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Report | Doc. 11628 | 09 June 2008
The state of democracy in Europe
Functioning of democratic institutions in Europe and progress of the Assembly’s monitoring procedure
Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)
Summary
Throughout the reporting period (April 2007-June 2008), the Monitoring Committee has continued to accompany the 11 countries currently under monitoring procedure (Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Georgia, Moldova, Monaco, Montenegro, Russian Federation, Serbia and Ukraine) and the three countries engaged in post-monitoring dialogue (Bulgaria, Turkey and “the former Yugoslav Republic of Macedonia”) through the process of consolidating their democratic institutions.
The present report assesses both progress and shortcomings with respect to the recurrent issues raised in all these countries, namely: the separation of powers and the role of parliament; elections and electoral reform; political parties and their funding; the fight against corruption; media pluralism; local and regional self-government; conflicts and the role of parliaments in confidence building.
At the same time, periodic reports on the third and last group of 11 member states that are not subject to a monitoring procedure or engaged in post-monitoring dialogue have been prepared and are appended in the addendum to this report: Norway, Poland, Portugal, Romania, San Marino, Slovakia, Slovenia, Spain, Sweden, Switzerland and the United Kingdom.
A number of proposals are also made regarding the relations of the Monitoring Committee with the other Council of Europe monitoring bodies and institutions, including the proposal to organise a hearing as a forum for exchanging ideas and identifying ways and means to improve synergies. The member states are also called upon to set up or enhance national mechanisms in charge of ensuring that appropriate follow-up is given to findings of Council of Europe monitoring bodies. A number of other suggestions – with a view, inter alia, to optimising synergies, capitalising on the monitoring bodies output into the Organisation’s programme of activities and supporting the monitoring bodies’ work by the allocation of additional resources – are addressed to the Committee of Ministers.
A. Draft resolution
(open)1. The Parliamentary Assembly
acknowledges the work carried out by its Monitoring Committee in accompanying
11 countries currently under monitoring (Albania, Armenia, Azerbaijan,
Bosnia and Herzegovina, Georgia, Moldova, Monaco, Montenegro, Russian
Federation, Serbia and Ukraine) and three countries engaged in a
postmonitoring dialogue (Bulgaria, Turkey and “the former Yugoslav
Republic of Macedonia”) through the process of consolidating their
democratic institutions in compliance also with the principles of
the Rule of Law and the protection of human rights.
2. The Assembly welcomes in particular the initiative of the
Monitoring Committee to contribute to its debate on the state of
democracy in Europe by focusing this year’s progress report on the
functioning of democratic institutions in the above-mentioned member
states on the basis of its most recent country monitoring reports. Some
of the latter were prepared under accelerated procedure in order
to enable the Assembly to react quickly and efficiently to urgent
and critical situations, such as:
2.1. the
dissolution of parliament by presidential decree in Ukraine, in
April 2007, after months of political crisis;
2.2. the pre-term presidential elections in Georgia, in January
2008, called in a bid to resolve the political crisis which erupted
in the country after several days of political protest and the declaration
of the state of emergency in November 2007;
2.3. the post-electoral crisis in Armenia, in February 2008,
which led to the declaration of the state of emergency and the tragic
events of 1 March, including 10 deaths and more than a 100 persons wounded;
2.4. the preparation of the presidential elections in Azerbaijan,
in October 2008.
3. On the basis of its Monitoring Committee’s reports, the following
progress and major shortcomings are to be noted.
4. With respect to the separation of powers and the role of parliament:
4.1. Although the role and influence
in political life of parliaments has been gradually reinforced in
a number of member states (Albania, Moldova), much remains to be
done to strengthen parliamentary control over the executive and
improve the checks and balances in Armenia, Azerbaijan, Georgia, Monaco,
the Russian Federation and Ukraine. A proper role and appropriate
rights should be guaranteed for the opposition, in accordance also
with Assembly Resolution
1601 (2008), and political dialogue between the ruling majority
and the opposition, both inside and outside parliament, must be initiated
(Armenia, Azerbaijan) or improved (Georgia);
4.2. Constitutional reform is urgently needed to ensure effective
separation of powers and properly functioning democratic institutions
in Bosnia and Herzegovina, Monaco and Ukraine. It is still required
in Turkey with a view to ensuring full compliance with the European
Convention on Human Rights. The new Constitution has to be properly
implemented in Montenegro. The assistance which the European Commission
for Democracy through Law (Venice Commission) is offering or could
offer to these member states in the process of constitutional revision,
often upon the request of the Monitoring Committee, is of significant
importance;
4.3. The independence of the judiciary from the other branches
of power should be strengthened in Armenia, Azerbaijan, Bulgaria,
Georgia, Monaco, Montenegro, Serbia, the Russian Federation and Ukraine;
5. With respect to elections and electoral reform:
5.1. The Assembly, referring also
to its Resolution 1547
(2007) on the state of human rights and democracy in Europe,
reiterates that holding free and fair elections is an essential
element of a democracy and a prerequisite for building democratic
institutions;
5.2. Throughout the reporting period (April 2007-June 2008),
parliamentary or presidential elections have been held in most states
under monitoring or engaged in a postmonitoring dialogue and were observed
by an Assembly delegation: Armenia, Georgia, Monaco, Montenegro,
the Russian Federation, Serbia, “the former Yugoslav Republic of
Macedonia”, Turkey and Ukraine;
5.3. Electoral reforms are still needed in Albania, Armenia,
Azerbaijan, Georgia, Montenegro, Moldova, Russia, Serbia, Ukraine
and Turkey. In particular, such reforms, possibly with the assistance of
the Venice Commission, should ensure:
5.3.1. that the electoral threshold, which remains too high,
be lowered in particular in the Russian Federation (7%) and Turkey
(10%). In this respect, the Assembly welcomes the lowering of the
electoral threshold to 3% in Bosnia and Herzegovina and to 5% in
Georgia, whereas it regrets the recent decision of the Moldovan
Parliament to raise this threshold for party lists up to 6%;
5.3.2. improved voters’ lists in Albania, Georgia, Montenegro
and Ukraine and the abolition of provisions allowing for persons
travelling abroad during the period prior to elections to be removed
from the voters’ list in Ukraine;
5.3.3. an impartial and transparent election administration in
Armenia and Azerbaijan with a view to restoring public confidence
in the electoral process;
5.3.4. an effective election-related complaints and appeals procedure
in Armenia, Azerbaijan, Georgia and Moldova;
5.3.5. an equal playing field, including an equal and unbiased
campaign coverage, in Armenia, Azerbaijan, Moldova and the Russian
Federation; in the latter, the absence of this condition led the
Assembly observers to conclude that the parliamentary elections
of December 2007 were free but not fair;
5.3.6. proper separation between the state and political parties/candidates
in Montenegro and in the Russian Federation;
5.3.7. that harassment and intimidation of opposition candidates
and supporters are eradicated in Armenia, Azerbaijan, Georgia and
the Russian Federation;
5.3.8. that constitutional and legislative provisions providing
for the recall of peoples’ representatives by the political parties
(the so-called “imperative mandate”) should be abrogated in the
Russian Federation, Serbia and Ukraine;
5.3.9. that the legislative provisions in Serbia and in Montenegro
allowing political parties to change after the elections the order
of the candidates on the party lists should be abolished as limiting
transparency and misleading voters;
5.4. Following investigation by the Monitoring Committee into
an application to initiate a monitoring procedure with respect to
electoral fraud in the United Kingdom, it was concluded that the
electoral system in Great Britain is clearly open to electoral fraud,
in particular as a result of the rather arcane system of voter registration
without personal identifiers. This vulnerability was exacerbated
by the introduction of postal voting on demand, especially under
the arrangements as existed before the changes in the Electoral
Code in 2006. However, despite these vulnerabilities in the electoral
system, since elections in the United Kingdom are conducted democratically
and represent the free expression of the will of the people, the
Assembly decided not to open a monitoring procedure with respect
to the United Kingdom.
6. With respect to political parties and their funding:
6.1. The Assembly reiterates that
the recall of peoples’ representatives by the political parties
(the so-called “imperative mandate”) is unacceptable and contrary
to the principles of the Rule of Law and the separation of powers.
Regulations on the registration of political parties and the prohibition
of electoral blocs, combined with the 7% electoral threshold, make
it extremely difficult for new and small parties to compete effectively
in the Russian Federation;
6.2. With regard to financing, the Assembly refers to the initial
results from the evaluations carried out by the Council of Europe’s
Group of States against Corruption (GRECO) in its Third Evaluation
Round on transparency of party funding which show that, while member
states have intensified their regulatory efforts in this area, domestic
standards vary considerably among them and fall short, in some respects, of
Council of Europe standards;
6.3. The Assembly thus recommends that all member states which
have not yet established independent, specialised and strong mechanisms
of control over political party funding should do so at their earliest
opportunity;
6.4. The Assembly reiterates its recommendation that a law
on political parties be adopted with a view to ensuring the transparency
of party and campaign funding in Monaco and Montenegro.
7. With respect to the fight against corruption:
7.1. Despite commendable efforts
made by the authorities, with the assistance of the Council of Europe,
the adoption of National Anti-Corruption Strategies and the implementation
of action plans, corruption remains a major problem in practically
all member states under monitoring;
7.2. The Assembly urges the authorities of the member states
to implement the recommendations made by GRECO, in particular improve
domestic legislation and effectively implement the measures adopted.
State efforts in eradicating corruption should include measures
not only in the area of repression but also in prevention and policy
co-ordination. In this respect, the Assembly recalls its recommendation
that measures be taken to guarantee a professional civil service
respectful of ethical rules in Albania, Georgia and Ukraine;
7.3. Ukraine should ratify the Council of Europe’s Criminal
Law Convention on Corruption (ETS No. 173).
8. With respect to media pluralism:
8.1. The absence of media pluralism has raised Assembly concerns
to various degrees in Armenia, Azerbaijan, Moldova and the Russian
Federation. Deficiencies caused by the monopolisation of some mass
media by political groups and businessmen in Serbia have also given
rise to concerns. The independence of media regulatory bodies should
be guaranteed in Armenia and Azerbaijan;
8.2. Despite efforts made with Council of Europe assistance,
the creation of a genuinely public broadcasting service has not
yet been completed in Albania, Armenia, Azerbaijan, Moldova, the
Russian Federation and Ukraine. In Bosnia and Herzegovina, which
has one of the most advanced self-regulatory mechanisms in Europe;
the establishment of a unified public service broadcasting service with
state-level management is one of the requirements for signing the
Stabilisation and Association Agreement with the European Union;
8.3. Censorship, prosecution and imprisonment, intimidation
of journalists or even physical threats against them continue to
occur in Azerbaijan, the Russian Federation and Turkey. The Assembly welcomes
the fact that defamation has been decriminalised in Bosnia and Herzegovina,
Georgia and Ukraine and partially decriminalised in Moldova and
in “the former Yugoslav Republic of Macedonia”. At the same time,
professional ethics of journalism have to be improved in many member
states, possibly with Council of Europe assistance;
8.4. An investigation by the Monitoring Committee into an application
to initiate a monitoring procedure with respect to the monopolisation
of the electronic media and possible abuse of power in Italy confirmed
that Italy’s media spectrum was clearly experiencing an anomaly
in its television sector with one of the highest levels of concentration
on the national level in Europe. However, Italian citizens generally
have access to a wide variety of information sources and content
diversity across the media landscape. Therefore, the Assembly concluded
that the anomaly in one of its electronic media sectors did not
in itself warrant the initiation of a full-fledged monitoring procedure
with respect to Italy but that the legislative developments in Italy
should be followed in the Monitoring Committee’s periodic reports.
9. With respect to local and regional democracy:
9.1. The Assembly notes that in many
member states under monitoring or engaged in a post-monitoring dialogue,
decentralisation reforms should be stepped up. The lack of clear
assignment of competences to local authorities is an obstacle to
effective decentralisation in Armenia, Azerbaijan, Bosnia and Herzegovina,
Moldova and Serbia. Moreover, revenues devolved to local authorities
often do not match the decentralised competences and are unevenly
distributed (Armenia, Bosnia and Herzegovina, Moldova, Serbia, “the
former Yugoslav Republic of Macedonia”, Ukraine). The unsettled issue
of devolution of property prevents local authorities from exercising
their competences effectively in Bosnia and Herzegovina, Montenegro,
Serbia and “the former Yugoslav Republic of Macedonia”. Supervisory
procedures are often complex and unclear, thus creating the risk
of undue interference of central authorities in the activities of
local and regional authorities (Armenia, Azerbaijan, Moldova);
9.2. In some member states, local authorities are too small
and weak to take over substantial competences in the provision of
the main public services (Armenia, Azerbaijan, Moldova). The Assembly therefore
welcomes and further encourages the efforts of the authorities of
these countries to establish mechanisms of inter-municipal co-operation,
for instance in Armenia and Moldova. Furthermore, the Assembly encourages
member states to consider drawing up and implementing territorial
reforms to establish stronger and financially more sustainable communities.
Where appropriate, such reforms should include the establishment
of autonomous regional structures with increased operational and financial
capacity;
9.3. Furthermore, effective decentralisation requires the building
of capacities on both sides, namely, for the central government,
to work in the context of decentralised service provision and, for
the local authorities, to participate fully in the delivery of policies
of decentralisation and continually improve their performance by
boosting the standards of their leadership and strategic management,
service provision, community participation and public ethics (Armenia,
Azerbaijan, Bosnia and Herzegovina, Moldova, Serbia, “the former
Yugoslav Republic of Macedonia”, Ukraine).
10. With respect to the continuing existence of unresolved conflicts
in member states under monitoring:
10.1. The Assembly considers that democratic developments in
Azerbaijan, Georgia and Moldova cannot be consolidated as long as
their territorial integrity is not restored;
10.2. The Assembly welcomes the Monitoring Committee’s initiative
to organise in Berlin, in November 2007, a hearing “on frozen conflicts”
with respect to the conflicts of Nagorno-Karabakh, Abkhazia, South Ossetia
and Transnistria. In this respect, the Assembly reaffirms the role
that national parliaments can play in promoting confidence building
as a prerequisite for the peaceful settlement of conflicts. The Assembly
itself can also help foster a positive negotiating climate, through
dialogue at the parliamentary level. Therefore, the Assembly encourages
the organisation of further hearings on the above-mentioned conflicts;
10.3. At the same time, the Assembly regrets that no significant
positive developments have been registered during the reporting
period (April 2007-June 2008) with respect to any of the above-mentioned conflicts;
the tensions have recently escalated with respect to the Abkhaz
and South Ossetian conflicts.
11. The Assembly urges all states currently under monitoring or
engaged in a post-monitoring dialogue to continue their co-operation
with the Monitoring Committee and to implement all the recommendations contained
in the country-specific resolutions adopted by the Assembly. It
reaffirms its readiness to provide necessary support to the countries
concerned through its parliamentary cooperation and assistance programmes.
12. Furthermore, the Assembly takes note of the periodic reports
on the third and last group of 11 member states among those member
states which are not subject to a monitoring procedure or involved
in a post-monitoring dialogue: Norway, Poland, Portugal, Romania,
San Marino, Slovakia, Slovenia, Spain, Sweden, Switzerland and the
United Kingdom. As in the previous two years, they are based on
the country-by-country assessments made by the Commissioner for
Human Rights and other Council of Europe monitoring mechanisms or
institutions.
13. On the basis of these reports, which are appended to this
year’s progress report of the Monitoring Committee, the Assembly:
13.1. urges the national parliaments
of the countries concerned to:
13.1.1. use
these reports as the basis for a debate on their country’s record
with regard to the fulfilment of their statutory and conventional
obligations as member states of the Council of Europe;
13.1.2. promote execution of the judgments of the Court and compliance
with recommendations made by the Commissioner for Human Rights and
other specific Council of Europe monitoring bodies, both by provoking
and accelerating the necessary legislative initiatives and exercising their
role of oversight with respect to government action;
13.2. invites the European Union bodies, as far as applicable,
to use these reports and take into account the findings of the Council
of Europe human rights institutions and monitoring mechanisms, such
as the judgments of the Court and reports of the Commissioner for
Human Rights and of the Assembly’s Monitoring Committee, as well
as the relevant resolutions and recommendations adopted by the Assembly;
13.3. urges:
13.3.1. Sweden, Switzerland
and the United Kingdom to sign and ratify, and Norway, Portugal, Slovakia,
Slovenia and Spain to ratify, Protocol 12 to the European Convention
on Human Rights (ETS No. 177);
13.3.2. Poland and Spain to ratify Protocol 13 to the European
Convention on Human Rights (ETS No. 187);
13.3.3. Switzerland to sign, and Poland, Slovakia, Spain, and
the United Kingdom to ratify, the revised European Social Charter
(ETS No. 163);
13.3.4. Poland, Romania, Spain, Switzerland and the United Kingdom
to sign and ratify, and Slovakia and Slovenia to ratify, the Additional
Protocol to the European Social Charter Providing for a System of
Collective Complaints (ETS No. 158);
13.3.5. Portugal, San Marino and Switzerland to sign and ratify,
and Spain and the United Kingdom to ratify, the Civil Law Convention
on Corruption (ETS No. 174);
13.3.6. San Marino and Spain to ratify the Criminal Law Convention
on Corruption (ETS No. 173);
13.3.7. Switzerland to adopt a law on political parties with a
view to ensuring the transparency of party funding.
