B Explanatory memorandum
by Sir Roger Gale, rapporteur
1 Introduction
2. In accordance with
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. Since 2016, the reports on the progress
of the Assembly’s monitoring procedure have been discussed during
the January part-session of the Assembly and cover the previous
calendar year. In line with established practice, the committee entrusted
me, as its – at the time of writing `– Chairman, with the task of
being the rapporteur on the committee’s activities.
3. In line with its mandate, the Monitoring Committee monitors
all Council of Europe member States with regard to the honouring
of their membership obligations and, if relevant, specific accession
commitments. Currently, ten countries are subject to a full monitoring
procedure and three countries are engaged in a post-monitoring dialogue
with the Assembly. Since 2014, all – currently 34 – countries that
are not subject to a full monitoring procedure or engaged in a post-monitoring
dialogue, have been subject to a periodical review with regard to
the honouring of their membership obligations towards the Council
of Europe. Following the successful completion of the first 16 periodic
review reports, which were presented in the framework of the progress
report, the Assembly agreed in
Resolution 2261 (2019) that, from then onwards, the periodic review reports
would be submitted for debate independently from the committee’s
progress report, and that they would be accompanied by specific
resolutions for each country. In addition, the selection of countries
for periodic review would be made by the Monitoring Committee based
on substantive grounds, and no longer by alphabetical order, while
maintaining the objective of producing, over time, periodic reviews
on all member States. The committee intends to present these reports
within two years after a country has been selected for periodic
review. In March 2019, it decided to select France, Hungary, Malta
and Romania for periodic review. However, at its meeting on 12 April
2019, the Bureau de facto decided to remove France from this list. Concerned
that this could lead to the application of double standards for
the three other countries that were selected, the Monitoring Committee
decided to suspend the preparation of these three reports until
the Committee of Rules of Procedure, Immunities and Institutional
Affairs had expressed itself on this issue. I will return to this
issue, in more detail, in the third part of this report.
4. The progress in the monitoring procedure for the countries
that are subject to a full monitoring procedure of the Assembly,
or engaged in a post-monitoring dialogue, will be discussed in the
next section of this report. Following customary practice, I have
limited myself to the findings in the relevant texts adopted by
the Assembly, as well as the reports, statements and other public
documents prepared by the co-rapporteurs for the respective countries.
In addition, where appropriate, I have made reference to the reports
of the ad hoc committees for the observation of the elections in
the countries in question.
5. The combined framework of the full monitoring procedure
, the post monitoring dialogue and
the periodic review reports, together with possibility for the Monitoring
Committee to prepare a report on the functioning of democratic institutions
on any member State of the Council of Europe, guarantee the comprehensive monitoring
by the Assembly of the membership obligations and commitments of
all member States of the Council of Europe. The updated framework
for the preparation of the periodic review reports brought to light
a number of unclarities and inconsistencies in the rules of procedure
that govern the work of the committee, and specifically
Resolution 1115 (1997) as amended. I will make a number of suggestions to address
these issues in the third and last part of this report.
2 Overview of the committee’s activities.
2.1 General
remarks
6. During the period covered by
this report, ten countries
Note were
subject to a full monitoring procedure and an additional three
Note were engaged in a post-monitoring
dialogue with the Assembly.
7. During the reporting period, the committee prepared a report
on the functioning of democratic institutions in the Republic of
Moldova, as well as reports on the post-monitoring dialogue with
Bulgaria and North Macedonia, all of which were debated in the Assembly.
In addition, on 25 June 2019, the committee was seized, in line
with the Rules of Procedure of the Assembly, for a report on the
“Challenge, on substantive grounds, of the still unratified credentials
of the delegation of the Russian Federation”. The report was debated by
the Assembly on 26 June 2019 and
Resolution
2292 (2019) was adopted.
8. Over the same period, the committee met nine times: four times
in Strasbourg during the plenary sessions of the Assembly; four
times in Paris; and once in London, upon the kind invitation of
the British Parliament, whose courteous hospitality was much appreciated.
9. During this period, the respective co-rapporteurs carried
out fact-finding visits to Albania, Armenia, Azerbaijan, Georgia,
the Republic of Moldova, Montenegro and North Macedonia. For the
preparation of their report, the co-rapporteurs for post-monitoring
dialogue with Bulgaria made a visit to Brussels for meetings with the
European Commission. In addition, the co-rapporteurs for the Republic
of Moldova, North Macedonia and Ukraine participated in the pre-electoral
and election observation missions to those countries.
10. Both the committee itself and its various rapporteurs adopted
a number of statements with regard to developments in Albania, Armenia,
Azerbaijan, Bosnia and Herzegovina, Georgia, the Republic of Moldova, the
Russian Federation, Turkey, Ukraine, Montenegro, North Macedonia
and Poland.
11. With regard to the report on “The functioning of Democratic
Institutions in Poland” on 6 March 2019, Ms Azadeh Rojhan Gustafsson
(Sweden, SOC) and Mr Pieter Omtzigt (Netherlands, EPP/CD) were appointed to
replace co-rapporteurs Mr Yves Cruchten (Luxembourg, SOC) who had
left the Assembly and Ms Dora Bakoyannis (Greece, EPP/CD), who had
resigned. Taking into account the parliamentary elections in Poland that
were planned for October 2019, the committee agreed to present the
report on the functioning of democratic institutions in Poland at
its January 2020 part session. On 16 May 2019, the committee organised an
exchange of views on the reform of the Justice system in Poland
and the developments under the European Union Rule of Law mechanism
in this regard, with the participation of representatives of the
European Commission, the Ministry of Justice of Poland, the Supreme
Court of Poland, the European Commission for Democracy through Law
(Venice Commission), as well as the civil society organisations,
Polish Helsinki Foundation for Human Rights and Ordo Iuris. The
co-rapporteurs made a fact finding visit to Warsaw on 5 and 6 September
2019 in the framework of the preparation of their report. On 11
December 2019, the committee adopted the report and draft resolution
on the functioning of Democratic Institutions in Poland, with a
view to its presentation during the January 2020 part-session.
12. In the framework of its meeting in London, the committee organised
a seminar, which was open to the public, on “Media
freedom and the functioning of the democratic institutions””
with the participation Mr Alastair King-Smith, Co-ordinator for
Global Campaign on Media Freedom, Deputy Director, Foreign and Commonwealth
Office, Mr Jamie Angus, Director, BBC World Service Group, Ms Rebecca
Vincent, UK Bureau Director, Reporters Without Borders (RSF) and
Lord George Foulkes, PACE General Rapporteur on media freedom and
safety of journalists.
13. The committee re-constituted the Sub-Committee on Conflicts
between Council of Europe member States. The committee met in Strasbourg
on 24 January 2019 and elected Mr Egidijus Vareikis (Lithuania, EPP/CD)
as its Chair and Ms Tamar Chugoshvili (Georgia, SOC) as its Vice-Chair.
Regrettably, following contacts with the Cypriot delegation, it
became clear that a foreseen exchange of views on the Cyprus question would
not be opportune in 2019. In addition, the sub-committee agreed
to postpone, pending the elections in the Republic of Moldova, the
seminar on “The Council of Europe contribution to the Human Rights
aspects of the Transnistrian Settlement Process”. On 13 November
2019, the secretariat was informed by the Moldovan delegation that
they agreed to the continuation by the sub-committee of its work
in the framework on the Transnistrian settlement process. The programme
and modalities for the seminar will be discussed by the sub-committee
at its next meeting in January 2020.
14. The outstanding co-operation with the Venice Commission also
continued this year. Exchanges of views were organised with the
European Commission for Democracy through Law (Venice Commission)
on a number of issues including: the reform of the justice system
in Poland (London, 16 May 2019); the work and priorities of the
Venice Commission and the laws governing the functioning of the
High Council of Justice and the High Prosecutorial Council in Georgia
(London, 17 May 2019); the opinion of the Commission on the scope
of the President of Albania’s power to set the dates of elections
and the challenges and responses to the independence of the judiciary
in Armenia (Paris, 13 November 2019). On 6 March 2019, the committee requested
an opinion from the Venice Commission Emergency Ordinance (EGO 7(2019))
on amendments to “the laws of justice,” in Romania. On 10 April
2019, it requested an opinion on the draft law on public gathering in
the Republika Srpska and on 16 May 2019, it asked the Venice Commission
to enlarge this opinion to an assessment of the legal framework
governing freedom of peaceful assembly in Bosnia and Herzegovina,
its two entities and in the Brčko district in general. On 17 May
2019, the committee agreed to request the Venice Commission for
opinions on “The provisions on the prosecutorial council in the
draft organic law on the prosecutor’s office and on the provisions
on the high council of justice in the existing organic law on general courts
of Georgia” and the Ukrainian law on “Ensuring the functioning of
the Ukrainian language as a State language”. On September 2019,
the committee agreed to request a Venice Commission opinion on the
recent amendments to the legal framework in Ukraine governing the
Supreme Court and judicial self-governing bodies. As usual, I would
like to express again my great appreciation for the cordial working
relations and generally prompt replies by the Venice Commission
to the committee’s requests.
15. Regrettably, the committee also experienced, for various reasons,
great fluctuations among its rapporteurs this year, while other
rapporteurs had to reduce their time available for the committee
work due to developments in their national parliaments. Despite
all efforts of the rapporteurs in question, as well as the Secretariat
of the committee, these developments impacted the work of the committee
and regrettably delayed some of its reports. I intend to outline
a number of possible solutions to address this problem in the third
section of this report. On a positive note, the internal guidelines
for the appointment of rapporteurs, according to which the appointment
of a rapporteur can only be postponed once, which were adopted in
2017, considerably reduced the period that rapporteurs’ positions
were left vacant.
