AS/Jur (2020) PV 07
11 January 2021
The Chairperson opened the meeting at 9.30 am and pointed out that the changes to the Assembly's Rules of Procedure, including those relating to quorum and speaking time, had been adopted at the Standing Committee meeting on 20 November 2020 and were already applicable.
[AS/Jur (2020) OJ 09 Rev]
Mr Mularczyk asked the Committee to remove item 3 from the agenda, as he thought that the report in question was not objective and required a rewrite. Ms Gasiuk-Pihowicz was against doing so and pointed out that the Polish government was responsible for the current legal chaos. Following a vote, the Committee rejected Mr Mularczyk's proposal.
MM Bashkin and Mallia thought that they would not be able to fully state their views on items 9 and 7 respectively in only two minutes and asked the Chairperson to allow them more speaking time. The Chairperson promised that he would do so if possible. Lord Balfe asked that item 5 be examined before the midday break.
Ms Rukavishnikova agreed with Mr Bashkin and asked the Committee to remove item 9 from the agenda. The rapporteur was against this proposal. Following a vote, the Committee rejected her proposal.
The agenda was adopted.
[AS/Jur (2020) PV 06]
The minutes of the meeting held by videoconference on 9 November 2020 were approved.
Rapporteur: Mr Andrea Orlando, Italy, SOC
[AS/Jur (2020) 40]
The rapporteur presented his report. At the request of the Polish delegation, he had taken part in a videoconference organised by the delegation with representatives of the courts and competent authorities on 1 December and wished to make some changes to the draft report as a result (in paragraphs 2, 12 and 51).
A discussion ensued with contributions from Ms Gasiuk-Pihowicz (who welcomed the report and pointed out that Poland's Supreme Court had recently lifted judicial immunity for judges Igor Tuleya and Beata Morawiec), MM Mularczyk (who stressed that the report offered no evidence of harassment of judges, the procedure for electing judges to the Constitutional Tribunal was unchanged since the Law and Justice party had come to power, the functions of Prosecutor General had already been merged with those of the Minister of Justice when Poland had joined the Council of Europe, the functions exercised by the presidents and vice-presidents of ordinary courts were above all administrative, there was no obligation for members of the National Council of the Judiciary to be elected by judges and some European countries did not even have such a council; he concluded that the report was a political document influenced by the opposition and certain judges), Kleinwächter (who was against adopting the report, doubted that it was objective given the lack of proof of harassment of judges, pointed out that judges could be elected by parliament and reminded the participants that the new president of Germany's Constitutional Court was a CDU politician) and Pociej (who suggested that Mr Kleinwächter go to Poland to see the real situation for himself and thanked the rapporteur for his report and Ms Gasiuk-Pihowicz for her comments).
The Chairperson put the preliminary draft resolution to a vote. A discussion on the amendments ensued with contributions from MM Mularczyk, Kleinwächter, Pociej and the rapporteur. The draft resolution was adopted. Mr Mularczyk announced his intention to lodge a dissenting opinion.
Rapporteur: Ms Alexandra Louis, France, ALDE
[AS/Jur (2020) 41]
The rapporteur presented her draft report. She requested the Committee to refer to the European Commission for Democracy through Law (Venice Commission) for an opinion on the compatibility with international human rights standards of a set of bills tabled in the Russian State Duma between 10 and 23 November 2020 seeking to amend the laws concerning so-called "foreign agents".
A discussion ensued with contributions from Ms Rukavishnikova (who said that in Russia "undesirable" NGOs were banned by national legislation and that it was possible, under the European Convention on Human Rights, to impose restrictions on freedom of association on grounds of public security), MM Zsigmond (who thought that the rapporteur's findings on the situation in Hungary were not substantiated and were politically motivated: the restrictions criticised related solely to NGOs receiving foreign funding, the Venice Commission's recommendations had been taken into account and some 60,000 NGOs were currently active in the country), Pociej (who welcomed the report, noted that the representatives of the countries where there were problems seemed to think that their legislation was faultless, and pointed out that it was easier to silence NGOs during a pandemic than in "normal" circumstances), Altunyaldiz (who emphasised the vital role of freedom of association and that the restrictions imposed were "proportionate" and "necessary in a democratic society" and therefore permissible under the Convention, stressed that terrorist organisations had infiltrated certain NGOs in Turkey and freedom of association was guaranteed by the constitution and respected by the authorities; accordingly, it was not appropriate to mention this country in the report), Lord Balfe (who stressed that NGOs always challenged the State and some countries, such as Hungary where the government ran smear campaigns against NGOs linked to the billionaire Georges Soros, had trouble accepting this, unlike the United Kingdom; he praised the report and the work of the Venice Commission), MM Kalchenko (who thanked the rapporteur for taking account of his comments regarding Ukraine but deplored a failure to mention the inclusion of the World Ukrainian Congress in the list of "undesirable" organisations in Russia and acts of political repression in eastern Ukraine) and Schwabe (who welcomed the report and stressed the need to support the activities of NGOs). The rapporteur replied that NGOs might be a nuisance for the State but that was their role; they had to participate in the game of democracy. She said that she had prepared her explanatory report in great detail and the World Ukrainian Congress was mentioned in it.
