B Explanatory
memorandum by Mr Agramunt, rapporteur
1 Foreword
1. The current report originates from the motion tabled
by Mr Biberaj and others concerning the term of office of co-rapporteurs
of the Monitoring Committee.
Note In that motion, the authors noted
that, contrary to the general rule which, in most cases, limits
the term of the mandate of committee rapporteurs to two years (see Rule
25.3. of the Rules of Procedure of the Assembly), the term of office
of the co-rapporteurs of the Monitoring Committee is not limited
in time. The authors furthermore stressed that “while some measure
of continuity in the work of the co-rapporteurs of the Monitoring
Committee is desirable, there is a danger of a lack of independence
and impartiality if such a term of office extends for too long”.
Finally, the authors of the motion suggest that the Assembly should
invite the Monitoring Committee to look into limiting the term of
office of its country co-rapporteurs.
2. At its meeting of 9 January 2009, the Bureau of the Assembly
decided to refer this motion to the Monitoring Committee for report,
and to the Committee on Rules of Procedure for opinion. Subsequently,
on 1 October 2009, the Monitoring Committee appointed me as rapporteur
for this issue. On 18 November 2009, I presented to the committee
an outline of the draft report (see document AS/Mon (2009) 35) which
served as a basis for drafting the present report.
3. Given that the motion highlights concerns relating to the
lack of independence and impartiality of the co-rapporteurs, I felt
obliged to address in the present report the issue of the criteria
governing the procedure of appointment of the co-rapporteurs of
the Monitoring Committee, in addition to the issue of the duration
of their term of office. I have to note that my report is by no
means intended to replace the work of the Committee on Rules of
Procedure, Immunities and Institutional Affairs which, at the request
of the Bureau, is examining the possibility of incorporating the
Code of Conduct for the co-rapporteurs of the Monitoring Committee
into the Rules of Procedure of the Assembly. I shall limit myself
in this report to examining only the criteria for appointment of
the co-rapporteurs, leaving it to the Committee on Rules of Procedure,
Immunities and Institutional Affairs to deal with the rules governing
the behaviour of rapporteurs.
4. Moreover, after the recent adoption by the Standing Committee
of
Resolution 1698 (2009) introducing amendments
to
Resolution 1115 (1997) concerning
post-monitoring dialogue, I shall address in this report the consequences
of these changes on the procedure of appointment of rapporteurs
on post-monitoring dialogue.
5. Consequently, the present report is structured in three sections:
firstly, I will recall the current rules governing the appointment
of the co-rapporteurs of the Monitoring Committee dealing with monitoring
files as well as with post-monitoring dialogue; secondly, I will
highlight the advantages of limiting the term of office of the co-rapporteurs
of the Monitoring Committee to a particular duration; thirdly, I
will formulate a number of concrete proposals for amending
Resolution 1115 (2007) on
the setting up of the Monitoring Committee (as modified by
Resolution 1431 (2005),
Resolution 1515 (2006) and
Resolution 1698 (2009)).
2 Rules
governing the appointment of co-rapporteurs of the Monitoring Committee
and current practice
7. In respect of each country under a specific monitoring procedure,
two co-rapporteurs are appointed by the committee; political and
regional balance should be respected in the appointment process
(paragraph 9). The committee co-rapporteurs shall remain members
of the committee until the Assembly takes decision on the relevant
report, provided that they are still members of the Assembly (paragraph
11).
2.2 Rule on transparency
and declaration of interest of members
8. Rule 12 of the Rules of Procedure of the Assembly
on transparency and declaration of interests of members applies
to the co-rapporteurs of the Monitoring Committee as well as to
the chair and vice-chairs of the committee engaged in the preparation
of the reports on post-monitoring dialogue. According to this rule, candidates
for rapporteurships (as well as, mutatis
mutandis, the chair and the vice-chairs of the committee) are
obliged to make an oral declaration of any professional, personal,
financial or economic interests that might be considered relevant
or conflicting with the subject of the report, or with the country
concerned by the report at the time of appointment in committee.
The declaration is recorded in the minutes of the committee meeting.
2.3 Other criteria
governing the appointment of co-rapporteurs of the Monitoring Committee
9. These are contained in the Code of Conduct for the
co-rapporteurs on the honouring of obligations and commitments by
member states of the Council of Europe (referred hereinafter as
“the Code of Conduct”), contained in Appendix H to the Progress
Report of the Monitoring Committee for 2001.