14. The Assembly notes that the year 2008 marks the end of the
first three-year cycle of periodic reporting carried out by its
Monitoring Committee on all member states not subject to a monitoring
procedure or involved in a postmonitoring dialogue.
15. In carrying out this periodic reporting, as well as its own
country-specific monitoring procedure through its Monitoring Committee,
the Assembly has continued to benefit from the work carried out
by other Council of Europe institutions and monitoring bodies, in
particular: the European Court of Human Rights; the Committee of
Ministers in its supervisory function of the execution of the Court’s
judgments; the European Committee of Social Rights; the Commissioner
for Human Rights; the Congress of Local and Regional Authorities
of the Council of Europe; the Group of States against Corruption
(GRECO); the Committee of Experts on the Evaluation of AntiMoney
Laundering Measures and Financing of Terrorism (MONEYVAL); the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment (CPT); the Advisory Committee on the Framework Convention
for the Protection of National Minorities; the Committee of Experts
of the European Charter for Regional or Minority Languages and the
European Commission against Racism and Intolerance (ECRI). The European
Commission for Democracy through Law (Venice Commission) is of special
importance, since, with its expertise, it significantly assists
both the Monitoring Committee’s rapporteurs in their tasks and the
member states in honouring their obligations and commitments. The
work of the European Commission for the Efficiency of Justice (CEPEJ)
is also of relevance.
16. At the same time, the Assembly has continued to promote the
work of all these institutions and monitoring bodies in particular
by calling for the execution of judgments of the Court or the implementation
of the recommendations of those instruments and bodies in all countries
subject to monitoring, post-monitoring dialogue or periodic reporting.
17. The Assembly commends the remarkable work carried out by the
Council of Europe human rights institutions and monitoring bodies
and the acquis they have established
over the years. In this respect, the Assembly believes that the
efficiency of this unique monitoring machinery can be further enhanced
by defining tools aimed at optimising synergies and enhancing co-operation
among the various bodies, while preserving their independence and
respecting their mandates, distinct working methods and priorities.
18. Since this would be beneficial to its own work, the Assembly
therefore welcomes the Monitoring Committee’s initiative to organise
a hearing as a forum for exchanging ideas and identifying ways and
means to improve synergies among all those primarily concerned,
namely the Council of Europe institutions, bodies and mechanisms
referred to above in paragraph 15.
19. With a view to ensuring increased efficiency, the Assembly
also calls on member states to set up or enhance national mechanisms
in charge of ensuring that appropriate follow-up is given to findings
of Council of Europe monitoring bodies.
20. The Assembly stresses that national parliaments should be
regularly informed of measures taken by the governments to implement
recommendations by Council of Europe monitoring bodies, as well
as to ensure execution of the judgments of the Strasbourg Court.
21. The Assembly reiterates that parliaments have a special role
in promoting implementation of recommendations or the execution
of judgments of the Court by either initiating and adopting the
required legislation or exercising their role of democratic oversight
of government action.
B. Draft recommendation
(open)1. The Parliamentary Assembly
refers to its Resolution … (2008) on the functioning of democratic institutions
in Europe and the progress of the Assembly’s monitoring procedure,
in which it commends, inter alia,
the remarkable work carried out by the Council of Europe human rights
institutions and monitoring bodies and the acquis they
have established over the years, and recommends that the Committee
of Ministers:
1.1. take into account
the findings contained in the resolutions and recommendations adopted
by the Assembly on country monitoring reports in its own periodic
reporting procedures;
1.2. amplify and reinforce existing assistance programmes to
support member states in the implementation of obligations and commitments
to the Council of Europe, by allocating appropriate financial resources
to them and making use of donor funding when necessary;
1.3. work with the member states to develop, where appropriate,
new targeted co-operation programmes to further strengthen democratic
institutions, making full use in particular of the possibilities within
the framework of the various European Union financial instruments;
1.4. ensure that the findings and recommendations of the various
Council of Europe monitoring bodies and human rights institutions
are fed directly into the Organisation’s programme of activities
in particular as regards standard setting, expert assistance and
co-operation programmes. For this purpose, these bodies and institutions
could be invited to give their views as to what they consider to
be priority areas in good time before the adoption of the Organisation’s
programme of activities;
1.5. support the Council of Europe’s monitoring bodies and
human rights institutions by allocating additional resources so
as to further enhance their efficiency and to enable them to strengthen
their follow-up procedures aimed at verifying the implementation
of their recommendations by the member states;
2. The Assembly also asks the Committee of Ministers to invite
the authorities of the member states to:
2.1. set up or enhance national mechanisms in charge of ensuring
that appropriate follow-up is given to findings of Council of Europe
monitoring bodies;
2.2. ensure that national parliaments are regularly informed
of measures taken by the governments to implement recommendations
by Council of Europe monitoring bodies, as well as to ensure execution of
the judgments of the Strasbourg Court.
C. Explanatory memorandum, by Mr Serhiy Holovaty
(open)1. Introduction
1. Following the approval by the
committee of the proposed outline at its meeting of 18 March 2008,
I have been able to finalise this year’s progress report so as to
ensure that this could be a meaningful contribution to the Assembly’s
debate during the June part-session on the state of democracy in
Europe.
2. Therefore, the present report does not simply present the
activities of the Monitoring Committee during the reporting period,
that is from April 2007 to June 2008, but enters into the merits
and summarises the situation with respect to the functioning of
democratic institutions in all member states currently under a monitoring
procedure, involved in a post-monitoring dialogue or for which the
initiation of a monitoring procedure has been requested (see below,
under II).
3. To do this, I have of course limited myself to references
to texts adopted by the Assembly, reports or other public documents
prepared by our committee’s co-rapporteurs who follow the situation
in each specific country. I have also used the reports drawn up
by the ad hoc committee of the Assembly on election observation
in these countries since this exercise is closely linked to the
work carried out by our committee. I have not engaged myself in
any analysis or conclusions beyond what has been proposed by the
co-rapporteurs concerned or the Assembly observer delegations.
4. I have tried to make a synthesis in the draft resolution of
the recurrent issues raised in all countries under monitoring and
(to a lesser extent) in countries engaged in a post-monitoring dialogue
on the basis of a thematic outline similar to that of most reports
prepared by our committee. Thus, the following issues are dealt with,
while references to specific countries are made: separation of powers
and the role of parliament; elections and electoral reform; political
parties and their financing; the fight against corruption; media
pluralism; local and regional self-government; conflicts and the
role of parliaments in confidence building.
5. At the same time, and in accordance with the practice established
since 2006, periodic reports on the third and last group of 11 member
states among those member states which are not subject to a monitoring procedure
or involved in a post-monitoring dialogue have been prepared and
are appended in the addendum to this report: Norway, Poland, Portugal,
Romania, San Marino, Slovakia, Slovenia, Spain, Sweden, Switzerland
and the United Kingdom. As in the previous two years, they are based
on the country-by-country assessments made by the Commissioner for
Human Rights and other Council of Europe monitoring bodies and human
rights institutions. The draft resolution contains conclusions drawn
from these periodic reports (see also the appendix).
6. Since this year marks the end of the first three-year cycle
of periodic reporting carried out by our committee on all member
states not subject to a monitoring procedure or involved in a post-monitoring dialogue,
I have taken this opportunity to make some observations and proposals
as regards the relations between our committee and the other Council
of Europe bodies and institutions, with a view to optimising synergies
and increasing efficiency (see below under III, as well as the draft
resolution and draft recommendation).
2. The functioning of democratic institutions in Council of Europe member states
2.1. States under monitoring
2.1.1. Separation of powers and the role of parliament
Albania
7. In its Resolution 1538 (2007) on the honouring of obligations and commitments by Albania,
the Assembly welcomed the fact that the parliament has continued
to reinforce its influence and role and, despite disagreements about
voting procedures, has made steady improvements in its technical
operation.
8. The Assembly regretted that relations between the political
parties had remained polarised and fraught, thus slowing parliamentary
work on reform. All the political parties in Albania share responsibility
for strengthening the powers and role of the parliament. The Assembly
underlined that major reforms require broad political consensus
which should be reached in parliament.
Armenia
9. The 2005 constitutional reform
in Armenia improved the separation and balance of powers and made the
system of government more consistent with European standards for
democracy and the rule of law.
10. However, both the Venice Commission, which closely assisted
Armenia in carrying out this constitutional reform, 
and
the Assembly, in its Resolution
1532 (2007) on the honouring of obligations and commitments by Armenia,
adopted in January 2007, stressed that the effective implementation
of the new system of government required an improvement in the political
climate and the institution of dialogue between the ruling coalition
and the opposition.
and
the Assembly, in its Resolution
1532 (2007) on the honouring of obligations and commitments by Armenia,
adopted in January 2007, stressed that the effective implementation
of the new system of government required an improvement in the political
climate and the institution of dialogue between the ruling coalition
and the opposition.11. Regrettably, the lack of such a dialogue and the failure of
the key institutions of the state to perform their functions in
full compliance with democratic standards and the principles of
the rule of law and the protection of human rights led to the crisis
that followed the presidential election of 19 February 2008 and
culminated in the tragic events of 1 March 2008. As a result, 10
people died and about 200 people were injured.
12. In particular, the National Assembly of Armenia has so far
failed to play its role as a forum for political debate and compromise
between the different political forces. Based on a “winner takes
all” attitude, the current political system excludes the opposition
from any effective participation in the decision-making process
and governance of the country. Moreover, part of the political spectrum
in the country is not represented in the current National Assembly.
13. In its Resolution
1609 (2008) on the functioning of democratic institutions in Armenia,
adopted on 17 April 2008, following a debate under urgent procedure
of the report of the Monitoring Committee (see Doc. 11579), the Assembly urged once again the Armenian authorities
to reform the political system in order to ensure a proper role
and appropriate rights to the opposition (see also Resolution 1601 (2008) on the rights of the opposition).
14. In order for the country to move forward with urgently needed
reforms, including the reform of the political system in the above-mentioned
terms, the Assembly asked that an open and constructive dialogue
be seriously engaged between the political forces in Armenia, including
both parliamentary and extra-parliamentary ones. The initiation
of such a dialogue is one of the requirements that should be met
by the opening of the Assembly’s June 2008 part-session. Otherwise,
the Assembly should consider the possibility of suspending the voting rights
of the Armenian delegation.
Azerbaijan
15. Since accession to the Council
of Europe, the Parliament of Azerbaijan has reinforced its role
as a forum for political debate and an instrument for pushing forward
democratic reforms. However, much remains to be done to strengthen
parliamentary control over the executive and improve the checks
and balances in a state governed by a strong presidential system.
16. Therefore, the Assembly, in its Resolution 1545 (2007) on the honouring of obligations and commitments by Azerbaijan,
adopted on 16 April 2007, on the basis of a report by the Monitoring
Committee (Doc. 11226), invited the authorities of Azerbaijan to consider
in due course (for instance after the forthcoming presidential elections
of October 2008) the possibility of revising the constitution to
improve the balance of power and strengthen the role of the parliament,
with the assistance of the Venice Commission.
17. Also, the role of parliamentary committees should be further
developed. Recourse should me made to laws elaborated and discussed
within the parliament and its committees, rather than to presidential
decrees, to regulate important matters, including those related
to the honouring of obligations and commitments undertaken upon
accession to the Council of Europe.
18. The aftermath of the November 2005 parliamentary elections
was marked by a further weakening of the opposition both inside
and outside parliament. Despite Assembly calls to the contrary,
a number of opposition members have refused to take their seats
in parliament or boycotted the May 2006 partial re-run elections. Subsequent
splits within the opposition have further weakened its position.
19. In its Resolution
1545 (2007), the Assembly stressed that dialogue urgently needs
to be established between the ruling majority and the opposition
both inside and outside parliament if the political climate in the country
is to be improved.
20. So far no progress has been made in this area. The opposition
parties consider they have not been involved in the revision of
the Electoral Code and believe the forthcoming presidential elections
will be a farce. One opposition leader, Mr Ali Kerimli, Chairman
of the Popular Front Party, has declared that his party is ready to
boycott the elections if no substantial progress occurs as regards
the functioning of the electoral commissions and the freedom of
assembly. The Monitoring Committee corapporteurs have repeatedly
urged all political parties to take part in the elections (Document
AS/MON(2008)10 rev., paragraph 78).
Bosnia and Herzegovina
21. Already in 2004, the Assembly
urged the authorities and the political forces in Bosnia and Herzegovina to
engage in a constructive dialogue on the issue of constitutional
reform.
22. A reform package drafted taking into account the expert advice
of the Venice Commission as well as the proposals agreed to by the
main political parties as a result of consultations facilitated
by the United States was put to vote in parliament on 26 April 2006.
However, the parliament failed to adopt the constitutional reform package.
Although this reform package was seen by some as being neither comprehensive
nor particularly far-reaching, the Assembly considered that it represented
a first attempt by the citizens of Bosnia and Herzegovina and their
representatives to take their future in their own hands.
23. Since April 2006, no developments on the constitutional reform
front occurred in Bosnia and Herzegovina. The 2006 general election
was held according to the existing arrangements and parliaments
and governments at all levels were formed according to the existing
rules. As a result, democratic institutions in Bosnia and Herzegovina
still cannot be qualified as being efficient. In 2007, only 27 pieces
of legislation, of the 135 planned at state level, were adopted
by parliament. At federation level, only 17 laws were adopted out
of 79 planned. The situation was slightly better in the Republika
Srpska where the Republika Srpska National Assembly carried out
62% of the planned activities.
24. That being said, on 19 October 2007, some changes to the existing
decision-making procedures were imposed on the Bosnia and Herzegovina
authorities by decision of the High Representative. It is anticipated that
these changes will facilitate decision making, while respecting
the right of each constituent people to protect its vital national
interest in justified cases: the government will be able to take
decisions even if a minority of ministers chooses to be absent.
Ministers will still be able to vote in favour or against decisions,
but they will have to come to the session to do so.
25. The Rules of Procedure of the Bosnia and Herzegovina Parliamentary
Assembly were also amended on 30 November 2007, in accordance with
the recommendation of the High Representative. The amendments clarified
the interpretation of a number of key constitutional principles
and are expected to streamline decision making in parliament.
26. While these recent changes are welcome, the efficient functioning
of Bosnia and Herzegovina’s democratic institutions cannot be achieved
without the implementation of the constitutional reform. The constitutional
reform package needs to be put high on the agenda of all political
institutions again to create a solid foundation for the implementation
of much needed sectoral reforms (for example, the reform of the
police) as well as to fulfil the criteria for the closing of the
Office of the High Representative and ensure full transfer of functions
to domestic institutions.
Georgia
27. The strong system of government
in Georgia, which is not accompanied by efficient checks and balances,
continues to be a concern of the Assembly. A far more inclusive
decision and policy-making process, based on dialogue and a plurality
of views, is strongly needed in the country.
28. In Resolution 1603
(2008) the Assembly therefore called upon the authorities to
commit themselves to building strong institutions, in particular
by creating a responsible and professional state administration
and a political culture that seeks broad consensus among the plurality
of views. It is hoped that the outcome of the parliamentary elections
of May 2008, in combination with a revitalised political opposition
that emerged from the November 2007 protests, will strengthen the
democratic process by creating a more pluralist parliament and by
building into the political process the dialogue that so far has
been lacking.
29. In December 2006 a series of amendments to the constitution
were passed by the Georgian Parliament that aimed to strengthen
the separation of powers. Following these amendments, the president
no longer has the right to dismiss or appoint judges and he no longer
chairs, or is a member, of the High Council of Justice. The amendments
also limit the number of times a president may dismiss parliament
to two in five years.
30. Further reform of the judiciary was initiated by the Georgian
authorities, especially with the aim to guarantee its independence.
However, the courts still do not enjoy sufficient public confidence
as independent arbiters and are seen as being under the influence
of the executive branch of power. The Assembly therefore called
upon the Georgian authorities to step up their efforts as regards
the reform of the judiciary, in particular with respect to the independence
of judges and prosecutors.
Moldova
31. In its Resolution 1572 (2007) on the honouring of obligations and commitments by Moldova,
the Assembly noted that the relative political stability established
in Moldova after the 2005 parliamentary elections had helped the
majority and the opposition to implement key reform projects relating
in particular to European integration and enhancement of democratic
reforms.
32. The Assembly took note with satisfaction of the impressive
results of the parliament’s work, including the adoption of a package
of laws dealing with the country’s commitments to the Council of
Europe, such as the revision of the parliamentary rules of procedure
in compliance with the recommendations of the Council of Europe,
the strengthening of the independence of judges and the autonomy
of the judiciary, the improvement of electoral legislation, the
further reform of the security services, the reform of the broadcasting
sector and the strengthening of local self-government.
33. It noted, however, that the implementation of the adopted
legislation was equally important as the adoption of the legislation.
It therefore invited the Moldovan authorities to take the necessary
steps to make the new legal framework fully operational by adopting
all normative acts required for its implementation and by developing
the capacity of institutions and staff to apply the new legislation.
Monaco
34. The revision of the Monégasque
Constitution in April 2002, amending the 1962 constitution on certain points,
was not intended to, and did not, transform the Monégasque constitutional
system into a parliamentary system: the Principality of Monaco remains
a hereditary and constitutional monarchy in which the Prince is
an active head of state and possesses extensive powers that have
no counterpart in other European monarchies except perhaps Liechtenstein
(see Doc. 11299).
