B Explanatory
memorandum by Ms Bemelmans-Videc, rapporteur
1 Introduction
1. At the plenary sitting on 24 June 2009, during the
discussion on “The situation of human rights in Europe: the need
to eradicate impunity”, a member of the Parliamentary Assembly,
Ms Ganira Pashayeva, referred to a book entitled “Revival of our
souls”, allegedly written by Mr Zori Balayan, and cited a number
of quotations concerning the alleged participation of the author
in the massacre committed against Azerbaijanis.
Note
2. In a motion for a resolution,
Note Mr
Davit Harutyunyan and others reacted by stating that Mr Balayan
had not written the book and that the quotations in question constituted
an act of slander, which was aggravated by the accusation of murder
allegedly committed by Mr Balayan. They asked the Committee on Rules
of Procedure, Immunities and Institutional Affairs to propose amendments
to the Rules of Procedure in order to provide safeguards against
the dissemination of false and defamatory information and to protect
the rights and reputation of injured persons, regardless of whether
or not they were members of the Assembly. The motion was referred
for report to the Committee on Rules of Procedure, Immunities and
Institutional Affairs on 29 January 2010.
3. The present report examines the current framework set out
in the Assembly’s Rules of Procedure relating to the protection
of a person's honour and reputation, considers whether the current
wording of Rules 21 and 34 provides for appropriate reaction to
attacks made on a person’s reputation and honour, and puts forward
proposals to improve the preventive mechanisms and sanctions for
such attacks.
2 Extent
and value of the freedom of political speech in the Parliamentary
Assembly
4. The Parliamentary Assembly was set up as a platform
to enable the people of Europe to communicate through their legitimately
elected representatives. The Assembly constitutes a forum where
topical, often sensitive issues are discussed from different perspectives.
It brings together not only different political forces but also
national delegations of states which have been involved in armed
conflicts. Freedom of expression is a constitutional principle in
most European states and should not be undermined or limited, especially
where exercised by elected representatives. Hence the importance
of having effective rules which, on the one hand, enable the smooth
conduct of proceedings in an elected assembly and, on the other,
have a deterrent effect on those who misuse their parliamentary
rights and privileges, such as their freedom of speech.
5. Political life in European countries is brimming with instances
in which strong statements or allegations of criminal activities
by high-ranking officials made in the course of a parliamentary
debate have led to further in-depth investigations and, finally,
to the dismantling of criminal activities or the identification
of institutional shortcomings. In contrast, other statements, quickly
spread by the media, have ruined reputations or political careers
and have had a devastating effect on people’s private lives. This
is why freedom of expression should be exercised in the public interest,
but with due regard for the duties and responsibilities inherent
in this freedom.
6. The European Court of Human Rights (hereafter “the Court”)
has on several occasions confirmed the paramount role played in
a democratic regime by political parties enjoying the freedoms and
rights enshrined in Article 10 of the European Convention on Human
Rights (ETS No. 5, hereafter “the Convention”) and the essential
role of political parties in ensuring pluralism and the proper functioning
of democracy. There can be no democracy without pluralism. It is
for that reason that freedom of expression is applicable not only
to “information” or “ideas” that are favourably received or regarded
as inoffensive or as a matter of indifference, but also to those
that offend, shock or disturb.
Note In
return, politicians are required to display a greater degree of
tolerance and openness toward criticism.
Note
7. However, persons taking part in a public debate on a matter
of general concern are also required not to overstep certain limits.
8. The right to freedom of expression is limited or indeed not
applicable when it comes to hate speech,
Note which
is punishable in most European countries. Even though there is no
universally recognised definition of hate speech, there are several
criteria,
Note such as public incitement to violence,
hatred or discrimination, which can be used to identify it. Certain
attacks on a group or a population could be considered xenophobic
or racist even though they may not contain an explicit call for
violence.
Note As a
general rule, most national legislation provides for the possibility
of banning or dissolving a political party for incitement to hatred
and violence towards a person or a group of persons because of their
race, origins, etc.
9. The Court also pays great attention to the protection of reputation
and honour which is considered to be a part of the right to respect
for private life and is thus protected under Article 8 of the Convention.