2.2 Overview
of monitoring in the reporting period with regard to countries under
a full monitoring procedure.
2.2.1 Albania
16. The committee followed the
deteriorating political environment in the country with concern.
The opposition initially continued to boycott most of the work of
the parliament, especially its plenary sessions. As a result, only
8 pieces of legislation were adopted on the basis of a cross party
consensus. The political crisis sharply escalated in February 2019,
when the Democratic Party decided to call upon its MPs to rescind
their parliamentary mandates. A similar call was made soon after
by LSI. Most, but not all of opposition members in the parliament
heeded this call and gave up their mandates. A number of them were
replaced by the next members on the party list for the last legislative
elections. However, these, members were de facto disowned by the
DP and the LSI. These developments affected the oversight function
of the legislator, with many mechanisms available to the parliament,
such as Committees of Inquiry, becoming underutilised. The rapporteurs
issued a statement on 26 February, expressing concern at the prevailing
situation and calling upon opposition parliamentarians to return
to parliament. At the same time, the rapporteurs highlighted the
need for the ruling majority to ensure a proper space for the opposition
to function and to engage in a genuine and meaningful dialogue with
the opposition on key reforms.
Note
17. Following their decision to rescind their parliamentary mandates,
the opposition parties announced that they would boycott the local
elections. The local elections on 30 June 2019 therefore took place
without the participation of opposition candidates. The elections
were originally supposed to be observed by an international election
observation mission containing delegates from both the Organization
for Security and Co-operation in Europe (OSCE) and the Congress
of Local and Regional Authorities of the Council of Europe. However,
the Congress eventually decided to cancel its election observation
mission due to security concerns. In its preliminary conclusions,
the OSCE noted that the elections: “were held with little regard
for the interests of the electorate. The opposition decided not
to participate, and the government determined to hold the elections
without it. In the climate of a political standoff and polarisation,
voters did not have a meaningful choice between political options.
In 31 of the 61 municipalities mayoral candidates ran unopposed.
There were credible allegations of citizens being pressured by both
sides. Political confrontation led to legal uncertainty, and many
decisions of the election administration were taken with the political
objective of ensuring the conduct of elections. Voting was conducted
in a generally peaceful and orderly manner and counting was assessed positively
overall, although several procedures were not always followed correctly.”
Note
18. In light of these events, the rapporteurs conducted a fact-finding
visit to Tirana from 28-30 October 2019. In addition to the current
political crisis, the rapporteurs focused on matters such as the
reform of the judiciary, the follow-up to local elections, the fight
against corruption and media freedom. To this end, the rapporteurs met
the Prime Minister, the Speaker of the Parliament, members of the
private office of the President of the Republic, leaders of political
parties, the judicial authorities, and representatives of the Central
Election Commission, the international community and civil society.
Note
19. Following their visit, the rapporteurs once again expressed
their concerns about the ongoing parliamentary boycott and reiterated
their view that the burning of political mandates had no place in
a democracy. Nevertheless, they highlighted the need for ruling
majority to pay more than just lip-service to the role of the opposition
in a pluralist democracy, and to engage in genuine dialogue and
consultation with the opposition.
Note Electoral
reform followed by elections will be key to overcoming the political
crisis. All political forces, including the parliamentary and extra-parliamentary
opposition, should be fully engaged in the electoral reform process
in order to address shortcomings noted during previous elections,
and – once and for all – to decide on a framework for genuinely
democratic elections that has the agreement and trust of all political stakeholders.
20. The visit provided an opportune moment to discuss the judicial
reform process that is currently underway. This process has resulted
in a high number of resignations and dismissals, illustrating the
need for the vetting process to take place in the first place. At
the same time, the impact that the resulting vacancies have had
on the efficient functioning of justice in Albania cannot be underestimated.
In their statement, the rapporteurs expressed their concern that,
years after the process has started, key judicial institutions such
as the High and Constitutional Courts, as well as the Special Anti-Corruption
Prosecutors and Courts, have still to become operational due to
a lack of vetted candidates.
21. With regard to media freedom, the rapporteurs were concerned
to hear from many interlocutors that the media environment was deteriorating.
This makes it all the more important that the authorities consider
all recommendations made by the OSCE Representative on the Freedom
of the Media concerning the draft law on media and services. The
rapporteurs called on the Albanian Government to publish this draft
law as soon as possible, in order to dispel any concerns that it
would limit freedom of expression in the country.
22. Following his attempts to postpone the local elections to
a later date, impeachment proceedings were started against the President
of Albania. The speaker of the Parliament of Albania requested an
opinion of the Venice Commission on the scope of the President’s
power to set the dates of elections. On 13 November 2019, the committee
organised an exchange of views with the Venice Commission. In this
opinion, the Venice Commission noted that, although the President
might have exceeded his constitutional competences by cancelling
and postponing the local elections without a specific legal basis,
this would not warrant the impeachment of the President. The co-rapporteurs
urged all political forces to refrain from any action that would increase
tension even further and to take this opinion, and its conclusions,
into account in this respect.
2.2.2 Armenia
23. The rapporteurs visited Yerevan
on 12 March 2019 to take stock of the reform process in the judiciary that
is currently underway and to discuss reforms in other areas such
as anti-discrimination and domestic violence.
24. Early parliamentary elections took place on 9 December 2018.
An ad hoc committee of the Bureau of the Assembly visited the country
from 7-10 December 2018 as part of an International Election Observation Mission.
Note According to the ad hoc committee,
the elections were held with due regard for fundamental freedoms.
Candidates were able to campaign freely, and fundamental freedoms
of association, assembly, expression and movement were fully respected
during the campaign. Many of the issues that had tainted previous
elections —vote buying, pressure on voters, electoral malfeasance
— were absent on this occasion. This constitutes a serious change
from the April 2017 parliamentary elections, which were marked by
vote buying and allegations of abuse of administrative resources.
The ad hoc committee further commended the transparent and professional
work of the Central Election Commission, as well as the calm and
peaceful way the election was administered. That being said, the
framework for campaign financing was characterised by a lack of
accountability and transparency that need to be improved.
25. Prime Minister Pashinyan’s My Step Alliance won the election
by a landslide, gaining 70% of the votes and 88 out of the 132 seats
in the new parliament. Prosperous Armenia became the second largest
party with 8% of the votes (26 seats), followed by Bright Armenia,
who obtained 6% of the votes (18 seats).
26. At the time of the co-rapporteurs visit, Armenia was making
significant headway in a number of reforms. Draft provisions of
a new criminal Code of Procedure received a favourable opinion from
the Human Rights Defender and were said to be very progressive.
The Code of Procedure is to be accompanied by a new Code of Administrative
Offences, a New Criminal Code and a new Penitentiary Code.
27. On 19 May 2019 Prime Minister Pashinyan’s called on citizens
to block the entrances and exits of courts.
Note This call
followed the release from pre-trial detention of former President
Kocharyan, who had been charged for his role in the events of 1st March
2008 that led to the death of 10 people. The rapporteurs issued a
press release calling on all actors to refrain from actions and
statements that could be perceived as exerting pressure on the judiciary.
The reaction to the judgment nevertheless illustrates the low level
of trust that the public have in the judicial system.
Note On
30 and 31 May 2019, a high-level delegation of the Council of Europe met
Prime Minister Pashinyan, the Minister of Justice and the President
of the National Assembly in Yerevan and discussed ways and means
of strengthening the assistance provided by the Council on the issue
of judicial reform. The Council of Europe further helped the drafting
of the “judicial package” on which the Armenian Government requested
the opinion of Venice Commission. On 14 October 2019, the Venice
Commission and the Directorate of Human Rights of the Directorate
General of Rights and Rule of Law of the Council of Europe issued
a joint opinion on this package. They stated that the judicial package
“generally deserves praise. In the process of the preparation of
the Package, the Government of Armenia acted in a responsible and
thoughtful manner and demonstrated openness to dialogue with all
interlocutors, within and outside the country.”
28. Progress is being made in the fight against corruption, as
illustrated by figures provided to the rapporteurs by the Special
Investigation Service. In the 12 months prior to the rapporteurs’
visit, some US$3,2 million of public money had been refunded and
US$7 million worth of money linked to corruption had been frozen
in bank accounts. According to the co-rapporteurs’ interlocutors,
the anti-corruption apparatus will soon be complimented by a “special
anti-corruption body,” which would either be set up as a single
entity or be separated into several entities, each with their own
sphere of specialisation.
29. The positive attitude towards fight against corruption, is
echoed in the authorities desire to tackle societal issues such
as gender inequality and LGBTI persons’ rights. This desire is illustrated
by the fact that civil society groups are regularly consulted on
draft laws concerning human rights issues. Another welcome development
is the formulation of an action plan and Strategy on Equal Opportunities,
which will apparently address gender inequality. Whilst this new
attitude is to be welcomed, it must also be reflected by concrete actions
on the ground. Despite slight improvements in certain areas — the
number of women represented in parliament increased from 17% to
24% — women are still under represented in the public sector. According
to the PACE election observation report: “women candidates only
occasionally campaigned on their own and rarely appeared as speakers
in campaign rallies.” Women in Armenia earn on average 35.9% less
than men.
