B Explanatory
memorandum by Mr Agramunt, rapporteur
1 Introduction
1. On 30 April 2010, the Parliamentary Assembly referred
the question of the harmonisation of regulatory and para-regulatory
provisions of monitoring and post-monitoring dialogue procedures
to the Committee on Rules of Procedure, Immunities and Institutional
Affairs for report. That reference followed the adoption by the Standing
Committee, on 12 March 2010, of
Resolution 1710 (2010) on the term of office of co-rapporteurs of the Monitoring
Committee and
Resolution
1698 (2009) on amendment of various provisions of the Parliamentary
Assembly’s Rules of Procedure.
2. More recently, at its meeting on 3 September 2012, the Bureau
of the Assembly decided to refer the issue of a possible modification
of
Resolution 1115 (1997) on the setting up of an Assembly committee on the honouring
of obligations and commitments by member states of the Council of
Europe (Monitoring Committee), aimed at introducing a time limit
for the Monitoring Committee's deliberation on whether or not to
open a monitoring procedure for a member State, to the Committee
on Rules of Procedure, Immunities and Institutional Affairs for
report and to the Monitoring Committee for opinion.
3. The latter decision was taken in the wake of the Presidential
Committee’s visit to Romania (18 and 19 July 2012) and the exchange
of views held by the members of the Bureau on the question of reopening
a monitoring procedure in respect of Romania. During that exchange
of views, the case of the political situation in Hungary was raised,
in view of the fact that the Monitoring Committee had been instructed,
in March 2011, to examine the issue of the rule of law and human
rights in Hungary, following the referral of a motion for a resolution
requesting the initiation of a monitoring procedure for Hungary
(
Doc. 12490). This examination is still ongoing. Some members of
the Bureau criticised the slowness of the procedure, which might
raise questions about the Assembly's capacity to react and effectiveness;
they concluded that the Assembly should tackle this question, possibly
by envisaging an amendment to
Resolution
1115 (1997), giving the Monitoring Committee a time limit to decide
on whether or not to open a monitoring procedure for a member State.
Note
4. At its meeting on 4 October 2012, the Committee on Rules of
Procedure decided to deal with this question in the framework of
the present report on harmonisation of regulatory and para-regulatory
provisions of monitoring and post-monitoring dialogue procedures.
2 Points
for consideration
5. Since the creation, by
Resolution 1115 (1997), of an ad hoc mechanism monitoring the obligations and commitments
entered into by Council of Europe member States, implemented by
a specific Parliamentary Assembly committee created by that document
– the Monitoring Committee, which celebrated its fifteenth year of
existence in April 2012 –, the Assembly has taken the opportunity
on several occasions to improve the procedure enabling it to check
that Council of Europe member States honour the obligations contracted
by them under the Statute of the Council of Europe (ETS No. 1),
the European Convention on Human Rights (ETS No. 5) and all the
other Council of Europe conventions to which they are Party, as
well as the specific commitments they may have entered into upon
joining the Council of Europe:
- Resolution 1431 (2005) specified the procedure and conditions for opening or
reopening a monitoring procedure in respect of a member State;
- Resolution
1515 (2006) set a time limit for the Bureau of the Assembly to refer
a motion for a resolution requesting initiation of a monitoring
procedure to the Monitoring Committee and also established the procedures
governing the closure of post-monitoring dialogue with a member
State;
- through Resolution
1698 (2009), it was decided to limit the number of members of a
national delegation from a State under monitoring procedure or involved
in a post-monitoring dialogue sitting on the Monitoring Committee
and also that periodic reports (every four years) on each country
involved in a post-monitoring dialogue would be presented to the
Assembly;
- Resolution
1710 (2010) revised the term of office of Monitoring Committee rapporteurs
involved in a monitoring procedure or post-monitoring dialogue (by
allowing the appointment of rapporteurs for post-monitoring dialogue),
set the duration of the rapporteurs' term of office and also codified
the criteria for appointing rapporteurs;
- finally, Resolution
1841 (2011) amended the conditions for opening or reopening a monitoring procedure,
increasing the number of signatures required for an application
from “not less than ten members of the Assembly representing at
least five national delegations and two political groups” to “not less
than twenty members of the Assembly representing at least six national
delegations and two political groups”.
