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Post-monitoring dialogue with Montenegro

Doc. 15132: collection of written amendments | Doc. 15132 | 21/04/2021 | Final version

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ADraft Resolution

1Montenegro joined the Council of Europe in 2007. It was subject to the full monitoring procedure until 2015. The Parliamentary Assembly refers to its Resolution 2030 (2015) on the honouring of obligations and commitments by Montenegro, in which it decided to close the monitoring procedure and to open a post-monitoring dialogue on four key issues, namely the independence of the judiciary, the trust in the electoral process, the fight against corruption and the situation of media. The Assembly also mandated itself to follow up on developments in the field of the rights of minorities and the fight against discrimination, as well as in the field of the situation of refugees and internally displaced persons.
2The Assembly commends the Montenegrin authorities for demonstrating their sustained political will and commitment to fully respecting their obligations, as confirmed by their continued co-operation with Council of Europe monitoring mechanisms, legal experts and the European Commission for Democracy through Law (Venice Commission). The Assembly also welcomes the level of their involvement in the post-monitoring dialogue.
3The Assembly reiterates that Montenegro continues to play a positive role in the stabilisation of the region and is a reliable and constructive partner, involved in several regional and multilateral initiatives.
4In light of the developments that have occurred since 2015, the Assembly has assessed progress made in the four key areas and other outstanding fields of concern identified in 2015.
5As regards the independence of the judiciary, the Assembly:
5.1welcomes the implementation by the Montenegrin authorities of constitutional amendments related to the judiciary, which were adopted in July 2013, and the setting up of a comprehensive legal framework regulating the courts, the State prosecutors’ offices, the Judicial Council and judges, the Prosecutorial Council, and the Constitutional Court; acknowledges the important scale of the changes that this framework introduced in the judiciary, and that they were mostly implemented in line with the recommendations of the Venice Commission;
5.2commends the Montenegrin authorities for the genuine improvement of the training for judicial professions, notably thanks to the Centre for Training in Judiciary and State Prosecution, which should have long-lasting effects on the professionalism of new magistrates, and thereby on the efficiency of the justice system;
5.3deeply regrets the re-appointments by the Judicial Council in 2019 and 2020 of several Presidents of basic courts and the President of the Supreme Court, who already served two terms or more. The limitation of elections to two terms, which was enshrined in the Constitution since 2013 and in the law, and which was aimed at preventing the over-concentration of powers within the judiciary, has been violated in its spirit, if not in its letter;
5.4notes that, after wrong signals were sent in 2018 with regard to the transparency of judges’ selection and appointments, the Judicial Council seemed to have improved its procedure of selection in 2020;
5.5deeply regrets, as the European Commission and the Group of States against Corruption (GRECO) also did, that no progress has been made in reviewing the disciplinary framework for judges and prosecutors.

In the draft resolution, after paragraph 5.5, insert the following paragraph:

"commends the decision of the Montenegrin authorities to request the opinion of the Venice Commission on the draft laws amending the Law on the State Prosecutor’s Office and the Law on the Prosecutor’s Office for Organised Crime and Corruption and to suspend their adoption until after the opinion is issued; and calls on them to fully implement the recommendations formulated by the Venice Commission."

In amendment 1, at the end, insert the following words:

“and, in particular, not to ignore those related to the security of tenure and the risk of politicisation of lay members of the Prosecutorial Council”.

6As regards trust in the electoral process, the Assembly:
6.1is concerned that, apart from the voters’ register, no progress has been made in the implementation of the five requirements set by Resolution 2030 (2015);
6.2strongly emphasises that the parliament is the arena where political competition should take place, that boycotting its work does not comply with the European way to compete, and that reforming the legal framework on electoral campaigns cannot take place in an inclusive manner, if major parties from the opposition do not take part in it;
6.3recalls that every political group in the parliament shares the responsibility to create an atmosphere and a culture of parliamentarian democracy.

In the draft resolution, after paragraph 6.3, insert the following paragraph:

"commends the political maturity demonstrated by both the new majority and the new opposition in the immediate aftermath of the elections held in August 2020, that allowed for a peaceful shift of power and urges them to continue on this positive trend; at the same time, regrets that the electoral legal framework remained largely unchanged during the last general elections, despite the repeated recommendations of the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE/ODIHR) to address its flaws and limitations, and that practices contrary to OSCE/ODIHR principles were once again observed during these elections, notably in the fields of abuse of State resources, independent media coverage and campaign financing."