The Chairperson put the preliminary draft resolution and the preliminary draft recommendation to a vote. A discussion on the amendments ensued with contributions from Ms Rukavishnikova, MM Altunyaldiz and Zsigmond and the rapporteur. The draft resolution and draft recommendation were adopted. Following a vote, the Committee decided to refer to the Venice Commission for an opinion as suggested by the rapporteur.
Rapporteur: Lord Balfe, United Kingdom, NR
[AS/Jur (2020) 35]
The rapporteur presented his introductory memorandum. He pointed out that the systems of international humanitarian law and international human rights law complemented each other and that human rights protection did not cease in the event of an armed conflict. The European Convention on Human Rights had to be interpreted in the light of international humanitarian law where appropriate. Mr Vardanyan reminded the participants that he had tabled the motion for a resolution at the origin of this report and proposed that the question of the rights of victims of armed conflicts and the protection of cultural assets be examined. The Chairperson suggested that the question of protection of cultural assets should be examined by the Committee on Culture, Science, Education and Media.
To enable him to continue his work, the rapporteur requested the Committee's authorisation to organise a hearing with the participation of three experts. Agreed.
Rapporteur: Mr Jacques Maire, France, ALDE
[AS/Jur (2020) 39]
The rapporteur presented his introductory memorandum. He outlined Mr Navalny's political activities in Russia and the Russian authorities' response, as well as the two European Court of Human Rights judgments concerning violations of Mr Navalny's right to liberty and security and his right to a fair trial. Analyses carried out by German, French and Swedish laboratories, as well as the Organisation for the Prohibition of Chemical Weapons, found that Mr Navalny had been a victim of an attempt to poison him with a Novichok-type nerve agent, a banned substance under the Chemical Weapons Convention. The rapporteur wished to compile as much information as possible and examine the legal aspects of this poisoning attempt. He requested authorisation to carry out a fact-finding visit to Germany and organise a hearing with experts at a future meeting, as well as permission to receive information from sources on condition of anonymity.
A discussion ensued with contributions from MM Bashkin (who asked who would have benefited from such a crime and why a chemical weapon would have been used, pointed out that the opponents of the Nord Stream 2 project might be behind these events, that Germany had not replied to Russia's requests for mutual legal assistance and that there had been no traces of chemical weapons in this case), Fabrichnyy (who said that, following a decision of the prosecutor general, the Magnitsky law was no longer applicable in Switzerland, thought that the introductory memorandum was pointless and contained no legal foundation and that Russia was willing to cooperate with regard to mutual legal assistance, and asked for a vote on the rapporteur's proposals), the Chairperson (who said that the Swiss prosecutor's decision regarding the application of the Magnitsky law had been wrongly interpreted), Lord Balfe (who urged great caution in this affair and observed that Russian citizens had been highly effective when it came to eliminating their fellow citizens in London) and Mr Bashkin again (who asked Lord Balfe to refrain from generalisations that were insulting to other countries). The rapporteur replied that the Russian authorities had refused to open a judicial investigation. Mr Bashkin stressed that the Russian authorities wished to know who had sought to kill a Russian citizen.
Following a vote, the Committee approved the rapporteur's requests.
Rapporteur: Mr Pieter Omtzigt, Netherlands, EPP/CD
[AS/Jur (2020) 42
AS/Jur/Inf (2020) 08
The rapporteur presented his report on follow-up to Resolution 2293 (2019) and his draft statement to which he wished to add a third point, and requested that both documents be declassified. He deplored the lack of progress to follow up the Assembly resolution regarding three areas: 1) the rule of law; 2) the ending of impunity and 3) justice for the victims of the murder of Daphne Caruana Galizia.
Mr Mallia requested the Chairperson's permission to speak for longer than two minutes as this item concerned his own country. The Chairperson agreed as long as this was kept within reasonable bounds.