35. Strengthening of the powers of the National Council was the
subject of intense negotiation during the accession procedure so
that Monaco would fulfil the criterion of “pluralist democracy”
within the meaning of the Council of Europe’s Statute. In accordance
with the Assembly’s recommendations, the 2002 constitutional revision
strengthened the powers of the National Council with regard to the
right to propose private members’ bills and the right of amendment,
budgetary power and the ratification of certain international treaties.
The National Council passes laws and adopts the annual state budget.
It cannot overturn the government but, on the other hand, the latter
has no power to legislate without a favourable vote in the National
Council. However, the Prince has the right to dissolve the National
Council and thus to call for new elections. Members of the government
are not answerable to the National Council and are not obliged to
carry out the political programme for which the Monaco representatives
were elected.
36. Since the 2002 constitutional revision did not fulfil the
recommendations of the eminent lawyers on a number of important
points, the Assembly recommended in Opinion No. 250 (2004) that, within five years of accession, the Monégasque
authorities should further broaden the powers of the National Council,
in particular as regards supervision of government action, the annual
presentation of the governmental programme, the right of legislative
initiative and budgetary debate, in the hope that the state institutions
would evolve in the course of time.
37. The National Council is currently testing the new powers conferred
to it by the constitutional revision of 2002. It no longer rubber-stamps
governmental decisions, but neither is it a chamber that practises
systematic opposition, and it has constantly to feel its way towards
a consensus reconciling the wishes of the Prince and those of the
national representatives.
38. The National Council has no legal personality and does not
possess budgetary independence: it has to request government authorisation
to use the funds allocated to it, as well as authorisation on how
it may spend them. The government limits the National Council’s
scope for action and exercises indirect political control over its
activities through the control it exercises over its financial resources.
39. In its Resolution
1566 (2007) on the honouring of obligations and commitments by Monaco,
the Assembly urged the Monégasque authorities to adopt a new law
on the functioning and organisation of the National Council as soon
as possible so as to reflect the constitutional changes made in
2002. It expressed hope in this connection that the joint working
party on the organisation and functioning of the National Council, set
up by the council and the government to enable the two institutions
to determine jointly how the rules governing the Assembly’s activities
can be improved and modernised, would be shortly successful. The Assembly
also called on the National Council to review its rules of procedure
without delay.
40. In addition, the Assembly recommended that the Monégasque
authorities redraw the list of international conventions and treaties
in respect of which the National Council must pass a law in accordance
with Article 14 of the constitution and meanwhile submit initially
to the National Council any draft reservations or declarations to
a treaty in respect of which the National Council must pass a ratification
law.
Montenegro
41. In line with Assembly Opinion No. 261 (2007) on the accession of Montenegro, adopted on 17 April
2007, to which the Monitoring Committee significantly contributed, Montenegro
undertook to adopt a new constitution within a maximum of one year
upon accession, in close co-operation with the Venice Commission and
in full compliance with international standards. The new constitution
should include the seven minimum principles already approved in
the declaration of 8 February 2007 signed by the Prime Minister,
the Speaker of Parliament and the heads of the political groups
represented in the Parliament of the Republic of Montenegro. In
line with two of these principles:
Montenegro
undertook to adopt a new constitution within a maximum of one year
upon accession, in close co-operation with the Venice Commission and
in full compliance with international standards. The new constitution
should include the seven minimum principles already approved in
the declaration of 8 February 2007 signed by the Prime Minister,
the Speaker of Parliament and the heads of the political groups
represented in the Parliament of the Republic of Montenegro. In
line with two of these principles:“the independence of the judiciary must be guaranteed and the imperative of avoiding any decisive role of political institutions in the procedure of appointment and dismissal of judges and prosecutors recognised;
the constitution should regulate the status of the armed forces, security forces and intelligence services of Montenegro and the means of parliamentary supervision.”
42. Montenegro undertook to include also in the new constitution, inter alia:
“a provision maintaining existing laws, unless they are amended through the normal democratic process, in full respect of the principle of legal certainty;
provisions defining a state of emergency, how a state of emergency may be declared, the legal effects thereof and supervisory powers of parliament.”
43. Considering that developing the parliament in terms of its
representative, legislative and oversight functions is crucial to
fulfil the strategic goal of harmonising Montenegrin legislation
with European standards and, simultaneously, reinforcing parliamentary
practice, the Assembly asked the Montenegrin authorities:
“to increase as soon as possible the parliament’s budgetary means and its administrative capacity”.
44. The co-rapporteurs of the committee on Montenegro closely
follow the process of the implementation of these commitments. They
travelled on a fact-finding visit to Montenegro in November 2007
and plan to pay another visit to the country in October 2008. They
will make their assessment of the state of implementation of obligations
and commitments by Montenegro, including as regards the new constitution,
on the basis of the results of their next visit.
Serbia
45. The adoption of the legislation
foreseen by the law on the implementation of the Constitution of
Serbia (adopted in September 2006 and approved by referendum in
October 2006) did not progress as well as it should. In particular,
the law on the National Assembly of the Republic of Serbia has yet
to be adopted. The parliament still functions on the basis of the
old rules of procedure of 2005 which do not favour efficient and streamlined
parliamentary debates.
46. In their draft report on the honouring of obligations and
commitments by Serbia, which was made public by the Monitoring Committee
on 18 March 2008 (Document AS/Mon(2008)07 rev.), the co-rapporteurs
noted that Serbia’s democratic institutions needed to be further
strengthened, in particular, with respect to parliamentary democracy.
The co-rapporteurs recommended that the position of the parliament
should be strengthened both institutionally and materially to enable
it to play an increasingly active role in the political process.
47. Moreover, the co-rapporteurs expressed concerns about the
strong role of the parliament in judicial appointments, which may
result in an undue politicisation of the process and would go against
the principle of separation of powers. They urged the Serbian authorities
to continue to co-operate with the Council of Europe experts, including
the Venice Commission, in order to strengthen guarantees of independence
of judges and prosecutors in order to protect them from undue interference
from political branches of power.
Russian Federation
48. The separation of powers and
a proper system of checks and balances is a main focus of the Assembly’s monitoring
process. In this respect, the co-rapporteurs, during their last
visit to the Russian Federation in April 2008, took note of the
steps taken by the authorities to reform the Prosecutor’s Office
and the judiciary, with a view to bringing them closer to Council
of Europe standards. In particular, the co-rapporteurs encouraged
the authorities to pursue their efforts aiming at ensuring the execution
of domestic court decisions, which could significantly reduce the
number of cases lodged against Russia with the European Court of
Human Rights. They also welcomed the efforts by the authorities
to strengthen regional and local democracy.
49. Nevertheless, a significant number of concerns remain. This
was especially clear during the recent elections, where the merging
of the state and a political party was noted as a main point of
concern. Despite the welcome reforms of the Prosecutor’s Office,
concerns still remain over its oversight function. In addition, questions
with regard to the composition of the Council of the Federation,
and with regard to the influence of the executive over the judiciary,
still exist.
50. The co-rapporteurs have called for the Russian authorities
to ensure that the strong “vertical of power” will be underpinned
by strong democratic institutions and an effective system of checks
and balances. They reiterated their recommendation to the Russian
authorities to seek close co-operation with the Venice Commission
of the Council of Europe on these issues.
Ukraine
51. Since Ukraine’s accession to
the Council of Europe more than eleven years ago, hopes of democratic breakthrough
have alternated with serious political stand-offs (see Doc. 11255). Since 1999, the Assembly has held 10 debates related
directly or indirectly to the functioning of democratic institutions
in Ukraine, the most recent one during its April 2007 part-session
following the dissolution of the Parliament of Ukraine by presidential
decree after months of political crisis.
52. In its Resolution
1549 (2007), adopted on 19 April 2007, the Assembly considered that
the continuing political instability was the result of the systematic
failure by the successive Ukrainian governments to establish coherent
policies backed by substantial legal administrative and economic
reforms. The political reforms that would set “the rules of the
game” and enable law-based institutions to guarantee democratic
rights and freedoms and promote political competition had not been
completed to date. The Assembly stressed that the crisis was also
the result of the hasty and incomplete constitutional and political
reform of 2004, carried out without holding a comprehensive public
debate in the country and taking into account the reservations of
the European Commission for Democracy through Law (Venice Commission),
which failed to settle the crucial issues of separation of powers
and the “imperative mandate” of national deputies.
53. The Assembly recognised the achievements of the orange revolution
that had allowed key democratic freedoms, such as freedom of the
media and of assembly, freedom of political competition and parliamentary opposition,
to take root. However, Ukraine lacked and still lacks today the
guarantees built into its democratic institutions that would consolidate
those newly acquired freedoms. The Assembly called on the political
forces, as a matter of urgency, to resume work on the improvement
of the Constitution of Ukraine and the related legislation, in close
co-operation with the Venice Commission, in order to finally establish
an effective system of checks and balances and bring constitutional
provisions into line with European standards.
54. The Assembly deplored that the judicial system of Ukraine
has been systematically misused by other branches of power and that
top officials did not execute court decisions, a sign of erosion
of this democratic institution. Hence, the urgent necessity to carry
out a comprehensive judicial reform, including through amendments
to the constitution. Also, the authority of the sole body responsible
for constitutional justice – the Constitutional Court of Ukraine
– should be guaranteed and respected and any form of pressure on
the judges investigated and criminally prosecuted.
55. Although a political agreement between President Yushchenko
and the then Prime Minister Yanukovych to hold pre-term parliamentary
elections on 30 September appeared to put an end to last year’s
crisis, the inherent flaws in the political system in Ukraine have
not been remedied. As the co-rapporteurs noted in their information
note on their fact-finding visit to the country in January 2008
(see Document AS/Mon(2008)06), the political environment remained
extremely volatile and susceptible to tumbling back into crisis
unless a solution was urgently found through an inclusive dialogue
between all political forces on constitutional reform.
56. Following the September 2007 pre-term elections and the formation
of a new government headed by Yulia Tymoshenko in mid-December 2007,
President Yushchenko urged all leading political forces to join efforts
and draft a new constitution. To this effect, he set up a National
Constitutional Council, composed of representatives of all political
forces represented in parliament, judges, human rights organisations, representatives
of academia and a number of well-known public figures. A draft constitution
was prepared by a group of scholars, which, upon a decision of the
Monitoring Committee, was transmitted for opinion to the Venice
Commission. The latter should adopt its opinion at its June 2008
meeting.
2.1.2. Elections and electoral reform
Albania
57. In its Resolution 1538 (2007), the Assembly welcomed the fact that the July 2005 elections
marked the first peaceful and smooth transfer of power in Albania
since the fall of communism and the first parliamentary elections
in 1991. The Assembly recalled that the parliamentary elections
in Albania on 3 July 2005, although conducted on the basis of an
improved electoral code, “complied only partially with international
commitments and standards for democratic elections”, according to
the international observers, including the Assembly’s ad hoc committee
(Doc. 10664).
58. The Albanian authorities should in particular continue to
improve the accuracy of civil registers and voters’ lists and develop
a uniform system of addresses for buildings; new identity documents
should be introduced; the excessive role of political parties in
electoral procedures should be limited and the election administration
should be reviewed. The Assembly welcomed the political agreement
to eliminate tactical voting (so-called “Dushk” strategy) and asked
political parties to show serious commitment to accelerating electoral reform
on other issues in order to implement the remaining recommendations
made by international observers.
59. During their forthcoming visit to Albania in 2008, the co-rapporteurs
will examine further progress achieved in this field, in particular
as regards the new electoral system which was introduced after changes
to the constitution and the Electoral Code, as well as the prospects
of completion of the electoral reform in time for the next general
elections to be held in 2009.
Armenia
60. The presidential election held
in Armenia on 19 February 2008 has been at the origin of the worst
political crisis in the country since its accession to the Council
of Europe.
61. According to the ad hoc committee of the Assembly which observed
this election, although the latter was administered mostly in line
with Council of Europe standards, it was marked by a number of violations
and shortcomings, the most important of which were:
- unequal campaign conditions for all candidates;
- lack of transparency of the election administration, including of the vote count and tabulation procedures;
- a complaints and appeals process that did not give complainants access to an effective legal remedy;
- a number of cases of electoral fraud were witnessed.
62. These violations and shortcomings did nothing to increase
the currently lacking public confidence in the electoral process.
As a result, the credibility of the outcome of the election was
put into question at last by part of the Armenian population.
63. Immediately after the announcement of the preliminary election
results, which gave a clear victory to Prime Minister Mr Serzh Sargsyan
from the ruling Republican Party, daily peaceful rallies were organised
by the campaign of the first President of Armenia and main opposition
presidential candidate, Mr Levon Ter-Petrossyan, who claimed that
the election was marred by “widespread falsification and violations”
and that in reality he had won the election. A permanent tent camp
was put on Freedom Square. Although organised without prior official
notification, these protests were tolerated by the authorities for
ten days.
64. The exact circumstances which led to the tragic events of
1 March 2008, as well as the manner in which the authorities reacted,
including the imposition of the state of emergency in Yerevan from
1 to 20 March 2008 and the alleged excessive use of force by the
police, are issues of considerable controversy and should be the subject
of a credible, independent and transparent investigation.
65. However, it is clear that to restore public confidence in
the electoral process, the latter needs to be thoroughly reformed.
In its Resolution 1609
(2008) on the functioning of democratic institutions in Armenia,
the Assembly urged the Armenian authorities to carry out the electoral
reform with a view to ensuring in particular:
- an impartial election administration that is free from control by any political force;
- a fully transparent election administration of the election process especially with regard to the vote count and tabulation processes;
- a complaints and appeals process that gives electoral stakeholders the fullest possible access to a legal remedy in case of perceived electoral violations;
- an equal playing field in practice for all political forces both during the official campaign period, but also prior to it.
66. Again, the electoral reform is one of the priority reforms
which should be the object of an open and constructive dialogue
among both the parliamentary and extra-parliamentary forces in Armenia.
67. In order to ensure implementation of Resolution 1609 (2008) in the field of electoral reform, an ad hoc parliamentary
committee was set up under the chairmanship of Mr Davit Haryutunyan,
Chairman of the Standing Committee on State and Legal Affairs of
the National Assembly of Armenia and of the Armenian parliamentary
delegation to the Assembly.
Azerbaijan
68. Since the country’s accession
to the Council of Europe, not a single election held in Azerbaijan
has been deemed fully free and fair.
69. The Assembly has therefore attached great importance to the
forthcoming presidential elections in October 2008. It has, in particular,
urged the authorities of Azerbaijan to amend the provisions of the
Electoral Code regarding the composition of the electoral commissions
at all levels so as to establish an election administration which
enjoys the confidence of the electorate and of all the stakeholders
and to further develop the procedure for an efficient handling of
election-related complaints and appeals with the assistance of the Venice
Commission. Also, the composition of the Central Electoral Commission
(currently composed of 16 out of 18 members) should be completed
without further delay and the public broadcasting service should
ensure equal and unbiased coverage of the campaign for all presidential
candidates (see Resolutions
1505 (2006) and 1545 (2007)).
70. In addition to the revision of the Electoral Code, for the
2008 presidential elections fully to meet Council of Europe standards,
it should be made clear that violations of the Electoral Code by
local authorities will not be tolerated but penalised and that those
responsible will be charged and brought to justice. It is regrettable that
only a few criminal proceedings were instituted following the November
2005 parliamentary elections, which finally resulted in the imprisonment
of only one person and the dismissal of others. More resolute action is
needed to discourage future violations. The Assembly has therefore
urged the Azerbaijani authorities to pass on a clear message at
the highest political level that electoral fraud will not be tolerated
in the next presidential elections.
Bosnia and Herzegovina
71. The co-rapporteurs of the Committee
on Bosnia and Herzegovina welcomed the changes to the electoral legislation
adopted in 2006. Now Bosnia and Herzegovina has a Central Election
Commission, the Election Complaints and Appeals Council was abolished,
the period of the official campaign in the electronic media was reduced
from sixty to thirty days and the threshold for representation was
fixed at 3% of the vote. The country has also acquired a system
of passive voter registration, which means that every citizen with
a valid citizens’ identity protection system (CIPS) document should
automatically be registered as a voter.
72. Further amendments to the electoral legislation are being
discussed at the moment in view of the next local elections to be
held in October 2008. The Venice Commission is providing assistance.
Georgia
73. On 5 January 2008, extraordinary
presidential elections were held in Georgia. These early elections were
called in a bid to resolve the political crisis that erupted in
the country after the declaration of the state of emergency in Georgia
on 7 November 2007, following several days of tense political protest
in Tbilisi.
74. According to the ad hoc committee of the Assembly that observed
this election, it was the first genuinely competitive election in
Georgia since its independence and was in essence consistent with
most Council of Europe commitments and standards for democratic
elections. However, the ad hoc committee also noted that the shortcomings
noticed during this election formed significant challenges for the
Georgian authorities that needed to be urgently addressed.
75. In addition to the presidential election, a non-binding referendum
was organised in which the Georgian public was asked whether they
wished to have the forthcoming parliamentary elections in spring
2008, as demanded by the opposition, or in autumn 2008 as foreseen
in the constitution. In this non-binding referendum, a large majority
of voters – approximately 80% – favoured holding parliamentary elections
in spring 2008.
