B Explanatory memorandum
by Mr Piero Fassino, rapporteur
1 Introduction
1. The basis for the Parliamentary
Assembly’s monitoring procedure is
Resolution 1115 (1997) on the setting up of an Assembly Committee on the honouring
of obligations and commitments by member States of the Council of
Europe (Monitoring Committee) (as modified by
Resolution 1431(2005),
Resolution
1515 (2006),
Resolution
1698 (2009),
Resolution
1710 (2010),
Resolution
1936 (2013),
Resolution
2018 (2014),
Resolution 2261
(2019),
Resolution
2325 (2020),
Resolution
2357 (2021) and
Resolution
2428 (2022).
Resolution
1115 (1997) defines the mandate of the Monitoring Committee and
stipulates that “it shall be responsible for verifying the fulfilment
of the obligations assumed by the member States under the terms
of the Council of Europe statute, the European Convention of Human
Rights (STE No. 5) and all other Council of Europe conventions to
which they are parties, as well as the honouring of the commitments
entered into by the authorities of member States upon their accession
to the Council of Europe”.
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
2022.
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, eleven countries are subject to a full monitoring
procedure (Albania, Armenia, Azerbaijan, Bosnia and Herzegovina,
Georgia, Hungary, Republic of Moldova, Poland, Serbia, Türkiye and
Ukraine).
4. As a result of the Committee of Ministers` decision of 16
March 2022 to expel the Russian Federation from the Council of Europe
with immediate effect, in reaction to the Russian aggression against
Ukraine, the country no longer falls under the mandate of the Monitoring
Committee whose competence is limited to Council of Europe member
States.
5. Following the Assembly’s decision of 26 October 2022, a full
monitoring procedure was opened with respect to Hungary in reaction
to “the long-standing issues pertaining to the rule of law and democracy
that remain largely unaddressed by the authorities”.
6. Three countries are currently engaged in a post-monitoring
dialogue (Bulgaria, Montenegro and North Macedonia) which involves
the States that have progressed to this stage following the termination
of full monitoring. It is a less intensive procedure focusing on
a limited number of remaining issues. According to the Rules, a
second post-monitoring report has to determine whether the country
may be removed from the parliamentary monitoring or whether it should
be returned to full monitoring.
7. Furthermore, in accordance with its terms of reference, the
Monitoring Committee is tasked to ensure and assess the fulfilment
of obligations assumed by all member States, including those which
are not subject to any of the two monitoring procedures above, under
the Council of Europe statute, the European Convention on Human
Rights and all other conventions concluded within the Organisation
to which they are party. In line with
Resolution 2261 (2019) as from 2019, the Monitoring Committee selects the countries
for periodic review according to its internal working methods, on
substantive grounds, while maintaining the objective of producing,
over time, periodic monitoring reports on all member States. Reports
on the three countries selected in the first round (Hungary, Romania
and Malta) were submitted to the Assembly and debated in 2022. Reports on
the next three countries selected in 2021 (Netherlands, San Marino
and France) are currently under preparation and are due to be submitted
to the Assembly in 2023.
8. The Monitoring Committee also runs a Sub-Committee on Conflicts
concerning Member States of the Council of Europe in line with Rule
49 of the Assembly’s Rules of Procedure and the committee’s revised Decision
of 24 May 2022 (see appendix) which defines its mandate as covering
“a situation in which active armed conflict has been brought to
an end, but no peace treaty or other political framework resolves
the conflict to the satisfaction of the combatants. Therefore, legally
the conflict can start again at any moment, creating an environment
of insecurity and instability”.
9. The country-specific comments which follow below have been
prepared on the basis of rapporteurs’ reports, notes and statements
as well as the discussions in the Monitoring Committee (with the
participation of representatives of the majority and the opposition
of countries concerned in accordance with Article 10 of
Resolution 1115 (1997)), and findings of other Council of Europe monitoring
mechanisms. All of them have been shared with the 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
10. Following a clear improvement
in the sanitary situation in Europe, the monitoring rapporteurs
have been able to resume the full extent of their work which had
been considerably hindered during the pandemic. The specific nature
of the Monitoring Committee’s mandate requires rapporteurs to visit
the country in the framework of the preparation of each report.
The committee’s position in this respect is that direct political dialogue
with the authorities cannot be replaced by online meetings, therefore,
travel restrictions constituted a considerable challenge to the
rapporteurs` work.
11. Over the reporting period, the rapporteurs carried out a number
of visits to the countries under their respective responsibility
including two visits to Türkiye, and one visit to the Republic of
Moldova, Hungary, Albania, France (meetings with civil society),
Montenegro, Romania and San Marino.
12. At the same time, however, good practices introduced during
the pandemic were maintained and online contacts between rapporteurs
and different stakeholders, in particular those representing civil
society in the countries under their respective responsibility became
a common working method. While they could not replace the direct
political dialogue with the authorities, they contributed greatly
to the rapporteurs` knowledge.
13. At the initiative of certain rapporteurs, in the framework
of the committee meetings, a number of hearings and exchanges of
views were held including on Hungary, France, the Netherlands, Serbia,
Ukraine, Bosnia and Herzegovina and Türkiye. The committee also
held a hearing on recent developments in Spain, as well as on the
monitoring procedures of the Council of Europe.
14. In 2022, the Monitoring Committee met during the four part-sessions
and five times outside the parliamentary sessions. The meeting scheduled
to take place in May in Ankara was postponed by the Monitoring Committee
following the conviction of Mr Osman Kavala to an aggravated life
sentence and replaced by a meeting in Paris.
15. The Monitoring Committee submitted seven country reports to
the Assembly during the reporting period: on The Challenge, on substantive
grounds, of the still unratified credentials of the parliamentary
delegation of the Russian Federation; on The functioning of democratic
institutions in Armenia; on The hounoring of obligations and commitments
by Georgia; on The honouring of membership obligations to the Council
of Europe by Malta; on The honouring of obligations and commitments
by Türkiye; on The honouring of membership obligations to the Council
of Europe by Hungary; and on The honouring of membership obligations to
the Council of Europe by Romania.
16. The report on the honouring of obligations and commitments
by the Republic of Moldova was adopted in the committee on 14 December
and it is scheduled for debate in the Assembly during the 2023 First
Part-Session in January.
17. The preliminary draft report on the honouring of membership
obligations to the Council of Europe by San Marino was approved
by the committee and sent to the relevant authorities with a view
to holding a debate in the Assembly during the Second Part-Session
in April 2023.
18. At the same time, the committee considered and declassified
the information notes on the state of the parliamentary monitoring
procedure for the Russian Federation and on the honouring of obligations
and commitments by Albania and by Bosnia and Herzegovina.
19. The rapporteurs on Albania, Armenia, Hungary, the Republic
of Moldova, Montenegro, Romania, San Marino, Serbia and Türkiye
made statements on the developments in the countries under their
responsibility.
20. In the light of the developments in Armenia taking place at
the Armenian-Azerbaijani border, the committee proposed to hold
a current affairs debate during the Assembly Fourth Part-session
in October 2022. In conclusion, the Assembly tasked the Monitoring
Committee to continue following the situation.
21. As in previous years the outstanding co-operation with the
Venice Commission continued over the reporting period. Exchanges
of views were held with the President of the Venice Commission and
its Secretary. The committee requested opinions on the Draft law
Dismantling the Section for the Investigation of Offences committed
within the Judiciary in Romania as well as three Draft Justice Laws:
on the status of Magistrates; on the Organisation of the Judiciary
and on the Superior Council of Magistrates in Romania; on draft
amendments to the Turkish Criminal Code regarding the provision
on “misleading information”; on the amendments to the Electoral
Law in Türkiye; on the Media Law in Azerbaijan; on the December
2021 amendments to the Organic Law on Common Courts of Georgia.
22. The Sub-Committee on Conflicts concerning Member States of
the Council of Europe held two hearings: on recent developments
concerning the Transnistrian conflict settlement process with the
participation of Mr Oleg Serebrian, Deputy Prime Minister for Reintegration
of the Republic of Moldova and Mr Claus Neukirch, Head of the Office
for Democratic Institutions and Human Rights of the Organization
for Security and Co-operation in Europe (OSCE/ODIHR) Mission in
Chisinau and reconfirmed its intention to organise a seminar on
“The Council of Europe contribution to promoting human rights in
the Transnistrian region of the Republic of Moldova” with the participation
of the Moldovan authorities and the de
facto authorities from Tiraspol; as well as on recent
developments in the Georgian regions of Abkhasia and Tskhinvali/South
Ossetia and on the state of play in the Geneva International Discussions
with the participation of Mr Lasha Darsalia, First Deputy Minister
of Foreign Affairs of Georgia.
2.2 Countries
under a full monitoring procedure
2.2.1 Albania
23. The co-rapporteurs, Mr Joseph
O`Reilly (Ireland, EPP/CD) and Mr Asim Mollazada (Azerbaijan, EC/DA),
paid a fact-finding visit to Albania from 29 June to 1 July 2022.
They submitted to the committee an information note which was considered
and declassified on 10 October 2022.
24. Following the parliamentary elections on 25 April 2021, the
main opposition parties in Albania have returned and are fully participating
in the work of the Albanian Parliament. This is a very welcome development because,
as underscored on several occasions by the committee and Assembly,
the return of all political parties and forces to the parliament,
which is the constitutional platform for political interaction,
is an essential precondition to resolving the systemic political
crisis in the country.
25. Unfortunately, developments within the main opposition party,
the Democratic Party, seem to have resulted in a split between the
party structures including part of the parliamentary faction led
by former President and party leader Mr Berisha, and part of the
party and faction that has remained loyal to the previous party
leader Mr Basha. As underscored by the rapporteurs it is important
that the internal crisis and schism inside the Democratic Party
does not lead to a new disjuncture between the parliamentary faction
and party structure of the main opposition party, thereby deepening
the political crisis in the country and undermining the progress
made in this respect following last year’s parliamentary elections.
26. The mandate of President Meta ended on 24 July 2022. The President
of Albania is elected by the Parliament with a 3/5 majority of all
members. However, if no candidate achieves such a majority in the
first three rounds of voting, the majority needed to elect the president
is lowered to an absolute majority of 50%+1 votes in the subsequent
rounds of voting.
27. The first round of voting for a new President took place on
16 May 2022. Regrettably, no serious attempts were made to find
a compromise candidate who would have the consensus of both ruling
majority and opposition and no candidate was proposed in the first
three rounds of voting. For the fourth round of voting the Socialist
Party proposed the candidature of General Major Bajram Begaj, who
until that moment was the Chief of General Staff of the Albanian
Armed Forces. He was elected with 78 votes in favour, four against
and one abstention, with the majority of the opposition boycotting
the vote.
28. It is regrettable that no compromise candidate could be found
between ruling majority and opposition. The 3/5 majority requirement
was built into the Constitution to ensure that a President has broad
support among all political forces and can stand above them. The
wilful resort to the anti-deadlock procedure without even attempting
to find a compromise candidate for the first 3 rounds clearly goes
against the spirit of the Constitution and underscores the level
of polarisation in the political environment.
29. The vetting process of all Albanian judges and prosecutors,
under international supervision, continues unabated. In a welcome
development, on 10 February 2022, the Albanian Parliament adopted
constitutional amendments that will extend the mandate of the Independent
Qualification Commission (IQC) – which conducts the vetting – as
well as Public Commissioners – who represent the public in the vetting
process – until 31 December 2024. This extension should allow the
IQC to finalise the vetting of the remaining 250 positions. The
very high level of dismissals and resignations of judges and prosecutors,
including in very prominent positions, highlights both the thoroughness
as well as the clear necessity of the vetting process for the judiciary in
Albania. At the same time the vetting process has at times had a
negative impact on judicial efficiency in the country. Fortunately,
since the end of 2020, the Constitutional Court has obtained its
quorum of 6 judges. Similarly, the High Court only became operational
in July 2021 when 6 new High Court judges were appointed.
