B Explanatory
memorandum by Ms Vučković, rapporteur
1 Introduction
1. On 22 April 2013, the as yet unratified credentials
of Mr Andriy Shevchenko (Ukraine, EPP/CD) were challenged by Mr
Pieter Omtzigt (Netherlands, EPP/CD) on procedural grounds, in accordance
with Rule 7 of the Rules of Procedure of the Parliamentary Assembly,
on the ground that he was replacing, in the Ukrainian delegation,
Mr Serhiy Vlasenko, who had been deprived of his national parliamentary
mandate on a judicial decision which may have been politically motivated.
In pursuance of Rule 7.2, the Assembly referred, without debate,
the credentials to the Committee on Rules of Procedure, Immunities
and Institutional Affairs.
2. The committee must therefore consider whether Mr Andriy Shevchenko’s
appointment procedure:
- complied
with the principles set out in Article 25 of the Statute of the
Council of Europe in conjunction with Rule 6 of the Rules of Procedure
of the Assembly; and
- was in line with the principles set out in Rules 7.1.a and 7.1.b of
the Rules of Procedure of the Assembly.Note
3. Under the terms of Rule 7.2, “[i]f the Committee concludes
that the credentials should be ratified, it may submit an opinion
to the President of the Assembly, who shall read it out in the plenary
sitting of the Assembly or the Standing Committee, without debate.
If the Committee concludes that the credentials should not be ratified
or that they should be ratified but that some rights of participation
or representation should be denied or suspended, the Committee’s
report shall be placed on the agenda for debate within the prescribed deadlines”.
2 The applicable
provisions and their interpretation
4. Under the terms of Article 25 of the Statute of the
Council of Europe:
“a. The Consultative
(Parliamentary) Assembly shall consist of Representatives of each
Member, elected by its Parliament from among the members thereof,
or appointed from among the members of that Parliament, in such
manner as it shall decide, subject, however, to the right of each
Member Government to make any additional appointments necessary
when the Parliament is not in session and has not laid down the
procedure to be followed in that case. Each Representative must
be a national of the Member whom he represents, but shall not at
the same time be a member of the Committee of Ministers.
The term of office of Representatives thus appointed will
date from the opening of the Ordinary Session following their appointment;
it will expire at the opening of the next Ordinary Session or of
a later Ordinary Session, except that, in the event of elections
to their Parliaments having taken place, Members shall be entitled
to make new appointments.
If a Member fills vacancies due to death or resignation,
or proceeds to make new appointments as a result of elections to
its Parliament, the term of office of the new Representatives shall
date from the first Sitting of the Assembly following their appointment.
b. No Representative shall
be deprived of his position as such during a Session of the Assembly without
the agreement of the Assembly.
c. Each Representative may have a Substitute who may,
in the absence of the Representative, sit, speak and vote in his
place. The provisions of paragraph a above apply to the appointment
of Substitutes.”
5. Under the terms of Rule 10 of the Rules of Procedure of the
Assembly on the duration of the term of office of representatives
and substitutes:
“10.1. The term
of office of representatives and substitutes shall begin when their
credentials are ratified.
10.2. Subject to the provisions of paragraphs 3 and 4,
the term of office of representatives and substitutes shall expire
at the opening of the next ordinary session.
10.3. Following parliamentary elections, the national
parliament concerned or other competent authority shall make appointments
to the Assembly within six months of the election. …
10.4. If a seat becomes vacant through death or resignation,
it may be provisionally filled in the Assembly by a substitute,
and in a committee by another representative or substitute, of the
same nationality, pending a new appointment by the national delegation
concerned.”
6. A legal opinion prepared in 1997 for the Committee on Rules
of Procedure by the Directorate of Legal Affairs of the Council
of Europe on the “terms of office of Assembly members who have lost
their seat in their national parliament”
Note presents
the following conclusions regarding the interpretation of these
provisions:
“a. the loss of the
seat in the national parliament leads to a quasi-automatic loss
of the seat in the Assembly only
if it is due to death, resignation or new legislative elections;
b. in all other cases,
when the member was deprived of his seat and did not lose it due
to death, resignation or elections, the agreement of the Assembly
is required.
c. there is a principle that the composition of the Assembly
should be based on membership in a national parliament (Art. 25.a)
but this principle applies strictly only to the appointment of members
for the full session. In case of a later replacement, the Assembly
may take the decision to maintain the member on the basis of unspecified
criteria.
2. The Rules of Procedure of the Assembly, in particular
Rules 6 and 7, are based on Art. 25 of the Statute. …
However, no express provision determines according to
which criteria the Assembly should give or withhold its agreement
under Art. 25.b of the Statute. There remains therefore a large
room for the political discretion of the Assembly.”
