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Introduction of sanctions against parliamentarians

Doc. 13944: collection of written amendments | Doc. 13944 | 25/01/2016 | Final version

Caption: AdoptedRejectedWithdrawnNo electronic votes

ADraft Resolution

1In recent decades, international action has become increasingly important in the activities of national parliaments, with the growing number of interparliamentary co-operation organisations and international parliamentary forums, the development of bilateral and multilateral international parliamentary relations (friendship groups, specialised interparliamentary networks), study groups and fact-finding visits. There is furthermore an increasing demand for interparliamentary co-operation, in particular in connection with support for the democratic transition process in many States.
2As a benchmark institution for interparliamentary co-operation in Europe, the Parliamentary Assembly refers to its Resolution 1773 (2010) on promoting parliamentary diplomacy, in which it welcomed the positive role played by the latter in preventing conflicts, reducing tension between countries, facilitating dialogue and mediation.
3The Assembly is seriously concerned about the current political context in Europe, where the illegal annexation of Crimea by the Russian Federation and its intervention resulting in a military conflict in eastern Ukraine have generated a climate of mutual distrust and revived security concerns within Council of Europe and European Union member States, against a background of a “war of sanctions”. The reciprocal direct sanctions and the resulting restrictions on travel by parliamentarians are particularly harmful to parliamentary diplomacy.

In the draft resolution, paragraph 3, after the words "military conflict in eastern Ukraine", insert the following words: "following the war between Russia and Georgia, and the occupation and illegal recognition of the independence of Abkhazia, Georgia and South Ossetia, Georgia by the Russian Federation,".

Explanatory note

The amendment seeks to call to mind the first precedent of the violation of the territorial integrity of a member State by the Russian Federation.

In the draft resolution, at the end of paragraph 3, insert the following sentence: "However, restrictive measures imposed on members of national parliaments who violate the national legislation of member States of the Council of Europe are exceptional measures aimed at preventing clear instances of damage to national interests, such as breaches of territorial integrity and sovereignty."

In the draft resolution, after paragraph 3, insert the following paragraph:

"The Assembly reaffirms the principle of territorial integrity, sovereignty and inviolability of the internationally recognized borders of all member States. In this context the Assembly has systematically condemned the violation of international law and the statute of the Council of Europe by the Russian Federation in respect of Georgia and Ukraine. It has inter alia deplored the actions of the individual members of the Russian Federation Duma and the Federation Council who have unanimously voted in favour of military aggression, occupation, recognition of independence and annexation of parts of Council of Europe member States and has imposed sanctions envisaged by the Statute of the Council of Europe."

Explanatory note

The amendment aims at balancing the Resolution by mentioning that the actions of individual members of the Russian Federation Duma and Federation Council who violated the territorial integrity and sovereignty of Georgia and Ukraine breached international law and the Statute of the Council of Europe.

4The Assembly believes that the restrictive measures targeting parliamentarians are not compatible with the very nature of parliamentarianism, which requires relations to be maintained through dialogue. It is afraid that the spread of individual sanctions involving the sharing of responsibility between States and individuals supporting the objectives of States is leading to an excessively moralistic trend in international law and the system of international liability, whereby, in the absence of any criminal liability, individual sanctions are supplementing the traditional sanctions targeting States.

In the draft resolution, replace paragraph 4 with the following paragraph:

"The Assembly believes that restrictive measures targeting parliamentarians who tend to violate the national legislation of respective States represent a particular means of reaction and are instruments of last resort to protect the very nature of parliamentarism, which requires relations among States and nations to be maintained through dialogue and mutual respect."

5Moreover, the Assembly deplores the existence of national “blacklists” of parliamentarians to whom the States which have drawn them up can refuse visas or entry. It also denounces the cases involving Assembly members who are threatened with criminal or administrative proceedings for having breached countries’ legislation on entry into their territory in exercising their freedom of movement and travel. The Assembly underlines that, regardless of the legitimacy of the assertion by certain States of their sovereignty or the integrity of their territory in response to real or presumed threats, they cannot absolve themselves of compliance with international law and fundamental rights or the principle of the rule of law when they adopt restrictive measures or retaliatory measures against individuals in this connection.