Note The
Code of Conduct was approved by the Monitoring Committee on 6 September
2001 and, since then, has been used by the committee as a set of
rules and guidelines governing the appointment of co-rapporteurs.
10. According to the Code of Conduct, the co-rapporteurs cannot
deal with more than one state at a time (i.e. prohibition on the
combination of mandates in the Monitoring Committee). They should
not belong to a neighbouring state, or to one with a special relationship
with the state being monitored (i.e. “the proximity or special interest
criterion”). The two co-rapporteurs should come from different countries
and belong to different political groups (i.e. “political and geographic
balance” criterion).
11. Three additional criteria stemming from the monitoring practice
are established by the Code of Conduct, namely, the “linguistic
criterion” (i.e. preferably, both country co-rapporteurs should
be able to communicate in the same language), the “availability
criterion” (broadly, meaning that the co-rapporteurs should commit themselves
to become fully involved in the monitoring procedure) and the “prior
knowledge criterion” (i.e. preferably, the candidates for rapporteurship
should have a knowledge of the state concerned from earlier visits to
the country concerned or participation in election observations).
These three additional criteria provide in fact some additional
guidelines which the committee has to follow in the practice of
appointment of co-rapporteurs. In general, these guidelines have
been adhered to in practice, albeit with some exceptions.
2.4 Practice of the
committee with respect to the duration of the term of office of
the co-rapporteurs
12. Although formal criteria referred to under sub-sections
i to iii have always been strictly adhered to by the committee in
the appointment of co-rapporteurs, there has been no uniform practice
developed with respect to the duration of the terms of office of
the committee co-rapporteurs.
13. Statistics show that, on average, co-rapporteurs work between
three and five years on the country under monitoring. However, there
are cases where co-rapporteurs have been involved in the monitoring
procedure with respect to a particular state for considerably longer
periods (for example ten or twelve years).
3 Arguments in favour
of limiting the duration of the term of office of the co-rapporteurs
of the Monitoring Committee
14. It is widely recognised that a long-standing co-rapporteur
knows the country and its key reform processes well. Moreover, he
or she can anticipate political developments and suggest appropriate
action to the committee in a timely fashion. Furthermore, long-standing
co-rapporteurs develop close working relations with the key domestic
stakeholders. They are trusted by domestic politicians and their
messages are listened to, which improves the impact of the Assembly’s
monitoring procedure. At the same time, long-standing co-rapporteurs
are well known by domestic and international media, which improves
the visibility of the Assembly’s monitoring procedure.
15. That said, I believe that regular renewal of the co-rapporteurs,
provided it is does not take place at very short intervals, can
combine the advantages of continuity and, at the same time, ensure
that a “fresh look” is given to the situation in a given country.
In fact, for the monitoring procedure to be truly effective, it
is essential to ensure that good practices and experiences learnt
in countries under monitoring are shared and that the monitoring
approaches to different countries are harmonised. This will enable
the committee to develop a coherent monitoring practice and ensure
that accusations of “double standards” are avoided.
16. Involving progressively more and more members of the Monitoring
Committee in rapporteurship tasks will increase the interest and
commitment of members, the visibility and impact of the monitoring
process, and the trust of domestic and international stakeholders
in the impartiality of the Assembly’s monitoring procedure.
17. Of course, the limitation on the duration of the mandate of
the committee co-rapporteurs will create the need to replace them
more frequently. The members of the committee should therefore actively
participate in the committee’s work by taking up new rapporteurships.
The political groups should also be made aware of this important
consequence in order to ensure that candidates for membership in
the committee be selected taking into account the criteria of “availability”
and “prior knowledge”, prescribed by the Code of Conduct.
18. In order to enable the members of the committee involved in
rapporteurships to share their knowledge and lessons learnt, outgoing
co-rapporteurs should be allowed to take rapporteurships with respect
to other states engaged in the monitoring procedure or post-monitoring
dialogue. The committee may therefore appoint them as co-rapporteurs
with respect of another country, according to the same rules and
criteria.