Mr Mallia pointed out that Malta had taken a number of measures to improve compliance with the principle of the rule of law and had cooperated with international bodies so that light could be shed on the circumstances of this murder. He disagreed with the rapporteur's conclusions.
[Appointment procedure document
Mandate: General Rapporteur on the abolition of the death penalty]
General Rapporteur: General Rapporteur on the abolition of the death penalty: new appointment owing to the end of Mr Titus Corlăţean’s mandate (Romania, SOC) on 13.12.2020
The Committee appointed Mr Vladimir Vardanyan (Armenia, EPP/CD) by acclamation and heard from him a statement of no conflict of interest.
Mr Pociej congratulated Mr Vardanyan.
Rapporteur: Ms Thorhildur Sunna Ævarsdóttir, Iceland, SOC
[AS/Jur (2020) 27]
Hearing with the participation of:
The rapporteur reminded the participants that the Committee had discussed her introductory memorandum in September and introduced the experts. She envisaged a second hearing with representatives of the Russian authorities.
Mr Davidis provided information on the list of political prisoners compiled by Memorial, explaining that the criteria used by that organisation had been drawn up by a group of NGOs and human rights defenders in line with recommendations from Council of Europe bodies. A "political prisoner" or "prisoner of conscience" was someone who was detained for political motives, had been convicted in violation of the right to a fair trial and had clearly not committed an offence or was blamed for an offence committed by another person. Memorial used an additional filter to exclude anyone having used violence. Memorial listed 348 political prisoners, of whom 285 were detained on religious grounds and a number of others were Crimean Tatars. Its list was verified by defence lawyers, but Memorial did not have access to all the criminal case files.
Mr Brace talked about the persecution of Jehovah's Witnesses, who had been present in Russia since the 19th century. As of April 2017, they had been regarded as "extremists" and their assets had been confiscated. Jehovah's Witnesses had been persecuted in various ways: tortured, arrested, held in custody or subjected to unfair judicial proceedings. Last October, when examining the execution of a European Court of Human Rights judgment, the Committee of Ministers had called on Russia to respect the freedom of religion of Jehovah's Witnesses, review criminal cases against them and amend its legislation on "extremism".
Ms Moskalenko said that, as a lawyer, she defended people who were prosecuted for political motives, including those who exercised freedom of religion or were accused on the basis of legally inadmissible evidence or anonymous testimony. These individuals were often sentenced to many years in prison if not life imprisonment, such as one Jehovah's Witness who had been sentenced to 24 years. She also stressed that there were reprisals against lawyers and human rights defenders. (the statements made by the three experts are available in print form from the Secretariat).
A discussion ensued with contributions from MM Zingeris (who asked whether the latest amendments to the Russian Constitution, allowing the Constitutional Court to declare that the execution of a European Court of Human Rights judgment would be contrary to the Constitution and worsened the human rights situation in Russia), Bashkin (who emphasised that this was a painful question for Russian society in view of its Stalinist past, thought that there was no clear concept of "political prisoners", who were often ordinary criminals, and said that the head of the Russian delegation to the Assembly, Mr Tolstoy, was opposed to the preparation of this report), Kalchenko (who asked on what basis the Russian authorities were seeking to remodel European values, whether the increased number of political prisoners was linked to the calling into question of those values and if the European Court of Human Rights was being defied in Russia) and Vlasenko (who recalled the instances of political persecution in Ukraine between 2011 and 2013 and thought that Russia was responsible for such persecution in Crimea). The rapporteur asked Mr Davidis for details of the criteria used by Memorial and if he was threatened by the authorities because of his work; asked Mr Brace why Jehovah's Witnesses were threatened in Russia and whether this was the case in other countries, and asked Ms Moskalenko whether there was a link between the severity of sentences and the lack of proof. She replied to Mr Bashkin that the criteria relating to "political prisoners" were set out in her introductory memorandum which referred to the relevant Assembly resolution. Mr Davidis replied that his organisation was targeted on the basis of the legislation on foreign agents and that NGOs were under the control of the authorities. Memorial's criteria, like those of the Assembly, excluded people who incited others to violence. Regarding the amendments to the Constitution, these questions had already been ruled on by the Constitutional Court itself. Mr Brace said that Jehovah's Witnesses were a scapegoat in Russia, where they were not liked by the Orthodox Church. Elsewhere, they were persecuted more or less in the same way in Eritrea and North Korea and, to a lesser extent in Bulgaria, Azerbaijan and Armenia. Ms Moskalenko added that Article 15 of the Russian Constitution still guaranteed the execution of decisions of international judicial bodies but she was still concerned by the latest constitutional amendments. Pluralism was under threat in Russia and the authorities wanted obedient citizens. There were abuses of power, notably when peaceful protesters were detained and people who opposed those in power were treated like criminals.