In the draft resolution, replace paragraph 5 with the following paragraph:

"Moreover, the Assembly notes the existence of national "blacklists" of parliamentarians to whom the States which have drawn them up can refuse visas or entry. Criminal or administrative proceedings for having breached a State's legislation on entry into its territory must fully comply with international law. The Assembly underlines that, regardless of the legitimacy of the assertion by certain States of their sovereignty or the integrity of their territory in response to real or presumed threats, all restrictive measures are subject to compliance with international law, principles of good governance and the respect of law."

In the draft resolution, at the end of paragraph 5, add the following words: "The Assembly does not favour impunity for parliamentarians and reaffirms the principle of the equal application of the law to all people."

In the draft resolution, after paragraph 5, insert the following paragraph:

"However, the Assembly stresses that the measures which could be adopted by the Parliamentary Assembly against its delegations or members, individually, under its Rules of Procedure are not part of a sanctions regime regulated by international law. These measures should be seen as a mechanism to prevent serious violations of the basic principles established by the Statute of the Council of Europe and persistent failures to honour obligations and commitments by the Council of Europe's member States."

6The Assembly considers that, although international law in principle grants States full sovereignty over their territory, entry bans imposed by member States on parliamentarians amount to interference in the latter’s exercise of their right to freedom of expression enshrined in the European Convention on Human Rights (ETS No. 5). With reference to Resolution 1894 (2012) on the inadmissibility of restrictions on freedom of movement as punishment for political positions, the Assembly reasserts that freedom of movement as a corollary of freedom of expression must not be subject to restrictions or used as punishment for peacefully expressing political opinions. Freedom of political expression enjoys enhanced protection and should not be restricted without compelling reasons.
7The Assembly welcomes the fact that since the adoption of its Resolution 1597 (2008) on United Nations Security Council and European Union blacklists, the safeguards applicable to sanction procedures or restrictive measures both at United Nations and European Union level, in particular the procedures for challenging the measures and the scope and intensity of judicial review of the measures, have been duly improved. In this connection, it welcomes the judicial supervision exercised by the Court of Justice of the European Union over decisions providing for restrictive measures against natural or legal persons adopted by the Council of the European Union and expects the Court of Justice to clarify in its case law the extent and scope of the safeguards concerning natural persons.
8The Assembly considers that any sanction targeting individuals must meet the requirements of legal certainty and be accompanied by appropriate procedural guarantees. However, in the case of parliamentarians, even if judicial reviews of bans or restrictive measures imposed by third countries play a key part in protecting them against arbitrary decisions, they should be afforded additional safeguards in order to offset the harmful effects which travel restrictions may have on the performance of their duties. The Assembly calls on Council of Europe member States to provide foreign parliamentarians targeted by restrictive measures such as inclusion on entry or visa blacklists with a transparent listing and appeals procedure.
9In this context, the Assembly calls on member States which have adopted or may adopt restrictive measures to:
9.1identify exhaustively the provisions governing the restrictive measures, travel ban lists or special rules on movement which could restrict foreign parliamentarians’ freedom of movement;
9.2make sure that there is a close link between a restrictive measure imposed on a foreign parliamentarian and its intended purpose. In particular, national security grounds must not be used to restrict the access of a parliamentarian who is peacefully expressing certain political positions;

In the draft resolution, paragraph 9.2, delete the second sentence.

9.3notify foreign parliamentarians who are subject to bans or restrictive measures of their existence and the reasons for them;
9.4ensure that foreign parliamentarians are able at short notice to submit their observations to the body that has imposed or is threatening to impose a restriction;

In the draft resolution, paragraph 9.4, after "observations", insert the following words: ", in conformity with national legislation,".

