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Post-monitoring dialogue with Montenegro

Addendum to the report | Doc. 15132 Add. | 17 March 2021

Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)
Co-rapporteur :
Mr Emanuelis ZINGERIS, Lithuania, EPP/CD
Co-rapporteur :
Mr Damien COTTIER, Switzerland, ALDE
Addendum approved by the Committee on 9 March 2021. 2021 - Second part-session

1 Introduction

1. The report on the post-monitoring dialogue with Montenegro had initially been prepared by the co-rapporteurs with the view to be adopted in March 2020 by the Monitoring Committee and discussed by the Assembly during the April 2020 part session. Due to the pandemic, it was finally discussed, and the draft resolution was adopted by the Committee in June 2020 (Doc. 15132), while the debate in the Assembly was scheduled for the April 2021 part session. Between March 2020 and March 2021, several significant developments occurred, including the general elections held on 30 August, marked by an unprecedented and peaceful shift of power.
2. Most of these developments have been presented, with our full approval, by the Chair of the Monitoring Committee in paragraphs 128 to 140 of his report on the “Progress of the Assembly’s monitoring procedure” (Doc. 15211). The present revised addendumNote completes this presentation and, taking these developments into consideration, the co-rapporteurs propose some minor amendments in order to update the draft resolution.
3. In overall, the developments occurred between March 2020 and March 2021 confirmed the observation made by the co-rapporteurs in their report: in the fields where Montenegro is usually seen as a co-operative partner or a good example for the region (minority rights, the fight against discrimination, among others), the situation continued to improve, but limited progress was achieved in the four key areasNote identified by Resolution 2030 (2015) “The honouring of obligations and commitments by Montenegro” that are of paramount importance if Montenegro wants the post-monitoring dialogue to end. It is worth noting that our overall diagnosis is widely shared by the European Commission in its annual report on Montenegro issued on 6 October 2020, when it comes to political criteria and rule of law chapters.Note
4. The outcome of the general elections and the maturity demonstrated by all political stakeholders in the aftermath of the results created a new political situation of which the Montenegrin authorities should take advantage in order to address the long-standing four key issues. They will have to achieve them while Montenegro and its economy, to which tourism contributes significantly, have been and still are deeply suffering from the Covid-19 pandemic.