Note Therefore, defamation and insult
could be considered as a ground for permissible restriction of the
freedom of expression as protected by Article 10.
10. Nor is there any common definition of insult or defamation.
Note In
general terms, defamation may be a statement in writing or in other
forms, for example orally or by means of gestures. In order to be
considered defamatory, an assertion must be public, harm a person’s
reputation
Note and
be false.
Note An insult,
in contrast to defamation, does not imply an allegation of a specific
fact. The requirement of truthfulness does not mean that any statement
which is not based on facts should be penalised. It has been found
to be contrary to Article 10 of the Convention to require proof
of the truth of a value judgment. However, even where a statement amounts
to a value judgment, there must be a sufficient factual basis to
support it, failing which it will be considered excessive.
11. Nonetheless, these limitations have to be considered at a
different level in the context of a parliamentary body, especially
the Parliamentary Assembly of the Council of Europe which comprises
delegations from 47 countries. Indeed, what may be regarded as permissible
in a speech, the limits laid down and the sensitivity felt in respect
of certain topics or expressions are deeply rooted in the political
and historical context and vary from one country to another. Moreover,
the substance of a statement cannot be examined without having regard
to the context of a debate.
12. Consequently, when considering the possibility of introducing
additional measures into the Rules of Procedure to strengthen the
protection of a person’s reputation and honour, the Committee on
Rules of Procedure, Immunities and Institutional Affairs must ensure
that no unnecessary restrictions are imposed on freedom of expression.
3 Internal Parliamentary
Assembly framework to ensure standards of conduct
13. If a statement of a member of the Assembly needs
to be questioned, it is fully justified that, given the member’s
special status and the possible political interests at stake, the
President of the Assembly is the first to act. Measures which may
be taken by the President to react immediately to words or expressions
(or any other behaviour) which prejudice orderly debate are stipulated
in Rule 21 on the maintenance of order. The Committee on Rules of
Procedure, Immunities and Institutional Affairs must therefore consider
whether the existing provisions regulating public order during Assembly
sittings are sufficient or whether they need to be strengthened.
Further, it should also consider the issue of the maintenance of
order during committee meetings and the possibility of giving committee
chairpersons the necessary tools to secure the smooth conduct of proceedings
in committee.
3.1 Immediate measures
14. The Assembly's Rules of Procedure provide for several
measures to ensure the smooth conduct of proceedings.
15. Rule 21 on the maintenance of order provides that:
“21.1. The President shall call
to order any member of the Assembly who causes a disturbance during proceedings.
21.2. If the offence is repeated,
the President shall again call the member to order, and this shall
be recorded in the report of the debates.
21.3. In the event of a further
offence, the President shall direct the offender to resume his or
her seat or may exclude him or her from the Chamber for the remainder
of the sitting.
21.4. In serious cases the President
may propose to the Assembly a motion of censure, which shall involve immediate
exclusion from the Chamber for two to five sitting days. The member
upon whom a motion of censure is proposed shall have the right to
speak for a maximum period of two minutes before the Assembly decides.
21.5. The vote on a motion of
censure shall be taken without debate.
21.6. Words or expressions which
affront human dignity or which may prejudice orderly debate may
not be used. The President may order such words to be struck from
the report of debates. He or she may similarly strike from the report
words spoken by a member not called by him or her. The report of
the debates shall record any such decision.”
16. Moreover, Rule 34 on the right to speak authorises
the President to call to order a speaker who departs from the subject.
The President is entitled to forbid the speaker to speak during
the rest of the debate if there is a third call to order regarding
the same item.
Note
17. The following are examples of the use of such measures by
the President.
- In 1968, in
the course of the debate on the situation in Greece, a member referred
to cases of ill-treatment by Greek police officials and cited their
names. The President called the member to order, requesting him
not to touch on anything which was sub
judice inasmuch as those cases were under consideration
by the European Commission of Human Rights. Note
- In 1977, in the debate on the European Convention on the
Suppression of Terrorism, a member protested against allegations
made by the representative of the State of Israel who, by referring
to the case of Abou Daoud, reproached France for failing to comply
with international law and, in so doing, encouraging terrorism.
