitted to the Assembly or the Standing Committee, if necessary under urgent procedure.

9.    The draft text shall, if appropriate, justify annulling the ratification of credentials of a delegation and submit proposals with respect to the consequences such as:

    _    depriving the members of the delegation concerned of tabling official documents in the sense of Rule 23 of the Rules of Procedure, taking on duties and voting in the Assembly and its bodies, while maintaining those members' rights to attend and to speak at Assembly part-sessions and meetings of its bodies;

    _    or depriving these members of the exercise of the full rights of participation in the activities of the Assembly and its bodies.

10.    Members of the delegation concerned shall not vote on any request to annul the Assembly's ratification of their credentials."

II. Explanatory memorandum by Mr CUMMINGS and Sir Anthony DURANT

A. Introduction

    On 27 April 1995 Mr Hardy and other members tabled a motion for an order (Doc. 7298) worded as follows:

    "The Assembly, considers that it should have the capacity to withdraw the credentials of a delegation when urgent action is deemed necessary".

    This motion was referred to the Committee on Rules of Procedure for report (Reference No. 2008).

    This report will summarise the current situation with respect to the possibilities of challenging credentials in the course of a session and submit proposals for a rule change and the modalities of its implementation.

B. Current situation regarding the challenge of credentials

i.    Statutory provisions and Assembly Rules of Procedure

    Under Article 25 of the Statute "the Consultative [Parliamentary] Assembly shall consist of representatives of each member ...". Article 26 specifies the number of representatives to which a member shall be entitled. This right of representation is reinforced by Articles 1.b and 3 according to which each member "must ... collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter I [of the Statute]", inter alia "through the organs of the Council", that is the Committee of Ministers and the Parliamentary Assembly.

    From the side of the Committee of Ministers the right of representation may under the Statute be restricted (suspended or withdrawn) if the conditions and modalities of Articles 8 or 9 are fulfilled. According to Articles 23.a and 15.a of the Statute, the Assembly may propose to the Committee of Ministers to take action under Articles 8 or 9 of the Statute. Under Statutory Resolution (51) 30A the Committee of Ministers committed itself to consult the Assembly before taking a decision under Article 8 of the Statute.See footnote 3

    Article 28 (paragraphs a and c.iv) of the Statute also empowers the Assembly to adopt its Rules of Procedure which shall determine inter alia "the time and manner in which the names of Representatives and their Substitutes shall be notified". It is on this

basis that the Assembly introduced since its beginning a comprehensive procedure for examining credentials of members, the details of which are to be found in Rule 6 of the Rules of Procedure.

ii.    Timing for the challenge of credentials

    Rule 6, paragraph 5.a of the Rules specifies that the credentials which give rise to an objection or are contested shall be referred without debate to the Committee on Rules of Procedure. But the Rules do not say when the credentials may be contested.

    It is the Assembly's practice that this is done at the moment of the presentation of credentials. Rule 6.3 requires that "at the beginning of each ordinary session these credentials shall be submitted to the Assembly by the provisional President for ratification".

    Under the Statute (Article 25 paragraphs a and b) and the Rules of Procedure (Rule 6.4) there are a limited number of cases where credentials may be presented and ratified/contested in the course of a session:

    _    when a new delegation is appointed as a result of national parliamentary elections;

    _    when new members are appointed after seats have become vacant through death or resignation; when, under Article 25.b of the Statute,See footnote 4 the Assembly has agreed that a national delegation deprives a member (members) of his/her (their) position(s) during a session and this vacancy has been filled accordingly;

    _    when following accession to the Council of Europe a new member state has appointed its delegation to the Assembly.

    In addition, the Assembly developed for major political crises (like those in Greece _ period of 1967-69 _ and Turkey 1980-83) a special formula of anticipated contestation of credentials in the course of a session.