30. On the very sensitive issue in Armenia of the ratification
of the Council of Europe Convention on Preventing and Combating
Violence Against Women (CETS No 210, “Istanbul Convention”), signed
by the Armenian authorities in January 2018, the opinion of the
Venice Commission on the constitutional implications of the ratification
of the Convention was requested by the government. On 14 October
2019, the Venice Commission issued its opinion and concluded that
it did not identify any incompatibility between the provisions of
the Convention and the Armenian Constitution.
2.2.3 Azerbaijan
31. Mr Stefan Schennach (Austria,
SOC) paid a visit to Baku from 4-6 July 2019. The aim of the visit
was to discuss a number of concerns outlined in
Resolution
2184 (2017). These included the independence of the judiciary, media
freedom and freedom of expression, freedom of association and allegations
of torture, ill- treatment and poor conditions of detention. To
this end, Mr Schennach met with the Ministry of Justice, the Prosecutor
General’s Office, representatives from the Supreme Court, the Ministry
of Interior, the Presidential administration and the Milli Mejilis.
It is highly regrettable that, despite numerous requests to do so, Mr Schennach
did not have the opportunity to meet four political prisoners: namely,
Mr Taleh Bagirzade, Mr Abbas Huseynov, Mr Afgan Muktarli and Mr Said
Dadashbayili.
32. The year began on a positive note with the presidential pardon
and subsequent release of over 400 prisoners, including 50 persons
considered to be prisoners of conscience.
Note However, this
positive step was not followed by further measures and Azerbaijan
remains a country where administrative detention, restrictions on
movement and politically motivated travel bans are commonly used
tools against government opponents.
33. During his visit, Mr Schennach was informed that out of 1700
advocates in the country, only 8 were prepared to defend government
critics. Those who do undertake such work are frequently subjected
to harassment, intimidation and disciplinary proceedings, which
often result in either suspension or expulsion from the Bar Association.
According to numerous sources, the number of political prisoners,
at the time of the rapporteur’s visit, stood at 127. The ongoing
presence of political prisoners, which is detailed extensively in
an information note declassified by the committee on 30 September
2019,
Note is an illustration
of the lack of independence in the judiciary in Azerbaijan.
34. On 29 May 2019, the European Court of Human Rights issued
its judgment
Ilgar Mammadov v Azerbaijan.
Note The case marked the first time that
infringement proceedings had been opened by the Committee of Ministers
against a member State of the Council of Europe. After reporting
on riots in the town of Ismayilli, Mr Mammadov had been arrested
and sentenced to seven years in prison on charges of “resistance
or violence against public officials, posing a threat to their life.”
The Court held that the measures taken by Azerbaijani authorities
to implement its previous judgment, in which it ruled that the real
purpose of Mammadov’s trial was to “silence or punish him for criticising
the Government”,
Note were limited and failed to eliminate
the negative consequences of the criminal charges. Accordingly,
Azerbaijan had failed to comply with its article 46 obligations
to abide by Strasbourg Court judgments. To this day, Mr Mammadov
cannot stand for elections and the criminal conviction against him
remains in place.
35. However, Mr Mammadov is not the only one against whom criminal
legislation is routinely applied in order to limit freedom of expression.
Azerbaijan is ranked 166th out of 180 countries in the 2019 World
Press Freedom Index published by Reporters without Borders. In recent
years, there have been a number of criminal investigations against
journalists from independent platforms including Mr Ikram Rahimov
and Mr Polad Aslanov, both of whom were arrested and prosecuted
after their news-outlets reported allegations of corruption. Administrative
detention and travel bans are also used against leaders of opposition
parties, and the restrictive framework governing freedom of association
frustrates the work of both NGOs and ordinary political parties
alike. NGOs, in particular, report severe curtailments on their
activities as result of a cumbersome legislative environment that
allows for wide government discretion and far-reaching restrictions on
foreign funding.
36. The situation regarding ill-treatment by law enforcement agencies,
and in particular in detention centres, is equally concerning. Despite
some improvements, such as the publication of six reports of the
European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT) and the renovation of 42
police stations, reports of ill-treatment and the impunity of perpetrators
remain frequent — a situation that is no doubt worsened by the absence
of an independent anti-torture mechanism. Ill-treatment is also
handed out to minority groups. Since the adoption of the last resolution
in October 2017, there have been reports of an alleged crackdown
on LGBTI persons, who were allegedly arrested, held in detention
for several days and subjected to abuse.
37. One positive development includes the signing of a presidential
decree on 3 April 2019 concerning the deepening of reforms in the
judicial and legal systems. This has allowed for a reduction in
terms of punishment, the introduction of alternatives to detention
and the full decriminalisation of about 15 offences. These new provisions
will be applied to some 6000 already convicted prisoners. This is
especially positive, since prison over-population and unacceptable
penal conditions had been identified by the Assembly as a major
concern confronting the country. It is equally encouraging to note
that the authorities implemented the recommendation formulated by
the Group of States against Corruption (GRECO) in its Fourth Evaluation
Round Report, which sought to reduce undue interference by the executive
in the investigation of criminal cases.
2.2.4 Bosnia
and Herzegovina
38. Despite over a year passing
since the general elections in 2018, no progress has been made on
the formation of authorities. By October 2019, the new State-level
Bosnia and Herzegovina Council of Ministers, the Federation entity
government and two of the 10 cantonal governments had yet to be
appointed.
Note The cantons of the Federation of
Bosnia and Herzegovina were initially unable to appoint delegates
to the House of Peoples of the Federation, thus rending it impossible
for the House to appoint its own delegates to the House of Peoples
at the State level, which is the High Chamber of the Bosnian Parliament.
Without this Chamber, no law can be voted, and no budget adopted.
Attempts to unblock this deadlock were made when the Central Electoral
Committee of Bosnia and Herzegovina decided that the House of Peoples
of the Federation of Bosnia and Herzegovina would be established
according to the 2013 population census results and not the 2011. However,
this has been challenged before the Constitutional Court, as the
2013 census reflects the demographic and geographic changes brought
by the civil war. This explains why the Parliamentary Assembly of
Bosnia and Herzegovina failed to adhere to January 2019 deadline
for submitting its credentials to PACE. In June, however, when a
second possibility was offered to the parliament to present the
credentials of a new delegation, as the Russian Federation did,
it failed to do so, even though the House of Peoples from the Federation
of Bosnia and Herzegovina had in between appointed its delegates
to the State level. This was because no government has been formed
owing to infighting within the main political factions over issues
such as the submission by Bosnia and Herzegovina of its first annual
national programme to the North Atlantic Treaty Organization (NATO)
as part of its NATO membership action plan.
Note
39. Therefore, following the failure of the delegation of Bosnia
and Herzegovina to present its credentials on two occasions, the
rapporteurs issued a statement on 1 July 2019 expressing their regret.
The rapporteurs further noted that the inability to form a delegation
highlighted systemic flaws within the Bosnian institutions that
have gone unaddressed for too long.
Note In light of
the seriousness of the situation, the Monitoring Committee decided
that the co-rapporteurs should promptly draft a report on “the functioning
of democratic institutions in Bosnia and Herzegovina,” supplementing
the report it had already completed in January 2018.
40. The rapporteurs continued to follow a number of worrying developments
in the area of freedom of Assembly. At its meeting on 10 April 2019,
the committee submitted a request for an opinion of the Venice commission
on the draft law on public gathering in the Republika Srpska. A
joint delegation from the Venice Commission and the OSCE/ODIHR paid
a visit to Sarajevo to discuss with the authorities and other stakeholders
the legal framework governing the right to freedom of assembly in
Bosnia and Herzegovina, its two entities and in the Brčko district.
A joint opinion was adopted at the Venice Commission’s December plenary
session.
Note
41. Beyond these immediate issues, the committee remains concerned
by a number of negative trends in the areas of human rights and
the rule of law, namely: the authorities’ continuous disregard for
binding and final decisions of the judiciary; the repeated intimidation,
threats and physical assaults of journalists; and the appearance
of divisive political rhetoric that only serves to exacerbate tensions
within the country. In August 2019, the Dodik led government, with
support of the RS National Assembly, succeeded in its bid to repeal
the RS government report from 2004 on the genocide in Srebrenica.
In doing so, the government discredited the only official acknowledgement
of the involvement of RS officials in what has been qualified by
both the ICTY and the ICJ as a “genocide.” Given the fact that the
electoral is still based on ethnicity, and given the absence of
an education system that has been able to deliver a common history
curriculum for children of Bosnia and Herzegovina for over 20 years,
the committee strongly believes that governing authorities should
not seek to challenge international courts’ assessments regarding
the war or contest the small steps that have been made towards reconciliation.
2.2.5 Georgia
42. The rapporteurs visited the
country from 17-18 September 2019. The aim of the visit was to discuss recent
political developments, as well as issues such as the independence
of the judiciary, judicial reform, the functioning of the High Council
of Justice, and the organisation of elections.
43. The ODIHR Election Observation Mission released its final
report on the Georgian presidential election on 28 February 2019.
Note In this report, the OSCE/ODIHR reiterated
its concern about: “the use of negative, harsh and at times violent
rhetoric” and the incidents of disruptions to campaign events and
isolated acts of violence. Concerned about the lack of follow up
given to these reported violations of the electoral code and incidents,
the co-rapporteurs issued a statement following the release of the
ODHIHR report, in which they urged all stakeholders: “to fully implement
the recommendations made (….) especially as regards campaign financing,
the media and the abuse of administrative resources”.
