B Explanatory
memorandum by Mr Marty, rapporteur
1 Introduction
1. The Monitoring Committee is the only Assembly committee
which has a statutory obligation to submit an annual report on its
activities. Since 2007, for four consecutive years, the progress
report has constituted the committee’s contribution to the annual
Assembly debates on “the state of democracy in Europe” and “the
state of human rights in Europe” usually held in June. This year,
however, in view of the forthcoming 15th anniversary of the establishment
of the committee, and in the context of the ongoing debate on the
reform of the Assembly, I decided to change this formula and to
use our annual exercise for launching a more general reflection
on the achievements and perspectives of the Assembly’s monitoring
procedure.
2. My intention is, firstly, to give an account of the committee’s
activities since the last progress report which I presented in June
2010 (chapter 2). Secondly, I would like to reflect on more general
considerations about the achievements and concerns of the parliamentary
monitoring procedure over the last fifteen years with regard to
all countries which have been covered by the monitoring procedure
or the post-monitoring dialogue; I also intend to draw some conclusions
in the light of the completion of the second cycle of reporting
upon countries which are not subject to a monitoring procedure or
a post-monitoring dialogue (chapter 3). Finally, I would like to
elaborate on the challenges facing us in the future, and possible
ways to address them, thus improving efficiency of the Assembly
monitoring (chapter 4).
3. In preparing this report, in accordance with established practice,
I have limited myself to references to texts adopted by the Assembly,
reports or other public documents prepared by our committee’s co-rapporteurs who
follow the situation in each specific country. I have also used
the reports drawn up by the ad hoc committees of the Bureau of the
Assembly on election observation in these countries since this exercise
is closely linked to the work carried out by our committee. I have
not engaged myself in any analysis or conclusions beyond what has
been proposed by the co-rapporteurs concerned or the Assembly observer delegations.
In some cases, I also make reference to the documents of the European
Commission for Democracy through Law (Venice Commission) which have
been used by committee co-rapporteurs in the preparation of their
fact-finding visits.
4. In the draft resolution, I have tried not only to address
the recurrent issues raised in countries under monitoring and in
countries engaged in a post-monitoring dialogue, but also, on the
basis of past experience, to identify possible ways to render the
monitoring procedure more effective, and to ensure better compliance of
all member states with their obligations and commitments.
5. At the same time, and in accordance with the practice established
since 2006, periodic reports on the third (and final) group of 11
member states among those member states which are not subject to
a monitoring procedure or involved in a post-monitoring dialogue
have been prepared and are appended in the addendum to this report.
The following states are included this year: Norway, Poland, Portugal,
Romania, San Marino, the Slovak Republic, Slovenia, Spain, Sweden,
Switzerland, and the United Kingdom. As in the previous two years, they
are based on the country-by-country assessments made by the Commissioner
for Human Rights and other Council of Europe monitoring bodies and
human rights institutions. The draft resolution contains conclusions
drawn from these periodic reports.
6. In order to give a better overview of all member states’ compliance
with their obligations, I have also appended a chart of ratifications
and signatures of the main Council of Europe conventions with a
monitoring mechanism.
2 Overview
of the committee’s activities
2.1 Latest evolution
in the monitoring procedure
7. The reporting period was marked by the changes in
the monitoring procedure, reflected in the amendments to Resolutions
1115 (1997) on the setting up of the Monitoring Committee, and 1431
(2005) on the specific terms of reference of the Monitoring Committee,
which were adopted by the Standing Committee on 12 March 2010.
Note The initiative came from the committee
itself, and the draft text proposed on its behalf by Mr Pedro Agramunt
was accompanied by an explanatory memorandum which gave exhaustive
reasons justifying the proposed changes.
Note
8. The modifications introduced new rules with regard to the
term of office of co-rapporteurs of the Monitoring Committee, in
particular by reducing to five years the duration of the mandate
of co-rapporteurs in respect of countries under monitoring, and
by establishing new criteria for the appointment of rapporteurs
on post-monitoring dialogue.
9. As a direct consequence of these changes, when the new rules,
including transitional measures, entered into force in June and
September 2010, the committee was obliged to proceed with the appointment
of seven new co-rapporteurs on monitoring, and four new rapporteurs
on post-monitoring dialogue. Given the specific rules governing
the appointment procedure in this committee, and in particular the
involvement of political groups, the whole process took a lot of
time and thus impacted on the continuity of the monitoring procedure in
respect of a certain number of countries. This explains the relatively
small number of reports presented to the Assembly by the committee
during the reporting period.
10. On the positive side, it should be noted that, following recent
appointments, women constitute now approximately 30% of the total
number of rapporteurs in the Monitoring Committee, in accordance
with the Assembly’s policy of respect for gender equality. This
may serve as a good example for other parliamentary bodies, both
in the Assembly and in national parliaments.
11. On 20 November 2009, the Assembly also adopted Resolution
1698 (2009) which amended various provisions of its Rules of Procedure.
As a result of these amendments “[n]ot more than two members of
a national delegation from a state under monitoring procedure or
involved in a post-monitoring dialogue may sit on the Monitoring
Committee”. This provision came into force on 25 January 2010 and
had a considerable impact on the membership of the committee.
2.2 Overview of the
country-specific monitoring over the reporting period
12. During the reporting period, 10 countries
Note remained under
monitoring procedure and four
Note were engaged
in a post-monitoring dialogue. Since June 2010, the committee has
produced a full monitoring report on Georgia and assessments of
the functioning of democratic institutions in Azerbaijan and Ukraine.
The respective rapporteurs carried out fact-finding visits to Armenia,
Azerbaijan, Georgia, Moldova, Monaco, Montenegro, the Russian Federation,
Serbia, Turkey and Ukraine. All visits were followed by information
notes on rapporteurs’ findings submitted to the committee for discussion;
all the notes were declassified.
13. A political stalemate prevailed in Albania throughout
the whole reporting period. Since the last parliamentary elections
held in June 2009, the committee has deplored the absence of parliamentary
dialogue between the ruling coalition and the opposition, and recourse
to boycotts.
14. The events of 21 January 2011, when a peaceful demonstration
organised by the opposition degenerated into violence during which
three people lost their lives were particularly worrying. The co-rapporteurs
expressed their concern in a statement issued following the events.
15. The developments surrounding the local elections held on 8
May 2011 highlighted the fragile nature of democracy and the ongoing
polarisation between the ruling majority and the opposition. The
co-rapporteurs intend to visit the country soon after the result
of the elections has been announced.
16. The co-rapporteurs on Armenia visited
the country in March 2011. They noted with satisfaction that the authorities
had announced their intention to introduce a comprehensive reform
package focused on the judiciary, police and electoral code. They
called for these initiatives now to be translated into action and emphasised
that legislative changes alone are not sufficient and should be
accompanied by policies aimed at changing existing practice and
mentalities. The committee had previously organised a hearing on
the reform project with the participation of the Armenian opposition
in October 2010.
17. In the light of the upcoming parliamentary elections foreseen
for May 2012, electoral reform is a key element for the further
democratic development of Armenia. It is therefore of utmost importance
that a new electoral code be a result of political dialogue and
consensus between the different electoral stakeholders. For that
reason, in November 2010, the committee decided to ask the Venice
Commission for an opinion on the alternative electoral code prepared
by the opposition, in addition to the draft prepared by the authorities,
on which the Venice Commission is also preparing an opinion. Thus
both versions will benefit from its expertise, and they have already
been tabled for discussion in the Armenian Parliament.