    In paragraph 8 of Recommendation 547 (1969) the formula is as follows:

    "[The Assembly] decides not to recognise the credentials of any Greek delegate purporting to represent the Greek Parliament until such time as the Assembly is satisfied that freedom of expression is restored and a free and representative parliament is elected in Greece".

    Paragraph 12 of Resolution 803 (1983) reads as follows:See footnote 5

    "[The Assembly] declares that, under present conditions and on the basis of information now available, the parliament which will be elected in Turkey on 6 November will not be able to be considered as representing the Turkish people in a democratic manner, and could not therefore validly constitute a delegation to participate in the work of the Parliamentary Assembly of the Council of Europe."

    However, such a contestation would not have immediate effects but would apply only after the presentation of (new) credentials for ratification.

    In conclusion there is nothing in the Rules which provides for a re-examination of ratified credentials in the course of a session. Moreover, this has never happened. But the Rules also do not explicitly prevent the Assembly from doing so. In practice the ratification remains therefore valid until the end of the parliamentary year.

iii.    Annulment of the Assembly's ratification of credentials

    Any parliamentary assembly should be able to regulate its own membership and to take appropriate action in case of urgency. Such urgent action may particularly be deemed necessary if the situation in the country of a parliamentary delegation whose credentials have been ratified, has fundamentally changed since the opening of the ordinary session and constitutes a serious violation of the basic principles of the Council of Europe's Statute which are also safeguarded through Rule 6, paragraph 5, of the Rules.See footnote 6

    Because of its far-reaching consequences such a measure by the Assembly should have a proper legal basis and be compatible with the Statute and the Rules of Procedure.

    As already indicated, participation in the Parliamentary Assembly is governed by Articles 25 and 26 of the Statute. Except the three cases mentioned under indents 1 to 3 of paragraph 8 above, Article 25.a of the Statute provides that the term of office of a

member "will expire at the opening of the next ordinary session or of a later ordinary session". In the Assembly's practiceSee footnote 7 "ordinary session" is equivalent to "parliamentary year". In the last years this practice has also constantly been confirmed, when national delegations envisaged to replace members in the course of the parliamentary year.

    This could raise a problem if credentials which were ratified for the whole parliamentary year were suspended/"withdrawn" before the end of the latter. An additional problem stems from the fact that the Assembly is not the competent authority (see Rule 6.1 of the Rules) having issued the credentials and cannot, therefore, withdraw or suspend them. This right is reserved to the competent national authority until the credentials have been ratified by the Assembly. Instead of speaking of a withdrawal/suspension of the credentials it should therefore be considered if the Assembly may annul its ratification of the credentials.

    In this connection Article 25.b of the Statute is relevant, according to which "no representative shall be deprived of his position as such during a session of the Assembly without the agreement of the Assembly". If the Assembly has the right to block any tentative from national authorities to deprive members of their mandate during a session of the Assembly, it could be deduced thereof that it should also be empowered to annul the ratification of that delegation's credentials or to suspend itself a delegation from its activities in case of a serious violation of the fundamental principles for which the Council of Europe and its Parliamentary Assembly stand for.

    Under Article 23, paragraph 2, of the Vienna Convention on Consular Relations of 24 April 1963, the receiving state of a consular officer may, under certain conditions, annul the exequatur (authorisation from the receiving state to be admitted to the exercise of consular functions) from the person concerned. Likewise the agrément of diplomats may be "withdrawn" (see Articles 9 and 43 of the Vienna Convention on Diplomatic Relations of 18 April 1961).

    Independently from these considerations it is worth mentioning that the "human rights and democracy clauses" in agreements concluded between the European Union (Community) and third countries, authorising the Union to suspend the operation of the agreement are based on Article 60 of the Vienna Convention of 1969See footnote 8 on the Law of Treaties. According to Article 60, paragraph 1, "a material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. Under Article 60, paragraph 3.b a

material breach is "the violation of a provision essential to the accomplishment of the object or purpose of the Treaty".

