C Explanatory memorandum by Mr Franken,
rapporteur for opinion
1 Introduction
1. At the opening of the part-session on 26 January
2015, Mr Robert Walter, supported by the required number of members
of the Parliamentary Assembly, challenged the still unratified credentials
of the parliamentary delegation of the Russian Federation on substantive
grounds, pursuant to Rule 8 of the Rules of Procedure. Mr Walter
referred to a serious violation of the fundamental principles of
the Council of Europe mentioned in Article 3 and the Preamble of
the Statute the Council of Europe, as well as to Russia’s failure
to honour its obligations and commitments, given that it was occupying
the territory of another Council of Europe member State with the
support of members of its parliament. The Parliamentary Assembly
decided to refer the challenge to the Committee on the Honouring
of Obligations and Commitments by Member States of the Council of
Europe for report and, in keeping with Rule 8.3 of the Rules of
Procedure, to the Committee on Rules of Procedure, Immunities and
Institutional Affairs for opinion.
2. The Committee on Rules of Procedure will therefore consider,
in this opinion, whether the proposal contained in the Monitoring
Committee’s report complies with the Rules of Procedure, particularly
Rules 8 and 10, and the Statute of the Council of Europe.
1.1 Considerations of the Committee on Rules of Procedure
following Resolution
1990 (2014) sanctioning the Russian parliamentary delegation
3. At its April 2014 part-session, the Assembly adopted
Resolution 1990 (2014) on the reconsideration on substantive grounds of the
previously ratified credentials of the Russian delegation in which
“in order to mark its condemnation and disapproval of the Russian
Federation's actions with regard to Ukraine, the Assembly resolved
to suspend the following rights of the delegation of the Russian
Federation until the end of the 2014 session: voting rights; right
to be represented in the Bureau of the Assembly, the Presidential
Committee and the Standing Committee; right to participate in election
observation missions” (paragraph 15).
4. At its meeting on 11 April 2014, the Bureau of the Assembly
considered that the Assembly decision needed further clarification
and it invited the Committee on the Rules of Procedure, Immunities
and Institutional Affairs to draw up a list of rights of participation
or representation of members that may be withdrawn or suspended
in the context of a challenge or reconsideration of credentials
under Rules 7, 8 and 9 of the Rules of Procedure of the Assembly.
5. Consequently, at its meeting on 30 September 2014, the Committee
on Rules of Procedure approved a Bureau opinion, after detailed
examination of the matter, including:
- a general but non-exhaustive list of the rights of participation
or representation of members of the delegation concerned in the
activities of the Assembly and its bodies that may be withdrawn
or suspended in the context of a challenge of credentials;
- general principles governing the Assembly’s decision with
a view to meeting the requirement of legal certainty that must apply
to any decision to withdraw or suspend rights. Consequently, the
Assembly must ensure that:
- the
decision is legally consistent and rational from the regulatory
standpoint;
- the decision is comprehensible and clear;
- it does not adopt sanctions which contradict each other;
- it does not adopt sanctions that could be open to interpretation
with regard to their practical consequences;
- the “sanction” is proportionate to the violation in question.
6. The present challenge of credentials therefore gives the Committee
on Rules of Procedure its first opportunity to check whether the
proposal made by the Monitoring Committee is compatible with the
principles it established at the Bureau’s request.
1.2 Precedents and examples of sanctions taken by
the Parliamentary Assembly
7. To date, the Assembly has made use of these regulatory
provisions established for “sanctioning” parliamentary delegations
on very few occasions:
- in April
2000, on the occasion of the reconsideration of the ratified credentials
of the Russian delegation on substantive grounds in connection with
the conflict in Chechnya, the Assembly decided to sanction the Russian
delegation by depriving its members of their voting rights in the
Assembly and its committees (the delegation recovered all its participation
and representation rights in January 2001, with the adoption of Resolution 1241 (2001));
- in January 2004, on the occasion of the challenge of the
credentials of the delegations of Ireland and Malta, the Assembly
suspended the voting rights of their members in the Assembly and
its committees until the composition of these delegations had been
brought into conformity with the requirement under the Rules with
regard to the representation of both sexes (Resolution 1360 (2004); the delegations concerned recovered their voting rights
in April 2004);
- lastly, in April 2014, the previously ratified credentials
of the Russian delegation were reconsidered on substantive grounds
in relation to the violation of the territorial integrity and sovereignty
of Ukraine by the Russian armed forces; the Assembly decided to
suspend the voting rights of its members, as well as some rights
of participation or representation until the end of the 2014 session
(Resolution 1990 (2014)).
8. It will also be noted that on two occasions in the past, the
Assembly adopted “deferred sanctions”, deciding, in January 2011
in the case of a challenge on procedural grounds of the still unratified
credentials of the parliamentary delegations of Montenegro, San
Marino and Serbia, then in June 2013 in an identical case concerning
the delegation of Iceland, to ratify these delegations’ credentials
but to suspend the voting rights of their members in the Assembly
and its committees from the beginning of the following session until
their membership complied with the criteria set by the Rules of
Procedure with regard to gender representation.
9. Consequently, with regard to its response to challenges of
credentials on substantive (and non- formal) grounds, the Assembly
has only decided to sanction a delegation on two occasions (suspension
of the voting rights of members of the Russian delegation between
April 2000 and January 2001; suspension of the voting rights, as
well as some rights of participation or representation, of members
of the Russian delegation between April 2014 and January 2015).