3 Revocation of the
parliamentary mandate of the Ukrainian opposition MP Mr Serhiy Vlasenko
7. Over the past few years, Mr Serhiy Vlasenko has played
a frontline role in defending the former Ukrainian Prime Minister
Ioulia Timochenko in her different judicial proceedings. He was
a member of the Verkhovna Rada in the previous legislature. Following
the parliamentary elections held in Ukraine on 22 October 2012,
Mr Serhiy Vlasenko was re-elected on the list of the “Batkivtshchyna”
party, which currently holds 99 seats out of a total 450 (elected
either by proportional representation list ballot or by majority constituency-based
voting).
8. Mr Serhiy Vlasenko has been a member of the Parliamentary
Assembly since 21 January 2013. His status in the delegation is
that of substitute registered as a representative of the “Batkivtshchyna” political faction,
as stipulated in the letter of 14 January 2013 sent to the Assembly
on 15 January 2013 by the Speaker of the Verkhovna Rada of Ukraine,
Mr Volodymyr Rybak, communicating the membership of the Ukrainian delegation
to the Parliamentary Assembly for the duration of the 2013 session.
9. On 28 February 2013, the Speaker of the Verkhovna Rada of
Ukraine, drawing on the opinion of the Committee on Rules of Procedure,
Parliamentary Ethics and the Functioning of Parliament challenging
the concurrent holding by Mr Serhiy Vlasenko of his parliamentary
mandate and his activity as a lawyer, lodged the relevant court
application.
10. On 6 March 2013, the High Administrative Court revoked Mr
Serhiy Vlasenko’s parliamentary mandate on the grounds that he had
omitted to declare an incompatibility between the exercise of a
legal practice and his parliamentary mandate to the Commission on
Bar Qualification and Discipline, in accordance with the transitional
provisions of the Law on the Legal Profession and Bar Activity within
90 days from 15 August 2012, the date of its entry into force. This
final domestic decision is not subject to an appeal before the ordinary
courts or the Court of Cassation.
11. On 18 March 2013, the Central Electoral Commission appointed
Mr Roman Stadniychuk, who was number 65 on the “Batkivtshchyna”
party list, as a member of parliament. Mr Stadniychuk was sworn
in the next day.
12. On 5 April 2013, the President of the “Batkivtshchyna” faction,
Mr Arceniy Yatsenyuk, submitted an application to the Chairperson
of the Verkhovna Rada Foreign Affairs Committee, M. Kaluyzhniy,
to replace Mr Serhiy Vlasenko with another member of the “Batkivtshchyna”
faction, Mr Andriy Shevchenko. Having examined this application
at its meeting on 16 April 2013, the Committee approved this change
to the delegation.
13. On 17 April 2013, the Speaker of the Verkhovna Rada communicated
this decision to the President of the Assembly.
4 Reactions within
the European institutions following the revocation of Mr Serhiy
Vlasenko’s mandate
4.1 Council of Europe
14. On 7 March 2013, the corapporteurs for Ukraine of
the Assembly’s Monitoring Committee, Mailis Reps (Estonia, ALDE)
and Marietta de Pourbaix-Lundin (Sweden, EPP/CD), and the rapporteur
of the Committee on Legal Affairs and Human Rights on “Keeping political
and criminal responsibility separate”, Pieter Omtzigt, jointly expressed
their deep concern and disappointment at the revocation of the parliamentary
mandate of Ukrainian opposition MP Serhiy Vlasenko.
NoteNote
15. On the same day, the Secretary General of the Council of Europe,
Thorbjørn Jagland, asked the Ukrainian authorities to explain on
what legal basis Mr Serhiy Vlasenko, an opposition member of parliament, had
been stripped of his parliamentary mandate.
Note
16. Finally, on 27 March 2013, the Committee of Ministers, at
its 1166th meeting, examined the explanations communicated by the
Minister of Justice, Mr Oleksandr Lavrynovych, concerning the revocation
procedure.
Note
4.2 European Union
17. On 6 March 2013, the spokespersons of Catherine Ashton,
High Representative of the European Union for Foreign Affairs and
Security Policy and Vice-President of the European Commission, and
Štefan Füle, European Commissioner for Enlargement and European
Neighbourhood Policy, made a declaration in which they said that
they were deeply concerned by recent legal proceedings leading to
possible annulment of the parliamentary mandates of two members
of parliament on contested legal grounds. They thus gave particular attention
to the situation in relation to the case of Mr Serhiy Vlasenko,
and to the possible revocation of his parliamentary mandate, and
called on the Ukrainian authorities to address this situation so
as to avoid creating any perception of the misuse of the judiciary
for political purposes. According to them, legal proceedings which came
months after the confirmation of the final election results raised
political and legal concerns.
