B Explanatory
memorandum by Ms Beck, rapporteur
1 Introduction
1.1 Procedure to date
1. The motion for a resolution on “The rule of law in
Council of Europe member States: upholding the authority of the
Assembly’s recommendations”
Note was referred to the Committee on
Legal Affairs and Human Rights for report on 21 June 2010.
Note At
its meeting on 16 September 2010, the committee appointed me as rapporteur.
On 8 March 2011, it considered an introductory memorandum
Note and authorised me to undertake fact-finding
visits to France, Germany and the Russian Federation.
Note At
its meetings in Strasbourg on 14 April 2011 and in Oslo on 6 and
7 June 2011, at the request of the Russian delegation, the committee
held an exchange of views on the interpretation of the rapporteur’s
mandate and the intended scope of the report and decided to modify
the title of the report to “Threats to the Rule of Law in Council
of Europe member States: asserting the Parliamentary Assembly’s
authority”.
2. On 7 June 2011 in Oslo I contributed to the parliamentary
seminar on “The reinforcement of the Rule of Law in Europe”, organised
by the Norwegian parliamentary delegation to the Council of Europe
in co-operation with the Norwegian Helsinki Committee and the Committee
on Legal Affairs and Human Rights of the Parliamentary Assembly,
alongside Mr Bjorn Engesland, Secretary General of the Norwegian
Helsinki Committee, Mr William Browder, CEO, Hermitage Capital,
United Kingdom, and Mr Tom Mayne, Global Witness, United Kingdom.
3. On 7 September 2011, in Paris, I organised a round table on
the case of Sergei Magnitsky, with the participation of Ms Elena
A. Panfilova, General Director, Center for Anti-corruption Research
and Initiative, Transparency International, Moscow and Ms Yevgenia
M. Albats, Editor-in-Chief,
The New Times,
Moscow; the Russian delegation had been invited to nominate an expert
to present the authorities’ point of view but chose not to avail
itself of this possibility. The information report I presented to
the committee on this occasion
Note was declassified on 3 October 2011.
4. On 8 September 2011, I carried out my fact-finding visit to
Paris, where I met with members of the French delegation to the
Parliamentary Assembly, senior officials at the Ministry of Justice,
the General Prosecutor at the Paris Court of Appeal, and the bureaus
of the Union Syndicale des Magistrats (USM) and of the Syndicat de
la magistrature (SM).
5. From 22 to 24 February 2012, I carried out my fact-finding
visit to Kyiv, where I met with members of the Ukrainian delegation
to the Parliamentary Assembly, the Minister of Justice, the Prosecutor
General and a number of representatives of non-governmental organisations
(NGOs) and journalists. On 12 March 2012, I informed the committee
of the results of this visit.
6. On 2 October 2012, the committee held an exchange of views
with Ms Tamara Morshchakova, former judge at the Russian Federation’s
Constitutional Court.
7. On 11 December 2012, the committee, in the context of this
report and that of Mr György Frunda
Note on “Strengthening
the protection and role of human rights defenders in Council of
Europe States”, decided to seize the European Commission for Democracy
through Law (Venice Commission) for an opinion on two recent Russian
laws: the law on Non-Commercial Organisations, adopted on 13 July
2012, requiring collaborators of NGOs receiving funding from abroad
to register as “foreign agents” and the law on Treason and Espionage
of 23 October 2012, widening the scope of the criminal provisions
on “treason”.
8. On 9 March 2013, the committee, in view of a statement by
the rapporteur, invited the Russian delegation to co-operate in
the organisation of a fact-finding visit to Russia.
9. On 3 March 2014, the committee agreed to invite Mr Yuriy Lutsenko,
former Minister of the Interior of Ukraine, for an exchange of views.
The exchange of views scheduled for the June 2014 part-session of
the Assembly could not take place due to the difficult situation
in eastern Ukraine.
10. The expiry date of my mandate was extended three times (first
until June 2013, then June 2014 and finally until the end of 2014).
The purpose of the extensions was to give the Russian delegation
sufficient time to co-operate in the organisation of the information
visit authorised by the committee already back in March 2011.
11. On 25 June 2014, I informed the committee that I had come
to the conclusion that despite several attempts from my side and
appeals from the committee and three of its successive chairpersons,
the Russian delegation would definitely not co-operate in the organisation
of the information visit and that I would therefore present a report
on the basis of the information collected in other ways (in particular
the hearings with Russian and other experts before the committee).
12. In October and November 2014, I received detailed replies
to my written questions on the implementation of
Resolution 1685 (2009) “Allegations of politically-motivated abuses of the
criminal justice system in Council of Europe member States” by Germany
from Mr Christian Lange, Secretary of State at the Federal Ministry
of Justice, and submissions from Mr Christoph Frank, President of
the Federation of German judges and prosecutors (
Deutscher Richterbund) and from
Mr Martin Wenning-Morgenthaler, Spokesperson of the Federal Bureau
of the
Neue Richtervereinigung.
1.2 Scope of the mandate
13. As it is stated in the motion underlying this report,
the Parliamentary Assembly regularly addresses recommendations to
the Committee of Ministers and to member States regarding different
aspects of the rule of law.
