1 Introduction
1. On 17 December 2008, the Committee
on the Honouring of Obligations and Commitments by Member States
of the Council of Europe (Monitoring Committee) approved a report
on the implementation by Armenia of Assembly Resolutions
1609 (2008) and
1620
(2008) (
Doc. 11786) and adopted a draft resolution, in which it recommended
suspending “the voting rights of the members of the Armenian parliamentary
delegation to the Assembly, under Rule 9, paragraphs 3 and 4.
c, of the Rules of Procedure, until
the Armenian authorities have clearly demonstrated their political
will to resolve the issue of persons deprived of their liberty in
relation to the events of 1 and 2 March 2008, in line with its demands
(…).” This report is included on the agenda for the January 2009
part-session.
2. At its meeting on 9 January 2009, the Bureau decided to ask
the Committee on Rules of Procedure, Immunities and Institutional
Affairs to prepare an opinion in accordance with Rule 9.3 of the
Assembly’s Rules of Procedure.
3. The Committee on Rules of Procedure must therefore consider
in this opinion whether the proposal put forward by the Monitoring
Committee in its report complies with the Rules of Procedure, in
particular Rule 9, and with the Statute of the Council of Europe.
4. It will be remembered that at the October 2008 part-session,
the Assembly, for the first time in its history, considered a motion
to challenge previously ratified credentials on substantive grounds
(specifically those of the Russian parliamentary delegation), in
accordance with the procedure set out in Rules 9.1.
a and 9.2, that is, the initiative
was taken by members of the Assembly. As the motion set a precedent,
the Committee on Rules of Procedure, having been asked to give an
opinion, wished to clarify certain aspects of the implementation
of the procedure provided for under Rule 9, particularly as regards
the requirements relating to the motion’s admissibility and grounds:
“as the procedure in question is of major political importance and
needs to be conducted with rigour because of its implications, it
cannot be used as a mere means of exerting pressure for purely tactical
reasons” (see
Doc. 11728). It will also be remembered that the consideration
of this motion prompted questions among the Assembly’s members,
the matter having been referred to the Committee on Rules of Procedure,
and the latter had to clarify these points,
Note which
it will discuss further in a report being prepared on amendments
to various provisions of the Rules of Procedure.
5. The challenge made in the report submitted by the Monitoring
Committee on Armenia’s implementation of Assembly Resolutions
1609 (2008) and
1620
(2008) also sets a precedent, since Rule 9 is implemented for the
first time on its initiative, as provided for in Rule 9.1.
b, following clear procedures which
this time should not give rise to any controversy.
Note
2 Consideration
of the Monitoring Committee’s proposal
6. The Committee on Rules of Procedure
examined the report adopted by the Monitoring Committee and discussed
whether the draft resolution it contained – in particular paragraph
9 – complied with the Assembly’s Rules of Procedure and the Statute
of the Council of Europe. Since the publication of the aforementioned report,
the Monitoring Committee has prepared an addendum on “recent developments”,
through which it provides an update on progress made concerning
the implementation by Armenia of Resolutions 1609 (2008) and 1620
(2008), in particular concerning the release of political prisoners.
It also includes six amendments, one of which refers to the proposal
to suspend the voting rights of the Armenian delegation (paragraph
9 of the draft resolution contained in
Doc. 11786). On the basis of the addendum and the amendments proposed,
the Assembly will have to make its judgment concerning the voting
rights.
2.1 Regulatory basis
for the challenging of credentials
7. Rules 8 and 9 provide for the
possibility of penalising a national parliamentary delegation. In
the present instance, the Assembly has to consider penalising the
Armenian delegation on the basis of the report submitted by the
Monitoring Committee as part of its general mandate to monitor member
states’ obligations and commitments (
Resolution 1115 (1997) as amended).
8. Rule 9.1.b provides
that “the Assembly may reconsider ratified credentials of a national
delegation as a whole (…) on the basis of a report by the Monitoring
Committee containing a text which recommends that the credentials
be reconsidered”, and Rule 9.3 that “the Monitoring Committee may,
in a report foreseen on the agenda of the Assembly (…) call into
question the credentials of a national delegation (…)”.
9. As this procedure falls within the context of the periodic
monitoring of obligations and commitments, the proposed penalty
must be justified by Armenia’s persistent failure to honour its
obligations and commitments or its lack of co-operation in the monitoring
process.
Note
10. It is worth noting that, while Rule 9.1.
a (challenging
of credentials on the basis of a motion for a resolution tabled
by Assembly members) expressly mentions the grounds set out in Rule
8.2 – serious violation of the basic principles of the Council of
Europe mentioned in Article 3
Note of,
and the Preamble to, the Statute; or persistent failure to honour
obligations and commitments and lack of co-operation in the Assembly’s
monitoring procedure –, Rule 9.1.
b (challenge
on the basis of a report by the Monitoring Committee) does not include
any such reference. The principles according to which a penalty
may be justified on the Monitoring Committee’s initiative are set
out in the latter’s terms of reference, as established by the amended
Resolution 1115 (1997).