Note
44. Progress has been made with regard to the ongoing judicial
reforms that remain a priority for the Georgian authorities. In
a welcome development, an agreement was reached in the Working Group established
to draft the fourth wave of judicial reforms. The Georgian Parliament
is encouraged to ensure that these agreed reforms will now be adopted
swiftly.
45. In the context of the judicial reform, the functioning of
the High Council of Justice has raised some concerns. This was highlighted
by the appointment process for Supreme Court judges. Following their
visit to the country in September, the rapporteurs expressed concerns
regarding the manner in which candidates for the supreme court were
being selected by the High Council of Justice. The rapporteurs were
particularly critical of the lack of a clear and uniform selection
criteria, the excessive use of discretion by the High Council of Justice
and the failure by the latter to give full and reasoned decisions.
These shortcomings could have been avoided if the authorities had
fully implemented the recommendations of the Venice Commission,
in particular with regard to secret voting, uniform criteria and
reasoned decisions”.
Note The
candidate list has now been sent to parliament and the rapporteurs
called upon the Georgian Parliament to rectify shortcomings made
in the selection process by the High Council of Justice. To that
extent, the parliament should hold open and transparent interviews
with the candidates, based on uniform criteria, and come to a well-reasoned
decision on the candidates. Given the questions that have been raised
over the quality of the candidate list, it is important that parliament
will only appoint the minimum number of judges needed to ensure
the proper functioning of the Supreme Court. The remaining positions
should be filled on the basis of a new list of candidates, properly established
by the High Council of Justice and preferably after the 2020 parliamentary
elections, in line with Venice Commission recommendations.
46. As a result of the adoption of a new set of rules of procedure
in the Georgian Parliament, progress has been made with regard to
strengthening parliamentary oversight. It is important that this
will be matched by a change in approach on the part of all other
stakeholders.
47. Following the widespread protests that ensued after the President
of the Interparliamentary Assembly on Orthodoxy (IAO), a Russian
MP, attempted to address the Assembly from the seat of the Speaker
of the Georgian Parliament, the Chairman of Georgian Dream, Mr Bidzina
Ivanishvili, announced that his party would initiate a constitutional
amendment to introduce a fully proportional election system with
a 0% threshold, which would be operational from the 2020 general
elections onwards. This initiative, that responded to a long-held demand
of the opposition to bring the introduction of a fully proportional
election system forward from 2024 to 2020, was welcomed by all stakeholders
and the international community, including the rapporteurs for Georgia.
Regrettably, on 14 November 2019, the constitutional amendment needed
to introduce the proportional election system failed to gather sufficient
support to be adopted, despite all opposition parties voting in
favour. In their statement, the rapporteurs of the Assembly deplored
the failure of the Georgian Parliament to pass constitutional amendments
on the proportional election system, which they considered to be
long overdue. In light of the clear consensus by all stakeholders
on the need to introduce this system before the 2020 parliamentary
elections, the failure of the amendments to pass is incomprehensible
and a step backwards.
48. Regrettably, the borderisation and creeping annexation of
the Georgian regions of South Ossetia and Abkhazia by the Russian
Federation has continued unabated during 2019. This should be condemned
in the strongest possible terms, as it destabilises the region and
inflicts an unacceptable human cost on both sides of the administrative
boundary line. On 9 June 2019 so-called “parliamentary elections”
were organised in South Ossetia (Georgia) and, on 26 August, so-called
presidential elections took place in Abkhazia (Georgia) in violation
of international law. These so-called elections were therefore neither
legitimate nor legal. Reiterating the full support of the Assembly
for Georgia’s sovereignty and territorial integrity, the rapporteurs condemned
the holding of these elections as they: “hinder the peaceful settlement
of the conflict and, instead of uniting people, they only drive
them further apart.”
Note
2.2.6 Republic
of Moldova
49. 2019 marked the beginning of
a political turning point in the Republic of Moldova. Parliamentary elections
were held on 24 February 2019. The elections were observed by an
ad hoc committee of the Assembly as part of an International Election
Observation Mission. In his report, Mr Claude Kern (France, ALDE),
noted that the new mixed electoral system was contrary to Venice
Commission recommendations. The ad hoc committee nevertheless concluded
that the election was competitive and that fundamental freedoms were,
by and large, respected. The day of the election was calm and well
organised, and political candidates were able to campaign freely.
Nevertheless, there were isolated cases of violence against candidates,
mass misuse of administrative resources, allegations of vote buying
and distribution of gifts involving charitable foundations involved
with political parties.
50. The elections resulted in a hung parliament. In such situations,
Article 85 of the Moldovan constitution grants political parties
a 3-month deadline within which to form a government. However, the
Constitutional Court took what the Venice Commission would later
describe as “a novel approach to calculating the time-limit” and
ruled that the deadline expired on midnight of 7th June.
A day later however, two parties with diverging views, i.e. the
Party of the socialists and the ACUM Bloc, succeeded in forming
a parliamentary majority and signed a “temporary agreement for the
de-oligarchising of Moldova”. On 8 and 9 June 2019, the Constitutional Court
ruled that these decisions were unconstitutional and called on the
President to dissolve parliament and call early elections. When
he refused, the court suspended him. The political and constitutional
crisis that ensued prompted the Secretary General of the Council
of Europe to request an opinion from the Venice Commission assessing
the Court’s decision. On 14 June, the Democratic Party announced
it would join the opposition, resulting in a transfer of power.
The co-rapporteurs praised both the resilience demonstrated by the Moldovan
people and the peaceful transfer of power and called on authorities
to ensure that all measures taken to de-oligarchise the system were
aimed at strengthening the independence of state institutions.
Note The
Venice Commission, for its part, held that the procedural rights
of the president and the parliament had been affected by the extreme
speed “and even rush,” with which the court decided on such a sensitive
case. The Venice Commission concluded that the conditions for the
dissolution of the parliament were not met.
51. In light of these events, the rapporteurs, Mr Egidijus Vareikis
(Lithuania, EPP/CD) and Ms Maryvonne Blondin (France, SOC), conducted
a fact-finding visit to Chisinau from 22 to 23 July 2019 and subsequently issued
a statement in which they welcomed the steps taken to free state
institutions from external and business influence; at the same time,
the co-rapporteurs called for the strengthening of democratic institutions.
Note Additionally, the rapporteurs called
upon the authorities to ensure that reforms to the judicial and
prosecution system were based on clear and transparent criteria,
and that measures taken to “de-oligarchise,” the country complied
with Council of Europe standards. On 10 September, the committee
adopted a report on the functioning of democratic institutions in
the Republic of Moldova, which was subsequently debated by the Assembly
at its October part-session. Through
Resolution
2308 (2019), the Assembly called upon the authorities, with the
assistance of the Council of Europe, to improve their electoral
legislation after the abolition of the mixed electoral system, reform
the judicial system and the prosecution office, fight against corruption
and money laundering in line with the 2019 GRECO recommendations,
shed light on the 2014 bank scandal and ratify the Istanbul Convention
to prevent and combat violence against women and domestic violence.
The Assembly also stressed that the legal steps taken today to “de-oligarchise”
the country should ultimately contribute to consolidating state
institutions.
52. With regard to the Transnistrian conflict settlement, the
Assembly welcomed the willingness of the Moldovan authorities to
continue the 5+2 discussions, which involve the Republic of Moldova,
the de facto Transnistrian authorities, the OSCE, the Russian Federation
and Ukraine, to achieve a peaceful resolution of the Transnistrian
conflict. The Assembly also reiterated its full support for the
territorial integrity of the Republic of Moldova and its call on
the Russian Federation to withdraw its troops and equipment from
the Moldovan territory.
Note
53. The Assembly also called on the Moldovan authorities to ensure
that the local elections held on 20 October and 4 November were
organised in compliance with the best practices and standards of
the Council of Europe. These elections were observed by the Congress
of local and regional authorities, which concluded that the elections,
despite some legislative shortcoming, were conducted in an orderly
manner.
Note In Chisinau, Mr Ion Ceban, from
the Moldovan Socialist Party (PSRM), was elected Mayor on 3 November,
with 52% of the votes.
Note
2.2.7 Russian
Federation
54. On 26 June 2019, the Assembly
adopted
Resolution 2292
(2019), thereby ratifying the credentials of the Russian Federation’s
delegation. In doing so, the Assembly brought an end to a four-year
long boycott of its work by the Russian Federation, which had plunged
the Council of Europe into an unprecedented financial and institutional
crisis (the Russian Federation having suspended its payments to
the Council of Europe budget in 2017). Following the adoption of
Resolution 2287 (2019) on the strengthening of the decision-making process of
the Parliamentary Assembly concerning credentials and voting on
24 June 2019, the Assembly invited the parliaments of Council of
Europe member States which were not represented in the Assembly
to present the credentials of their delegations at the June 2019
part-session of the Assembly. On 25 June 2019, the Parliament of
the Russian Federation submitted the credentials of its delegation
for ratification by the Assembly. These credentials were challenged
on substantive grounds (Rules 8.1.a and 8.2 of the Rules of Procedure)
and the Monitoring Committee was seized for report. Following established
practice, I was appointed rapporteur.