A member of the French delegation stated that such accusations were
contrary to the provision of the Rules of Procedure that forbade
the use of words whose meaning constituted an affront to human dignity, Note and
asked the President to strike those words from the record. The President was
of the opinion that the accusations were directed against government
policy and not against individuals and decided not to rule them
out of order. Note
- In 1986, in the debate on the use of human embryos and
foetuses for diagnostic, therapeutic, scientific, industrial and
commercial purposes, the President called to order a member who
had made a number of comments regarding members’ attitudes, on the
grounds that he did not have the floor to criticise the attitude
of other members of the Assembly. Note
- In 2006, in the debate on the policy of return for failed
asylum seekers in the Netherlands, a speaker making accusations
against Azerbaijan was interrupted and instructed by the President
to bring his speech into order. Note
- In 2011, during the debate on the implementation of judgments
of the European Court of Human Rights, the President called to order
two members who criticised the rapporteur for his lack of impartiality
having regard to his political commitment towards the Greek Cypriots. Note
18. There are comparable immediate measures in most of the parliaments
of Council of Europe member states, in which the Speaker may ask
a member to sit down, discontinue a speech, refuse to give the floor
or temporarily exclude a member from the Chamber.
19. The rules of procedure of certain parliaments contain a specific
reference or section dealing with similar measures to be applied
in the event of abusive speeches, contempt, insult or serious disturbances.
In some systems, a member who has been called to order is allowed
to provide his or her explanations at the end of the plenary sitting.
Note
20. The rapporteur notes that, unlike the European Parliament,
Note the Parliamentary Assembly, since
it was established, has not been confronted with any significant
or repetitive disruption of debates.
21. Moreover, contentious statements could also appear in writing
in official Assembly documents. In a written declaration tabled
during the January 2010 part-session,
Note the signatories criticised
“ambiguous statements” made by the oldest member of the Assembly
present “about Jews”. In a written declaration tabled at the April
2011 part-session,
Note the
signatories criticised members of the Moldovan Parliament whose opposition
to an anti-discrimination bill had been expressed “in language marked
by homophobia and intolerance”. Some Assembly members reacted by
tabling another written declaration,
Note pointing
to the damage which the “groundless” comments had allegedly caused
to the image of the Moldovan Parliament.
22. In accordance with Rule 52 of the Rules of Procedure, the
President is competent to examine the admissibility of written declarations
in the light of the conditions set out in Rule 52.2.
Note He or she may therefore rule
that such declarations are inadmissible.
23. In its
Resolution
1443 (2005), the Assembly noted that “there already exist
a number of safeguards preventing the Parliamentary Assembly from
becoming the forum of activities conflicting with the values of
the Council of Europe”. Moreover, in 2006, the Assembly introduced
a new paragraph to Rule 6 of the Rules of Procedure which henceforth
imposes the duty of each member of the Parliamentary Assembly to
subscribe to the principles and the values of the Council of Europe,
as mentioned in the Statute (
Resolution
1503 (2006)).
Note
3.2 Measures related
to the protection of the right to respect for private life
24. As mentioned above, the protection of reputation
and honour is part of the right to respect for private life which
is not explicitly mentioned in the Assembly's Rules of Procedure.
The Rules do, however, contain references to human dignity
Note and
confidentiality.
25. The confidentiality requirement entails an obligation for
members not to divulge details of discussions held in camera or
not to make public documents which have been classified. While the
debates of the Parliamentary Assembly – and all the Assembly’s related
official documents – are public,
Note it
should nonetheless be noted that, in general, Assembly committee
meetings are not public, unless a committee decides otherwise.
Note Members
of the Assembly who are not members of the committees in question
may attend their meetings, with the exception of meetings of the
Committee on the Honouring of Obligations and Commitments by Member
States (Monitoring Committee) and of the Sub-Committee on the Election
of Judges to the European Court of Human Rights. Those meetings
are open only to the members of those committees.
Note Moreover,
the minutes of committee meetings are not made public, and committees
may also decide to classify their documents confidential or restricted.
Note The obligation of confidentiality,
or indeed secrecy, applies equally to members of certain national
parliaments against whom penalties may be imposed if they fail to observe
this obligation.
Note
26. A breach of the confidentiality requirement does not automatically
affect a person’s reputation or honour. For this to take place,
the information revealed has to be harmful to some degree to a person’s
identity and integrity.