2.2 Compliance of
the Monitoring Committee’s proposal with the Rules of Procedure
11. Rule 9.4 states that a report
submitted to the Assembly shall contain a draft resolution proposing
in its operative part:
- confirmation
of the ratification of the credentials;
- annulment of the ratification of the credentials;
- confirmation of the ratification of the credentials together
with depriving or suspending the exercise of some of the rights
of participation or representation of members of the delegation
concerned in the activities of the Assembly and its bodies.
12. In the draft resolution contained in its report of December
2008 (
Doc. 11786) the Monitoring Committee proposes “to suspend the voting
rights of the members of the Armenian parliamentary delegation (…)
until the Armenian authorities have clearly demonstrated their political
will to resolve the issue of persons deprived of their liberty in
relation to the events of 1 and 2 March 2008 (...)”.
13. Where penalties are proposed as part of the monitoring of
obligations and commitments, this is the final stage in an ongoing
process of dialogue with the state concerned. In the present instance,
it will also be noted that the Assembly issued a clear warning to
the Armenian authorities in
Resolution
1620 (2008), and envisaged suspending the voting rights of the delegation’s
members if the requirements laid down were not fulfilled by the January
2009 part-session.
14. As regards the grounds and justification for the proposed
penalty, the report of December 2008, including the draft resolution,
submitted detailed explanations and sufficient grounds relating
to politically motivated charges and detention and the existence
of political prisoners (see, in particular, paragraphs 4 and 5 of
the draft resolution). The Committee on Rules of Procedure finds
that this requirement is satisfied.
Note
15. The Committee on Rules of Procedure may also assess the proportionality
of the proposed penalty in relation to the seriousness of Armenia’s
failure to honour its obligations and commitments. In the light
of the information in the report submitted by the Monitoring Committee
(see Chapter II, Implementation of Assembly requirements), the Committee
on Rules of Procedure considers that the proposed measure is proportional
to the seriousness of the grounds on which it is based and to Armenia’s
breaches of its obligations and commitments. The committee also
considers that the proposals included in the addendum to the Monitoring Committee’s
report are proportional.
3 Other issues
relating to the application of the Rules of Procedure concerning
the reconsideration of a parliamentary delegation’s credentials
16. The Monitoring Committee’s
initiative to seize the Assembly under Rule 9 for the purpose of reconsidering
the Armenian delegation’s previously ratified credentials sets a
precedent. In the light of previous debates on the challenging of
a delegation’s credentials, the committee wishes to raise two issues
relating to the application of the Rules of Procedure that it regards
as problematic. Moreover, having regard to the recent developments
in Armenia, as set out in the addendum to the report of the Monitoring
Committee of December 2008, it might be helpful for the Rules Committee
to confirm that the addendum and the proposal it contains do not
raise any problems under the Rules of Procedure.
3.1 Application of
Rule 34 on amendments, and limitation of the right to move an amendment
on the grounds that it is out of order
17. Rule 9.4.c.
states that the provisions on amendments (Rule 34) shall apply.
In the event that a delegation’s credentials are challenged, the
interpretation of Rule 34.3 may be problematic (“An amendment which
would tend to delete, replace or render inoperative the whole of
a draft text is not in order”).
18. Accordingly, on 6 April 2000, during a debate on the challenging
of the Russian delegation’s credentials on substantive grounds (Rule
8), the President of the Assembly ruled that amendments aiming at
a result which could be achieved by voting against the draft text
were out of order.
Note This
precedent does not cover every possible scenario, however. An amendment
proposing not to ratify credentials or to annul them would be out of
order if the draft resolution proposed to ratify or confirm them;
conversely, an amendment proposing to ratify or confirm credentials
would be out of order if the draft resolution proposed not to ratify
them, to annul them, or to suspend the exercise of certain rights.
Note
19. In the present case – reconsideration of the Armenian delegation’s
previously ratified credentials – it is a matter of establishing
which amendments would be deemed in or out of order, including those
submitted to the Assembly by the Monitoring Committee itself:
- would an amendment replacing
the suspension of voting rights proposed by the Monitoring Committee in
paragraph 9 with one of the other two proposals listed under Rule
4 (in this case, annulment of the ratification of credentials, or
confirmation of the ratification of credentials without any accompanying measures)
be in order?
- would an amendment suppressing the proposed sanction without
replacing it with one of the two others measures contained in Rule
9.4 be in order?
20. Indeed, the question arises as to whether or not Rule 34.3
is applicable to a draft resolution submitted by the Monitoring
Committee in relation to the honouring of a given state’s obligations
and commitments, which includes a whole series of measures and recommendations.