14. The Assembly’s recent texts in this area focus in particular
on the following issues:
- the
functioning of the judiciary (in particular independence, fairness
of criminal trials and the fight against corruption);
- particular challenges stemming from such issues as the
fight against terrorism, the protection of State secrets and different
aspects of co-operation with the European Court of Human Rights.
15. At the level of the Council of Europe, the Assembly has –
as a key statutory body – an important role to play in ensuring
compliance with European standards, not least in view of the dual
mandate of its members at the national and European levels. As indicated
in the motion, the Assembly should therefore place greater emphasis
on the follow-up given to the texts it has adopted, assessing their
impact and ensuring their effective implementation.
16. Consequently, it is my understanding of this rapporteur mandate
that it is my task to assess the impact of the Assembly’s texts
in this field and to promote their effective implementation.
17. Before taking the initiative to launch the motion, I had asked
the research service of the German Bundestag to prepare a collection
of the most important resolutions and recommendations of the Parliamentary Assembly
on issues pertaining to rule of law issues between 2005 and 2010.
Note The
study consists of a compilation of a large number of Assembly texts
covering key aspects of the rule of law in many member States.
18. I cannot, for practical reasons, cover in the present report
all the Assembly’s texts in this wide field. I therefore propose
to undertake a selection according to the following criteria:
- I left aside those resolutions
which were adopted in the framework of the Assembly’s monitoring procedure,
as this procedure, through its system of recurrent, country-by-country
reports, has its own built-in follow-up mechanism.
- I also left aside specific issues that are already covered
by ongoing thematic rapporteur mandates, such as that by Christos
Pourgourides (and now by Klaas de Vries) on the implementation of
judgments of the European Court of Human Rights (work with respect
to which the Assembly remains seized).Note
19. I therefore looked, as a matter of priority, at the follow-up
given to those resolutions and recommendations which had been most
recently adopted by the Assembly and which related specifically
to the subject areas touched upon in the text of the motion, namely
the functioning of the judiciary (in particular independence, fairness
of criminal trials and fight against corruption).
20. At the time of the preparation of this report, the Assembly’s
most recent texts on this subject were (in reverse chronological
order):
- “Legal remedies for
human rights violations in the North Caucasus region” (rapporteur:
Dick Marty, Switzerland, ALDE);Note
- “Allegations of politically-motivated abuses of the criminal
justice system in Council of Europe member States” (rapporteur:
Sabine Leutheusser-Schnarrenberger, Germany, ALDE);Note
- “Investigation of crimes allegedly committed by high officials
during the Kuchma rule in Ukraine – the Gongadze case as an emblematic
example” (rapporteur: Sabine Leutheusser-Schnarrenberger, Germany,
ALDE);Note
- “Abuse of the criminal justice system in Belarus” (rapporteur:
Christos Pourgourides, Cyprus, EPP/CD);Note
- “Fair trial issues in criminal cases concerning espionage
or divulging State secrets” (rapporteur: Christos Pourgourides,
Cyprus, EPP/CD).Note
21. The countries concerned by these reports are (in alphabetic
order) Belarus, France, Germany, the Russian Federation and Ukraine.
It is obvious that the above list of rule of law-related reports
to be followed up is by no means exhaustive, and that serious problems
related to the rule of law exist in other member and observer States.
22. But in my view, assessing the actual implementation of these
texts, which provide examples of issues of variable nature and gravity
concerning States representing different legal systems and cultures,
will contribute to asserting the Assembly’s authority in all member,
observer and applicant States.
23. I shall cover the countries concerned on the basis of the
nature and gravity of the issues encountered in those four member
States and, last but not least, in Belarus, as a non-member State.
24. Specifically, in the Russian Federation, Ukraine, Germany,
France and Belarus, I have followed developments after the adoption
of the Assembly’s above-mentioned reports on key issues pertaining
to the independence of the judiciary, in particular:
- in the Russian Federation: issues
of the independence of the courts (including recent developments
in the cases of Mikhail Khodorkovsky and Sergei Magnitsky), as regards
the North Caucasus, progress achieved in the fight against impunity
by the new investigative and prosecutorial structures described
in Mr Marty’s report, and the current status of the “spy cases”
raised in Mr Pourgourides report;
- in Ukraine, the progress and outcome of the judicial investigation
of the emblematic Gongadze case;
- in Germany: progress in judicial self-administration at
the Federal and Länder levels;
- in France: the proposed abolition of the institution of
the investigating judge and status of the public prosecutor’s office
and of the defence;
- in Belarus, the development of the criminal justice system
since the Assembly’s last report in 2008.
25. Since the preparation of the introductory memorandum defining
the scope of my report, a lot of time has passed, and the Assembly
has adopted several other pertinent reports.
Note But in order not to overstretch
my mandate, which has already given rise to lengthy discussions
with the Russian delegation, I have decided to limit myself to following
up only those reports and issues flagged in the introductory memorandum,
as approved by the committee.