6. In the context of the present report, it is obviously not
for the Committee on Rules of Procedure to review the entire monitoring
procedure, which, indeed, is not at all desirable in the eyes of
the Monitoring Committee. The focus will therefore be on that committee's
own considerations in the context of its last two progress reports (“The
progress of the Assembly’s monitoring procedure (June 2010 – May
2011)”,
Doc. 12634, rapporteur: Mr Dick Marty; and “The progress of the
Assembly’s monitoring procedure” (June 2011 – May 2012)”,
Doc. 12954, rapporteur: Mr Andres Herkel).
7. Accordingly, the Committee on Rules of Procedure is invited
to consider more specifically the following questions:
- on the one hand, whether it
is necessary to revise the current arrangements of the monitoring
and post-monitoring procedures in the light of the Monitoring Committee's
recent experience, for example regarding the rapporteurs' term of
office or the frequency with which reports are presented to the Assembly;
- on the other hand, whether the Monitoring Committee should
be set a time limit for deciding whether to open or reopen a monitoring
procedure in respect of a member State;
- finally, whether it should be specified in the Monitoring
Committee's terms of reference that it is competent to examine questions
concerning the functioning of democratic institutions in Council
of Europe member States, in connection with the honouring of their
statutory and convention-based obligations.
2.1 Setting of a time
limit for examining an application to open or reopen a monitoring
procedure
8. The mechanism for opening or reopening a monitoring
procedure in respect of a member State, as set out in the terms
of reference of the Monitoring Committee, is fairly complex.
NoteNoteNoteNoteNoteNoteNoteNoteNoteNoteNoteNoteNoteNote The process
of examining an application, as it involves the Monitoring Committee
and the Bureau of the Assembly and is not governed by a fixed time
frame, may be lengthy.
9. The Monitoring Committee has been tasked, in fifteen years,
with examining six applications for the opening of a monitoring
procedure, in respect of: Latvia (1997), Austria (2000), Liechtenstein
(2003), the United Kingdom (2006), Italy (2006) and Hungary (2011)
– the latter application is still being examined.
Note Only
the first application (concerning Latvia) resulted in the opening
of a monitoring procedure. There has never been an application to
reopen a monitoring procedure in respect of a member State for which
a monitoring procedure has been closed.
10. As Andres Herkel points out in the last progress report of
the Monitoring Committee, the amendments made in 2005 to the rules
governing the opening of a monitoring procedure clearly sought to
strengthen the position of the Monitoring Committee, inter alia by preventing the Bureau
of the Assembly from blocking the committee's recommendation to
open or reopen a monitoring procedure, and by then allowing the
Assembly to debate it.
11. In the penultimate progress report of the Monitoring Committee,
the rapporteur, Dick Marty, took the view that “the future of this
committee lies in reacting – by means of motions for reopening or
opening of a procedure – to concrete concerns of democracy in all
Council of Europe member States”. However, in practice, no decision
to open or reopen a monitoring procedure in respect of a member
State has been implemented since 1997. The methodology itself used
by the Monitoring Committee to examine an application clearly places
the emphasis on forging constructive dialogue and seeking solutions
to the political or legal problems signalled, prior to any proposal
that the Assembly open or reopen a monitoring procedure. As Mr Marty
points out, this approach has very often yielded results.
12. At its meeting on 24 January 2013, the Monitoring Committee
held an exchange of views at the initiative of the rapporteur of
the Committee on Rules of Procedure, Mr Agramunt, who is also a
member of the Monitoring Committee. The vast majority of the members
who spoke were in favour of maintaining the status quo in the existing
procedure and were very much against the period of investigation
by the committee being placed within a strict time frame. In particular,
they pointed out that the examination of an application to open or
reopen a monitoring procedure enabled the committee, via its co-rapporteurs,
to engage in substantial political dialogue with the talking partners
concerned – national authorities, political opposition, etc. – and
that exercise had proved particularly fruitful.
