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PACE Side Event: Should politicians be prosecuted for statements made in the exercise of their mandate?

On June 3, the Committee on Legal Affairs and Human Rights of the Council of Europe approved the draft of the resolution entitled “Should politicians be prosecuted for statements made in the exercise of their mandate??”. The draft calls on the Spanish authorities to reform the crimes of rebellion and sedition in order to avoid disproportionate sentences for non-violent transgressions or to ensure that they cannot be interpreted as if the decriminalisation of the organisation of illegal referendums in 2005 was ineffective.

In this context, the Catalan Ombudsman has organised a side event to discuss on freedom of expression in accordance with the European Convention on Human Rights, before the vote in the Parliamentary Assembly of the Council of Europe on the draft resolution, expected this afternoon.

The session, which was held in online format due to the pandemic, was chaired by the Catalan Ombudsman, Rafael Ribó, and was attended by Françoise Tulkens, former Vice-President of the European Court of Human Rights; Josep Casadevall, former judge of the European Court of Human Rights; and Rob Behrens, Parliamentary and Health Service Ombudsman of the United Kingdom.

During her speech, Françoise Tulkens spoke about the general principles of the jurisprudence of the European Court of Human Rights (ECHR) regarding freedom of expression in general but, above all, regarding politicians. In her speech, she stressed that freedom of expression is the cornerstone of democracy and a free society. In this sense, she stated that, according to the ECHR, politicians have a broad freedom of expression and a higher level of protection, as they are representatives of the people, which can only be limited in exceptional situations and in a proportional manner. Specifically, freedom of expression can only be curtailed in the case of incitement to hatred or violence.

In his speech, Josep Casadevall focused on analysing the content of the resolution. “Should politicians be prosecuted for statements made in the exercise of their mandate??", especially with regard to the rights and freedoms protected by the Convention on Human Rights and the case law of the ECtHR. Casadevall concluded that the Cilevičs report has understood the principles of the ECHR very well and congratulated the author. On the basis of the Court's case law, he also explained that in the face of defamation or injustice against a person, the principle of equality is imposed, whereby no person - neither a president nor a head of state - is more protected before the law or can have preferential treatment over others.

Firstly, Rob Berhens explained how freedom of expression is regulated in the UK and the limits that apply to it, highlighting the total freedom of expression enjoyed by MPs in the British Parliament. According to his criteria, politicians, as representatives of citizens, must have the same restrictions, so that they cannot incite racial or gender hatred or violence. Without these guarantees, there is a risk that politicians will stray from the objective for which they were elected.

In another area, he also expressed his concern about the lack of protection being given to justice officials and ombudsmen when they have questioned the decisions or actions of some public representatives. In particular, Rob Berhens mentioned the case of Poland, where the ombudsman, Adam Bodnar, was threatened for having defended human rights in the country, and the case of Catalonia, where Rafael Ribó has also been questioned on some occasions for the work he has carried out in the defence of rights and freedoms in Catalonia.

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