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Resolution 1724 (2010) Final version
Honouring of obligations and commitments by Montenegro
1. Since joining the Council of Europe
in 2007, Montenegro has made substantial progress in implementing its
post-accession commitments and statutory obligations. To date, it
has signed and ratified 67 Council of Europe conventions, thus completing
a great number, although not all, of its formal commitments. It
actively co-operates with the Council of Europe and regularly asks
the advice of the European Commission for Democracy through Law
(Venice Commission) in the course of preparation of legislation.
2. The Parliamentary Assembly refers to the reports of its ad
hoc committees on the observation of the 2008 presidential election
and 2009 parliamentary elections and welcomes the fact that these
elections met almost all international standards. It notes, however,
that further democratic developments are necessary, in particular
with respect to strengthening public confidence in the electoral
process, eliminating the blurring of state and party structures,
as well as harmonising the electoral framework with Council of Europe
standards.
3. The Assembly welcomes the progress Montenegro has achieved
in the process of European integration. It notes that, on 15 December
2008, Montenegro formally submitted an application for membership
of the European Union. It follows closely the process of preparation
by the European Commission of the opinion on Montenegro’s application
and expects the European Commission to make full use of the reports
of the Assembly and of the Council of Europe monitoring bodies in
the preparation of this opinion. The Assembly furthermore congratulates
Montenegro for its marked progress in fulfilling the visa liberalisation
benchmarks set by the European Commission, which culminated in the
introduction, as of 19 December 2009, of a visa-free regime for
Montenegro.
4. The Assembly congratulates Montenegro for having established
and for maintaining good neighbourly relations with the countries
of the region. Montenegro is a reliable and constructive partner
which plays a stabilising role in the region.
5. As far as the implementation of post-accession commitments
is concerned, the Assembly welcomes the fact that Montenegro has
complied with a number of undertakings which were due to be completed
within the first two years of Council of Europe membership. In particular,
in October 2007 Montenegro adopted a new constitution which received
a generally positive assessment of the Venice Commission. Furthermore,
a number of important laws were adopted in order to implement the
constitutional provisions and harmonise domestic legislation with
Council of Europe standards. However, there have been setbacks as
well and not all of the deadlines originally foreseen for the adoption
of the legislation relating to the implementation of the post-accession
commitments have been respected. Moreover, some important commitments
have not yet been honoured and the implementation of some of the
laws adopted needs to be carefully monitored.
6. In the light of these considerations, the Assembly calls upon
the Montenegrin authorities to maintain the current reform dynamic
in order to offset the delays and complete the implementation of
the remaining post-accession commitments.
7. As regards the signing and ratification of Council of Europe
conventions, the Assembly:
7.1. notes
that, to date, Montenegro has signed and ratified 67 Council of
Europe conventions, thus almost fulfilling the formal post-accession
commitments, while regretting that, at times, the deadlines originally
foreseen have not been respected;
7.2. encourages the authorities promptly to complete the process
of ratification of the following conventions from the list of post-accession
commitments:
7.2.1. the Council of Europe Convention on
the Avoidance of Statelessness in relation to State Succession (CETS
No. 200);
7.2.2. the European Convention on the Exercise of Children’s
Rights (ETS No. 160);
7.2.3. the Protocol amending the European Convention on the Suppression
of Terrorism (ETS No. 190);
7.2.4. the European Convention on the International Validity
of Criminal Judgments (ETS No. 70);
7.2.5. the European Convention on the Compensation of Victims
of Violent Crimes (ETS No. 116);
7.2.6. the European Outline Convention on Transfrontier Co-operation
between Territorial Communities or Authorities (ETS No. 106);
7.3. moreover, the Assembly calls on the Montenegrin authorities
promptly to sign and ratify the following conventions from the list
of post-accession commitments:
7.3.1. the European Convention
on Nationality (ETS No. 166);
7.3.2. the European Convention on the Non-Applicability of Statutory
Limitation to Crimes against Humanity and War Crimes (ETS No. 82).
8. As regards the constitutional reform, the Assembly:
8.1. welcomes the adoption, on 19
October 2007, of the new constitution which received a generally positive
assessment by the Venice Commission. It notes that the seven minimum
principles prescribed by Assembly Opinion 261 (2007) appear to have
been satisfactorily reflected in the constitution;
8.2. considers that the Assembly recommendations relating to
constitutional reform, in particular, with respect to the direct
applicability in domestic law of international conventions, the
right to an effective remedy, the mandate, appointment procedure
and guarantees of independence of the Ombudsperson, the transitional
application of existing laws pending the adoption of new ones, the
definition of the state of emergency and the legal effects thereof,
as well as the definition of local self-government, have been reflected
in the constitution;
8.3. notes at the same time that, in the opinion of the Venice
Commission, the wording of some provisions of the constitution,
especially, those dealing with human and minority rights, could
be further improved and brought closer to the wording of the Convention
for the Protection of Human Rights and Fundamental Freedoms (ETS
No. 5);
8.4. therefore calls upon the Montenegrin authorities to continue
working with the Venice Commission with a view to ensuring that
the provisions of the constitution are translated into ordinary
legislation and applied in such a way as to give full effect to
the standards of human rights protection guaranteed by the Convention
for the Protection of Human Rights and Fundamental Freedoms.
9. As regards democratic institutions and the domestic legal
system, the Assembly:
9.1. notes
that, over the past two years, the Montenegrin authorities have
adopted a large number of laws with the aim of building a new modern
legal system complying with the new constitution and Council of
Europe standards;
9.2. welcomes the fact that this legislative work was carried
out in close co-operation with the Venice Commission, while regretting
that not all of the experts’ recommendations were taken onboard;
9.3. notes that the capacity of the parliament should be further
strengthened in order to enable parliamentarians to play an active
role in the legislative process, as well as to ensure parliamentary oversight
over the implementation of adopted laws;
9.4. regrets that, contrary to a specific commitment, the Montenegrin
authorities have failed so far to adopt a new law governing the
elections of the members of parliament and that the last parliamentary elections
of 29 March 2009 were held in accordance with the old Election Law,
which does not comply with Council of Europe standards;
9.5. welcomes the adoption, in July 2008, of the Law on the
Financing of Political Parties, while regretting that the financing
of parties and election campaigns still lacks transparency;
9.6. welcomes the adoption, in February 2008, by the Joint
Central-Local Government Commission of the Action Plan on Local
Self-Government Reform and encourages the authorities to continue
the implementation of a comprehensive decentralisation reform;
9.7. welcomes the introduction of a new system of funding of
the public service broadcaster, with the aim of ensuring its sustainability,
efficiency and independence;
9.8. therefore, the Assembly calls upon the Montenegrin authorities
to:
9.8.1. promptly adopt a new law governing the elections
of members of parliament, in close co-operation with the Venice
Commission;
9.8.2. amend the Law on the Financing of Political Parties, in
the light of the recommendations of election observers and increase
transparency in the funding of political parties and election campaigns;
9.8.3. strengthen the capacity of the parliament, in particular,
by making adequate resources and premises available to it, as well
as by using the Assembly’s expertise and funding opportunities offered,
in particular within the framework of the European Union’s Instrument
for Pre-Accession;
9.8.4. strengthen mechanisms of parliamentary oversight over
the activities of the government, in particular with respect to
the implementation of laws adopted by parliament, and strengthen
the financial independence of parliament;
9.8.5. continue the comprehensive local government reform, with
a view to devolving sectoral responsibilities to municipalities,
strengthening their financial basis, building their capacities and improving
public ethics at local level.
10. As regards the rule of law, the Assembly:
10.1. welcomes the adoption of the
laws on courts, the high judicial council and the prosecutor’s office, which
were drafted in co-operation with the Venice Commission;
10.2. welcomes the adoption and implementation by the Montenegrin
authorities of the Judicial Reform Strategy and Action Plan, while
regretting the fact that the funds allocated to the functioning
of the judiciary still represent a rather small share of the state
budget;
10.3. welcomes the adoption of the Law on the Protection of
the Right to a Fair Trail within reasonable time, the implementation
of which appears to have contributed to reducing the backlog of
cases in domestic courts;
10.4. welcomes the adoption of the new Code of Criminal Procedure
and Code of Civil Procedure, which provide for the possibility of
re-examining or re-opening cases at domestic level, following a decision
by the European Court of Human Rights (the Court);
10.5. regrets, however, that the domestic judges are not provided
systematically with translations of the judgments of the Court and
notes that a sustainable system of initial and in-service training
in the Court’s case law should be introduced;
10.6. welcomes the good co-operation of the Montenegrin authorities
with the Group of States against Corruption (GRECO) and the Committee
of Experts on the Evaluation of Anti-Money Laundering Measures and
the Financing of Terrorism (MONEYVAL) and the progress they are
making in fighting corruption, organised crime and money laundering,
while noting that the public perception of the judiciary and prosecutor’s
office could still be improved, in particular, as regards corruption
risks;
10.7. therefore, the Assembly calls upon the Montenegrin authorities
to:
10.7.1. continue the reform of the judiciary and prosecutor’s
office with a view to guaranteeing their full independence and professionalism,
thereby improving their public image;
10.7.2. further strengthen the financial situation of the courts;
10.7.3. further strengthen the existing mechanisms of initial
and in-service training of judges in the case law of the Court,
and provide them systematically with translations of the Court’s
case law;
10.7.4. continue reforms in the field of the fight against corruption
and money laundering, in line with the recommendations of GRECO
and MONEYVAL.
11. As regards human rights, the Assembly:
11.1. welcomes the constitutional guarantees of the independence
of the Ombudsperson, as well as the efforts of the authorities aimed
at strengthening the operational capacity of the Ombudsperson’s office,
noting, however, that further improvements to the Law on the Ombudsperson
could be made, in the light of the opinion of the Venice Commission;
11.2. regrets that the constitutional provisions on affirmative
action in favour of minorities have not yet been implemented in
ordinary legislation, and that the 2006 Law on Minority Rights contains
a citizenship-based definition of minority rights;
11.3. regrets that the Law on the Prohibition of Discrimination
has not yet been adopted, while noting that consultations with the
Venice Commission are ongoing;
11.4. regrets that some groups of Montenegrin society, especially
the lesbian, gay, bi-sexual and transgender population (LGBT), are
frequently subjected to discrimination and are targets of intimidation and
physical violence;
11.5. notes that the Montenegrin media sector is diverse and
vibrant, while regretting complaints from journalists about pressure
which is being put on them, which hinders their right to freedom
of expression;
11.6. welcomes the efforts of the Montenegrin authorities to
reform the education system and provide children from the minority
communities with the opportunity to study in their mother tongue
and attend courses dealing with the culture and traditions of their
communities, in the spirit of promoting tolerance and respect for
others;
11.7. welcomes the adoption and implementation of the strategy
for the improvement of the condition of Roma;
11.8. welcomes the efforts of the Montenegrin authorities to
ensure equality between men and women in law, in the family, society
and economy, while noting that the representation of women in politics should
be improved;
11.9. welcomes the co-operation between the Montenegrin authorities
and the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT), the publication of the
most recent CPT report, as well as the efforts of the authorities
to improve conditions of detention;
11.10. welcomes the ratification by Montenegro of the Council
of Europe Convention on Action against Trafficking in Human Beings
(CETS No. 197) and the efforts of the authorities to combat trafficking
in human beings;
11.11. takes note of the adoption of the Law on Citizenship and
invites the Montenegrin authorities to continue negotiations with
neighbouring countries with a view to concluding agreements on dual citizenship;
11.12. regrets that the new Asylum Law does not fully comply
with the requirements of the United Nations Convention relating
to the Status of Refugees;
11.13. closely follows the actions of the Montenegrin authorities
aimed at re-registering displaced persons with a view to negotiating
their sustainable return or ensuring local integration of those
who decide to stay in Montenegro;
11.14. the Assembly therefore calls upon the Montenegrin authorities
to:
11.14.1. take into account the opinion of the Venice Commission
in finalising the Law on the Prohibition of Discrimination and adopt
this law as a matter of urgency;
11.14.2. continue working on the effective implementation of the
constitutional guarantees of minority rights by revising, where
appropriate, the legislation governing these rights;
11.14.3. take all appropriate actions to investigate all allegations
of torture or ill-treatment, in particular allegations made by persons
detained by the police, and to sanction the perpetrators;
11.14.4. investigate all allegations of violence against human
rights defenders, journalists and the LGBT population, provide appropriate
protection to those concerned, including witness protection, before,
during and after proceedings, prosecute and punish the perpetrators
of these offences, and educate the population, in particular the
police and youth, to accept differences;
11.14.5. implement the principles of Assembly Resolution 1577 (2007) “Towards
the decriminalisation of defamation”, in particular by setting reasonable
and proportionate maxima for awards for damages and interest in
defamation cases so that the viability of a defendant media outlet
is not placed at risk;
11.14.6. fully co-operate with the CPT in the implementation of
its recommendations and establish a national preventive mechanism
for the prevention of torture in accordance with the United Nations
Optional Protocol to the Convention against Torture and other Cruel,
Inhuman or Degrading Treatment of Punishment (OPCAT);
11.14.7. pursue educational reform in order to teach tolerance
and respect for others in schools;
11.14.8. pursue the implementation of the strategy for the improvement
of the condition of Roma;
11.14.9. revise citizenship and asylum legislation, in the light
of the requirements of the United Nations Convention relating to
the Status of Refugees;
11.14.10. continue working on improving the situation of refugees
and displaced persons by removing all discriminatory provisions
in the fields of labour, education, access to property rights, legal
redress and access to citizenship and health services; continue
negotiations with Montenegro’s neighbours with a view to ensuring
the sustainable return of displaced persons or providing local integration
to those who decide to stay in Montenegro;
11.14.11. continue combating trafficking in human beings.
12. The Assembly notes the good co-operation of the Montenegrin
authorities with the International Criminal Tribunal for the former
Yugoslavia and encourages the authorities to continue close collaboration
with it, especially as regards the search for and arrest of indictees
who are still at large.
13. Pending progress in the implementation of the above recommendations,
the Assembly resolves to continue the monitoring procedure with
respect to Montenegro.