26. Also, over time, several of these issues have become the subject
of separate reports, which have either already been finished (such
as the Magnitsky affair dealt with by Andreas Gross
Note and certain cases of politically
motivated prosecutions in Ukraine dealt with in the report by Pieter
Omtzigt on “Keeping criminal and political responsibility separate”),
Note or which are still under preparation
(such as the report by Michael McNamara on the human rights situation
in the North Caucasus).
Note Finally, the situation
in Belarus has been the subject of an excellent report by Andres
Herkel,
Note for which I prepared an opinion
Note on behalf of this committee. In
this context, I raised key points concerning the abuse of the criminal
justice system in this country.
27. As far as these subjects are concerned, in order to avoid
overlaps and interference with other colleagues’ work, I will limit
myself to some short comments. This said, the present report provides
an excellent opportunity for the Assembly to take a step back from
its day-to-day work on topical issues and gain an overview of the follow-up
given, over a considerable length of time, to a number of key reports
covering different threats to the rule of law in Council of Europe
member States.
2 Russian
Federation
28. Regarding the Russian Federation, my fact-finding
activities have been hampered by the consistent refusal of the Russian
delegation to co-operate in organising the fact-finding visit authorised
by the committee in early 2011. Despite several discussions in the
committee, and between myself, the successive chairpersons of our
committee and different members of the Russian delegation, I was
unable to obtain the necessary co-operation. After the refusal of
the Azerbaijani delegation to co-operate with our former colleague
Christoph Strässer, this is the second time that a delegation has
failed to co-operate with a duly appointed rapporteur of this Assembly.
I leave it up to the committee and the Assembly to draw the necessary
consequences from this unco-operative behaviour.
29. Faced with the refusal of the authorities to co-operate with
me, I invited representatives of civil society for exchanges of
views with the committee and asked them to provide us with information
on topics falling under my mandate.
30. Concerning the Yukos affair, the committee, on 2 October 2012,
held an exchange of views with Ms Tamara Morshchakova, former judge
and Vice-President of the Russian Federation’s Constitutional Court and
member of the Presidential Council for the Development of Civil
Society and Human Rights. Ms Morshchakova presented the independent
legal experts’ report produced on behalf of the Presidential Council for
the Development of Civil Society and Human Rights published in December
2011. This report dealt essentially with the second prosecution
and conviction of Mikhail Khodorkovsky and other leading former Yukos
officials for the “theft” or embezzlement of most of the oil produced
by Yukos, in addition to the earlier conviction for evading the
payment of taxes due for the sale of the same oil. The report was
based on a thorough analysis by a panel of 10 legal experts representing
different specialisations (criminal law, business and company law,
constitutional law and human rights law) of the final judgment delivered
in this case, the record of the court’s hearings and the case materials.
The purpose was not to adjudicate the case again, but to develop
recommendations addressed to the competent authorities, which should
form a basis for a dialogue between the authorities and civil society.
The experts had focused on questions of criminal substantive and procedural
law, company law and human rights, including comparisons with standards
applied in the case law of other courts in Europe, by Jeffrey Kahn.
The experts had concluded that the accusations of embezzlement were
not founded, as such an offence could be only committed by a non-owner
and that the criminal court wrongly refused to refer to the case
law of the Russian commercial courts; according to more than 60 precedents
of the civil courts, the actions in question performed by the legitimate
directors could not be criminal acts. These precedents had been
applied to other, similar companies in Russia, but not to the management
of Yukos. In the two Yukos cases, the accused had been indicted
and convicted for two mutually exclusive criminal offences of privatisation.
The two judgments were contradictory. Following the first trial,
the company had to pay the amount of unpaid taxes and was liquidated.
In the second case, the defendants were convicted for the theft
of goods which belonged to them (and for the sale of which they
were found not to have paid enough tax). The experts also made several
recommendations to the Russian Government: to introduce lay members
in commercial courts, to reduce the use of pre-trial detention in
cases concerning commercial activities, to review the execution
of criminal sanctions and the conditions of release on parole and
to amend the presidential decree on presidential pardon and amnesty.
31. We all know that Mikhail Khodorkovsky and Platon Lebedev were
released shortly before the end of their terms, in December 2013
and January 2014 respectively. The third former Yukos executive
covered in the Assembly’s reports, Mr Pichugin, is still in prison.
I met Mr Khodorkovsky shortly after his arrival in Berlin. He highly
appreciated the Assembly’s work in favour of his release. But he
has been reluctant to speak up publicly, to avoid causing harm to
his associates still in prison.
32. It is also well-known that the European Court of Human Rights,
in July 2013, eight years after Mr Khodorkovsky’s and Mr Lebedev’s
conviction for fraud and tax evasion in 2005, ruled – in a nutshell
– that the trial against them was unfair, but that there was not
enough evidence to support the claim that it was politically motivated.
Note It should not be forgotten
that the second trial and conviction of Mr Khodorkovsky, in December
2010, on the basis of the same facts for which he had been convicted
in 2005 but this time qualified as theft, is still pending before
the European Court of Human Rights. In this case, the sheer absurdity
of the conviction, in flagrant violation of the
ne bis in idem principle and mutually
exclusive as regards the first conviction, makes the political motivation
far more flagrant than in the first case.