18. The ongoing detention of persons relating to the events of
March 2008, as well as the lack of a proper inquiry, including command
responsibility, into the causes of the 10 casualties that occurred
on that occasion, remains an issue of serious concern for the committee.
19. Finally, the recent developments in the media environment,
in particular with regard to the tender for broadcasting licenses,
in which the bid of A1+ was once again rejected, have given rise
to some concern. The committee organised an exchange of views on
the human rights situation in Armenia with the participation of the
Council of Europe Commissioner for Human Rights in April 2011.
20. The reference period was particularly important for
Azerbaijan, which held its parliamentary
elections on 7 November 2010.
Resolution
1750 (2010) on the functioning of democratic institutions in Azerbaijan stressed
the importance attached by the Assembly to the establishment of
the conditions which would enable these elections to comply fully
with European standards and be considered as free and fair.
21. A major concern with regard to the democratic process, identified
by the committee, is the application in practice of the constitutionally
guaranteed principle of the separation of powers, as well as a system
of checks and balances which is a result of some systemic shortcomings
such as the lack of competitiveness and genuine political pluralism.
There is a clear need to strengthen parliamentary control over the
executive, in particular taking into account that Azerbaijan is
a state with a strong presidential system.
22. Unfortunately, a number of conditions necessary for a meaningful
and competitive election were lacking, including such shortcomings
as a deficient candidate registration process, a restrictive political
environment, administrative obstacles to mounting an effective campaign,
unbalanced and biased media coverage, misuse of administrative resources,
composition of election commissions and alleged irregularities on
voting day. As a result, the main opposition parties won only one
out of 125 seats in the Parliament.
23. During their fact-finding visit to the country in January
2011, the co-rapporteurs noted some outstanding concerns with regard
to human rights and fundamental freedoms, in particular concerning
freedom of expression and freedom of assembly. The situation of
an imprisoned journalist, Mr Eynulla Fatullayev, who remains in
prison despite the judgment of the European Court of Human Rights,
is particularly worrying.
24. On 3 October 2010, presidential, parliamentary and cantonal
elections (both at state and Entity level) were held in Bosnia and Herzegovina. Regrettably,
the judgment of the European Court of Human Rights in the case of Sejdic and Finci v. Bosnia and Herzegovina had
not been executed, and the legislation had not been amended before
the elections. Otherwise, the elections, which were observed by
the ad hoc committee of the Bureau of the Assembly, were considered
as free and fair.
25. The ongoing political stalemate in the country following the
elections, the inability to establish a government, and the lack
of a functioning parliament at state level has been a matter of
concern for the committee during a major part of the reporting period.
26. In November 2010, the committee organised a hearing with the
participation of the entire parliamentary delegation of Bosnia and
Herzegovina. In April 2011, the co-rapporteurs expressed their concern,
in a public statement, at being unable to perform their task under
the mandate entrusted to them by the Monitoring Committee, taking
into account that they have no interlocutors.
27. With regard to Georgia,the committee considered that the
Georgian authorities have continued to make significant progress
in honouring their obligations and remaining commitments to the
Council of Europe, despite the impact and the consequences of the
war with Russia in 2008.
28. In particular, the adoption of constitutional amendments on
15 October 2010, which, inter alia,
better guarantee the independence of the judiciary, substantially
strengthen the role and powers of the parliament and provide for
a better and more comprehensive system of checks and balances between
the different branches of power, has largely contributed to the
improvement of the democratic process in the country. The co-rapporteurs
visited the country in March and July 2010.
29. In
Resolution 1801
(2011), the Assembly points out that the upcoming presidential
and parliamentary elections will be the litmus test for the consolidation
of a mature, more inclusive and robust democratic system and strongly
recommends the adoption of an entirely new election code that addresses
the shortcomings noted by,
inter alia,
the European Commission for Democracy through Law (Venice Commission)
and the Assembly, in particular with regard to the equality of the
vote, the delimitation of electoral districts and the abolition
of the prohibition of individual candidacies.
30. While welcoming the effort of the Georgian authorities with
regard to the reform of the justice system, the Assembly expressed
its concern about the problems of the administration of justice
that could endanger the principles of the equal application of the
law and the right to a fair trial, as enshrined in Article 6 of
the European Convention on Human Rights. The Assembly called upon
the Georgian authorities to address these concerns as a matter of
priority, as these problems, if left unaddressed, could undermine
the considerable progress made in the field of judicial reform and
of the strengthening of the independence of the judiciary.
31. During the entire reference period, the situation in Moldova was marked by the political
deadlock resulting from the Parliament’s inability to elect the
President of the Republic. Further to the two parliamentary elections
in April and July 2009, followed by the dissolution of the Parliament
as a result of its failure to elect a President, the governing Alliance
for European Integration organised, on 5 September 2010, a referendum
on its proposal to introduce direct presidential elections nationwide.
The referendum failed due to an inadequate voter turnout (30% instead
of the 33% required). The next early parliamentary elections were
held on 28 November 2010.
32. The Monitoring Committee closely followed the situation in
the country and held several exchange of views with the members
of the Moldovan parliamentary delegation. The co-rapporteurs carried
out a fact-finding visit in March 2011. They stressed that the democratic
process is on the right track and the authorities are committed,
in the context of Moldova’s integration in Europe, to adopt the
reforms that are still necessary to achieve the European standards
as regards the respect of democracy, rule of law and human rights.
33. After the adoption of
Resolution
1724 (2010) on the honouring of obligations and commitments by
Montenegro, the co-rapporteurs
carried out a fact-finding visit to Podgorica from 31 May to 2 June
2011 to identify progress made and the remaining issues to be tackled.
34. The monitoring procedure with respect to the Russian Federation,overshadowed by the war between Georgia
and Russia and its consequences, has been taken over by the new
co-rapporteurs appointed in January 2010. They carried out three
fact-finding visits (in March and July 2010 and in January 2011),
and presented two information notes.
35. A number of concerns have been identified following the visit.
Russia has still not ratified a number of important Council of Europe
instruments such as Protocol No. 6 to the European Convention on
Human Rights or the European Charter for Regional or Minority Languages.
Some legislation, including the law on federal security services,
the law on police, or the law on fighting extremist activities,
needs to be brought in line with European principles and standards.
Reform of the judiciary has to be followed through, and implementation
of basic freedoms, in particular freedom of expression and of assembly,
must be ensured.
36. The above-mentioned concerns and some other outstanding commitments
are the subject of discussions between the co-rapporteurs and the
authorities in the framework of a draft roadmap, which will be submitted
to the Assembly along with a monitoring report in early 2012.
37. Steady progress in the country’s fulfilment of obligations
and commitments has been noted by the co-rapporteurs on Serbia following their visit to
the country, in December 2010. There had been some positive developments
in terms of Serbia’s regional co-operation, co-operation with the
International Criminal Court for the former Yugoslavia and the setting
up of regulatory bodies and the political will to introduce reforms.
A number of problems still remain, however, with regard to reform
of the judiciary, the election of members of the State Prosecutorial
Council and the High Judicial Council, the election of judges, party-administered
mandates, blank resignations, freedom of expression and the fight
against corruption.
38. The country’s integration in the European Union creates a
political momentum which should be used to speed up the process.
Serbia applied for a candidate status to open negotiations with
the EU, which requires fulfilling a number of conditions, including
in the fields of rule of law, democracy and human rights. In January 2011,
the committee organised an exchange of views with the participation
of a representative of the European Commission.
39. In April 2011, the committee discussed a draft roadmap for
the implementation of the remaining obligations and commitments
elaborated by the Serbian delegation to the Assembly in co-operation
with the relevant state bodies, in accordance with Resolution 1661
(2009). The draft roadmap will be further discussed by the co-rapporteurs
during their next fact-finding visit to be organised in 2012.
40. The reporting period was characterised by an important increase
in legislative activity and political stability in
Ukraine following a shift of power
which resulted from the presidential election in January/February 2010.
In
Resolution 1755 (2010), the Assembly welcomed this relative stability but expressed
its concern about its fragile nature, as the underlying systemic
causes of political instability that plagued the country in recent years
have not yet been addressed. Moreover, it cautioned that stability
and consolidation of powers should not lead to the monopolisation
of power by one political force, as that would undermine the democratic development
of the country.
41. As a result of the decision of the Constitutional Court of
30 September 2010, abrogating the constitutional amendments adopted
in 2004, the 1996 Constitution re-entered into force. This development, however,
did not remove the obstacles to fulfilling the country’s commitments
to the Council of Europe, as mentioned in several Assembly resolutions,
but instead created a number of serious legal uncertainties. The committee
therefore requested an opinion of the Venice Commission on the constitutional
situation in Ukraine and the measures to be implemented to bring
the constitutional framework into line with European standards and
norms. In addition, a hearing was organised on this subject with
the participation of Professor Kaarlo Tuori, member of the Venice
Commission.
42. The co-rapporteurs visited the country in June and September
2010, as well as in April 2011. They stressed the need for a comprehensive
constitutional reform and they commended the authorities’ decision
to set up a Constitutional Assembly to guide the constitutional
process. They also underscored the need for the introduction of
a new unified election code and new election system based on a wide
political consensus involving opposition political forces in the
country.
2.3 Countries engaged
in a post-monitoring dialogue
43. Following the adoption of
Resolution 1730 (2010) on post-monitoring dialogue with
Bulgaria,
a new co-rapporteur was appointed. A fact-finding visit is to be
organised by the end of 2011.
44. Some progress has been made in Monaco since
the closure of the monitoring procedure in 2009, and the start of
the post-monitoring dialogue, in particular in the field of justice
and the fight against money laundering. A law on the statute of
judges was prepared, and the consultations that have taken place
in this connection with members of the judiciary and the Director
of Judicial Services are to be welcomed. Also worthy of mention
is the setting up of a judges’ trade union. A law regulating the
funding of election campaigns is being drafted. It should set a
limit on campaign spending and provide for a larger share of expenses
to be reimbursed out of the state budget.
45. However, the rapporteur who visited the country in February
2011 stressed that there is a continuing need for reforms in many
fields, and none of the recommendations formulated by the Assembly
in 2009 have yet been met. In particular, a law on the functioning
of the National Council and parliamentary rules of procedure have
not been adopted; the ratification of a number of Council of Europe
legal instruments has not been carried out, the reform of the Criminal
Code has not been introduced, and the constitutional right of the National
Council to give its agreement on the ratification of certain international
instruments is not observed.
46. A new rapporteur on “the former
Yugoslav Republic of Macedonia” was appointed in 2011.
He will carry out a fact-finding visit in 2011 after the organisation
of the early parliamentary elections of 5 June 2011.
47. Clear positive trends and real progress in terms of democratic
process have been observed in Turkey since
the closure of the monitoring procedure in 2004. Its declared commitment
to membership of the European Union goes along with the continuous
pursuit of democratic reforms in line with European standards.
48. The referendum on constitutional reform of 12 September 2010,
initiated by the government, resulted in a 58% vote in favour. Even
if the referendum did not fully comply with the relevant recommendations
of the Venice Commission, insofar as several amendments had been
put to a vote which required a single response, its outcome nevertheless
constituted a step forward in the democratic process in the country,
and it has introduced democratic measures in a number of areas such
as the limitation of the jurisdiction of military courts.
49. However, as noted by the rapporteur during her visit in January
2011, significant problems in some areas still remain. In particular,
the length of pre-trial detention and of proceedings, the functioning
of the judicial system, freedom of expression, execution of judgments
of the European Court of Human Rights and a number of questions
related to national minorities and the use of language continue
to raise concern.
50. The rapporteur regretted that the threshold of 10% of the
votes cast, imposed on political parties as a condition to enter
the Parliament, has not been decreased despite numerous recommendations
of the Assembly and will still be in place for the next parliamentary
elections to be held on 12 June 2011.
2.4 Other issues concerning
the fulfilment of obligations and commitments
51. Furthermore, the committee continued its work on
the consequences of the war between Georgia and Russia. Following
the deadlock which took place in April 2010 – the inability of the
rapporteurs to reach agreement on a draft text to be proposed to
the Assembly and the lack of consensus on the manner in which the
committee should proceed with its work on this file – it was decided
to ask the Chair to explore possible ways in which the committee
could continue its work on this important issue in a constructive
manner. For this purpose, the chairperson carried out a fact-finding
visit to Georgia and Russia in December 2010.
52. Consultations have been organised with both parties concerned,
as well as with the relevant co-rapporteurs, and a whole day hearing
was held aimed at ascertaining the current situation, including
the situation on the ground and the current action being taken by
the various bodies involved, with the participation of, inter alia,the
President of the Assembly, the Secretary General of the Council
of Europe, the European Union Special Representative for the crisis
in Georgia, the United Nations representative in support of the Geneva
process, the Head of the European Union Monitoring Mission in Georgia,
the European Union Special Representative for the South Caucasus
and the former Head of the international fact-finding mission on
the conflict in Georgia. As a result, the committee agreed on the
Chair’s proposal to mandate the respective co-rapporteurs for Georgia
and Russia to follow the file in the framework of the ongoing monitoring
procedures for both countries; to present, under the responsibility
and co-ordination of the Chair and on an annual basis, a joint information
note to the committee, in which they will outline the relevant developments
with regard to the conflict and their findings with regard to the
implementation of Assembly demands as expressed in its resolutions
on this subject, and agreed that this information note will be discussed
by the committee in a specific sitting in which it will also be
updated, inter alia, on relevant
developments in other international fora.
53. Furthermore, following the tabling of a motion for a resolution
on “serious setbacks in the field of the rule of law and human rights
inHungary”, the committee
was seized by the Bureau in March 2011 to prepare a written opinion
on the subject in accordance with paragraphs 3 and 4 of the terms
of reference of the Monitoring Committee. The committee invited
the Chairperson of the Hungarian parliamentary delegation for an
exchange of views, and it appointed two co-rapporteurs tasked with
the preparation of the opinion.
2.5 Member states which
are not under a monitoring procedure or involved in a post-monitoring dialogue
54. Resolution
1515 (2006) imposed on the Monitoring Committee the task of preparing
periodic reports on all member states which are not the subject
of a monitoring procedure or involved in a post-monitoring dialogue,
Note sub-divided into three groups,
on the basis of a country grid indicating for each country the record of
signatures and ratifications of the main Council of Europe instruments
which provide for a specialised monitoring mechanism and summing
up the findings of such mechanisms when applicable.
55. The committee has established the practice of attaching such
periodic reports to its annual progress report to the Assembly,
with each group of countries reported upon every three years. We
have now come to the end of the second full cycle (which means that
each country in this category has been reported on twice), which
provides us with sufficient information for a more general assessment
of the efficiency and usefulness of this exercise. I will try to
draw some conclusions on the impact of this exercise in the next
chapter. Here I invite the reader to consult the addendum to this
report where the countries of the third group are assessed.
3 Some thoughts in
the light of the forthcoming 15th anniversary of the Assembly’s
monitoring procedure
3.1 Overview of the
evolution of the Assembly’s monitoring procedure and the committee’s working
methods
56. According to its terms of reference, the Monitoring
Committee is responsible for seeking to ensure the fulfilment of
the obligations assumed by the member states under the terms of
the Council of Europe Statute, the European Convention on Human
Rights and all other conventions concluded within the Organisation,
as well as the honouring of the specific commitments entered into
by the authorities of member states on their accession to the Council
of Europe.
57. The 15th anniversary of the establishment of the committee,
which will take place in January 2012, constitutes an excellent
opportunity to take stock of the results achieved and identify strengths
and weaknesses of the whole process.
58. The Monitoring Committee was established in January 1997 as
a result of a long process of reflection on how best to ensure the
respect of commitments and obligations of newly admitted member
states. It replaced the mechanism set up in 1993 and 1995 by two
decisions of the Assembly: Order No. 488 (1993) (called the “Halonen
Order” from the name of the rapporteur) by which the Political Affairs
Committee and the Committee on Legal Affairs and Human Rights were
seized with the task of reporting to the Bureau at regular six-month
intervals on the progress in fulfilling commitments, and Order No.
508 providing for a public Assembly debate and abolishing the distinction
between “old” and “new” member states: all member states were made
subject to the monitoring procedure.
59. Since its creation, the Monitoring Committee has systematically
sought to improve and develop its working methods with a view to
increasing its efficiency and impact. In 2000, the mechanism of
“post-monitoring dialogue” was introduced, in order to allow the
committee to follow the implementation of specific recommendations
made in the Assembly resolution closing the monitoring procedure.
60. In 2005, the rules governing the opening or re-opening of
the monitoring procedure were amended with a view to strengthening
the committee’s role in taking the decision and allowing for an
Assembly debate in case of diverging opinions between the Monitoring
Committee and the Bureau. The new rules ensure that the Bureau cannot
block the committee’s wish
Note to open or re-open
a procedure.
61. In 2002, the committee introduced a new procedure for presenting
certain reports on specific questions which allows it to immediately
react, if necessary, to worrying developments taking place in the
countries under monitoring procedure. These reports, usually focusing
on the functioning of democratic institutions or on constitutional
reform, do not have to be sent to the national authorities for comments
with a deadline of three months and therefore enable more timely
reaction to some events or crises. This practice has led to many debates
in the Assembly.
62. Since 2006, the committee has prepared periodic reports on
all member states not currently the subject of a monitoring procedure
or involved in a post-monitoring dialogue,
Note sub-divided into three groups, on the basis
of a country grid indicating for each country the state of ratifications
or signatures of the main Council of Europe instruments which provide
for a specialised monitoring mechanism and summing up the findings
of such mechanisms where applicable. These periodic reports are
attached to annual progress reports. This practice allows for parliamentary
oversight of the monitoring mechanisms of the intergovernmental
sector of the Council of Europe.
3.2 Overview of the
results of the country-specific monitoring procedure
63. During the almost fifteen years of its existence,
the Monitoring Committee has accompanied 20 member states in carrying
out their democratic reforms. The monitoring procedures
stricto sensu were closed in regard to
the Czech Republic (1997), Lithuania (1997), Slovakia (1999), Croatia
(2000), Latvia (2001), Turkey (2004) and Monaco (2009).
Note The post-monitoring dialogue was concluded
with Estonia (in 2000), Romania (2002), Lithuania (2002), Croatia
(2003), the Czech Republic (2004), Slovakia (2006) and Latvia (2006).
Currently, as already mentioned above, 10 members remain under a
monitoring procedure and four are involved in a post-monitoring
dialogue.
64. The added value of the Assembly’s monitoring process as compared
to convention mechanisms within and outside the Council of Europe,
remains unquestionable. It benefits from direct relations between
the Assembly as a whole and its members, who are at the same time
members of national parliaments – both from governing majorities
and opposition – and, as a logical consequence, from the influence
that the Assembly can exert directly on the legislatures of the
countries under monitoring. It is a peer-to-peer monitoring mechanism, and
this specific feature offers precious opportunities.
65. The essential feature of the Assembly’s monitoring procedure
is its essentially political nature. The process is not limited
to the assessment of formal fulfilment of obligations and commitments
– adoption of legislation or ratification of international instruments
– but it assesses the implementation of the legislation, the political
context and process. It takes into account the complexity of different
conditions and factors which may influence the situation in the
country.
66. In its work, the Assembly has always privileged a political
dialogue and non-confrontational approach, as opposed to a sanctions-oriented
approach. This is a natural consequence of monitoring being considered a
long-term process, based on mutual understanding and co-operation.
67. It is beyond any doubt that the overall assessment of the
15 years of the committee’s activities remains positive. It has
proved to be a valuable tool in accompanying member states in their
transition to democracy, and assisting them in compliance with Council
of Europe standards. However, certain difficulties in the committee’s
work should be noted. The two-year deadline for the presentation
of a report for each country under monitoring has not been systematically
respected. In the most extreme case, the Russian Federation, six
years have elapsed since the last full report was debated in the
Assembly.
68. But regarding some other countries, a symptomatic tendency
may be observed: more and more often, full monitoring reports are
replaced by reports on the functioning of democratic institutions
which have been designed as an instrument for quick reaction to
unusual political developments or concerns. Regrettably, the political
situation in these countries and almost permanent political crises
do not allow for a proper overall assessment of the progress, and
substantial analysis of the democratic process.
69. From the perspective of fifteen years, we may try to identify
certain patterns of the monitoring impact in terms of democratic
transition as well as most common obstacles and concerns which persist
in some countries hampering the advancement of a democratic process.
We should try to evaluate our efficiency and consider possible ways
to increase it.
70. It is true that a great number of reports presented by the
Monitoring Committee have been received with due attention and led
to public debates, often followed by the elaboration of national
action plans, reform packages or new legislation. The Assembly’s
evaluations and rapporteurs’ opinions and statements have their place
in national debates, are widely used by pro-democratic forces and
cannot be ignored in national policymaking.
71. I could quote many examples of concrete influence exerted
by the Assembly as a result of its monitoring activities. In many
cases, the Assembly has accompanied countries under the monitoring
procedure in the elaboration of comprehensive reform packages; sometimes
it has put pressure on the authorities in order to revise a concrete
law which was not in compliance with European standards, or to implement
existing legislation; it has also been instrumental during and following
political crises in some countries.
72. In Albania, the monitoring
mechanism contributed to overcoming a complete boycott of the parliamentary
work by the Socialist Party following the parliamentary elections
in 2009 as well as to the re-launching of political dialogue – even
if no tangible results have been achieved – between the governing Democratic
Party and the opposition.
73. In Armenia, the monitoring
resulted in the elaboration and adoption of a comprehensive constitutional reform
in November 2005, in close co-operation with the Venice Commission.
In addition, the monitoring procedure has played, and indeed continues
to play, a crucial, and widely recognised role in resolving the political
crises that erupted after the March 2008 events which contributed, inter alia, to the declaration of
a general amnesty and the release of a large number of persons arrested
for their alleged role in the March 2008 events, as well as to the
elaboration of the recently announced reform package focused on
the judiciary, police and electoral code.
74. In Azerbaijan, the
pressure of the Assembly has contributed to the elaboration and
adoption of a number of legislative acts in compliance with European
standards. Following the Assembly’s insistence, Azerbaijan has agreed
to co-operate with the Venice Commission throughout the legislative
process. In 2006, the intervention of the co-rapporteurs contributed
to the re-opening of the independent television Channel ANS following
a three-week closure.
75. In Georgia, the Assembly
has largely contributed to the considerable progress in the democratic transformation
following the Rose Revolution in 2004, and, in particular, it assisted
the new authorities with the elaboration of a roadmap for the reforms,
including deadlines.
76. In
Ukraine, the monitoring
procedure has closely accompanied the democratic reforms in the
country and contributed to democratic changes which led to the Orange
Revolution in 2004, and during the presidency of Mr Yushenko. The
priority given by the new authorities in the wake of the 2010 presidential
election to honouring the country’s remaining accession commitments
as well as to the constructive reaction to the last Assembly resolution
on the functioning of democratic institutions in Ukraine,
Note demonstrates the importance attached
to the monitoring procedure in the country.
77. For further examples, I invite the reader to consult our monitoring
reports on specific countries: each of them takes stock of positive
measures (as well as failures) undertaken by the authorities, often
as a result of Assembly insistence.
78. Moreover, the Assembly monitoring amplifies the work of intergovernmental
or judicial monitoring mechanisms, thus adding political weight
and influence to recommendations made by their executive bodies. In
this context, the political pressure exerted on the national authorities
of countries concerned for a full and speedy execution of the judgments
of the European Court of Human Rights is of particular importance. Similarly,
findings of the Assembly monitoring are often used by the other
Council of Europe monitoring mechanisms in their areas of action.
79. The work of the Monitoring Committee with regard to the consequences
of the 2008 war between Georgia and Russia is widely recognised
and credited in, inter alia,
the report of the Independent International Fact-Finding Mission
on the Conflict in Georgia (IIFFMCG - CEIIG) and in the context
of the judgment of the International Court of Justice in the Application
of the International Convention on the Elimination of All Forms of
Racial Discrimination (Georgia v. Russian
Federation).
80. The impact of the Assembly’s monitoring procedure may also
be illustrated by the use made of its findings and conclusions by
the European Commission in its assessment of applicant countries’
progress on the way to integration in the European Union. Furthermore,
compliance with Council of Europe obligations and commitments is
an important element in the assessment of the democratic and human
rights record of the European Neighbourhood Policy. The Action Plans
for the countries which are members of the Council of Europe systematically
include reference to compliance with statutory obligations and commitments.
81. It must be stressed here that membership of the European Union
has no influence on the decision concerning the closure of the Assembly
monitoring procedure, as is well illustrated by the case of Bulgaria. Similarly,
any member of the Council of Europe, irrespective of its membership
in the European Union, may be subject to re-opening of the monitoring
procedure, as shown by the examples of parliamentary initiatives
in respect to the United Kingdom or currently Hungary.
82. On the other hand, a number of serious concerns persisting
in certain countries causes a growing feeling of frustration among
some members who raise justified questions about the whole exercise.
It is sometimes pointed out that, in some countries under monitoring
procedure the democratic progress is questionable, and, in some
cases, serious setbacks in the field of democracy can even be observed.
83. Indeed, there are a number of states which have remained under
the monitoring procedure or post-monitoring dialogue for over fifteen
years now,
Note while
almost all others have been subject to the monitoring procedure
for as long as ten years; and yet in several cases one can hardly
envisage the closure of the procedure in the foreseeable future.
Equally worrying, in some countries, it is difficult if not impossible
to carry out an assessment of the overall progress in the core areas
of human rights, democracy and the rule of law, as attention is
continuously focused on current political crises which overshadow
all other important questions.
84. In this context, I would like to look more closely at some
basic principles of democracy, the lack of respect of which in some
countries under monitoring procedure raises recurrent concerns.
85. Free and fair elections based on political pluralism and democratic
environment constitute a precondition for democracy. Representative
democracy is a core principle of a democratic system, and an ultimate requirement
for its legitimacy. The committee has often been associated with
the exercise of election observation in member states under monitoring:
its rapporteurs, as a general rule, participate in the pre-electoral
or observation missions to the countries for which they are responsible.
Note The conclusions of
these missions are systematically taken into account in the monitoring
reports on the countries concerned.
Note The committee is also represented
in the Council of Democratic Elections of the Venice Commission.
86. In a number of countries under monitoring procedure, serious
shortcomings of the electoral process have been repeatedly noted.
The concerns relate on the one hand to the deficiencies of electoral
laws which do not fully comply with Council of Europe standards,
and on the other to an unsatisfactory political environment which
hampers the electoral process, and includes insufficient political
pluralism, unfair electoral campaigns, shortcomings during the registration
of candidates or vote, violation of freedom of expression and assembly,
on occasion pre- or post-electoral violence, as well as refusals
to recognise the results of the elections and ensuing boycotts of
parliament by the opposition.
Note
87. In Albania, although
the last parliamentary elections of 2009 were considered globally
fair and free, the politicisation of the electoral process and infringements
found during the campaign, as well as some irregularities noted
during the vote, gave rise to the current serious political crisis.
88. Moreover, the legislative framework for the electoral process
needs to be revised with a view to enhancing the capabilities of
the electoral administration as regards the electoral register,
regulation of media coverage and funding of campaigns, the rules
of transparency relating to media ownership, the electoral commissions
and lists of candidates.
89. In Armenia, the lack
of public confidence in the electoral process during the 2008 presidential
election, aggravated by unequal campaign conditions and problems
noted during the vote counting and tabulation, as well as with the
handling of election related complaints, triggered off a political
crisis which resulted in the tragic events of March 2008.
90. Fortunately, the authorities have now understood that a comprehensive
electoral reform with a view to ensuring fair and equal conditions
for all candidates and increasing public confidence in the electoral
process, including the appeals and complaints procedure, is a necessary
condition for the restoration of public confidence. The reforms
in this area are particularly important in the light of the upcoming
elections foreseen for May 2012.
91. In Azerbaijan, both
the presidential election of 2008, and the parliamentary elections
of 2010 clearly showed that democratic progress is still needed.
The result of the former was considered as “the reflection of the
will of the country’s electorate” by the Assembly observers but
violations were noted during the vote, and in particular, the tabulation
of the votes. Regrettably, five political parties did not take part
in the election and there was no real competition between the platforms
and political ideas.
92. The conduct of the latter was considered overall insufficient
to constitute meaningful progress in the democratic development
of the country. Main concerns related to a deficient candidate registration
process, a restrictive political environment, administrative obstacles
to mounting an effective campaign, unbalanced and biased media coverage,
misuse of administrative resources, as well as the unbalanced composition
of election commissions, alleged irregularities on voting day and
an unsatisfactory appeals system.
93. A restrictive political environment, including outside electoral
campaigns, with limitations on the freedom of expression, on the
freedom of assembly, intimidation and in some cases even persecution
of members of the opposition, impedes the establishment of genuine
political pluralism and competitiveness.
94. Regrettably, the electoral code, as amended in 2010, did not
address outstanding recommendations of the Venice Commission and
the Office for Democratic Institutions and Human Rights of the Organization
for Security and Co-operation in Europe (OSCE/ODIHR), in particular
those relating to the composition of the election commissions. Furthermore,
the Election Code still contains inconsistencies and ambiguities,
not least relating to candidate eligibility, as well as to the complaints
and appeals process.
95. The composition of Parliament in Bosnia
and Herzegovina is directly affected by the constitutional ethnicity-based
limitations on the right to stand for office. The Assembly has,
on several occasions, called on the authorities to remove these
limitations in order to bring the electoral legislation and composition
of Parliament in compliance with the standards of the European Convention
on Human Rights.
96. In late 2009, the European Court of Human Rights adopted its
judgment in the case of Sejdic and Finci v.
Bosnia and Herzegovina which confirmed that the electoral
arrangements, as well as the constitutional ethnicity-based limitations
on the right to run for elections to the Presidency and the House
of Peoples are contrary to the European Convention on Human Rights.
Unfortunately, the recent parliamentary elections of 3 October 2010
were held according to this system and resulted in an ongoing political
crisis.
97. In the Russian Federation,
according to the Assembly observers, while the outcome of the parliamentary
elections of 2007 and the presidential election in 2008 generally
reflected the political will expressed by the Russian voters, significant
shortcomings resulted in an election process that undermined political
pluralism and did not comply with Council of Europe standards for
democratic elections.
98. Despite a number of amendments to the electoral code aimed
at its liberalisation and adopted by the Duma in 2009-2010, limited
political pluralism and a restrictive political environment remain
serious matters of concern. Certain issues such as restrictions
on party registration or the excessively high threshold still need
to be addressed.
99. A restrictive climate for the activities of the opposition,
with limitations on the freedom of expression and on the freedom
of assembly, jeopardise the political process as a whole.
100. The forthcoming parliamentary and presidential elections (in
December 2011 and March 2012, respectively) will be crucial for
the assessment of the democratic credibility of the country.
101. The presidential election which took place in Ukraine in 2010 was considered
generally in line with Council of Europe standards, notwithstanding
attempts by different political forces to manipulate the legal framework
for the elections up to the day of voting. However, the inconsistencies
in the legal framework for elections in Ukraine, and the manipulation
of the legal framework by all contestants, clearly underscore the need
for a unified election code, as repeatedly recommended by the Assembly.
102. In Georgia, the current
electoral code is criticised for being favourable to the ruling
party. Therefore, the Assembly welcomed the establishment of a cross-party
working group to draft a new election code, which resulted in the
legal framework for local elections being changed on a consensual
basis. The Assembly urged all political forces in Georgia to pursue
the dialogue and agree on the reform of the election code, including
the electoral system, well before the next parliamentary elections
in the country foreseen for 2012.
103. Electoral legislation has to be further improved in Moldova. In particular, the threshold
for party lists to access the allocation of seats in Parliament
should be reviewed, the accuracy in the voters’ lists should be improved
and an electronic voter register should be created. The Moldovan
authorities have been called upon by the Assembly to promptly adopt
a new law governing the election of members of parliament, in order
to increase voters’ influence on the choice of a specific candidate
within a party list.
104. The repeated criticism of elections in some countries raises
justified concern; indeed, the correct functioning of democratic
institutions is pre-conditioned by the representativity, and, as
a consequence, legitimacy of the elected body. The lack of a meaningful
electoral process has an immediate consequence in the weak presence
or even absence of genuine opposition in the parliament, and, as
a result, in no parliamentary co-operation with the opposition.And yet, the efficiency of parliaments
is to a great extent a result of their representativity and capacity
for serving as a platform for dialogue between different political
forces.
105. Regrettably, in a number of countries, parliaments are monopolised
by a limited number of political forces. It should be emphasised
once again that a strong and active parliamentary opposition is
beneficial to democracy. The respect for the rights of opposition,
as well as the establishment of a democratic environment in which
the opposition can work and flourish, is a necessary feature of
a stable democracy. Regrettably, such conditions are still not met
in a number of countries where the Assembly has noted violations
of basic freedoms, for example freedom of assembly, freedom of expression,
or free press.
106. These countries are usually characterised by the existence
of an important extra-parliamentary opposition. In such cases, in
the interest of the democratic process as a whole, the pursuit of
a political dialogue with the extra-parliamentary opposition should
be a priority for the authorities and their inclusion in the political decision-making
process should be ensured. However, the only long-term solution
is the establishment of an electoral framework that allows the participation
of a wide array of political forces on equal terms and with no undue
restrictions for any contestation.
107. It is a matter of concern that a large part of the opposition
in the Russian Federation remains
outside the Duma and is not involved in the political dialogue.
Meaningful progress in this respect requires considerable improvements
in the political environment which would allow for opposition forces
to be genuinely competitive in the electoral process and for the
establishment of a genuine multi-party system.
108. In Azerbaijan,following the recent elections,
the majority of the opposition remains outside the parliament. Only
one seat was won by one of the main opposition parties. It is a
matter of fact that the opposition in Azerbaijan is weak and fragmented.
The authorities complain that it has no constructive approach and
prefers to criticise it rather than to enter into political dialogue.
109. While it may be a matter of debate whether the fragmentation
and the lack of constructive approach of the Azerbaijani extra-parliamentary
opposition can be explained by the conditions in which it is bound
to operate, it is true that any opposition should have not only
rights but also responsibilities, and one of the main responsibilities
consists in the readiness to look for political solutions through
political dialogue. Again, it is in the best interest of all political
forces, including those in power, if this political dialogue takes
place in the parliament and not outside it.
110. In this context, the recent alleged reports about a repressive
climate vis-à-vis political
forces critical towards the government, in particular with regard
to the freedom of assembly and expression, must raise justified
concern.
111. In Armenia,a significant part of the opposition
is not yet represented in parliament. However the relations between
the authorities and opposition, and indeed the overall political
climate, continue to be poisoned by a number of unresolved issues
following the March 2008 events. Recent developments have raised
the prospect that these issues might be resolved satisfactorily
in the not too distant future, which could herald the start of a more
constructive dialogue between the different political forces
112. In Georgia,the stand-off between the opposition
and ruling party, with the resulting climate of distrust and polarisation,
was at the origin of the November 2007 events, and worsened after
the presidential election in 2008. However, recently, also as a
result of the efforts of the government, a dialogue has started
between the authorities and a significant part of the opposition,
which has markedly improved the political climate in the country.
A litmus test for this co-operation, and indeed for the consolidation
of democracy in Georgia, will be the preparations for, and conduct
of, the upcoming parliamentary elections in 2012.
113. Following the May 2008 parliamentary elections, 14 opposition
members out of 17 took the regrettable decision not to take up their
mandates in the newly elected parliament. It has to be emphasised
that the authorities announced a number of initiatives to strengthen
the parliamentary opposition and to re-start the dialogue that had
broken down before the elections. In particular, they adopted changes
to the parliamentary rules of procedure that allowed the lowering
of the number of MPs to establish a faction.
114. In Albania,the inability to co-operate between
the ruling party and the opposition, following the parliamentary
elections of June 2009, triggered an ongoing political crisis and
led to the tragic events of January 2011.
115. The Assembly has repeatedly called on the main opposition
party in Albania (Socialist Party) to terminate its boycott of the
work of the parliament and enter into a constructive political dialogue
with other political forces. It is the responsibility of political
leaders to call on the population to demonstrate their support within
the democratic institutions and not in the street.
116. The inability of co-operation between different political
forces in Bosnia and Herzegovina has
resulted in a serious political crisis in this country. During the
last Assembly part-session in April 2011, the co-rapporteurs urged
all political stakeholders to finally act responsibly and not to
delay any further government formation at state level.
117. In Moldova, relations
between the majority and the opposition are extremely polarised.
This has led to a political and institutional deadlock over the
election by parliament of the President of the country, and, as
a consequence, to two consecutive dissolutions of parliament. Regrettably,
so far the second anticipated parliamentary elections in November
2010 did not bring about a political compromise which is urgently
needed in the country.
118. The inability of parliaments to serve as a platform for political
dialogue is directly interlinked with another persisting concern
in some countries under monitoring procedure: constitutional problemswhich are often at the same time
the origin and the result of the lack of representativity of elected
bodies. The main symptoms of these problems are the weakness of
parliament vis-à-vis executive authorities, lack of independence
of the judiciary, and, more generally, an unsatisfactory system
of checks and balances.