76. In its Resolution
1603 (2008), the Assembly urged the Georgian authorities to fully
investigate the violations noted during the presidential election
and to bring any possible perpetrators to justice. Moreover, the Assembly
called upon the Georgian authorities to ensure that the forthcoming
parliamentary elections would be free and fair and fully in line
with Council of Europe standards and, to that extent, guarantee, inter alia, an effective electoral
complaints procedure and ensure the impartiality of the courts in
this process; ensure a balanced campaign environment for all contestants,
including equitable media access; ensure the clear separation between
government structures and election administration; continue the
efforts to improve the voters’ list and to cancel election day registration
of voters. In addition, the Assembly called upon the Georgian authorities
to adopt amendments to the constitution to lower the electoral threshold
from 7% to 5% and to transform the majoritarian component of the
election system into a system based fully on proportional representation.
77. In the aftermath of the state of emergency in Georgia, a dialogue
was initiated between the ruling and opposition parties to resolve
the political crisis in Georgia. This dialogue led to an agreement
to reform the electoral system. As part of this reform, it was originally
agreed to change the electoral system for the 50 majoritarian seats
in parliament from a first-past-the-post system to a system of regional
proportional lists. However, during the discussion on the constitutional
amendments in parliament, the amendments were changed to such an
extent that, in the end, not only the first-past-the-post system
was maintained for the majoritarian seats, but also the number of
majoritarian seats was increased from 50 to 75, at the cost of 25 proportional
seats.
78. On 21 March 2008, the parliament adopted amendments to the
Election Code, also to bring it in line with the amended constitution.
The amendments to the Election Code, inter
alia, lowered the electoral threshold to 5%, abolished
same day registration of votes, introduced party representation
on the district election commissions and simplified the electoral
complaints procedure. Parliamentary elections were called for 21
May 2008. These elections were observed by an ad hoc committee from
the Assembly.
79. The failure to reform the electoral system in line with the
agreement between the ruling party and opposition has not been conducive
to reducing the highly polarised political climate in Georgia. In
addition, also as a result of the cycles of amendments to the Election
Code, the latter contains inconsistencies and ambiguities and is
open to varying interpretation. Further electoral reform should
therefore be initiated immediately after the elections, when the
electoral stakes are less high. These reforms should be implemented in
close co-operation with the Venice Commission of the Council of
Europe and take into account the recommendations made by the Assembly.
Moldova
80. In their 2007 report on the
honouring of obligations and commitments by Moldova (Doc. 11374), the corapporteurs of the Committee on Moldova welcomed
the changes made to the Electoral Code in 2005. In particular, the
threshold for party lists was lowered to 4% for lists presented
by individual political parties and 8% for coalitions of political
parties. Moreover, the composition of the Central Electoral Commission
(CEC) and lower level election commissions was changed. Some 5 out
of 9 members of the CEC are now appointed by the opposition parties,
a formula which provides for a politically inclusive composition.
However, as the Congress observers have pointed out on the occasion
of local election observations, several of the so-called opposition
parties are actually supporting the government. The Venice Commission
and the Office for Democratic Institutions and Human Rights (ODIHR)
insisted, therefore, on the need to implement this formula in good
faith, so that the composition of electoral commissions as well
as the appointments to managerial positions guarantees inclusiveness
and impartiality in practice.
81. That being said, further improvements to the electoral legislation
need to be made. In particular, bearing in mind that the Moldovan
electoral system consists of one single constituency covering the
whole country, with a proportional distribution of seats, the representation
of national minority-based parties in the parliament – national
minorities make up about 20% of Moldova’s population – remains problematic.
Further amendments would be needed in order to clarify the decision-making
power within the CEC and provide better guaranties for dismissal
of CEC members for “serious violations”. The provisions for cancellation
of candidates’ registration should abide by the principle of presumption
of innocence; the provisions regarding the right to campaign and
right to free speech and expression are still unclear or too restrictive.
More transparency is needed in the publication of the polling stations’
results, etc.
82. The Monitoring Committee was, moreover, alarmed by the recent
legislative developments with regard to the Electoral Code. In April
2008, the Moldovan Parliament amended the Electoral Code again to
raise the threshold for party lists up to 6%. Moreover, the establishment
of “electoral blocs” – joint lists submitted by a collation of political
parties – was prohibited. These measures have raised concern and
the committee decided at short notice to hold an exchange of views
with the Moldovan delegation on 15 April. The electoral legislation should
not be changed every two or three years according to political imperatives.
It should allow a wide spectrum of political forces to participate
in the political process to help build genuinely pluralistic democratic institutions.
The co-rapporteurs will closely examine the recent amendments as
well as the reasons behind the recent legislative developments during
the observation of the preparation of the forthcoming parliamentary election
to be held in spring 2009.
83. In 2007 local elections were also held in Moldova at municipal
and district level. In its Resolution
1572 (2007), the Assembly noted that these elections were generally
considered to be well administered and that the voters were given
a real choice. The Assembly was concerned, however, by the fact
that some aspects of the electoral process still fall short of European
standards for democratic elections. In particular, the international
observation mission noted intimidation and pressure on candidates,
lack of pluralism in the media coverage of the electoral campaign
and inability of the media to provide diverse information. The Assembly also
observed an inappropriate application of some election procedures,
the undermining of the secrecy of the vote, and a complicated procedure
for the consideration of complaints, which resulted in a delay in
publishing the results of the vote. These problems are recurrent
in the Moldovan electoral practice and cannot be tolerated in a
Council of Europe member state aspiring to build a pluralist democratic
society based on the rule of law.
84. The Assembly urged the Moldovan authorities to carefully study
and take into account the conclusions of the international observers
of the local elections of June 2007 with a view to eliminating all
shortcomings with respect to European standards for democratic elections
in order to conduct free, fair and democratic parliamentary elections
in 2009.
Monaco
85. On the Assembly’s insistence,
Monégasque electoral law was amended in April 2002. In accordance also
with the revised constitution, the number of seats in the National
Council has been raised from 18 to 24, a third of which are filled
by proportional voting. The voting age has been lowered from 21
to 18 and the previous five-year period for naturalised Monégasques
to be able to vote has been abolished (see Doc. 11299). However, Monaco has not yet ratified the first Additional
Protocol to the European Convention on Human Rights (ECHR) that
safeguards, inter alia, the
right to free elections, in line with its accession commitment.
86. Elections to the National Council were held on 19 February
2008 and were observed by an ad hoc committee of the Assembly (Doc. 11535). The results of the ballot produced a parliament composed
of members of two of the three lists that ran in the elections,
with Union Pour Monaco (UPM) obtaining 21 out of the 24 seats and
Rassemblement et Enjeux pour Monaco (REPM) getting three seats.
87. The ad hoc committee agreed that, given the particular situation
of Monaco, the election was largely in line with Council of Europe
electoral standards. The Electoral Commission conducted its work
in an impartial and professional manner, displaying great transparency
and efficiency. The results of the elections were indicative of
massive support by the Monégasques for the reforms conducted by
the state. This should encourage the authorities to continue working
towards full implementation of Monaco’s commitments vis-à-vis the
Council of Europe, including the ratification of the first Additional
Protocol to the ECHR.
88. While no problems have been reported concerning media behaviour,
the ad hoc committee recommended that the Monégasque authorities
consider introducing new media legislation that would, inter alia, specifically address
media behaviour during the electoral campaign. It also reiterated
the Assembly recommendation inviting the Monégasque authorities
to reflect on the need to adopt a law on political parties, not
least with a view to ensuring the transparency of party funding.
Montenegro
89. In Opinion No. 261 (2007) on the accession of Montenegro, the
Assembly asked the Montenegrin authorities:
on the accession of Montenegro, the
Assembly asked the Montenegrin authorities:“to revise the electoral law and, in particular, the provision concerning the system for allocating seats to political party lists, to ensure that it does not mislead voters;”.
90. Montenegro held a presidential election on 6 April 2008. In
its report, the ad hoc committee of the Bureau of the Assembly on
the observation of the presidential election in Montenegro (Doc. 11567) concluded that the election was largely conducted in
line with European standards for free elections. It made a number
of recommendations to the authorities concerning further improvements
to the electoral legislation and practice. In particular, the ad
hoc committee concluded that:
- the authority of the state electoral commission (SEC) should be expanded to enable it to have monitoring powers over all aspects of the campaign;
- the separation between the state and political parties/candidates still needs substantial improvement before it complies with requirements of the Council of Europe’s Code of Good Practice in Electoral Matters;
- additional legislation is needed to cover all aspects of campaign funding, including financial disclosure and limits on spending and the protection of “whistle-blowers”;
- the candidate nomination process should be improved. The current requirement for signature collection should be brought in line with Venice Commission recommendations (maximum 1% of the number of voters). Steps should also be taken to minimise the risk of compromising the principle of secrecy in the process of signature collection;
- the entitlement to vote in Montenegro should be settled and the voter register revised in time for the parliamentary elections in 2009;
- laws on electoral bribery should be strengthened to make attempted bribery and soliciting bribes criminal offences, as existing law only criminalises the actual giving and taking of bribes;
- while the Montenegrin electorate has demonstrated that it is well educated in electoral matters, steps could usefully be taken to run voter awareness programmes in the future.
Russian Federation
91. Parliamentary elections were
held in the Russian Federation on 2 December 2007, which were observed by
an ad hoc committee of the Assembly. In its report, the ad hoc committee
(Doc. 11473) concluded that the elections had been free but not
fair and failed to meet many Council of Europe standards for democratic elections.
While significant technical improvements were noted, the overall
atmosphere, which limited political competition, the abuse of administrative
resources and a biased media coverage that favoured the ruling party, meant
that there was no level playing field in these elections. In addition,
the ad hoc committee expressed its concern about the merging of
state and ruling party during these elections.
92. The electoral legislation underwent several changes after
the previous parliamentary elections in 2003. The electoral system
was changed to a fully proportional system in a single nationwide
constituency. The threshold was raised from 5% to 7% and the formation
of electoral blocs was prohibited. Moreover, an imperative mandate
for deputies was introduced. Parties not represented in the Duma
must now either pay a deposit of 60 million roubles or collect 200000
supporting signatures, of which no more than 10 000 signatures can
come from one region. The ad hoc committee considered that the cumulative
effect of these changes to the electoral legislation hindered political
pluralism and made the entry of new and small parties in these elections
difficult if not prohibitive.
93. On 2 March 2008, presidential elections were organised in
the Russian Federation. In its report (Doc. 11536), the ad hoc committee of the Assembly that observed
this election concluded that the election reflected the will of
the electorate whose democratic potential was, however, not tapped.
The fact that one of the candidates was actively supported by the
outgoing president – who enjoyed very strong approval ratings and
support among the population – meant that the outcome of the election
was clear from the outset and turned its character into a plebiscite
on the performance of the outgoing president.
94. Many of the same flaws that were noted during the Duma elections
in December 2007, including strongly biased media coverage of the
campaign, were repeated during the presidential election. In addition,
the registration process for independent candidates was almost prohibitive,
raising questions with regard to the degree of how free this election
was.
95. In this respect, the ad hoc committee welcomed in its report
the apparent willingness of the CEC, as well as of the Russian delegation
to the Parliamentary Assembly, to evaluate the existing legal framework
for elections in the light of the experiences during the 2007 Duma
and the 2008 presidential elections.
96. In an unprecedented development, the Russian authorities limited
both the period that international observers could observe the elections,
as well as the number of observers. These limitations were not conducive
to election observation, as a result of which a number of organisations,
such as the Office for Democratic Institutions and Human Rights
of the Organization for Security and Co-operation in Europe (OSCE/ODIHR),
decided not to observe these elections. Given the geographical expanse
of the country, as well as its status of a country monitored by
the Assembly, such limitations on observers do not seem appropriate.
Serbia
97. The co-rapporteurs of the Committee
on Serbia noted in their draft report (AS/Mon(2008)07 rev.) that Serbia’s
electoral legislation does not fully meet European standards. According
to the experts of the Venice Commission and OSCE/ODIHR, the law
on the election of the members of parliament raises a number of problematic
points, especially with regard to the composition of electoral lists
and allocation of mandates.
98. With respect to the latter problem, firstly, the law does
not define exactly how the 5% threshold for electoral lists to access
apportionment of the mandate is calculated. Secondly, the election
law allows parties to arbitrarily choose the candidates from their
lists to become members of parliament after the election, instead of
determining the order of candidates beforehand. In the view of the
Venice Commission and of the OSCE/ODIHR, “this limits the transparency
of the system and gives political parties a disproportionately strong position
vis-à-vis candidates”. Seen together with the constitutional
provision on imperative mandate of the members of parliament (see
section iii below), this provision constitutes a serious violation
of European standards and a threat to the good functioning of democratic
institutions.
Seen together with the constitutional
provision on imperative mandate of the members of parliament (see
section iii below), this provision constitutes a serious violation
of European standards and a threat to the good functioning of democratic
institutions.99. Virtually the same procedure of allocation of mandates applies
to the allocation of seats in municipal assemblies. Although
this procedure is slightly better than the system of allocation
of mandates at the National Assembly, it undermines transparency
and disproportionately increases the influence of political parties
on politics at local level.
Although
this procedure is slightly better than the system of allocation
of mandates at the National Assembly, it undermines transparency
and disproportionately increases the influence of political parties
on politics at local level.100. Besides, elections are generally well administered in Serbia,
as was shown by the recent presidential and parliamentary elections
held respectively in February and May 2008.
101. With regard to the presidential election, the Assembly Election
Assessment Mission considered that the second round of voting in
Serbia’s presidential election was conducted in line with Council
of Europe commitments for democratic elections (Doc. 11534). However, some problems relating to the legislative framework
and technicalities of the electoral process were detected (for example,
lack of legislative provisions on the role of domestic and foreign
non-partisan observers and inadequacy of voting screens). The Assembly called
upon the Serbian authorities to eliminate these at the earliest
opportunity.
102. The parliamentary election of 11 May was held following resignation
of the government on 10 March 2008. The Assembly observers concluded
that the election was conducted in an overall professional manner, allowing
the country’s voters to choose freely among a wide range of political
options. They expressed concerns, however, about incidents of threats
against leading politicians’ lives. Moreover, the observers urged the
new parliament to close remaining voids in the legal framework and
address long-standing recommendations, such as removing provisions
permitting parties to allocate mandates in disregard of the order
of the candidates’ lists (see press release of 12 May 2008).
Ukraine
103. Pre-term parliamentary elections
were held in Ukraine on 30 September 2007 following months of political
crisis in the country which culminated in the dissolution of the
parliament by presidential decree in April 2007. The ad hoc committee
of the Assembly which observed these elections concluded that they
were conducted mostly in line with Council of Europe commitments
and standards for democratic elections and confirmed the positive
trend with regard to the organisation of elections in Ukraine that
started in 2006 (see Doc. 11469).
104. However, amendments adopted in June 2007 to the legal framework
for elections were considered to be “a step backwards over previous
legislation and to run counter to Council of Europe standards”.
In particular, the new provisions in the law that allow citizens
who travel abroad in the period before the elections to be removed
from the voters’ lists limit unduly the right to vote in contradiction
of Council of Europe standards. In addition, these provisions are
discriminatory in their implementation and raise concerns with regard
to lack of transparency and invasion of the privacy of the voters.
These provisions should therefore be removed from the law.
105. Also, for the ad hoc committee, the poor quality of the voters’
lists negatively affected the September 2007 elections and raised
concern. It was partly the consequence of the amendments to the
legal framework that resulted from the political agreement on 27
May 2007. The Law on the State Register of Voters of Ukraine came
into force on 1 October 2007, the day after the elections. The centralised
and computerised register of voters, linked to the civil registry,
which is foreseen in this law, will to a large extent address the
problems encountered with the voters’ list during these elections,
if implemented fully and in a timely manner. The ad hoc committee
therefore strongly recommended to the Ukrainian authorities not
to delay the implementation of this law and start immediately with
the compilation of the central voters’ register, in order for it
to be finalised and tested before the next elections take place.
106. The abolition of absentee voting for extraordinary elections
disenfranchises a significant number of people who cannot be at
the place where they are registered to vote on election day. The
provisions for absentee voting as implemented during the 2006 parliamentary
elections, and which remain valid for ordinary elections, largely
addressed the vulnerabilities of the absentee voting arrangements
to electoral fraud. The ad hoc committee therefore recommended that
absentee voting be reintroduced for extraordinary elections, with the
same safeguards as for ordinary elections.
107. While not generating a problem at these elections, the 50%
minimum turnout requirement for extraordinary elections to be valid,
potentially allows for election boycotts and cycles of failed elections.
The ad hoc committee therefore recommended to the newly elected
Verkhovna Rada to reconsider this requirement. It also reiterated
the longstanding recommendation of the Assembly, as well as of the
Venice Commission of the Council of Europe, that the Verkhovna Rada
adopt a single unified election code.
108. Deep concern was expressed by the politicisation of the Constitutional
Court as evidenced by its unwillingness, or inability, to decide
on important election related complaints in a timely fashion. This
gives extra weight to the recommendations of the Assembly for the
reform of the judiciary with a view to ensuring its complete independence
from political and other interests.
109. The ad hoc committee reiterated Assembly calls for reform
of the election system itself (see also Resolution 1549, paragraph 12). The election system should allow for
better regional representation and more influence of the voters
over who will represent them in parliament than is possible under
the current closed list system with one nationwide constituency.
A proportional multiconstituency system on the basis of open party lists
was recommended as the system that would best serve the needs of
the Ukrainian people. The Assembly reaffirmed its readiness to assist
Ukraine with the required constitutional and electoral reforms.
2.1.3. Political parties and their financing
Azerbaijan
110. At present, political groups
in Azerbaijan must have at least 20% of the vote to form factions.
