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.
