B Explanatory memorandum
by Mr Michael Aastrup Jensen, rapporteur
1 Introduction
2. In accordance with Paragraph 14 of
Resolution
1115 (1997) as amended, the Monitoring Committee is obliged to report
to the Assembly, on a yearly basis, on the general progress of the
monitoring procedures. In line with established practice, the Committee
has entrusted me, as its Chairperson, with the task of being the rapporteur
on the Committee’s activities for the period from January to December
2021.
3. In line with its mandate, the Monitoring Committee follows
all Council of Europe member States with regard to the honouring
of their membership obligations, and if relevant, specific accession
commitments. Currently, 11 countries are subject to a full monitoring
procedure (Albania, Armenia, Azerbaijan, Bosnia and Herzegovina,
Georgia, Republic of Moldova, Poland, Russian Federation, Serbia,
Turkey and Ukraine) and 3 countries are engaged in a post-monitoring
dialogue (Bulgaria, Montenegro and North Macedonia). 6 countries
(France, Hungary, Malta, Netherlands, Romania and San Marino) are
subject to a periodic review report on the honouring of obligations.
The Monitoring Committee also runs a Sub-Committee on Conflicts between
Council of Europe Member States in line with Rule 49 of the Assembly’s
Rules of Procedure.
4. In accordance with the Committee’s practice, the country-specific
comments have been prepared whenever possible on the basis of rapporteurs’
statements and the discussions in the Monitoring Committee and findings
of other Council of Europe monitoring mechanisms. All of them have
been shared with respective rapporteurs before being published and
I have tried to integrate their comments if any, as far as possible.
2 Overview of the Committee’s activities
2.1 General comments
5. Although the sanitary situation
in Europe created by the Covid-19 pandemic has improved to a certain extent
over the reporting period, the monitoring activities continued to
be considerably hindered. In particular, travel restrictions remained
a challenge for the organisation of rapporteurs’ visits. I would
like to recall the Committee’s position that direct political dialogue
cannot be replaced by online meetings and the information visit
is a necessary condition for the preparation of each report.
6. Despite difficulties and changing travelling constraints imposed
by different Council of Europe member States including destination
countries as well as rapporteurs’ countries, a number of visits
(including to Armenia, Georgia, Malta, the Republic of Moldova,
the Russian Federation and Ukraine) could take place using sometimes
short periods of relative sanitary improvement, while other visits
had to be cancelled due to the worsening sanitary conditions.
7. It should be stressed however, that online contacts between
respective rapporteurs and different stakeholders in the countries
under their responsibility became a common working method following
the practice put gradually in place in the previous year and well
established since then. Almost all rapporteurs held virtual exchanges
of views, some of them on many occasions. While, as mentioned above,
these online meetings were not conducted in the framework of political
dialogue with the authorities, but involved civil society, journalists
or lawyers, they nevertheless enabled rapporteurs to keep abreast
with developments and receive first hand information.
8. At the initiative of some rapporteurs, in the framework of
committee meetings, held in hybrid mode, a number of hearings and
exchanges of views were organised including on Armenia, Hungary,
Georgia, Malta, Montenegro, Romania, Russian Federation, Turkey
and Serbia. In particular, the committee held exchanges of views
with Mr Nicholaas Bel, representative of the European Commission
on the rule of law situation in Hungary, Romania and Malta and Mr Nils
Muižnieks, Director for Europe, Amnesty International on the recent reports
of Amnesty International on Hungary and Turkey, as well as on general
trends with regard to human rights protection in Europe. In addition
the Committee organised an exchange of views with Mr Roger Torrent i
Ramió, Speaker of the Parliament of Catalonia, and Mr Antonio Gutiérrez
Limones (Spain, SOC), Chairperson of the Spanish Delegation to the
Assembly on developments in Catalonia.
9. Over the reference period, the committee met in hybrid mode
during each parliamentary session and four times outside the parliamentary
sessions. Regrettably, the meeting scheduled to be held in Copenhagen in
December at the invitation of the Danish Parliament had to be replaced
by a meeting in Paris due to the worsening sanitary situation in
Europe and travel restrictions to Denmark imposed on citizens of
some countries including six Council of Europe member States.
10. As a result of these challenges and a specific monitoring
procedure for the preparation of reports, only three country monitoring
reports could be submitted to the Assembly during the reporting
period: “Challenge, on substantive grounds, of the still unratified
credentials of the parliamentary delegation of the Russian Federation”,
“The Post-monitoring dialogue with Montenegro”, and “The functioning
of democratic institutions in Turkey”.
11. The report on “The functioning of democratic institutions
in Armenia” was adopted by the committee on 14 December 2021 and
the debate is scheduled on the first part-session of the Assembly
in 2022.
12. The preliminary draft periodic review report on Hungary was
approved by the committee and sent to the Hungarian authorities
for comments.
13. At the same time, the Committee considered and declassified
information notes on Albania, Georgia, the Republic of Moldova and
Ukraine.
14. The rapporteurs on Armenia, Azerbaijan, Georgia, Republic
of Moldova, Montenegro, Poland, Russian Federation, Serbia, Turkey
and Ukraine made statements with regard to developments in the countries
under their responsibility.
15. The situation in the Nagorno-Karabakh region was closely followed
by the committee during the reporting period. The committee held
an exchange of views with Mr Peter Svedberg, Swedish Ministry for Foreign
Affairs, Task Force for the Swedish Chairmanship of the OSCE on
the implementation of the Trilateral Statement in particular with
regard to the issue of prisoners of war and the committee made a
statement on the subject. The rapporteurs for Armenia and Azerbaijan
made a number of joint statements in reaction to the developments.
16. As in previous years the outstanding co-operation with the
Venice Commission continued over the reporting period. Exchanges
of views were organised with: Mr Michael Frendo, member of the Venice Commission,
on the Commission’s recent opinions on Georgia, Mr Martin Kuijer,
substitute member of the Venice Commission on the opinions adopted
on Serbia and with Ms Simona Granata-Menghini, Secretary to the
Venice Commission on the opinions on the Republic of Moldova. The
committee requested opinions on the constitutional and legal framework
governing the functioning of democratic institutions in Serbia as
well as on the legislative and constitutional package adopted by
the Hungarian parliament in December 2020.
17. In its ongoing efforts to improve its working methods, efficiency
and impact, the committee reflected on the election of the Chairperson
of the Sub-Committee on Conflicts between Council of Europe Member
States and agreed on the criteria to be applied during this procedure.
18. Regrettably, as in previous years the committee again experienced
great fluctuations among its rapporteurs. New rapporteurs were appointed
for the following countries: Azerbaijan, Bosnia and Herzegovina, Malta,
Republic of Moldova, Montenegro, Romania and for three newly selected
periodic review reports: France, the Netherlands and San Marino.
At the time of finalisation of the current report, the rapporteurships for
Albania and Hungary remained vacant. The specific appointment procedure
for monitoring rapporteurs sometimes results in long periods of
vacancies which clearly has a detrimental impact on the committee’s
work. I will develop this issue in chapter 4 of the present report.
2.2 Countries under a full monitoring
procedure
2.2.1 Albania
19. Due to the Covid-19 situation
no fact-finding visits to Albania could take place in 2021. However,
the rapporteurs continued their monitoring work online with a special
focus on electoral issues and the situation of the media. An exchange
of views on electoral reform was organised by the Committee and
an information note was published. Mr Peter Eide (Norway, UEL),
who left the Assembly was not replaced as co-rapporteur for Albania
at the time of drafting this report.
20. Parliamentary elections took place on 25 March 2021. They
took place on the basis of the far-reaching electoral reforms and
introduction of a new open-list proportional elections system with
regional constituencies agreed upon between the ruling party and
the opposition in 2020 with a view to addressing the systemic political
crisis in the country.
21. An International Election Observation Mission (IEOM) of which
the Assembly was a member observed these elections. The IEOM concluded
that they were well organised and characterised by a lively and
inclusive campaign. The new legal framework was adequate for the
organisation of democratic elections and ensured respect for fundamental
freedoms. Regrettably, international observers also noted widespread
abuse of administrative resources by the authorities and allegations
of pervasive vote buying. For the sake of trust in the election
process, and normalisation of the political climate, it is important
that any allegations of electoral misconducts are fully and transparently
investigated.
22. As said, these elections were the culmination of the electoral
reform process and based on a legal framework for the elections
that had the consensus of all parties and therefore should be a
point of departure for a normalisation of the relations between
parties and a less tense and polarised political climate. It was therefore
to be welcomed that the opposition members had announced that they
would exercise their mandates in the new parliament when it met
in September 2021. At the same time, it would be important to ensure
that the rights of the opposition and their role in the governance
of the country were respected by the ruling majority.
23. Regrettably, the polarisation in the political environment
has not diminished. On 4 May 2021 the ruling majority in the outgoing
parliament started impeachment proceedings against President Meta
for “committing actions against the Albanian Constitution” in the
context of the 25 April 2021 elections. These impeachment proceedings
were decried by the opposition and President Meta. On 9 June 2021
the outgoing Albanian parliament voted 107 against 7 to impeach
President Meta. The opposition criticised the parliament for pushing through
this decision before the new parliament, in which the opposition
MPs were absent, is constituted. In line with the Albanian Constitution,
the Constitutional Court will have to decide within 3 months on
the legality of the decision to impeach the president. If it sides
with the parliament President Meta will be removed from his office.
24. Freedom of the media in Albania continued to be a point of
concern in 2021. The co-rapporteurs continued to closely follow
the process of the elaboration of the amendments to the Albanian
law on the Audio-visual Media Service (anti-defamation package)
which caused controversy in 2020. The Monitoring Committee has requested
an opinion from the Venice Commission on the final draft of these
amendments as soon as they are tabled for adoption in the parliament.
On 28 September 2021 the authorities announced the establishment of
a Media Information Agency. This was decried by civil society and
media organisations who felt that this agency – in conjunction with
the so-called antidefamation package – was a means for the authorities
to control the media and flow of public information in the country.
2.2.2 Armenia
25. Since the outbreak of military
hostilities between Armenia and Azerbaijan on 27 September 2020
and in the wake of the Trilateral Statement of 9-10 November 2021,
the Monitoring Committee has closely followed the conflict and its
impact on the functioning of democratic institutions and the protection
of human rights in both countries. This can be illustrated by the
regular joint statements of the four respective co-rapporteurs as well
as by the Committee's statement on 24 April 2021 in which it expressed
its conviction that the national parliaments of both countries could
and should play an important role in the urgently needed confidence-building
measures, the reconciliation process and the resumption of concrete
peace negotiations between the parties.
26. The Committee held several hearings and exchanges of views
with representatives of both countries as well as with independent
experts.
27. In February 2021, following the dismissal of a high-ranking
officer of the armed forces, the Armenian General Staff of the Armed
Forces issued two successive statements calling for the resignation
of the Prime Minister. These statements were interpreted as an attempted
coup by the parliamentary majority and as a public statement by
some opposition parties, including Bright Armenia, despite the constitutional
obligation of neutrality of the armed forces. Extremely concerned
by these developments, the co-rapporteurs, Ms Boriana Åberg (Sweden,
EPP/CD) and Mr Kimmo Kiljunen (Finland, SOC), issued a statement
Note in which they found, inter alia,
that the initial statement “by the office of the General Staff of
the Armed Forces, calling for the resignation of a democratically
elected government, to be unacceptable”. They called on “all political
forces and state actors to fully respect democratic principles and
the Constitution of Armenia, and to take all necessary steps to
immediately de-escalate the current situation”. Recognising that
Armenia was going through a very difficult phase in its recent history,
they said that it needed more than ever calm, restraint, wisdom
and unwavering support from all parties concerned to uphold democratic
principles in order to resolve the political crisis it was facing.
Eventually, the Chief of Staff was removed from office which he
challenged in the administrative court, and Prime Minister Pashinyan
organised fairly massive rallies in support of the government.
28. The Armenian authorities sought to overcome the political
crisis following the defeat in the Nagorno-Karabakh conflict by
holding early parliamentary elections on 20 June 2021, in response
to the wishes of the parliamentary and extra-parliamentary opposition
and the suggestion of some constitutional institutions. However
the government did only resign when elections were called and then
remained in office as care taker government until the elections
were held, in line with legal provisions.
29. On 13 April 2021 the co-rapporteurs held discussions with
Armenian experts on the political situation and the electoral challenges
of these early elections. They took note of the urgent joint opinion
of the Venice Commission and the Office for Democratic Institutions
and Human Rights of the Organization for Security and Cooperation
in Europe (OSCE/ODIHR) on the legislative package of 1 April amending
the electoral legislation. This opinion which was generally positive,
stated in particular that the package was to be “broadly welcomed as
it addressed the majority of recommendations raised in previous
Venice Commission and ODIHR opinions, (...), as well as in the final
reports of the ODIHR election observation missions”.
Note They also insisted
that the Chairman of the ad hoc Committee of the Bureau of the Assembly
responsible for observing the early elections of 20 June 2021 be
heard by the Monitoring Committee at its September meeting. Mr George
Katrougalos presented the findings of the observation mission to
the Monitoring Committee, which stated that “Armenia’s early parliamentary
elections were competitive and well-managed within a short time
frame. However, they were characterised by intense polarisation
and marred by increasingly inflammatory language from key contestants,
as well as by the sidelining of women throughout the campaign”.
Note
30. Finally, the co-rapporteurs visited Armenia from 3 to 5 November
2021. They also submitted their report on “The functioning of democratic
institutions in Armenia” to the Monitoring Committee at its December meeting.
This report should be debated during the January 2022 part-session
of the Assembly.
2.2.3 Azerbaijan
31. The last report on the functioning
of democratic institutions in Azerbaijan was debated in the Assembly in
2017 and the last visit took place in July 2019. An information
note was subsequently presented to the Committee and declassified.
32. Since the outbreak of military hostilities between Armenia
and Azerbaijan on 27 September 2020 and in the wake of the Trilateral
Statement of 9-10 November 2021, the work of the Monitoring Committee
focused on the conflict and its impact on the functioning of democratic
institutions and the protection of human rights in both countries.
This is illustrated by regular joint statements made by four respective
co-rapporteurs as well as by the Committee’s statement of 24 April
2021 in which it expressed its conviction that the national parliaments of
both countries could and should play an important role in the urgently-needed
confidence-building measures, the reconciliation process and the
resumption of concrete peace negotiations between the parties.
33. The Committee has held several hearings and exchanges of views
with representatives of both countries as well as independent experts.
34. At the same time it should be noted that the outstanding concerns
as outlined in the Committee’s last report and information note
have not yet been addressed.
35. In particular, the lack of independence of the justice, illustrated
by a long-standing pattern of repression of the government’s opponents,
is a major problem in Azerbaijan. Arbitrary arrests and detentions
of government critics as confirmed by the judgements of the European
Court of Human Rights and the “structural problem” of misuse of
administrative detention, described by the Committee of Ministers,
persist. Lawyers continue to be harassed and reports of torture
and other ill-treatment of government critics in detention remain widespread.
36. Basic freedoms including freedom of expression, assembly and
association are severely restricted, which has a disastrous impact
on the whole democratic process including pluralism, the rule of
law and respect for human rights.
37. Corruption remains a big problem as illustrated, inter alia,
by the Addendum to the second compliance report on corruption prevention
in respect of members of parliament, judges and prosecutors published
by GRECO in May 2021, and reports released under the name of Pandora
Papers on 3 October 2021 by the International Consortium of Investigative
Journalists which carried the accusations against President Aliyev’s family.
2.2.4 Bosnia and Herzegovina
38. In 2020, the co-rapporteurs
were able to welcome a positive development: the holding of municipal elections
in Bosnia and Herzegovina and in particular the elections in Mostar,
the first to be held since 2008. In 2021 they were unfortunately
not able to do so.
39. During its meeting on 7-9 June 2021, the Committee of Ministers
examined the implementation of the group of Sejdić and Finci judgments
of the European Court of Human Rights. In December 2009 the Court found
in these judgments that persons who were not affiliated with the
constituent peoples in Bosnia and Herzegovina or who failed to meet
a combination of the requirements of ethnic origin and place of
residence were discriminated against in their right to stand for
election to the House of Peoples and the Presidency of Bosnia and
Herzegovina. The Committee of Ministers urged the Bosnian authorities
to ensure that a draft proposal for amendments to the Constitution
and the electoral law was drawn up so that the next parliamentary elections
scheduled for 2022 were held in conditions that comply with the
European Convention on Human Rights. For the first time in 11 years
the Committee of Ministers has explicitly set a deadline of 1 September 2021
Note for the submission of this draft.
40. During the June 2021 part-session, the co-rapporteur Tiny
Kox spoke with the Hungarian Permanent Representative to the Council
of Europe, who was then chairing the Committee of Ministers, and
then with the members of the Bosnian delegation present in Strasbourg.
He stressed in particular the importance of this decision and its
political significance.
41. Noting the lack of tangible progress in the implementation
of the judgments, in particular the fact that the inter-institutional
working group for the preparation of amendments to the electoral
legislation, despite being set up by the Bosnian authorities, had
not met since 23 July, the Committee of Ministers, in a new decision
of 16 September 2021,
Note gave Bosnia and Herzegovina a further
deadline to present a draft amendment to its electoral framework
until its December meeting. It indicated that if no progress was
made by then, it would consider a draft interim resolution. As regards
the execution of judgments, the “interim resolution” is the last step
before the Committee of Ministers decides to have recourse to Article
46.4. of the Convention, namely to ask the Court to find that a
State party to the Convention is refusing to comply with one of
its judgments which has become final.
42. Beyond the respect of its treaty obligations, it is also important
that the Bosnian authorities take the necessary measures to avoid
that, after the parliamentary elections scheduled for October 2022,
the Parliamentary Assembly of Bosnia and Herzegovina cannot present
a delegation to our Assembly for more than one year, as was the
case after the 2018 elections throughout 2019.
2.2.5 Georgia
43. The Rapporteurs visited Georgia
twice in 2021, from 1 to 3 June 2021 and from 8 to 10 December 2021. On
13 September 2021, the Committee declassified an information note
prepared by the rapporteurs on the basis of their findings during
the June visit. The rapporteurs intend to present a report on the
“Honouring of obligations and commitments by Georgia” during the
April 2022 part-session of the Assembly.
44. The tense and polarised political climate in Georgia, which
is undermining the democratic consolidation of the Country continued
to be a main point of concern during 2021.
45. The political crisis that followed the 2020 parliamentary
elections and the opposition parties’ refusal to take up their seats
in the new parliament was tentatively resolved on 19 April 2021,
when the ruling majority and most opposition parties signed a political
agreement brokered by the European Council President Charles Michel.
Regrettably the largest opposition party, the United National Movement
(UNM) and the European Georgia party refused to sign this agreement.
46. The agreement mediated by President Michel covered many areas
such as electoral reforms, judicial reforms and addressed perceived
politicised justice and power sharing mechanisms in the new parliament. Two
key components of the 19 April agreement were the pardon for two
personalities, Nika Melia, the prominent UNM leader and Giorgi Rurua,
founder and shareholder of Mtavari Arkhi TV– who were considered political
prisoners by the opposition – and the organisation of snap parliamentary
elections in 2022 if Georgian Dream obtained fewer than 43% of the
votes in the October 2021 local elections. The latter turned the
local elections into a de facto plebiscite
on the ruling majority and led to an extremely polarised election
environment. The rapporteurs called on all stakeholders to reduce
the tensions in the political environment and not to overlook the
relevance of the October local elections for the strengthening of
local government and democracy.
47. Regrettably, the 19 April agreement did not end the considerable
polarisation in the political environment in Georgia or lead to
a renewed sense of constructive co-operation between the opposition
and ruling majority inside the parliament. In a regrettable development,
on 28 July 2021, the 19 April agreement broke down when Georgian
Dream announced that they withdrew from the agreement as it had
in its view exhausted itself and was still not supported by the
main opposition parties, including the largest opposition faction
led by the UNM.
48. Despite the tense political environment, the electoral reforms
that were agreed upon as part of the 19 April agreement were decided
upon in an inclusive process between the opposition and ruling majority.
This resulted, inter alia, in
a new more pluralist election administration. The electoral reforms
also included new provisions for the drawing up of results protocols
and handling of elections complaints.
49. Local elections took place on 2 October 2021 with a second
round on 30 October for those races for mayors and majoritarian
city council members where none of the candidates had obtained the
required majority in the first round. The International Elections
Observation Mission of which the Congress of Local and Regional Authorities
of the Council of Europe was a part, concluded after the first round
that these elections had been “competitive and well run, but marred
by allegations of pressure on voters, vote-buying and an unlevel
playing field
Note”. The
new legal framework had overall been adequate for the organisation
of democratic elections but was overly complex and had tended to
over-regulate many aspects of the election process. The election administration
which had managed the elections efficiently, was more pluralist
as a result of its new composition, but the national political debate
had overshadowed local issues, resulting in an increasingly aggressive
rhetoric with cases of violence and physical confrontation. Regrettably,
“significant imbalance in resources, insufficient oversight of campaign
finances and an undue advantage of incumbency” had resulted in an
unequal playing field in favour of the incumbent authorities, and
persistent allegations of vote buying and pressure on voters were
reported.
50. The polarisation of the political environment worsened during
the second round of the elections. As a result of this polarisation,
and continued and consistent abuse of administrative resources,
local observers reported that the outcome in some of the races in
the second round where the margins between the two candidates had
been small could have been affected. The authorities should fully
and transparently investigate all allegations on electoral misconduct
and take all measure needed to ensure that the public would trust
in the fairness of the election system. This is especially important
in the context of the low public trust in the judiciary, which could
have an impact on the trust in the election complaints resolution
mechanisms which depend on the court system.
51. The strengthening of the independence of the judiciary and
the impartial and efficient administration of justice have remained
key points of attention for the monitoring procedure with regard
to Georgia. A key obstacle for the independence of the judiciary
has continued to be the High Council of Justice (HCJ) and its functioning.
As a result of deficiencies in its working methods, and a lack of
transparency with regard to its decision making, the HCJ is in effect
functioning as a corporative body where a small number of key judge-members,
who mostly decide on the basis of corporatist self-interest, are
able to control or influence the work of the HCJ and the justice
system as a whole.
52. The functioning of the High Council of Justice has been especially
problematic with regard to the appointment of Supreme Court Judges.
Following constitutional reform in the Georgia Supreme Court, judges are
now appointed for life and the minimum number of supreme court judges
was increased to 28. In 2019 the Georgian parliament appointed 14
new Supreme Court judges in a very controversial and politicised appointment
process that undermined public trust in this institution. Following
widespread criticism on the appointment process the ruling majority
agreed not to fill the remainder of the vacancies until after the
2020 parliamentary elections and on the basis of an amended legal
framework. The Venice Commission concerns and recommendations for
the legal framework for the appointment of Supreme Court Judges
were only fully addressed in April 2021, following several rounds
of amendments. Regrettably, despite several calls from the international
community to the contrary, a new selection process that had in the
meanwhile been started was not cancelled but allowed to continue.
On 17 June 2021, the High Council of Justice presented a list of
nine candidates for Supreme Court judges. This was decried by Georgian
Civil Society Organisations, as well as by members of the international
community for being in contradiction to both 19 April agreement
and Venice Commission recommendations. Nevertheless, on 12 July
2021, the Georgian parliament appointed 6 of the 9 High Council
of Justice candidates to the Supreme Court of Georgia. On 24 August
2021, the OSCE/ODIHR published its fourth monitoring report on the
nomination and appointment process of the Supreme Court Judges,
in which it concluded that the selection process had been characterised
by “variations in conditions, lapses in decorum, internal divisions
on the HCJ and serious conflicts of interest”.
Note Regrettably,
despite the criticism and concerns expressed by inter alia the international
community on the appointment process, and contrary to what had been
agreed on 19 April, on 1 December 2021 the Georgian parliament appointed
another four Supreme Court judges.
53. The appointment of these Supreme Court Judges against repeated
recommendations of the international community and domestic stakeholders
and on the basis of a clearly deficient appointment process – that
in several aspects did not comply with international norms and standards
process – is regrettable and further undermines the public trust
in the independence and impartiality of the Supreme Court and the
judiciary as such.
2.2.6 Republic of Moldova
54. The year 2021 was marked by
early parliamentary elections held in July 2021, which drastically
changed the political landscape in the Republic of Moldova. In November
2020, Ms Maia Sandu, from the Party Action and Solidarity (PAS),
was elected President of the Republic of Moldova. However her party
lacked a parliament majority to implement the reforms promised,
in particular in the field of the judiciary and the fight against corruption.
PAS and the Party of the Socialists (PSRM) – which at that time,
had the largest political faction in parliament – disagreed over
the timing of the early parliamentary elections, which resulted
in a power struggle between the presidential administration and
the parliament and a serious political and constitutional crisis
from December 2020 to April 2021. After two failed attempts to nominate
a Prime Minister and a Constitutional Court ruling of 15 April 2021
stating that the dissolution of Parliament was justified, the parliament
decided to remove the President of Constitutional Court in clear
breach of the rule of law and European standards.
Note The Constitutional Court eventually
declared this decision as unconstitutional on 24 April 2021, which
opened the way for the organisation of early elections. This crisis
was described in detail by the Assembly co-rapporteurs Mr Pierre-Alain
Fridez (Switzerland, SOC) and Ms Inese Lībiņa-Egnere (Latvia, EPP/CD)
in their information note.
Note
55. The Assembly observed the early elections of 11 July 2021,
which were deemed as “competitive and well run despite the inadequate
handling of election disputes and campaign finance issues”.
Note The early elections
resulted in a victory of the Party Action and Solidarity, which
won 52% of the votes, and 63 seats in parliament (out of 101), thus
enjoying a large majority. Two other parties entered parliament,
namely the bloc of Socialists and Communists (32 seats) and Ihan
Shor’s Party (6 seats). The Monitoring Committee closely followed
the political developments and held exchanges of views with the
Moldovan delegation and the representatives of the Venice Commission
on 9 May and 13 September 2021.
56. The rapporteurs visited Chisinau and Tiraspol from 12-15 October
2021
Note. They welcomed the determination of the Moldovan
authorities to reform the judiciary to strengthen its independence
and to fight corruption, creating a momentum for change aimed at
addressing the concerns of the population and continuing co-operation
with the Council of Europe, notably with its High Level Working
Group on Justice Reform and its Venice Commission, which in December
2021 is due to issue, two opinions (on the amendments to the law
on the prosecutor’s office and on the draft law on certain measures
relating to the selection of candidates for administrative positions
in the self-governing bodies of judges and prosecutors). The rapporteurs
acknowledged that the ruling authorities, though enjoying a large
majority in parliament, were facing a huge challenge, with no ready-made
solution, to address the roots of "state capture" that had prevailed in
the country so far. They also welcomed the adoption of the constitutional
amendments to depoliticise the judiciary as agreed by all political
parties, while calling on the Moldovan authorities to ensure that
the reforms undertaken – however urgent and necessary – respected
the principles of the rule of law (with proper involvement of opposition
parties and representatives of civil society), improved transparency
in the financing of political parties, restored confidence in the
State bodies and built sustainable institutions based on European standards.
The rapporteurs also congratulated the Republic of Moldova on the
ratification of the Istanbul Convention and progress made on women's
participation in public life.
Note In
December 2021 the Venice Commission is due to adopt an amicus curiae
brief on the ratification of the Council of Europe Convention on Preventing
and Combating Violence against Women and Domestic Violence (
CETS
No. 210, “the Istanbul Convention”) at the request of the Constitutional
Court, after the Socialists challenged the ratification law.
57. Finally, the co-rapporteurs, who visited Tiraspol, noted the
readiness of the
de facto authorities
to engage in a dialogue with the Assembly Sub-Committee on Conflicts
between Council of Europe Member States, on the protection of human
rights in the context of the Transnistrian settlement process.
Note The rapporteurs
have submitted an information note to the Monitoring Committee on
14 December 2021.
2.2.7 Poland
58. No fact-finding visits by the
Rapporteurs could take place in 2021. On 3 February 2021 the Committee organised
an exchange of views on the ongoing developments in Poland on the
basis of a series of online meetings between the rapporteurs and
the delegation of Poland to the Assembly, civil society organisations, as
well as the outgoing Ombudsperson and his staff.
59. Regrettably the situation with regard to the rule of law and
the independence of the judiciary has continued to deteriorate in
2021. No progress has been made with regard to addressing the recommendations and
concerns in Assembly
Resolution
2316 (2020).
60. The European Commission has initiated a number of cases against
Poland before the European Court of Justice for violating European
rules and principles with regard to the rule of law and independence
of the judiciary. These cases focused on the functioning and lack
of independence of the new Disciplinary Chamber that was established
during the reform of the Supreme Court and on the reformed National
Council of the Judiciary (better known by its Polish abbreviation
KRS).
61. The KRS, according to the Polish Constitution, is the “autonomous
self-governing body of the judiciary established to safeguard the
independence of the judiciary”. Following its reform all the members
of the KRS are now appointed by the SEJM, which can also nominate
the candidates for KRS positions. As a result of these reforms the
KRS consists of political appointees and can no longer be considered
an independent judicial institution. The reform of the Supreme Court
established two new chambers: the disciplinary chamber and the extraordinary
appeals chamber. The members of these two chambers are nominated
by the KRS and appointed by the President of Poland. Given the lack
of independence of the KRS the independence of these two chambers
is widely questioned. This was confirmed in the judgements of both
the Court of Justice of the European Union (CJEU) and the European
Court of Human Rights.
62. On 15 July 2015 the CJEU reached its judgment in the infringement
proceedings brought by the European Commission in case 791/19 and
found that the disciplinary regime for judges in Poland is not compatible
with EU law. Faced with considerable financial sanctions the Polish
authorities announced on 7 August 2021 that they would disband the
Disciplinary Chamber, but reportedly did not give a clear timeline for
its dissolution.
63. On 6 October 2021 in a ruling in case C-487/19, the CJEU found
that “transfers without consent of a judge to another court, or,
as is the case in the main proceedings, the transfer without consent
of a judge between two divisions of the same court are […] potentially
capable of undermining the principles of the irremovability of judges
and judicial independence”. In addition it ruled that the appointment
of the judge on the Disciplinary Chamber that had dismissed the
appeal against the transfer had taken “place in clear disregard
of the fundamental procedural rules for the appointment of judges
to the Supreme Court” and that the conditions in which the Supreme
Court judge was appointed had created” reasonable doubts” as to
“the imperviousness of that judge to external factors and as to
his neutrality”. According to the Polish Prime Minister this ruling
was “an attempt to hit at the very heart of the social and legal
system”, that could affect “hundreds of thousands” of judgments
by Polish courts.
64. In response to a request of the Polish Prime Minister about
the Constitutionality of the Treaty of the European Union (TEU),
the Constitutional Court of Poland ruled that certain provisions
of the TEU were inconsistent with the Polish Constitution. This
direct challenge to the supremacy of European law sparked a political
crisis between Warsaw and Brussels, with some circles fearing this
could lead to a “PolExit”.
65. In
Resolution
2316 (2020), the Assembly expressed its concern that the judicial
reforms in Poland and their violation of European rule of law norms
and standards, would undermine the legitimacy of the Polish judicial
system and could lead to an influx of complaints with the European
Court of Human Rights, substantially increasing its workload. In
this context the Assembly in particular expressed its concern regarding the
legitimacy of the Constitutional Court and its rulings following
the Constitutional crisis that erupted in 2015. These concerns were
validated on 7 May 2021 when the Court in the case
Xero Flor w Polsce sp. Z o.o. v. Poland (4907/18)
ruled that the 2015 election of judges to the Constitutional Court
had been irregular, rendering the bench on which these judges participated
unlawful (not a tribunal established by law).
66. On 22 July 2021 the European Court of Human Rights reached
its judgement in the case Reczkowicz
v. Poland (43447/19) in which it ruled unanimously that
in the disciplinary proceeding against the complainant there had
been a violation of art 6 (1) of the Convention as “the procedure
for appointing judges [on the disciplinary chamber] had been unduly
influenced by the legislative and executive powers. That amounted
to a fundamental irregularity that adversely affected the whole
process and compromised the legitimacy of the Disciplinary Chamber
of the Supreme Court, which had examined the applicant’s case. The
Disciplinary Chamber was not therefore a “tribunal established by
law” within the meaning of the European Convention.”
67. Regrettably, instead of complying with these judgments the
authorities, in the same way as for the CJEU decisions, have questioned
their validity. On 29 July 2021, the Minister of Justice requested
the Polish Constitutional Tribunal to examine the constitutionality,
under the Polish Constitution, of article 6 of the Convention. On
24 November 2021, the Polish Constitutional Tribunal ruled that
Article 6 (1) of the Convention (the right to a fair trial by an
independent tribunal) is not compatible with the Polish Constitution
if applied to the Constitutional Tribunal or used to give the Court
in Strasbourg the right to assess the legality of the process of electing
judges to the Constitutional Tribunal. This ruling, which was condemned
by the rapporteurs for Poland is a direct and unacceptable challenge
to the supremacy of the European Convention on Human Rights and the
fundamental values of the Council of Europe.
68. The deep political and social polarisation in Poland, which
permeates many aspects of the Polish society, remains a point of
concern. However, in a welcome development the ruling majority and
opposition in the Sejm and Senate managed to overcome the stalemate
with regard to the appointment of a new Ombudsperson to replace
Mr Adam Bodnar, whose term had ended. On 8 July 2021 a compromise
was reached and Professor Marcin Wiącek was appointed as the new
Ombudsperson with wide support of both theopposition and ruling
party.
2.2.8 Russian Federation
69. The last report on the honouring
of obligations and commitments by the Russian Federation dates back to
2021. Since the return of the Russian Federation to the Assembly
in June 2019, the Monitoring Committee has submitted three reports
on the challenge of its still unratified credentials and were debated
in the Assembly in June 2019, January 2020 and January 2021.
70. In the latter, the Committee highlighted a number of exacerbating
negative tendencies with regard to democracy, the rule of law and
human rights in the Russian Federation including the crackdown on
civil society, extra-parliamentary opposition and critical journalists.
It referred to restrictions imposed by the Russian authorities on
basic freedoms including freedom of assembly, freedom of expression
and freedom of association. It called for an immediate release of
Mr Navalny and a meaningful investigation in co-operation with the
Organisation for the Prohibition of Chemical Weapons.
71. The co-rapporteurs made two public statements in January 2021:
calling for Navalny`s release and urging the Russian authorities
to withdraw the designation of the Council of Europe Schools of
Political Studies Association as an “undesirable organisation”.
Until the time of drafting of this report, none of these demands has
been addressed: Alexey Navalny remains in prison despite the European
Court of Human Rights decision, and the Council of Europe Association
has not been removed from the list of “undesirable organisations”
and has had to terminate its activities.
72. In March 2021 the Venice Commission adopted its Interim Opinion
on Constitutional amendments and the procedure for their adoption
as requested by the Monitoring Committee in May 2020 in which it
identified some serious flaws in the amendments and the procedure
of their adoption. It concluded that the changes went far beyond
what is appropriate under the principle of separation of powers,
even in presidential regimes.
73. The co-rapporteurs visited Moscow from 28 to 30 June 2021
despite the very difficult sanitary situation. Before meeting the
officials they held a series of meetings with prominent Russian
NGOs and with the leader of Yabloko, the extra-parliamentary opposition
party, and heard their concerns. Some laws, in particular the law
on foreign agents, the law on undesirable organisations and the
law on extremism and their restrictive implementation are of particular
concern. The Assembly has on many occasions criticised these laws
and called for their repeal. However, instead of being repealed,
they have been amended over the years in order to become more restrictive.
The package of most recent amendments to the law on foreign agents
was adopted in December 2020 and was criticised by the Venice Commission’s
Opinion published on 6 July 2021. The law on undesirable organisations
was amended in June 2021. As of July 2021, Russia had labelled 76 organisations
and 20 media outlets or individual persons as “foreign agents”,
and many others, including the Council of Europe Schools for Political
Leaders Association or German student exchange organisations, have
been put on the list of undesirable organisations. The rapporteurs
raised these questions at their meetings in the Ministry of Justice,
in the Prosecutor General’s Office, in the Supreme Court as well
as in the Duma and the Federation Council. They stressed that all
their interlocutors were open for a dialogue. They also agreed with
the Russian parliamentarians to elaborate a roadmap which would
define the rapporteurs’ expectations in terms of concrete changes
to the legislation and which would serve as a basis for further
dialogue on fulfilling commitments and obligations.
74. Regrettably, on 12 November 2021, the Russian Prosecutor General’s
Office filed a request with the Supreme Court to dissolve the well
known human rights organisation “Memorial” on the basis of the alleged violation
of the Law on foreign agents. The liquidation of Memorial would
mean a further blow to Russian civil society. Despite calls from
the international community, including the Secretary General of
the Council of Europe and the Council of Europe Commissioner for
Human Rights, the procedure has not been stopped.
75. The major developments in the Russian Federation in 2021 were
the parliamentary elections which took place over 3 days from 17
to 20 September 2021. Upon the decision of the Bureau, an ad hoc
Committee of the Assembly met in Moscow, in the format of an Election
Assessment Mission composed of representatives of the five political
groups. In the absence of a fully-fledged International Election
Observation Mission, it was not in a position to conduct an election
observation but it visited a number of polling stations. Building
upon the information collected within the framework of the remote
pre-electoral meetings, the findings of the Venice Commission and
the
in situ meetings with
political stakeholders, the Central Electoral Commission and domestic
observers and civil society organisations, it identified some concerns
with regard to the electoral legal framework, candidate registration
(some well-known members of opposition parties were denied registration and
the Mission was informed about initiated and ongoing criminal proceedings
and criminal sentences against a number of opposition figures which
effectively prevented them from running in the elections), deregistration by
the CEC of a number of candidates on the basis of information received
from the authorities, without any judicial decision (allegedly depriving
some 9 million Russian citizens of their passive voting rights),
allegations of pressure on State employees to vote on Friday and
the security of ballots overnight; unequal campaigning conditions,
in particular media coverage, allegations of misuse of State and
administrative resources, impact of the foreign agent legislation.
The delegation appreciated the good co-operation with the authorities
and the generally smooth voting process on the election dates. It
recalled the Assembly’s position regarding the illegal annexation
of Crimea, confirmed most recently in
Resolution 2363 (2021) and it referred to the Venice Commission’s opinion on
“The Compliance with Council of Europe and other international standards
of the inclusion of a not internationally recognised territory into
a nationwide constituency for parliamentary elections” which points
out that “the organisation of elections in the annexed territory
does not and cannot remedy the annexation”.
76. Unfortunately, no progress has been made with regard to implementing
the requests of the international community with regard to Eastern
Ukraine, Crimea, and the occupied Georgian regions of South Ossetia, Abkhazia
and the presence of Russian troops in the Transnistrian region of
the Republic of Moldova. The recent concentration of large numbers
of Russian military troops along the border with Ukraine undermines
the security and stability in the wider region and is of serious
concern.
2.2.9 Serbia
77. The Assembly co-rapporteurs
Mr Piero Fassino (Italy, SOC) and Mr Ian Liddell-Grainger (United Kingdom,
EC/DA) mainly focused their work on the inter-party dialogue, and
the constitutional revision in the field of the judiciary during
the year. The Committee debated the “Democratic challenges in Serbia
after the June 2020 elections” on 3 February 2021 in the presence
of Mr Ivica Dačić, Speaker of the parliament (and Chairperson of
the Serbian delegation to the Assembly). The Committee was informed
about the complex process of constitutional revision (which would
eventually have to be approved by a referendum) and the functioning
of democratic institutions following the July 2020 parliamentary
elections, which had resulted in a one-party majority in the National
Assembly and the absence of a viable parliamentary opposition. In
this unprecedented context, the Monitoring Committee decided, in
February 2021, to seek the opinion of the Venice Commission on “The
constitutional and legal framework governing the functioning of
democratic institutions in Serbia” and in November 2021invited the
Venice Commission to prepare a comprehensive opinion on it, taking into
account its October 2021 opinion on the constitutional amendments
and constitutional reform.
78. The constitutional revision was finally launched on 7 June
2021 with an initial vote by the parliament, which was welcomed
by the rapporteurs in their statement,
Note recalling
that the Assembly had made a long-lasting call on the Serbian authorities
to bring the 2006 constitution into line with Council of Europe
standards, following in particular the recommendations issued by
the Venice Commission in 2007 on the
constitution and in 2018 on the current
draft
constitutional amendments aimed at de-politicising the judiciary. They also called on
the Serbian authorities to update the legal framework for the organisation
of the referendum, taking into account Council of Europe standards.
79. In this respect, following the close co-operation established
with the authorities and at their request, in September 2021 the
Venice Commission adopted an urgent opinion on the draft law on
referendums and people’s initiatives,
Note as well as an opinion on “the draft
Constitutional Amendments on the Judiciary and draft Constitutional
Law for the Implementation of the Constitutional Amendments”.
Note In this matter, the Venice Commission
deemed the process of public consultations for these draft amendments
as “sufficiently inclusive and transparent”, but stressed that there
was a strong need to adopt an inclusive approach, in order to reach as
broad a legitimacy for the constitutional reform as possible among
all institutional actors and all political forces in Serbia”. In
November 2021 at the request of the Serbian authorities on 8 and
26 October, the Venice Commission issued two additional urgent opinions
on the revised versions of these draft laws.
80. The inter-party dialogue continued in 2021. It had been initiated
in 2019 with a view to upgrade improving the election conditions.
However, the discussions had so far not brought the expected improvements
and trust in the election environment and did not prevent several
opposition parties from boycotting the July 2020 elections. As opposition
parties disagreed on the negotiation format the Inter-party Dialogue
was organised in two “tracks”: the discussions with the mediation
by current and former MEPs resulted in the publication of “16 measures
to improve the conduct of the electoral process” on 18 September
2021, while the discussions organised by the speaker of the parliament
resulted in the signing of an agreement between two ruling and seven
opposition parties on 29 October which tackled the election process,
the submission of election lists, the control of voter lists and
financing of campaigns and media.
81. Finally, on 19 November 2021 the rapporteurs issued a
statement urging the Serbian authorities to take strong measures
against glorification of war criminals. the former Václav Havel
Prize winner Youth Initiative for Human Rights was previously banned
from demonstrating and removing a mural of Ratko Mladic, convicted for
war crimes and crimes against humanity, illegally installed in Belgrade.
The rapporteurs stressed that the authorities’ failure to act against
the glorification of war criminals undermined regional co-operation
and hindered the process of European integration to which Serbia
aspires.
2.2.10 Turkey
82. Developments in Turkey remained
of concern and further undermined democracy, the rule of law and human
rights. The Assembly co-rapporteurs Mr Thomas Hammarberg (Sweden,
SOC) and Mr John Howell (United Kingdom, EC/DA) followed them closely,
in particular the situation of opposition MPs: they welcomed the
return to parliament of Mr Enis Berberoğlu
Note in February but deplored, in March,
the stripping of MP Ömer Faruk Gergerlioğlu’s immunity and mandate,
his conviction and detention,
Note which
was eventually overturned by the Constitutional Court in July, a
decision welcomed by the rapporteurs.
Note
83. As a follow-up to the 2020 Assembly Resolution on the crackdown
on political opposition and civil dissent, on 15 April 2021 the
committee discussed recent developments with respect to the rights
of the opposition and decided to support the proposal of the leaders
of the five political groups to hold an urgent procedure debate
on the functioning of democratic institutions in Turkey – the third
debate under urgent procedure on Turkey held by the Assembly since
2020.
84. Concerns raised by the committee in this debate included procedures
seeking to lift the parliamentary immunity of a third of the parliamentarians
(overwhelmingly from opposition parties), the attempt to close the Peoples'
Democratic Party (HDP) and ban 451 HDP politicians from political
life, the continued crackdown on its members and more generally
the political violence targeting opposition politicians (including,
at a later stage, the murder of young HDP activist Ms Deniz Poyraz
at the party premises in Izmir on 17 June 2021) which put political
pluralism and the functioning of democratic institutions at risk.
In its
Resolution 2376
(2021) of 22 April 2021, the Assembly called on the Turkish
authorities to reverse these worrying trends, seize the opportunity
of implementing the Human Rights Action Plan released on 2 March
2021 to take meaningful steps and revise the legislation on elections
and political parties, put an end to the judicial harassment of
opposition and dissenting voices, improve freedom of expression
and media and restore the independence of the judiciary, in line
with Council of Europe standards. The Committee later followed with
concern the judicial procedure aimed at closing the HDP being instructed
by the Constitutional Court, as well as other worrying developments, notably
in the field of the justice system, and regretted that the Human
Rights Action plan failed to address some of the most outstanding
issues of concern, such as the separation of powers.
85. Further deficiencies were also identified by GRECO. In its
April 2021 report it urged the Turkish authorities to give new impetus
to their legislative efforts towards increased transparency of political
financing, including in connection with elections. The Venice Commission
for its part concluded, in its July 2021 opinion,
Note that the Turkish legislation to
combat terrorism and its funding – which pursued a legitimate goal
– comprised provisions that applied to all associations, irrespective
of their goals and records of activities, and had led to “far reaching
consequences for basic human rights, in particular the right to
freedom of association and expression and the right to a fair trial”.
86. The presidential decision of 20 March 2021 to withdraw from
the Istanbul Convention – which became effective in July 2021 –
sparked considerable reactions, including from the Presidents of
the Assembly and the Committee of Ministers,
Note as this regrettable step backwards
had been made without any parliamentary debate, prompting the Assembly
to ask for an opinion from the Venice Commission on the modalities
of denunciation of conventions in democratic societies. It was all
the more deplorable as the Turkish parliament had been the first
one to ratify this landmark legal instrument in Europe.
87. On 19 October 2021, echoing several Assembly resolutions dealing
with freedom of expression issues, as well as its
Resolution 1577 (2007) “Towards decriminalisation of defamation” and the 2016
Venice Commission
opinion, the European Court of Human Rights issued for the first
time a ruling concerning Article 299 of the Criminal Code (“insult
to the President”): in the case
Vedat
Şorli v. Turkey – a chamber
ruling not yet final – the Court found that convicting the
applicant to a prison sentence (the execution of which was suspended)
on account of two posts shared on his Facebook account was a violation
of his right to freedom of expression.
88. Finally, the Assembly reiterated its call for the immediate
release of former HDP leader Mr Selahattin Demirtaş
Note and philantropist Mr Osman Kavala,
unlawfully detained since respectively 2016 and 2017, and for the
implementation of the final judgments of the European Court of Human
Rights which found, in both cases, a violation of article 18 of
the European Convention on Human Rights, as these convictions were
pursuing an ulterior purpose: Mr Demirtaş’ detention sought to stifle
pluralism and limit freedom of political debate, while Mr Kavala’s
detention aimed at silencing him and deterring other human rights
defenders. At its meeting of 30 November – 2 December 2021, the
Committee of Ministers adopted two interim resolutions, strongly
urging the Turkish authorities to ensure the immediate release of
Mr Demirtaş,
Note and served a formal
notice to the Turkish authorities signalling the Committee of Ministers’
intention to refer the
Kavala v.
Turkey case to the European Court of Human Rights (namely to
launch an infringement procedure), in line with proceedings provided
for under Article 46.4 of the European Convention on Human Rights.
Note
2.2.11 Ukraine
89. The rapporteurs for Ukraine
made a fact finding visit to Kyiv from 5 to 7 July 2021. On 16 November 2021,
the Committee declassified an information note prepared by the rapporteurs
on the basis of their findings of this visit.
90. The reform of the judiciary and the fight against the widespread
corruption in Ukraine remain key priorities for the country. With
respect to the judiciary, the functioning of the High Council of
Justice (HCJ) and the Supreme Court of Ukraine (SC) are seen as
major obstacles to the independence and impartiality of the judiciary.
The reform of the HCJ, particularly addressing the widespread questions
with regard to the integrity of some of its members is an essential
precondition for the successful reform of the judiciary with a view
to ensuring its independence and impartiality, as well as to address
the widespread corruption within the judiciary.
91. On 13 July 2021, the Verkhovna Rada, adopted two laws to reboot
the High Qualifications Commission of Judges (HQCJ) and the HCJ.
The adoption of these laws, that inter
alia established an Ethics Council, was hailed by the
international community and domestic stakeholders as a decisive
step forward in the reform of the judiciary. The Ethics Council
is composed of three national members as well as three members proposed by
the international partners of Ukraine. It is responsible for vetting
the integrity of candidates for the HCJ, and the current members
of the HCJ. It is hoped that the relaunch of the HQCJ would result
in the many vacant judicial posts being filled soon as this large
number of vacancies was undermining the efficient administration of
justice in Ukraine. The Venice Commission has recommended that the
Ukrainian authorities should adopt one holistic reform of the judiciary,
instead of a series of individual laws addressing various aspects
of the judiciary, that are not always well synchronised. That said,
the Venice Commission recognises the importance of the subject and
underscored that “the issue of integrity and ethics of the HCJ should
be addressed as a matter of urgency”.
92. A part of the judiciary that has yet to be reformed is the
Kyiv District Administrative Court (KDAC). This Court is of special
importance as it hears appeals against decisions of State and local
authorities, including all cases concerning the Central Election
Commission (CEC), the Cabinet of Ministers and Ministries, the National Bank,
the National Agency on Corruption Prevention (NACP) and the National
Anti-Corruption Bureau (NABU). Many of its rulings against government
decisions have been questioned and are widely seen as attempts to undermine
the authority’s reform and anti-corruption efforts.
93. The fight against the widespread corruption in Ukraine continues
to be a stated priority of the authorities. The five-tiered institutional
structure to fight corruption is now in place and functioning, slowly
achieving tangible results. This in turn has increased the attempts
to undermine the institutions and policies that have been put into
place to fight corruption. A number of key positions in these institutions
have become vacant or will be vacant soon. Their succession will
be a litmus test for the authorities political will to tackle corruption
at all levels in Ukrainian society.
94. In a welcome development the requirement that anti-corruption
activists and leadership of civil society organisations active in
the field of fighting corruption submit an electronic asset declaration,
about which the Assembly had previously expressed its concern, was
declared unconstitutional and has been withdrawn.
95. The High Anti-Corruption Court (HACC) is fully functional
since September 2019 and is widely considered to be effective and
achieving tangible results. It has already taken up more than 200
high profile cases and in 33 cases a verdict has already been reached,
leading to 181 convictions. However, with the current caseload the
Court would soon be saturated and the number of its judges need
to be urgently increased
96. In June 2021 President Zelensky tabled the so-called anti-oligarch
law that would prohibit oligarchs from financing political parties
and taking part in privatisations, as well as requiring them to
submit an annual assets declaration. In addition, senior officials,
including the President and members of the government would be required
to declare any contacts with these oligarchs. Some aspects of the
draft law have raised questions, in particular the fact that a person
declared an oligarch, would be considerably limited in their rights,
by a decision of the President in consultation with the National
Security and Defence Council. The President would have very broad
discretion in this respect and his decision could not be appealed
before the Court. On 6 September 2021, the Verkhovna Rada Human
Rights Commissioner (Ombudsperson), raised concerns about the constitutionality
of the law and urged the Verkhovna Rada to ask for a Venice Commission
opinion before adopting the law in its final reading. In response,
on 13 September 2021, the then Speaker of the Verkhovna Rada, Mr Dmytro
Razumkov, sent the draft law to the Venice Commission for opinion.
On 23 September 2021, following a failed assassination attempt on
an aide to President Zelensky the day before, the Verkhovna Rada adopted
the law in a final reading without waiting for the Venice Commission’s
opinion. The Verkhovna Rada was urged to address any concerns and
recommendations raised in the forthcoming opinion of the Venice Commission
on this law.
97. Media is a sensitive issue in Ukraine and is closely linked
to the ongoing information war with the Russian Federation in the
context of its intervention in Eastern Ukraine and illegal annexation
of Crimea. This is compounded by shortcomings in the legal framework
for the media, especially with regard to how to address misinformation,
fake news and propaganda in the context of this information war.
A law on sanctions has been adopted. On the basis of this law a
number of televisions channels that were used for misinformation
and propaganda for the Russian Federation were closed by the National
Security and Defence Council. This most prominently concerned 3
stations owned by the controversial Ukrainian oligarch and Opposition
Bloc leader Viktor Medvedchuk. While the closure of these channels
is widely considered by the Ukrainian population to be warranted,
questions remain about the legal means used to do so, in particular
the lack of oversight by the Courts over these decisions. On 15
July and 26 August Mr Medvedchuk filed complaints with the European Court
of Human Rights against the legal actions taken against him by the
Ukrainian authorities, including the closure of his television stations.
98. While co-operation with the authorities in the framework of
the Council of Europe Platform to promote the protection of journalism
and safety of journalists has considerably improved – with 96% of
the alerts responded to and resolved – violence against journalists
continues to be recorded, especially against those investigating
corruption at local and regional level, and against journalist that
are seen as agents of the Russian authorities and their interests.
Attacks are seldomly effectively or transparently investigated,
leading to a sense of impunity for such crimes.
99. The interrelated issues of minorities and of the protection
of the state language and status of minority languages in Ukraine
is complex and sensitive, especially in the context of the illegal
annexation of Crimea by the Russian Federation and the ongoing conflict
in Eastern Ukraine. On 1 July 2021 the Verkhovna Rada adopted in
a special session a law on indigenous people in Ukraine. This law,
which is mostly aimed at the minority situation in Crimea, according
to the Minister of Culture strictly adheres to the United Nations
General Assembly (UNGA) definition of an indigenous minority, which
is an ethnic minority that does not have a kinstate. According to
this definition most ethnicities in Ukraine, including ethnic Ukrainians
and ethnic Russians, are not considered as indigenous people of
Ukraine, which raised some concerns among some of Ukraine’s neighbours.
100. On 23 August 2021, Ukraine held the inaugural summit of the
Crimea Platform, which was organised in a “a consultative and co-ordination
format with the aim of peacefully ending the Russian Federation’s temporary
occupation of the Autonomous Republic of Crimea and the city of
Sevastopol and to restore control of Ukraine over this territory
in full accordance with international law”. The summit had a wide
and high-level participation, including by the Secretary General
of the Council of Europe and the President of the European Council
and was widely considered to be a success by the participants.
2.3 Post-monitoring dialogue
2.3.1 Bulgaria
101. The last post-monitoring report
was debated in the Assembly in June 2019. The Assembly resolved
on that occasion not to terminate the post-monitoring dialogue and
invited the rapporteurs to assess, over 2020, the progress made
in five specific areas of concern including high-level corruption,
transparency in media ownership, human rights of minorities, hate
speech and violence against women. The pandemic crisis has prevented
the rapporteurs from going to Bulgaria (a visit scheduled for the
beginning of April 2020 had to be cancelled at the last moment)
and made it impossible to prepare a report as planned.
102. Since July 2020, Bulgaria has been confronted with a major
political crisis triggered by corruption scandals, a lack of respect
for the rule of law and ensuing street demonstrations. After attempts
by the ruling majority to appease the crisis by reorganising the
government and calling elections for a Grand National Assembly with
a view to revising the Constitution, on 14 January 2021 the parliamentary
elections were called by President Rumen Radev for 4 April 2021.
They were observed jointly by the OSCE/ODIHR, the OSCE PA and the
PACE. The observers concluded that the elections were competitive
and efficiently run despite the difficult circumstances caused by
the Covid-19 pandemic, and fundamental freedoms were respected.
The voting day in the polling stations observed was assessed as
transparent and well organised. The turnout was 50,6% and six parties
and coalitions passed the 4% threshold. The Citizens for European
Development of Bulgaria (GERB) won 75 seats (25.8% of the votes)
and the Bulgarian Socialist Party (the second force in the previous
parliament) got 43 seats (14,7%). The major surprise was created
by a newly established party named There is such a people (ITN)
which won 51 seats (17,4%), and two new coalitions, Democratic Bulgaria Coalition
(DB) – 27 seats (9,3%) and Coalition Stand up! Get out! (IMV) –
14 seats (4,6%). Their results well illustrated voters’ wish for
change.
103. The elected parties failed to form a new government. Therefore,
on 11 May 2021, President Radev signed a decree to dissolve the
National Assembly with effect from 12 May and to hold parliamentary
elections on 11 July 2021. He appointed a caretaker government.
104. The early parliamentary elections on 11 July were again observed
by joint observer missions. They concluded that they were competitive
and fundamental freedoms were generally respected. The voting process in
polling stations was well organised. The election campaign at the
national level predominantly focused on fighting corruption, post-pandemic
economic recovery, judicial reform and unemployment. It was dominated
by mutual accusations over corruption and wrongdoings between provisional
government officials and GERB representatives. Voter turnout was
42,1%. Again, six parties and coalitions passed the 4% threshold:
There is such a people (ITN) – 65 seats (24,08%); Citizens for European
Development of Bulgaria (GERB) – 63 seats (23.51%); Bulgarian Socialist
Party (BSP) – 36 seats (13,39%); Democratic Bulgaria coalition (DB)
– 34 seats (12,64%); Movement for Rights and Freedoms (MRF) – 29
seats (10,71%); Coalition Stand Up! Get out!” (IMV) –13 seats (5,01%).
105. Yet again the parties were unable to form a government and
new anticipated parliamentary elections (the third parliamentary
elections in 2021) were called for on14 November 2021 – the day
of presidential elections.
106. According to the Assembly observation mission, the presidential
and early parliamentary elections held on 14 November were competitive
and fundamental freedoms were respected. In a runoff incumbent President Ruman
Radev gathered 66.72% of the vote, and a new anti-corruption party,
We continue the change (PP) won 67 seats (25,32%) falling short
of a parliamentary majority (121 seats are needed). GERB-SDS led
by Mr Borisov won 59 seats (22,44%). National turnout in the parliamentary
and first presidential round fell to 33% which is a matter of concern.
On 6 December, the PP’s leader, Kiril Petkov announced that a coalition government
with three other parties could be established soon putting an end
to a political deadlock.
2.3.2 Montenegro
107. In April 2021, on the basis
of the report prepared by the co-rapporteurs, the Assembly adopted
Resolution 2374 (2021) on post-monitoring dialogue with Montenegro. Following
their proposal, it considered that in the four areas it had identified
as "priorities" in its
Resolution
2030 (2015), namely the independence of the judiciary, trust in
the electoral process, the situation of the media and the fight
against corruption, progress had not been sufficiently tangible
to bring the dialogue to an end.
108. This process is therefore continuing and it is in this context
that the co-rapporteurs have actively monitored the developments
concerning the amendment of the Law on State Prosecution Service
and the Law on State Prosecution for Organised Crime and Corruption.
In May, in an interview with the leading Montenegrin daily newspaper,
Vijesti, they explained in detail the various recommendations made
by the Venice Commission at the request of the Montenegrin authorities
on the different draft texts.
Note They also held two meetings with
the Speaker of Parliament and, in addition, with the Chairperson
of the Montenegrin delegation, prior to the final adoption of the
Law on State Prosecution Service. Finally, they expressed their
position on the amendments passed by parliament in a statement issued
the day after their promulgation, on 7 June 2021.
Note In
this statement, they congratulated the Montenegrin authorities for
the real improvements observed throughout the legislative process,
particularly in terms of inclusive consultations. They also welcomed substantive
progress, in particular the renunciation of the
de facto abolition of the Special
Prosecutor's Office and the introduction of a proposal for the nomination
by NGOs of a candidate for the Prosecutors' Council, the central
governance body of the prosecution service in Montenegro. However,
they drew the attention of the Montenegrin authorities to the incompleteness
of the progress made with regard to the new composition of the Prosecutors'
Council. In particular, they pointed out that the renewal of all
members of the Prosecutors' Council and the appointment of the five
new lay members by the Parliament by a simple majority constituted
a risk for the independence of the Council,
Note as noted
by the Venice Commission. They invited our Montenegrin colleagues
to ensure that the new lay members of the Council of Prosecutors
were appointed on the basis of their expertise and were perceived
as politically neutral. Since the entry into force of the amendments
to the Law on State Prosecution Service, the four members from the
prosecutor's corps have been appointed by their peers and the Minister
of Justice also appointed one member in August. The appointment
of the five lay members was delayed,
inter
alia, by the issue of the cabinet reshuffle following
the incidents in the former royal capital, Cetinje.
109. On 5 September violent but limited clashes took place between
the police and groups claiming to be "patriotic", publicly supported
by the Democratic Party of Socialists of Montenegro (PDS), on the
occasion of the enthronement of the new Metropolitan for Montenegro
and the Littoral of the Serbian Orthodox Church (SOE). Opponents
of the enthronement claimed that it was a provocation by the SOE,
whose patriarchate is located in Belgrade, as Cetinje symbolises
the historical efforts of Montenegrins to create their own identity, distinct
from a Serbian one. Following the violence, the action of the Minister
of the Interior, a member of the United Action for Reform (UAR)
party, was criticised and, on this occasion, the Democratic Front
(DF), the largest component of the current majority, reiterated
its demand for a ministerial reshuffle in order to put an end to
the government of experts imposed by the Prime Minister in December
2020 and to have its leaders appointed to ministerial posts. This
request was, for the first time, supported by the second largest
party, the Democrats (DCG). On 21 October the Prime Minister outlined
the principles that would guide the upcoming cabinet reshuffle and
stressed the importance for the three current majority parties,
FD, DCG and URA, to respect the terms of the government agreement
signed by their representatives in September 2020. This agreement
guaranteed in particular that Montenegro would continue to recognise
Kosovo's
Note independence, that
the Montenegrin national symbols and anthem would be preserved,
and that Montenegro would respect its international commitments,
in particular its NATO membership and its pro-European orientation.
As the Prime Minister had referred to the appointment of the five
lay members of the Prosecutors' Council as a priority item on the
parliamentary agenda, apparently even before the vote on the cabinet
reshuffle, it was important to recall that this appointment should
not be subject to any “political” distribution among the different components
of the parliamentary majority, but should be based on their competences,
as the co-rapporteurs and the Venice Commission have indicated.
2.3.3 North Macedonia
110. After the July 2020 early parliamentary
elections and the appointment of a new delegation to the Assembly,
the Assembly co-rapporteurs Ms Christoffersen (Norway, SOC)
Note and Mr Csenger-Zalàn
(Hungary, EPP/CD) followed the implementation of
Resolution
2304 (2019) “Post-monitoring dialogue with North Macedonia” and
the developments in the country which has remained polarised along
political and ethnic lines.
111. The domestic agenda remained dominated by the lack of progress
of EU accession negotiations despite their opening in March 2020,
after the signing of the 2018 Prespa Agreement which solved the
name issue with Greece. Since then, the adoption of the Negotiating
Framework by the EU Council has been blocked by Bulgaria, despite
the signing of a bilateral Friendship Treaty in 2017. This issue
was central in Deputy Prime Minister for European Affairs of North
Macedonia Mr Dimitrov’s address to the Assembly on 30 September 2021.
112. In the meantime, the government adopted, on 10 March 2021,
the “Europe at Home” Agenda based on the commitments arising from
the 2004 EU Stabilization and Association Agreement and the European Commission
recommendations, which also aimed at implementing the recommendations
of, inter alia, the Council
of Europe, the Venice Commission and GRECO when dealing with election
reforms, fighting against corruption and organised crime and issues
concerning human rights, the judiciary, media, public administration,
etc.
113. In March 2021 the Government also adopted, “Action Plan 21”
to fight corruption. GRECO issued, a month later, its compliance
report (Fifth evaluation round)
Note:
it welcomed the adoption of a new Code of Ethics for top executive
functions, but the fact that its implementation was left in the
hands of a Deputy Prime Minister was however not compatible with
GRECO’s practice. The new Code of Ethics for the police force and
the external supervision of the police force were positive developments;
the operational independence of the police needed however to be
brought into line with the Council of Europe’s standards for democratic
policing and its depoliticisation ensured in law and in practice.
114. In addition, the many allegations of physical ill-treatment
of criminal suspects by police officers highlighted by the CPT in
May 2021
Note need to be urgently addressed by
the authorities. The CPT was also highly critical of the persistent
failure of the authorities to address certain fundamental shortcomings
of the prison system, including poor quality of healthcare provided
to inmates, high levels of inter-prisoner violence, squalid material
conditions and endemic corruption of staff. Measures adopted since
then by the authorities (for example closure of some problematic
wings notably at Idrizovo Prison) should be noted here.
115. The Parliamentary Assembly had been very concerned by the
storming of the parliament on 27 April 2017, which had severely
injured dozens of MPs, parliament officials and journalists and
caused much damage to the building. On 27 July 2021, a first-instance
court in Skopje convicted the organisers of this storming, including
the former Speaker of the parliament Mr Veljanoski and the former
ministers of transport and communications and of education and science,
to a 6-year prison sentence each and placed them under house arrest.
116. A positive development was the census carried out in September
2021, which was long awaited by the Assembly (the last one was conducted
in 2001). This census happened 20 years after the signing of the
2001 Ohrid Framework Agreement, which had ended a civil conflict.
In 2002 this Agreement enabled the adoption of sweeping constitutional
changes empowering ethnic communities in local and national politics,
the public sector and education in areas where they make up more
than 20 % of the population, based on the results of the census.
117. Finally, there were meaningful political developments in the
autumn while the country remains polarised: at the local elections
held on 17 and 31 October 2021, the opposition party VMRO-DPMNE
won 42 out of the 81 mayoral seats in the country, including the
capital Skopje. As a result, Prime Minister Mr Zaev (whose party SDSM
enjoys a tight majority in parliament) announced that he would tender
his resignation, prompting the Albanian BESA party to join the opposition.
However, a no-confidence motion tabled by the opposition was not put
to the vote due to lack of quorum (one of the BESA MPs having changed
his mind after the Prime Minister renounced his resignation). Given
these unexpected political developments, the rapporteurs had to
postpone their visit to North Macedonia in December 2021.
2.4 Periodic reviews
118. Since 2015 the Monitoring Committee
has been preparing, regular periodic reviews on all Council of Europe
Member States not under a full monitoring procedure or engaged in
a post-monitoring dialogue, in line with the new methodology adopted
by the Assembly in 2018.
Note
119. In 2021 the Committee focused on the preparation of the periodic
review reports on Hungary, Malta and Romania which had started with
the appointment of PACE rapporteurs in May 2020 and the validation
of the scope of their reports by the Committee in December 2020.
In March 2021, the Committee organised an exchange of view with
Mr Nicolaas Bel, Deputy Head of the Justice Policy and Rule of Law
Unit in the European Commission’s Directorate-General for Justice
and Consumers to discuss the newly launched “EC rule of law reports”,
with a particular focus on Hungary, Malta and Romania.
2.4.1 Hungary
120. Concerning Hungary, the rapporteurs
Mr George Papandreou (Greece, SOC) and Mr František Kopřiva (Czech
Republic, ALDE) and the Committee had a series of meetings with
the delegation and media organisations and civil society representatives.
The Commissioner for Human Rights Dunja Mijatović had raised several
issues in relation to the adoption of a legislative and constitutional
package by the Hungarian Parliament in December 2020 and its compliance
with Council of Europe standards. The Committee therefore requested,
in February 2021, an opinion of the Venice Commission on this package.
The Venice Commission adopted one opinion on the constitutional
amendments
Note in July 2021 and three opinions
in October 2021 on amendments covering the judiciary,
Note national human rights structures
Note and the electoral legislation.
Note The Committee noted that the electoral
reform now required political parties to nominate candidates in
70% of the constituencies at the next parliamentary elections. The
Venice Commission said the main effect of this reform, would be
in favour of the incumbents, and would aggravate the level of political
polarisation. As a general remark, the Venice Commission also regretted
that the constitutional and legal package was adopted during a state
of emergency, apparently without public consultation, in a swift
procedure that was not in line with the Venice Commission recommendations
and guidelines, and reiterated the concerns expressed in its 2011 opinions
regarding the adoption of cardinal laws. The Committee was also
informed of persistent deficiencies with respect to the independence
of the judicial system, journalistic and media freedoms and fight
against corruption. At the same time, the Committee welcomed the
repeal of the 2017 Law on the transparency of organisations receiving
support from abroad (so-called “Lex Soros”) on 22 April 2021 (which
had been widely criticised, including in the Assembly
Resolution
2203 (2018)) and some progress noted by the Committee of Experts
on the Evaluation of Anti-Money Laundering Measures and the Financing
of Terrorism (MONEYVAL) on its legislation on politically exposed
persons.
121. The rapporteurs completed their draft preliminary report focusing
on the functioning of democratic institutions, in particular on
good governance issues, the independence of the judiciary and media
situation. It was submitted to the Monitoring Committee on 13 September
2021 and sent to the Hungarian authorities for comments (within
six weeks). However, a series of events impacted the finalisation
of the report (namely the Hungarian Chairmanship of the Council
of Europe Committee of Ministers from May to November 2021, delayed
submission of the comments of the Hungarian authorities to the preliminary
draft report, resignation of one rapporteur on 16 November, appointment
of a new one in December and upcoming parliamentary elections scheduled
in April 2022). Further to the request of the Monitoring Committee
the PACE Bureau approved an extension of the reference of the motion
until October 2022, which would allow the rapporteurs to visit the
country and finalise the report after the 2022 parliamentary elections.
2.4.2 Malta
122. The co-rapporteurs made a fact
finding visit to Malta from 25 to 27 October 2021. In addition,
they held an exchange of views with Mr Pieter Omtzigt, rapporteur
for “Daphne Caruana Galizia’s assassination and the rule of law
in Malta and beyond: ensuring that the whole truth emerges” on the
findings in his report with regard to the system of checks and balances
and justice system in Malta.
123. Malta has made a number of welcome reforms to address the
shortcomings and recommendations of the Venice Commission in their
opinion on the “Constitutional arrangements and separation of powers
and the independence of the judiciary and law enforcement”. If fully
and consistently implemented, these reforms could mark an important
step forward in bringing Malta’s democratic and rule of law institutions
fully in line with European norms and standards. However, additional
systemic reforms are necessary to fully address the Venice Commission’s
recommendations and in particular a profound reform of the Maltese
parliament is necessary to ensure a proper parliamentary oversight
over the executive. A full-time parliament should be established
with sufficient autonomous capacity to fulfil its legislative and
oversight functions. The practice of members of parliament holding
secondary jobs and functions in state institutions and agencies
that they are supposed to oversee – with the inherent risks of conflict
of interest and corruption – should be reconsidered. A list of positions
and functions that are incompatible with the position of MP should
be established by law. In addition, the wide-spread use of so-called
‘persons of trust’ in the Maltese civil service, which amounts to
a system of political patronage with the evident risks of conflict
of interest and corruption, remains an issue of concern. The use
of “persons of trust” should be limited to a small number of clearly
and legally defined and regulated positions.
124. As noted by the Independent Public Inquiry into the murder
of Daphne Caruana Galizia, that was established following calls
by the Assembly, Malta has a culture of impunity and of tolerance
for corruption and conflict of interest, which cannot be addressed
by legislative changes only, but requires a change of attitude and
behaviour on the part of all concerned. In this respect the rapporteurs
expressed their concern about the deeply-rooted political and social
polarisation, which permeates nearly all aspects of Maltese society,
and endangers the functioning of its democratic institutions. This
is an issue that should be addressed as a matter of priority by
the Maltese authorities.
125. Malta is a frontline state with regard to irregular migration
and refugees. The number of refugees and irregular migrants reaching
Maltese shores is extremely high in comparison to the country’s
small size and population. As a result, these issues can therefore
only be resolved with the solidarity and assistance of other EU
member States. At the same time, conditions in the reception and
detention centres for irregular migrants and refugees remain an
issue of concern, despite efforts of the Maltese authorities.
2.4.3 Romania
126. Concerning Romania, the preparation
of the report was delayed by the electoral campaign and the legislative
elections held in Romania on 6 December 2020, the sanitary restrictions
on travel which prevented the co-rapporteurs from visiting the country
in the first half of 2021, and then electoral campaigns in their
own countries, followed by their resignation from rapporteurship
as they were not re-elected in their respective parliaments, and,
last but not least, by the political crisis in Romania which began
on 1 September 2021.
127. The crisis was the result of economic difficulties and controversies
over the handling of the pandemic. It was triggered by disagreements
over the so-called Anghel Saligny investment programme designed
to develop Romanian settlements supported by one of the major coalition
partners, Prime Minister Citu’s National Liberal Party but criticised
by the other, USR Plus whose ministers boycotted the government
sittings. Following the dismissal of the Minister of Justice, resignation
of other USR Plus ministers, a complaint to the Constitutional Court
and two motions of no confidence, the Citu Government was dissolved
on 5 October 2021.
128. Two consecutive Prime Ministers nominated by President Klaus
Iohannis failed to form a government. On 25 November, a new coalition
government led by Nicolae Ciuca won the parliament’s support.
129. The previous rapporteurs had identified a number of areas
of concern with regard to the functioning of democratic institutions
including the independence and efficiency of the judiciary, the
fight against corruption, pluralism of the media, discrimination
of minorities and a number of other issues raised in the report
by the Council of Europe’s Commissioner for Human Rights and the
European Commission against Racism and Intolerance (ECRI), in particular
racism, violence against women, rights of LGBTI and detention conditions.
130. The Monitoring Committee appointed new co-rapporteurs last
September. Unfortunately they had to cancel their planned visit
to the country at the end of November due to the considerable deterioration
of the sanitary situation in Romania.
131. Given that the committee has agreed that a physical visit
is a necessary condition for the preparation of the report and taking
into account a lengthy procedure (which requires time for the relevant
authorities to send their comments), the committee decided to ask
the Bureau for the extension of the deadline for the preparation of
the report by 6 months.The Bureau extended the reference until October
2022.
132. I raise a more general question of references for periodic
review reports limited to two years in chapter 4 of the present
report.
2.5 Sub-Committee on Conflicts between
Council of Europe Member States
133. Following the discussions on
future activities as well as a written procedure on the basis of
the proposals prepared by its chairperson, the sub-committee agreed
on the workplan which focused on the Transnistrian conflict settlement,
the Cyprus settlement process, and the conflict between Armenia
and Azerbaijan/Nagorno-Karabakh conflict. The workplan was endorsed
by the committee.
134. In the framework of the discussion on its future activities,
the sub-committee agreed on the interpretation of its working methods
with a view to increasing the efficiency of its work, on the basis
of a non-paper which I had prepared in my capacity as chairperson
of the committee.
2.6 The conflict in Nagorno-Karabakh
135. On 11 January 2021 at the proposal
of the Russian Federation, Prime Minister Pashinyan and Presidents
Putin and Aliyev signed a new Trilateral Statement, following the
statement of 9-10 November 2020, which put an end to hostilities
in Nagorno-Karabakh. This second statement was aimed at implementing paragraph
9 of the 9-10 November statement on the unblocking of all economic
and transport links in the region. To this end, it provided for
the establishment of a Tripartite Working Group headed by the Deputy
Prime Ministers of the Republic of Armenia, the Russian Federation
and the Republic of Azerbaijan, which was tasked with drawing up
a list of the main areas of work stemming from paragraph 9 of the
statement, setting rail and road communications as priorities. The
Working Group has effectively started its work and has met eight
times, the last time on 20 October 2021.
136. On 12 May 2021, Azerbaijani troops penetrated 3.5 kilometres
into Armenian territory in two locations, one in the Syunik province
and the other in the Gegharkunik province. The Azerbaijani Government
pointed to the lack of clear border demarcation in this area and
the fact that, according to some maps dating from the Soviet era,
the localities concerned were located on Azerbaijani territory.
At the time of printing the report, Azerbaijani troops had not withdrawn
from these localities. Despite Russian mediation and the Russian Federation's
call for the acceleration of border delimitation and demarcation
operations, the border areas between Armenia and Azerbaijan are
now subject to incursions, capture of military personnel
Note etc. On 22 October
2021, at the discussions of the Valdai Club, a Russian think tank,
in Sochi, President Putin said that "the most important thing to
do now is to finally settle the situation at the border" and that
in order to do so, the General Staff of the Russian army had "the
maps that show where the border between the Soviet republics [of
Armenia and Azerbaijan] was in the Soviet period”.
Note
137. On 22 April, the Monitoring Committee issued a
statement on the conflict in Nagorno-Karabakh. It recalled,
inter alia, that it had closely
followed both the conflict and developments since the Trilateral
Statement of 9 and 10 November 2020 and that the co-rapporteurs
for Armenia and Azerbaijan had made regular joint statements on
developments. It welcomed the progress made towards the implementation
of the Trilateral Statement, but expressed concern about reports
that not all persons detained in the context of the conflict had been
exchanged. It further considered that both sides should strengthen
their co-operation and communication in clearing areas that needed
to be demined in order to ensure the safety of civilians. It also
recalled that paragraph 8 of the Trilateral Statement clearly referred
to the exchange of all detained persons, without distinction as
to the status of these people assigned by one of the parties. It
called on Azerbaijan to ensure that all Armenian detainees are released
and handed over to the Armenian authorities without delay, drawing attention
to the concerns expressed by the European Court of Human Rights
regarding the 188 Armenians allegedly captured by Azerbaijan. Furthermore,
it considered that the establishment of an independent international
mission responsible for investigating the conflict and allegations
of human rights and humanitarian law violations during the recent
hostilities was essential to create an environment that is conducive
to reconciliation and the establishment of genuine peace. It stated
that cultural heritage was important to all parties to the conflict
and that the urgent implementation of the necessary mechanisms for
its protection and renovation was a priority. The Committee therefore
charged its Sub-Committee on Conflicts between Council of Europe
Member States to explore in more detail concrete mechanisms for
resolving these two issues.
138. Finally, the committee called on both parties to constructively
engage with the relevant international institutions, in particular
the OSCE Minsk Group, with a view to fully implementing the Trilateral
Statement, and to start the peace negotiations.
139. On 27 September 2021 the Assembly adopted
Resolution 2391 (2021) and
Recommendation
2209 (2021) “Humanitarian consequences of the conflict between Armenia
and Azerbaijan / Nagorno-Karabakh conflict”, the content of which
fully supports the positions expressed by the Monitoring Committee
on 22 April 2021.
3 Some thoughts on how to improve the
Monitoring Committee’s working methods for greater efficiency and
impact
140. The Monitoring Committee and
its rapporteurs have continued their activities in 2021 despite
challenges and restrictions resulting from the Covid-19 pandemic
which are particularly harmful for this committee. Indeed, the Monitoring
rapporteurs rely, in the framework of political dialogue foreseen
by the monitoring procedure, to a much larger extent on direct contacts
than rapporteurs from other committees. While video conferences
with the participation of different stakeholders have become a useful
tool for gathering information, they cannot replace in-person meetings.
it is a well established practice in the committee that monitoring
reports cannot be prepared without a fact-finding visit in the country
concerned.
141. This brings me to a more general issue of the preparation
of monitoring reports. In accordance with the Rules of Procedure,
the Monitoring Committee has a permanent mandate to deal with the
countries under monitoring procedure strictusensu as well as countries engaged
in the post-monitoring dialogue. The preparation of a report on
such a country does not require a special reference from the Bureau.
The Committee’s terms of reference oblige it to present country
reports with a certain frequency which unfortunately cannot always
be respected.
142. The situation is different when it comes to periodic review
reports (in their current format) as foreseen by the mandate of
the Committee revised in 2018. Let me recall that according to the
revised rules, the Committee is seized, in accordance with Rule
26, to prepare regular periodic reviews on all Council of Europe
member States that are not under a full monitoring procedure or
engaged in a post-monitoring dialogue. The order and frequency of
these reports is decided upon by the Committee in accordance with
its internal working methods based on substantive grounds, with
the objective of producing over time, periodic review reports on
all member States. The Committee is currently preparing periodic
review reports on six member States (France, Hungary, Malta, Netherlands,
Romania and San Marino).
143. Rule 26 of the Rules of Procedure stipulates that references
to committees are valid for two years. This means that periodic
monitoring reports should be prepared and adopted by the Monitoring
Committee within two years from the date of reference by the Bureau,
as is the case for reports in all other Assembly Committees.
144. This requirement has already proved its inadequacy for the
unique monitoring procedure for the preparation of reports over
the last three years of its implementation.
145. While all other Assembly committees may have no difficulty
in meeting a strict deadline, it has to be stressed that the monitoring
procedure for the preparation of reports is much more cumbersome,
if I may use this expression.
146. Firstly, the appointment of rapporteurs is different from
the procedure applied in other committees and directly involves
the political groups which submit their candidates in accordance
with the distribution agreed among them. Unfortunately, it is common
that nomination by the groups are delayed for a number of reasons and
some posts remain vacant for a long time. This is illustrated by
the current situation as reported in section 2.1 of the current
report. At the moment of drafting as many as 2 positions remain
vacant and it is by no means an exceptional situation. Needless
to stress that such a situation is harmful for the preparation of
a report but also for the monitoring process as a whole.
147. The Monitoring Committee is the only committee which appoints
two co-rapporteurs for each report. While this is fully justified
by the need for political balance and impartiality, even if, at
the same time, it may contribute to – sometimes considerable – delays
in the preparation of reports as internal commitments or elections
in respective co-rapporteurs’ countries sometimes exclude joint
activities such as visists over long periods of time. In addition,
the resignation of one co-rapporteur, for example due to non-re-election,
can considerably affect the preparation of reports.
148. Secondly, the monitoring procedure for the preparation of
reports provides for several stages which are not foreseen in other
committees. A draft report approved by the committee is transmitted
to the authorities of the country concerned for comments; the authorities
have six weeks to provide them and only following the consideration
of the comments can the Committee approve a final version of report
and adopt a draft resolution. The whole process takes much more
time than procedures in other committees.
149. Thirdly, and most importantly, political dialogue, indispensable
and crucial for the progress in the framework of the monitoring
procedure, can only be conducted when there are reliable interlocutors
for the country concerned.
150. Last but not least, we cannot forget that the rules introducing
periodic monitoring reports in their new format have imposed a considerable
new work load on the secretariat of the committee which has not
been increased. There are limits to the number of missions or hearings
which can be organised in a limited period of time by a limited
number of staff members and we should remain realistic.
151. In this overall context, restrictions on travel related to
the pandemic, is another – albeit hopefully temporary – argument
in favour of the extension of validity of references for periodic
monitoring reports in the Monitoring Committee.
152. As demonstrated by our past experience over the last three
years, it is difficult, and often impossible, to prepare a periodic
monitoring report applying all the above mentioned criteria in the
short period of two years. The committee was already forced to request
the extension of the reference for Hungary and Romania for various
reasons that are beyond its responsability. The Bureau has agreed
to this reasoning and extended the reference. However, it is more
than likely that the same difficulties will appear during the preparation
of next periodic monitoring reports.
153. For that reason I propose to change the relevant rules with
a view to extending the validity of references regarding periodic
monitoring reports to up to three/four years.
154. I would also like to come back to the question of appointment
of rapporteurs. The work of monitoring rapporteurs is time consuming
and requires a considerable availability – and flexibility in that
respect – of the rapporteurs for a country, irrespective of whether
that country is under a full monitoring procedure or under periodic
review. Regrettably, as during previous years, the availability
of suitable candidates for vacant rapporteurs’ positions, and their
subsequent availability to execute their demanding tasks, continued
to be a point of concern for the committee. This was compounded
by relatively high turnover of rapporteurs during the reference
period in addition to limitations caused by the Covid-19 pandemic
which caused delays in the preparation of a number of reports.
155. As I mentioned above, the question of the availability of
rapporteurs has become more pertinent due to the increase in the
number of reports as a result of the strengthening of the procedure
for the periodic review of the honouring of membership obligations
by all member States. As a consequence, there are currently 39 rapporteur
positions in the committee. At the same time, it should be emphasised
that the increase of rapporteurs’ positions allows for a better
circulation of rapporteurs’ positions among the political groups,
which has been a long standing wish of the Committee members. In
this respect it should be considered that a more frequent recourse
to the circulation of rapporteur positions among the groups could
help to alleviate some of the shortages of rapporteurs for vacant
positions.
156. For all the reasons mentioned in this section, it will be
important to address the issue of the availability of rapporteurs
in a systemic and systematic manner. I will make some suggestions
for further consideration by the Committee that should guide an
indepth discussion on this issue in the committee. However, the
role of the political groups in addressing this issue needs to be
underscored and they should be invited to make the availability
for rapporteurs’ positions a key criterion in the selection of their
representatives in the Committee.
157. In relation to the previous point I should also raise the
issue of gender representativity. Currently 8 out of 39 rapporteurs
are women and 20 out of 82 members in the Committee are women.
Note This clearly underscores
the need for a more balanced gender representation in the nominations
by the groups both for Committee membership as well as rapporteur
positions.
|
|
COMPOSITION
|
RAPPORTEURS
|
FULL
MONITORING REPORTS
|
POST-MONITORING DIALOGUE REPORTS
|
PERIODIC
REVIEW REPORTS
|
| |
Men
|
Women
|
Men
|
Women
|
Men
|
Women
|
Men
|
Women
|
Men
|
Women
|
|
EPP/CD
|
16
|
9
|
8
|
4
|
3
|
3
|
3
|
0
|
2
|
1
|
|
SOC
|
17
|
7
|
10
|
3
|
7
|
1
|
1
|
1
|
2
|
1
|
|
ALDE
|
10
|
4
|
6
|
1
|
2
|
0
|
1
|
0
|
3
|
1
|
|
EC/DA
|
13
|
0
|
4
|
0
|
4
|
0
|
0
|
0
|
0
|
0
|
|
UEL
|
6
|
0
|
3
|
0
|
1
|
0
|
0
|
0
|
2
|
0
|
|
TOTAL
|
62
|
20
|
31
|
8
|
17
|
4
|
5
|
1
|
9
|
3
|
158. It has been suggested to reduce
the overall number of rapporteurs’ positions by appointing only
one rapporteur for the periodic review reports. However, after careful
consideration I have decided against this. The principle of appointing
two rapporteurs from two different political groups has been a key
mechanism to ensuring the impartiality and objectivity of the monitoring
reports and in turn their acceptance by the countries concerned.
In addition, it would go against the efforts of the Committee to
harmonise the monitoring and periodic review procedures.
159. On several occasions the Committee has been confronted with
the situation where it had to replace active and committed rapporteurs
for a given country under a full monitoring procedure or post-monitoring dialogue,
solely for the fact that their single five-year term had ended.
At the same time, it would be desirable if the Committee had more
opportunities to replace rapporteurs that structurally do not have
the time available to execute their rapporteur tasks. The issue
of the terms of appointment for rapporteurs for countries under
a full monitoring procedure or engaged in a post-monitoring dialogue
should be revisited and the possibility of appointing rapporteurs
for multiple, but shorter terms should be considered. Instead of
a single five-year term, the possibility of 3 three-year terms or
2 four-year terms could be considered. This would allow both the possibility
of recall as well as the retention of available and well performing
rapporteurs for a given country. In addition this would allow for
the reduction of the period before a member can be re-appointed
for the same country.