4 Proposals
19. In the light of the above analysis, in this section
I will make three sets of proposals. Firstly, I will make some concrete
proposals concerning the limitation on the duration of the term
of office of the co-rapporteurs of the Monitoring Committee. Secondly,
I will make some proposals concerning the rules on appointment of rapporteurs
on post-monitoring dialogue, with a view to harmonising the appointment
procedure with the amendments to
Resolution 1115 (1997) recently
adopted by the Standing Committee. Thirdly, and finally, I will suggest
incorporating in
Resolution
1115 (1997) a number of formal criteria for the appointment
of co-rapporteurs which stem from the practice of the Monitoring
Committee and are based on the provisions of the Code of Conduct
for co-rapporteurs, approved by the committee on 6 September 2001.
The proposed amendments aim at codifying the existing practice in
order to provide the committee with clear-cut rules governing the
appointment of co-rapporteurs.
4.1 Proposals relating
to the duration of the term of office of the co-rapporteurs
4.1.1 Limitation on the
duration of the mandate
20. In the light of the above considerations and taking
into account the obligation of the Monitoring Committee to report
on the countries under monitoring every two years (see paragraph
6, above), I suggest that the duration of the term of office of
the co-rapporteurs should be limited to five years. No member of
the committee should be appointed co-rapporteur twice for the same
member state under the monitoring procedure.
21. The five-year term will enable the new co-rapporteur to become
acquainted with the file as well as to prepare two reports on the
country concerned. This will preserve continuity and enable the
co-rapporteurs to acquire a comprehensive knowledge of the situation,
in order to deliver coherent political messages and develop their
own approach to the monitoring procedure.
4.1.2 Need to avoid both
co-rapporteurs being replaced at the same time
22. As mentioned above, knowledge and continuity are
the key assets of the Assembly’s monitoring procedure. Therefore,
in the process of appointment of co-rapporteurs, the committee should
aim to avoid replacing both co-rapporteurs at the same time.
23. However, in the interests of the smooth running of the monitoring
procedure, the committee should have the right to decide to extend
the mandate of one of the co-rapporteurs, by a maximum of six months.
This may be appropriate in cases when the terms of office of both
co-rapporteurs come to an end at the same time (unless they had
resigned or ceased to be members of the Assembly), or when the term
of office of one of the co-rapporteurs expires at the moment when
the corresponding monitoring report is almost finalised (i.e. a preliminary
draft report is prepared, the comments of the delegation are received
and analysed and a debate in the Assembly is scheduled).
4.2 Proposals relating
to harmonising the appointment of rapporteurs on post-monitoring dialogue
with the recent amendments to Resolution
1115 (1997)
24. In
Resolution
1698 (2009), adopted by the Standing Committee on 20
November 2009, the Assembly modified some provisions of
Resolution 1115 (1997) concerning
post-monitoring dialogue. In particular, the Assembly decided that
the Monitoring Committee should report to the Assembly on the countries
engaged in post-monitoring dialogue at least once every four years.
Note Clearly,
this important change is aimed at harmonising the procedure of post-monitoring
dialogue with the monitoring procedure.
25. In this context, it may be thought appropriate to harmonise
the rules governing rapporteurship on post-monitoring dialogue with
the new procedure, by allowing the committee to appoint any of its
members rapporteur on post-monitoring dialogue. Of course, the same
formal criteria for the appointment of monitoring co-rapporteurs
should apply in the case of appointment of colleagues dealing with
post-monitoring dialogue. In addition, in order to avoid any conflict
of interests, I suggest that rapporteurs previously engaged in the monitoring
procedure for a given country should not be allowed to become rapporteurs
on post-monitoring dialogue.
26. By analogy with the monitoring procedure, in the interest
of the smooth running of the post-monitoring dialogue, the committee
should have the right to decide to extend, where appropriate and
feasible, the term of office of the rapporteur by a maximum of six
months (for example, in order to give the possibility to an outgoing rapporteur
the report which has already been included in the agenda and order
of business of an Assembly part-session).
4.3 Incorporation of
formal criteria for the appointment of co-rapporteurs into Resolution 1115 (1997)
27. It follows from the above analysis that, over recent
years, the Monitoring Committee has been strictly applying the formal
criteria for the appointment of the co-rapporteurs, established
by the Code of Conduct (i.e. prohibition on the combination of mandates,
the criterion of “proximity and special interest” and the “political and
geographic balance” criterion). I therefore consider that it may
be thought appropriate to incorporate these three formal criteria
into the rules governing the appointment of the co-rapporteurs,
as established by
Resolution
1115 (1997) (as modified by
Resolution 1431 (2005),
Resolution 1515 (2006) and
Resolution 1698 (2009)).