In other words, no less than 25 MPS (out of a total of 125) are
required for this purpose. This is an astonishingly high percentage,
especially if we consider that in most Council of Europe member
states this figure varies between 3% and 5%. Therefore, the Assembly
invited the Parliament of Azerbaijan to consider significantly lowering
this percentage through a revision of its internal rules, if need
be with Council of Europe assistance or in the framework of the
Assembly’s parliamentary co-operation programme. Such a measure
would facilitate genuine democratic debate within the parliament,
improve the quality of debates and thus strengthen its role.
Bosnia and Herzegovina
111. A law on the financing of political
parties is currently being prepared. At its 74th Plenary Session,
the Venice Commission adopted an opinion on this law. Among other
things, the opinion focuses on the issues of use of externally donated
money by political parties, the barring of political parties from
elections, as well as the acceptable range of fines for violations
of the law. The corapporteurs will take this opinion into account
in the further stages of the monitoring process.
Moldova
112. In the course of 2007, a draft
law on political parties was prepared and submitted to the Venice Commission
for opinion. The new law stipulates that, besides donations and
membership dues, the parties will also benefit from 0.05% of the
state budget income. One half of the sum is to be distributed to
the parties in proportion to the number of mandates obtained in
the next parliamentary elections. The other half of the sum is to
be distributed to the parties according to the number of votes obtained
in the local elections. The parties cannot be financed from abroad,
by state-owned enterprises and from anonymous and confidential donations.
113. While in general the Venice Commission considered that the
draft law would be an important step forward and represented a comprehensive
document offering an opportunity to create transparency and accountability
in the financing of political parties, it found that it fell short
of a number of European standards, in particular, as regards the
provision of Article 11, paragraph 2, of the European Convention
on Human Rights (ECHR) concerning the restrictions which may be
placed on the exercise of the freedom of assembly and association.
Namely, the Venice Commission considered that the “double” minimum
membership threshold (5000 members nationwide and at least 150 members
in half of the rayons of Moldova)
is potentially restrictive and would be disproportionate and not
necessary in a democratic society. The compulsory submission of updated
lists of members to the Ministry of Justice before every upcoming
election would also place an unreasonable burden on political parties
and would be disproportionate and not necessary in a democratic society.
114. The law was finally adopted by the parliament in December
2007. The final text of the law has not yet been made available
to the co-rapporteurs of the committee.
Monaco
115. The Monégasque political scene
is radically different from that prevailing in most other European countries.
The primary function of a party in the principality is not to attain
power and thus enter government through elections expressing the
will of the people but only to contribute to the management of the
state’s affairs whilst permanently seeking a compromise between
the will of the Prince and the expectations of Monégasques as represented
by the National Council (see Doc. 11299, paragraph 107).
116. Monaco has no law on political parties, which take the form
of associations, and no laws on the public funding of political
parties or on conflicts of interest. As a consequence, there is
no check on election expenses either. Public funding for the parties
would be the only way of ensuring the continuance of political debate between
elections.
117. In its Resolution
1566 (2007), the Assembly recommended that the Monégasque authorities
begin considering the case for a law on political parties, in particular
so as to ensure greater transparency in party financing.
Montenegro
118. In Opinion No. 261 (2007) on the accession of Montenegro, the
Assembly asked the Montenegrin authorities
on the accession of Montenegro, the
Assembly asked the Montenegrin authorities“to amend the law on conflict of interest in accordance with European standards and adopt and implement laws on political parties and on their financing, ensuring transparency and accountability”.
Serbia
119. In their draft report on the
honouring of obligations and commitments by Serbia (AS/Mon(2008)07
rev.), the co-rapporteurs of the Committee on Serbia expressed concerns
about the excessive role political parties play in Serbia. As indicated
in section ii. above, according to the Serbian Constitution and
law, the mandate of members of parliament is of imperative character.
This makes the members of parliament dependent on the will of the
leadership of the political parties. The electoral arrangements
which give the political parties the possibility to allocate mandates
arbitrarily and not in the order of the candidates on the list strengthen
the concerns about the possibility for the democratically elected
citizens’ representatives to freely express their views in the political
process. Given that the parliament plays an important role in judicial
appointments, the excessively strong influence of political parties
on the political process raises some concerns about the implementation
of the principle of separation of powers in Serbia’s institutional
set-up.
120. The financing of political parties is regulated by a special
law adopted in 2003. While this law contains a number of sound principles,
the established measures for supervision and control over political
parties are weak: for example, political parties’ reports on the
financing of the election campaign in January 2007 were mostly incomplete
and unsatisfactory.
Russian Federation
121. According to the amended legislation,
in order to qualify for registration a political party needs to
have at least 50 000 members and at least 500 members in half of
the subjects of the Russian Federation and at least 250 in the other
half. In order to register for parliamentary elections, parties
not represented in the Duma must either pay a deposit of 60 million
roubles or collect 200000 supporting signatures of which no more
than 10 000 signatures can come from one region. In addition, the
formation of electoral blocs is forbidden and campaign financing
legislation is extremely complex. According to the ad hoc committee
that observed the 2007 Duma elections, these regulations make it
extremely difficult, if not prohibitive, for new and small parties
to develop and compete effectively in elections.
Ukraine
122. In its Resolution 1549 (2007), the Assembly reaffirmed that the recall of people’s
representatives by the political parties, the so-called “imperative
mandate”, is unacceptable in a democratic state and runs counter
to Council of Europe standards. The relevant provisions in the Constitution
of Ukraine should thus be abrogated in line with the recommendations
made by the Venice Commission in 2004 and similar provisions should
be deleted from ordinary legislation.
123. In its report on the pre-term parliamentary elections of 30
September 2007, the ad hoc committee of the Assembly which observed
them expressed concern over the continuing intertwinement at all
levels of political and business interests, as it clearly hampered
the democratic development of the country. In this respect, the ad
hoc committee welcomed the political will expressed by the political
parties that were elected into the new parliament to end the complete
immunity from criminal prosecution for members of the Verkhovna
Rada. It also recommended that proper provisions regarding financial
disclosure and transparency of campaign finances for candidates
and parties competing in the elections should be adopted.
2.1.4. The fight against corruption
Albania
124. In its Resolution 1538 (2007), the Assembly welcomed the measures taken by the Albanian
Government to establish and enforce a zero-tolerance policy in the
fight against organised crime, trafficking and corruption. The Assembly
recognised the significant results achieved by the government in
the fight against organised crime, with charges having been brought
against dozens of criminal groups involving hundreds of people.
The auditing and controlling authorities had intensified their activity
with respect to the use of public funds in public administration.
125. While reforms in public administration to fight corruption
and reduce costs are to be welcomed, the Assembly urged the Albanian
authorities fully to respect the law on civil service when hiring
and dismissing staff. The effectiveness of the public administration
should be further strengthened and for this it is also necessary
to increase the professionalism of senior civil servants and to
put an end to political appointments.
126. The Assembly regretted that efforts to make rapid progress
in the fight against corruption had sometimes resulted in some poorly
drafted laws, a number of which had been subsequently declared unconstitutional.
In the context of its fight against corruption, government and parliament
should also ensure full respect for independent and constitutionally
guaranteed institutions, such as that of the General Prosecutor
and the High Council of Justice.
127. During their forthcoming visit to Albania in 2008, the co-rapporteurs
will examine further progress achieved in this field, noting that
a new General Prosecutor was appointed in November 2007.
Azerbaijan
128. Despite commendable efforts
made by the authorities with Council of Europe assistance, corruption remains
a major problem in Azerbaijan affecting all levels of society and
threatening the economic, social and political development of the
country.
129. Azerbaijan has been a member of the Group of States against
Corruption (GRECO) since 1 June 2004 and has ratified both the Civil
Law and Criminal Law Conventions on Corruption.
130. GRECO addressed no fewer than 27 recommendations to the Azerbaijani
authorities in order to help them improve the efficiency of their
fight against corruption. The GRECO report has been analysed by
the AntiCorruption Commission under the Council for Management of
Public Service and proposals for improving domestic legislation
in line with its recommendations have been prepared. Four draft
laws have been examined by Council of Europe experts.
131. In its Resolution
1545 (2007) on the honouring of obligations and commitments by Azerbaijan,
the Assembly welcomed the fact that the Azerbaijani authorities
were preparing a national strategy for increasing transparency and
combating corruption, in co-operation with their international partners.
It further urged the Azerbaijani authorities to implement the recommendations
made by GRECO, improve accordingly domestic legislation and effectively
implement adopted measures.
Bosnia and Herzegovina
132. The level of political corruption
in Bosnia and Herzegovina is high. Politicians are widely believed
by the public to be the most corrupt. Despite the creation in 2005
of a special department in the State Court to deal with corruption
cases, this perception has not changed. The authorities at all levels
must step up efforts to fight political corruption.
133. Besides, Bosnia and Herzegovina co-operates actively with
the Council of Europe’s Group of States against Corruption (GRECO).
The second round evaluation report on Bosnia and Herzegovina was
adopted by GRECO on 8 December 2006. GRECO
concluded that Bosnia and Herzegovina was making substantial amendments
to its criminal legislation and the organisation of judicial and
prosecutorial systems. However, the implementation of the new legal
framework requires better coordination between different agencies
in detection, investigation and prosecution of corruption. The need
for staff training was also highlighted.
GRECO
concluded that Bosnia and Herzegovina was making substantial amendments
to its criminal legislation and the organisation of judicial and
prosecutorial systems. However, the implementation of the new legal
framework requires better coordination between different agencies
in detection, investigation and prosecution of corruption. The need
for staff training was also highlighted.134. With regard to public administration, GRECO welcomed the adoption
in 2006 of the Strategy for the Fight against Organised Crime and
Corruption but noted that its success would depend on the establishment
of an independent anti-corruption body responsible for monitoring
the strategy.
135. In practical terms, GRECO addressed a number of specific recommendations
to the authorities of Bosnia and Herzegovina and requested them
to provide a report on the measures taken, by 30 June 2008.
Georgia
136. The fight against corruption
has been a stated priority for the Georgian authorities, which has
resulted in a significant reduction of, especially small-scale,
corruption. However, corruption continues to be a point of concern.
In reaction to allegations of top-level political corruption, the
President of Georgia announced that a special anti-corruption commission
would be set up which would be directly responsible to him and the
Speaker of the Parliament.
137. In October 2006, GRECO adopted its final overall assessment
report on the first evaluation round of Georgia in which it resolved
to close the non-compliance procedure that was initiated in December
2003. In December 2006 GRECO adopted its second round evaluation
report on Georgia which contains 14 further recommendations
to the Georgian authorities.
which contains 14 further recommendations
to the Georgian authorities.138. Georgia ratified the Council of Europe Criminal Law Convention
on Corruption (ETS No. 173) in January 2008.
139. In Resolution 1609
(2008) the Assembly called upon the Georgian authorities to
pursue its fight against corruption and money laundering and fully
implement all recommendations by GRECO and MONEYVAL. In addition,
it called on the authorities to step up their efforts aimed at building
a culture of ethics of civil service.
Moldova
140. In its Resolution 1572 (2007) on the honouring of obligations and commitments by Moldova,
the Assembly called upon the Moldovan authorities to continue to
monitor the implementation of the anti-corruption strategy and action
plan and, in particular, introduce effective mechanisms and procedures
for fighting corruption in public institutions. In fact, the anti-corruption
strategy and action plan were adopted in 2004.
141. A revised action plan for the years 2007-09 was adopted by
the parliament in 2006. According to the Council of Europe experts
who evaluated the implementation of the action plan, the effectiveness
of the institutional mechanism of monitoring of the implementation
of the action plan is undermined by the heavy structure of the monitoring
group, composed of about 50 representatives from different institutions,
and by the lack of transparency in the relations and exchange of
information between the Co-ordination Council and the monitoring
group. Moreover, the co-rapporteurs noted in their report (Doc. 11374) that, according to some information received, different
institutions apply the same legal provisions differently or take
arbitrary decisions whenever there are gaps in the legislation.
142. The co-rapporteurs were assured by the authorities that these
inconsistencies among the different institutions have now been removed
by the recently introduced amendments to the Code of Criminal Procedure.
The corapporteurs recommended that these amendments be sent to the
Council of Europe for appraisal. They will follow this issue up
in the further stages of the monitoring process.
143. Besides, the co-rapporteurs noted in their recent report that
several other draft laws were in preparation, such as the code of
conduct of civil servants, the draft law on participation and transparency
in the decision making of public authorities and a draft law on
the conflict of interest. The Venice Commission is involved in the
preparation of some of these laws. The co-rapporteurs will follow
this up in the further stages of the monitoring process.
144. Finally, it is worth noting that GRECO recently adopted its
second evaluation report on Moldova. In
its report, GRECO acknowledged the efforts of the country in carrying
out reforms in the field of administrative organisation and legislation.
At the same time, the report stresses that much remains still to
be done and addresses a full set of very specific recommendations.
In
its report, GRECO acknowledged the efforts of the country in carrying
out reforms in the field of administrative organisation and legislation.
At the same time, the report stresses that much remains still to
be done and addresses a full set of very specific recommendations.Monaco
145. The ratification of the Criminal
Law Convention on Corruption (ETS No. 173) in March 2007 forms part of
a series of reforms decided on by Albert II, whose purpose is to
give greater transparency to the management of all bodies receiving
public funds in the interests of ethics and clarity. Monaco has
thus joined GRECO, which recently carried out its first fact-finding
visit to the principality.
146. According to the Monégasque authorities, the offences underlying
money laundering are exclusively offences outside the country. Even
though statistics show an exponential rise in suspect transaction declarations,
the Monégasque authorities do not regard this as causing an increase
in money laundering but rather as representing an improved awareness
of the need to control it.
147. The Monégasque anti-money-laundering system has a legislative
framework which in general meets international standards. In its Resolution 1566 (2007), the Assembly was pleased to note the considerable efforts
made by the principality to improve its legal weaponry against money
laundering and particularly welcomed the November 2006 law amending
Article 218 of the Criminal Code as regards offences underlying money
laundering.
Montenegro
148. In Opinion No. 261 (2007) on the accession of Montenegro to
the Council of Europe, the Assembly asked the Montenegrin authorities
to sign and ratify, within two years of its accession, the Civil
Law Convention on Corruption (ETS No. 174), as well as the Additional
Protocol to the Criminal Law Convention on Corruption (ETS No. 191).
It also asked them:
on the accession of Montenegro to
the Council of Europe, the Assembly asked the Montenegrin authorities
to sign and ratify, within two years of its accession, the Civil
Law Convention on Corruption (ETS No. 174), as well as the Additional
Protocol to the Criminal Law Convention on Corruption (ETS No. 191).
It also asked them:“to ensure that anti-corruption legislation is urgently adopted, that GRECO’s recommendations and conclusions are implemented and that the administrative capacity in the area of anti-corruption is upgraded;”.
Serbia
149. The co-rapporteurs of the Committee
on Serbia noted in their draft report on the honouring of obligations and
commitments by Serbia (AS/Mon(2008)07 rev.) that several important
legislative and practical measures were taken by the Serbian authorities
to fight corruption. The implementation of a comprehensive legislative package
is co-ordinated within the framework of the National AntiCorruption
Strategy adopted in 2005.
The implementation of a comprehensive legislative package
is co-ordinated within the framework of the National AntiCorruption
Strategy adopted in 2005.150. An action plan on the implementation of the strategy was adopted
in 2006. The implementation of the anti-corruption measures progresses
smoothly and several new cases involving corruption by civil servants, police
and customs officials were opened during 2006. However, the action
plan on the fight against corruption lacks clear deadlines, concrete
actions and the necessary resources for its implementation.
151. This being said, it is generally acknowledged that “corruption
is still widespread and constitutes a serious problem in Serbia”. Although
the legislation establishes a sound basis for developing anti-corruption
policies, it needs to be further improved in several respects. The
law on the financing of political parties contains a number of sound
principles but measures for supervision and control are weak. The
law on the prevention of conflict of interest does not cover all
officials who are involved in the decision-making process; there
are also problems with its enforcement, as the sanctions foreseen
by the law are rather limited. The law on public procurement introduces
complex procurement procedures and the role of the public procurement
agency is not strong enough. The auditors to the Supreme Audit Institution
were only appointed in September 2007. The material and procedural
criminal legislation could be further improved, in line with the
recommendations of the Council of Europe experts.
Although
the legislation establishes a sound basis for developing anti-corruption
policies, it needs to be further improved in several respects. The
law on the financing of political parties contains a number of sound
principles but measures for supervision and control are weak. The
law on the prevention of conflict of interest does not cover all
officials who are involved in the decision-making process; there
are also problems with its enforcement, as the sanctions foreseen
by the law are rather limited. The law on public procurement introduces
complex procurement procedures and the role of the public procurement
agency is not strong enough. The auditors to the Supreme Audit Institution
were only appointed in September 2007. The material and procedural
criminal legislation could be further improved, in line with the
recommendations of the Council of Europe experts.152. At institutional level, the fight against corruption is concentrated
in the relevant council. It is an advisory body whose mandate is
to provide support to the government in the implementation of anti-corruption
policies. The council may also make proposals of new legislation,
programmes and other activities to fight against corruption. The council has taken a number of sound
initiatives to fight against corruption in the past couple of years.
It has focused primarily on so-called “political corruption”. However,
it appears that cases of “administrative corruption”, that is, corruption
of civil servants, such as corruption in the health sector, judiciary, tax
administration and customs, have been somewhat neglected in the
work of the council.
The council has taken a number of sound
initiatives to fight against corruption in the past couple of years.