7As regards the fight against corruption, the Assembly:
7.1takes note of the implementation of the Law on Prevention of Corruption and the Law on Prevention of Conflict of Interests, as well as of preventive policies set up by the Agency for the Prevention of Corruption;
7.2regrets that the Law on the Financing of Political Entities and Election Campaigns had limited effects on the prevention and the sanction of illegal donations, as stated by the ad hoc Committees of the Bureau of the Assembly for the observation of the parliamentary elections in 2016 and the presidential election in 2018;
7.3welcomes the passing of the Law on the Special Public Prosecutor’s Office, which is tasked with fighting corruption and organised crime, the continuous increase of its means, as well as those of the Special Police Unit, and the recent results obtained against Montenegrin crime groups thanks to the increased participation in international police co-operation;
7.4takes note of the ‘initial track record’, as stated by the European Commission, of investigations, prosecution and final convictions in corruption cases;
7.5congratulates the Montenegrin authorities for having satisfactorily implemented 12 out of 14 recommendations made by GRECO in the Third Evaluation Round on transparency of party funding, and 8 out of 11 in the Fourth Evaluation Round on corruption prevention in respect of members of parliament, judges and prosecutors, concluded in December 2019;
7.6is however concerned with the assessment by the European Commission that the criminal justice system appears generally lenient, with sentences, fines and asset recoveries disproportionately low compared with the gravity of the crime.
8As regards the situation of media, the Assembly:
8.1welcomes the visible efforts of both the prosecutors and the judges to address the attacks against journalists; moreover welcomes the efforts by the police forces to arrest the perpetrators and suspects of such attacks, as well as the public support by the government to the Commission for monitoring actions of the competent authorities in the investigation of cases of threats and violence against journalists, assassinations of journalists and attacks on media property, and the recent and adequate involvement of the parliament in debating the reports of this Commission;
8.2remains very concerned, however, by the threats and violence against journalists, recently demonstrated in several cases;
8.3strongly welcomes the ongoing efforts by the Montenegrin authorities to revise the legal framework on media in close co-operation with the Council of Europe;
8.4regrets the dismissals in 2017 and 2018 of members of the Councils of the national public broadcasting (RTCG) and the Agency for Electronic Media, by the parliament following investigations led by the Agency for the Prevention of Corruption for they could be seen as political interferences;
8.5is particularly worried by the tendency of public entities to restrict access to public documents, that contradicts the acute need for transparency in Montenegro and the access to information for the media; the Assembly fully recognises that the freedom of expression needs to be regulated but it stresses that this regulation must be in line with European standards and that the concept of ‘abuse of the right of information’ is not appropriate.
9As regards the rights of minorities and the fight against discrimination, the Assembly:
9.1welcomes the implementation of the mechanism for the prevention of torture under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the United Nations and the mechanism for the protection against discrimination under the Convention on the Elimination of All Forms of Racial Discrimination. It also notes that, for the latter, the competencies of the Protector of Human Rights and Freedoms (Ombudsman) were clarified in 2017;
9.2welcomes the adoption in 2017 of the Law on Minority Rights and Freedoms, that complied with four out of five recommendations of the Venice Commission;
9.3expresses its satisfaction at the very positive opinion on Montenegro of the Advisory Committee on the Framework Convention for the protection of national minorities from the Council of Europe in March 2019 and calls upon the Montenegrin authorities to undertake urgent efforts towards Roma and Egyptians mentioned in the opinion;
9.4commends Montenegro for setting a good example for the whole region when it comes to the level of protection provided to LGBTI persons, even if the parliament failed to adopt a law on same-sex unions in July 2019.

In the draft resolution, paragraph 9.4, after the words “LGBTI persons,” replace the end of the sentence by the following words:

"and welcomes the adoption of the law on life partnership of same-sex partners by the parliament in July 2020."