5 Conclusion
28. The committee is invited to consider and adopt the
above preliminary draft resolution, with a view to discussion of
the report by the Standing Committee in March 2010. In order to
give time to the political groups of the Assembly to take the proposed
amendments fully into account in the process of appointing candidates for
membership in the Monitoring Committee, the amendments to
Resolution 1115 (1997) could
enter into force at the opening of the 2010 June part-session (21-25
June 2010).
29. When the proposed amendments enter into force, according to
current statistics, the committee will have to replace both co-rapporteurs
at the same time for a number of countries, because both of them
will have been in office for more than five years. Given the need
to avoid replacing both co-rapporteurs at the same time, it may
be thought appropriate to phase in the replacement process. I would
therefore suggest that, if the terms of office of both country co-rapporteurs
come to an end at the same time, the committee should be allowed
to proceed first with the replacement of the co-rapporteur whose
term of office has been the longest. Should the committee so decide,
the mandate of the second co-rapporteur may be extended by a maximum
of six months, to ensure a smooth transition.
30. Moreover, in order to allow outgoing colleagues whose reports
are in the final stage of preparation and will be included in the
agenda and order of business of the Assembly June and September
2010 part-sessions to present their reports, a transitional provision
should to be introduced.
***
Reporting committee:
Committee on the Honouring of Obligations and Commitments by Member
States of the Council of Europe (Monitoring Committee)
Reference to committee:
Reference 3510 of 26 January 2009
Draft resolution unanimously
adopted by the committee on 26 January 2010
Members of the committee:
Mr Dick Marty (Chairperson),
Mr Aydin Abbasov, Mr Pedro Agramunt Font de Mora, Mr Miloš Aligrudić, Mrs Meritxell Batet
Lamaña, Mr Ryszard Bender,
Mr József Berényi, Ms Anne Brasseur,
Ms Lise Christoffersen, Mr
Boriss Cilevičs, Mr Georges Colombier,
Mr Joseph Debono Grech, Mr
Juris Dobelis, Mrs Josette Durrieu, Mr Mátyás Eörsi, Ms Mirjana Ferić-Vac, Mr György Frunda, Mr Giuseppe
Galati, Mr Jean-Charles Gardetto,
Mr Aristophanes Georgiou, Mr Andreas Gross,
Mr Michael Hagberg, Mr Holger
Haibach, Mr Michael Hancock,
Mr Andres Herkel, Mrs Sinikka Hurskainen, Mr Kastriot Islami,
Mr Mladen Ivanić, Mr Zmago
Jelinčič Plemeniti, Mr Michael Aastrup Jensen, Mr Miloš Jevtić,
Mr Tomáš Jirsa, Mr Haluk Koç, Mrs Katerina Konečná,
Mr Jaakko Laakso, Mr Pietro
Marcenaro, Mr Bernard Marquet, Mr Miloš Melčák,
Mrs Nursuna Memecan, Mr Jean-Claude Mignon, Mr João Bosco Mota Amaral,
Mr Adrian Năstase, Mrs Elsa Papadimitriou,
Mr Alexander Pochinok, Mrs
Marietta de Pourbaix-Lundin,
Mr Christos Pourgourides, Mr John Prescott,
Mrs Mailis Reps, Mr Andrea
Rigoni, Mr Ilir Rusmali, Mr Indrek Saar, Mr Kimmo Sasi, Mr Samad Seyidov, Mr Leonid Slutsky, Mr Yanaki Stoilov, Mr Christoph Strässer, Mr Björn von Sydow, Mrs Chiora Taktakishvili, Mr Egidijus Vareikis, Mr José Vera Jardim,
Mr Piotr Wach, Mr Robert Walter,
Mr David Wilshire, Mrs Renate Wohlwend, Mrs Karin S. Woldseth, Mrs Gisela Wurm, Mr Andrej Zernovski
NB: The names of the members who took part in the meeting
are printed in bold
Secretariat of the committee:
Mrs Nachilo, Mr Klein, Ms Trévisan, Mr Karpenko