    Another case where the Assembly should be in a position to annul its ratification of credentials is when a member state persistently fails to honour commitments made by its authorities vis-à-vis the Assembly and to co-operate in the Assembly's monitoring process (see paragraph 9 of Order No. 508 (1995).See footnote 9

    The rapporteurs are convinced that the Assembly will exercise any new prerogatives responsibly, bearing in mind the spirit of Article 25.b of the Statute. In particular, the Assembly should take into account the position of the parliamentary delegation concerned vis-à-vis its government.

C. Implementation of these proposals

    For reasons of fairness and good order and following the general parliamentary practice that rescission of a decision requires notice,See footnote 10 any consideration of annulling a ratification should be based on a motion for a resolution.See footnote 11

    The conditions for tabling and processing such a motion should be as follows:

    a.    circulation of the motion at least two weeks before the opening of a part-session (reflecting the provision in Rule 28.2 of the Rules of Procedure);

    b.    the motion must state the reasons of the request for annulling the ratification, which would have to be based on a serious violation by the member state concerned of Article 3 of the Statute and/or its Preamble, or on paragraph 9 of Order No. 508 (1995);See footnote 12

    c.    the motion would also ask for examination of the report at the opening of the following part-session or at the next meeting of the Standing Committee, if necessary in application of urgent procedure (Rule 48); it should be tabled by at least two political groups and two national delegations, to take account of the importance of the matter;

    d.    any such motion procedurally in order would be referred by the Bureau to the Political Affairs Committee for report and the Committee on Legal Affairs and Human Rights and the Committee on Rules of Procedure for opinion; if necessary the Bureau could issue instructions concerning the timetable for preparing the report etc;

    e.    the reference to committee would be ratified by the Assembly (or the Standing Committee).

    A delegation concerned by a request for annulling the ratification of their credentials should not be entitled to vote on the draft text included in the report of the Political Affairs Committee. It is recalled that under Rule 6, paragraph 6, of the Rules of Procedure "any Representative or Substitute or any national delegation whose credentials are contested ... shall not vote on the examination of his or its own credentials".

    The outlined procedure should, in so far as necessary, be incorporated in the Assembly's Rules (see the draft resolution on page 2 above).

D. Consequences of the annulment by the Assembly of

its ratification of credentials

    Any annulment of the ratification of credentials affects the position of the members concerned within the Assembly and its bodies.

    In addition to taking position on the requested annulment of the Assembly's ratification, the report and the draft text to be submitted by the Political Affairs Committee shall also, if appropriate, submit proposals with respect to the consequences of the decision.

    Such consequences could be:

    _    depriving members concerned of tabling official documents in the sense of Rule 23 of the Rules of Procedure (notably motions and amendments) taking on duties (such as rapporteur, observer of elections, ...) and voting in the Assembly and its bodies, while preserving the right to attend and to speak at Assembly part-sessions and meetings of its bodies;

    _    depriving these members from the exercise of the full rights of participation in the Assembly and its bodies.

    At the meeting of the Committee on Rules of Procedure on 9 November 1995 one member raised the possibility of formally expelling a delegation from the Assembly. However, in this respect a distinction has to be made between the consequences of the annulment by the Assembly of its ratification of credentials, which comes under the sole province of the Assembly and the sanctions based on Article 8 of the Statute (see paragraph 4 above). According to this provision it is up to the Committee of Ministers to

suspend a state from the Council of Europe as a whole and to decide that it will cease to be a member of the Organisation as from a date the committee will determine.

    If the conditions having led to the rescission of the Assembly's ratification of credentials no longer exist, the delegation concerned may request that the credentials of its members be submitted for a new ratification to the Assembly or the Standing Committee according to paragraphs 4 to 6 of Rule 6.

    In so far as these proposals imply Rule changes, they have been included in the draft resolution above.

E. Final remark

    The new provisions should enter into force immediately after their adoption.

