Post-monitoring dialogue with Montenegro
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 21 April 2021 (13th sitting) (see Doc. 15132, report of the Committee on the Honouring of Obligations
and Commitments by Member States of the Council of Europe (Monitoring
Committee) and Doc. 15132 addendum, co-rapporteurs: Mr Damien Cottier and Mr Emanuelis
Zingeris). Text adopted by the Assembly on
21 April 2021 (13th sitting).
1. Montenegro joined the Council of
Europe in 2007. It was subject to the full monitoring procedure
until 2015. The Parliamentary Assembly refers to its
Resolution 2030 (2015) “The
honouring of obligations and commitments by Montenegro”, in which
it decided to close the monitoring procedure and to open a post-monitoring
dialogue on four key issues, namely the independence of the judiciary,
the trust in the electoral process, the fight against corruption
and the situation of the media. The Assembly also gave itself mandate
to follow up on developments in the fields of the rights of minorities,
the fight against discrimination and the situation of refugees and
internally displaced persons.
2. The Assembly commends the Montenegrin authorities for demonstrating
sustained political will and commitment to fully respecting their
obligations, as confirmed by their continued co-operation with Council
of Europe monitoring mechanisms, legal experts and the European
Commission for Democracy through Law (Venice Commission). The Assembly
also welcomes the level of their involvement in the post-monitoring dialogue.
3. The Assembly reiterates that Montenegro continues to play
a positive role in the stabilisation of the region and is a reliable
and constructive partner that is involved in several regional and
multilateral initiatives.
4. In light of the developments that have occurred since 2015,
the Assembly has assessed progress made in the four key areas and
other outstanding fields of concern identified in 2015.
5. As regards the independence of the judiciary, the Assembly:
5.1 welcomes the implementation
by the Montenegrin authorities of constitutional amendments related
to the judiciary, which were adopted in July 2013, and the setting
up of a comprehensive legal framework regulating the courts, the
State prosecutors’ offices, the Judicial Council and judges, the Prosecutorial
Council, and the Constitutional Court; acknowledges the important
scale of the changes that this framework introduced in the judiciary
and that they were mostly implemented in line with the recommendations
of the Venice Commission;
5.2 commends the Montenegrin authorities for the genuine improvement
in the training for judicial professions, notably thanks to the
Centre for Training in Judiciary and State Prosecution, which should have
long-lasting effects on the professionalism of new magistrates,
and thereby on the efficiency of the justice system;
5.3 deeply regrets the re-appointments by the Judicial Council
in 2019 and 2020 of several presidents of basic courts and the President
of the Supreme Court, who had already served two terms or more.
The limitation of mandates to two terms, which has been enshrined
in the constitution since 2013 and in the law, and which was aimed
at preventing the over-concentration of powers within the judiciary,
has been violated in its spirit, if not in its letter;
5.4 notes that, after wrong signals were sent in 2018 with
regard to the transparency of judges’ selection and appointments,
the Judicial Council seemed to have improved its procedure of selection
in 2020;
5.5 deeply regrets, in accordance with the European Commission
and the Group of States against Corruption (GRECO), that no progress
has been made in reviewing the disciplinary framework for judges and
prosecutors;
5.6 commends the decision of the Montenegrin authorities to
request the opinion of the Venice Commission on the draft laws amending
the Law on the State Prosecutor’s Office and the Law on the Prosecutor’s
Office for Organised Crime and Corruption and to suspend their adoption
until after the opinion is issued; calls on the authorities to fully
implement the recommendations formulated by the Venice Commission
and, in particular, not to ignore those related to the security
of tenure and the risk of politicisation of lay members of the Prosecutorial
Council.
