Svíar sem hafa verið í forsæti fyrir Ráði Evrópuráðsins – the Council of the European Union – sl. hálft ár luku því hlutverki með stóru málþingi í Stokkhólmi hinn 21. og 22. júní. Herdís Þorgeirsdóttir var með framsögu af hálfu Feneyjanefndar Evrópuráðsins en þemað var lýðræðisleg gildi og réttarríkið. Aðrir sem töluðu voru m.a.forseti Evrópudómsstólsins og varaforseti framkvæmdastjórnar Evrópusambandsins; auk talsmann evrópskra stofnana, atvinnulífs og akademíu. Herdís fjallaði sérstaklega um álit Feneyjanefndar vegna breytinga á stjórnarskrá Möltu sem samþykkt var 2018. Álitið er mikilvægt að því leyti að tengir saman svo margt sem fer aflaga í stjórnskipun ríkja og verður spillingu og ofbeldi að bráð – en álit þetta er m.a. tilkomið vegna þeirrar alþjóðlegu athygli sem morðið á blaðakonunni Daphne Caruana Galizia í október 2017. Hún hafði sem blaðamaður og bloggari fjallað mikið og oft háðuglega um spillingu í forystu ríkisins, tengsl ráðamanna við spillt fjármálaöfl og því þótti einhverjum tími til kominn að útiloka frekari gagnrýni frá henni. Sprengju var komið fyrir í bíl hennar og hún lét lífið þegar bíllinn sprakk í loft upp eftir að hún ræsti hann. Rannsókn á morðinu gekk treglega fyrir sig. Stjórnvöld á Möltu sættu gagnrýni fyrir klíkuskap, spillt dómskerfi, lögregla og saksóknara, samkrull allra greina ríkisvaldsins, veikburða löggjafasamkundu, samþjöppun á valdi, frændhygli og tengsl ráðherra við peningaþvætti og önnur spillingarmál.
Í framhaldi af þessu má geta þess að frá 2014 hafa 28 blaðamenn verið myrtir á evrópskri grundu. Flestir vegna skrifa sinna um spillingu. Í frægu dómsmáli fyrir Mannréttindadómstól Evrópu í kjölfar morðs á blaðakonunni Anna Politskoya í Moskvu kvað dómstóllinn upp úr skyldu stjórnvalda aðildarríkja Evrópuráðsins (sem Rússland var þá) að rannsaka morð á blaðamönnum í tenglsum við skrif þeirra sbr. 1., 2., og 10. grein Mannréttindasáttmála Evrópu.
“Reality check on the rule of law and democratic values”
The Rule of Law is mentioned in the Preamble to the Statute of the Council of Europe as one of the three “principles which form the basis of all genuine democracy”, together with individual freedom and political liberty.
The Rule of Law means that everyone has the right to be treated by all decision-makers with dignity, equality and rationality and in accordance with the laws, and to have the opportunity to challenge decisions before independent and impartial courts through fair procedures.
Impartiality of the judiciary must be ensured in practice as well as in the law. The classical formula, as expressed for example by the case-law of the European Court of Human Rights, is that “justice must not only be done, it must also be seen to be done”
One of the benchmarks that the VC uses to assess the impartiality is asking:
Are there specific constitutional and legal rules providing for the impartiality of the judiciary?
- What is the public’s perception of the impartiality of the judiciary and of individual judges?
- Is there corruption in the judiciary? Are specific measures in place against corruption in the judiciary (e.g. a declaration of assets)? What is the public’s perception on this issue?
As we are discussing a reality check on the rule of law and democratic values – I would like to mention an interesting opinion of the VC which was requested in 2018 by the Parliamentary Assembly of the Council of Europe – in the wake of a report on the assassination of journalist Daphne Caruana Galizia in October 2017 and the rule of law in Malta – ensuring that the whole truth emerges – a case which attracted attention all over Europe.
This opinion elucidates the interrelationship between the rule of law, democracy, separation of powers, right to life, journalistic freedoms, corruption and abuse of powers.
Investigative journalist Daphne Caruana Galizia was assassinated on 16 October 2017. As a journalist and blogger active for over 30 years, she had reported on politics in Malta, focusing on government corruption, nepotism, and allegations of money laundering – probably knowing that she was putting herself in danger in such an environment – although not foreseeing that someone would place a bomb in her car which exploded, killing her instantly in October 2017.
The alleged ineffectiveness of the investigation to find any persons who ordered this assassination and the alleged culture of impunity had been highly criticised.
The economy in Malta was thriving but also at the time perceived as fostering widespread corruption – the Panama Papers scandal had exposed more than 214,000 tax havens involving high-profile people, government officials, and entities from 200 different nations -revealing corruption affecting all Member States of the Council of Europe. Corruption according to reports at the time was costing the economy of EU countries more than 120 billion Euros per year, with some estimates going up to 990 billion Euros.
The even higher cost is the one of ruined lives, the erosion of the rule of law and decay of democracy. We know now that in the last ten years 28 journalists who had been investigating corruption have been brutally killed on European soil. Journalists have special duties; more duties than ordinary citizens and they need special protection
The scope of the VC examination was confined to the constitutional arrangements in Malta as the Commission neither had the mandate nor the required competences to examine the effectiveness of a particular criminal investigation or the veracity of the allegations by the murdered journalist of individual cases of corruption and money-laundering. The Venice Commission insisted in this case on the positive obligations stemming from Article 1 of the European Convention, combined with Articles 2 (right to life) and 10 (freedom of expression) of the ECHR — was of utmost importance to examine a possible connection of the assassination of a journalist to the investigative of her work – and that perpetrators of such offences do not enjoy impunity
Preventive and repressive measures are required to fight corruption – the Minister of Justice in Malta had pointed to various law reforms as a whistleblower act; laws on political party financing and various other laws tackling defamation, corruption, nepotism etc.
The VC emphasized that as with any reform, it is obvious that not only the texts matter, but also their implementation in good faith.
The Opinion criticised the double role of the Attorney General as advisor of the Government and as prosecutor. The part-time Parliament was found to be too weak to exercise sufficient control over the executive branch. The Prime Minister’s wide powers of appointment make this institution too powerful, creating a serious risk for the rule of law. The Prime Minister’s influence on judicial appointments resulted in the absence of crucial checks and balances. This problem was reinforced by the weakness of civil society and independent media.
The VC emphasized that even when it is stressful for authorities endure criticism they have the duty to ensure that the media can adhere to its public watchdog role – and that robust political debate can thrive in civil society.
The list of recommendations in this opinion concerning the judiciary, the public prosecutions, the parliament, president and citizen involvement in making constitutional amendments – and the international obligation of the government to ensure the media and journalists could do their duty as the public watchdog to hold authorities accountable – elucidate how complex the fabric underlying the effective rule of law, democracy and human rights is.