33. In October 2012, Mr Pichugin also won his case before the
European Court of Human Rights,
Note which found
that his conviction for murder was based on an unfair trial. One
year later, on 23 October 2013, the Presidium of the Supreme Court
of the Russian Federation rejected the request to repeal his sentence.
Note The execution of the judgment of
the European Court of Human Rights is still pending in the Committee
of Ministers.
34. The Moscow-based NGO “Center for Legal and Economic Studies”
was involved in the above-mentioned public examination of the “second
Yukos case” under the auspices of the Presidential Human Rights Council.
Its leadership was subsequently accused by the Investigative Committee
of having somehow used Yukos money from abroad to illegally influence
related judicial proceedings. Several experts who participated in
the public examination were summoned to testify as witnesses, their
premises were searched and documents and computers seized. Throughout
most of 2013, rumours circulated in the press about a so-called “third
Yukos case” against the experts and other suspected supporters of
Mikhail Khordorkovsky for “obstruction of justice” and “money-laundering”.
On 19 December 2013, President Putin replied to the question of
possible criminal prosecutions of experts within the framework of
this case that he did not see particular perspectives in the third
case of Yukos, or any “particular threats to anyone”.
Note But the Investigative Committee,
according to my information, refuses to return materials to the
experts and has not made any official statement about the results
of the investigation, which may mean that it is still pending. As
a result of the remaining legal uncertainty, several experts have
left Russia and prefer to stay abroad for the moment.
35. Regarding Sergei Magnitsky, the Assembly, in
Resolution 1685 (2009), called for his release from pre-trial detention when
he was still alive. We all know that Mr Magnitsky was not released,
but died in prison under horrific and highly suspicious circumstances.
Note In view of some
initial resistance against placing this case on the Assembly’s agenda
as a separate report, I organised exchanges of views before our
committee with Mr Magnitsky’s former client, William Browder, and
with Elena Panfilova (Head of Transparency International Russia)
and Evgenia Albats (Editor-in-Chief of the
New
Times, Moscow) and presented an information note
Note in the framework of my mandate to follow
up
Resolution 1685. I am pleased that this was followed by a full-fledged
investigative report, for which I can only congratulate our colleague
Andreas Gross. His findings speak for themselves. The case of Sergei
Magnitsky, and the massive fraud he had denounced is clearly only
the tip of the iceberg of a far-reaching system of fraud and corruption.
Unfortunately,
Resolution
1966 (2014) on the Magnitsky case, adopted in January 2014, has
also failed to be implemented. As Mr Gross indicated in a follow-up
memorandum presented to the committee in October 2014,
Note all appeals made by Mr Magnitsky’s family after
the adoption of
Resolution
1966 have failed. They were aimed at closing the posthumous
case against him and prosecuting the perpetrators of the crime against
Mr Magnitsky and of the crime he had denounced. The committee therefore
rightly concluded that the condition in
Resolution 1966 for calling for targeted sanctions against those responsible
has been fulfilled.
36. Regarding the North Caucasus, the follow-up to Dick Marty’s
report on legal remedies for human rights violations in the North
Caucasus (
Resolution
1738 and
Recommendation
1955 (2010)) is the subject of a separate report under preparation
by Michael McNamara. I can only say that according to my own contacts
in Russia and in the region, the dramatic human rights crisis described
by Dick Marty is far from resolved. I therefore consider it urgent
to keep this topic on the agenda whilst waiting for the rapporteur’s
fact-finding visit to the region to take place, for example by discussing
the situation in the committee on the basis of up-to-date information
provided by reliable NGOs.
37. During the summer and autumn of 2014, I requested information
in view of the finalisation of this report from a number of non-governmental
interlocutors in Russia. In light of the feedback I received, it
is my impression that due to the deteriorating political and human
rights climate in the Russian Federation, it may actually be preferable
for some of my Russian interlocutors that I do not publish any detailed
information highlighting their situation, as this may cause them
more harm than good.
38. Therefore, leaving out a considerable amount of detail, except
for the elements above, which have already been in the public domain,
I limit myself to summing up my findings in the following general
terms: in the Russian Federation, the Assembly’s recommendations,
notably those regarding the cases of the former leading executives
of Yukos oil, the Magnitsky case (including the first call, in
Resolution 1685 (2009), to free Sergei Magnitsky, when he was still alive),
and the “spy mania” cases of prominent academics and environmental
whistle-blowers given long prison terms for purported violations
of State secrecy (
Resolution 1551 and
Recommendation
1792 (2007)) have remained largely unimplemented, despite the release
of Mikhail Khodorkovsky and Platon Lebedev from prison shortly before
the end of their prison terms. Regarding the Assembly’s call in
the “spy mania” report to review relevant legislation in order to
clarify and restrict the scope of the laws which have led to the
imprisonment of bona fide whistle-blowers, the new laws on espionage
and high treason adopted at the end of 2012 seem to go in the opposite
direction.
Note In sum, the rule of law in the Russian
Federation continues to be threatened by a climate of intimidation
vis-à-vis lawyers, journalists and human rights activists.