9.5suspend the execution of a ban or restrictive measure while it is being challenged.
10The Assembly is seriously concerned about the restrictions or travel bans which certain Council of Europe member States have imposed on Assembly members when performing their duties, in particular in the case of election observation exercises or visits by rapporteurs duly appointed by it, whether in terms of refusals to issue visas or threats of arrest or prosecution under national legislation. The Assembly unreservedly condemns these restrictions, which are a flagrant violation of the General Agreement on Privileges and Immunities of the Council of Europe (ETS No. 2) and the Protocol thereto (ETS No. 10) and a breach of the undertaking to co-operate with the Assembly.
11Under the Statute of the Council of Europe (ETS No. 1) and the General Agreement on Privileges and Immunities of the Council of Europe and the Protocol thereto, to which they all are parties, Council of Europe member States have undertaken to recognise and guarantee the freedom of movement and immunity of Assembly members and to protect them against any legal proceedings or detention, thereby ruling out both entry or visa bans and prosecution for failure to comply with rules on entry or movement, for instance via legislation on occupied territories.

In the draft resolution, delete paragraph 11.

25 January 2016

Tabled by Ms Chiora TAKTAKISHVILI, Mr Volodymyr ARIEV, Mr Georgii LOGVYNSKYI, Mr David BAKRADZE, Mr Giorgi KANDELAKI, Ms Dalia KUODYTĖ, Mr Eerik-Niiles KROSS

Falls if amendment 10 is adopted.

Votes: 21 in favor 60 against 5 abstentions

In the draft resolution, at the end of paragraph 11, delete the following words: ", thereby ruling out both entry or visa bans and prosecution for failure to comply with rules on entry or movement, for instance via legislation on occupied territories".

12The Assembly emphasises that, in accordance with the principles of international law, no State may evade the obligations imposed on it by international law or the treaties which it has signed by relying on the provisions of its domestic legislation, of whatever kind, including its own constitution. Accordingly, no Council of Europe member State may derogate from the obligations it entered into under the General Agreement on Privileges and Immunities and the Protocol thereto by relying on provisions of its domestic law to justify its failure to comply.
13The Assembly therefore formally asks the member States to abide by their commitment to:
13.1guarantee free movement of members of the Assembly. When a member State hosts a meeting, a visit or an official event organised by the Assembly, it must facilitate the participation of members of the Assembly and issue the visas required for their entry into its territory;

In the draft resolution, paragraph 13.1, at the end of second sentence, insert the following words: "unless otherwise provided by the principles of international law".

13.2guarantee the immunity of members of the Assembly against any legal proceedings or measures for their arrest or detention, except in cases of flagrante delicto.
14Reiterating firmly the position which it took in Resolution 2078 (2015) on the progress of the Assembly’s monitoring procedure, Resolution 2063 (2015) on consideration of the annulment of the previously ratified credentials of the delegation of the Russian Federation and Resolution 2034 (2015) on challenge on substantive grounds, of the still unratified credentials of the delegation of the Russian Federation, the Assembly condemns the violation by the Russian Federation of the General Agreement on Privileges and Immunities of the Council of Europe and calls on the authorities immediately to release Nadiia Savchenko, member of the Assembly.
15The Assembly believes that it is now vital for national parliaments to introduce good governance in the area of their international activities if they wish to continue to operate legitimately through parliamentary diplomacy. It calls on the national parliaments of the member States to:
15.1draw up guidelines on the conduct of bilateral or multilateral interparliamentary relations, setting out the aims, instruments and arrangements for interparliamentary co-operation, as well as the institutional and legal framework and the procedural or organisational aspects, or general rules of conduct, the rules applicable to visits by parliamentarians to other countries and, where applicable, the specific rights of the relevant parliamentarians;
15.2provide appropriate training for members of parliament and the relevant secretariat staff concerning the preparation and conduct of parliamentary visits to foreign countries;

In the draft resolution, at the end of paragraph 15.2, insert the following words: "and prepare updates on specific rules and regulations outlined by the national legislation of Council of Europe member States and parliamentary practice".

15.3support initiatives aimed at promoting at international level the recognition of an international status for parliamentarians and any related rights and obligations, which is vital to the development of parliamentary diplomacy.
16The Assembly also calls on the member States to:
16.1sign and ratify the 1969 United Nations Convention on Special Missions;
16.2study without delay the question of the rights and obligations of national parliamentarians from Council of Europe member States travelling on their territory in order to grant them adequate safeguards for carrying out their duties freely and effectively outside their own countries, including freedom of movement and expression and personal immunity;
16.3in this connection, study the possibility of granting national parliamentarians from Council of Europe member States travelling on their territory on behalf of their parliaments the same immunities as parliamentarians from their own countries.

