Strasbourg, 23 November 2018 CDL-AD(2015)036cor Opinion No. 807 / 2015 Engl. only EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) REPORT ON EXCLUSION OF OFFENDERS FROM PARLIAMENT Adopted by the Council of Democratic Elections at its 52nd meeting (Venice, 22 October 2015) and by the Venice Commission at its 104th Plenary Session (Venice, 23-24 October 2015) on the basis of comments by Mr Sergio BARTOLE (Substitute Member, Italy) Mr Oliver KASK (Member, Estonia) Mr Jorgen Steen SØRENSEN (Member, Denmark) Ms Anna GAMPER (Expert of the Congress of Local and Regional Authorities of the Council of Europe, Austria) This document will not be distributed at the meeting. Please bring this copy. www.venice.coe.int CDL-AD(2015)036cor - 2 - CONTENTS I. Introduction .................................................................................................................... 3 II. International standards................................................................................................... 4 A. Ineligibility to be elected ............................................................................................. 4 B. Loss of mandate ......................................................................................................... 6 III. Overview of national legislation .................................................................................. 6 A. Exclusion from standing for Parliament ...................................................................... 6 1. Regulatory level ...................................................................................................... 6 2. According to the nature of the offence..................................................................... 7 3. According to the nature of the sentence ................................................................ 11 4. Other restrictions .................................................................................................. 13 5. No restriction ......................................................................................................... 13 6. General restrictions or case-by-case decisions? ................................................... 13 B. Loss of the parliamentary mandate ........................................................................... 15 1. According to the nature of the offence................................................................... 16 2. According to the nature of the sentence ................................................................ 17 3. When a case of ineligibility arises ......................................................................... 21 4. Other cases .......................................................................................................... 23 5. Procedural issues ................................................................................................. 24 IV. Case study: Italy ....................................................................................................... 25 A. The legal and factual context .................................................................................... 25 B. Elements of appreciation .......................................................................................... 27 V. Analysis ....................................................................................................................... 28 A. Ineligibility to be elected ........................................................................................... 29 1. In general .............................................................................................................. 29 2. Specific cases ....................................................................................................... 31 B. Loss of mandate ....................................................................................................... 31 C. In which kind of legislation and how should the issue be addressed? ................... 32 VI. Conclusions .............................................................................................................. 32 - 3 - CDL-AD(2015)036cor I. Introduction 1. On 23 December 2014, an agreement between the majority and the opposition in Albania took place, putting an end to the boycott of Parliament by the opposition. Among the areas requiring reform, the issue of the exclusion of offenders from Parliament was addressed. This could lead to a legislative reform introducing a new cause of ineligibility to be elected, to be preceded by a public round table involving both the majority and the opposition as well as international experts. 2. On 22 April 2015, the Chairman of the Special Committee to address the issue in the resolution for agreement between the ruling majority and the opposition in the Assembly of the Republic of Albania asked the Venice Commission for co-operation, in addressing the issue of people with criminal records who hold or seek to be elected or appointed to a public office. 3. Before organising specific activities in co-operation with the Albanian authorities, the Council for Democratic Elections and the Venice Commission decided to prepare a report including comparative data on the issue and focusing on access to Parliament. This report was prepared on the basis of comments by Messrs Bartole, Kask and Sørensen, as well as, for information concerning regional parliaments, by Ms Anna Gamper. 4. The question whether persons convicted should be allowed to be Members of Parliament is an issue in many countries, although not very highly discussed at the international level as the number of cases is usually low. Still, as the practices vary, it is of general interest to state the situation in the Venice Commission Member States in order to provide help for countries where the issue gets more attention. 5. In a first part, the report will address the issue of the standards applicable in Europe, especially from the point of view of the limitation of the right to be elected, as well as the kind of legislation which is most appropriate. 6. In a second part, the present document will make an overview of the legal situation, in the Council of Europe Member States as well as in a few other selected states, concerning the possibility to prevent sentenced people from standing for Parliament, on the one side, and to exclude elected members of Parliament from this body if sentenced, on the other side. 7. Not only constitutional provisions, but also ordinary legislation will be quoted when available, in particular from countries with no or very limited constitutional provisions in the field, such as Finland, France, Germany and the United Kingdom – as well as Australia, Brazil, Canada, Kenya, the Republic of Korea and the United States. 8. The report will address rules applied not only to national parliaments, but also to regional parliaments in the following selected countries: Austria, Belgium,1 Germany, Italy, Russia, Spain, Switzerland, United Kingdom. The selection has been made in accordance with the fact that these countries do not only have regions with (primary) legislative powers and elected parliaments2, but that the constitutional arrangements provide for a predominantly (even though, perhaps, asymmetrically) regionalised design. The survey will not consider Bosnia and Herzegovina due to its rather unique confederal-like structures. 1 For the purposes of this study, both the parliaments of the Belgian regions and the Belgian linguistic communities will be considered. 2 “Regional parliament” is used as a generic term here, notwithstanding the constitutional obstacles in some of the selected countries to apply the term “parliament” to an elected assembly at regional level. CDL-AD(2015)036cor - 4 - 9. A number of national contributions, including practical examples of the application of rules in the field, were received from members of the Venice Commission and will be taken account of in this report.3 10. The report will deal successively with exclusion (of offenders) from standing for Parliament and loss of the parliamentary mandate. 11. In a third part, it will address the specific situation in Italy, where legislation was recently changed and practice – in particular concerning the case of a former President of the Council - led to much attention. 12. In a fourth part, the report will deal with possible conclusions to be inferred from the standards of the Council of Europe in the field of restrictions to the right to be elected, as well as from the comparative material available. 13. Parliamentary immunity issues are not at stake here. They were addressed in the Report on the Scope and Lifting of Parliamentary Immunities adopted by the Venice Commission at its 98th plenary session.4 14. The present report was adopted by the Council for Democratic Elections at its 52nd meeting (Venice, 22 October 2015) and by the Venice Commission at its 104th Plenary Session (Venice, 23-24 October 2015). II. International standards A. Ineligibility to be elected 15. Article 3 of the First Additional Protocol to the European Convention of Human Rights implies the (active) right to vote as well as the (passive) right to be elected. This was made clear by the European Court of Human Rights.5 16. At least the principles and values discussed in ECtHR case-law on the right to vote have to be observed.6 “Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates.