B Explanatory memorandum by Ms Ingjerd
Schie Schou, rapporteur for opinion
1 Introduction
and regulatory framework
1. On 22 January 2024, Mr Frank
Schwabe (Germany, SOC), supported by the required number of members
of the Assembly, challenged the still unratified credentials of
the parliamentary delegation of Azerbaijan on substantive grounds,
pursuant to Rule 8 of the Rules of Procedure.
2. The substantive grounds on which the credentials were challenged
refer to the deteriorating situation with regard to pluralist democracy,
respect for the rule of law, human rights and fundamental freedoms
as well as to the role of the Azerbaijani authorities in the events
of September 2023 which led to the flight of the entire ethnic Armenian
population from Nagorno-Karabakh to Armenia. All these issues cast
serious doubt as to the compliance of the Republic of Azerbaijan
with its commitments and obligations in the Council of Europe.
3. In line with Rule 8.3 of the Rules of Procedure, the Assembly
decided to refer the challenge to the Monitoring Committee for report
and to the Committee on Rules of Procedure, Immunities and Institutional Affairs
for opinion.
4. At its meeting on 22 January 2024, the Rules Committee appointed
me rapporteur for opinion.
5. On 23 January 2024, the Monitoring Committee adopted a report
and a draft resolution which proposes to the Assembly not to ratify
the credentials of the Azerbaijani delegation.
6. The Committee on Rules of Procedure is asked therefore to
consider the compatibility of the proposed decision with the Assembly’s
Rules of Procedure, as well as with the Statute of the Council of
Europe.
7. Rule 10.1 reads as follows:
“10.1. Reports submitted to the Assembly or
the Standing Committee under Rules 7., 8.3., 8.4., 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.
The members’ rights to vote,
to speak and to be represented in the Assembly and its bodies shall
not be suspended or withdrawn in the context of a challenge to or
reconsideration of credentials.”
2 On the compatibility
of the proposed decision with the Assembly's Rules of Procedure
2.1 Compliance of
the motion to challenge the credentials with formal requirements
8. The committee points out that
challenging the credentials of a delegation must comply with certain
formal conditions in order to be in order. 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”.
9. The committee notes that the challenge was supported by more
than 30 members, belonging to at least 5 national delegations. No
irregularities were observed. It could therefore be concluded that
the request had gathered sufficient support of members, as required
by the Rules.
2.2 Analysis of the
substantive grounds in the light of the scope of Rule 8 of the Rules
of Procedure
10. Rule 8.2 provides that:
“The
substantive grounds on which credentials may be challenged are:
a. serious violation of the
basic principles of the Council of Europe mentioned in Article 3
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.”
11. In its previous opinions the Committee on Rules of Procedure
expressed its concern that any procedure for challenges of credentials
should be based on a duly substantiated request.
12. It therefore welcomes the fact that the present challenge
of the credentials contains a detailed statement of the grounds
on which it is based. As was announced in the plenary, the challenge
of the credentials of the delegation of Azerbaijan relates to, inter
alia: “a dramatic escalation in domestic politics with more and
more political prisoners”; “the violent displacement of more than
100 000 people in Nagorno-Karabakh”; the lack of co-operation with
the Assembly rapporteurs; as well as the non-invitation to the Assembly
to observe the early presidential election which will take place
on 7 February 2024.
13. The reasons given to challenge the credentials constitute
prima facie legitimate grounds able to fall under the scope of Rule
8.
14. The rapporteur notes that the Monitoring Committee's report
includes a detailed description of the facts leading the rapporteur
and the Monitoring Committee to propose not to ratify the credentials
of the Azerbaijani delegation.
2.3 Precedents
15. In 2019, the Assembly adopted
Resolution 2292 (2019) in
which the Assembly ratified credentials of the Russian Federation.
16. In 2015, the Assembly adopted
Resolution 2034 (2015) in which
the Assembly ratified the credentials of the Russian Federation
delegation but suspended the following rights during the 2015 session:
to be appointed rapporteur, membership of an ad hoc committee on
election observation; to represent the Assembly in Council of Europe
bodies and external institutions and organisations. Furthermore,
the Assembly resolved to suspend the voting rights and the right
to be represented in the Bureau of the Assembly, the Presidential
Committee and the Standing Committee of the Russian delegation to
the Assembly. The Assembly decided to return to this issue, with
a view to reinstating these two rights at its April 2015 part-session
if Russia had made marked and measurable progress towards implementing
the demands of the Assembly formulated in this resolution. In
Resolution 2063 (2015), adopted in June, the Assembly confirmed the sanctions.
17. In 2014, in its
Resolution
1990 (2014) the Assembly suspended the voting rights
of the delegation of the Russian Federation as well as the right
to be represented in the Bureau, the Presidential Committee and
the Standing Committee and the right to participate in election
observation missions, until the end of the 2014 session (it was
referred to the Monitoring Committee for report – Doc 13483 – and
to the Rules Committee for opinion – Doc 13488).
18. Before that date, it is worth recalling that the Assembly
has decided on only one occasion to suspend the voting rights of
the members of a delegation, whose credentials had been challenged
on substantive grounds. The Russian delegation was sanctioned in
this way in April 2000, in connection with the conflict in Chechnya;
it recovered all its participation and representation rights in
January 2001 (Resolution 1241 (2001)).
19. It is also interesting to note, looking back a little further
into the past, that the Assembly, faced with the situation in Greece
following the 1967 military coup d’état and the installation of
the “colonels’ regime”, took the decision “not to recognise the
credentials of any Greek delegate purporting to represent the Greek
Parliament until such time as the Assembly is satisfied that freedom
of expression is restored and a free and representative parliament
is elected in Greece” (Recommendation 547 (1969), January 1969).
This decision was taken a few months before Greece’s withdrawal
from the Council of Europe (December 1969 – November 1974).
20. Similarly, bearing in mind the situation in Turkey following
the 1980 coup d’état, the Assembly decided in May 1981 not to “envisage
the prolongation of the term of office of the Turkish delegation”
(Order 398), and then, in September 1983, that the elected parliament
“will not be able to be considered as representing the Turkish people
in a democratic manner, and could not therefore validly constitute
a delegation to participate in the work of the Parliamentary Assembly”
(Resolution 803).
21. These two decisions are doubtless atypical but illustrate
the Assembly’s ability to react to the violation by a member State
of its obligations under the Statute and to sanction the parliamentary
delegation of the member State in question.
3 Conclusion
22. The Committee on Rules of Procedure,
Immunities and Institutional Affairs considers that the proposal included
in the draft resolution presented by the Monitoring Committee not
to ratify the credentials of the Azerbaijani delegation is an option
compliant with Rule 10.1 of the Assembly’s Rules of Procedure.
23. If the proposal by the Monitoring Committee is carried by
the Assembly, there will be no delegation of the parliament of Azerbaijan
for the whole 2024 session. It goes without saying that if parliamentary
elections were to take place in the course of 2024, the newly elected
parliament of Azerbaijan would be able to submit credentials for
a new delegation according to the Rules.