6. As regards trust in the electoral process, the Assembly:
6.1 is concerned that, apart from
the voter register, no progress has been made in the implementation of
the five requirements set by
Resolution
2030 (2015);
6.2 strongly emphasises that the parliament is the arena where
political competition should take place, that boycotting its work
does not comply with the European way of participating in this competition and
that reforming the legal framework on electoral campaigns cannot
take place in an inclusive manner if major parties from the opposition
do not take part in it;
6.3 recalls that every political group in the parliament shares
the responsibility for the creation of an atmosphere and a culture
of parliamentarian democracy;
6.4 commends the political maturity demonstrated by both the
new majority and the new opposition in the immediate aftermath of
the elections held in August 2020, which allowed for a peaceful
shift of power, and urges them to continue with this positive trend;
at the same time, the Assembly regrets that the electoral legal
framework remained largely unchanged during the last general elections,
despite the repeated recommendations of the Office for Democratic
Institutions and Human Rights of the Organization for Security and
Co-operation in Europe (OSCE/ODIHR) to address its flaws and limitations,
and that practices contrary to OSCE/ODIHR principles were once again
observed during these elections, notably in the fields of abuse
of State resources, independent media coverage and campaign financing.
7. As regards the fight against corruption, the Assembly:
7.1 takes note of the implementation
of the Law on Prevention of Corruption and the Law on Prevention
of Conflict of Interest, as well as of preventive policies set up
by the Agency for the Prevention of Corruption;
7.2 regrets that the Law on the Financing of Political Entities
and Election Campaigns had limited effects on the prevention of
and punishment for illegal donations, as stated by the ad hoc committees
of the Bureau of the Assembly for the observation of the parliamentary
elections in 2016 and the presidential election in 2018;
7.3 welcomes the passing of the Law on the Special Public
Prosecutor’s Office, which office is tasked with fighting corruption
and organised crime, the continuous increase of its resources, as
well as those of the Special Police Unit, and the recent results
obtained against Montenegrin crime groups thanks to the increased
participation in international police co-operation;
7.4 takes note of the “initial track record”, as stated by
the European Commission, of investigations, prosecution and final
convictions in corruption cases;
7.5 congratulates the Montenegrin authorities for having satisfactorily
implemented 12 out of 14 recommendations made by GRECO in the Third
Evaluation Round on transparency of party funding, and 8 out of
11 in the Fourth Evaluation Round on corruption prevention in respect
of members of parliament, judges and prosecutors, concluded in December
2019;
7.6 is, however, concerned with the assessment by the European
Commission that the criminal justice system appears generally lenient,
with sentences, fines and asset recoveries disproportionately low
compared with the gravity of the crimes.
8. As regards the situation of the media, the Assembly:
8.1 welcomes the visible efforts
of both the prosecutors and the judges to address the attacks against journalists;
welcomes moreover the efforts by the police forces to arrest the
perpetrators and suspects of such attacks, as well as the government’s
public support of the commission for monitoring actions of the competent
authorities in the investigation of cases of threats and violence
against journalists, assassinations of journalists and attacks on
media property, and the recent and adequate involvement of the parliament
in debating the reports of this commission;
8.2 remains very concerned, however, by the threats and violence
against journalists, recently demonstrated in several cases;
8.3 strongly welcomes the ongoing efforts by the Montenegrin
authorities to revise the legal framework on the media in close
co-operation with the Council of Europe;
8.4 regrets the dismissals in 2017 and 2018 of members of
the councils of the national public broadcaster (Radio Televizija
Crne Gore, RTCG) and the Agency for Electronic Media by the parliament following
investigations led by the Agency for the Prevention of Corruption,
as they could be seen as political interference;
8.5 is particularly worried by the tendency of public entities
to restrict access to public documents, which contradicts the acute
need for transparency in Montenegro and access to information for
the media; the Assembly fully recognises that freedom of expression
needs to be regulated but it stresses that this regulation must
be in line with European standards and that the concept of “abuse
of the right to information” is not appropriate.
9. As regards the rights of minorities and the fight against
discrimination, the Assembly:
9.1 welcomes
the implementation of the mechanism for the prevention of torture
under the Optional Protocol to the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment of the
United Nations and the mechanism for the protection against discrimination
under the Convention on the Elimination of All Forms of Racial Discrimination
of the United Nations. It also notes that, for the latter, the competences
of the Protector of Human Rights and Freedoms (ombudsman) were clarified
in 2017;
9.2 welcomes the adoption in 2017 of the Law on Minority Rights
and Freedoms, which complied with four out of five recommendations
of the Venice Commission;
9.3 expresses its satisfaction at the very positive opinion
on Montenegro from the Advisory Committee on the Framework Convention
for the Protection of National Minorities of the Council of Europe
in March 2019 and calls upon the Montenegrin authorities to undertake
the urgent efforts benefitting Roma and Egyptians mentioned in the
opinion;
9.4 commends Montenegro for setting a good example for the
whole region when it comes to the level of protection provided to
lesbian, gay, bisexual, trans and intersex (LGBTI) people, and welcomes the
adoption of the Law on Life Partnership of Same-Sex Partners by
the parliament in July 2020.