3 Ukraine
39. During my fact-finding visit to Kyiv from 22 to 24
February 2012, during the term of office of President Yanukovich,
I met with the Prosecutor General and with the Minister of Justice,
who assured me that they took the Assembly’s work very seriously,
both in the framework of country monitoring and of individual rapporteurships
pertaining to specialised committees. Nevertheless, I returned from
Ukraine quite concerned, in particular regarding the prosecution
of former Interior Minister Yuryi Lutsenko, who had,
inter alia, dismantled and held
to account a “death squad” consisting of employees of his Ministry,
which had committed a number emblematic crimes, including the murder
of journalist Georgyi Gongadze. As the follow-up to the Assembly’s report
on the investigation of these crimes is part of my mandate, I felt
duty-bound to pay special attention to the case of Mr Lutsenko,
a former ally of this Assembly. Mr Lutsenko was pardoned on 17 April
2013, after two and a half years in detention on politically motivated,
spurious charges. His case was covered in some detail in Pieter
Omtzigt’s report on “Keeping political and criminal responsibility
separate”.
Note I fully agree with his analysis.
The committee agreed to invite him for an exchange of views during
the June 2014 part-session, but due to the dramatic events in his
country at this time, he was unable to attend.
40. In my report to the committee on my fact-finding visit to
Kyiv, I also mentioned that the Justice Minister found the conviction
rate of 99.7% at the time unacceptably high. He estimated that it
would fall by about one third under the new code of criminal procedure,
then about to be adopted by the Verkhovna Rada. The Minister referred
to a study examining a large number of convictions in the past two
years. According to the study, the application of the new procedural
rules, which would be in conformity with the European Convention
on Human Rights (ETS No. 5), would have led to an acquittal in about
30% of these cases. I found this remarkable and would recommend
the Monitoring Committee’s rapporteurs on Ukraine to follow this
up and consider proposing that an amnesty or at least a retrial
should be decreed for the cases in question.
41. The elucidation of the Gongadze case itself has made some
progress since the adoption of the Assembly’s report in 2009, which
I have been asked to follow up. In 2008, three junior officials
of the Ukrainian Ministry of Interior had been convicted for their
role in the murder of this prominent journalist. Since my work started,
their superior, General Pukach, has also been re-arrested after
having absconded following his initial arrest. In January 2013,
after a trial during which he provided horrific details of the crime
and accused the former President, Leonid Kuchma, and the former
head of the presidential administration, Volodymyr Lytvyn, of having
ordered the crime, he was convicted for murder. After the alleged
suicide, in 2005, of the former Interior Minister, Yuri Kravchenko,
under the suspicious circumstances already described in the Assembly’s 2009
report, the attempts of the Ukrainian judicial authorities to move
further up the chain of command, as requested by the Assembly, have
reached stalemate. Whilst some doubts remain as to the role played
by Mr Kuchma, the prosecution’s case against him collapsed in December
2011, when the court ruled that the “Melnichenko recordings”
Note could not
be used as evidence because they had been obtained illegally. Mr Kuchma,
who denies having ordered the killing, is now playing the role of
an elder statesman. He participated in the negotiations in Minsk
on the resolution of the conflict in eastern Ukraine. The only thing
I feel able to do at this stage is to say that we must remain vigilant
that General Pukach does not escape punishment for the crime he
had admitted, whatever his motives may have been, which is still
the subject of protracted appeals by the legal representatives of
the victims.
4 Germany
42. In Germany, the call of the Assembly’s former rapporteur,
Ms Sabine Leutheusser-Schnarrenberger, to establish a High Judicial
Council similar to those in most other member States of the Council
of Europe, was not heard, including during Ms Leutheusser-Schnarrenberger’s
second term of office as Federal Minister of Justice, after her
departure from the Assembly. The reasons are political: with the
exception of the Liberals and the Greens, the main political forces
in Germany do not see a problem in the present situation, despite persistent
calls by the judges’ and prosecutors’ professional organisations
to introduce a dose of judicial self-administration.
Note The present situation,
leaving the recruitment and promotion of judges and prosecutors
in the hands of the ministers of justice (at the
Länder and Federal levels) is not
perceived as giving rise to much opportunity for abuse because of
the federal structure of the German judicial system. Different political
forces are in power in different
Länder at
different times so that no one minister or political party is likely
to be in a position to exercise inappropriate political control
over the judiciary as a whole. This said, the careers of judges and
prosecutors in each
Land may
well depend to a certain extent on their political “colour” as well
as their qualification and merits, which are notoriously difficult
to assess. Strongly merit-based recruitment procedures
Note and
the independence-minded
esprit de corps of
judges and prosecutors seem to ensure fairly good protection against
undue political influence. Especially at the level of the highest
(federal) courts, a complex system of checks and balances ensures
rotation (political parties effectively “taking turns” in presenting
candidates perceived as close to their respective “camps”). In some
Länder, certain features of judicial
self-administration already exist, in others, discussions on this
issue continue. All in all, this has contributed to a reasonably
balanced composition of the highest courts and a good level of independence
of the judiciary as a whole. But I still find it regrettable that
the majority of politicians and political parties in Germany are
unwilling to give up some of their powers over the careers of judges
and prosecutors in favour of judicial self-administration bodies
that exist in practically every other member State of the Council
of Europe.