30. A key reform with regard to the judiciary is the new judicial
map that is currently being drafted. It will reduce the number of
courts, especially appeal and administrative courts. One of the
main objectives of this reform is to ensure the efficient use of
judicial resources, which have diminished considerably, inter alia, due to the vetting process.
However, the proposed judicial map is controversial due to fears
that the new map could increase the distance between the justice
system and Albanian citizens, which could affect public trust in
the justice system itself. While this is indeed an issue of concern,
it should also be noted that at this moment many courts are understaffed
and struggle to deal with the backlog of cases, which also limits
the access of citizens to the justice system.
31. The fight against corruption and organised crime remains a
priority for the country. The Specialised Structure for Anti-Corruption
and Organised Crime (SPAK) comprising of the Special Prosecution
Office (SPO) and the National Bureau of Investigation (NBI) are
now fully operational. SPAK has initiated a number of cases against
officials for corruption, but they are still relatively few, especially
in the light of evident widespread corruption as indicated by the
vetting results. Regrettably, the number of convictions of high-level
officials accused of corruption is still very low, which creates
a sense of impunity. This needs to be addressed as a priority.
32. The Albanian media environment has regrettably continued to
deteriorate. This backsliding is of serious concern as a free and
pluralist media environment is a quintessential requirement for
a properly functioning democracy. In the 2022 World Press Freedom
Index by Reporter without Borders, which was published on 3 May
2022, Albania dropped 20 places in comparison to 2021 and is now
ranked 103 out of 180 countries (1 being the best). According to
this report, press freedom is threatened by partisan media regulation
and the physical integrity of journalists is at risk due to a lack
of protection against violence by organised crime as well as from
the police. One concern in this respect has been the proposed so-called
anti-defamation package. While this package was withdrawn by the
authorities following a very negative opinion from the Venice Commission,
it was never formally removed from the agenda of the parliament,
and continued to cause concern among the media in the country. The
authorities have announced that this package will soon be formally
removed from the agenda of the parliament which, when effectuated,
could make a positive contribution to the media environment in the
country.
33. The criminalisation of defamation, even if no longer punishable
with prison sentences, and the increase in the use of so-called
SLAPPs (strategic lawsuits against public participation), create
chilling effects and are of serious concern. The Albanian authorities
are urged to fully decriminalise defamation as well as to enact proper
legislation to counter the abuse of SLAPPs to silence critical voices.
34. On 18 September 2021, the Albanian Government established
the Media and Information Agency. The establishment of this agency
and the centralisation of information has raised considerable concern
among a wide range of domestic and international stakeholders who
consider this agency to be a de facto ministry of propaganda aimed
at increasing the control of the authorities over the media at the
expense of media freedom. These concerns have been compounded by
the fact that, in a troubling development, journalists have been banned
by Prime Minister Rama from government press conferences for extended
periods of time after asking questions that were not to his liking.
The authorities are urged to address the concerns with regard to
the media environment as a priority, in order to ensure a genuinely
free and pluralist media environment in the country.
2.2.2 Armenia
35. During the January part-session,
the Assembly debated a report and adopted
Resolution 2427 (2022) on the functioning of democratic institutions in Armenia.
It acknowledged marked progress in democratic development and identified
priorities for the country, which include notably reforming the
electoral framework, fostering democratic culture, continuing the
reform of the judiciary and strengthening media freedom.
36. Over the reporting period, most of the political debate and
media attention was focused on the conflict with Azerbaijan, perceived
as an existential threat, as well as on the consequences of the
Russian aggression against Ukraine. Armenia received tens of thousands
of Russian nationals who left their country after the beginning
of the war and again after the announcement of partial mobilisation.
This massive influx of mostly well-trained professionals could have
beneficial effects on the Armenian economy in the long term although
it caused a brutal surge in housing costs in Yerevan.
37. On 24 March, elements of the armed forces of Azerbaijan crossed
the ceasefire line and entered part of the territory under the supervision
of Russian peacekeepers in Nagorno-Karabakh, fueling anger and anxiety among
the Armenian population over the fate of the local population. The
Armenian authorities denounced pressure on the Armenian population
in Nagorno-Karabakh as part of an effort to expel the population
from the territory, mentioning the risk of an ethnic-cleansing campaign.
38. On 13 April, Prime Minister Pashinyan announced that the Armenian
Government was ready to start the process of concluding a peace
treaty with Azerbaijan to put an end to more than 30 years of conflict.
Some members of the opposition called to reject any deal with Azerbaijan
that would see Armenia lose control over Nagorno-Karabakh and demanded
the resignation of the government, starting a long series of protests.
For several weeks, one of the main squares in Yerevan was occupied
and street demonstrations blocked traffic in the city. On several
such occasions, excessive use of force by police and massive use
of administrative arrests of demonstrators were reported. The co-rapporteurs,
Mr Kimmo Kiljunen (Finland, SOC) and Ms Boriana Åberg (Sweden, EPP/CD),
followed very closely the developments in connection with the human
rights defender of the Republic of Armenia. In this context, inflammatory
and divisive speeches have been commonly used both by protesters
and members of the majority.
39. In September, as discussions on a peace treaty and border
settlement seemed to be progressing, violent hostilities broke out.
Azerbaijan shelled Armenian territory, striking civilian infrastructures
and occupying several locations. More than 200 Armenian and 80 Azerbaijani
soldiers lost their lives, 7 600 civilians were displaced and 20
Armenian soldiers were taken prisoner. Allegations of war crimes
and inhuman treatment by Azerbaijani armed forces were transmitted
to the co-rapporteurs and the Chairperson of the Monitoring Committee.
40. The reporting period was also characterised by a number of
international mediation efforts. A trilateral meeting arranged by
the European Council’s President Charles Michel with the participation
of Prime Minister Pashinyan and President Aliyev took place in August
in Brussels. Following another meeting between the two leaders in
the presence of the French President and the EU Council President
on 6 October, a civilian EU mission was sent to the border between
Armenia and Azerbaijan, to help de-escalate tensions and contribute to
the delimitation of the frontier between the two countries. Prime
Minister Pashinyan and President Aliyev met again in Sochi on 31
October in the presence of President Putin. In a common statement,
the leaders “agreed to refrain from the use of force or the threat
of its use” and “to discuss and resolve all problematic issues solely on
the basis of mutual recognition of sovereignty, territorial integrity
and inviolability of borders.” They also “stressed the importance
of active preparation for the conclusion of a peace treaty” between
Armenia and Azerbaijan.
41. The military hostilities between Armenia and Azerbaijan were
discussed by the Assembly during the October part session and the
Bureau of the Assembly tasked the Monitoring Committee to follow
the situation. The co-rapporteurs made a statement
Notecalling
upon the Azerbaijani authorities to immediately withdraw from all parts
of the territory of Armenia and to release the prisoners of war
under their control.
2.2.3 Azerbaijan
42. The last report on the functioning
of democratic institutions in Azerbaijan dates back to October 2017. Following
the co-rapporteurs’ visit to the country in July 2019, an information
note was prepared and declassified.
43. In general, the situation in Azerbaijan has not improved and
a number of outstanding concerns with regard to the rule of law,
pluralist democracy and human rights remain unaddressed. They include
serious concerns with regard to the independence of the judiciary,
media freedom and freedom of expression, freedom of association
and political freedom, as well as allegations of torture and ill-treatment
by law enforcement officials and unsatisfactory detention conditions.
44. A large number of recent European Court of Human Rights judgments
clearly illustrate a “troubling pattern of arbitrary arrest and
detention of government critics, civil society activists and human
rights defenders through retaliatory prosecutions and misuse of
criminal law in defiance of the rule of law”. This arbitrary deprivation
of freedom is often combined with violations of freedom of expression
and freedom of assembly.
45. The Court has found the violation of Article 18 of the Convention
(misuse of criminal law provisions on arrest and detention for purposes
not permitted under the Convention) and of Article 6 (right to a
fair trial) in many judgments. The continuing presence of prisoners
detained on politically motivated charges in Azerbaijan is a very
serious concern.
46. The Order on pardon signed by President Ilham Aliyev on 27
May 2022 which provided for the release of 168 convicts, affected
at least 22 prisoners who were allegedly detained on politically
motivated charges including Mr Salekh Rustamly, member of the extra-parliamentary
opposition Party of People’s Front of Azerbaijan (PPFA), Mr Afgan
Sadygov, Head of the portal Azel.TV, Mr Pasha Umudov, driver of
the Chairman of the PPFA and several convicts in the Ganja case.
While the release of unjustifiably imprisoned people is most welcome,
the question of unfair trials and trumped-up charges remains unsolved.
Moreover, according to human rights defenders there are still prisoners
detained on politically motivated charges in prisons.
47. With regard to the emblematic case of a well-known human rights
lawyer and a legal representative of many opposition activists,
Elchin Sadigov, who was arrested on 10 September 2022 and sentenced
to four months of pre-trial detention on charges of bribery (along
with famous online TV director Avaz Zeynalli), it should be noted
that the Baku Appeal Court released him to house arrest on 17 September
2022 (the Council of Europe Commissioner for Human Rights issued
a statement on 13 September urging the authorities to release him
immediately).
48. In February 2022, the Monitoring Committee, alerted by civil
society and independent journalists in Azerbaijan, requested the
Venice Commission’s opinion on the Media Law, adopted by the Milli
Majlis on 30 December 2021. The Venice Commission’s opinion was
adopted in June 2022, and it concluded that many provisions were
not in line with Council of Europe standards on freedom of expression
and media freedom and did not allow the media to effectively exercise
its role as a “public watchdog”. The Venice Commission made a number
of recommendations to the Azeri authorities urging them to repeal
or revise the law.
49. As regards the question of hostilities between Armenia and
Azerbaijan, the continuous tension despite the ceasefire, over the
reporting period, was marked by punctual escalations of violence
along the Armenian-Azerbaijani border which caused numerous casualties
and significant damage (see Chapter 2.6).
50. The military hostilities between Armenia and Azerbaijan were
discussed by the Assembly during the October part session and the
Bureau of the Assembly tasked the Monitoring Committee to follow
the situation. The rapporteurs, Mr Ian Liddell-Granger (United Kingdom,
EC/DA) and Ms Lise Christoffersen (Norway, SOC) intend to visit
the country in February 2023.
2.2.4 Bosnia
and Herzegovina
51. In 2021, Republika Srpska’s
authorities had called for the entity’s unilateral withdrawal from
key elements of the constitutional order established over the last
26 years of implementation of the Dayton agreements, thus threatening
secession from the State of Bosnia and Herzegovina. On 10 December
2021, the Republika Srpska National Assembly asked the entity government
to present draft laws launching the process of secession within
6 months. As a reaction, the United States, the European Parliament
and the United Kingdom adopted sanctions against Mr Dodik, President
of Republika Srpska, and some of his closest political allies in
Republika Srpska.
52. For several months, political parties from the Federation
were engaged in discussions on the electoral law in order to solve
the deadlock in the Federation, which has been functioning with
a caretaker government stemming from the 2014-2018 mandate. Considerable
energy was invested by international sponsors to help find an agreement
that would address the violations of the European Convention on
Human Rights identified by the Court in the Sejdić and Finci, Zornić
and other cases, as well as deficiencies of the electoral process identified
by the OSCE/ODIHR, the Group of States against Corruption (GRECO)
and the European Commission for Democracy through Law (Venice Commission).
No agreement was found. The High Representative decided to implement
some decisions, on 7 June to allow the financing of the upcoming elections
and on 27 July to modify the electoral law in order to help prevent
election fraud and improve transparency.
53. In order to encourage the integration of Bosnia and Herzegovina
into the European Union, a meeting was held on 12 June with the
President of the European Council, the three members of the Presidency
of Bosnia and Herzegovina and the leaders of the political parties
represented in parliament. A political agreement was signed on that
occasion in which the political leaders committed to electoral reform
and those limited constitutional reforms needed to ensure compliance
with the judgments of the European Court of Human Rights and the
Bosnia and Herzegovina Constitutional Court and the recommendations
of the Venice Commission, OSCE/ODIHR and the GRECO. A set of critical
reforms should be adopted no later than six months after forming
new state-level authorities following the elections.
54. During the June part-session, the committee discussed these
developments as the co-rapporteurs, Mr Zsolt Németh (Hungary, EC/DA)
and Ms Ekaterina Zaharieva (Bulgaria, EPP/CD) presented an Information Note
on the electoral system in Bosnia and Herzegovina and an exchange
of views on the execution of the Court’s decisions was organised
with the participation of the Department for the execution of the
Court’s judgments.
55. Mr Németh took part in the international election observation
mission (IEOM). Presidential and parliamentary elections were held
at the State level and within both entities on 2 October. The observation mission
concluded that the elections were competitive and overall well organised
with fundamental freedoms respected during the campaign. However,
failed reform efforts, a widespread mistrust in public institutions,
and ethnically divisive rhetoric continued to mark the election
environment.
56. For the three-member Presidency of Bosnia and Herzegovina,
the opposition candidate Denis Bećirović was elected as the Bosniak
member, the incumbent Željko Komšić was re-elected as the Croat
member and Željka Cvijanović was elected as the Serb member. In
the election for the President of the Republika Srpska, Milorad
Dodik beat opposition candidate Jelena Trivić after a recount was
ordered. In the parliamentary bodies, parties with a clear ethnic
affiliation were able to maintain their strong position in most
parliaments of the country.
57. On the closure of polling stations, the High Representative
enacted two decisions, one amending the Constitution of the Federation
and a second amending the election law. These two decisions, referred
to as the “functionality package”, affect only the post-election
establishment of indirectly elected bodies and are aimed at improving
the functionality of the Federation of Bosnia and Herzegovina. They
were heavily criticised by some parties who considered they cemented
the division of the electorate on ethnic lines. The full extent
of these measures will be assessed in the final IEOM report and
the co-rapporteurs will carefully follow these developments.
58. Shortly after the elections, on 12 October, and in line with
the agreement reached on 12 June, the European Commission recommended
that Bosnia and Herzegovina be granted candidate status on the understanding
that a number of steps be taken to reinforce democracy, functionality
of State institutions, rule of law, the fight against corruption
and organised crime, to guarantee media freedom and to improve migration management
in the country. It remains to the political parties represented
within state institutions to find a compromise on electoral and
constitutional reform in line with the European Convention on Human
Rights.
2.2.5 Georgia
59. On 28 April 2022 the Assembly
adopted
Resolution 2438
(2022) “The honouring of obligations and commitments by Georgia”,
in which it welcomed the continued and marked progress made by Georgia
in honouring its membership obligations and accession commitments.
At the same time, the Assembly expressed its concern about a number
of concerns and shortcomings which remain to be addressed and therefore decided
to continue the monitoring procedure with regard to Georgia.
60. The Assembly highlighted that the recommendations contained
in
Resolution 2438 (2022) and accompanying report provided a clear perspective
for Georgia’s progression towards the commencement of a post-monitoring
dialogue, under the understanding that there would be no backsliding
or regression in the progress to date. At the same time, the Assembly
also underscored that any change in the monitoring procedure would
require the full commitment and political will, including a willingness
to work together, of both the ruling majority and the opposition.
61. Unfortunately, since the adoption of the Resolution, some
of the reforms needed to ensure the country’s democratic consolidation
and strengthen the functioning of its rule of law institutions seemed
to have stalled, leading to questions among the international community
concerning the true support for these reforms. This was reflected
in Georgia’s score in Freedom House’s Nations in Transit 2022 report,
which decreased slightly from 36 to 35, while its ranking declined
considerably, from 60th to 89th place. in the 2022 World Press Freedom
Index of Reporters without Borders.
62. Concerns with regard to the media environment in Georgia were
also expressed in connection to the controversial sentencing of
Nika Gvaramia, the Director of the opposition linked Mtavari Arkhi
television broadcaster, to 3,5 years in prison for alleged abuse
of power and embezzlement of funds when he was Director of Rustavi
2. Mr Gvaramia had appealed his sentence, but, on 2 November 2022,
the Tbilisi Court of Appeals upheld his conviction. The charges,
and their timing, were questioned by some national and international
actors including the Georgian Ombudsperson. Without wishing to judge
the merits of the charges against Mr Gvaramia, it is clear that
his imprisonment has negatively affected the political and media environment
in the country. Some interlocutors have suggested that the Georgian
President should consider a pardon for Mr Gvaramia. The authorities
are encouraged to take all possible steps to reduce the tensions
in the media environment.
63. As underscored by the Assembly, one of Georgia’s hallmarks
has been the fact that all successive Georgian authorities have
always maintained cordial and constructive relations with the country’s
international partners, and responded to their concerns and recommendations,
even on issues where there was disagreement. The increasingly harsh
rhetoric from some representatives of the ruling majority to concerns
and criticisms voiced by Georgia’s international partners is therefore
of concern and has, arguably, affected the developments regarding
Georgia’s EU membership application. All political forces are urged
to continue to pursue the customary cordial and constructive co-operation
with international partners as a cornerstone of Georgia’s international
policy.
64. On 2 March 2022, in reaction to the dramatically changed geopolitical
environment following the invasion of Ukraine by the Russian Federation,
Georgia made an immediate application for membership of the European
Union.
65. On 17 June 2022, the European Commission delivered its memorandum
on the membership applications of Ukraine, the Republic of Moldova
and Georgia. In it, they recommended that Ukraine and the Republic
of Moldova be given candidate status on the understanding that these
two countries would continue the required political reforms. At
the same time, in a clear rebuke concerning the political environment
in the country, it recommended that Georgia be given a membership
perspective, but that candidate status should only be given after
12 conditions
Note had been satisfactorily addressed
by the country. These conditions
inter
alia highlight the need for the political forces to come
together to overcome the extremely polarised political environment
and to strengthen the democratic and rule of law institutions in
the country. It should be pointed out that the 12 conditions of
the European Commission cover the same areas as, and to a large
extent are similar to, the recommendations made by the Assembly
in
Resolution 2438 (2022). A number of reforms have been initiated and co-operation
with, and opinions of, the Venice Commission have been sought to
guide the reforms, which should be welcomed.
66. In this context it should be noted that in
Resolution 2438 (2022) the Assembly expressed its serious concern about the
extremely tense and polarised political environment in Georgia,
driven by zero-sum political strategies and a lack of understanding
and accommodation by both the opposition and the ruling majority
for their respective positions and rightful roles. In the view of
the Assembly this tense and polarised environment, which precludes
any constructive co-operation between ruling majority and opposition,
and which negatively affects the implementation of crucial reforms,
is a key impediment to Georgia’s democratic consolidation.
67. Regrettably, there has been no notable improvement in the
political environment in Georgia. This is evident from the lack
of consensus and co-operation between the opposition and the ruling
majority with regard to Georgia’s application for EU membership
or with regard to the implementation of the required reforms to meet
the conditions for candidate status. I wish to reiterate the call
made by the Assembly in
Resolution
2438 (2022) to all political forces in the country, both ruling
majority and opposition alike, to place the common good of the nation
over any narrow party-political strategies and to co-operate jointly
and constructively for the benefit of the country’s democratic consolidation
and Euro-Atlantic integration.
68. The Assembly has repeatedly reiterated its full support for
Georgia’s sovereignty and territorial integrity within its internationally
recognised borders and expressed its concern and condemnation of
the illegal occupation and creeping annexation by the Russian Federation
of the Georgian regions of Abkhazia and Tskhinvali region/South
Ossetia that cause a dire security, humanitarian and human rights
situation on the ground, with increased illegal militarisation and
restrictions on freedom of movement. This has become especially
sensitive in the context of the invasion by the Russian Federation
of Ukraine. On 15 September 2022, the Sub-Committee on Conflicts
concerning Member States of the Council of Europe therefore held
an exchange of views on recent developments in the Georgian regions
of Abkhazia and Tskhinvali/South Ossetia and on the state of play
of the Geneva International Discussions, with the participation
of Mr Lasha Darsalia, First Deputy Minister of Foreign Affairs of
Georgia, and agreed that the rapporteurs for the country should continue
to closely follow developments in these two Georgian regions.
2.2.6 Republic
of Moldova
69. The year 2022 was marked by
the outbreak of the war in neighbouring Ukraine, which triggered considerable
socio-economic challenges and security concerns for the Republic
of Moldova. During their visit to the country in June 2022, the
rapporteurs, Ms Inese Lībiņa-Egnere (Latvia, EPP/CD) and Mr Pierre-Alain Fridez
(Switzerland, SOC)
praised the management of the refugee crisis by the Moldovan
authorities as well as the resilience and solidarity shown by the
population: over 700 000 refugees entered the country, and nearly 100 000
have settled in the country. These developments added to the challenges
posed by the pandemic and the energy crisis in the previous year
which triggered an economic crisis and high inflation.
70. The Moldovan authorities managed to preserve a 1+1 dialogue
with the de facto authorities
of the Transnistrian region of the Republic of Moldova and de-escalate
tensions, despite the possible impact of the Russian aggression
on this region (and the presence of the Russian army). These issues
were discussed in March in the Sub-Committee on conflicts concerning
member States, with the Deputy Prime Minister for Reintegration
Oleg Serebrian (see paragraphs 22 and 161). There were also tensions
with the Autonomous Region of Gagauzia-Yeri (ATUG) exacerbated by
the regional context, such as the decision of the ATUG regional
assembly to allow the use of the Saint-George ribbon or to adopt
anti-LGBT legislation which contradicted the Moldovan legislation.
The war in Ukraine accelerated the European agenda for the Republic of
Moldova, which requested, on 2 March, the opening of accession negotiations
with the European Union. On 23 June, the European Council granted
the status of candidate country to the Republic of Moldova and Ukraine.
71. The rapporteurs welcomed the continuation of the priority
reforms in the field of justice and the fight against corruption
launched by the stable majority enjoyed by President Sandu’s Party
of Action and Solidarity despite difficulties arising from the revamp
of previously captured state institutions and from a shortage of human
resources. Notable developments include the establishment of the
Commission on the evaluation of the activity of judges and prosecutors
(so-called pre-vetting commission) which is expected, within short
deadlines, to play a key role in strengthening the independence
and integrity of the judiciary and the prosecution service. A new
Anti-Corruption Chief Prosecutor was appointed.
72. The Moldovan authorities have continued to co-operate closely
with the Council of Europe. The rapporteurs took into account the
findings of the
Venice
Commission which issued, at the request of the authorities, 5 opinions
on judicial matters and 2
amicus curiae briefs.
These included an opinion on specific measures taken to preserve
the sovereignty of the country, including amendments to the Audiovisual
Code, and the ban on the use of certain symbols under the Law on
countering extremist activity. The Venice Commission also prepared
an
opinion on the draft Electoral Code.