2 Confirmation of previous trends

5. A significant example of progress made by Montenegro can be found in the rights of LGBTI persons. In July 2020, the parliament adopted the law on life partnership of same-sex partners, after two previous unsuccessful attempts. In the cultural context of the Balkans region, this adoption is not a minor step. And as the European Commission puts it, “Montenegro is the first country in the region to regulate the status of same-sex couples”.Note
6. Concerning the judiciary, serious negative trends were observed, although recent developments could announce more positive changes.
7. As indicated in the report on the “Progress of the Assembly’s monitoring procedure (January-December 2020)”, the re-appointments of presidents of courts for more than the two-terms limit set by the Constitution and the law continued on several occasions, despite warnings sent by the co-rapporteurs, the Group of States against Corruption (GRECO) and the European Union. As a topic example of this practice, the Judicial Council decided in November 2020 to re-appoint a president of a court for an eighth term. It did not take the opportunity offered by the cancellation of its previous reappointment by the administrative court to overturn its decision, but it confirmed it. The matter of the over-concentration of power within the judiciary has been underlined by the GRECO and it is a very sensitive question for the co-rapporteurs and the Assembly. Therefore, given the open resistance of the Judicial Council, we discussed the issue with the Secretary General of the Council of Europe, and we will not halt our efforts on this issue.
8. On this issue of the two-terms limit, there is a possibility that the resignation of the President of the Supreme Court, Ms Vesna Medenica, in December 2020, whose third reappointment had been criticised by the co-rapporteurs and the European Union, could initiate a change of behaviour either by the presidents of courts or by the Judicial Council. It is also not unlikely, that the regulation on retirement for the judicial staff could offer a partial solution. One-third of Montenegrin judges seem to fulfil the conditions for old-age pension. Whether they should cease their judicial duty, according to the Constitution and the Pension and Disability Insurance Law, is now being discussed by the Constitutional Court at the request of the Judicial Council. As among these judges, several are still presiding a Court for more than two terms, the decision to be made by the Constitutional Court may have a collateral effect on them, if the Constitutional Court were to order their immediate retirement. As co-rapporteurs, we will continue to closely follow that issue.
9. On a more positive note, the trend observed by the co-rapporteurs in paragraph 83 of their report, in relation to Montenegrin courts daring annulling sensitive decisions taken by the parliament to dismiss members of the Council of the national broadcasting (RTCG), could also be noticed in the end of 2020. Following these rulings, the Supreme Court, in a legal non-binding opinion, stated in June 2019 that parliament's decisions on the election, appointment or dismissal of public officials could not be challenged through administrative or civil procedures. By doing so, it made all appointments by the parliament to sensitive bodies, such as the Council of the RTCG, but also the Agency for the Prevention of Corruption (APC), impossible to contest. The European Commission said that this opinion “raises concerns about the lack of legal safeguards against Parliament's decisions, jeopardising the right to effective legal remedy”.Note In October and November 2020, two judges, one in the Basic Court of Nikšić, the other in the Basic Court of Podgorica, annulled former decisions by the parliament to dismiss a member of the Council of the RTCG and a member of the APC. As co-rapporteurs, we consider that these rulings preserve the right to effective legal remedy, although they are not in line with the Supreme Court non-binding opinion.
10. Concerning trust in the electoral process, the attempt to revise the electoral framework failed, due to the boycott by the then opposition of the ad hoc parliamentary committee tasked for the reform. Therefore, the electoral framework remained largely unchanged during the general elections held on 30 August, with the same flaws and limitations that the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE/ODIHR) has been keeping on advising to address. However, despite this regrettable stalemate and the practices observed by the OSCE/ODIHR during the electoral process (see part 3), the turnout during the 30 August elections was very high: more than 76% of the voters expressed their political choice. As co-rapporteurs, we welcome the legitimacy that this high turnout has given to the electoral process, but, at the same time, we urge the political stakeholders to rapidly engage in cross-parties negotiations to re-frame electoral laws, in line with the OSCE/ODIHR and the Assembly’s recommendations.
11. Concerning the fight against corruption, no significant progress was observed. It is worth noticing, that in the “audio-recording” case,Note a matter the co-rapporteurs reported since 2012, the European Commission stated in 2020 that “there were no new developments in the political and judicial follow-up of the alleged misuse of public funds for party political purposes that took place in 2012 (the ‘audio recordings affair’)”.Note
12. Finally, the situation of media did not improve and remained mostly unchanged.
13. Because we are concerned, as co-rapporteurs, that journalists in Montenegro may be pressured through judicial procedures and detention, we decided to make a public stand after Mr Jovo Martinović, an investigative journalist, was convicted on 8 October 2020 for the second time on charges of setting up criminal organisation and drug trafficking, while he was investigating arms trafficking. The legal proceedings are still on going and we will closely monitor that Mr Martinović’s right to a fair trial is upheld, especially when his case will be examined by the Appeal Court, starting on 4 March.
14. In December 2020, our attention was drawn once again to Ms Olivera Lakić’s situation, an investigative journalist who was shot in May 2018 and mentioned in paragraph 151 of our report. According to a reliable NGO, Human Rights Action (HRA), Ms Lakić has not been provided police protection, as the Montenegrin commission for monitoring attacks against journalists recommended, despite a clear assassination threat.Note As co-rapporteurs, we call the competent authorities to act and we will closely follow this issue.
15. Concerns regarding the independence of the RTCG have not been addressed and the renewal of its council members in June 2019 did not dissipate them. The RTCG was criticised during the debate on the Law on Freedom of Religion or Belief and the Legal Status of Religious Communities (Law on Freedom of Religion) for its biased coverage in favour of the then governmentNote and crossed-accusation of political partisanship were exchanged within the RTCG, since the shift of political majority.Note
16. Although the legal framework seemed to have improved with the adoption of two laws on media and the public broadcaster RTCG in July 2020, concerns related to the situation of media remain.