43. I do not wish to argue that the judiciary should be completely
cut off from the political sphere, as this could lead to excessive
corporatism. But a dose of judicial self-administration, not excluding
a reasonable representation of political representatives, as advocated
by the Venice Commission, would be desirable, also as a matter of
setting the right example. The submission of the Federation of German
judges and prosecutors rightly cites the explanatory report for
Resolution 1685 (2009) in support of its argument that the structures of the
administration of justice must be such that they cannot be abused
even if they were to fall into the wrong hands.
44. The issue of the right of Ministers to give instructions to
prosecutors in individual cases is not resolved either. Despite
persistent calls of the judges’ and prosecutors’ professional organisations,
Ministers of Justice continue to have the right to give such instructions.
Ms Sabine Leutheusser-Schnarrenberger, as Federal Minister of Justice,
had publicly pledged not to make use of this right. Her successor,
the social democrat Heiko Maas, has not made such a pledge. He publicly
expressed his view that without the integration of the prosecution
in the executive power, investigators would be under even stronger
pressure from public opinion, presumably also of politicians, which
is why he was sceptical whether separation from the executive would really
make investigations more objective and fairer.
Note In the context
of the discussions on opening investigations concerning alleged
unlawful surveillance by foreign actors in Germany, the Minister
clearly stressed the independence of the Federal Prosecutor, who
must be able to decide on opening investigations according to the
law, without pressure from either the government or the opposition.
Note The bulk of day-to-day judicial
work takes place in the
Länder;
most of whose Ministers of Justice continue to defend their prerogative to
give instructions to prosecutors.
Note In
actual fact, the issue is not so dramatic in Germany: the “principle
of legality” obliges the prosecution to investigate and prosecute
every criminal offence that comes to its attention. Failure to do
so – or giving instructions to this effect – can be a serious criminal
offence: the crime of obstruction of justice
Note is the systemic safeguard
for the principle of legality and against illicit instructions not
to prosecute. As regards instructions to prosecute, these are less
problematic, as the case ends up before a court, which decides in
full independence whether there is enough evidence for a crime (leading
to the opening of the trial and possible conviction) or not (refusal
to open a trial, or acquittal).
45. In practice, it is simply impossible for the prosecution to
fully investigate each and every suspected criminal offence. The
law itself provides for exceptions from the principle of legality.
Certain offences can only be prosecuted at the request of the victim.
Note In
other minor cases, the prosecution has a fair amount of discretion
in evaluating the opportuneness of pressing charges.
Note In view
of the limited resources of the prosecution and the justice system
in general, this exception from the principle of legality is turning
almost into the rule. This is where ministerial instructions come
in: while it is perfectly appropriate for ministers to indicate to
the prosecution service how it shall exercise its discretion by
indicating certain policies and criteria designed, for example,
to fight prison overcrowding or to ensure equality before the law,
the extension of the “principle of opportuneness” at the expense
of the principle of legality has created possible openings for instructions
in individual cases that may well violate equality before the law
for party-political purposes. In its reply, the Ministry of Justice
points out that any instructions for such purposes or motives would
be illegal; Ministers made only very cautious use of the right to
give instructions, which was also a safeguard for parliamentary
control over the prosecution service. By contrast, the professional
organisations of judges and prosecutors have long been campaigning
for “cutting the link” between politics and the judiciary by ending
the right of ministers to give prosecutors instructions on individual
cases, in order to prevent even the appearance of undue political influence.
46. I have seen the negative consequences, in a number of Council
of Europe member States, especially in certain former Soviet republics,
of prosecutors acting as instruments in the hands of the political
elite, putting behind bars political opponents whilst ensuring impunity
for those in power.
Note I was therefore at first quite surprised
to hear that in Germany, a constitutional argument is made
against abolishing the minister’s
right to give individual instructions: namely that under the constitutional
principle of democracy, the government must be accountable for the
actions of any branch of the executive, which is said to include
the prosecution service.
Note Others see the prosecution
not as part of the executive, but as part of the judiciary, for
whose decisions the government cannot and should not be held accountable
(whereas the executive is indeed responsible for the proper organisation
of the judiciary and its resources). The Federal Constitutional
Court has recognised that the prosecution is part of the judiciary,
but it has also stressed its executive characteristics.
Note
47. In my view, democratic accountability of the prosecution could
be preserved whilst minimising the danger of politically motivated
abuses by laying down the simple rule that any individual instructions
should be given in writing, and made public. If a minister can explain
to parliament and ultimately to the voters why he or she gave a
specific instruction to a prosecutor, chances are that the instruction
was legitimate.
Note
48. Contrary to the author of the report I have been asked to
follow up, I am not an expert on the judiciary. I therefore do not
feel comfortable with making any specific proposals. My objective
is merely to contribute to re-launching the debate on judicial self-administration
and prosecutorial independence in Germany and to urge the decision-makers
to take into account the Council of Europe’s experience – which
clearly speaks in favour of a maximum of independence and transparency
of the judiciary, both for judges and prosecutors. I am therefore
pleased to note in the Ministry’s reply that it continues to be
open for discussion on the reform of the judiciary.