Rapporteur: Ms Alexandra Louis, France ALDE
[AS/Jur (2020) 32]
Hearing with the participation of:
Following a vote, the Committee approved the rapporteur's proposal that the Venice Commission be asked for an opinion on the compatibility with European standards of using certain criminal law provisions against peaceful protesters and members of the political opposition.
The rapporteur presented her introductory memorandum and introduced the experts. She pointed out that Belarus aspired to become a Council of Europe member and it was cooperating with some of the Organisation's bodies. Following the controversial presidential election the previous August, protests were ongoing in the country, and the United Nations High Commissioner for Human Rights, Michelle Bachelet, had told the UN Human Rights Council that the human rights situation had further deteriorated.
Professor Benedek explained how the Moscow Mechanism worked. An OSCE report prepared in October had confirmed the allegations of electoral fraud as well as numerous human rights violations (cases of arbitrary detention, cases of torture, persecution of journalists, blocking of the Internet etc). The report contained recommendations for the Belarusian authorities, calling on them to organise new, genuine presidential elections, cease violations of protesters' human rights and reprisals against striking workers, lawyers and journalists, release people who had been arbitrarily detained and ensure respect for the right to a fair trial as well as freedom of access to the Internet. The expert thought that the Venice Commission could provide the Belarusian authorities with advice on implementing democratic reforms and that an international investigation should be carried out to clarify the circumstances of human rights violations and end impunity for the perpetrators (his statement is available in print form from the Secretariat).
Mr Stefanovich said that the human rights situation was deteriorating, with more than 4,000 people arrested following the latest protests. Around 500 individuals had been placed in detention centres, often for political motives. He stressed that the protests had been peaceful. His organisation was documenting the victims of human rights violations and had only a few international mechanisms at its disposal, including the UN special rapporteur, not accepted by the authorities, and the Universal Periodic Review, whose effectiveness depended on the goodwill of the authorities. The authorities also rejected the Moscow Mechanism.
Ms Tsikhanouskaya thought that the Council of Europe had reacted swiftly to the events in her country. The situation had not improved since September, with over 1,500 cases of torture, some 160 political prisoners and the deployment of teargas on a massive scale by the police. Ms Tsikhanouskaya welcomed Professor Benedek's proposals, the OSCE report and Viasna's documentation work. She stressed the need to set up a mechanism based on the principle of universal jurisdiction to try the perpetrators of human rights violations and said that she was already working on this in conjunction with the Lithuanian authorities (her statement is available in print form from the Secretariat).
Mr Hulak also pointed to the worsening situation in Belarus. There had been no criminal investigations into human rights violations. Protesters had been fined or placed in provisional detention. Public institutions had lost their legitimacy owing to the violations of electoral law. The Venice Commission was the only Council of Europe body with which the Belarusian authorities were cooperating. Mr Hulak hoped that the Council of Europe would devise standards making it possible to set up a judicial mechanism for investigating human rights violations, involving certain neighbouring countries (Poland, Lithuania and Latvia).
A discussion ensued with contributions from MM Zingeris (who asked Ms Tsikhanouskaya what international organisations could do to help Belarusian society implement democratic reforms), Fabrichnyy (who saw this as interference in the internal affairs of Belarus and a violation of the Belarusian people's right to development) and Pociej (who saw that as a misguided view of freedom and recalled that in Poland the communist regime had used similar arguments against intellectuals who had been in contact with the West) and the rapporteur (who stressed that the experts' statements had been consistent and this was not interference in the country's internal affairs but a response to human rights violations, expressed her support for persecuted journalists and backed the idea of a universal judicial mechanism and an international investigation). Mr Hulak pointed out that all rights were indivisible. As the Belarusian economy was deteriorating, economic rights were being jeopardised, since those who went on strike were punished and workers were emigrating to other countries. His organisation had made its views clear to parliamentarians after the presidential elections. The authorities had proposed constitutional reforms, but their proposals were not based on dialogue with society. Mr Stefanovich said that his organisation would also like a dialogue on constitutional reform with the authorities, but they had ignored this request and continued to resort to violence. Interference in the internal affairs of the country came about when President Lukashenko requested help from Russia. Professor Benedek stressed the necessity of international collaboration on the question of accountability.