APPENDIX

Order No. 508 (1995)See footnote 13 on the honouring of obligations and commitments by member states of the Council of Europe

1.    The Assembly, in Order No. 488 (1993), instructed its Political Affairs Committee and Committee on Legal Affairs and Human Rights "to monitor closely the honouring of commitments entered into by the authorities of new member states and to report to the Bureau at regular six-monthly intervals until all undertakings have been honoured".

2.    In Order No. 485 (1993) the Assembly instructed its Committee on Legal Affairs and Human Rights "to report to it when problems arise on the situation of human rights in member states, including their compliance with judgments by the European Court of Human Rights".

3.    In Resolution 1031 (1994) the Assembly observed "that all member states of the Council of Europe are required to respect their obligations under the Statute, the European Convention on Human Rights and all other conventions to which they are parties. In addition to these obligations, the authorities of certain states which have become members since the adoption in May 1989 of Resolution 917 (1989) on a special guest status with the Parliamentary Assembly freely entered into specific commitments on issues related to the basic principles of the Council of Europe during the examination of their request for membership by the Assembly. The main commitments concerned are explicitly referred to in the relevant opinions adopted by the Assembly."

4.    The Assembly considered in the same resolution that "persistent failure to honour commitments freely entered into will have consequences (...). For this purpose, the Assembly could use the relevant provisions of the Council of Europe's Statute and of its own Rules of Procedure ...".

5.    Taking also into account the declaration on compliance with commitments accepted by member states of the Council of Europe, adopted by the Committee of Ministers on 10 November 1994, the Assembly seeks to strengthen its own monitoring procedure, established in 1993.

6.    The Assembly therefore instructs its Committee on Legal Affairs and Human Rights (for report) and its Political Affairs Committee (for opinion) to continue monitoring closely the honouring of obligations and commitments in all member states concerned. The Committee on Relations with European Non-Member Countries will also be asked for an

opinion with regard to the member states which previously enjoyed special guest status. To start the procedure, the Committee on Legal Affairs and Human Rights must take such a decision, in accordance with normal committee procedure.

7.    Countries which are members or candidates for full membership at their accession should honour Recommendation 1201 (1993). This should also be a part of the monitoring process.

8.    The committees should work in close co-operation. They may report direct to the Assembly. Their reports should concern one single country and include a draft resolution in which clear proposals are made for the improvement of the situation in the country under consideration.

9.    The Assembly may sanction persistent failure to honour commitments, and lack of co-operation in its monitoring process, by the non-ratification of the credentials of a national parliamentary delegation at the beginning of its next ordinary session, in accordance with Rule 6 of the Rules of Procedure.

10.    Should the country continue not to respect its commitments, the Assembly may address a recommendation to the Committee of Ministers requesting it to take the appropriate action provided for in Article 8 of the Statute of the Council of Europe.

11.    This order supersedes Order No. 488 (1993) and Resolution 1031 (1994).


Reporting committee: Committee on Rules of Procedure.

Budgetary implications for the Assembly: none.

Reference to committee: Doc. 7298 and Reference No. 2008 of 28 April 1995.

Draft resolution unanimously adopted, with one abstention, by the committee on 24 January 1996.

Members of the committee: (Chairperson), Mrs Lentz-Cornette, MM. Rewaj, Verbeek (Vice-Chairmen), MM. Alloncle (Alternate: Vinçon), Cummings, Djerov, Sir Anthony Durant (Alternate: Sir Russell Johnston), Mr Fenech, Mrs Fernández Ramiro, Lord Finsberg, MM. Gabrielescu, Galanos, Gjellerod, Goovaerts, Mrs Holand, MM. Laakso, Lorenzi, Loukota, Magnusson, Marten, Masson, Molnár, Proriol, Pukl, Mrs Ragnarsdóttir, MM. Rokofyllos, Schieder, Schloten, von Schmude, Seiler, Selva (Alternate: Speroni), Slobodnik, Sinka, Soldani (AlternateLa Russa), Spahia, Stretovych, Tahiri, Wallace.