55. Regretting the lack of co-operation by the Russian Federation
in the framework of the Parliamentary Assembly’s monitoring procedure,
the Monitoring Committee expressed its concern over a number of exacerbating
negative tendencies with regard to democracy, the rule of law and
human rights, in the Russian Federation which were hindering the
fulfilment of key accession commitments and membership obligations
by the Russian Federation. Nevertheless, the committee reiterated
that the Assembly has always been committed to political dialogue
as a means of reaching compromise and lasting solutions. As noted
in paragraph 7 of the resolution, the Assembly constitutes the most
important platform where dialogue concerning the Russian Federation’s
obligations under the Statute of the Council of Europe can take
place with the participation of all those concerned, and where the
Russian delegation can be kept accountable on the basis of Council
of Europe values and principles.
56. However, the Assembly’s decision to welcome the Russian Federation
back into the fold, must not be taken as complacency with regard
to a number of trends that have a corrosive effect on the rule of
law, and which should have no place in a Council of Europe member
State. In its resolution, the Assembly called upon Russian authorities
to implement a series of concrete measures aimed at addressing these
concerns and reinforcing the respect for human rights and the rule
of law within its territory. These included: releasing the 24 Ukrainian
sailors captured in the Kerch Strait on the charge of “illegally
crossing the border of the Russian Federation”; immediately paying
all fees due to the Council of Europe budget; unconditionally and
fully co-operating with the joint investigation team and the Dutch
prosecution service in bringing these responsible for the downing
of Malaysia Airlines Flight MH 17 to justice; taking effective measures
aimed at preventing violations of the human rights of lesbian, gay,
bisexual, transgender and intersex (LGBTI) persons, in particular in
the Chechen Republic, and prosecuting the perpetrators for acts
committed in the past; and co-operating fully with the international
community in the investigation of the murder of Boris Nemtsov.
Note
57. The rapporteurs have been following the country’s arbitrary
application of “extremism law,” with significant alarm. For this
reason, on 7 February 2019, they issued a statement expressing their
serious concern at the situation facing Mr Dennis Christensen, who
had been convicted of “organising the activity of an extremist organisation,”
on the grounds that he was a practising Jehovah’s Witness. The rapporteurs expressed
their hope that the conviction would be quashed on appeal and called
upon the authorities to release Christensen whilst this appeal was
pending.
Note
58. At its meeting on 13 November 2019, the committee agreed to
appoint Mr Axel Schäfer (Germany, SOC) as co-rapporteur to replace
Ms Angela Smith (United Kingdom, ALDE), who is no longer a member
of the committee. Following the return of the Russian Federation
to the Assembly, the committee organised, on 10 September 2019,
an exchange of views with Mr Jakob Wienen, co-rapporteur on local
and regional democracy in the Russian Federation of the Monitoring
Committee of the Council of Europe Congress of Local and Regional
Authorities. On 30 September 2019, the committee organised a hearing
on civil society and democratic participation in the Russian Federation
with the participation of Mr Vladimir Kara-Murza, Chairman of the
Boris Nemtsov Foundation for Freedom, Ms Emiliya Slabunova, President
of the Yabloko Party, Mr Leonid Volkov, Campaign Manager of Mr Alexei
Navalny and Ms Tatiana Glushkova, representative of Memorial. Furthermore,
on 13 November 2019, the committee held an exchange of views with
Mr Fredrik Sundberg, Head of Department for the Execution of judgments
of the European Court of Human Rights, on the execution of Court
judgements by the Russian Federation. A first fact-finding visit
to the Russian Federation is tentatively foreseen for early 2020.
2.2.8 Serbia
59. The committee has continued
the preparation of a report on the honouring of obligations and commitments
by Serbia. On 23 January 2019, a preliminary draft report was sent
for the Serbian government’s comments, which the committee subsequently
considered during its meeting on 17 May 2019 in London. The committee
held on that occasion an exchange of views focusing in particular
on the functioning of the parliament and the legislative and constitutional
changes expected to meet the Assembly’s requirements. The co-rapporteurs
will continue to follow all developments relating to the areas of
concern outlined by the Assembly in
Resolution
1858 (2012) — namely, strengthening of the judicial independence,
the fight against corruption, the state of media freedom and the
rights of minorities — with a view to bringing a report forward
to the Assembly in 2020 after the holding of parliamentary elections
in Spring 2020.
60. The year 2019 was also marked by a change of rapporteurs:
at its meeting on 10 April 2019, the committee appointed Mr Ian
Liddell-Grainger (United Kingdom, EC/DA) to replace Mr Robert Goodwill
(United Kingdom, EC/DA) as co-rapporteur. Ms Maria Guzenina (Finland,
SOC) was replaced by Mr Piero Fassino (Italy, SOC) as co-rapporteur
on 10 September 2019.
2.2.9 Turkey
61. The rapporteurs continued to
follow a number of concerning developments in Turkey. On 21 January 2019,
the Assembly held a debate under urgent procedure on “The worsening
situation of opposition politicians in Turkey: what can be done
to protect their fundamental rights in a Council of Europe member
State?.” Through
Resolution
2260 (2019), the Assembly called upon Turkish authorities to respect
fully the rights and fundamental freedoms of opposition politicians,
in particular to guarantee parliamentary immunity, amend the legislation
and constitution in line with the Venice Commission recommendations
and to implement the judgments of the European Court of Human Rights.
62. In a welcome development, the High Penal Court of Diyarbakir
on 28 January decided to release Ms Leyla Guven from prison.
Note This decision,
which was undoubtedly a step in the right direction, was followed by
the Constitutional Court’s ruling in October 2019 resulting in the
release of former HDP deputy Mr Sirri Süreyya Önder. Having recourse
to ECHR case law, the Court held that Önder’s freedom of expression
had been violated and that his statements: “did not incite people
to use violence, did not pose a risk of crimes of terror, and could
not be considered “an encouragement to use the methods of the terrorist
organization [PKK] that involve force, violence or threat”.
Note The rapporteurs
hailed the Court for taking a “landmark,” decision and expressed
their expectation, in light of the ruling, that MPs and former MPs
who were unduly imprisoned and stripped of their immunity would
be released.
63. The rapporteurs equally took note of a number of developments
in the area of freedom of speech. In particular, the rapporteurs
welcomed the ruling by the Constitutional Court of Turkey on 25
July 2019 concerning “academics for peace.” To recall, “academics
for peace,” were a group of some 600 professors who were prosecuted
on terrorism charges for signing a petition criticizing military
operations in southeast Turkey. The rapporteurs noted that the judgment
gave hope for hundreds of academics who have been prosecuted, sentenced,
and even jailed for signing a Declaration of Peace.
Note The rapporteurs
nevertheless called upon Turkish authorities to swiftly hold retrials
for those convicted, reverse the cases which are under appeal, acquit those
still under prosecution, and reinstate academics who were forced
to resign or who lost their job. The committee remains concerned
by Turkey’s overuse of anti-terror laws, which were applied with
alarming frequency following the military intervention in North-East
Syria. This trend has notably affected a number of local opposition
politicians, including co-chairs of the HDP and prominent members
of the CHP.
64. The situation regarding media freedom showed no signs of improvement.
In 2019, Turkey ranked 157th (out of 180 countries) in the Reporters
Without Borders World Press Freedom Index. Currently, there are
105 journalists in detention, according to the Council of Europe
Platform to Promote the Protection of Journalism and safety of Journalists.
65. Mayoral elections were held in Istanbul on 31 March 2019.
After 25 years of control, the ruling AK party lost Istanbul to
the opposition candidate, Mr Ekrem Imamoğlu, by 13 000 votes. The
result was subsequently invalidated following an appeal before the
Supreme Election Council by the ruling party. This led to an election re-run
on 24 June, during which Mr Imamoğlu increased his lead substantially
from 13 000 votes to 775 000. At its meeting on 16 May 2019, the
committee held an exchange of views on the local elections, with
the participation of Mr Andrew W. Dawson (United Kingdom, ECR),
Head of the election observation mission of the Congress of Local
and Regional Authorities that was present when the vote took place.
66. The delegation from the Congress on Local and Regional Authorities
observed both elections. The technical aspects of the elections
were well administered, and Ballot Box Committees carried out their
tasks competently and diligently. The turnout of 85% also demonstrated
a healthy willingness to engage with the political process. Nevertheless,
the absence of a free and fair electoral environment, in which all
parties are given equal access to the media and voters are presented
with a fair and balanced picture, tainted the process.
67. Despite undemocratic trends, there are some notable developments.
On 17 October, the parliament recently approved a first package
of judicial reforms. It remains to be seen whether this reform will
increase procedural safeguards, improve legal processes and limit
pre-trial detentions. This is nevertheless a step in the right direction,
and the Council of Europe stands ready to offer assistance in implementing
these reforms. Another welcome development includes the preparation
of an “action plan for human rights.” This will present an opportune
moment to address many of the concerns outlined in Assembly resolutions.
68. In light of these developments, the committee, during its
meeting on 13 November 2019, held a hearing on the reforms to the
justice system and the future action plan on human rights, and their
expected impact on freedom of expression and assembly. The exchange
of views took place with the participation of representatives from
the Ministry of Justice, Amnesty International and the three main
political groups in the Turkish Parliament.
2.2.10 Ukraine
69. The first and second rounds
of the presidential election were held on 31 March and 21 April
2019 respectively. On the very day of his inauguration, President
Volodymyr Zelenskyy announced his intention to dissolve the parliament.
Note Early parliamentary
elections were therefore held on 21 July 2019. An ad hoc delegation
composed of PACE members was originally supposed to participate
in the observation of both elections. Nevertheless, following the
unconditional return of the delegation of the Russian Federation
to the Assembly, Ukraine regretfully withdrew its invitation to
the Assembly to observe the parliamentary elections.