5 Assessment
18. The verification of credentials carried out by the
Committee on Rules of Procedure on the occasion of the examination
conducted in pursuance of Rule 7 of the Rules of Procedure does
not enable it to rule on any disagreements that exist within national
parliaments between political parties, or those within a single
political force. It seeks to establish whether the formal requirements
set out in Rule 7.1, in this case in sub-paragraphs a and b,
have been complied with. In this context, the Committee on Rules
of Procedure should also examine whether the General Agreement on
Privileges and Immunities has been complied with in so far as the
expulsion from a national parliament was not related to an act committed
in the capacity of a member of the Assembly, and, on the other hand,
whether the new appointment jeopardises the balance of the fair
representation of political forces within the delegation concerned.
5.1 Consequences of
the loss of mandate of member of the national parliament in the
context of compliance with the applicable provisions of the Statute,
particularly Article 25
19. In pursuance of Article 25 of the Statute, whatever
arrangements are made by a member State for the appointment and
renewal of its delegation, the mandate of a representative begins
with the opening of the ordinary session following his or her appointment
and expires only on the opening of the following ordinary session.
However, Article 25 of the Statute provides for the possibility
of the filling of seats which have become vacant following a representative’s
resignation or following a death. Furthermore, if parliamentary
elections take place during an ordinary session, the national parliaments
have to make the appointments of the members of their delegations
to the Assembly within the six months following those elections.
Note In all these cases, the Assembly’s
consent is essential for the mandate of a member of the Assembly
to be revoked in the course of the parliamentary year.
20. The position of the Parliamentary Assembly, prior to 1997,
was to consider that, other than in the event of a death, resignation
or fresh appointments following elections, the mandate of a member
of the Assembly whose credentials had been duly ratified remained
valid for the rest of the parliamentary year, up to the opening of
the following ordinary session.
Note However,
in 1997, the Assembly for the first time had to deal with a case
in which a member of the Assembly was stripped of his national mandate
ipso jure following a court decision,
Note giving
it the opportunity to specify its position in this respect. The
view was taken that, in the event that a member has been stripped
of his or her mandate by a court decision, and to the extent that
all domestic remedies have been exhausted, there is a presumption
that the decision applies
mutatis mutandis to
the Parliamentary Assembly.
Note This interpretation would also
chime with the spirit of Article 25.
a,
which stipulates that “[t]he Consultative [Parliamentary] Assembly
shall consist of Representatives of each Member, elected by its
Parliament from among the members thereof”.
21. Nevertheless, it was decided that the final decision on revocation
of a mandate was for the Assembly to take in pursuance of Article
25.b of the Statute and on
the basis of a report by the Committee on Rules of Procedure.
5.2 Link between the
loss of mandate as a member of the national parliament and compliance with
the General Agreement on Privileges and Immunities of the Council
of Europe
22. The immunities of Assembly representatives and substitutes
are defined by the following texts:
- Article 40.a of
the Statute of the Council of Europe:
“… representatives of members … shall enjoy in the territories
of its members such privileges and immunities as are reasonably
necessary for the fulfilment of their functions. These immunities shall
include immunity for all representatives to the Consultative (Parliamentary)
Assembly from arrest and all legal proceedings in the territories
of all members, in respect of words spoken and votes cast in the
debates of the Assembly or its committees or commissions”;
- the General Agreement on Privileges and Immunities of
the Council of Europe, of 2 September 1949, and the Protocol thereto
of 6 November 1952, which supplement Article 40.a of
the Statute and introduce two kinds of immunity:
- Freedom from liability of members
of parliament:
Article 14: “Representatives
to the Consultative (Parliamentary) Assembly and their substitutes
shall be immune from all official interrogation and from arrest
and all legal proceedings in respect of words spoken or votes cast
by them in the exercise of their functions.”
- Inviolability of members of parliament:
Article 15: “During the sessions
of the Consultative (Parliamentary) Assembly, the Representatives
to the Assembly and their substitutes, whether they be members of parliament
or not, shall enjoy:
a. on their national territory, the immunities accorded
in those countries to members of parliament;
b. on the territory of all other member States, exemption
from arrest and prosecution.”
23. The members of the Parliamentary Assembly benefit from two
kinds of protection, namely freedom from liability, guaranteed by
Article 14, which exempts them from any judicial proceedings – not
only criminal, but also civil and administrative – on the grounds
of an opinion expressed or a vote cast in the exercise of their parliamentary
functions, and inviolability, exemption from arrest, detention or
prosecution.