3 Political developments: a new parliamentarian majority after a polarised debate on the Law on Freedom of Religion

17. As indicated in paragraphs 137 to 140 of the report on the “Progress of the Assembly’s monitoring procedure (January-December 2020)”, the two main and intertwined developments that marked 2020 were the continued and massive protests against the Law on Freedom of Religion, especially the part dedicated to the property rights, passed by the parliament in December 2019, and the general elections that took place in August 2020. Local elections in five municipalities were also called to be held concurrently.
18. No political compromise was found on the controversial provisions of the law but protests led by the Serbian Orthodox Church were discontinued due to Covid-19. They had been mostly peaceful, despite limited surges of tension. In this deeply polarised context, on 20 June 2020, President Đukanović called early parliamentary elections for 30 August. If local elections were not observed by international organisations – although they were by domestic NGOs – the OSCE/ODIHR deployed an international Limited Election Observation Mission (LEOM) for the general elections.
19. In its preliminary findings, confirmed in its final report on 11 December 2020,Note the LEOM stated that “the elections were competitive and took place in an environment highly polarized over issues of church and national identity. Contestants were able to convey their messages, but the ruling party gained an undue advantage through misuse of office and state resources and dominant media coverage. The lack of independent campaign coverage by the media further undermined the quality of information available to voters. The law provides basic regulations for the conduct of democratic elections, but gaps and ambiguities allow for circumvention, particularly in campaign finance. The elections were run overall transparently and efficiently, although the State Election Commission (SEC) did not properly fulfil its regulatory role. Covid-related restrictions limited physical campaign opportunities and increased online outreach but did not prevent voters from turning out in high numbers. Election day was orderly and the process was generally transparent and well administered, while health protocols were not implemented consistently.” The OSCE/ODIHR also noted that “only 18 women (22 per cent) were elected to the new parliament, representing a decrease from 19 (increased to 24 in 2018) in the outgoing parliament and falling short of the 30 per cent quota for candidate lists.”
20. These conclusions were fully shared by the four NGOs that the co-rapporteurs met remotely on 3 September 2020 to discuss the electoral process and its outcome.
21. Although they took place in a very polarised atmosphere, the elections remained peaceful, with the notable exception of worrying attacks against minorities, especially Bosniacs, on the day the results were announced. This outburst of violence was immediately condemned by all parties and by the Serbian Orthodox Church, who was deeply involved during the campaign against the ruling majority, according to the NGOs that the co-rapporteurs met. This overall condemnation is to be commended. Montenegro is a regional model for peaceful relationships between its several communities and minorities; in order to preserve that model, Montenegrin authorities must demonstrate that they would not tolerate any attack against it and that the issue of identity will not be used against any minority. Therefore, the Assembly should closely monitor the criminal investigations already launched by the police into allegations of hate crimes and ethnically and religiously motived attacks that took place after the announcement of the August elections results, notably in the city of Pljevlja where members of the Bosniac community are reported to have been targeted.
22. As previously said, the turnout of more than 76% was very high and these elections saw, for the first time since the independence of Montenegro in 2006, and for the first time since 1991, a shift of power. Among the 11 closed lists of candidates registered, the Democratic Party of Socialists of Montenegro (DPS) won 35% of the votes (30 seats in the Parliament), the Democratic Front (DF) and its allies 32% (27 seats), the Democrats (DCG) and their partners 12 % (10 seats), the United Reform Action (URA) and its allies 5% (4 seats). The Montenegrin parliament being composed of 81 seats, the DF, the DCG and URA could claim a tight majority of 41 seats.
23. Following the announcement of the results, President Đukanović, who has been in power for 30 years, either as President or Prime Minister, acknowledged the defeat of the former ruling majority led by the DPS. The three main platforms from the opposition, led by the DF, the DCG and URA, announced on 31 August an agreement on the formation of a government of experts with a Prime Minister to-be who was not affiliated to any political formation, but close to the Serbian Orthodox Church, Mr Zdravko Krivokapić, who led the list supported by the DF.
24. During their fact-finding mission to Podgorica in September 2019, the co-rapporteurs were told that it was unlikely in the near future that the then opposition would be able to unite and form a coalition, for their political aims and priorities differed. The DF was usually seen as pro-Serbian and not very favourable to North Atlantic Treaty Organization (NATO) accession, while the DCG was characterised as pro-European and conservative and URA as pro-European and liberal, especially when it comes to the promotion of human rights. However, the heads of the three lists, DF, DCG and URA, signed an agreement on 9 September 2020 indicating their common political purposes. Among other things, they said that the new government would not initiate the procedure for withdrawing the recognition of Kosovo*Note or change the State flag, coat of arms or national anthem; that the European integration remained their aim and that it should be achieved as soon as possible; that cooperation with NATO would be improved; that they would depoliticise key government institutions to ensure the uncompromising fight against corruption and crime, in line with European standards. Amendments to the Law on Freedom of Religion were also mentioned.NoteNote