119. In a number of countries, the role of parliament as a necessary
counterweight to the executive power is not always well established.
This weakness may be due to a variety of reasons, including shortcomings
in the constitutional framework, lack of representativity of an
elected body and the absence or weak presence of genuine opposition,
as well as the lack of the necessary structures, staff and legal
expertise.
120. The lack of independence of the judiciary is a matter of concern
in a number of countries. Some emblematic cases of politicised court
decisions are symptoms of more serious democratic deficiencies.
3.3 Conclusions following
the end of the second cycle
121. In my attempt to draw some conclusions following
the completion of two full cycles of periodic reports on the honouring
of statutory obligations by the countries which are not subject
to the monitoring procedure stricto sensu, I
have encountered some methodological difficulties.
122. As said before, the countries are divided into three groups,
each of them being evaluated in an annual report. The first cycle
started in 2006 with 11 countries and was completed in 2008 when
all 33 countries had been evaluated; the second one started in 2009
again with 11 countries, and ends in 2011. This means that the only
thing we can compare is the progress made by specific countries
over three years, but this is not necessarily up to date, and the
information concerning some of them (namely those from the first
and second groups) will be respectively three or two years old.
123. In my view, however, this does not constitute an obstacle
to assessing the usefulness of periodic reports. Indeed, the purpose
of this exercise is to evaluate to what extent the countries which
are not subject to a monitoring procedure proper, advance in the
way of fulfilment of their obligations. My aim is to examine whether there
is any tangible progress in terms of following the recommendations
formulated by the Council of Europe monitoring mechanisms, or whether
these recommendations are ignored. In other words, I intend to ascertain whether
there is a clear political will in these countries to comply with
the obligations resulting from their membership of the Council of
Europe.
124. In its periodic reports, the committee assesses the state
of honouring of statutory obligations in three main areas, namely
pluralistic democracy, the rule of law and the protection of human
rights. As we have no specific rapporteurs on these countries, under
each of these headings we can only rely on the findings of relevant
selected Council of Europe monitoring mechanisms. This methodology
is based on the assumption that the countries concerned have signed
and ratified relevant international instruments (which is their
statutory obligation) and that they are subject to their specific
monitoring mechanisms.
125. Regrettably, despite repeated calls, at the end of the second
cycle, we have to note that a number of these international instruments
crucial for the evaluation process, have not been signed or ratified
by a number of countries subject to this kind of monitoring. As
of today, among 33 members concerned, there is not a single country
which has signed and ratified all Council of Europe conventions
with a monitoring mechanism.
126. In particular, in the area of human rights, the European Charter
for Regional or Minority Languages (ETS No. 148) has not been signed
by Andorra, Belgium, Bulgaria, Estonia, Greece, Ireland, Latvia,
Lithuania, Monaco, Portugal and San Marino. It has been signed but
not ratified by France, Iceland, Italy and Malta.
127. Another crucial instrument, namely the Framework Convention
for the Protection of National Minorities (ETS No. 157) has not
been signed by Andorra, France and Monaco, and signed but not ratified
by Belgium, Greece, Iceland and Luxembourg.
128. The Convention on Action against Trafficking in Human Beings
(CETS No. 197) has not been signed by the Czech Republic, Liechtenstein
and Monaco, and signed but not ratified by Estonia, Finland, Germany, Greece,
Hungary, Iceland, Ireland, Lithuania and Switzerland.
129. Protocol No. 12 to the Convention for the Protection of Human
Rights and Fundamental Freedoms (ETS No. 177) concerning the prohibition
of discrimination, has not been signed by Denmark, France, Lithuania, Malta,
Monaco, Poland, Sweden, Switzerland and the United Kingdom, and
signed but not ratified by Austria, Belgium, the Czech Republic,
Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Norway,
Portugal, the Slovak Republic and Slovenia.
130. Protocol No. 1 to the Convention for the Protection of Human
Rights and Fundamental Freedoms (ETS No. 9) adding new fundamental
rights to those protected under the Convention, namely the right
to peaceful enjoyment of property, the right to education and the
right to free elections by secret ballot has not been ratified by
Monaco and Switzerland.
131. The European Social Charter (revised) (ETS No. 163) has not
been signed by Liechtenstein and Switzerland, and signed but not
ratified by Austria, the Czech Republic, Denmark, Germany, Greece,
Iceland, Latvia, Luxembourg, Monaco, Poland, San Marino, Spain and
the United Kingdom.
132. The Additional Protocol to the European Social Charter Providing
for a System of Collective Complaints (ETS No. 158) has not been
signed by Andorra, Estonia, Germany, Iceland, Latvia, Liechtenstein,
Lithuania, Luxembourg, Malta, Monaco, Poland, Romania, San Marino,
Spain, Switzerland and the United Kingdom, and signed but not ratified
by Austria, the Czech Republic, Denmark, Hungary, the Slovak Republic
and Slovenia.
133. In the field of the rule of law, the Civil Law Convention
on Corruption (ETS No. 174) has not been signed by Liechtenstein,
Monaco, Portugal, San Marino and Switzerland, and signed but not
ratified by Andorra, Denmark, Germany, Iceland, Ireland, Italy and
Luxembourg.
134. The Criminal Law Convention on Corruption (ETS No. 173) has
been signed but not ratified by Austria, Germany, Italy, Liechtenstein
and San Marino.
135. The Convention on Laundering, Search, Seizure and Confiscation
of the Proceeds from Crime and on the Financing of Terrorism (CETS
No. 198) has not been signed by Andorra, the Czech Republic, Denmark, Estonia,
Germany, Ireland, Liechtenstein, Lithuania, Monaco, Norway and Switzerland,
and signed but not ratified by Austria, Finland, France, Iceland,
Italy and Sweden.
136. I wish to point out that the signature and ratification of
the international instruments listed above has been included in
the list of some of the commitments undertaken by the “newer” member
states upon their accession to the Council of Europe. And I have
to state that, in general, they are much more advanced in fulfilling
these commitments than the “older” members for whom the signature
and ratification of these conventions also constitutes a statutory
obligation.
137. A chart appended to the present report shows the state of
signatures and ratifications by each country from the group which
are of interest in this chapter. We can see that there are many
countries which have not ratified more than three conventions, and
some, like Andorra or San Marino, which have not ratified more than five.
138. On the other hand, however, if we compare the numbers of signatures
and ratifications for each group of countries in the first and the
second cycle, we can note an increase which is a positive development.
Over the three years which separate these two evaluations, some
countries have made an important effort in honouring their obligations.
139. Keeping in mind the shortcomings of the present methodology
which I mentioned above, and by no means claiming to provide an
exhaustive analysis, I would like to draw attention to some particularly
worrying concerns revealed by the monitoring mechanisms of the core
conventions with regard to the countries not subject to our parliamentary
monitoring procedure stricto sensu.
140. Effective implementation of judgments of the European Court
of Human Rights remains a concern in some of the states which are
not covered by the monitoring procedure
. In
particular, extremely worrying delays
Note have arisen in Greece, Italy, Poland
and Romania. In some cases they reveal major structural problems
which lead to repetitive violations of the European Convention on
Human Rights.
Note
141. The problem of excessive length of judicial proceedings remains
systemic in Italy and Greece. Unlawful or overlong detention on
remand must be eliminated in Poland. Furthermore, the United Kingdom
must put an end to the practice of delaying full implementation
of Court judgments with respect to politically sensitive issues, such
as prisoners’ voting rights.