Note
27. To date, the Assembly's Rules of Procedure do not regulate
the use of personal information and do not provide for penalties
if the breach of confidentiality is harmful to a person’s reputation.
28. It should be noted that in most Council of Europe member states
data protection legislation is not applicable to parliamentary proceedings.
Note Few countries make provision for anonymising
data in the verbatim records.
Note Members
of the Assembly could be instructed to avoid the excessive diffusion
of private information which is not necessary or relevant for the
purpose of the debate.
Note Some rules of procedure
make the speaker of parliament responsible for ensuring that any
statement published in the records of the sitting does not contain
any inappropriate language. A similar approach could be adopted
in the Assembly by preventing members from interfering with the
right to respect for private life and by allowing the President
of the Assembly to prevent attacks on a person’s reputation and
honour, for example by deleting inappropriate statements from the
record of debates.
29. There are certain criteria, established by the European Court
of Human Rights in its judgments relating to freedom of expression,
which could help assess the existence and degree of an affront to
a person’s honour and reputation. These include, first and foremost,
the relevance of what has been said to the context of the debate.
Moreover, the status of the person against whom the remarks have
been made is also an important factor. It has been accepted on several
occasions that the limits of acceptable criticisms are wider as
regards a politician acting as a public personality than as regards
a private individual, since the former “inevitably and knowingly
lays himself or herself open to close scrutiny of his or her every
word and deed, in particular by a political adversary”.
Note Account must then be
taken of the terms employed, which, for example, should not exceed
the limits of political criticism, thus proscribing the use of insulting
remarks and gratuitous personal attacks.
Note In this connection, it should also be noted
that even where the veracity of a value judgment of a person in
the context of a debate cannot be demonstrated, it may be excessive
if there is no factual basis to support it.
Note The above
criteria could also be transposable to the President’s assessment
of the admissibility of a written declaration.
30. In the light of the above, the following amendment to Rule
21.6 could be considered:
Note
“Words or expressions which affront
human dignity, or undermine the right
to respect for private life, or which may prejudice orderly
debate shall not be used. The President may order such words to
be struck from the report of debates. He or she may similarly strike
from the report words spoken by a member not called by him or her.
The report of the debates shall record any such decision.”
3.3 Disciplinary measures
31. Most of the rules of procedure of national parliaments
provide for dissuasive or disciplinary measures which may result
in the exclusion from the plenary sitting of a member whose conduct
is particularly abusive or dishonourable. This is also the case
in the Parliamentary Assembly.
32. In most countries, it is up to the speaker of parliament or
a member who has been personally affected by the allegedly dishonourable
statement to refer the request to a relevant body. A civil servant
or a private person (who is not a member of parliament) usually
has no right of action.
33. The speaker of parliament or a collegiate body (the Bureau/Presidium,
an existing committee having a special mandate
Note or an
ad hoc committee)
Note could
carry out an investigation into the alleged unlawful conduct of
a member of parliament. The decisions taken following this procedure
are often published in the official gazette.
34. Most parliaments provide for an adversarial procedure enabling
the “perpetrator” to put forward his or her explanations.
Note Some
parliaments provide for an appeal body if the decision to apply
a sanction to the member concerned is not taken by a collegiate
body.
Note
35. The range of penalties which may be imposed on a member include
reprimand, forfeiture of the daily subsistence allowance and suspension
from participation in all or some of the activities of parliament
for a given period.
36. The relevant body is required to investigate the breach of
the provisions of the code of conduct or the rules of procedure
(which often contain a specific chapter concerning the maintenance
of discipline during the sitting).
Note
37. The procedure laid down in Rule 21.4 of the Assembly’s Rules
of Procedure provides for the exclusion, by a collegiate decision,
of a member of the Assembly for two to five days of sitting. The
exclusion is proposed by the President and voted on the spot by
the Assembly after the member concerned has been allowed two minutes
to present his or her observations. It should be noted that this
procedure has never been used in the Parliamentary Assembly. However,
in the rapporteur’s view, this procedure serves a twofold purpose:
it offers the possibility of sanctioning, if need be, any cases
of unacceptable behaviour and, at the same time, it plays an important
deterrent role.