NoteNoteNote
2 Compliance of the motion to challenge the credentials
of the Russian parliamentary delegation with the Rules of Procedure
10. The committee would point out that a motion to challenge
the credentials of a delegation must comply with certain formal
conditions in order to be admissible.
11. Rule 8.1 provides that “[t]he unratified
credentials of a national delegation as a whole may be challenged on
the substantial grounds set out in paragraph 2 by: at least thirty
members of the Assembly present in the Chamber, belonging to at
least five national delegations”, and that “[t]he authors shall state the reasons for the challenge”.
12. Rule 8.2 provides that:
“The
substantive grounds on which credentials may be challenged are:
serious violation of the basic principles of the Council
of Europe mentioned in Article 3Note and the Preamble to,
the Statute; or
b. persistent failure to honour obligations and commitments
and lack of co-operation in the Assembly’s monitoring procedure.”
13. The Committee on Rules of Procedure had been particularly
concerned that any procedure for reconsideration of credentials
should be based on a duly substantiated request “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”
Note. In the case of the present challenge,
the committee can but note that the conditions fixed by the Rules
of Procedure have been fully complied with.
3 Consideration of the Monitoring Committee’s proposal
14. Rule 10 – “Decision of the Assembly on a challenge
or reconsideration of credentials” stipulates that:
“10.1. Reports submitted to the
Assembly or the Standing Committee under Rules 7.2., 8.3., 9.2.
and 9.3. shall contain a draft resolution proposing in its operative
part one of the following three options:
10.1.a. ratification of the credentials, or confirmation
of ratification of the credentials;
10.1.b. non-ratification of the credentials, or annulment
of ratification of the credentials;
10.1.c. ratification of the credentials, or confirmation
of 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.”
15. The Monitoring Committee concludes, in paragraphs 14, 15 and
16 of the draft resolution, that:
“14.
In order to foster the dialogue with the Russian Federation, the
Assembly for now resolves to ratify the credentials of the Russian
delegation. But, at the same time, as a clear expression of its condemnation
of the continuing grave violations of international law in respect
of Ukraine by the Russian Federation, including the Statute of the
Council of Europe and Russia’s accession commitments to this Organisation,
the Assembly resolves to suspend the following rights of the Russian
delegation for the duration of the 2015 session of the Assembly:
14.1. the right to be appointed rapporteur;
14.2. the right to be member of an ad hoc committee on
observation of elections;
14.3. the right to represent the Assembly in Council of
Europe bodies as well as external institutions and organisations,
both instructionally and on a an occasional basis.
15. In addition to the sanctions outlined in paragraphs
14.1 to 14.3, the Assembly resolves to suspend the voting rights
and right to be represented in the Bureau of the Assembly, the Presidential
Committee and the Standing Committee of the Russian delegation to
the Assembly at the opening of its June 2015 part-session, if Russia
has not made marked and measurable progress towards implementing
the demands of the Assembly formulated in this resolution in paragraphs
4.1 to 4.4, paragraphs 5.1 to 5.3; paragraphs 7.1 to 7.9, paragraph
11 and paragraphs 12.1 to 12.4; and has not given its full co-operation to
the working group mentioned in paragraph 17 of this resolution.
16. The Assembly resolves to annul the credentials of
the Russian delegation at its June 2015 part-session if no progress
is made with regard to the implementation of the Minsk protocols
and memorandum as well as the demands and recommendations of the
Assembly as expressed in this resolution, in particular with regard
to the immediate withdrawal of Russian military troops from eastern Ukraine.”
16. The Committee on Rules of Procedure notes that the Monitoring
Committee’s report shows a worsening of the situation in Eastern
Ukraine, Russia’s “lack of willingness to honour its accession commitments
with regard to its relations with neighbouring countries”, as well
as “repeated and credible reports of human rights violations, including
possible war crimes“. The committee may therefore verify whether
the principle of proportionality of sanctions to the violations
found was effectively being complied with.
4 Conclusions and proposed amendment
17. The Committee on Rules of Procedure, Immunities and
Institutional Affairs considers that the draft resolution contained
in the report submitted by the Monitoring Committee (
Doc. 13685) complies with the Assembly's Rules of Procedure, in
particular its Rule 10, and the Statute of the Council of Europe.
18. At its meeting on 26 January 2015, the Assembly’s Bureau sought
the opinion of Committee on Rules of Procedure, Immunities and Institutional
Affairs on the status of Ms Nadiia Savchenko with regard to Council of
Europe immunity. The committee has therefore considered how Ms Savchenko
might benefit from the protection afforded under the General Agreement
on Privileges and Immunities of the Council of Europe and its Protocol
(see opinion to the Bureau, document AS/Pro (2015) 04 def), and
it therefore wishes its conclusions to be included in the draft
resolution.
19. After considering the status of Ms Savchenko from the standpoint
of the parliamentary immunity afforded by the General Agreement
on Privileges and Immunities of the Council of Europe and its Protocol,
it is for the Committee on Rules of Procedure to amend the present
draft resolution and to call on the Russian authorities to honour
their international law obligations and commitments under these
two conventions.
