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Politicians need a particularly high level of protection of freedom of speech, but such freedom is not unlimited

“Politicians need a particularly high level of protection of freedom of speech and freedom of assembly, both in parliament and when speaking to their constituents, but that freedom of speech is not unlimited and should be enforced while ensuring full respect of rule of law,” today said the Council of Europe Parliamentary Assembly (PACE), adding that hate speech as well as calls for the violent overthrow of democratic institutions are not protected. Everyone, and in particular politicians, has the right to make proposals whose implementation would require changes of the constitution, “provided the means advocated are peaceful and legal”, the Assembly underlined.

Debating a report on ‘Should politicians be prosecuted for statements made in the exercise of their mandate?’, prepared by Boriss Cilevičs (Latvia, SOC), the parliamentarians referred specifically to the situation in Turkey and Spain.

As regards Turkey, the adopted resolution notes that numerous politicians “are incarcerated for statements they made in the exercise of their political mandates” and that the independence of the Turkish courts “has been put more and more into doubt”.

The text calls on the Turkish authorities to urgently release Selahattin Demirtaş, the President of one of the main opposition parties,” thereby implementing the European Court of Human Rights’ judgement and the decision of the Committee of Ministers” of the Council of Europe.

The Turkish authorities, the text says, should “take urgent steps to restore the independence of the judiciary”, refrain from “systematically prosecuting politicians for terrorism-related offenses whenever they refer to the Kurdish people or the Kurdish region” and re-examine all cases of “politicians prosecuted or even convicted because of statements they made in the exercise of their political mandate”.

As regards Spain, the Assembly expressed its full respect for the Constitutional order of the State. It underlined its respect for the independence of the Spanish tribunals to solve pending appeals, respecting as well the right to appeal to the European Court of Human Rights in due course.

It recognised that the “mere expression of pro-independence views is not a ground for criminal prosecution”, but recalled that several senior Catalan politicians were prosecuted and eventually sentenced to long prison terms for sedition and other crimes, “inter alia for statements made in the exercise of their political mandates”, in support of the unconstitutional referendum on the independence of Catalonia in October 2017.

The resolution calls on the Spanish authorities to reform the criminal provisions on rebellion and sedition in such a way that they “cannot be interpreted so as to undo the decriminalisation of the organisation of an illegal referendum” in 2005 or lead to “disproportionate sanctions for non-violent transgressions”, to “consider pardoning or otherwise release” from prison the Catalan politicians convicted for their role in the organisation of the unconstitutional referendum and the related peaceful mass demonstrations, and to “consider dropping extradition proceedings against Catalan politicians living abroad who are wanted on the same grounds”. The authorities should also refrain from requiring the detained Catalan politicians to disown “their deeply held political opinions” in exchange for a more favourable prison regime or a chance of pardon; they may however be “required to undertake to pursue their political objectives without recourse to illegal means”.

The adopted text calls on the Spanish authorities to enter into an open, constructive dialogue with all political forces in Catalonia, including those opposing independence, in order to strengthen the quality of Spanish democracy, and reach a compromise that enables Spain, a strong European democracy, to settle political differences, including on sensitive issues, through the authority of the rule of law, good governance and total respect of human rights, without recourse to criminal law, but in full respect of the constitutional order of Spain.