It has focused primarily on so-called “political corruption”. However,
it appears that cases of “administrative corruption”, that is, corruption
of civil servants, such as corruption in the health sector, judiciary, tax
administration and customs, have been somewhat neglected in the
work of the council.153. In order to achieve greater efficiency in investigating and
prosecuting criminal acts with elements of corruption and money
laundering, the Department for the Fight Against Corruption was
established as part of the 2008 yearly plan and programme of the
Prosecutor’s Office of the Republic of Serbia. The task of the department
is to co-ordinate its activities with the District Prosecutor’s
offices, as well as with other state organs (the Ministry of Internal
Affairs, tax police and other inspection services) and, if needed,
to take part in the first instance criminal proceedings.
154. To improve co-ordination between different structures responsible
for fighting corruption, the Government of Serbia prepared a law
on the Anti-Corruption Agency. According to the draft, the future
agency will replace the currently existing bodies, that is, the
Council for the Fight against Corruption and the Committee for the
Prevention of Conflict of Interest. It will also exercise control
over the financing of political parties and implement the anticorruption
strategy according to the agreed action plan. The agency would also
have “normative” functions and be responsible for preparing opinions
on laws and by-laws, thus ensuring the detection of “risks of corruption”
in draft legislation. This is a welcome initiative.
155. Besides, Serbia actively co-operates with the Council of Europe
Group of States against Corruption (GRECO). A detailed reply to
GRECO’s recommendations was recently sent to the Council of Europe.
Ukraine
156. In its Resolution 1549 (2007), the Assembly urged the Ukrainian authorities to launch
the reform of the criminal justice system and law enforcement agencies
and to take legislative and practical measures to tackle all forms
of corruption, including political corruption.
157. In their information note on their fact-finding visit to Ukraine
in January 2008 (Document AS/Mon(2008)06 rev.), the co-rapporteurs
regretted that, despite numerous political declarations, there has
been no substantial progress in tackling corruption in Ukraine.
The main achievement is again limited to the adoption of the policy
document – anti-corruption strategy approved by the president in
September 2006 (“Concept of the Fight against Corruption in Ukraine.
‘On the Road to Integrity’”). The action plan to implement this
concept paper was adopted by the government in August 2007 but it
appears to be very imprecise in its wording of measures and their
deadlines and should therefore be revised by the new government.
The anti-corruption legislative package, prepared by the Ministry
of Justice and submitted to the parliament by the president, was adopted
at its first reading in December 2006 and its final consideration
is still pending. The package in particular includes laws on ratification
of the UN Convention against Corruption and the Council of Europe Criminal
Law Convention on Corruption.
158. In February 2008, the President of Ukraine instructed the
Cabinet of Ministers to assign to the Ministry of Justice several
additional tasks in the sphere of combating corruption, in particular
pertaining to analysis of legislation with further suggestions to
eliminate corruption risks, review of draft legal acts as to their corruptness,
collection and analysis of statistics and other data concerning
anticorruption measures, promoting better public participation in
anti-corruption activities, etc. The co-rapporteurs welcomed this
initiative and called for its prompt implementation.
159. In October 2007, GRECO adopted its first report on Ukraine
covering the first and second evaluation rounds. The report was
promptly translated and published by the Ukrainian Ministry of Justice.
The co-rapporteurs urged that GRECO recommendations should be implemented
by Ukraine without delay.
160. The Ukrainian authorities have declared their intention to
set up a new law enforcement agency specialised in investigation
of corruption offences. This step would be in line with the provisions
of international standards contained in the Council of Europe and
UN conventions provided a number of conditions are met, that is,
independence of the body from undue influence, its accountability,
adequate resources and powers. The draft law on such an agency should
be reviewed by international experts.
161. Although most political forces claim that they are in favour
of combating corruption, especially at election time, Ukrainians
remain sceptical. According to the 2007 Transparency International
survey, some 70% of Ukrainians do not believe that the authorities
are effective in their struggle against corruption. The same survey found
that the majority of the population believe that the judiciary is
the most corrupt institution in Ukraine, followed by political parties,
parliament, and the Ministry of the Interior. Some 44% of Ukrainians
do not believe there will be a breakthrough in the next three years,
while 38% said that corruption would increase.
162. efforts in eradicating corruption should therefore be urgently
reinforced and include measures not only in the area of repression
through effective law enforcement but also in prevention and policy
co-ordination. Ukraine needs to introduce urgently several preventive
measures, in particular to create a mechanism for verification of
assets declarations of public officials and resolution of conflict
of interests, adopt new legislation on civil service and provisions
on code of ethics, and establish effective procedures for access
to public information. There is also a lack of co-ordination with
regard to anticorruption policy formulation and implementation.
Anticorruption measures should comply with Council of Europe and
international standards as well as recommendations of GRECO and
the OECD Anti-Corruption Network.
2.1.5. Media pluralism
Albania
163. In its Resolution 1538 (2007), the Assembly welcomed measures taken to increase the
transparency of the government’s work and supported the ongoing
efforts to improve the implementation of laws on access to information
and raise citizens’ awareness of their rights, including the adoption
of the new Code of Ethics for journalists and the establishment
of the Council on Media Ethics, as well as the adoption by the government
of a policy not to use the existing libel law as a means of intimidating
journalists. The Assembly further asked the Albanian authorities
to:
- adopt without further delay amendments to the Criminal and Civil Codes to decriminalise libel and reform civil defamation provisions with Council of Europe assistance;
- improve the regulations on the ownership and financing of media outlets;
- review media legislation in accordance with Council of Europe experts’ comments;
- ensure that any future draft legislation regarding media reform be thoroughly prepared in a transparent manner following consultation with media representatives;
- complete the change of the Albanian television channel from a state-controlled service into a public broadcasting service.
164. During their forthcoming visit to Albania in 2008, the co-rapporteurs
will examine further progress achieved in this field.
Armenia
165. The absence of media pluralism
in Armenia has been a long-standing concern of the Assembly and
its Monitoring Committee. Although there has so far been a pluralistic
and independent print media in Armenia (although with limited circulation
and thus importance), the current level of control by the authorities
of the electronic media and their regulatory bodies, as well as
the absence of a truly independent and pluralist public broadcaster,
impede the creation of a pluralistic media environment and further
exacerbate the lack of public trust in the political system (see Resolution 1609, paragraph 6.5).
166. Currently, all members of the Public Television and Radio
Council are appointed by the President of Armenia, while half the
members of the National Television and Radio Commission are appointed
by the president and half by the National Assembly. Given the dynamics
in the assembly at present, this means de facto that these two bodies
are representatives of the ruling political faction.
167. The campaign of the Prime Minister during the last presidential
election was consistently shown in a positive fashion and with similar
footage by all private media outlets, which gave the impression
that specific editorial policies were applied and which raised questions
about the editorial independence of the broadcasters. Moreover,
the composition of the Public Television and Radio Council and its
lack of political independence hinder the pluralism of public service
news broadcasts, as was evident from the manner in which the public
broadcasters covered the post-election period. During this period,
public media gave extensive overage of the views of the authorities
but ignored those who raised concerns about the conduct of the February
2008 elections.
168. Therefore, in its Resolution
1609 (2008) on the functioning of democratic institutions in Armenia,
the Assembly urged that the independence from any political interest
of both the National Television and Radio Commission and the Public
Television and Radio Council must be guaranteed. Also, the composition
of these bodies should be revised in order to ensure that they are
truly representative of the Armenian society, in line with recommendations
made by the Venice Commission and Council of Europe experts. Apart
from reforming legislation, the authorities should take steps to
ensure freedom and pluralism on a daily basis of public television
and radio. Moreover, harassment by the tax authorities of opposition
electronic and printed media outlets, which has been noted during
the last months, must be stopped.
Azerbaijan
169. The absence of media pluralism
has been one of the major concerns of the Assembly as regards Azerbaijan
since the country’s accession. In its Resolution 1545 (2007) on the honouring of obligations and commitments by Azerbaijan,
the Assembly regretted the fact that, instead of improving, the
general environment for the independent media in Azerbaijan kept
deteriorating.
170. In 2007, there were more than 100 cases in which media representatives
critical of the government were taken to court. This indicator is
10 times higher than in 2005. Some nine journalists were sentenced
and imprisoned. Six of them were released following the presidential
decree of 23 December 2007. However, the two Zahidov brothers (Zakit
and Ganimat) and Mr Eynulla Fatullayev, that is, the three journalists
associated with the most vocal opposition newspapers, did not benefit
from it and are still imprisoned despite repeated calls for their
release by the Assembly and other international, as well as domestic,
human rights defenders (see Document AS/Mon(2008)10 rev.).
171. Since the economy is monopolised, the lack of free market
advertising in the newspapers hinders the development of a free
and pluralist press in the country.
172. As regards electronic media pluralism, Azerbaijan is committed
to transforming the national television channel into a public channel
managed by an independent administrative board. Council of Europe
experts welcomed a number of progressive provisions in a draft law
on television and radio broadcasting. They criticised, however,
the extensive state intervention, including the state ordering special
programmes or sponsoring broadcasting. Also, the funding of the
Broadcasting Council comes directly from the state budget, which
leaves the council open to direct political pressure by the government.
According to media representatives and human rights defenders, the
electronic media are currently controlled by the Broadcasting Council,
which also considers it its duty to control the information available
on the Internet.
173. As regards in particular the electoral campaign, the Electoral
Code of Azerbaijan provides that political parties are entitled
to free broadcast time and print space, under equal conditions in
the state-funded media. However, no precise regulations provide
for the allocation of time to candidates on private channels.
Bosnia and Herzegovina
174. Bosnia and Herzegovina has
one of the most advanced self-regulatory mechanisms in Europe. The Communications
Regulatory Authority (CRA) is responsible for licensing and regulating
broadcasting and telecommunications, while the Press Council, a
voluntary and self-regulatory body, deals with complaints about the
print press. Complaints about broadcasting are sent to the CRA.
All citizens, including officials, have the right to lodge a complaint.
This complaints mechanism is widely used by citizens, institutions,
organisations, public officials and political parties.
175. Currently, Bosnia and Herzegovina has three public broadcasters
– BHRT (state level), RTFBiH (Federation of Bosnia and Herzegovina),
RTRS (Republika Srpska) – and three main commercial broadcasters –
OBN, TV Pink BiH, and Mreza Plus.
176. The 2003 EU feasibility study outlining the conditions Bosnia
and Herzegovina would have to meet in order to enter into negotiations
with the European Union on a Stabilisation and Association Agreement
(SAA) required Bosnia and Herzegovina to make significant progress
in a number of areas, including broadcasting legislation. In particular,
one of the requirements was the establishment of a unified public
service broadcasting system with state-level management. For this
purpose, four laws have to be adopted but only three of them have
been passed to date: the Law on the Public Broadcasting System of
Bosnia and Herzegovina, the Law on the State-wide Public Service
Broadcaster of Bosnia and Herzegovina and the Law on the Entity
Public Service Broadcaster of the Republika Srpska. The absence
of the fourth law, namely the Law on the Entity Public Service Broadcaster
of the Federation of Bosnia and Herzegovina (RTFBiH), continues
to block the completion of this new public broadcasting system.
177. In July 2007, the federation parliament adopted a revised
version of the Law on the Entity Public Service Broadcaster of the
Federation of Bosnia and Herzegovina taking into account the decision
of the federation Constitutional Court of 16 July 2006 but the Croat
caucus again invoked the vital national interest. Following the
failure of the Harmonisation Committee of both houses of the federation
parliament to come to an agreement, the matter is now again pending
before the federation’s Constitutional Court.
178. This is a very unfortunate development as the delay in the
reform of the public broadcasting system in Bosnia and Herzegovina
is hampering the SAA process. During their fact-finding visits,
the co-rapporteurs on Bosnia and Herzegovina asked the Bosnia and
Herzegovina authorities to take appropriate measures to unblock
the situation and complete the broadcasting reform.
Georgia
179. Georgia has a comprehensive
legal framework to protect freedom of expression and to promote
media pluralism. The Law on Freedom of Speech and Expression, which
prohibits censorship, protects journalist from undue pressure and
protects the confidentiality of journalistic sources is often considered
as an example for the region.
180. The events in November 2007, when two media outlets were temporarily
closed by the authorities, and the subsequent declaration of a state
of emergency, affected the media environment and its pluralism,
with some journalists seemingly more willing – at least temporarily
– to apply self-censorship than before.
181. A draft code of ethics for broadcasters led to criticism from
journalists and was denounced as an attempt by the authorities to
control the broadcast media. Its adoption was subsequently postponed
by the National Commission on Communications. Council of Europe
experts are currently working with the authorities on a revised
draft code of ethics for broadcasters.
182. Following criticism of the manner in which the Georgian public
broadcaster had covered the presidential election in January 2008,
the authorities started a dialogue with the opposition on oversight
of the public broadcaster. As a result, a new board of trustees
for the public broadcaster was elected by parliament, which is composed
of representatives from both the opposition and authorities. A new
general director for the public broadcaster was subsequently appointed
by the board of trustees.
Montenegro
183. Considering that the independence
of state media in Montenegro needs to be ensured more effectively, including
from a financial point of view, and political interference in their
activity must be stopped, the Assembly asked the Montenegrin authorities
in Opinion No. 261 (2007) (paragraphs 19.3.17 and 18) on the
accession of Montenegro:
(paragraphs 19.3.17 and 18) on the
accession of Montenegro:“to speed up reforms concerning the media in order to safeguard their independence and to ensure the implementation of the law on access to public information;
to provide the public service broadcasting system with the financial means to enable it to perform its functions;”.
Moldova
184. In its Resolution 1572 (2007) on the honouring of obligations and commitments by Moldova,
the Assembly urged the Moldovan authorities to “strengthen all the
necessary guarantees to ensure the respect of freedom of expression
as defined in Article 10 of the European Convention on Human Rights
and in line with the case law of the European Court of Human Rights,
and in particular to ensure proper implementation of the new broadcasting
legislation to promote freedom and pluralism of the mass media within
the framework of a genuine public broad casting service, as defined
in Assembly Recommendation
1641 (2004) on public service broadcasting”.
185. In their report (Doc. 11374), the co-rapporteurs expressed concerns about the lack
of freedom of the media in Moldova and the continued interference
of the authorities with the work of the media outlets and broadcasters.
To give but two examples, the monitoring of public broadcasters
Radio Moldova and TV Moldova 1 by the Coordination Council of the
Audiovisual (national regulatory authority) throughout the electoral campaign
for the 2007 local elections showed that the information which was
provided to the public was incomplete and partial; the two national
newspapers Moldova Suverana and Nezavisimaya Moldova, which had
received substantial subsidies from the state budget at the end
of 2006, did not provide impartial information and clearly favoured
the candidate of the Communist Party for the post of the Mayor of
Chişinău.
186. Although the newly adopted Audiovisual Code provides a sound
basis for reforming the media sector further and strengthening media
pluralism, its implementation is not going as well as it should.
The authorities should step up their efforts to complete audiovisual
reform, especially with regard to the transformation of Teleradio
Moldova into a genuine public service broadcaster. This will greatly
contribute to strengthening Moldova’s democratic institutions, especially
in the context of the forthcoming parliamentary election to be held in
spring 2009.
Monaco
187. In a country as small as Monaco
it is clearly difficult to ensure true pluralism in the area of
the media: it is simply not cost-effective (see Doc. 11299).
188. Access to information seems to be a problem as the government
still appears to confuse communication and information. The role
of the press centre, a government service, comes in for much criticism.
The Council of Europe could advise on the definition of a new policy
to facilitate and clarify access to information.
189. The Law on Freedom of the Media, adopted in July 2005, appears
overall to satisfy the profession particularly because it safeguards
the sacred principle of protecting journalists’ sources. However,
the law contains some problematic provisions, from the point of
view of Article 10 of the European Convention on Human Rights, as
interpreted by the case law of the European Court of Human Rights,
for example because of the number of exceptions to exceptio veritatis in libel cases
or the excessive penalty of up to two years’ imprisonment, whereas
everywhere else in Europe the trend is to decriminalise libel or
the spreading of false rumours.
Russian Federation
190. Freedom of the media and media
pluralism continues to be a point of concern. In its statement on
28 June 2007, the Monitoring Committee regretted the reports of
harassment of the media and expressed its concern that all national
electronic media are under de facto state control. Moreover, the
reports of the ad hoc committees that observed the parliamentary
and presidential elections in Russia underlined the general bias in
the national media in favour of the authorities and lamented the
absence of a truly independent and impartial public broadcaster.
Serbia
191. The co-rapporteurs of the Committee
on Serbia stressed in their draft report on the honouring of obligations
and commitments by Serbia (AS/Mon(2008)7 rev.) that, although Serbia’s
media context is relatively diverse in terms of the number of printed
and electronic mass media, there are serious concerns about the
lack of pluralism and the monopolisation of mass media by political
groups and businessmen. According to the Independent Journalists’Association
of Serbia (NUNS), “today’s mainstream news media in Serbia are controlled
by Milošević’s people”. This was shown by a survey
recently conducted by NUNS. Although the most prominent media are
owned by “local businessmen and tycoons”, the state influence in media
still remains very high. According to the survey, there are only
two completely foreign-owned media outlets in Serbia (Blic and 24
casa, owned by Ringier, Switzerland, and TV Fox, owned by American
News Corporation).
This was shown by a survey
recently conducted by NUNS. Although the most prominent media are
owned by “local businessmen and tycoons”, the state influence in media
still remains very high. According to the survey, there are only
two completely foreign-owned media outlets in Serbia (Blic and 24
casa, owned by Ringier, Switzerland, and TV Fox, owned by American
News Corporation).192. The co-rapporteurs strongly encouraged the Serbian authorities
to take appropriate measures to increase the pluralism of the media,
in particular by encouraging the privatisation of existing media
outlets and establishment of new ones.
193. The work of the National Regulatory Authority – the Republic
Broadcasting Agency – could also be improved in several respects.
In particular, transparency in the process of allocation of frequencies
to broadcasters needs to be enhanced.
Ukraine
194. In their information note on
their fact-finding visit to Ukraine in January 2008 (Document AS/Mon(2008)06
rev.), the co-rapporteurs regretted that no progress whatsoever
has been achieved in transforming state television and radio stations
into public broadcasters and in privatising state-owned/controlled
print media outlets. This leaves Ukraine with an anachronism unacceptable
for a democratic state.
195. A new initiative to finally launch the process of setting
up a public broadcasting system was announced in February 2008 by
the president who instructed the government to prepare relevant
proposals to be discussed at the National Security and Defence Council.
Although the latter does not look like a suitable venue for consideration
of this topic, the co-rapporteurs expressed hope that the decision
to transform state television and radio companies into genuine public
broadcasters, in line with Council of Europe standards, would soon be
made and realised. The creation of a functioning public broadcasting
system is one of the conditions for lifting the monitoring procedure
with regard to Ukraine.
196. They also called on the Cabinet of Ministers to resubmit as
soon as possible a draft law on privatisation of state/municipal-owned
or controlled press and support adoption by the parliament of the
law on transparency of media ownership at its final reading. It
is also recommended that Ukraine accedes to the European Convention
on Transfrontier Television without further delay.
2.1.6. Local and regional self-government
Albania
197. In its Resolution 1538 (2007), the Assembly welcomed the measures taken by the Albanian
Government to implement the recommendations made by the Congress
of Local and Regional Authorities of the Council of Europe, such
as the transfer to local government of responsibility for the collection
and administration of taxes for small businesses, the administration
of sewage systems and water supplies, etc.
198. The Assembly urged the Albanian authorities to implement the
recommendations made by the Congress in its Recommendation 201 (2006), in particular as regards: the current state of local
and regional self-government and their compliance with the European
Charter of Local Self-Government (ETS No. 122); regional selfgovernment;
the financial autonomy of local and regional authorities; the administrative
supervision of local authorities; and the electoral system and forthcoming
local elections.
199. During their forthcoming visit to Albania in 2008, the co-rapporteurs
will examine further progress achieved in this field, in particular
after the local elections held in February 2007 and amendments to
the relevant legislation.
Azerbaijan
200. Municipalities are recent institutions
in Azerbaijan: they started working as elected bodies only in 1999 (Doc. 11226). Besides municipalities, local executive authorities
are appointed by the President of Azerbaijan to exercise central
government powers as decentralised bodies. Baku, as well as other
large cities, still lacks an elected (directly or indirectly) mayor
at city level.
201. local elections were held in Azerbaijan on 6 October 2006
and observed by the Congress of Local and Regional Authorities of
the Council of Europe. They were marked by a low turnout (33%) and
the lack of an active electoral campaign. These elements reflect
the small degree of priority conferred by the government and political
forces to the real practice of local and regional democracy.
202. Assembly, in its Resolution
1545 (2007) on the honouring of obligations and commitments by Azerbaijan,
adopted on 16 April 2007 on the basis of a report by the Monitoring
Committee (Doc. 11226), urged the Azerbaijani authorities to implement the
recommendations made by the Congress in order to bring the relevant
legislation and practice in line with the constitution and the European
Charter of Local Self-Government (ETS No. 122). In particular, the
authorities should take all necessary measures to:
- grant municipalities a substantial share of public responsibilities;
- ensure that sufficient means are provided for their implementation; and
- with respect to Baku and other large cities, set up a city council directly elected by the citizens to run local public administration acting at overall city level.
- Bosnia and Herzegovina
203. Local government reform in the Federation of Bosnia and Herzegovina
and Republika Srpska is not progressing as well as it should. The
overall institutional set up of Bosnia and Herzegovina complicates
the furthering of the decentralisation reform, as the adoption of
basic legislation on local self-government falls in the Republika
Srpska within the competence of the Entity and in the Federation
of Bosnia and Herzegovina within the competence of the cantons.
The Republika Srpska adopted a new law on local self-government
in April 2004, in close cooperation with the Council of Europe.
The law was subsequently amended in 2007 but still falls short of
a number of the requirements of the European Charter of Local Self-Government.
204. In the Federation of Bosnia and Herzegovina, the proposal,
initiated in 2005, to amend the constitution in order to assign
regulatory competences for local self-government to the federation
failed to secure the required majority. Nevertheless, a law on the
principles of local self-government was adopted in 2006 at the federation
level, thus laying down a number of core rules along which decentralisation
should develop in the cantons. However, the adoption of this basic
legislation is just the beginning of the process. Specific legislation on
local self-government has to be enacted by the cantons and cantonal
framework laws should ensure effective devolution of sectoral responsibilities.
Equally, fiscal decentralisation needs to be further strengthened in
both Republika Srpska and the Federation of Bosnia and Herzegovina
in order to give local authorities effective means to exercise their
competences. The issue of local government property has also yet
to be resolved.
205. The efficient functioning of local self-government would require,
in the medium term, a degree of harmonisation of basic and sectoral
legislation in Republika Srpska, the Federation of Bosnia and Herzegovina and
the cantons in order to establish a basis for inter-entity cooperation
between municipalities in service provision. Such harmonisation
would of course be easier to implement within the framework of a
wide constitutional reform at the level of the state. However, pending
the implementation of the constitutional reform, the authorities
of Republika Srpska, the Federation of Bosnia and Herzegovina and
cantons should closely co-operate in the harmonisation of local
government legislation in order to build strong and effective local democracy
in Bosnia and Herzegovina.
206. With respect to the status of Mostar, no major developments
occurred in 2007. The administrative unification of city authorities
is progressing, although at a rather slow pace.
Georgia
207. Georgia is a party to the European
Charter of Local Self-Government since 1 April 2005. It subsequently started,
in co-operation with Council of Europe experts, the process of drafting
and amending several laws, including the organic Law on Self-Government,
the so-called decentralisation package. However, this package is
still under consideration by the parliament. The laws on local self-government
and on the budget for local self-governing units have been passed,
but the adoption of the law on citizens’ participation in local
self-government activities is still pending.
208. The Assembly, in Resolution
1603 (2008), called upon the Georgian authorities to implement the legislative
package on local self-government and to ensure the proper functioning
of the State Commission on Decentralisation to lead the implementation
of the decentralisation strategy.
Moldova
209. In its Resolution 1572 (2007) on the honouring of obligations and commitments by Moldova,
the Assembly invited the Moldovan authorities to work with:
- Council of Europe experts to bring the legislation governing local government finance into line with the standards of the European Charter of Local Self-Government (ETS No. 122) by, in particular, increasing local authorities’ own revenues, introducing a direct and transparent system of payment of transfers and building an objective, stable, predictable and fair equalisation system;
- the local authority associations and the Council of Europe’s Centre of Expertise for Local Government Reform to develop the knowledge of local elected representatives and staff and their ability to implement new legislation by launching innovative capacity-building programmes;
- the Council of Europe to harmonise the legislation of the Autonomous Territorial Unit of Gagauzia with the Moldovan Constitution and national legislation.
210. In fact, although some positive developments occurred recently
in terms of adapting the Moldovan legal framework for decentralisation
to European standards, including the adoption of a new law on local
public administration and administrative decentralisation, the financial
arrangements for local government still remain extremely weak, thus
hampering the implementation of the new legislation as well as limiting
the real autonomy of local authorities to manage their competences
effectively. The administrative and territorial reform should also
be seen as a key medium-term priority of the decentralisation reform,
given the large number of first and second-level local authorities
in a relatively small country.
Monaco
211. The principality has only one
municipality, whose boundaries correspond to those of the state.
Despite this de facto situation, the municipality is administered
differently to the state (see Doc. 11299, paragraphs 130-131).
212. A new law on local self-government came into force in June
2006. This law gave greater financial and budgetary autonomy as
from 2007.
213. When welcoming the 2006 law on local self-government, the
Assembly, in its Resolution
1566 (2007), also encouraged the Monégasque authorities to ensure
that foreign nationals residing in the principality be allowed to
participate in the management of municipal affairs, in keeping with
Council of Europe standards.
Montenegro
214. Considering that the existing
legislation regarding local self-government in Montenegro is not
in line with the European Charter of Local Self-Government (ETS
No. 122), the Assembly asked the Montenegrin authorities, in Opinion No. 261 (2007) on the accession of Montenegro, to
ratify this charter without delay, and at the latest within one
year after its accession. The Assembly also asked the Montenegrin
authorities:
on the accession of Montenegro, to
ratify this charter without delay, and at the latest within one
year after its accession. The Assembly also asked the Montenegrin
authorities:“to strengthen the government structures responsible for local self-government, notably with regard to administrative supervision, and to revise the legislation and regulations governing local budgeting, equalisation schemes and the devolution of sectoral responsibilities to the municipalities”.
Russian Federation
215. While a number of concerns
in this context remain, notably with regard to the composition of
the Council of the Federation and
its effects on the separation of powers, the co-rapporteurs who
visited Russia from 20 to 24 April 2008 welcomed the efforts by
the Russian authorities to strengthen regional and local democracy.
and
its effects on the separation of powers, the co-rapporteurs who
visited Russia from 20 to 24 April 2008 welcomed the efforts by
the Russian authorities to strengthen regional and local democracy.Serbia
216. In summer 2007, Serbia ratified
the European Charter of Local Self-Government, thus fulfilling another outstanding
accession commitment. However, the legislative and financial framework
for local government in Serbia still needs to be further strengthened
to comply with the charter standards. The co-rapporteurs of the Committee
on Serbia pointed out in their draft report on the honouring of
obligations and commitments by Serbia (AS/Mon(2008)7 rev.) that
the effective devolution of sectoral responsibilities to local authorities
needs to be completed, fiscal decentralisation has to be further
strengthened in order to give the local authorities appropriate
means to manage new competences effectively, and the procedure of
administrative supervision over local authorities’ action needs
to be clarified and streamlined. Equally, the outstanding issue
of local government property needs to be resolved to help promote
local and regional development further. Finally, the capacity of
local authorities needs to be built up to enable them to manage
new competences effectively and in the interests of the local population.
These are but a couple of priority objectives the Serbian authorities
have to face in the years to come in the field of local and regional
government reform.
217. Equally, in their draft report on the honouring of obligations
and commitments by Serbia (AS/Mon(2008)7 rev.), the co-rapporteurs
of the committee encouraged the authorities and all key stakeholders
to continue reflections about introducing an intermediary tier of
local government in the country. Regionalisation is a good way to
improve the standards of democracy. It will also improve the capacity
of public authorities to manage devolved competences more efficiently,
in line with the principle of subsidiarity. It will furthermore
create an appropriate basis for managing structural reforms, thus
increasing the capacity of Serbian authorities to absorb EU pre-accession
funding.
Ukraine
218. Since 2005 (see Assembly Resolution 1466 (2005) and Doc. 10676), no major developments have occurred in the field of
local and regional self-government in Ukraine. Territorial reform
is still needed in the country. During their next visit, the co-rapporteurs
could obtain updated information in this area.
2.1.7. Conflicts and the role of parliaments in promoting confidence building
219. On 5 and 6 November 2007, in
Berlin, our committee co-organised with the German Bundestag and
the German Institute for International and Security Affairs (SWP)
a hearing on “frozen conflicts”. The hearing gave rise to productive
exchanges of views between a panel of leading experts, high-level
government, Council of Europe and EU representatives, and members
of the Monitoring Committee.
220. Historians, researchers and international law specialists
analysed the current situation in NagornoKarabakh, Abkhazia, South
Ossetia and Transnistria. They outlined the different tools which
could be used for the settlement of the conflicts, including parliamentary
diplomacy, conflict prevention and conflict resolution policies
within the framework of the EU. Various options offered by comparative
constitutional law were also presented by the representative of
the Council of Europe’s Venice Commission.
221. According to the conclusions of the meeting, our Assembly
is well placed to provide a forum for raising awareness on these
issues, as well as a platform in which experiences of conflict-settlement
processes can be discussed and lessons learned. The Assembly can
also help foster a positive negotiating climate, through dialogue
at the parliamentary level. Parliamentarians can lobby their own
governments to support peaceful conflict resolution, facilitate
the implementation of conflict settlements and post-conflict programmes,
and, generally, assist in the democratic consolidation of the countries/regions
concerned. The Monitoring Committee plays a specific role in this
regard by regularly monitoring the respect of commitments in the countries
concerned, including those relating to the resolution of these conflicts.
National parliaments in the countries concerned have also a role
to play in promoting confidence building as a prerequisite for the
peaceful settlement of conflicts.
222. It is clear that democratic developments in Azerbaijan, Georgia
and Moldova cannot be consolidated as long as their territorial
integrity is not restored and a peaceful settlement of the conflicts
of Nagorno-Karabakh, Abkhazia and South Ossetia, and Transnistria
respectively has not been achieved. Regrettably, no significant positive
developments have been registered during the reporting period (April
2007-June 2008) with respect to any of the above-mentioned conflicts;
the tensions have recently escalated with respect to the Abkhaz
and South Ossetian conflicts.
2.2. States involved in a post-monitoring dialogue
2.2.1. Bulgaria
223. Following an exchange of views
in May 2007 with the Bulgarian delegation on an information note prepared
by the first vice-chair in the framework of the post-monitoring
dialogue with Bulgaria (Document AS/Mon(2006)26) and the comments
thereupon submitted by the Bulgarian authorities (Document AS/Mon(2007)13),
the Monitoring Committee decided to ask the opinion of the Venice
Commission on the Bulgarian Constitution, in particular with respect
to the amendments in February 2007.
224. The Venice Commission delegation visited Bulgaria in November
2007 and held an exchange of views with the Minister of Justice
of Bulgaria at its meeting of March 2008, during which the minister
submitted both oral and written observations (Document CDL(2008)035).
In its opinion, adopted at that meeting (Document CDL(2008)009),
the Venice Commission concluded that the provisions of the Constitution
of Bulgaria, including its recent amendments of February 2007, were
generally in conformity with European standards and in line with constitutional
practice in other European states. The constitution has provided
a sound framework for the development of a democratic system in
Bulgaria.
225. However, the Venice Commission considered that this did not
mean that there was no room for further improvements in the text,
with respect to both the chapter on human rights and the one on
the judiciary. From the angle of the separation of powers, the role
of the Minister of Justice as Chair of the Supreme Judicial Council
with the right to initiative is problematic; the minister’s right
to propose the budget may contradict the constitutional principle
of the budgetary independence of the judiciary; membership in the
Supreme Judicial Council should be incompatible with any representative
mandate or political function; it should be ensured that, within
the Supreme Judicial Council, judges, prosecutors and investigating
magistrates cannot interfere within each other’s affairs; the probationary
period of five years for new judges raises serious difficulties
for judicial independence; and the inspectors are given too broad
powers, with the risk of interference in the administration of justice.
226. For the Venice Commission, the new provisions of the constitution
in relation to civil and criminal immunity in the judiciary are
in line with previous recommendations and are to be welcomed. On
the other hand, the difficulties relating to the structure of the
Supreme Judicial Council have not been addressed since the earlier
Venice Commission opinions. Some 11 members are still elected by
parliament, while it remains possible for a simple majority in parliament
to elect all of these members. One solution might be to have only one
third of the members of the council elected by parliament with a
qualified majority.
227. The Venice Commission welcomed the constructive reaction of
the Bulgarian authorities to this opinion and expressed its readiness
for further co-operation with them as well as with the Parliamentary
Assembly.
228. In my capacity of chairperson of the committee I should visit
Bulgaria before the end of this year or the beginning of 2009 to
update the most recent information note drafted by Ms Severinsen
in September 2006 and discuss the contents of the opinion of the
Venice Commission and the intentions of the Bulgarian authorities
as to the follow-up which should be given to the recommendations
made by the Venice Commission for improvement of the constitution.
2.2.2. “The former Yugoslav Republic of Macedonia”
229. In the memorandum on the post-monitoring
dialogue with “the former Yugoslav Republic of Macedonia”, prepared
by the Chairperson of the Monitoring Committee (AS/Mon(2007)12 rev.2),
the committee noted that the parliament badly needs new parliamentary
rules of procedure, which would take account of a proper language
balance, reasonable time frames for debates and MPs’ work with their
electorate. In fact, at the moment, the parliament is in session
five days a week and all round the year, which does not leave any
time for the MPs to meet with their electorate in their constituencies.
Equally, speaking time at any stage of legislative procedure is
not limited. It is believed that delaying and obstructing undesired
legislation by means of endless discussions was an old “blocking”
tactic of any successive opposition in the parliament.
230. The divisions between the coalition partners and the opposition
were aggravated by a recent parliamentary crisis which started in
March 2008 when the Democratic Party of Albanians (one of the members of
the ruling coalition) left the coalition for ten days to protest
against the non-recognition of independence for Kosovo. The crisis
was further aggravated by the fact that Greece vetoed the country’s
accession to NATO. As a result, parliament dissolved itself and
a new election was called for 1 June 2008. The committee followed
the electoral process closely and hopes that the new majority coalition
will be able to engage in a constructive dialogue with the opposition
in order to enhance the functioning of the country’s democratic
institutions.