73. The rapporteurs also followed the high-level criminal cases
opened in 2021 (including against former President Dodon, from the
Bloc of the Socialists, currently under judicial control, and Marina
Tauber, from the Shor party who is under house arrest), as well
as the proceedings against the suspended Prosecutor General Mr Stoianoglu.
The rapporteurs welcomed the authorities’ commitment to address
corruption issues while calling for the respect of all procedural
safeguards and the requirements of the rule of law. A motion was initiated
by the minister of justice to challenge the constitutionality of
the Shor Party for its alleged illegal financing and undermining
of the country’s integrity, following which the Constitutional Court
requested from the Venice Commission an amicus
curiae brief on the declaration of unconstitutionality
of a political party.
74. The rapporteurs submitted their draft report to the Monitoring
Committee on 14 December, with a view to its presentation at the
January 2023 part-session.
2.2.7 Poland
75. Regrettably, due to domestic
circumstances affecting their schedules and availability, no fact-finding
visit could take place to Poland. It is the intention of the rapporteurs,
Ms Azadeh Rojhan Gustafsson (Sweden, SOC) and Mr Pieter Omtzig (Netherlands,
EPP/CD) to visit Poland early 2023.
76. Poland has played an exemplary role in the context of the
Russian aggression against Ukraine, providing extensive assistance
to Ukraine. According to the office of the United Nations High Commissioner
for Refugees (UNHCR), by September 2022, nearly 1.4 million Ukrainian
refugees registered for Temporary Protection in Poland, the highest
number among the EU countries. The country should be applauded for
the role it is playing within the international community in relation
to Ukraine, and for its continuing solidarity with this nation and
its people.
77. Nevertheless, the developments in Poland with regard to the
independence of the judiciary and adherence with European rule of
law standards and norms remain a source of serious concern that
is affecting its relationship with international organisations and
in particular the European Union.
78. To resume, on 7 May 2021, the European Court of Human Rights
passed its judgment in the case Xero Flor
w Polsce sp. Z oo. vs Poland (4907/18) in which it ruled
that the 2015 election of judges to the Constitutional Court had
been irregular, rendering the bench in which these judges participated
unlawful (not a tribunal established by law). Instead of complying
with this judgment, in line with its obligations under the European
Convention on Human Rights, the authorities 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
European Convention on Human Rights (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. In response, availing herself
of her competencies under article 52 of the Convention, the Secretary
General requested, by latest 7 March 2022, explanations from the
Polish authorities as to the manner in which the Polish law ensures
the effective implementation of articles 6 and 32 of the Convention
following the judgment of the Constitutional Tribunal. The reply
was received on 8 March 2022.
79. In the meanwhile, on 22 July 2021, the European Court of Human
Rights reached its judgment in the case Reczkovicz
v. Poland (43447/19) in which it ruled unanimously that
in the disciplinary proceeding against the complainant (a a lawyer),
there had been a violation of art 6.1 of the Convention and that
the Disciplinary Chamber of the Supreme Court could not be considered
a “tribunal established by law” within the meaning of the European
Convention. Similar to what had happened in the Xero Flor v. Poland case, the Minister
of Justice applied to the Constitutional Tribunal to examine the
compatibility with the Polish Constitution of the first sentence
of Article 6.1 of the Convention. On 10 March 2022, the Constitutional
Court of Poland ruled that Article 6.1 of the Convention was incompatible
with the Polish Constitution insofar as it extended civil rights
and obligations to the right of a judge to hold an administrative
function in the organisational structure of the judiciary in Poland;
or if it permitted the European Court of Human Rights in the determination
whether a tribunal is established by law, to: ignore provisions
of the Constitution, statutes and judgments of the Polish Constitutional
Court; review statutes regarding the court system and competences
of the courts, as well as the statute of the National Council of
the Judiciary; or create independent norms pertaining to the procedure
for judicial appointments. On 16 March, the Secretary General of
the Council of Europe requested the Polish authorities to provide
additional information on how Polish law would ensure the effective
implementation of articles 6 and 32 of the Convention following
this decision. The Polish authorities’ reply was received on 23 June
2022.
80. On 9 November 2022, the Secretary General presented her report
Note under article 52 to the Committee
of Ministers in which she has provided a legal analysis of the replies
by the Polish authorities. This report was published on 23 November
after being discussed by the Committee of Ministers. In her analysis
the Secretary General has made it clear that Poland, as all other
countries, is obliged to implement the Convention and abide by the
judgments of the European Court, even if in extreme cases that would
require amending the Constitution. It is clear that the decisions
of the Constitutional Court with regard to the compatibility of
the Convention with the Polish Constitution are an unacceptable
challenge to the supremacy of the European Convention on Human Rights
and run counter to its membership obligations.
81. In order to unblock the EU recovery funds that were frozen
as a result of Poland’s failure to uphold its rule of law commitments
to the European Union, as well as to stop the daily fine of 1 million
€ applied by the European Court of Justice for not suspending the
Disciplinary Chamber for judges, the Polish authorities adopted
amendments to the law on the Supreme Court that abolished the Disciplinary
Chamber. These amendments came into effect on 15 July 2022. However,
these amendments were not considered sufficient by the European
Commission to address its concerns and to unblock the funds. Further
reforms are needed. A key obstacle remains the National Council
of the Judiciary that, as noted by the European Court of Human Rights,
can no longer be considered independent and is under the political
control of the authorities. It is difficult to see how Poland would
be able to meet its rule of law commitments to the European Union
and the Council of Europe without reforming the National Council
of the Judiciary.
2.2.8 Serbia
82. In May 2019, the Monitoring
Committee considered the comments of the Serbian authorities to
a preliminary draft report on the monitoring of Serbia. However,
further to the decision of the (previous) co-rapporteurs, the submission
of the draft report to the committee was postponed. The preparation
of the report was then hampered by the pandemic, further changes
of rapporteurs, parliamentary elections held in Serbia in June 2021
and early parliamentary and presidential elections held in April
2022. The year 2022 was also marked by the appointment of new rapporteurs
by the Monitoring Committee, namely Ms Lise Christoffersen (Norway,
SOC)
Note in February 2022, Ms Eva
Decroix (Czech Republic, EC/DA) in May 2022, and Mr Axel Schäfer
(Germany, SOC) in December 2022.
83. On 16 January 2022, 59% of Serbian voters approved constitutional
amendments aimed at reducing political influence in the judiciary,
in line with most of the December 2021 Venice Commission
recommendations. The rapporteurs
welcomed it as an important first step and pre-condition towards
the depoliticisation of the judiciary and the consolidation of the
rule of law while noting that the country continued to face democratic
challenges, notably the absence of a viable opposition in parliament
and a polarised environment.
84. Concerning the April 2022 elections, significant changes to
the legal framework were adopted on 4 February 2022 after wide-ranging
inter-party consultations. The Assembly
ad
hoc election observation mission
noted that, while being smoothly organised, the elections
were marked by a number of systematic procedural deficiencies and
unaddressed long-standing recommendations, mainly concerning access
to media, campaign financing, measures to tackle pressure on voters,
and the public scrutiny and audit of voter lists. The incumbent
President Mr Vučić was re-elected in the first round with 60% of
the votes. The election resulted in a more pluralistic parliament,
with a parliamentary majority formed by the coalition led by the
Serbian Progressive Party (SNS), the Socialist Party of Serbia (SPS),
the Democratic Alliance of Croats in Vojvodina (DSHV) and the Alliance
of Vojvodina Hungarians (VMSZ). The parliament reconvened in August 2022
and the government led by incumbent Prime Minister Ms Brnabić was
sworn in on 26 October 2022.
85. In the field of rule of law, the Serbian authorities prepared
secondary legislation aimed at implementing the constitutional amendments
on the judiciary. In its October 2022
opinion on three draft Laws on the Organisation of the Courts,
on Judges, and on the High Judicial Council, the Venice Commission
praised the efforts invested in the inclusive preparation of this
legislative package and noted that the Serbian judicial system is
still characterised by a hierarchal spirit and multiple forms of
evaluations and controls. It stressed the need to change the legal
culture within the judiciary and issued several concrete proposals
to improve the draft bills.
86. GRECO acknowledged, in its March 2022
second
interim compliance report (Fourth Round), that progress had been achieved with,
inter alia, the amendment of the
Law on Corruption Prevention in line with its recommendations, improved
transparency in the process of drafting laws, a more effective system
of public participation in the legislative process at a preliminary
stage and the adoption of a Code of conduct for parliamentarians.
Progress was also noted in the prevention of corruption with respect
to prosecutors and judges. A new anti-corruption strategy and action
plan has still to be prepared. In July 2022, GRECO published its
Fifth
Round Evaluation report on corruption prevention amongst persons with top executive
functions (PTFEs), highlighting the role of the Agency for the Prevention
of Corruption and the need to develop a public strategy on corruption
prevention covering explicitly PTFEs and police forces and to ensure
the systematic and substantial control of asset declarations of
PTFEs.
87. Freedom of media remains an issue of concern. The Council
of Europe Platform to promote the protection of journalism and the
safety of journalists issued
14 alerts in 2022 (to which the authorities replied only once),
notably for journalists being attacked, threatened or intimidated.
The role and independence of the Regulatory Body for Electronic
Media also raised questions, after it granted in July 2022 national
broadcasting licenses, for a period of eight years, to the same
four national frequencies as in the previous period despite receiving
warnings due to violation of their legal obligations.
88. Anti-discrimination issues were the focus of the Assembly
October 2022 part-session. Attempts to ban the Europride parade
for security reasons prompted Assembly General rapporteur on the
rights of LGBTI people
Christophe
Lacroix to call for the respect of freedom of expression and
assembly. The parade took eventually place, via a shorter route,
on 17 September. This issue was debated by the Assembly in October during
its current affairs debate entitled “Threatened bans of Pride events
in Council of Europe member States”.
89. The overall situation was also marked by tensions with Kosovo*
Note, notably on the issue of license
plates; and by the lack of progress in the negotiations on the comprehensive
and legally binding normalisation agreement under the EU-facilitated
Dialogue.
2.2.9 Türkiye
90. In 2022, the Monitoring Committee
focused on the preparation of a mid-term monitoring report on Türkiye,
which concentrated on the judiciary, the implementation of judgments
of the European Court of Human Rights and the preparation of the
2023 presidential and parliamentary elections.
91. The Assembly rapporteurs John Howell (United Kingdom, EC/DA)
and Boriss Cilevičs (Latvia, SOC) paid a visit to the country from
20-24 March 2022,
welcoming the open and frank dialogue with the Turkish authorities.
They returned to Türkiye on 18-20 May, following the aggravated
life sentence given to philanthropist Osman Kavala – despite the
ruling of the European Court of Human Rights of December 2019 which
had found his pre-trial detention unlawful and had asked the authorities
to release him. Returning from Türkiye, the rapporteurs
stressed that resolving the Kavala case lied “in the hands of
the Turkish judicial system, which has the capacity to find a legal
solution which complies with the Strasbourg ruling”.
92. The Committee of Ministers decided to open an infringement
procedure in February 2022 due to Türkiye’s failure to implement
the Kavala judgment, which was confirmed by the Court in July 2022.
Following the committee’s report and
Resolution 2459 (2022), the Assembly invited its President and the Chair of
the Committee of Ministers “to maintain close contacts and make
full use of the means at their respective disposal, if Türkiye’s
failure to comply with its obligations should persist”.
93. On 24 November, the rapporteurs
welcomed the decision of the Court of Cassation to overturn the
prison sentences of four human rights activisits in the Büyükada
trial, while expecting a swift re-trial of Amnesty International
Türkiye Honorary Chair, Taner Kılıç, in line with the May 2022 judgment
of the European Court of Human Rights.