13. It is understandable that work in the Monitoring Committee
on applications referred to it for the opening or reopening of a
monitoring procedure prompts a degree of restiveness in the Bureau
of the Assembly and more generally impatience on the part of Assembly
members, borne of an eagerness to hear the committee's conclusions
as soon as possible. However, confining the committee's work to
a very short time frame (a deadline of six months was mentioned
in discussions within the Bureau) could result in its assessment
being truncated, precluding action on any recommendations or solutions
it might put forward.
14. Finally, it is to be noted that the Rules of Procedure provide
for a swift means for the Assembly to decide whether to open or
reopen a monitoring procedure in respect of a given State, simply
by adopting a clause along these lines in a resolution, a recommendation
or the opinion on accession itself. So it is the case that two procedures
co-exist: one allowing the Monitoring Committee to carry out a full
and substantial investigation of a member State's situation regarding
the honouring of its obligations, and another, more immediate one, enabling
the Assembly to directly exercise its political prerogatives. It
may be assumed that this latter procedure could be implemented in
an emergency, where an alarming situation of extremely grave violations of
standards of democracy, human rights and the rule of law arose in
a member State.
2.2 Frequency of submitting
monitoring rapports to the Assembly
15. In the last of the aforementioned Monitoring Committee
progress reports, the rapporteur, Andres Herkel, raises the question
of the efficiency of monitoring and post-monitoring procedures and
the impact of the committee's procedures. He proposes,
inter alia, to reconsider the questions
of the frequency of monitoring reports and the duration of co-rapporteurs'
terms of office, which are both dealt with in
Resolution 1710 (2010) on the term of office of co-rapporteurs of the Monitoring
Committee.
16. In the aforementioned penultimate progress report of the Monitoring
Committee, the rapporteur, Dick Marty, stressed that “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”. The Monitoring Committee
comes back to this question in the next progress report, with Andres
Herkel noting that “the deadline of two years for the preparation
of a report on monitoring (four years for post-monitoring) is sometimes
difficult to respect”.
17. Naturally, the Monitoring Committee has regularly reported
on the political situation in countries under monitoring, submitting
reports as a matter of political urgency to the Assembly as and
when needed on topics such as the functioning of democratic institutions
or constitutional reform, demonstrating its ability to react quickly
to political crisis situations. Although, in most cases, such an
approach is fully justified, in enabling the Assembly to react speedily
to a conflict situation in a member State, it may be damaging if,
under the procedural logic intended by the Assembly in 1997, it
pushes back a full report to a later date.
18. On the basis of progress of the monitoring procedures concerning
10 member States to date, the fact is that, over the last eight
years, the requirement to present a (full) report every two years
for the member States subject to a monitoring procedure has hardly
ever been complied with (only in the case of Montenegro). As for the
four member States engaged in post-monitoring dialogue, while the
presentation of a report every four years has been required only
since 2009, the Monitoring Committee has produced only one report
within the deadline (Bulgaria in 2010). Yet that does not mean that
the committee and its co-rapporteurs or rapporteurs have not been
active: on the contrary, fact-finding visits are carried out, for
all countries, at very regular intervals (one to two each year,
plus visits in connection with the observing of elections), and
exchanges of views are held within the committee.
2.3 Duration of rapporteurs'
term of office
19. The term of office of the Monitoring Committee's
co-rapporteurs is limited to a duration of five years (the time
normally required to prepare two reports; this period may be extended
by six months depending on circumstances, at the discretion of the
committee). This was a positive measure, intended to ensure the
regular renewal of rapporteurs, combining “the advantages of continuity
and, at the same time, ensur[ing] that a ‘fresh look’ is given to
the situation in a given country”, and involve more and more committee
members. However, Andres Herkel considered, in the aforementioned
progress report, that “given the complex situation in many countries
under the monitoring procedure, five years may be too short to prepare
at least two reports on one country. Past experience shows that
a political crisis … may prevent co-rapporteurs from preparing a
report for almost half of the duration of their terms of reference”.