3.4 Committee meetings
38. The rapporteur notes that there is a set of measures
available to committees enabling the mitigation of any adverse impact
on a person’s reputation or honour, should any statement be made
or personal information revealed during a committee meeting. Committee
meetings are held in private and access to these meetings can be
limited to Assembly members only (see paragraph 26 above).
39. It should be noted, however, that the Rules of Procedure do
not specifically regulate the maintenance of order during committee
meetings. Nonetheless, since Rule 45.1 states that “except as otherwise
provided, procedure in committee shall follow that in the Assembly”,
Rule 21 on the maintenance of order in the Chamber may apply to
committee meetings as well.
40. The Committee on Rules of Procedure considers it useful to
have an explicit mention in the Rules that the same set of measures
referred to in Rule 21 shall be made available to committee chairpersons.
41. Accordingly, the committee proposes that Rule 45.6 relating
to the procedure in committee be amended as follows:
“45.6. The chairperson shall
open, suspend and close the meeting and shall direct the committee's
debates. He or she may take part in the committee’s debates. He
or she does not participate in a vote except in the case of a tie.
He or she shall ensure observance of the Rules and maintain order.”
3.5 Actions/sanctions
by the political groups
42. The political groups or parties could also exercise
influence over their members since they often have their own rules,
including those regarding conduct, which might provide for penalties,
including the exclusion of a member from the group.
Note
4 Actions available
to persons allegedly injured
43. The possibility of directly challenging the statements
made in the course of a debate in plenary sittings or meetings of
Assembly bodies is limited, especially when the challenge comes
from a non-member of the Assembly. Accordingly, a proposal could
be made to add a rule which would lay down the procedure enabling any
person directly concerned by a statement to express disagreement
with it.
4.1 Libel proceedings
and parliamentary immunities
44. Given their specific privileges, it is difficult
to take any action against parliamentarians using conventional remedies,
insofar as a member of a parliament can be made accountable only
by the parliament itself. However, any person who has allegedly
been affected (member of parliament, individual
Note or
legal persons) has the theoretical possibility of bringing an action
against a parliamentarian for libel, defamation or any other offence
against a person’s honour and reputation, provided that the procedural
conditions are complied with and the immunity of the parliamentarian
concerned is lifted by the parliament. Most parliaments in Europe
do not provide for the possibility for a member to waive immunity
of his or her own free will, since immunity is considered as being
granted not to an individual member but to the parliament as a body,
in order to enable it to function without hindrance.
Note
45. There are two categories of parliamentary immunity: first,
“non-liability” in respect of judicial proceedings for opinions
expressed and votes cast in the discharge of their parliamentary
duty and, second, “inviolability”,
Note which protects members against
arrest, detention or prosecution for offences unrelated to their parliamentary
duties.
Note
46. On a number of occasions, the Assembly has addressed the issue
of the immunity of its members,
Note in particular
in a 2003 comprehensive report of the Committee on Rules of Procedure,
Immunities and Institutional Affairs,
Note which details the conditions for waiving
the immunity of Parliamentary Assembly members and Substitutes.
47. The procedure for lifting immunity is generally the same.
It is usually provided for in the parliaments’ rules of procedure.
It is set in motion by a proposal or a request by the competent
public authority (in most cases the principal state prosecutor),
the injured party or the parliamentarian concerned. The request
is transmitted to the speaker of parliament, either directly or,
in certain cases, through another authority (minister of justice, prime
minister), then examined by a special or ad hoc parliamentary committee,
which gives an opinion after hearing the member concerned. It is
then for the full Chamber to decide, with or without a debate, in
private or in public, whether or not to lift the immunity.
48. One of the controversial questions which arises with regard
to immunities is the possible consequences of the exercise of freedom
of expression. In several European countries, “non-liability” does
not cover offences of defamation. The rapporteur notes, however,
that the general trend is in defence of immunity if the impugned statements
are made in the course of a parliamentary debate, even where they
seriously affect a person’s life.
Note
49. Rule 65 of the Assembly’s Rules of Procedure, which was introduced
by
Resolution 1325 (2003) on
the immunities of members of the Parliamentary Assembly, authorises
the Assembly to examine a request to waive immunity submitted by
a competent authority in the course of proceedings instituted at
national level, should it concern an action for libel or defamation.