Note The Ministry also stresses
that the historically evolved structure of the judiciary in Germany
and its independence in practice enjoys a good reputation internationally.
Note
49. As regards resources allocated to the judiciary, Germany looks
good in terms of the total annual budget allocated to all courts
and public prosecution per inhabitant,
Note but
judges’ and prosecutors’ salaries, in relation to the national average,
are still the second-lowest in Europe.
Note This said,
I was informed that the judiciary still has no difficulty in recruiting
and retaining top-level lawyers in sufficient numbers.
Note
5 France
50. Due to the refusal of the Russian delegation to co-operate
with me, much time has elapsed and some of the topics I was mandated
to cover in this report have simply become outdated. This is especially
true for the controversial proposal announced by then President
Sarkozy in 2009 to abolish the institution of the
juge d’instruction in France. This
proposal has been abandoned in the meantime, after the change of
majority. But problems remain due to the lack of resources, and
a draft law promoting co-operation between juges d’instruction
Note was
considered in 2013; however, it has to date not been adopted.
Note
51. Regarding the
Conseil supérieur
de la magistrature (CSM), after two reforms in 2008 and
2010,
Note the
magistrats (judges and prosecutors)
ended up being in the minority.
Note This
fact was widely criticised, including by the Parliamentary Assembly.
In addition, the limited powers of the CSM with respect to the nomination
of the prosecutors remain problematic. During his presidential election
campaign in 2012, François Hollande had made promises to increase
the independence of the judiciary. But a draft law intended,
inter alia, to re-establish the
majority of
magistrats in
the different compositions of the CSM and improving the nomination
process of the “political” appointees within the CSM was never adopted.
Note
52. Regarding the status of the French prosecutors, the European
Court of Human Rights has found on several occasions,
inter alia in the cases of
Moulin
v. France (2011) and
Vassis
and others v. France (2013), that the French prosecutors are not “officer[s]
authorised by law to exercise judicial power” within the meaning of
Article 5.3, because they lack independence from the executive power.
53. On a positive note, a Law on the independence of the prosecutors
outlawing individual instructions of the Minister of Justice was
adopted on 16 July 2013.
Note Another issue raised in
Resolution 1685 (2009) and in my introductory memorandum has also been resolved
in a positive way, namely the improvement of the right of access
of defence lawyers to their clients in police custody (
garde à vue), a reform adopted in
2011 under the previous government
Note and further developed in 2014 in
a law transposing into French law EU
Directive 2012/13 of 22 May 2012.
Note
54. The budgetary situation of the French justice system remains
critical. The available resources are lower than the European average,
as shown by the latest evaluation report of the European Commission
for the Efficiency of Justice. Some courts are unable to pay the
appointed experts and service suppliers.
Note The
CEPEJ report also notes that the budget available for the French
legal aid programme remains very low and that the number of judges,
prosecutors and support staff in the French judicial system remains
below the European average, in relation to population size.
Note On 10 September
2014, the Minister of Justice announced a further reform with the
title “
La justice du 21e
siècle” (Justice in the 21st century)
Note aimed at modernising the French judiciary
and adapting it to everyday life.
55. The representatives of French judges and prosecutors with
whom I have consulted complain strongly about attacks in the media
by politicians with respect to specific cases (for example with
respect to investigations against former President Sarkozy). The
highest representatives of the executive reacted by stressing the
need for respect towards the
magistrats.
The “mur des cons” (“wall of idiots”) affair
Note has prompted
further criticism by politicians, who have called into question
the traditional right of French judges and prosecutors to belong
to trade unions, which is guaranteed by the French Constitution
and Article 11 of the European Convention on Human Rights.
Note
56. In my view, the very combativeness of French judges and prosecutors,
their spirit of résistance against any
undue interferences with their work, is the best guarantee for the
continued independence of the French judiciary. But in order to
keep resisting, judges and prosecutors need the protection of a
solid legal and institutional framework against undue political
and media pressure.
6 Belarus
57. In Belarus, when I look at
Resolution 1606 (2008), not much progress can be noted in terms of reducing the
abuse of the criminal justice system.
58. Contrary to the Assembly’s specific requests,
Note the so-called “Anti-Revolution
Law”
Note has not been repealed. This
law introduced changes to the Criminal Code (including Article 193-1)
which criminalise activities of non-registered civil society organisations.
The law remains on the books, although I was informed that it has
not been applied for some time. There has also been no moratorium
on executions. On the contrary, to the extent that this can at all
be verified in view of the secrecy shrouding the death penalty in
practice, the practice of capital punishment is continuing unabated.
The Assembly’s General Rapporteur on the abolition of the death
penalty, Marietta Karamanli, and her predecessors, Renate Wohlwend
and Marina Schuster, were unfortunately obliged to “name and shame”,
in the form of public statements, a number of executions throughout
the period under observation.