10As regards the situation of refugees and internally displaced persons, the Assembly takes note of the positive opinion of the Advisory Committee on the progress made by Montenegro in resolving the issue of displaced persons, mostly Roma and Egyptians, arrived in Montenegro in the late 1990s and almost completing the regularisation of their legal status.
11As regards the Law on Freedom of Religion or Belief and the Legal Status of Religious Communities (Law on Freedom of Religion) passed in December 2019, the Assembly:
11.1emphasises that the regulation of religious communities is a matter of national sovereignty, that should be exercised without any foreign interference;
11.2regrets that the part of the Law related “to property rights” created a very divisive climate, while most of the provisions constitute a genuine progress compared to the previous legal framework, as stated by the Venice Commission in its opinion on the draft law;
11.3is fully aware of the understandable concerns of members of the Serbian Orthodox Church, given the large extent of possible transfers of property from the Church to the Montenegrin State, on the ground of ‘culture heritage’, which means possibly most of all religious properties built before 1918;
11.4welcomes the fact that the dialogue between the Montenegrin authorities and the Metropolitanate of Montenegro and the Coastlands was never interrupted and urges them to come to a solution that respects democracy and the rule of law, which means respecting the legislative process and using proper courts to defend one’s legal rights.

In the draft resolution, replace paragraph 11.4 with the following paragraph:

"welcomes the adoption of amendments to the law on 28 December 2020, as a solution that both respects democracy and the rule of law, and focuses on the controversial provisions, while retaining those that constitute a genuine progress; at the same time, regrets that the consultation of all religious communities on these amendments was not fully inclusive."

12In this context, the Assembly resolves to continue a post-monitoring dialogue with Montenegro in the following areas:
13As regards the independence of the judiciary, the Assembly will closely monitor:
13.1the implementation of recommendation v. of GRECO’s Fourth Evaluation Round, and in particular the implementation of the spirit of the constitutional and legislative changes regarding the limitation of two-terms for Presidents of Courts; this last implementation could be achieved by a change in the legal framework, or by a change of practice initiated by the judiciary itself;
13.2whether the transparency in the selection of magistrates and in their appointments continues to be applied;
13.3whether the enforcement of the code of ethics and disciplinary accountability for magistrates are enhanced.
14As regards trust in the electoral process, the Assembly will monitor progress in:
14.1holding general elections in line with the recommendations of the OSCE Office for Democratic Institutions and Human Rights (ODIHR) and the Venice Commission, despite the absence of a revised legal framework prior to the elections;
14.2re-starting, just after the elections, a comprehensive and inclusive process on reforming the electoral framework, in line with the recommendations of OSCE/ODIHR and the Venice Commission, and in line with the recommendations of the Congress of Local and Regional Authorities, especially when it comes to holding local elections in a single day and at least six months from parliamentary elections.
15As regards the fight against corruption, the Assembly will monitor progress in:
15.1addressing the loopholes in the criminal justice system, that makes it appear as generally lenient;
15.2addressing the risks pointed out both by the Venice Commission and by the European Commission of de facto control of the executive power in investigations led by the Special Police Unit under the supervision of the Special Public Prosecutor’s Office, given the hierarchical link between the Special Police Unit members, including its head, and the Police Directorate;
15.3building on the initial track records in the fight against corruption and organised crime.
16As regards the situation of media, the Assembly will closely monitor progress in:
16.1changing irreversibly the climate of impunity around attacks against journalists, by continuing to address them directly, but also by enforcing transparency in cases where competent authorities failed to investigate properly and in due time;
16.2refraining from restricting access to information;
16.3revising the mechanisms that are currently addressing political interferences in the media, including the composition of the RTCG and the Agency for Electronic Media.
17As regards the Law on Freedom of Religion: the Assembly will closely monitor whether:

In the draft resolution, replace paragraph 17 with the following paragraph:

"As regards the Law on Freedom of Religion, the Assembly will monitor whether the implementation of the law will be in line with European standards, as well as the recommendations of the Venice Commission."

In the draft resolution, after paragraph 17, insert the following paragraph:

"As regards the situation of minorities, the Assembly will closely monitor the investigations into allegations of hate crimes and ethnically and religiously motived attacks that took place since the announcement of the August elections results."

17.1the implementation of the Law on Freedom of Religion will be in line with European standards, and notably article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS no 5), as well as the recommendations of the Venice Commission, especially when it comes to the standard of proof that may be used to prove the property rights;
17.2the transfer of property will not affect the use made by the religious community.
18The Assembly resolves to assess the progress made in the aforementioned areas after the general elections held in 2020.