Accordingly, the rapporteur believes that, as far as the waiver
of immunity is concerned, no additional provisions are necessary.
4.2 Right of reply
50. This right, which takes on various forms and is defined
in numerous ways, is to be found in a number of Commonwealth parliaments
Note and can be exercised
either by a member of parliament or any other person. It provides
for the possibility of putting forward one’s own viewpoint in order
to refute an allegation.
Note However, if the right
of reply is not exercised immediately, it has limited effect and
questionable dissuasive impact on members who abuse their freedom
of speech.
51. This right is of great importance, especially when exercised
by non-members of assemblies who often have very limited means of
action. It allows individuals or legal persons who believe that
they have been adversely affected by the statement of a parliamentarian
to have an opportunity to formally respond and to have that response
incorporated in the parliamentary record.
Note
52. A party considering himself or herself injured shall submit
a request in order to have his or her statement drafted in response
to the impugned statement included in the minutes. A parliamentary
committee examines the written statement to ensure that it contains
no defamatory or insulting references or breach of privacy requirements.
The committee then decides whether or not to publish the statement,
without necessarily examining its merits or truthfulness.
53. Even though the effectiveness of this procedure is often undermined
by the length of time required to take the decision to incorporate
the statement into the minutes, it provides an alternative to a
formal procedure. It allows any person to react to a statement without
first instituting proceedings.
54. The rapporteur would recommend further consideration of the
possibility for any individual or legal person to mark his or her
disagreement with a statement made in the course of a debate which
has affected him or her directly. A fair balance should be struck
between, on the one hand, the possible negative consequences which
the statement might have on the person’s reputation, and, on the
other, the difficulties which may arise from the systematic examination
of the request to incorporate in the record a statement in response.
In the light of the above, the following procedure could be considered:
- Any member of the Assembly who
has been named or referred to directly and considers that his or
her reputation has been adversely affected by a statement made in
the course of a debate by another member may ask the President of
the Assembly to take the floor at the end of the debate for not
more than two minutes. The President has the discretion to decide
on how to respond to such a request. Note He or she
may ask the member who made the statement to provide an explanation.
- Any person who has been named or referred to directly
and considers that his or her reputation has been adversely affected
by a statement made in the course of a debate by a member of the
Assembly may submit a written request to the President of the Assembly
for an appropriate response to be included in the record.
- The written request shall be reasoned, make reference
to the impugned statement in the record and shall not contain any
vexatious or offensive wording; it shall be submitted within three
months of the date of the sitting during which the statement at
issue was made.
- The President shall examine the request and decide:
a either to include in the
record a note in respect of the impugned statement along the lines
of the following model: “By letter dated …, [person’s name] disagrees
with the assertion/statement appearing in this record, on the ground
that …”;
b or not to include such a note.
- This provision shall
not apply if the words spoken have been struck from the record in
accordance with Rule 21.6.
5 Conclusions
55. The Committee on Rules of Procedure, Immunities and
Institutional Affairs has been invited to consider whether the Assembly’s
Rules of Procedure provide adequate effective measures regulating
cases of attacks on a person's honour and reputation. Under Rule
21, the President of the Assembly is the guarantor of the smooth
conduct of plenary sittings.
56. However, there are limited possibilities for directly challenging
statements made in the course of a debate in plenary sittings or
the meetings of Assembly bodies which harm a person's honour and
reputation, especially when the challenge to a statement comes from
a non-member of the Assembly.
57. At its meeting on 21 June 2011, the committee examined the
preliminary draft resolution presented by the rapporteur. It agreed
on the following recommendations to the Assembly:
- to amend Rule 21 of the Rules
of Procedure so that its provisions also cover affronts to a person’s reputation
and honour through violation of the right to respect for private
life (see paragraph 30);
- to introduce a specific provision in the Rules of Procedure
on the maintenance of order relating to the procedure in committee
(see paragraph 41);
- to introduce a right to reply by establishing a new procedure
enabling any person directly concerned by a statement to express
disagreement with it (see paragraph 54).
58. The amendments proposed to the Rules of Procedure could enter
into force at the opening of the Assembly's 2012 Ordinary Session.