Note
70. International observers concluded that, for the presidential
election, both campaigns were competitive and peaceful. Fundamental
freedoms of expression were respected, and candidates were able
to campaign without undue hindrance. Voters were able to choose
from a wide selection. Nevertheless, allegations of vote buying
and misuses of administrative resources, including the “use of social
assistance programmes, salary increases, and other financial incentives,”
tainted both elections.
Note By
the end of the second round of the presidential election, over 90
criminal investigations had been launched into irregularities related
to the first-round election day.
Note Both the OSCE and the ad hoc PACE
delegation were critical of the lack limits on campaign spending
during the presidential election, as well as the ability of parties
to find funding outside the normal framework. Regulations imposing
impartial news coverage of campaigns and candidates were openly flouted
and poorly enforced. It remains a matter of deep regret that, due
to the illegal annexation of the Crimean Peninsula by the Russian
Federation and the presence of illegal armed groups, elections could
not be held in Crimea and certain parts of Donetsk and Luhansk.
71. The rapporteurs continued to follow developments in the areas
of media freedom and freedom of speech. Ukraine ranks 102, out of
180 countries, in the Reporters without Borders Press Freedom Index.
Note The Council of Europe Platform to
promote the Protection of Journalism and the Safety of journalists
cites 6 cases of impunity for murder,11 cases of harassment and
intimidation of journalists and 21 cases it classifies as having
a chilling effect on press freedom.
Note On 20 June 2019, investigative journalist,
Mr Vadym Komarov, died from his injuries following a severe attack
by unknown assailants on 4 May in the town of Cherkassy. That his death
may have been linked to his investigations into local corruption
and abuses of power, is a matter of utmost concern. Komarov’s case
cannot fall victim to the usual pattern, whereby investigations
into attacks against journalists and anti-corruption campaigners
fail to produce tangible results. The rapporteurs issued a statement
on 2 July calling on authorities to ensure that a transparent and
effective investigation into his murder takes place.
Note
72. The committee has also taken note of certain developments
in the fight against corruption. On 11 April 2019, all 38 judges
for the High Anti-Corruption Court were appointed,
Note which is to be welcomed.
This body has been operational since September. Ukrainian authorities
must now ensure that this body is equipped body with the resources
and manpower it needs to handle some 35000 cases that potentially
fall within its remit.
Note
73. The President and his party were elected on a platform that
promised to end the endemic corruption in Ukraine, and to reboot
the justice system for this purpose. The endemic corruption, including
in the judiciary, and the inefficiency of the justice system have
been one of the main concerns of the Ukrainian public. In September
2019, the Verkhovna Rada adopted a judicial reform package to initiate
the reboot of the judiciary. In order to help ensuring that these
reforms fully comply with European standards, the committee, on September
2019, asked for an opinion of the Venice Commission “on the recent
amendments to the legal framework in Ukraine governing the Supreme
Court and judicial self-governing bodies”.
74. Given the importance of the language issue in Ukraine, on
17 May 2019, the committee asked the Venice Commission for an opinion
on the Ukrainian law on “Ensuring the functioning of the Ukrainian
language as a State language”.
2.3 Countries
engaged in a post-monitoring dialogue
2.3.1 Bulgaria
75. At its meeting on 16 May 2019,
the committee considered a draft report on the post-monitoring dialogue with
Bulgaria and unanimously adopted a draft resolution.
76. Through
Resolution
2296 (2019), debated during the June 2019 part session, the Assembly
recognised the substantial progress made by Bulgaria since the adoption
of the last post-monitoring dialogue report in 2013. Most notably,
the authorities ought to be commended for their continued cooperation
with Council of Europe monitoring mechanisms, legal experts and
the Venice Commission.
77. The country has made significant progress in reforming the
judiciary. The Assembly therefore welcomed a number of notable developments
in this regard, including: the 2015-2018 reforms to the Judicial
System Act and the subsequent regulations concerning the functioning
of the Supreme Judicial Council and the judiciary; the division
of the Supreme Judicial Council into chambers of judges and prosecutors
independently exercising appointment and disciplinary powers with
regard to the judges, prosecutors and investigating magistrates;
and the establishment of the Supreme Judicial Council Inspectorate,
which is tasked with increasing accountability of the judiciary
and, in particular, with preventing corruption within the judiciary,
and disciplinary proceedings.
78. With regard to the fight against corruption, the Assembly
commended the authorities for creating a new unified anti-corruption
agency. Amongst other things, this agency is in charge of verifying
the absence of conflicts of interest and the private assets of high
officials; investigating allegations of corruption, establishing safeguards
for the prevention of corruption; and setting up procedures for
the seizure and confiscation of illicit assets. The country has
made enormous strides in adopting a number of recommendations issued
by GRECO, such as amending the Parliamentary Rules of Procedure
in 2016 with a view to ensuring transparency in the legislative
process. Moreover, Bulgaria has invested considerable resources
in the training and awareness-raising of a large number of judges,
prosecutors and law-enforcement officers on issues pertaining to
bribery and trading in influence.
79. Finally, the Assembly recognised the significant progress
made in recent years in improving prison conditions and in implementing
recommendations from the CPT, such as adopting amendments to the
Law on Executing Punishments and Arrests in 2017. The changes addressed
material conditions, regimes, early release and judicial control
over the prison administration. In a highly welcome development,
the country has made headway in implementing the judgments of the
European Court of Human Rights relating to excessive judicial proceedings
and the lack of effective remedies in that regard.
80. Nevertheless, the committee remains concerned by the lack
of improvement in a number of areas. Important legislative initiatives
relating to the judiciary are not subject to broad public debate,
and not all relevant stakeholders are sufficiently consulted. GRECO’s
recommendation to establish clear, objective and transparent criteria
with regard to supplementary remuneration within the judiciary has
not been fulfilled. The situation concerning media freedom in Bulgaria
has been deteriorating systematically over recent years, with the
concentration of ownership and the lack of transparency becoming
major concerns. Racist and intolerant hate speech in political discourse
continues to be a serious problem, as does the exclusion of Roma representatives
from the democratic process. It is deeply regrettable that Bulgaria
has so far neglected to ratify the Council of Europe Convention
on Preventing and Combating Violence against Women and Domestic Violence,
even though it signed this instrument as far back as 2016.
81. For this reason, the Assembly resolved to continue a post-monitoring
dialogue with Bulgaria and to assess, in June 2020, the progress
made in the following areas: the judiciary, combating high-level
corruption, the media, human rights of minorities, combating hate
speech and violence against women.
Note
82. On 2 October 2019, the committee appointed Mr Aleksander Pociej
(Poland, EPP/CD) to replace Mr Zolt Németh (Hungary, EPP/CD), who
had resigned as co-rapporteur.
2.3.2 Montenegro
83. The committee has grown increasingly
concerned by the fragmented and polarised political climate in Montenegro.
The stalemate created after the general elections of October 2016,
that saw a landslide victory for the Democratic Party of Socialists
of Montenegro (DPS) and the refusal of the entire opposition bloc
to take part in the work of the parliament, has partly been overcome,
almost all of the opposition having returned to the parliament,
even if some faction said they would only take part in the committee
tasked with the electoral reform (DCG) and others have fluctuated
in their boycott (DF). This situation has been exacerbated by the
so-called “envelope affair,” which began in January 2019 after Mr Duško
Knežević, owner of the Atlas Bank group, started to reveal details
about alleged shady businesses involving the ruling party’s high
officials, President Đjukanović being said to be among them. The
most prominent revelation, supported by a video material dating back
from 2016, showed Duško Knežević appearing to hand the then mayor
of Podgorica, Mr Slavoljub Stijepović, an envelope containing what
Mr Knežević later said was 97 000 $, to fund a DPS election campaign. This
donation does not appear in the party’s financial records. On 17
February 2019, these revelations triggered massive protests in several
cities throughout Montenegro such as Podgorica, Budva and Herceg-Novi.
Protests organisers initiated a dialogue with opposition leaders
that resulted in the “Agreement for the future”, a political platform
signed by all the 39 MPs from oppositions in April. Among the priorities
listed, there is a demand for a government of civic unity and the
boycott of all elections until requests are satisfied. So far, no
inquiry committee has been created in the parliament to investigate
the ‘Envelope affair’.
84. On 31 July 2019, the parliament decided to widen the mandate
of the Committee on electoral reform and turned it into a Committee
on Comprehensive Reform of electoral and other legislation. The
aim of this committee was to address several serious issues for
which action was required by both the European Union and the Council
of Europe before the next general election, which is due to take
place no later than 20 October 2020. Apart from the DF political
group, all factions of the parliamentarian opposition were represented
in this temporary committee.
85. It was in this context that the co-rapporteurs conducted their
fact-finding visit to Podgorica, which took place from 11-13 September.
The aim of the visit was to discuss the independence of the judiciary,
electoral reforms, the fight against corruption and the situation
of the media. To further their understanding of these issues, the
rapporteurs met with a variety of interlocutors including: members
of the international community; the Deputy President of the Commission
for monitoring actions of the competent authorities in the investigation of
cases of threats and violence against journalists, murders of journalists
and attacks on media property, the Director of the Agency for Prevention
of Corruption, representatives from the various political factions represented
in parliament, representatives from the judiciary and the Ministry
of Culture.
86. In a statement issued following their visit, the rapporteurs
called upon all political stakeholders to overcome their differences
in order to reform the electoral code, for which opposition’s votes
are still needed.