25 January 2016

Tabled by Ms Chiora TAKTAKISHVILI, Mr Volodymyr ARIEV, Mr Georgii LOGVYNSKYI, Mr David BAKRADZE, Mr Giorgi KANDELAKI, Ms Dalia KUODYTĖ

Votes: 23 in favor 55 against 6 abstentions

In the draft resolution, paragraph 16.3, after the words "on their territory", insert the following words: "mandated by and".

17Against this overall background of the internationalisation of national parliamentary activities and given the greater responsibility now borne by parliamentarians on account of their actions and decisions, with the possibility of their being held personally liable under international law, the lack of a specific status and protection for parliamentarians under international law means that parliamentarians’ rights and privileges outside their own countries are precarious. Account therefore needs to be taken of the specific nature of parliamentary work at international level and the protection afforded to those performing it needs to be strengthened, in particular in relation to third countries. The Assembly therefore calls on:
17.1the Inter-Parliamentary Union (IPU) to develop and promote a set of rules applicable to parliamentarians travelling abroad in the exercise of their duties so as to provide an international framework for interparliamentary co-operation;
17.2the United Nations International Law Commission to promote, in its ongoing discussions, a comprehensive international legal framework so that parliamentarians targeted by restrictive measures are covered by a proper status in this connection, given the wide range of different safeguards afforded to individuals targeted by sanctions, which currently depend on the legal order of the international organisation or State which imposed them.

BDraft Recommendation

1The Parliamentary Assembly refers to its Resolution … (2016) on the introduction of sanctions against parliamentarians and, in particular, to the current situation involving a growing number of restrictions on travel by national parliamentarians from Council of Europe member States to other member States.
2The Assembly draws the Committee of Ministers’ attention to the continued failure by certain member States to honour the international commitments they have freely entered into, by hindering the Assembly’s activities with obstacles to the exercise of its members’ duties.
3Moreover, the growing internationalisation of parliamentary work is highlighting the inadequacy of the international legal framework in which parliamentarians perform their duties outside their own countries. While it is clear that diplomacy is an inherently sovereign function, it is also true that parliaments have gradually become involved in it, entailing a need to recognise and protect the relevant activities on an international level. National parliamentarians should therefore be afforded adequate safeguards in relation to third countries when travelling abroad in the course of their duties and be covered by a fixed, standardised framework of rights and privileges so as to meet the requirements of legal certainty.
4The Assembly therefore calls on the Committee of Ministers to:
4.1demand that member States honour their commitments under the Statute of the Council of Europe (ETS No. 1), the General Agreement on Privileges and Immunities of the Council of Europe (ETS No. 2) and the Protocol thereto (ETS No. 10) and fully guarantee the immunity of members of the Parliamentary Assembly and their free movement on their territory;

In the draft recommendation, at the end of paragraph 4.1, after the words "on their territory" add the following words: ", when performing their duties as members of the Parliamentary Assembly, in particular in the case of election observation exercises or visits by reporters duly appointed by the Assembly;"

4.2urge member States to grant, by means of unilateral declarations:
4.2.1members of the delegations holding observer or partner for democracy status with the Parliamentary Assembly taking part in sessions of the Assembly and meetings of its committees and, in general, in activities organised by them, the privileges and immunities afforded to members of the Parliamentary Assembly under the General Agreement on Privileges and Immunities of the Council of Europe and the Protocol thereto;
4.2.2national elected representatives from Council of Europe member States travelling to or through their territory the immunities afforded to the members of their countries’ own parliaments;

In the draft recommendation, paragraph 4.2.2, after the word "territory" insert the following words: ", mandated by and on behalf of their parliaments,"

4.3launch, prior to any standard-setting work and taking account of current work by the United Nations International Law Commission, a feasibility study on the creation of an international status for parliamentarians and any related rights and obligations, which could be carried out by the Council of Europe’s Committee of Legal Advisers on Public International Law (CAHDI).