Note
59. Concerning a particularly egregious case, I invited the mother
of a condemned young man for a hearing before this committee during
the Assembly’s January 2012 part-session in Strasbourg. Ms Lyubou
Kavalyova, gave the committee a tragic account of the fate of her
son and of a friend of his, alleged terrorists, who had been convicted
for a bombing in a metro station in Minsk in April 2011. They were
sentenced to death by the Supreme Court of Belarus, following a
clearly unfair trial. Her son’s confession had been extracted by
beatings and psychological pressure, while there was no evidence
of their guilt. On the contrary, her son and his friend had a strong
alibi. The CCTV-camera tapes were manipulated and still did not
show clearly what they were purported to show. Immediately after
the sentence was passed, what little evidence there was and that
could have been disproved in a possible new, unbiased investigation,
had been destroyed. The date of the forthcoming execution had not
been revealed to her. Whilst she had not been able to see her son
for more than a few minutes at a time, she had been offered a three-hour
visit – on the day the authorities knew she would be in Strasbourg
in order to plead for help. But despite all pleas, including directly
to President Lukashenko, the two young men were executed shortly
afterwards.
60. Contrary to the Assembly’s exhortations, Presidential Decree
No. 643 modifying administrative procedures related to foreign travel
of Belarusians, which had been used to limit travel of opposition
and civil society activists has not been revoked or modified. But
I was informed that most opposition figures had been withdrawn from
the database of individuals banned from leaving Belarus.
61. The issue of political prisoners is still not resolved in
Belarus, as the Assembly last noted in
Resolution 1857 (2012). Arbitrary convictions of political opponents, following
unfair court proceedings, under general criminal provisions (for
example, embezzlement, fraud, counterfeiting or tax evasion) or
convictions under the above-mentioned “anti-revolution law” have
continued. The most prominent victim of this practice, the well-respected
human rights activist, Aleh Bialiatski, the first laureate of the
Václav Havel Human Rights Prize in 2013, has thankfully been released,
after almost three years in prison.
Note But several other
people who would appear to fulfil the Assembly’s criteria for the
definition of political prisoners under
Resolution 1900 (2012) are still in detention.
Note
62. The criminal justice system in Belarus is also misused in
order to force political opponents, civil society activists and
independent journalists out of the country. Former political prisoners
who had been forced to sign confessions are placed under burdensome
“preventive supervision” measures after their release. Allegations of
tax crimes, traffic offences, etc. are on the list of instruments
to threaten opponents of the regime with (re)imprisonment. Therefore,
many prominent members of the opposition left the country, especially
after 2010. In October 2014, human rights activist Elena Tonkacheva,
a Russian citizen residing in Belarus for 30 years, was expelled
from Belarus with a three-year ban on re-entry, formally on the
ground of a minor traffic (speeding) offence.
63. Last but not least, a comment on the use of targeted sanctions
against those personally responsible for human rights violations
in Belarus. Let us remember that the Assembly, in
Resolution 1606 (2008), had urged “judges, prosecutors and police officers
in Belarus to avoid, to the best of their ability, participating
in abuses of the criminal justice system and to bring to bear their
courage and imagination in order to mitigate the effects of the
abusive legislation on its victims”.
64. A number of cases documented by human rights defenders, such
as that of Ales Bialiatski,
Note show that the officials in question
did not in fact heed the Assembly’s advice.
65. Also, the senior officials named by the Assembly in its
Resolution 1371 (2004) as suspects in four high-profile disappearances
Note have still not been held to account
before a court of law.
66. Under these circumstances, it is coherent that targeted sanctions
imposed by the European Union and the United States against known
human rights violators are still in force against a number of Belarusian officials.
Note
7 Conclusion
67. Having examined, to the extent possible, the follow-up
given by member States to a number of relevant resolutions and recommendations
of the Parliamentary Assembly, I can only conclude that the authority
of the texts adopted by the Assembly is fairly limited. This is
not really a surprise, given that the Assembly’s texts are not legally
binding. But the public attention generated by a well-researched
report and the persuasiveness of the arguments can have some influence
on decision-making processes. After all, the texts adopted by the Assembly
do reflect the views of a majority of the democratically elected
representatives of the people of all 47 member States. This can
also carry some weight before the European Court of Human Rights,
in particular when it is trying to establish the presence of a “European
consensus” to back its interpretation of the Convention.
68. As to the issues concerning the Russian Federation, the authorities
failed to provide me with their official views, as I could not meet
with them. But even on the basis of information already in the public
domain, I have been able to draw some worthwhile conclusions. The
exercise of assessing the actual implementation of the Assembly’s
relevant reports, which provide examples of different types of threats
to the rule of law concerning different judicial systems and legal
cultures may well contribute to asserting the Assembly’s authority
in all member, observer and applicant States. My conclusions in
this respect are summed up in the draft resolution preceding this
report.
69. I should like to conclude by stressing that the refusal of
the Russian delegation to co-operate with me has made my work much
more difficult. Such behaviour, similar to that of the Azerbaijani
authorities vis-à-vis the Assembly’s rapporteur on the issue of
political prisoners, Mr Christoph Strässer, should not be left without consequences.
I leave it up to the Assembly to take this matter into account.