To what extent would an amendment concerning the proposed penalty
tend to render the whole of the draft text inoperative? What latitude
do Assembly members have? What latitude does the Monitoring Committee
itself have in amending its own text?
21. Since it initiated the procedure under Rule 9, the Monitoring
Committee is required to propose one of the three recommendations
referred to in Rule 9.4.
22. Before amendments are tabled, Assembly members clearly ought
to be informed of the grounds on which they may be ruled out of
order. The Rules of Procedure need to be clarified.
Note
3.2 Interpretation
of the final vote
23. During the debate at the October
2008 part-session on the draft resolution on the Russian delegation’s credentials,
which contained a proposal to ratify them, the President of the
Assembly sought to clarify the meaning of the vote, stating that
“voting in favour means confirming the ratification of the credentials
of the Russian delegation; voting against means rejecting the confirmation
of ratification, which is tantamount to annulment of credentials”
(see verbatim report of the sitting, AS (2008) CR 33, page 32).
The same interpretation had prevailed during the aforementioned
debate at the April 2000 part-session on the challenging of the
Russian delegation’s credentials (the amended draft resolution proposed
to ratify the Russian members’ credentials but suspend their voting
rights), with the President stating that “to vote
‘Yes’ means to vote again in favour
of Amendment No. 1, which says: ‘The Assembly decides to ratify
the credentials of the delegation of the Russian Federation, but
to deprive the members of the delegation of their voting rights
in the Assembly (…)’. If you vote ‘No’, you are voting against that.
Voting ‘No’ in effect is non-ratification” (see AS (2000) CR 15,
page 44).
Note
24. The two aforementioned precedents, concerning the right of
amendment and the interpretation of the final vote, can only function
in combination. The Rules of Procedure themselves, however, say
nothing about these issues, which are crucial given the implications
of the procedure under discussion. Since the Rules of Procedure
do not contain an express provision stating that any rejection of
the committee’s conclusions by the Assembly should be regarded as
adoption of the contrary decision, it cannot be assumed in the present instance
that, if the proposal in the draft resolution – confirmation of
ratification and suspension of voting rights – were rejected, the
contrary decision (annulment of credentials) would be deemed to
have been adopted, since this is a report on the monitoring of obligations
and commitments, of which the proposed penalty is the conclusion
rather than the subject (unlike a report strictly confined to the
challenging or reconsideration of a delegation’s credentials under
Rules 8 and 9).
25. The aforementioned precedents cannot be applied to the discussion
of a report submitted by the Monitoring Committee, given the specificity
of its mandate and the procedure followed as set up in
Resolution 1115 (1997). The Rules should therefore be applied with room for
flexibility.
26. In respect of a delegation’s credentials, establishing whether
tabled amendments are in or out of order and interpreting the meaning
of the vote are important issues, which the committee may clarify
in the report being prepared on amendments to various provisions
of the Rules of Procedure.
4 Concluding remarks
27. The Committee on Rules of Procedure,
Immunities and Institutional Affairs considers that the draft resolution
in the report submitted by the Monitoring Committee (
Doc. 11786) satisfies the requirements of Rule 9 and complies with
the Assembly’s Rules of Procedure and the Statute of the Council
of Europe.
28. On 26 January 2009, the Monitoring Committee has approved
an addendum to its report of December 2008 setting out the progress
on the critical question of the release of political prisoners in
Armenia. The Assembly will have to make a judgment as to whether
this will justify not suspending the voting rights of the Armenian
delegation after all.
29. In addition, in so far as the Monitoring Committee’s initiative
to seize the Assembly under Rule 9.1.b sets a
new precedent – three months after the first motion under Rule 9.1.a was tabled in the Assembly –,
and in the light of the debates within both the Bureau of the Assembly
and the Assembly itself in 2008, the Committee on Rules of Procedure
considers that it is within its remit to discuss the issues raised
in relation to the interpretation of the Rules of Procedure and
the clarification of certain provisions.
30. At the end of the October 2008 part-session, the Bureau of
the Assembly asked the committee to prepare a report proposing amendments
to the Assembly’s Rules of Procedure, in particular as regards the procedure
under Rule 8 for the challenging of still unratified credentials
on substantive grounds and the procedure under Rule 9 for the reconsideration
of previously ratified credentials on substantive grounds. This is
therefore the context in which the committee will continue its discussions
and make any relevant proposals for revising the Rules of Procedure.
______________
Reporting committee:
Committee on the Honouring of Obligations and Commitments by Member
States of the Council of Europe (Monitoring Committee).
Committee seized for opinion:
Committee on Rules of Procedure, Immunities and Institutional Affairs.
Reference to committee:
Reference No. 3496 of 28 November 2008.
Opinion unanimously
approved on 26 January 2009.
Secretariat of the committee: Mr Heinrich, Mrs Clamer.