10. As regards the situation of refugees and internally displaced
persons, the Assembly takes note of the positive opinion of the
Advisory Committee on the progress made by Montenegro in resolving
the issue of displaced persons, mostly Roma and Egyptians who arrived
in Montenegro in the late 1990s, and almost completing the regularisation
of their legal status.
11. As regards the Law on Freedom of Religion or Belief and the
Legal Status of Religious Communities (Law on Freedom of Religion)
passed in December 2019, the Assembly:
11.1 emphasises that the regulation of religious communities
is a matter of national sovereignty that should be exercised without
any foreign interference;
11.2 regrets that the part of the law related to “property
rights” created a very divisive climate, while most of the provisions
constitute genuine progress compared to the previous legal framework,
as stated by the Venice Commission in its opinion on the draft law;
11.3 is fully aware of the understandable concerns of members
of the Serbian Orthodox Church, given the large extent of possible
transfers of properties from the church to the Montenegrin State,
on the ground that they are “cultural heritage”, which could possibly
mean most religious properties built before 1918;
11.4 welcomes the adoption of amendments to the law on 28 December
2020, as a solution that both respects democracy and the rule of
law, and focuses on the controversial provisions, while retaining those
that constitute genuine progress; at the same time, the Assembly
regrets that the consultation of all religious communities on these
amendments was not fully inclusive.
12. In this context, the Assembly resolves to continue a post-monitoring
dialogue with Montenegro in the following areas.
13. As regards the independence of the judiciary, the Assembly
will closely monitor:
13.1 the implementation
of recommendation v of GRECO’s
Fourth Evaluation Round, and in particular the spirit of the constitutional
and legislative changes regarding the two-term limitation for presidents
of courts; this could be achieved by a change in the legal framework,
or a change of practice initiated by the judiciary itself;
13.2 whether the transparency in the selection of magistrates
and in their appointments continues to be applied;
13.3 whether the enforcement of the code of ethics and disciplinary
accountability for magistrates is improving.
14. As regards trust in the electoral process, the Assembly will
monitor progress in re-starting, just after the elections, a comprehensive
and inclusive process on reforming the electoral framework, in line
with the recommendations of OSCE/ODIHR and the Venice Commission,
and in line with the recommendations of the Congress of Local and
Regional Authorities of the Council of Europe, especially when it
comes to holding local elections in a single day and at least six
months apart from parliamentary elections.
15. As regards the fight against corruption, the Assembly will
monitor progress in:
15.1 addressing
the loopholes in the criminal justice system that make it appear
as generally lenient;
15.2 addressing the risks pointed out both by the Venice Commission
and the European Commission of de facto control
of the executive power in investigations led by the Special Police
Unit under the supervision of the Special Public Prosecutor’s Office,
given the hierarchical link between the Special Police Unit members,
including its head, and the Police Directorate;
15.3 building on the initial track records in the fight against
corruption and organised crime.
16. As regards the situation of the media, the Assembly will closely
monitor progress in:
16.1 changing
irreversibly the climate of impunity concerning attacks against
journalists, by continuing to address them directly, but also by
enforcing transparency in cases where the competent authorities fail
to investigate properly and in due time;
16.2 refraining from restricting access to information;
16.3 revising the mechanisms that are currently addressing
political interference in the media, including the composition of
the RTCG and the Agency for Electronic Media.
17. As regards the Law on Freedom of Religion, the Assembly will
monitor whether the implementation of the law will be in line with
European standards, as well as the recommendations of the Venice
Commission.
18. As regards the situation of minorities, the Assembly will
closely monitor the investigations into allegations of hate crimes
and ethnically and religiously motivated attacks that have taken
place since the announcement of the August 2020 election results.
19. The Assembly resolves to assess the progress made in the aforementioned
areas after the general election held in 2020.