94. The committee remains concerned about long-lasting issues,
including ongoing crackdown on members of the political opposition,
procedures seeking to lift the parliamentary immunity (overwhelmingly
of opposition parties), the attempt to close the Peoples' Democratic
Party (HDP), restrictions on freedom of expression and of the media
and the overly-broad interpretation of anti-terror legislation.
In its
Resolution 2459
(2022), the Assembly urged the authorities to undertake urgent
reforms needed to restore the full independence of the judiciary
and an effective system of checks and balances. The prison sentence
given to opposition leading politician
Canan
Kaftancıoğlu or the arrest of the Head of the Turkish Medical Association
Şebnem
Korur Fincancı were adverse developments deplored by the rapporteurs.
The Committee also concluded that the change to the political system
adopted in 2017 by Türkiye – while being a sovereign right of any
member State – has seriously weakened its democratic institutions
and made the system of checks and balances dysfunctional and deficient.
95. The committee paid particular attention to the overall electoral
environment in view of the 2023 presidential and parliamentary elections.
The electoral legislation was revised on 25 April 2022. While welcoming
the lowering of the electoral threshold from 10% to 7%, the committee
shared the concerns expressed by the Venice Commission in its
June
2022 opinion about other provisions concerning the composition of
electoral boards or the misuse of office in election campaigns.
In addition, despite the call of the Assembly and the
Venice
Commission not to enact it, the “disinformation law” was adopted
on 13 October. The Assembly rapporteurs
deplored its provision foreseeing prison sentences for those
spreading “false or misleading information” which is “an unnecessary
and disproportionate interference with the freedom of expression”
which could undermine the conditions for free and fair elections.
96. In its
Resolution
2459 (2022), the Assembly also urged the authorities to pay attention
to the situation of seriously ill prisoners. The long overdue release
of former MP Aysel Tuğluk on 27 October was a development
welcomed by the rapporteurs. On 14 December, the Monitoring Committee
organised a hearing on the follow-up to
Resolution 2459 (2022) to assess the implementation of the Assembly’s recommendations.
2.2.10 Ukraine
97. As a result of the Russian
Federation’s military aggression, no visits to Ukraine by the co-rapporteurs could
take place, despite efforts by both rapporteurs, Mr Alfred Heer
(Switzerland, ALDE) and Mr Birgir Thórarinsson (Iceland, EPP/CD),
and the Ukrainian delegation to organise such a visit.
98. The developments with regard to the Russian Federation’s ongoing
aggression against Ukraine have been followed closely by the Assembly
and were discussed in detail in
Doc. 15477 “Consequences of the Russian Federation's aggression
against Ukraine”,
Doc
15506 “Consequences of the Russian Federation's continued
aggression against Ukraine: role and response of the Council of
Europe”,
Doc. 15510 “The Russian Federation’s aggression against Ukraine:
ensuring accountability for serious violations of international humanitarian
law and other international crimes”,
Doc 15547 “Humanitarian consequences and internal and external
migration in connection with the aggression of the Russian Federation
against Ukraine”,
Doc
15631 “Further escalation in the Russian Federation's aggression
against Ukraine”.
99. While the focus of attention has been on the ongoing war,
at the same time the authorities have continued to make considerable
efforts to ensure the continued functioning of the democratic and
rule of law institutions, in spite of the challenging situation
caused by the war. In addition, many reforms and legislative initiatives
have been drafted and discussed in the Verkhovna Rada, as a result
of the application for EU membership and the subsequent granting
of candidate status to Ukraine. The authorities should be commended
for these efforts, but at the same time it is important that, notwithstanding
the difficult situation, democratic and rule of law norms and principles
are maintained as much as possible.
100. While, as long as the war is ongoing, no normal monitoring
of obligations and commitments can take place, the rapporteurs have
continued to follow the situation in the country with regard to
the ongoing reforms and functioning of democratic institutions.
To that extent, an exchange of views was organised by the committee
during the June part-session with Ms Mariia Mezentseva, Chairperson
of the Ukrainian delegation, and on 10 November 2022, the rapporteurs
held a video conference with representatives of the European Solidarity
Party about the ongoing reforms in Ukraine.
101. Ukraine has continued its efforts to strengthen anti-corruption
institutions. On 28 July 2022, Prosecutor General Andriy Kostin
appointed Oleksandr Klymenko as the Head of the Specialised Anti-Corruption Prosecutor's
Office (SAPO). Mr Kostin himself was only appointed as Prosecutor
General on 27 July 2022, replacing Ms Irina Venediktova, who was
dismissed on 19 July, reportedly for failing to properly act upon
the very high number of cases of collaboration with the Russian
Federation by officials in the prosecution service.
Note On
16 April, Artem Sytnyk completed his term as Head of the National
Anti-Corruption Bureau (NABU). The appointment of the new Director
is expected to take place by the end of 2022. Given the important
role of NABU in fighting corruption in Ukraine the authorities are
urged to ensure that no undue delays will take place in appointing
a successor to Mr Sytnyk who also enjoys the full trust of the Ukrainian
people.
102. On 5 November 2021, President Zelensky signed the so-called
Anti-Oligarch Law into force. While the stated objectives of this
law are praiseworthy, a number of questions have been raised regarding
this law. In particular with regard to the fact that a person can
be declared an oligarch, and as a result considerably limited in
their rights, by a decision of the President in consultation with
the National Security and Defence Council, who would have very broad
discretion in this respect and whose decision cannot be appealed
before the Court. The Verkhovna Rada Human Rights Commissioner (Ombudsperson)
had raised concerns about the constitutionality of the law which
has been sent by the Verkhovna Rada to the Venice Commission for
opinion. Regrettably, due to the ongoing war no opinion has yet
been adopted. Given that this law is currently being applied, it
is important that the Venice Commission soon finalises its opinion
and that its recommendations and possible concerns are addressed
rapidly by the Verkhovna Rada.
103. On 30 August, the Verkhovna Rada passed in first reading the
draft law “On Media”. This law, inter
alia, aims to regulate online media and increases the
powers of the national media regulatory agency. This law is reportedly
being developed with the assistance of both European Union and Council
of Europe. However, several national and international media organisations
have expressed reservations about the draft law which they consider
would give the authorities too much discretionary control over the
media and could curtail freedom of expression in the country. Despite
the special conditions imposed by the ongoing war, the authorities
are urged to ensure that the final draft of this law adheres fully
to Council of Europe norms and principles for freedom of expression
and media.
2.3 Post-monitoring
dialogue
2.3.1 Bulgaria
104. The last post-monitoring report
was debated in the Assembly in June 2019. On that occasion, the Assembly
decided not to terminate the post-monitoring dialogue and invited
the rapporteurs to continue to assess 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.
105. However, since July 2020, Bulgaria has been confronted with
a major political crisis which resulted in four consecutive early
parliamentary elections, held on 4 April 2021, 11 July 2021, 14
November 2021 (on the day of the presidential election) and the
last one on 2 October 2022. For nine of the last 17 months, Bulgaria has
been governed by appointed provisional governments.
106. The crisis was triggered by corruption scandals, a lack of
respect for the rule of law and the ensuing street demonstrations.
Since then, the political environment has been characterised by
a fragmented political landscape. The situation has been aggravated
by growing socio-economic concerns and polarised discourse concerning
energy policies and the Russian Federation’s invasion of Ukraine.
107. Following the November 2021 early parliamentary elections,
seven political parties and coalitions entered the parliament: a
new coalition We Continue the Change (PP) founded in May 2021 (two
months before the elections in July 2021) by two ministers of the
May 2021 provisional government achieved a surprise victory receiving
25,3 % of the vote; Citizens for the European Development of Bulgaria
(GERB-SDS) – 22,4%; Movement for Rights and Freedoms (DPS) – 12,8%;
BSP for Bulgaria (BSP) – 10%; There is Such a People (ITN) – 9,3%;
Democratic Bulgaria (DB) – 6,2% and Revival – 4,8%. PP formed a
coalition government led by Kiril Petkov with the BSP, ITN and DB.
This broke a deadlock that had arisen as a result of the previous
two early parliamentary elections after which no party was able
to form a government.
108. Subsequent tensions within the coalition concerned, inter alia, high level appointments
and the question of sending arms to Ukraine. On 8 June 2022, ITN
withdrew from the government justifying its move by citing disagreements
over the state budget, fiscal policy and the lifting of Bulgaria’s
veto on opening EU accession talks with North Macedonia. On 2 August
2022, following the no-confidence vote in parliament and three returned
mandates to form a new government, in compliance with the Constitution,
President Rumen Radev dissolved the parliament, appointed a provisional
government and called a new election for 2 October 2022.
109. The October 2022 elections took place amid voter fatigue illustrated
by the low turnout (39,3%). They were assessed by the Council of
Europe observers as competitive and respectful of fundamental freedoms. The
legal framework was evaluated as providing an overall adequate basis
for the conduct of democratic elections. Despite the tight timeframe,
the election administration was satisfactory.
110. GERB-SDS won 24,4% (+8 seats as compared to the previous elections);
PP gained 19,5% (-14 seats); DPS: 13,2% (+2 seats); Revival: 9,8 %
(+14 seats); BSP 8,9% (-1 seats); DB: 7,1 % (+4 seats). ITN received 3,7%,
below the required threshold (4%) and did not enter the parliament.
111. Unfortunately, the elections did not solve the political crisis
and the current parliamentary configuration does not allow for much
optimism as there is no majority for a stable cabinet. At the time
of drafting this report it is still too early to predict whether
a regular government will be formed or whether yet more pre-term
elections will be held at the beginning of next year.
112. The monitoring rapporteurs, Ms Thórhildur Sunna Ævarsdóttir
(Iceland, SOC) and Ms María Valentina Martínez Ferro (Spain, EPP/CD)
(both appointed in 2022), participated in the Assembly parliamentary
election observation missions and follow the situation in Bulgaria.
The ongoing crisis has prevented them so far from preparing a full
post-monitoring report which, according to the rules will have to
either terminate the post-monitoring dialogue and remove Bulgaria
from PACE monitoring, or to make it subject to the full monitoring procedure.
2.3.2 Montenegro
113. In 2022, Montenegro experienced
significant political instability which was the result of the continued process
of transformation following the 2020 elections that removed the
DPS (Democratic Party of Socialists) from government for the first
time in the country's history.
114. In early February 2022, the government formed by Mr Krivokapić
was dismissed following a vote of no-confidence. On 3 March, the
President of the Republic Milo Đukanović asked the former deputy
Prime minister Dritan Abazović to form a government. Lengthy negotiations
were necessary to find a majority among the divided parliament.
On 28 April, the Parliament approved a new coalition government
with Mr Abazović as Prime minister and relying on the support without
participation from the DPS. The main focus of this government was
to apply the reforms necessary to speed up Montenegro’s accession
to the European Union, including those recommended by the Council
of Europe’s monitoring bodies.
115. The country visit that took place from 10 July to 13 July
allowed the co-rapporteurs Damien Cottier (Switzerland, ALDE) and
Nicos Tornaritis (Cyprus, EPP/CD) to discuss in depth the developments
regarding the four areas that had been identified by the Assembly
as priorities for the post-monitoring dialogue: the independence
of the judiciary, trust in the electoral process, the situation
of the media and the fight against corruption.
116. The authorities presented several pieces of draft legislation
and expressed their confidence that the electoral reform discussed
within a special parliamentary committee would be enacted before
the next elections. The appointment of judges to the Constitutional
court and of members of the Judicial Council was due to occur within
weeks. Appointments to the Constitutional court were urgently needed
as the incapacity of political parties to agree on candidates left
many positions vacant within the Court, and the scheduled retirement
of one of the judges in October would leave the Court without a
quorum. All political parties were well aware of the importance
of such appointments for the rule of law and the proper functioning
of democratic institutions.
117. Developments in the fight against corruption are very promising.
Previous assessments concluded that the legal framework was sufficient
but that the political will to implement it was lacking. The track-record
of investigations, prosecutions and final convictions was low. A
series of high-profile cases was expected to prove the real commitment
to tackle corruption. During their visit, the co-rapporteurs met
the Special State prosecutor who declared that he received all the
support he needed from the government in terms of staffing and material facilities.
In the weeks preceding the visit, the arrest of the former President
of the Supreme Court of Montenegro, Vesna Medenica, as well as the
former Commercial Court President, Blažo Jovanić, perhaps indicate
a real political will to tackle corruption.
118. However, the political debate has focused on the adoption
by the government of an agreement with the Serbian Orthodox Church.
Such agreements exist with all the other religious communities,
but ties with the Serbian Orthodox Church are extremely sensitive
in Montenegro and the content of the agreement was considered by
many as illegal and unconstitutional. Following the decision to
adopt this agreement, the DPS withdrew its support from the Abazović
government and on August 20, the parliament passed another motion of
no-confidence. The Abazović cabinet stayed as caretaker government
pending the formation of a new government or the call for early
parliamentary elections.
119. On September 20, President Đukanović proposed holding a snap
election after refusing to confirm the three ruling political blocs’
candidate, Miodrag Lekić, for prime minister. The outgoing Prime
Minister Dritan Abazović accused President Đukanović of misusing
his constitutional rights and blocking political dialogue.
120. These developments impeded the adoption of the electoral reform
and the designation of judges to the Constitutional court. On 21
October the parliament failed once again to appoint judges, so the
Constitutional Court is now unable to function properly on electoral
issues. This failure to proceed with this urgent and much needed
decision was lamented by the co-rapporteurs in a statement
Note on
28 October.
2.3.3 North
Macedonia
121. In February 2022, outgoing
Assembly co-rapporteurs Ms Lise Christoffersen (Norway, SOC) and Mr Zsolt
Csenger-Zalán (Hungary, EPP/CD) submitted an
information
note to the committee, taking stock of the main developments
in the country since the adoption of
Resolution 2304 (2019). Since then, the committee has appointed new co-rapporteurs,
namely Sibel Arslan (Switzerland, SOC) in February 2022 and Ria
Oomen-Ruijten (Netherlands, EPP/CD) in October 2022.
122. Following the resignation of Prime Minister Zaev in December
2021, the parliament approved on 23 January 2022, by 62 votes (out
of 108), a new government led by Mr Kovacevski comprising ministers
from the Social Democrats (SDSH), the Democratic Union for Integration
(DUI), the new junior coalition partner Alternative party and the
Democratic Party of Albanians (DPA). The parliament currently comprises
42% of women MPs and 35 % of MPs from the non-majority communities,
which are the highest ever figures recorded.
123. The country pursued its pro-European agenda. Despite signing
a bilateral Friendship Treaty in 2017, Bulgaria blocked the adoption
of a negotiating framework by the EU Council (which had decided,
in March 2020, to open membership negotiations). The two parties
eventually accepted the “French proposal” (France was then chairing
the EU Presidency of the Council of the European Union), requiring
a constitutional revision to include a reference to the Bulgarian
minority in the Constitution’s preamble. (This proposal sparked
protests in Skopje on 2 July). Bulgaria lifted its veto on 24 June.
On 16 July, the Parliament of North Macedonia approved a motion
to amend the constitution (the opposition boycotted the vote), while
pledging to discuss any remaining issues with the Bulgarian Government.
North Macedonia and Bulgaria signed a bilateral agreement on 17
July, paving the way to the opening of the EU accession negotiations
on 19 July. However, there is no majority in the Parliament of North
Macedonia to revise the Constitution. The European Commission also mentioned
in its
2022
report the persisting polarisation in parliament between the
ruling parties and the opposition, the “active blockage” of parliament
by the Internal Macedonian Revolutionary Organization – Democratic
Party for Macedonian National Unity (VMRO-DPMNE) main opposition
party since May 2022 and the lack of consensus which was delaying
important appointments of high level officials. On a positive note,
the parliament appointed in November 2022 two new judges at the
Constitutional Court. Three more judges need to be appointed for
the Constitutional Court to function in its full capacity.
124. The rapporteurs followed closely the developments regarding
the protection of national minorities. The complete results of the
2021 census have not yet been published. The Advisory Committee
on the Framework Convention for the Protection of National Minorities
published on 21 September 2022 its
Fifth
opinion on North Macedonia, noting that the country had made
significant progress in the legal protection of national minorities (new
Law on the Prevention and Protection against Discrimination, Strategy
“Open society for all”), but noted that their practical implementation
was problematic. The issue of the participation of minorities in
state administration also remains an issue.
125. In the field of the fight against corruption, North Macedonia’s
score in Transparency International’s
Corruption
Perceptions Index was 39/100 in 2021 (compared to 35 in 2019 and 2020)
and it ranked 87 out of 180 countries (compared to 91th in 2020).
GRECO’s
Addendum
to the Second Compliance Report (fourth Evaluation Round) published on 4 July took note
that a new Code of Ethics for MPs and its Guidelines were being
prepared. Provided that some refinement and streamlining are made,
it would provide “a suitable framework for promoting integrity and
guiding the ethical behaviour of MPs”, for example with respect
to conflicts of interest, engagement with lobbyists, gifts, etc.
126. Overall, GRECO noted only modest progress in the implementation
of its recommendations. With respect to the judiciary, GRECO took
note of the extension of the range of sanctions applicable to judges
and welcomed the adoption of a new Code of ethics for the Council
of Public Prosecutors. However, it reiterated its concerns that
earlier intentions to formally remove the Minister of Justice from
the composition of the Judicial Council have still not materialised
despite the existence of a potential for political influence by
the Minister of Justice.
127. The State Commission for the Prevention of Corruption continues
to play a pro-active role. In response to GRECO’s Fifth Evaluation
Round
compliance
report of 2021, North Macedonia adopted amendments to the law
on internal affairs and to the law on police in April 2022.
2.4 Periodic
reviews
2.4.1 France
128. The work on the periodic review
of membership obligations by France was held back during the first
half of the year because of the electoral campaigns for the presidential
and parliamentary elections, which the rapporteurs Ms Fiona O’Loughlin
(Ireland, ALDE) and Ms Yelisaveta Yasko (Ukraine, EPP/CD) followed closely.
129. According to the OSCE/ODIHR final report, the electoral campaign
was competitive and took place in a calm and open environment with
respect for fundamental freedoms. All candidates developed comprehensive campaign
platforms, forthrightly addressing the rise in the cost of living,
pension reform, crime, employment, healthcare, immigration and other
issues. The war in Ukraine dominated the news cycle throughout the campaign.
Campaign events showed an overall balanced visibility of women,
both as speakers and participants, with gender equality messages
featuring in most candidates’ discourse. Campaign materials were also
accessible for persons with different disabilities.
130. Some concerns arose regarding the influence of the growing
concentration of media ownership on editorial freedom. The disproportionate
media coverage of the far-right presidential candidate Éric Zemmour, prompting
the intervention of the regulatory bodies, may have influenced the
topics, tone and outcome of the campaign.
131. The first round of the presidential election put three candidates
clearly ahead: the incumbent president Emmanuel Macron, the far-right
candidate Marine Le Pen and the far-left candidate Jean-Luc Mélenchon.
In the second round, Emmanuel Macron was re-elected over Marine
Le Pen. The following parliamentary elections confirmed the division
of the electorate into three main blocks: a coalition of left and
ecologists, “the new popular ecologic and solidary union” (Nupes),
a centre coalition backing president Macron, “Together citizens”
and the far-right party backing Marine Le Pen, “National rally”.
The coalition backing Emmanuel Macron fell short of the absolute
majority with 245 seats, while the union of the left and ecologists
won 142 seats and the National Rally made an unexpected breakthrough,
gaining 89 seats, beating the traditional right party “Les Républicains”.
132. The lack of an absolute majority for the elected president
was unprecedented in France since the implementation of a 5-year
presidential mandate in 2000. Emmanuel Macron appointed Élisabeth
Borne as Prime minister, the second woman to undertake such responsibilities
in France after Édith Cresson in 1991. Lacking an absolute majority,
the government is under the threat of a vote of no-confidence while
the President has the constitutional power to call for snap parliamentary
elections.
133. The committee heard Ms Claire Hédon, Defender of Rights of
the French Republic, in April. Once the parliamentary elections
had passed, the co-rapporteurs held several meetings with prominent
civil society organizations, especially during a country-visit in
September. The execution of judgments of the European Court of Human
Rights, in particular regarding the situation in French prisons,
the functioning of the judiciary, law-enforcement practices and
media independence were among the topics raised.
134. The new French parliamentary delegation to the Assembly received
its credentials during the October part-session and on this occasion,
the committee held an exchange of views on the state of the procedure
in the presence of Mr Bertrand Bouyx, Chairperson of the French
parliamentary delegation and vice-president of our Assembly.
135. Following the decision of the Bureau to extend the terms of
reference of three periodic review reports, the co-rapporteurs have
scheduled a visit to the authorities shortly after the January 2023
part-session in order to submit the final report for debate during
the June part-session.
2.4.2 Hungary
136. In 2022, the Monitoring Committee
finalised the preparation of the periodic review report on the honouring
of membership obligations to the Council of Europe by Hungary undertaken
in 2020. The committee had agreed that the report would focus on
the independence of the judiciary, the situation of media and good governance
issues.
137. This year was marked by the organisation of parliamentary
elections on 3 April 2022, which resulted in the victory of the
Hungarian Civic Alliance (Fidesz) and its coalition partner the
Christian Democratic People’s Party (KDNP). As a result, this coalition
enjoys – now almost continuously since 2010 – a two-third parliamentary
majority.
138. ODIHR noted that the elections were efficiently and professionally
organised but tainted by a lack of transparency and a lack of balance
in monitored news coverage. The campaign was highly negative in
tone and characterised by a pervasive overlap between the ruling
coalition and the government. Extensive and unregulated spending
by entities other than the election contestants, including through
advertisements on social media, largely favoured the ruling party
– hence confirming GRECO’s previous issues of concern related to
the funding of political parties and electoral campaigns. The Venice
Commission had, in its
October
2021 opinion, warned that the main effect of the electoral reform
would be to favour the incumbents. The Monitoring Committee therefore
came to the conclusion that the current electoral framework does
not ensure a level playing field conducive to fair elections.
139. Following these elections, the Assembly rapporteurs George
Papandreou (Greece, SOC) and Eerik-Niiles Kross (Estonia, ALDE)
paid a visit to the country in June 2022. They
expressed their concern about the use of special legal orders
especially the newly-declared ‘State of danger’ (voted on 24 May
2022) in the wake of the outbreak of the war in Ukraine, despite
a two-third parliamentary majority enjoyed by the ruling coalition. Their
concern was later confirmed by the decision of the Hungarian Parliament
to extend, as of 1 November 2022, the “state of danger” to up to
180 days, as many times as needed, which prompted the rapporteurs
to
react.
140. The committee observed that the undisputed exercise of power
by the same coalition has reduced the efficiency of the system of
checks and balances and strengthened the ruling coalition’s influence
on State bodies and key independent institutions. Rule of law and
democracy issues raised by the Assembly since 2013, including the
excessive concentration of powers, remained largely unaddressed.
The widespread use of cardinal laws, the imbalance of powers between
the judicial bodies and, more recently, the creation of “public interest
foundations” were also of concern.
141. The Monitoring Committee concluded at its meeting on 14 September
that the cumulative effects of the measures that negatively impact
the independence of the judiciary, the situation of media, transparency
and accountability of State institutions, undermined the functioning
of democratic institutions. It proposed to continue to closely follow
the developments with regard to the functioning of democratic institutions
and the rule of law in Hungary.
142. On 13 October, during the plenary session, the Assembly decided
in its
Resolution 2460
(2022) to open a monitoring procedure in respect of Hungary
until the above-mentioned concerns were addressed in a satisfactory
manner. The committee is expected to appoint two co-rapporteurs
for the monitoring of Hungary at a next meeting.
2.4.3 Malta
143. On 23 June 2022, the Assembly
adopted
Resolution 2451
(2022) “The honouring of membership obligations to the Council
of Europe by Malta” based on a periodic review report prepared by
the co-rapporteurs Mr Bernard Fournier (France, EPP/CD) and Mr George
Loucaides (Cyprus, UEL).
144. In this Resolution, the Assembly noted that the reports of
the Venice Commission and the independent inquiry commission established
by the Maltese authorities on the Assembly’s recommendation following Daphne
Caruana Galizia’s assassination had laid bare a systemic malfunctioning
of democratic and rule of law institutions and a culture of impunity
among the political class regarding conflicts of interest and corruption.
145. The Assembly therefore welcomed the subsequent reforms initiated
by the authorities with regard to the independence of the judiciary
and appointment procedures for official positions, but considered
that a comprehensive and holistic reform of Malta’s democratic institutions
and system of checks and balances was still urgently needed. The
Assembly made a series of concrete recommendations to this extent
and in particular recommended that the authorities implement a far-reaching
reform of the Maltese Parliament with the aim of establishing a
full-time parliament that can provide proper parliamentary oversight
and regain legislative initiative.
146. The continuing vulnerability of Malta’s public sector to corruption
remains a cause for concern. Despite the widespread perception of
corruption, a coherent overall strategy to prevent corruption in
public institutions is still lacking. This has created a culture
of impunity that needs to be addressed by the authorities as a matter of
the utmost urgency. In this context, the Assembly has recommended
that Malta abolish its “citizenship by investment” programme. Regrettably,
no action was taken by the authorities. On 29 September 2022, the European
Commission referred Malta to the Court of Justice of the European
Union over this programme, echoing the reservations of the Assembly.
At the same time, in a positive development, in June this year the Financial
Action Task Force (FATF) removed Malta from its so-called grey list
of Jurisdictions under Increased Monitoring.
147. The polarised media environment and the challenges faced by
the media – including direct threats to journalists – negatively
affect press freedom in Malta, and remain a point of serious concern.
The establishment of a Committee of experts on Media, headed by
Judge Michael Mallia, the former Chair of the Independent Investigation
Commission into the murder of Ms Daphne Caruana Galizia and the
government’s response to it, is a positive signal that the authorities
wish to address these concerns, which is to be welcomed.
148. Malta continues to have one of the highest levels of Strategic
Lawsuits against Public Participation (SLAPPs) cases per capita in Europe, which is of
concern. The above-mentioned Committee of experts on Media has proposed
three draft laws that are currently before the parliament and which
aim to counter the abuse of SLAPPs. It is important that these legal
provisions are adopted and implemented without further delay.
2.4.4 Netherlands
149. The preparation of the report
on the Netherlands is still in its early stages because of the Monitoring Committee`s
workload. Thanks to the extension of the reference until 19 September
2023, the rapporteurs, Mr Antonio Gutiérrez Limones (Spain, SOC)
and Ms Stephanie Krisper (Austria, ALDE) gained more time to carry
out their work.
150. On 14 September 2022, the committee organised a hearing on
the functioning of democratic institutions in the Netherlands with
a particular focus on the Childcare Allowance case, with the participation
of Mr Chris Van Dam, former President of the Childcare Allowance
Parliamentary Inquiry Committee of the Dutch House of Representatives;
Ms Claire Bazy Malaurie, President of the Venice Commission, and
Mr Ruard Ganzevoort, Head of the parliamentary investigation Committee
on the effectiveness of anti-discrimination legislation of the Dutch
Senate.
151. The rapporteurs intend to visit the Hague in early 2023.
2.4.5 Romania
152. The rapporteurs presented a
preliminary draft report to the committee in June 2022. It contained
a number of concerns with regard to the rule of law, pluralist democracy
and the respect of human rights identified on the basis of contacts
with national and international civil society in Romania as well
as on the basis of monitoring reports of different Council of Europe
monitoring bodies. It was subsequently sent to the Romanian delegation
for comment, and it constituted a basis for the rapporteurs’ discussions
with the Romanian authorities during their visit to Bucharest on
4-5 July 2022. The revised report and draft resolution taking into account
the conclusions of the visit and the authorities’ comments were
submitted to the Monitoring Committee and adopted on 14 September
2022. The debate in the Assembly took place on 13 October 2022 and
Resolution 2466 (2022) was adopted on that occasion.
153. The Monitoring Committee has followed with particular attention
the ongoing reform of the judicial system in Romania. On 24 January
2022, it requested the Venice Commission’s opinion on the draft
law dismantling the Section for the Investigation of Offences committed
within the Judiciary and on 14 September 2022, it requested an opinion
on three draft Justice Laws: on the status of Magistrates; on the
Organisation of the Judiciary; on the Superior Council of Magistrates.
The Venice Commission’s opinion on the former has been taken into
account in the report; the latter is expected in December 2022.
The committee expressed its confidence that the ongoing reforms
will be continued in co-operation with and following recommendations
of the Venice Commission and GRECO.
154. The committee noted with satisfaction that, overall, there
was clear progress towards compliance with Council of Europe standards
since Romania’s accession in the areas crucial for the functioning
of democratic institutions, namely the judiciary and the fight against
corruption.
155. However, there are issues which raise some concern particularly
with regard to media freedom and insufficient transparency concerning
the use of public funds by political parties to finance media in
order to influence their content.
156. The committee agreed to continue to follow the developments
in Romania in the framework of its periodic monitoring. It also
agreed to consider preparing the next report on Romania within five
years.
2.4.6 San
Marino
157. On 3 February 2021, San Marino
was selected for a periodic review of its honouring membership obligations
to the Council of Europe. This was ratified by the Assembly on 19
March 2021. On 19 April 2021, Mr Andrej Hunko (Germany, UEL) and
Mr Viorel-Riceard Badea (Romania, EPP/CD) were appointed as rapporteurs
for San Marino. As part of the preparation of their report, the
rapporteurs made a fact-finding visit to the country from 24 to
26 October 2022. Their report on the honouring of membership obligations
by San Marino is foreseen to be debated by the Assembly during its
April 2023 part-session.
158. San Marino is both a micro-State and the world oldest existent
Republic, which governing structures evolved from the structures
of the Roman Republic. Its historical independence from external
powers and its reliance on self-governance by its citizens, together
with the conditions and challenges of it being a micro-State, have
resulted in the development of a unique system of government based
on collegiate governing structures which are shared among the citizens
for set terms of office. This has resulted in a very close proximity
between citizens and their political and governing structures, as
well as between the different branches of powers which are often
intertwined. While this is a reflection of the country’s close and
interconnected society, it also raises questions about the functioning
of the system of checks and balances and the separation of powers
in the country – including with regard to the independence of the
judiciary. In addition, questions have been raises, including by
GRECO in the context of its fourth evaluation round, regarding the vulnerability
of these institutions to conflicts of interests and corruption.
159. Following their visit, the co-rapporteurs therefore welcomed
the ongoing reforms to strengthen the independence of the judiciary
and system of checks and balances in the country. At the same time,
they underscored that these reforms should not be considered the
end of the road but a starting point for further reforms to ensure
that the functioning of these institutions remains well adapted
to the challenges posed by San Marino being a micro-State, as well
as to address any vulnerabilities of these institutions to conflicts
of interest and corruption. In this context the rapporteurs highlighted
the need for the authorities to ensure that these reforms, and laws
and decrees adopted, are indeed fully and coherently implemented.
This will also help to continuing trust of the Sanmarinese citizens
in the democratic institutions, and in their efficient functioning.
2.5 Sub-Committee
on Conflicts concerning Council of Europe Member States
160. As already indicated in paragraphs
22 and 71, over the reporting period, the sub-committee organised two
hearings: on recent developments concerning the Transnistrian conflict
settlement process with the participation of Mr Oleg Serebrian,
Deputy Prime Minister for the Reintegration of the Republic of Moldova,
and Mr Klaus Neukirch, Head of the OSCE Mission in Chisinau, and
reconfirmed its intention to organise a seminar on “the Council
of Europe contribution to promoting human rights in the Transnistrian
region of the Republic of Moldova” with the participation of the
Moldovan authorities and the de facto authorities
from Tiraspol, as well as on recent developments in the Georgian
regions of Abkhazia and Tskhinvali/South Ossetia and on the state of
play of the Geneva International Discussions with the participation
of Mr Lasha Darsalia, First Deputy Minister of Foreign Affairs of
Georgia.
161. The sub-committee held an exchange of views on its work programme
and future activities, and agreed to organise a seminar on “the
human rights aspects in the Transnistrian settlement process and
the role of the Council of Europe” early 2023 in Strasbourg. It
also reflected on the possible organisation and format of a meeting
on the interlinkage between Peace and Justice and decided to come
back to this question.
2.6 Military
hostilities between Armenia and Azerbaijan
162. The rapporteurs on Armenia
(Mr Kimmo Kiljunen, Finland, SOC, and Ms Boriana Åberg, Sweden,
EPP/CD) and on Azerbaijan (Mr Ian Liddell-Grainger, United Kingdom,
EC/DA, and Ms Lise Christoffersen, Norway, SOC) continued to follow
closely the developments concerning relations between the two countries
including regarding (the question of) Nagorno Karabakh.
163. On 11 January 2022, renewed military hostilities erupted on
the Armenian-Azerbaijani border, in which three Armenians and one
Azerbaijani serviceman were reportedly killed. The implementation
of both trilateral statements of 11 January 2021 and 9-10 November
2020 was brought into questions. At the same time, the official
mediation mechanism, the OSCE Minsk Group, under the joint chairmanship
of the Russian Federation, the United States and France seemed to
have reached a stalemate. As a result, parallel mediation efforts
were developed by the Russian Federation, the European Union and
the United States.
164. On 4 February, online talks took place between Prime Minister
Pashinyan and President Aliyev, with the participation of French
President Emmanuel Macron and the President of the European Council,
Charles Michel, in order to facilitate the peace negotiations.
165. On 8 March, the pipeline through which gas is supplied from
Armenia to Nagorno-Karabakh was damaged on a section located in
an area that is under the control of Azerbaijan following the war
of 2020, cutting the gas supply for the population of Nagorno-Karabakh.
Azerbaijan did not allow access by Armenia to the section of the
damaged pipeline and after 10 days of negotiations, repaired the
pipeline itself. A week later, on 24 March, the ceasefire was broken
in the region when Azerbaijani troops advanced into the zone of responsibility
of Russian peacekeepers.
166. On 8 April and 23 May two further meetings between President
Aliyev and Prime Minister Pashinyan took place in Brussels in the
presence of the President of the European Council Charles Michel.
A bilateral Commission on the delimitation and demarcation of borders
was created but has not yet achieved concrete results.
167. On 30 July, ceasefire violations were reported in the Nagorno-Karabakh
region and on the internationally recognised border between Armenia
and Azerbaijan. On 2 August, the Russian peacekeeping mission confirmed
that Azerbaijan had violated the ceasefire on several occasions.
Both Armenia and Azerbaijan have expressed their dissatisfaction
with the implementation of the trilateral statements. Azerbaijan
has demanded the complete withdrawal of Armenian armed forces from
the territory of Nagorno-Karabakh; the completion of a corridor
under its control to link mainland Azerbaijan to the Nakhichevan
enclave; and the construction of a new road replacing the Lachin
corridor between Armenia and Nagorno-Karabakh.
168. On 31 August, a fourth meeting between President Aliyev and
Prime Minister Pashinyan took place in Brussels with the mediation
of the President of the European Council. Some progress was made,
as it was decided to discuss the text of a peace treaty within a
month; to resolve outstanding humanitarian issues; to hold a meeting
of the border delimitation Commission in Brussels in November; and
to unblock transport routes.
169. On 12, 13 and 14 September 2022, new large-scale hostilities
broke out along the Armenian-Azerbaijani border when Azerbaijani
armed forces conducted an offensive across the border and advanced
into internationally recognised Armenian territory, including artillery
strikes and the use of drones, striking targets on Armenian territory
while claiming that the clashes started after “large-scale provocations”
from the Armenian side. A ceasefire was agreed, but it was the most
serious escalation since 2020; 200 Armenian soldiers and 80 Azerbaijani
soldiers were killed and more than 7 500 Armenian civilians had
to flee their homes.
170. On 6 and 7 October, a two-round meeting between President
Aliyev and Prime Minister Pashinyan, mediated by the European Union
and France, took place in Prague. A statement was adopted in which
for the first time Azerbaijan and Armenia mutually recognised each
other’s territorial integrity. It was agreed that a civilian mission
from the European Union would patrol the Armenian-Azerbaijan border
for two months to help reduce the tensions and to provide assistance
to the border delimitation Commission.
171. On 10 October, on the initiative of the Monitoring Committee,
the Assembly held a current affairs debate entitled “Military hostilities
between Azerbaijan and Armenia, including strikes against settlements
and civilian infrastructures”. On 13 October, the co-rapporteurs
for Armenia issued a statement calling upon the Azerbaijani authorities
to immediately withdraw from all parts of the territory of Armenia
and to release the prisoners of war under their control.
172. On 1 November, a fourth trilateral meeting took place in Sochi
between Presidents Putin and Aliyev and Prime minister Pashinyan.
In the concluding tripartite statement, Armenia and Azerbaijan reiterated
their commitment to refrain from the use of force or the threat
of its use, and agreed to discuss and resolve all problematic issues
solely on the basis of mutual recognition of sovereignty, territorial
integrity and inviolability of borders, in accordance with the UN
Charter and the Alma-Ata Declaration of 1991.
2.7 The
Russian Federation
173. Until its expulsion from the
Council of Europe on 23 March 2022, the Russian Federation was subject
to full parliamentary monitoring. The then rapporteurs, Mr Axel
Schäfer (Germany, SOC) and Ms Ria Oomen-Ruijten (Netherlands, EPP/CD),
visited Moscow from 28 June to 1 July 2021. Following the discussions
during the visit, they intended to draw up a roadmap accompanied
by a concrete timetable, based on recommendations by the Venice
Commission, which would identify concrete measures intended to address
the concerns identified. They agreed with the Russian delegation
to define, in April 2022, concrete action translated into concrete
changes to the legislation with deadlines for their accomplishment.
174. During the 2022 first part-session, on 24 January 2022, the
still unratified credentials of the Russian delegation were challenged
on both substantive and procedural grounds on the basis respectively
of Articles 8 and 7 of the Rules of Procedure of the Assembly. The
substantive grounds on which the credentials were challenged referred
to violations of the basic principles of the Council of Europe enshrined
in Article 3 and the Preamble of its Statute (ETS No. 1); to non-fulfilment
by the Russian Federation of the Assembly’s recommendations addressed
to it and included in relevant past resolutions, in particular,
Resolution 1990 (2014), Resolution
2034 (2015), Resolution 2063 (2015), Resolution
2292 (2019),
Resolution
2320 (2020) and
Resolution
2363 (2021); further violations with regard to the rule of law and
democracy, the respect for basic freedoms and human rights, and,
more generally the non-compliance of the Russian Federation with
its commitments and obligations in the Council of Europe. The challenge
of the credentials followed similar challenges submitted in June
2019 (upon the return of the Russian delegation to the Assembly
after its absence since 2015), in January 2020 and in January 2021.
175. In line with Rule 8.3 of the Rules of Procedure, the Monitoring
Committee was seized for report on substantial grounds and the Committee
on Rules of Procedure, Immunities and Institutional Affairs for
opinion. In accordance with the committee’s practice, as chairperson
of the committee, I was entrusted with the preparation of the report.
176. The report approved by the committee and submitted to the
Assembly (
Doc. 15443) pointed to the deteriorating situation with regard
to pluralism, human rights and fundamental freedoms in the Russian Federation
manifested by the crackdown on opposition politicians, independent
civil society, dissenting voices and critical journalists. It deplored
the closure of Memorial and the plight of Mr Alexei Navalny. It
also referred to the serious shortcomings identified during the
2021 parliamentary elections and expressed concern about the deterioration
of relations with its neighbours and the escalation of tension which
threatened European security.
177. At the same time, however, the committee emphasised that the
Assembly constituted the unique pan-European parliamentary platform
for political dialogue with the participation of all European countries. Therefore,
it considered that the approval of the credentials would benefit
the goal that the Council of Europe was pursuing and allow the Assembly
to foster political dialogue on possible ways to improve shortcomings with
respect to the functioning of democratic institutions in the Russian
Federation and monitor the progress in this area. It also highlighted
the obvious benefits that access to the European Court of Human
Rights offered to 160 million Russian citizens, although other delegations
questioned the willingness of the Russian authorities to implement
Court judgments felt to run counter to its political objectives.
The committee therefore proposed that the Assembly ratify the credentials
of the delegation of the Russian Federation and that it return to
the assessment of the progress made when a monitoring report was
due to be submitted later in the year 2022 (
Resolution 2422 (2022)).
178. With the expulsion of the Russian Federation, the parliamentary
monitoring procedure, which is strictly reserved for member States,
was terminated. While the Assembly throughout its different committees
can – and should – continue its work related to the political situation
in the Russian Federation, the Monitoring Committee’s mandate is
limited to the countries which are Council of Europe member States
and therefore can only touch upon the Russian Federation insofar
as its policies concern issues covered under the monitoring procedure
of other member States. This is particularly the case in relation
to the work of the Sub-Committee on Conflicts between Council of
Europe member States.
179. In order to preserve the work in respect of the Russian Federation
accomplished by the Monitoring Committee prior to the expulsion,
the former rapporteurs decided – with the committee’s agreement
– to prepare an information note (
AS/Mon(2022)09). The note was not meant to assess the state of fulfilment
of Russia’s obligations and commitments to the Council of Europe,
nor did it seek to identify the outstanding concerns with regard
to democracy, the rule of law and human rights in the Russian Federation
over the whole reporting period. Such information can be found in
the Monitoring Committee’s reports submitted to the Assembly or
declassified information notes prepared during 26 years of the monitoring
procedure in respect of the Russian Federation. The aim was rather
to take stock of the parliamentary monitoring procedure in respect of
the Russian Federation and of the work accomplished by the Committee
and rapporteurs with a view to identifying and reflecting on possible
weaknesses and drawing lessons for the future.
3 Some
thoughts on how to improve the Monitoring Committee’s working methods
for greater efficiency and impact
180. In the 2021 progress report,
my predecessor raised the question of the preparation of monitoring
reports, and in particular of the validity of references of periodic
monitoring reviews. It should be recalled that, in accordance with
the Rules of Procedure, the Monitoring Committee has a permanent
mandate to deal with the countries under full monitoring procedure
as well as countries engaged in the post-monitoring dialogue. The preparation
of such a report 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, for a number
of reasons, cannot always be respected.
181. The situation is different with regard to periodic monitoring
reviews. After the Assembly decided that the committee would produce
periodic monitoring reports on member States which are not subject
to full monitoring procedure in the form of separate reports to
the Assembly, on the basis of a selection process based on substantive
reasons, the committee agreed in its internal working methods, that
it would select once a year a number of countries for such a report.
It selected 3 countries in the first round in 2019 (Malta, Hungary
and Romania), and 3 countries in the second round in 2020 (France,
the Netherlands and San Marino). It intends to proceed with the
selection of new countries until after the adoption of revised rules.
182. Currently, according to Rule 26 of the Rules of Procedure,
the mandate for the preparation of a periodic monitoring report
is two years. Experience has shown that this period is too short
and has led the Committee to regularly request extensions of mandates.
While other Assembly committees may not encounter difficulty in meeting
this deadline, specific procedures in the Monitoring Committee make
it almost impossible to comply with it.
183. The reasons which considerably slow down the preparation of
periodic reports include the method of appointment of rapporteurs
involving political groups (two for each report); the multi-stage
preparation process including a visit and time for the authorities
to comment and, last but not least, the need for a stable political situation
in the country concerned fostering political dialogue. In practical
terms it means for example that the pre- or post-electoral period,
or any political crisis means that a visit or discussion on the
report are excluded as this may be perceived as interference in
the country’s internal affairs.
184. The issue of the availability and frequent changes of rapporteurs
has already been deplored by my predecessor but unfortunately, the
situation in this respect has not improved much since the last progress report.
In particular, forthcoming elections in rapporteurs’ countries and
their participation in electoral campaigns often prevent them from
fulfilling their commitments in the Monitoring Committee. Furthermore, there
is a very real risk that following the elections they will leave
the Assembly – either for other duties or because they are not re-elected.
The problem of changes in rapporteurship is well illustrated by
the number of rapporteurs` appointments which the committee made
in the reporting period and which amounted to 11. I call on the
political groups to take more care when nominating candidates for
rapporteurs for monitoring periodic review reports and to take into
account not only their competence but also their availability.
185. In conclusion, the two-year validity of references for periodic
monitoring reports creates a situation which is highly unsatisfactory
and should be remedied. During the committee’s internal discussions,
members have indicated that they wished to increase the time limit
for the preparation of periodic review reports to at least 3 years
with a possibility for extension. As this issue was becoming increasingly
acute, the committee, at its meeting in October 2022, invited me
to write to the Bureau requesting a change in the Rules in this
respect.
186. The Bureau at its meeting in October demonstrated full comprehension
of this issue and extended the validity of the ongoing periodic
review reports (France, Netherlands, San Marino) by 6 months until 19 September
2023. At the same time, it requested the Committee on Rules of Procedure,
Immunities and Institutional Affairs to look into the issue of the
duration of the validity of references for periodic monitoring reports
in its more general report on the improvement of the rules of procedure.
I am confident that the Monitoring Committee’s position on the duration
of validity will be taken into consideration by the Rules Committee
and the relevant rules` articles will subsequently be modified.
187. Another issue which was discussed in the Monitoring Committee
concerns its reactivity to developments in member States. The current
selection process of periodic reports has been criticised for failing
to adequately respond to current events and developments in the
member States, whether favourable or worrying for this Assembly.
In order to make the committee more responsive and able to deal
with future developments, the committee agreed that the selection
process be revised in order not to be limited to the decision taken
each December but to allow for the ad
hoc selection by the committee of a country for periodic
monitoring.