24. Article 5 of the Protocol to the General Agreement states
that “[p]rivileges, immunities and facilities are accorded to the
representatives of members not for the personal benefit of the individuals
concerned, but in order to safeguard the independent exercise of
their functions in connection with the Council of Europe …”. Furthermore,
as stipulated by Rule 66 of the Rules of Procedure, these immunities
are granted in order to preserve the integrity of the Assembly and
to safeguard the independence of its members in exercising their European
office.
25. It should be emphasised in this respect that Mr Serhiy Vlasenko
is a political ally and legal adviser of the imprisoned former Prime
Minister Yulia Tymoshenko. Inter alia he represents
her before the European Court of Human Rights. However, it is difficult
to argue that the revocation of Mr Serhiy Vlasenko’s mandate was linked
to an act committed by him in his capacity as a member of the Assembly.
Consequently, the rapporteur cannot conclude that the revocation
of his mandate was linked to an act committed by Mr Serhiy Vlasenko
in his capacity as a member of the Assembly.
5.3 Compliance with
the requirement for fair representation of political parties or
groups within the national delegation
26. The concept of fair representation of political parties
and groups has progressively been fleshed out through several Assembly
resolutions.
Note On the occasion of the debates which
gave rise to these resolutions, it was pointed out that the Assembly
should avoid getting involved in the details of the proportions
in the political composition of national parliaments’ delegations.
The Assembly in principle merely has to verify that the major political
tendencies present in a given parliament are represented, and that
the delegation comprises, in particular, representatives of parties
which are in the opposition.
Note For example, during
the Assembly debate of 29 January 1986 on the subject of the amendment
of Articles 14 and 25 of the Statute of the Council of Europe, the
rapporteur said that “this does not mean that the membership of
delegations should be determined with the exactitude of a medical
prescription but that we should be given the assurance that delegations
to the Assembly are truly representative of their parliaments and
of the political spectrum in their respective home countries. ...
This is a very important provision that will help to enable us truly
to speak on behalf of our own countries.”
27. The Committee on Rules of Procedure notes that Mr Andriy Shevchenko,
whose credentials, not yet ratified, have been challenged, belongs
to the same political group, “Batkivtshchyna”, that Mr Serhiy Vlasenko belonged
to. Furthermore, he has been appointed as Mr Serhiy Vlasenko’s substitute
by the chair of the “Batkivtshchyna” faction, in accordance with
the procedures, and his appointment does not call into question the
fair representation of political groups and parties as compared
to the current membership of the Verkhovna Rada. Quite the contrary,
Mr Serhiy Shevchenko’s appointment offers the Ukrainian parliamentary
opposition the opportunity to retain a substitute’s seat in the
Assembly which will be able to be effectively occupied.
6 Conclusions
28. At its meeting on 24 April 2013, the Committee on
Rules of Procedure heard the observations made by Mr Ivan Popescu,
Chairperson of the Ukrainian delegation, as well as Mr Serhiy Sobolev,
member of the Ukrainian delegation and member of the Committee on
Rules of Procedure.
29. Having examined the objections raised, the Committee on Rules
of Procedure, Immunities and Institutional Affairs considers that
the procedural grounds for challenges set out in Rule 7.1 of the
Rules of Procedure of the Assembly do not apply in the present case,
and that the credentials of Mr Andriy Shevchenko are in accordance
with Rule 6 of the Rules of Procedure of the Assembly.
30. The Committee on Rules of Procedure observes that the case
of Mr Serhiy Vlasenko is the subject of the full attention of the
corapporteurs of the Monitoring Committee in the context of the
monitoring of Ukraine’s obligations and commitments, and that there
is therefore no need to engage in political considerations which are
not strictly within its terms of reference. Where legal assessment
of the case is concerned, the committee notes that Mr Vlasenko lodged
an application with the European Court of Human Rights on 12 March
2013.
31. The committee therefore proposes that the Assembly deprive
Mr Serhiy Vlasenko of his mandate and ratify the credentials of
Mr Andriy Shevchenko.
32. In pursuance of Rule 7.2, “[i]f the Committee concludes that
the credentials should be ratified, it may submit an opinion to
the President of the Assembly, who shall read it out in the plenary
sitting of the Assembly or the Standing Committee, without debate”.
However, in application of Article 25 of the Statute of the Council of
Europe, no representative may be deprived of his or her mandate
during a session of the Assembly without the latter’s consent. Consequently,
the Assembly is invited to take a formal decision on the deprivation
of Mr Serhiy Vlasenko’s mandate. The committee’s report and the
draft resolution will therefore be included on the agenda of the
Assembly for debate.