Rapporteur: Ms Thorhildur Sunna Ævarsdóttir, Iceland, SOC
Follow-up to Resolution 2322 (2020)
The rapporteur said that she had written a letter on 7 October to the head of the Azerbaijani delegation, Mr Seyidov, requesting information on the implementation of Resolution 2322 (2020) but had received no reply, despite the fact that the resolution required this delegation to cooperate with the rapporteur to ensure follow-up. She asked the Committee to instruct its Chairperson to write to Mr Seyidov, asking him to reply to the rapporteur's letter of 7 October. Agreed.
Rapporteur: Mr Ziya Altunyaldiz (Turkey, NR)
[AS/Jur (2020) 43]
Consideration of an introductory memorandum
The rapporteur presented his introductory memorandum. He wished to examine how the relevant Council of Europe conventions (the Convention on the protection of the environment through criminal law and the Convention on civil liability for damage resulting from activities dangerous to the environment) could be given renewed attention and whether they had to be revised or replaced by new legal instruments that were better suited to the current challenges linked to the climate crisis. He requested the Committee's authorisation to hold a hearing with a maximum of three experts at a future meeting and to send a questionnaire to national parliaments via the European Centre for Parliamentary Research and Documentation (ECPRD). Agreed.
A discussion ensued with contributions from Mr Pociej (who welcomed the rapporteur's initiative in undertaking work on a subject of general interest that did not just concern his own country and said that Poland had progress to make in the area in question), Ms Ævarsdóttir (who expressed her support for the rapporteur in this work, which would have an impact on the living conditions of future generations) and the Chairperson (who also voiced his support).
The Committee decided to open to the public the following hearings foreseen for the next meeting, provided that the invited experts did not object:
Plenary Committee (Since the meeting of 8 December 2020, the Chairperson has convened an additional meeting for 19 January 2021):
The Committee on Legal Affairs and Human Rights, meeting by videoconference on 8 December 2020, with Mr Boriss Cilevičs (Latvia, SOC) in the Chair, as regards:
Ms Karinna Moskalenko, Director, International Protection Centre, Moscow, Russian Federation
Mr Sergey Davidis, head of the programme "Support of Political Prisoners", Memorial Human Rights Centre, Moscow, Russian Federation
Mr Tony Brace, Chair, Religious Freedom Subcommittee, The European Association of Jehovah's Witnesses, Chelmsford, UK;
Professor Wolfgang Benedek (Austria), special rapporteur, OSCE Moscow Mechanism
Mr Valentin Stefanovich, Board Member, Human Rights Centre Viasna
Ms Sviatlana Tsikhanouskaya, Leader of Democratic Belarus
Mr Aleh Hulak, Chairman of the Belarusian Helsinki Committee, Minsk, Belarus;
Poisoning of Alexei Navalny (Rapporteur: Mr Jacques Maire, France, ALDE);
Addressing issues of criminal and civil liability in the context of climate change (Rapporteur: Mr Ziya Altunyaldiz, Turkey, NR);
Addressing the issue of Daesh foreign fighters and their families returning from Syria and other countries to the member States of the Council of Europe (Rapporteur: Mr Pieter Omtzigt, the Netherlands, EPP/CD);
- Letter from the Chairperson of the Committee on Rules and Procedure, Immunities and Institutional Affairs to the President of the Assembly (regarding the procedure followed by the Committee to adopt a declaration on the human rights situation in Belarus at its meeting on
9 September 2020): took note of the letter;
- “Magnitsky case”: took note of Mr Zingeris’ invitation to members to sign a written declaration on this issue;
- Follow-up to Assembly Resolution 2297 (2019), “Shedding light on the murder of Boris Nemtsov” (Rapporteur: Emanuelis Zingeris, Lithuania, EPP/CD): took note of the rapporteur’s intention to provide information on the existence of new evidence concerning the murder of Boris Nemtsov in writing to the Committee;
- week of 18 January 2021 (t.b.c.)
- during the Assembly’s 1st part-session of 2021 (25-28 January 2021)
- 11 March 2021, t.b.c.
- during the Assembly’s 2nd part-session of 2021 (19-23 April 2021)
- 10 May 2021, t.b.c.
- during the Assembly’s 3rd part-session of 2021 (21-25 June 2021)
- 14 September 2021, t.b.c.
- during the Assembly’s 4th part-session of 2021 (27 September - 1 October 2021)
- 5 November 2021, t.b.c.
- 7 December 2021, t.b.c.
Liste de présence (tableau) : A GÉRER