Note This
has been a key recommendation from both the European Union and the
Council of Europe for some time. The rapporteurs welcomed the indisputable
progress made in several areas, including LGBTI rights and minority
rights, which has set an example for the whole region to follow.
An equally welcome development has been the progress made by the
Special Public Prosecutor and the Ministry of Justice in obtaining
initial convictions in cases of corruption. However, this track
record needs to be reinforced. The rapporteurs further commended
the courage of various judicial bodies, such as the Constitutional
Court, which annulled arrest warrants issued against two MPs, whose
immunity had not been lifted beforehand. That being said, there
is still much progress to be made, particularly in areas such as
the independence of the media. Although the legal framework governing
the media was strengthened in an inclusive manner, and police forces
are making efforts to arrest the perpetrators and suspects of attacks
on journalists, those who command the attacks are often not found.
Investigative journalists may still be subjected to intimidation
attempts or, in some rare cases, to judicial procedures and detention.
87. Bearing these issues in mind, the committee agreed to hold
an exchange of views on the Montenegrin “Commission for monitoring
actions of the competent authorities in the investigation of cases
of threats and violence against journalists, murders of journalists
and attacks on media property,” on 11 December 2019. The rapporteurs
aim to present a draft report on the post-monitoring dialogue with
Montenegro, for debate at the April 2020 Assembly part-session.
2.3.3 North
Macedonia
88. In the year since the last
progress report, North Macedonia has undergone several major changes.
The country held a referendum on 30 September 2018 which resulted
in the ratification of the historical Prespa Agreement by North
Macedonia and Greece in January 2019, solving the “name issue” after
27 years. As a result, North Macedonia was invited to join NATO.
The recommendation issued on 29 May 2019 by the European Commission
to open accession negotiations to join the EU was another step echoing
the aspiration of the vast majority of the population for Euro-Atlantic
integration.
89. The first and second rounds of the presidential election were
held, respectively, on 21 April and 5 May 2019 and observed by an
Assembly ad hoc delegation. It concluded that voters were able to
make their choice freely in a calm atmosphere. Candidates campaigned
without obstacles and fundamental freedoms were respected.
Note In a welcome development, the
election was untainted by the abuse of administrative resources, and
public employees maintained a clear distinction between their official
and political activities and did not use State resources during
the campaign. The delegation was equally complimentary of the media,
which provided impartial coverage and presented a variety of information
about the candidates and the political parties that supported them,
allowing voters to make an informed choice. Nevertheless, some recurrent
problems in the electoral process remain unaddressed, in particular
the need to reform the electoral code and, in general, the political
system, to re-engage citizens and to ensure their active participation,
regardless of ethnic origin. Many previous recommendations of the
Venice Commission and ODIHR concerning the legal framework had still
not been implemented, including those relating to election financing
and election complaints and appeals.
90. It was in the context of these events that the co-rapporteurs
Ms Lise Christoffersen (Norway, SOC), and Mr Valeriu Ghiletchi (Republic
of Moldova, EPP/CD) conducted a fact-finding visit from 28-31 May
2019. In a statement issued upon the conclusion of their mission
to Skopje, the rapporteurs commended the various positive developments
that have taken place in North Macedonia.
Note These
included the setting-up of a new State Commission for the prevention
of corruption and conflict of interest, which has already begun
to deal with alleged cases of nepotism. The rapporteurs further
welcomed the willingness expressed by the authorities to work with
the Council of Europe and to take due account of recommendations
issued by the Venice Commission and GRECO. At the same time, the
rapporteurs called upon the authorities to address online hate speech
and to ensure that the various positive trends are confirmed by
the full implementation of the newly adopted laws and by the delivery
of tangible results.
91. A draft report was subsequently presented by the co-rapporteurs
and approved on 10 September 2019 by the Monitoring Committee. The
committee also appointed Mr Aleksander Pociej (Poland, EPP/CD) as
co-rapporteur in order to replace Mr Ghiletchi, who had left the
Assembly.
92. Through
Resolution
2304 (2019) debated on 2 October 2019, the Assembly commended the
main political parties for reaching the Pržino Agreements and solving,
through negotiations, the political crisis. To recall, the two yearlong
crisis began following the release of illegally wire-taped conversations,
which revealed direct involvement of senior government officials
in electoral fraud and other corrupt activities. The crisis then ended
with resignation of Prime Minister Gruevski, the signing of the
accords, the establishment of a technocratic government and the
holding of early parliamentary elections. The resolution further
welcomed the constructive attitude of the main opposition parties,
who participated actively in the work of the parliament and enabled
the adoption of important pieces of legislation required to fulfil
the country’s EU accession aspiration. Regarding the fight against
corruption, the Assembly welcomed the outstanding progress shown
by the “Special Prosecutor for Crimes Related to and Arising from
the Content of the Illegal Interception of Communications,” which
has pressed charges in 20 high level cases and indicted more than
100 people in at least 18 high cases of serious criminal offenses.
Another noteworthy development included the government’s ambitious
plan of reform (the so-called 3-6-9 Plan and Plan 18), which is
based on the urgent priorities and recommendations identified by
the European Commission Senior Expert Group (so-called Priebe Report)
in four key areas: reforms of the judicial system, the security
services, public administration and anti-corruption policies. This
led to the adoption of the laws on the courts and the judicial council,
in line with Venice Commission recommendations. The institution
of the ombudsman was strengthened, as was oversight over police
forces. A new Law on the intelligence was also passed in an attempt
to address problems arising from the illegal interception of wire-taped
conversations,
93. That being said, the Assembly made calls for improvement in
a number of areas, including the implementation of recommendations
by GRECO and the CPT. With these issues in mind, the Assembly resolved
to maintain the post-monitoring dialogue with North Macedonia, and
to assess, in its next report, the progress made in the following
areas: the further consolidation of the sustainability and functioning
of democratic institution; the independence of the judiciary, notably
the strengthening of the independence and accountability of judges
and prosecutors; the fight against corruption; the consolidation
of its electoral framework, in line with recommendations from the
Venice Commission and the Assembly election observation mission
reports; and the pursuance of inclusive policies aimed at securing
the rights of the minorities, including for the Roma community.
Note Since then, following the
decision of the European Union to postpone the decision related
to the opening of the accession negotiations, the Prime minister
decided to call early parliamentary elections, which are to be held
on 12 April 2020.
2.4 Report
on the functioning of democratic institutions in Poland
94. The co-rapporteurs made a fact
finding visit to Warsaw on 5 and 6 September 2019. On 11 December 2019,
the committee adopted the report and draft resolution on the functioning
of democratic institutions in Poland, for presentation at the January
2020 Assembly part-session.
95. In their report, the co-rapporteurs outline the political
and constitutional crisis that evolved in Poland following the 2015
parliamentary elections and the establishment of a new governing
majority. In the view of the ruling party, its overwhelming election
victory gave it a clear popular mandate for profound reforms to
the political and social system in the country. The judiciary was
the priority subject for reforms for two reasons. Firstly, there
was an increasing dissatisfaction among the Polish population towards
the judiciary and the efficient and impartial administration of
justice. Secondly, in the view of the new authorities, the justice
system and the judiciary were key areas of the entrenchment of the
previous ruling elites that undermined its impartiality, and that
was affecting both the reform programme of the new authorities and
the effective administration of justice in Poland.
96. While the Polish authorities not only have the right, but
indeed the obligation, to address shortcomings in the justice system
with a view to increasing its independence and the impartial administration
of justice, it is important that these reforms are fully in line
with European standards. It is equally important that such reforms strengthen
judicial independence and the rule of law, and that they do not
weaken or undermine them. In addition, it would be unacceptable
if such reforms would amount to bringing the judiciary under the
control of the executive or legislature, or even worse, political
control of the ruling majority. Regrettably and contrary to these
principles, the reforms of the Polish justice system in numerous
aspects run counter to European standards. They cumulatively undermine
and severely damage the independence of the judiciary and the rule of
law in Poland. Moreover, the reforms have made the judicial system
vulnerable to political interference and attempts to bring it under
political control of the executive, which challenges the very principles
of a democratic State governed by the rule of law.
97. The concerns about the independence of the Polish judiciary
and justice system, and adherence to the rule of law directly affects
Europe as a whole. The questions about the independence of the justice
system and the respect for the rule of law are therefore not be
considered as internal issues for Poland.
98. Two aspects of the reform are especially worrisome and of
concern: namely, the vulnerability of the newly reformed justice
system to political abuse and manipulation; and the centralisation
of excessive powers over the judiciary in the hands of the Minister
of Justice and, to a lesser extent, the President of Poland. The reported
abuse of disciplinary proceedings against judges and prosecutors,
and the smear campaigns organised against them show that this vulnerability
to abuse and politicisation is unfortunately not a hypothetical
question. The concentration of excessive powers with regard to the
judiciary undermines its independence and discredits the rule of
law in Poland and needs to be addressed without delay.
99. While focussing on judicial reform, the rapporteurs also expressed
their concern about the fact that the harsh and intolerant political
discourse in the Polish political environment has created an increasingly permissive
climate, and fostered a perception of impunity for, hate speech
and intolerant behaviour against minorities and other vulnerable
groups. This is unacceptable and should be addressed by the authorities.