25. Before the government was endorsed by the parliament, three relevant developments occurred. First, the new majority was not able to get more support, for the three national minority parties represented in the Parliament, two Albanian and one Bosniac, declined to join it. Second, it was not without contests or complaints from within the DF, which is an alliance of several distinct political organisations, that Mr Krivokapić succeeded in imposing a government of experts, without the participation of leaders of the DF.Note Finally, some tension arose in September 2020, when Mr Krivokapić indicated that President Vučić of Serbia had business ties with Montenegrin President Đukanović, an allegation that President Vučić strongly rebutted.Note
26. On 4 December 2020, the Montenegrin Parliament elected a new government headed by Mr Krivokapić. It is composed of 12 ministers (plus the Prime Minister and the Deputy Prime Minister) and includes four women. The presentation of the work-programme of the new government by the Prime Minister to the parliament on this occasion confirmed the orientations contained in the coalition agreement of 9 September, and, among several topics, mentioned those related to the four key priorities of the co-rapporteurs’ report.
27. On 29 December 2020, a package of amendments to several laws was passed by the parliament, while some protesters from the new opposition demonstrated in front of the parliament. The package mostly contained amendments to extend deadlines for several mechanisms in the social, fiscal and credit fields. It also contained amendments to the Law on Civil Servants and State Employees and to the Law on Freedom of Religion. Concerning the Law on Civil Servants, the co-rapporteurs were not able to scrutinise its content, but at the time of drafting, no particular criticism was brought to our attention.
28. Concerning the amendments to the Law on Freedom of Religion, the information gathered by the co-rapporteurs were rather reassuring. The new ruling majority decided to delete the provisions related to the transfer of property and to alter the part dedicated to the obligation for religious communities to register, both provisions strongly opposed by the Serbian Orthodox Church. The content of the other provisions that, as the co-rapporteurs have already said in their report, constitute a genuine progress compared to previous legislation according to the European Commission for Democracy through Law (Venice Commission), does not seem to have been questioned. This is the solution to the political crisis the co-rapporteurs have always pleaded for: a solution that respects the legislative process and the legitimacy of the parliamentarians, in other words that respects democracy and the rule of law, and focuses on the controversial provisions, while retaining those that constitute a genuine progress.
29. However, even if we understand, as co-rapporteurs, that the passing of these amendments was a major political promise, we regret that they were adopted in such a hurry that it altered the inclusiveness of the legislative process. According to a news’ report,Note the Islamic community, the Catholic church and the Jewish community complained in a joint statement that the deadline for consultation was so short (three days) that they were not able to take part in it. Moreover, the non-canonically recognised Montenegrin Orthodox Church, that represents 30% of the Orthodox population according to the figures given to the Venice Commission,Note was not consulted.
30. On 2 January 2021, President Đukanović refused to sign the adopted laws and sent them back to the Parliament for reconsideration. He considered that the procedure for their adoption was unconstitutional, claiming that the quorum had not been reached when they had been adopted and also questioning the mandate of MPs. The SEC refused to certify the mandate of one of the MPs, a substitute replacing a URA MP appointed to the cabinet of the Vice Prime Minister. In the absence of this certification, the parliament therefore substituted itself for the SEC and certified the relevant mandate. The parliament also confirmed the initial adoption of the laws during an extraordinary session held on 20 January 2021. President Đukanović then signed them. Members from the opposition lodged a constitutional complaint questioning the authority of the parliament to substitute itself for the SEC for certification and raising the issue of the lack of quorum. The case is now pending before the Constitutional Court. As this development demonstrates, the peaceful shift of power in Montenegro did not diminish the “liveliness” of political competition. But in this case, the political competition unfolded within the rule of law, something that is worth noticing and should be commended, as long as the competition does not prevent political stakeholders from compromising on issues that require a qualified majority, such as appointments to the judiciary or the electoral reform.