N.B.    The names of those members who took part in the vote are printed in italics.

Secretary to the committee: Mr Heinrich.


Footnote: 1 By the Committee on the Rules of Procedure.

Footnote: 2 Paragraph 9 of Order No. 508 (1995) reads: "The Assembly may sanction persistent failure to honour commitments, and lack of co-operation in its monitoring process, by the non-ratification of the credentials of a national parliamentary delegation at the beginning of its next ordinary session, in accordance with Rule 6 of the Rules of Procedure."

Footnote: 3Article 8 reads: "Any member of the Council of Europe which has seriously violated Article 3 may be suspended from its rights of representation and requested by the Committee of Ministers to withdraw under Article 7. If such member does not comply with this request, the committee may decide that it has ceased to be a member of the Council as from such date as the committee may determine."

Footnote: 4Article 25.b reads as follows "No Representative shall be deprived of his position as such during a session of the Assembly without the agreement of the Assembly".

Footnote: 5See in this context also Order No. 398 (1981): "The Assembly, regretfully concludes, bearing in mind the outstanding contribution of Turkish parliamentarians to its work, that, in the light of Article 25, paragraph 1, of the Statute, and Rule 7, paragraphs 1 and 2, of the Assembly's Rules of Procedure, it would be out of order to envisage the prolongation of the term of office of the Turkish parliamentary delegation to the Council of Europe ...".

Footnote: 6These are the principles referred to in Article 3 and the Preamble of the Statute, Article 25 and 26 of the Statute and the principle that national parliamentary delegations should reflect the various currents of opinion within their parliaments.

Footnote: 7As the Assembly held in 1949 a single session of thirty-one days which was not interrupted, the view has also been expressed that "ordinary session" in Articles 25.a and b of the Statute meant in fact "part-session"; the term of "ordinary session" also appears in Articles 28.a, 32, 33, 41.d of the Statute and at many places in the Assembly's Rules of Procedure (for example, Rules 9.9 and 45.8) where it cannot be doubtful that it covers the whole parliamentary year; it would be difficult to conceive that in one case "ordinary session" means "part-session" and in others the "parliamentary year".

Footnote: 8See p. 3 of COM (95) 216 final (23 May 1995) from the Commission of the European Communities and the European Parliament's hearing of 20 to 21 November 1995 on the Human Rights Clause in External Agreements.

Footnote: 9It is recalled that already in its Order No. 488 (1993) the Assembly considered that the honouring of specific commitments entered into by the authorities of the candidate states on issues relating to the basic principles of the Organisation were a condition for full membership of parliamentary delegations of new member states in its work.

Footnote: 10Another principle to be taken into account under international law is that rescission of a decision has to follow the same (or stronger) rules as those which have to be fulfilled for obtaining the relevant decision.

Footnote: 11Motions for orders should be excluded, since, according to Rule 31.3 they may be put to the vote without first being referred to committee; however, given the importance of the matter it is essential that a committee report is always prepared.

Footnote: 12Paragraph 9 of Order No. 508 (1995) reads as follows: "The Assembly may sanction persistent failure to honour commitments, and lack of co-operation in its monitoring process, by the non-ratification of the credentials of a national parliamentary delegation at the beginning of its next ordinary session, in accordance with Rule 6 of the Rules of Procedure."

Footnote: 13

Assembly debate on 26 April 1995 (12th Sitting). See Doc. 7277, report of the Committee on Legal Affairs and Human Rights (rapporteur: Mr Columberg), Doc. 7292, opinion of the Committee for Relations with European Non-Member Countries (rapporteur: Mr Seitlinger) and Doc. 7294, opinion of the Committee on Rules of Procedure (rapporteur: Lord Finsberg). Text adopted by the Assembly on 26 April 1995 (12th Sitting).