100. On 24 October 2019, following the challenges to the results
of the elections for the Polish Senate by both ruling party and
opposition, the co-rapporteurs issued a statement in which they
expressed their serious concern about the vulnerability of the Chamber
on Extraordinary Control and Public Affairs of the Supreme Court,
which is responsible for hearing election related complaints. They
noted that it was important for the democratic process that any
election complaints are adjudicated, and perceived as being adjudicated, impartially
and in line with European standards. Noting the questions raised
about the perceived independence and impartiality of the Chamber
on Extraordinary Control and Public Affairs, they urged the Supreme
Court to ensure the utmost transparency and impartiality in handling
these appeals. It should be noted that all 6 appeals launched by
the governing party were declared inadmissible by the Chamber on
Extraordinary Control and Public Affairs of the Supreme Court. At
the time of writing, a decision on the 3 appeals launched by the opposition
is still pending
3 Proposals
to improve the efficiency of the work of the committee and to clarify
unclarities and inconsistencies in the rules of procedure that govern
the work of the committee.
101. The updated framework for the
preparation of the periodic review reports brought to light a number
of unclarities and inconsistencies in the rules of procedure that
govern the work of the committee, and specifically
Resolution1115 (1997) as amended. I will make a number of suggestions to address
these issues in the third and last part of this report.
102. A key question has been the authority of the committee to
decide which countries will be selected for a periodic review. The
terms of reference of the committee are perfectly clear in this
respect, the committee is tasked with ensuring and assessing the
fulfilment of obligations assumed by all member States under the Council
of Europe Statute, the European Convention on Human Rights and all
other Council of Europe to which they are party. In other words,
the committee is permanently seized to monitor the membership obligations, and
where relevant the accession commitments, of all Council of Europe
member States. In addition, with regard to the preparation of the
periodic review reports,
Resolution
1115 (1997) as amended, specifies that the committee will carry
out periodic reviews of countries, on a country per country basis.
In
Resolution 2261 (2019), the Assembly agreed that the selection of countries
for periodic review would be made by the committee, according to
its internal working methods. In particular, the resolution stipulated
that the selection would be based on: “substitutive grounds, and
no longer by alphabetical order, while maintaining the objective of
producing, over time, periodic reviews on all member States.”
103. However,
Resolution
1115 (1997), was not amended to reflect this new procedure, regrettably
allowing for some confusion and misunderstanding. When the committee
presented its first list of countries selected for periodic review,
the Bureau of the Assembly interpreted this as a request by the
Monitoring Committee to be seized for periodic review reports on
the countries selected, and not as a simple act of declaration as
it was meant. As a result, the Bureau removed one country from the
list of countries for periodic review established by the committee.
104. This decision was unanimously deplored by the committee, which
felt that this ran counter to the terms of reference of the committee
and the Rules of Procedure and would entrench a disproportionate
arbitrariness in the selection of countries for periodic review
that would undermine the objectivity and impartiality of the procedure
as a whole. The committee therefore decided to ask the Bureau to
request an opinion from the Committee on Rules of Procedure, Immunities
and Institutional Affairs on the rights of the committee in this matter,
including with regard to the need to be explicitly seized for individual
periodic review reports.
105. In order to avoid any perception of double standards being
applied, the committee decided to suspend the preparation of the
other three periodic review reports until this issue has been resolved.
To avoid any repetition of this situation as a result of unclarity
of the rules,
Resolution
1115 (1997) should be amended to explicitly state that “The Monitoring
Committee is seized to prepare regular periodic reviews on all Council
of Europe member States that are not under a full monitoring procedure
or engaged in a post-monitoring dialogue. The order and frequency
of these reports would be decided upon by the committee in accordance
with its internal working methods based on substantive grounds,
with the objective of producing, over time, periodic review reports
on all member States.” At the same time, the internal working methods
referred to should be further strengthened to exclude any vulnerability
to partiality, perceived or real.
106. It is further important to clarify which reports the authorities
of the country in question are requested to provide comments on,
and the period given to them to do so. In the case of a report on
the honouring of obligations and commitments of a country under
a full monitoring procedure, the authorities and delegation of the
country in question are asked to provide comments on the preliminary
draft report within a period of no longer than three months. Although
not explicitly provided for in the rules, a similar practice has
been established for periodic review reports and reports on the
post monitoring dialogue. Only in the case of reports on the functioning
of democratic institutions – which are meant to allow the committee
to respond quickly, and to a narrower scope, of developments in
a country – are the comments of the authorities not required. It
would be important to codify this practice clearly in the rules
governing the committee.
107. At the same time, the three-month period given to the authorities
to provide their comments has proven to be too long and is hindering
the effectiveness of the reporting procedure. I therefore propose
that this period be reduced to six weeks for all the reports where
comments are required. In order to ensure that equal time is given
to all countries concerned, all national banking holidays falling
within the 6 week period should be compensated for by adding a similar
number of days to the deadline for providing comments. I therefore propose
to replace paragraph 14 of the terms of reference with the following
text: “In the case of reports on the honouring of obligations and
commitments; periodic review reports on the honouring of membership obligations;
and reports on the post-monitoring dialogue, the authorities of
the country in question will be given a six week period to provide
their comments on the preliminary draft report agreed to be transmitted
to them by the committee. These comments will be discussed as part
of the consideration of the draft report by the committee. No comments
by the authorities are required for the consideration of a draft
report on the functioning of democratic institutions.”
108. The rules regarding the number of rapporteurs for a report
are inconsistent. According to Rule 50.1, the Monitoring Committee
shall appoint two rapporteurs for each subject.
Resolution 1115 (1997) and the terms of reference specifically mention that
the committee shall appoint two rapporteurs for the following reports: opinions
on the request for the opening of a monitoring procedure, reports
on the honouring of obligations and commitments, reports on the
functioning of democratic institutions; and reports on the post-monitoring dialogue.
These two texts are silent on the number of rapporteurs the committee
should appoint for other reports. As a result, the committee has
appointed one rapporteur for reports that are not specifically mentioned in
Resolution 1115 (1997) and the terms of reference of the committee. Until now,
these were progress reports and reports on examination of credentials.
109. A new situation arises with the periodic review reports which
are not specifically mentioned in the above-mentioned rules. It
would go against the spirit of the rules, if the committee were
to appoint only one rapporteur for the periodic review reports.
This should be clarified in the rules. I therefore propose that
a new paragraph will be added to
Resolution 1115 (1997) that states: “In line with Rule 50.1, unless otherwise
specified, the Monitoring Committee shall appoint two rapporteurs,
from different countries and political groups, for country specific
reports on the honouring of obligations and commitments, reports
on the functioning of democratic institutions, reports on the post-monitoring
dialogue and reports on periodic reviews.”
110. In this context, it is important to note that the committee
has found it increasingly more difficult to find rapporteurs with
sufficient time available to execute their tasks as country rapporteur,
especially with regard to the regular country visits. Therefore,
the decision to appoint two rapporteurs for each country report
should be accompanied by an agreement that, in the event the co-rapporteurs
cannot come to a joint date for a visit, they can agree that a fact-finding
visit would be conducted by a single rapporteur. It should be emphasised
that this should take place in exceptional circumstances only, and
not become the rule. Moreover, any statement or information note
produced after the visit should still have the agreement of both
rapporteurs. Such an agreement can be dealt with within the framework
of the internal working methods of the committee and does not require
amending
Resolution 1115
(1997) or the terms of reference of the committee.
111. The composition of the Monitoring Committee, which is one
of the safeguards for its neutrality and impartiality, is another
important issue that deserves reflection. It is regulated by
Resolution 1115 (1997) (see articles 6 -8), which empowers political groups
to nominate candidates who are appointed by the Bureau and validated
by the Assembly. The political groups are invited by the resolution
to submit more candidates than they are entitled to in order to
enable the Bureau to arrive at the desired geographical balance.
Despite this provision, the actual membership of the committee does
not systematically reflect the Assembly’s membership. For example,
as of 21 November 2019, while 11 seats are vacant, the following
countries were not represented in the committee: Andorra, Azerbaijan,
Bosnia and Herzegovina,
Note Liechtenstein, Luxembourg, Malta, Monaco,
Montenegro, the Russian Federation, San Marino and Ukraine. Given
that the committee is tasked with monitoring all Council of Europe
member States, it is essential that all member States are represented,
by both the ruling majorities and opposition parties within the
countries concerned. Even if
Resolution
1115 (1997) obliges us to systematically invite a representative
of a majority and opposition in the country which is discussed in
the committee (if they are not represented by members), this cannot
offer advantages of permanent participation in discussions, exchanges
of experience and good practices.
112. Therefore, it could be more beneficial for the committee,
if its members were nominated by national delegations and not by
political groups. In such a scenario each delegation would be entitled
to designate two members, one representing the governing majority
and another one representing the opposition. In order to ensure
the proper representation of the political groups in such a scenario,
it should be possible for each group to be represented by either
its chairperson or duly appointed representative. Changing the composition
of the Monitoring Committee would need a change of the Rules of
Procedure of the Assembly, which is the prerogative of the Committee
on Rules of Procedure, Immunities and Institutional Affairs and
therefore would need to be prepared in co-operation with this committee.
The committee should reflect on the possibility to change its composition
in the course of 2020 and return to this issue in the framework
of the 2020 progress report.
113. At the same time, it should be emphasised that even the presence
of one member of the opposition and one member of the ruling majority
does not necessarily mean that all relevant political views in a
country are reflected in the debate. Following positive experiences
in the past, the committee could therefore consider organising a
hearing with all main political forces when the committee is considering
the comments of the authorities on a preliminary draft report on
the honouring of obligations and commitments, the post-monitoring dialogue
or periodic reviews on the honouring of membership obligations.