31. On 3 February 2021, a group of MPs from the majority presented two draft laws amending the Law on the State Prosecutor’s Office and the Law on the Prosecutor’s Office for Organised Crime and Corruption (the Special Public Prosecutor’s Office). These drafts triggered a reaction from the Supreme State Prosecutor’s Office, the Prosecutorial Council and the Association of State Prosecutors who addressed letters to several international organisations, including the Council of Europe. They criticised the procedure which was applied and the lack of consultations with the judiciary or international partners. They also pointed out that some provisions of the amendments to the Law on the State Prosecutor’s Office were aimed at bringing the State Prosecutor’s Office into a subordinate position, notably by changing the composition of the Prosecutorial Council and making its prosecutor members a minority, while they are currently holding the majority.Note
32. The authors of the amendments indicated that their aim was to increase the fight against corruption, a field in which Montenegro had poor results according to them. Members of the DF clearly indicated that they also wanted to terminate the mandate of the current Special Prosecutor, Mr Milivoje Katnić, whom they accused of protecting former officials and who, as they claimed, led a politically motivated investigation on the 2016 so-called “coup” resulting in the condemnation of two of the DF leaders.
33. Following some internal and international reactions, especially from the European Union,Note the Montenegrin authorities decided on 16 February to request the opinion of the Venice Commission on the two draft laws and withhold the parliamentary discussion until after the opinion was issued. The Venice Commission is expected to adopt it during its plenary session on 19 to 20 March.
34. As co-rapporteurs, we commend this request to the Venice Commission and urge the Montenegrin authorities to follow the recommendations of the Venice Commission on these very serious and sensitive matters that concern the independence of the judiciary and the fight against corruption. We also noted that the current majority is eager to implement its programme, which is the sign of an active majority. However, political will to reform should not override prior and broad consultation, especially when major issues are at stake. We have already underlined the importance of consultations following the hasty adoption of the legislative package in December 2020.
35. We also noticed that the DF, the biggest faction within the majority, claimed that it would condition its participation in the legislative and budgetary process in the parliament to the adoption of the draft laws and the dismissal of Mr Katnić. As mentioned above, the government did not bow to this demand. We will closely follow this issue when the ordinary session of the Montenegrin parliament resumes. The way in which the DF reacts will have to be assessed both in terms of the political maturity expected of political stakeholders after the peaceful shift of power and with regard to the ability of the parliament to “fully play its oversight role and stimulate the government to make progress in the four key areas”, as stated in paragraph 188 of our report.
36. It should also be noted that on 5 February 2021, the first-instance verdict finding 14 defendants guilty of plotting against the State in the case of the 2016 so-called “coup” was overturned by the court of appeal for procedural mistakes and that a re-trial was ordered. We will follow the political impact of this re-trial, for, as we indicated in paragraph 20 of our report, two leaders of the biggest ruling coalition party, DF, were sentenced to five years of imprisonment in the first instance.
37. On 14 March 2021, a local election is to be held in Nikšić. This town is currently ruled by the DPS, but located in an area considered to be a stronghold of the DF. The political stakes are rather high for Montenegrin parties and the election is often presented as a second round of the general elections of August 2020, to see whether the national trend is confirmed or not. As co-rapporteurs, we are closely following the campaign, also because we deplore an unfortunate incident reminiscent of what happened on the August 2020 elections results day: hateful graffiti appeared on the walls of Nikšić’s mosque, sparking national condemnation. We hope that this provocation does not indicate a rise in the level of hate-speech and ethnically motivated attacks, from which Montenegro has been rather spared until now.
38. We noticed the encouraging signs of political maturity in Montenegro, sent in the immediate aftermath of the August 2020 elections results, both by the new majority and the new opposition. Since the legal system of Montenegro requires qualified majority for the parliament to adopt important reforms or appoint high officials, notably in the judiciary, compromise will be needed. It will only be achievable, if political maturity persists. Similarly, the parliament will only be able to exercise plainly its oversight role, if the majority and the opposition act in a responsible way.
39. As co-rapporteurs, we think that the significant political change Montenegro has experienced is an opportunity for all political stakeholders to demonstrate that Montenegro is not only able to manage a democratic shift of majority, but also capable to confirm its European path and comply with its obligations, notably in the four key areas determined by Resolution 2030 (2015).

4 Proposed amendments

40. As a result of the recent developments in Montenegro, we would like to propose the following amendments to the draft resolution on the post-monitoring dialogue with Montenegro contained in Doc. 15132:
Amendment A

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.”

Amendment B

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.”

Amendment C

In 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.”

Amendment D

Replace paragraph 11.4., by a 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.

Amendment E

Delete paragraph 14.1.

Amendment F

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.”

Amendment G

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.”