142. On 15 March 2011, the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (CPT)
issued a public statement concerning Greece as an exceptional measure
in reaction to the persistent lack of action since 1997 to improve
the situation in the light of the Committee’s recommendations, as
regards the detention of irregular migrants and the state of the
prison system. The CPT has carried out 10 visits to Greece since
1993, and recommendations in this field, repeatedly put forward,
have not been followed.
143. The European Commission against Racism and Intolerance (ECRI)
has drawn attention, on several occasions, to the particular concerns
persisting in some countries which are not subject to the parliamentary monitoring
procedure, despite repeated calls on the authorities to eliminate
them.
144. For example in its report on France, published in 2010, ECRI
pointed out that many recommendations made five years earlier with
regard to Roma migrants’ human rights as well as social rights to
housing, health and education had not been followed. The report
stressed that government policies or legislative proposals that were
grounded in discrimination on ethnic grounds were impermissible
and ran counter to the legal obligations binding on all Council
of Europe member states.
145. In a statement published in 2008, ECRI expressed its deep
concern about the situation of Roma and many immigrants in Italy
who had been the subject of violent racist attacks. ECRI particularly
regretted the persistent racist and xenophobic discourse by some
Italian politicians, even at the highest level and in the media.
It also noted that the recommendations in this regard, contained
in its report on Italy published in 2006, had not been fully implemented.
146. It goes without saying that the above list of concerns is
purely illustrative and far from exhaustive; its only purpose is
to demonstrate that respect for obligations remains a problem also
in the countries which have never been covered by the Assembly monitoring
procedure stricto sensu.
147. It also illustrates the relatively low importance attached
to these questions among the members: indeed, the addenda to the
progress reports are rarely if ever discussed in the committee or
in the Assembly, there is no concrete follow up to the concerns
raised therein. Perhaps one of the reasons lies in the format of
these periodic reports, which, indeed, are quite difficult to read
and interpret.
148. This brings me to the question of a possible modification
of this periodic exercise: should we appoint rapporteurs, responsible
for analysis, conclusions and follow-up to these periodic reports?
Should we concentrate on the countries where serious shortcomings
have been detected by other monitoring mechanisms? Should we systematically
track these persistent shortcomings, and open a parliamentary dialogue
on possible measures to be taken with the countries concerned? Should
we present “information reports” on specific countries to the committee
with a view to possible further action? This would of course require
changes to the modus operandi of the committee.
149. I put all these questions to the committee for further consideration
and discussion which will perhaps result in some better and more
efficient solutions.
4 Options for the
future
150. In view of the forthcoming 15th anniversary of the
parliamentary monitoring procedure, and in the hope of provoking
a genuine debate with regard to concerns outlined in the previous
chapter, I would like to raise a number of questions for further
reflection.
151. While the overall positive assessment of the Assembly monitoring
achievements since the establishment of the system until now remains
unquestionable, the future of this exercise should be thoroughly
examined.
152. We are at present confronted with a situation in which a number
of countries which have been under a monitoring procedure for many
years do not seem to be making any significant progress in terms
of the fulfilment of their obligations and commitments. This is
sometimes a cause of justified frustration among other member states
anxious about the credibility of our Organisation, but also in the
countries concerned.
153. The problem is amplified by the fact that ongoing political
crises in these countries and the need for quick responses, make
it difficult if not impossible for the Assembly to proceed with
an overall assessment of progress as regards the fulfilment of their
obligations and commitments.
154. Furthermore, given the interlinkage between the different
pillars of democracy, the shortcomings in one area are usually aggravated
by the problems in other core areas of democracy. Thus, flawed elections
often result in a deficient checks and balances system, and the
latter is frequently at the origin of human rights abuses, and so
on. In an overall deficient democratic system, focus on just one
specific aspect of democracy may be misleading.
155. Similarly, as regards our periodic reports on member states
which are not subject to a monitoring procedure, in the light of
the conclusions after the completion of two full cycles, we seem
to have reached a point where further progress, though needed, is
questionable.
156. In this situation, we have to face inevitable questions: should
we set any limits for the duration of the monitoring procedure?
Should we modify our strategy and identify new measures in order
to increase the impact of the monitoring? Should we look for a completely
renewed framework with a view to achieving the same ultimate goal?
We can already observe a certain lack of comprehension on the part
of some countries with a long-standing monitoring record and their
growing frustration and impatience.
157. This touches on a more general issue of the mandate of the
committee and the modalities of its fulfilment. While nobody puts
into question the need for some kind of monitoring of all Council
of Europe member states, the way it is carried out at present is
not unanimously accepted.
158. At present, as I mentioned in Chapter 2, there are 10 countries
under the monitoring procedure
stricto sensu and
four countries involved in a post-monitoring dialogue. We can expect
that in a not too distant future, these numbers will go down. On
the other hand, the majority of members are not submitted to a comparable scrutiny
regarding their compliance with statutory obligations. Even if theoretically
it is possible to re-open or open a monitoring procedure with regard
to any member, in reality this tool is used only exceptionally.
Note
159. My personal view is that we should change our approach in
this respect and the future of this committee lies in reacting –
by means of motions for re-opening or opening of a procedure – to
concrete concerns of democracy in all Council of Europe member states.
160. Furthermore, as I said earlier, in its monitoring practice,
the Assembly has always opted for a constructive dialogue and any
sanctions have only been adopted as exceptional measures. This has
proved to be a very efficient approach in a great number of cases,
and I have quoted many encouraging examples of progress brought
about in this manner. There are other cases, however, when repeated
calls, recommendations and persuasion have had no impact. In such
situations, should we maintain our strategy, at the risk of putting
the credibility of the whole process at stake? Should we be patient
and comprehensive at the expense of our values? How long should
we wait? Or perhaps we should enlarge a range of possible sanctions and
apply them in a transparent way.
161. Finally, there is a group of questions concerning our working
methods, including the modalities of co-operation with other monitoring
mechanisms inside and outside the Organisation, with civil society
and the extra-parliamentary opposition. Should we increase our contacts
with the latter, for example, by inviting them more systematically
to our meetings, or by organising hearings?
162. One of the initiatives of the members of the committee, currently
taking shape in the form of roadmaps for the implementation of outstanding
obligations and commitments for specific countries, is interesting
and certainly worth further consideration. Nonetheless, the question
of delivery remains, and promises and good intentions cannot endlessly
replace concrete results.
163. Certainly, there is no one, ultimate reply to all these questions.
Every situation is unique and methods should be adapted accordingly.
But the questions deserve to be asked, and reflections should be
launched.
164. The above considerations seem to me particularly timely in
the context of the ongoing discussions on the more general question
of the reform of the Assembly: its place, role and relevance in
the future of our societies; and I sincerely hope that this report
will initiate an exchange of ideas and proposals designed to improve
our monitoring of obligations and commitments of all Council of
Europe member states.
Annexe:
Appendix 1: Chart of ratifications and signatures of the
main Council of Europe conventions with a monitoring mechanism by
the first group of 11 member states
Appendix 2: Chart of ratifications and signatures of the main
Council of Europe conventions with a monitoring mechanism by the
second group of 11 member states
Appendix 3: Chart of ratifications and signatures of the main
Council of Europe conventions with a monitoring mechanism by the
third group of 11 member states
Table of abbreviations
R: Ratified
S: Signed but not yet ratified
–: Neither signed nor ratified
ECHR: European Convention on Human Rights
ECPT: European Convention for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment
ESC: European Social Charter (1961 or revised)
FCNM: Framework Convention for the Protection of National
Minorities
ECRML: European Charter for Regional or Minority Languages
ECLS-G: European Charter of Local Self-Government