Accordingly, he proposed extending the term of office of (co-)rapporteurs
to seven years.
20. As previously mentioned, during the exchange of views on 24
January 2013, the Monitoring Committee held that, in the light of
the positive experience recorded since 2011, when the rapporteurs'
term of office was set at five years, it was not desirable to modify
the existing procedure in this respect. It is proposed, therefore, that
the Committee on Rules of Procedure take its consideration of this
question no further.
2.4 Terms of reference
of the Monitoring Committee with regard to the functioning of democratic institutions
in member States
21. 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 to which they are parties”, in addition to the honouring
of the commitments entered into by the authorities of member States
on their accession. Under these specific terms of reference it must
therefore be able to express an opinion on institutional developments in
all Council of Europe member States, where these cause concern over
the honouring of their statutory and convention-based obligations,
particularly where such matters are the subject of a motion for
a resolution or for a recommendation tabled by Assembly members.
22. Accordingly, the Monitoring Committee's terms of reference
should formally stipulate that it is competent for examining questions
concerning the functioning of democratic institutions in Council
of Europe member States, in connection with the honouring of their
statutory and convention-based obligations, in accordance with Rule
25 of the Rules of Procedure concerning references to committees.
3 Proposals to amend
the para-regulatory provisions in force
23. The observations gathered prompt the following proposals:
- concerning the duration of the
examination of an application to open or reopen a monitoring procedure as
provided for in paragraph 4 of the Monitoring Committee's terms
of reference, the Committee on Rules of Procedure proposes that
this be limited to the common time limit laid down by the Rules
of Procedure for ordinary references to committees in Rule 25.4,
namely two years;
- concerning the frequency of presenting reports to the
Assembly, in the light of the pattern actually followed by the Monitoring
Committee in the last ten years, it is proposed that the different
time limits currently applying to monitoring procedures (presentation
of a report at least once every two years for each country monitored)
and to post-monitoring dialogue (presentation of a report at least
once every four years) be replaced with a unified time limit requiring
reports to be presented at least once every three years on each
country being monitored or involved in post-monitoring dialogue;
- concerning the Monitoring Committee's competence, it is
proposed that the Monitoring Committee's terms of reference clearly
provide for the possibility of it preparing a report on the functioning
of democratic institutions in a member State, on the basis of a
motion for a resolution tabled by members of the Assembly and examined
in accordance with Rule 25 of the Rules of Procedure.
24. Finally, it should be formally stipulated in the Monitoring
Committee's terms of reference that member States must fully co-operate
with the Monitoring Committee in the implementation of those terms
of reference, whether within the framework of a monitoring procedure
or post-monitoring dialogue or in connection with the examination
of an application to open or reopen a monitoring procedure, or the
examination of the functioning of their democratic institutions.
4 Other observations
25. In addition, in
Directive 585 (2003) on progress of the Assembly's monitoring procedure,
the Assembly instructed its Monitoring Committee to define the criteria
used to determine the opening or reinstatement of a monitoring procedure.
In the Monitoring Committee's last progress report, the rapporteur
suggests defining the criteria for the closing of a procedure (see
paragraphs 186 and following), pointing out that “a recapitulation
of the criteria for closing the procedure, which would apply to
all member States under monitoring, would contribute to the transparency
of the whole process and would ward off premature requests for closure”.
26. The Committee on Rules of Procedure notes that the Monitoring
Committee might hold more substantial discussion in 2013 on the
question of defining criteria governing the closure of a monitoring
procedure, which is clearly not a matter falling within the competence
of the Committee on Rules of Procedure.