231. As regards the fight against corruption, this was the number
one priority of the government. The legal and institutional framework
as regards corruption has been enhanced to a degree. Parliament
has ratified the United Nations Convention against Corruption. The
country has also made good progress in implementing the recommendations
of GRECO: the first set has been mostly implemented and the implementation
of the second set is currently under way. Also, the immunity rules
have been changed in line with the recommendations of GRECO. The
Law on Free Access to Public Information has been adopted in view
of increasing the transparency of public activities. Transparency
International has noted progress in the country’s efforts to fight against
corruption and organised crime, ranking it 84th in 2007, up from
105th place the year before.
232. The Code of Ethics for Civil Servants has been amended to
include an obligation for civil servants to report all illegal acts
carried out by other civil servants in the performance of their
duties. Also, amendments to the anti-corruption law have been enacted
to prohibit political parties from receiving and spending funds
from anonymous sources. The amendments reinforced the obligation
on all appointed and elected officials to declare their assets,
and made it obligatory for these to be published on the State Anti-Corruption
Commission website. A law on conflicts of interest was recently
adopted which sets out measures and activities for establishing,
preventing and sanctioning cases of conflict of interest when performing
activities of public interest.
233. The State Anti-Corruption Commission has been vested with
the responsibility of dealing with corruption cases. It has also
prepared the new action plan for prevention and repression of corruption,
as an upgrade of the existing one. However, the approach to tackling
corruption is not yet comprehensive and it lacks concrete allocation
of resources.
234. Despite all these efforts, corruption remains widespread and
is facilitated by the lack of good governance, transparency and
accountability in public administration. The country’s capacity
to investigate and prosecute corruption is weak, although some progress
has been made in this field. Many cases are reported to have been
brought to court but they then disappear. Nonetheless, a few court
decisions have been issued in high profile cases, including those
of a former deputy minister, former customs director, judges, lawyers, notaries
and police officers. The implementation of efficient anti-corruption
legislation together with the strengthening of institutions and
consolidation of strong independent oversight mechanisms remain
the key urgency.
235. As regards local and regional self-government, the second
phase of the decentralisation process was launched in July 2007
with 42 of the 85 municipalities considered ready. Nevertheless,
the very high degree to which competence in virtually all areas
of public authority is to be transferred is a challenging task.
236. The question of debt remains an issue as substantial debts
could threaten the functioning of several municipalities. Smaller
municipalities have difficulties delivering basic services. Municipal
tax collection is a challenge in many municipalities. The approach
to financing education has been improved but remains inadequate.
The fact that tensions and lack of mutual confidence persist among
the communities makes cooperation between the Albanian municipalities
dominated by the opposition and the central government difficult.
The question of giving special status to Skopje has not yet been
decided.
237. Land reform has not been carried out – the ownership question
is still a bone of contention that leads to many court disputes.
The land cadastre, prepared with foreign donor support (World Bank),
will be operational only in 2008. The goal is to have administrative
documents delivered within ten days after their request, which will
help reduce the enormous bureaucracy and source of corruption, and
it is an indispensable condition for safety of investment.
238. In order to surpass the economic and social differences between
various regions of the country and between the urban and rural areas,
the government adopted a draft law on equal regional development
on 21 February 2007. However, the funding of the tasks decentralised
to the municipalities remains insecure. The qualitative and quantitative
capacities of some municipalities remain rather low. Co-ordination
and information-sharing between municipalities remains limited.
239. In my capacity of chairperson of the committee I should visit
the country in order to update the memorandum prepared by my predecessor,
before the end of this year or at the beginning of 2009.
2.2.3. Turkey
240. In the framework of the post-monitoring
dialogue with Turkey and upon the request of the former chairman
of the committee, in December 2007, the Turkish delegation to the
Assembly provided information on the progress made with regard to
12 issues raised in Resolution
1380 (2004), which closed the monitoring procedure for Turkey (see
Document AS/Mon(2007)58 confidential, available only to the members
of the Monitoring Committee). Among these issues appeared the need
to:
- “carry out a major reform of the 1982 Constitution, with the assistance of the Venice Commission, to bring it into line with current European standards”;
- “amend the electoral code to lower the 10% threshold and enable Turkish citizens living abroad to vote without having to present themselves at the frontier”;
- “complete the revision of the Criminal Code, with the Council of Europe’s assistance, bearing in mind the Assembly’s observations on the definitions of the offences of insulting language and defamation, rape, honour crimes and, more generally, the need for proportionality arising from the European Court of Human Rights’ case law on freedom of expression and association”;
- “reform local and regional government and introduce decentralisation in accordance with the principles of the European Charter of Local Self-Government (ETS No. 122); as part of the reform, to give the relevant authorities the necessary institutional and human resources and arrange distribution of resources to compensate for the underdevelopment of certain regions, particularly southeast Turkey, and move from a dialogue to a formal partnership with United Nations agencies to work for a return, in safety and dignity of those internally displaced by the conflict in the 1990s.”
241. Early parliamentary elections were held in Turkey, on 22 July
2007, following a political crisis that developed over the parliament’s
failure to elect a new president of the republic to succeed Ahmet
Necdet Sever before the expiry of his single seven-year term, on
16 May 2007. In the context of the post-monitoring dialogue between
the Assembly and Turkey, the Grand National Assembly of Turkey invited
the Assembly to observe these elections.
242. The ad hoc committee which observed them (see Doc. 11367) found that the elections were generally in compliance
with Turkey’s Council of Europe commitments and European standards
for free elections and the Assembly’s delegation said it was impressed
with the organisation and the conduct of the vote, which took place
in an orderly and professional fashion testifying to a longstanding
tradition of democratic elections in Turkey.
243. The high voter turnout showed that confidence in the democratic
process exists in Turkey. Electoral administrators at all levels
dispatched their duties effectively and in good faith.
244. However, the ad hoc committee believes that Turkey could do
more in terms of organising even better elections that would guarantee
a genuinely representative parliament. The 10% threshold requirement,
aimed officially at ensuring stability but, in effect, limiting
representation in the parliament, could be lowered, in accordance
with Assembly Resolution
1380 (2004) and Resolution
1547 (2007) on the state of human rights and democracy in Europe.
The fact that the new parliament elected on 22 July 2007 is far
more representative than the outgoing parliament, representing about
90% of the opinions of the electorate, is due to the fact that three
instead of two parties are represented and to the ploy of opposition
parties to launch party-sponsored independent candidates and not
to any steps taken by the Turkish authorities themselves.
245. The ad hoc committee suggested that the Turkish authorities
might wish to consider seizing the Venice Commission on this issue,
as well as on simplifying electoral legislation.
246. Consideration should be given also to the following issues:
- allowing appeals to a court of law against administrative rulings by the Supreme Board of Elections, also because the over-regulated legislation results in bureaucratic hassle that can impede the registration process for candidates and creates problems for different ethnicities;
- complete lists and allowing campaigning in regional and minority languages, as well as to making ballot papers more legible – which was not adequately achieved by the newly introduced unique ballot paper – given the amount of entries they contain, which makes them difficult to read, in particular for the illiterate and persons belonging to national minorities;
- introducing legal provisions concerning election observers and codifying their status in the law in accordance with the conclusions of the Conference on the Parliamentary Dimension of Election Observation: Applying Common Standards, held in Strasbourg in February 2007.
247. Political parties in Turkey could also wish to reconsider
internal party democracy issues, taking into account Parliamentary
Assembly Resolution 1546 (the code of good practices for political parties).
248. During the April part-session of the Assembly, a written declaration
was signed by Assembly members (Doc. 11589) on the ongoing judicial proceedings against the Justice
and Development Party (AKP) in Turkey. Recognising the independence
of the judiciary and prosecution, the signatories expected the latter
to respect the case law of the European Court of Human Rights on
Articles 10 and 11 of the ECHR when considering political party
closure and bans on individual members. Encouraged by the resolute
commitment of Turkey to pursue the democratic reform process, they
urged Turkey to consider without delay further constitutional and legislative
reforms to conform fully with the ECHR.
249. In my capacity of chairperson of the committee I should visit
Turkey if possible in Autumn 2008 to report back to the committee
on progress made by the Turkish authorities on the 12 issues mentioned
in Resolution 1380 (2004) and Resolution
1547 (2007), as well as on the recommendations made by the ad hoc
committee on the observation of the 2007 parliamentary elections
in Turkey and developments regarding the judicial proceedings against
the AKP and its possible closure. I hope that, in the meantime,
the Turkish authorities could consult with the Venice Commission
about the ongoing constitutional reform so that I could avail myself of
feedback provided by this prestigious Council of Europe body.
2.3. Applications to initiate a monitoring procedure
2.3.1. Media pluralism in Italy
250. On 24 January, 2006, Mr Wodarg
and others tabled, through a motion for resolution, an application
to initiate a monitoring procedure concerning the monopolisation
of the electronic media and possible abuse of power in Italy (Doc. 10811). This motion was referred for opinion to the Monitoring
Committee by the Bureau on 29 May 2006, after the general elections
held in Italy in April 2006. The Monitoring Committee’s co-rapporteurs,
Mr Patrick Breen (Ireland, EPP/CD) and Mr Erik Jurgens (Netherlands,
SOC), visited Italy in July 2007. The committee adopted and forwarded
its opinion to the Bureau in September 2007 (Document AS/Mon(2007)35).
251. The findings of the co-rapporteurs confirmed that Italy’s
media spectrum was clearly experiencing an anomaly in its television
sector with one of the highest levels of concentration at the national
level in Europe. Characterising this anomaly is the “duopoly” between
the public service broadcaster, RAI, and the privately-owned commercial
operator, Mediaset, over the last decade, with RAI being subject
to political influences.
252. Up until the beginning of 2006, this situation was exacerbated
by the conflict of interest arising out of the dual status of Mr Silvio
Berlusconi as owner of Mediaset and Prime Minister. Although the
current law on conflicts of interests (Frattini Law) was deemed
inadequate to remedy such a situation in that it prohibits only the
management not the ownership of a company and public office, the
corapporteurs considered that the urgency of the situation was remedied,
at least de facto, by the simple fact that Mr Berlusconi was no
longer at the head of the government.
253. Although RAI and Mediaset carve out the market as principal
and level players, a third important operator, Sky Italia, is emerging
as a front runner in the satellite television market and is participating
in the overall revenue share of the television market. In addition,
the switch over to Digital Terrestrial Transmission (currently foreseen
for 2008) will open the television market to new operators and has
the potential of ensuring greater pluralism through content diversity
and increased information sources.
254. As regards the regulation of dominant market positions in
the television sector, there are several independent regulatory
bodies which vigilantly monitor the situation and have made use
of their regulatory powers in applying strict limits as provided
by the law, upon which the Constitutional Court has relied in the
past to come to its decisions. As far as content is concerned, on
the basis of the Equal Access Law (“Par Condicio”) of 2000, the
Communications Regulatory Authority (AGCOM) strictly monitors equal
access in airtime or advertising space, and has even extended this
law to apply outside of electoral periods.
255. Notwithstanding the high level of concentration in the national
analogue terrestrial television sector, Italian citizens generally
have access to a wide variety of information sources and content
diversity across the media landscape. An examination of the global
media market reveals a highly active and diverse local television
sector with around 600 channels and other pluralistic media sectors,
such as the radio, and the printed press sector, the latter being
considered as one of the least concentrated in Europe.
256. Although the co-rapporteurs agreed with the Venice Commission
that “internal pluralism must be achieved in each media sector at
the same time”, they concluded that the anomaly in one of its electronic
media sectors did not itself warrant the initiation of a full-fledged
monitoring procedure with respect to Italy. As a result, it could
not be argued that Italy had violated its commitments of media pluralism
and freedom of expression as guaranteed under Article 10 of the
European Convention on Human Rights, to which it is party.
257. They noted, however, that the principal legislation currently
in force governing this particular sector is largely inadequate
in responding to Italy’s unique media context, as was determined
by the Venice Commission in its 2005 opinion. Proposed draft laws,
intended to increase systematic regulation of the media sector,
with an emphasis on pluralism and market competition, were under
examination before the Chamber of Deputies and the Senate, including
an important draft law dealing with the reform of RAI in an attempt
to free it of its political stronghold and therefore increase independence
and content diversity. In this context, the co-rapporteurs wished
to underline that whatever form this “liberalisation” may take,
either through privatisation or through a public foundation, it
was paramount that the RAI carry out its public service remit uncompromisingly, that
funds to finance this part of its activities come from public sources,
and that it have complete independence from the political sphere
(either government or parliament). In the opinion of the co-rapporteurs,
these laws require further revision in order to achieve these laudable
aims.
258. As a result, the Monitoring Committee was of the opinion that
a monitoring procedure should not be opened “at [that] stage” (that
is, in September 2007) but that the legislative developments in
Italy should be followed in its periodic reports, assisted, where
necessary, by the Committee on Culture, Science and Education or
the Committee on Legal Affairs and Human Rights.
259. The Bureau of the Assembly endorsed the opinion of the Monitoring
Committee and made it public at its meeting of 22 November 2007.
The Assembly ratified the decision not to open a monitoring procedure
with respect to Italy during its January 2008 part-session.
2.3.2. Elections in the United Kingdom, in particular postal voting
260. In June 2006, Mr Wilshire and
other members of the Assembly tabled, through a motion for a resolution, an
application to initiate a monitoring procedure to investigate electoral
fraud in the United Kingdom. In this motion, the authors alleged
that the growing body of evidence that absent voting fraud is taken
place in the United Kingdom would warrant the initiation of a monitoring
procedure by the Assembly. This motion was referred to the Monitoring
Committee, which appointed Ms Herta Däubler-Gmelin (Germany, SOC)
and Ms Ursula Gacek (Poland, EPP/CD) as co-rapporteurs for opinion
to the Bureau of the Assembly. Following the co-rapporteurs’ visit
to the United Kingdom in February 2007 and upon their proposal,
the committee decided in April 2007 to ask the Venice Commission’s
opinion on three specific questions regarding the voter registration
and postal voting systems in the United Kingdom. The Venice Commission
adopted its opinion in December 2007 (Document CDL-AD(2007)046).
261. In their opinion (Doc. 11565, Addendum 2), the corapporteurs concluded that the electoral
system in Great Britain is clearly open to electoral fraud. This
vulnerability is mainly the result of the rather arcane system of
voter registration without personal identifiers. It was exacerbated
by the introduction of postal voting on demand, especially under
the arrangements as existed before the changes in the Electoral
Code in 2006. The 2006 changes to the Electoral Code enhanced the
security of the postal voting arrangements, but other shortcoming
and vulnerabilities remain.
262. Despite these vulnerabilities in the electoral system, there
is no doubt that elections in the United Kingdom are conducted democratically
and represent the free expression of the will of the people of the
United Kingdom. On these grounds, it cannot be argued that the United
Kingdom has fallen short of honouring its democratic commitments
to the Council of Europe and the co-rapporteurs could therefore
not recommend opening a monitoring procedure with respect of the
United Kingdom.
263. This opinion was adopted by the Monitoring Committee on 24
January 2008 and sent to the Bureau which, on 13 March 2008, in
accordance with the recommendation of the Monitoring Committee,
recommended to the Assembly not to open a monitoring procedure with
respect of the United Kingdom at this stage.
264. However, the co-rapporteurs stressed in their opinion that
the vulnerabilities in the electoral system could easily affect
the overall democratic nature of future elections in Great Britain.
The co-rapporteurs therefore recommended that the Monitoring Committee,
in its periodic reports on the honouring of commitments by member
states, should pay special attention to electoral issues with respect
of the United Kingdom and, if the vulnerabilities noted are found
to undermine the overall democratic nature of future elections,
apply to initiate a monitoring procedure with respect to the United
Kingdom.
265. The Assembly ratified the decision not to open a monitoring
procedure with respect to the United Kingdom during its April 2008
part-session.
266. On 18 March 2008, the committee received a copy of a judgment
concerning the elections to the Slough Borough Council in May 2007,
in which there was serious electoral fraud arising from the false
registration of names on the electoral register, one of the weaknesses
of the British electoral system identified in the opinion of the
committee.
3. The Monitoring Committee and the other Council of Europe monitoring mechanisms
267. The Monitoring Committee has
continued to benefit from the work carried out by other Council
of Europe monitoring bodies and institutions. Its co-rapporteurs,
during their visits to the countries concerned and in their reports,
systematically refer to the judgments of the European Court of Human
Rights and the recommendations issued by the other Council of Europe
bodies and institutions and urge for their execution or implementation.
By doing so, the Monitoring Committee promotes in turn the work
of these mechanisms. As an example, the publication of several reports
of the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT) was authorised by member
states just after the co-rapporteurs’ visits.
268. In addition, since June 2006, the Monitoring Committee has
been producing periodic reports on all member states not currently
subject to a monitoring procedure or involved in a post-monitoring
dialogue, which summarise the findings of the main Council of Europe
monitoring bodies and institutions on these states. Some 33 member
states are concerned by this exercise, subdivided into three groups
of 11 (on the basis of alphabetical order). The committee attaches
these periodic reports to its annual progress reports to the Assembly,
with each group of states reported upon every three years.
269. To prepare these periodic reports account is taken of the
work carried out by the following Council of Europe bodies and institutions:
the European Court of Human Rights; the Committee of Ministers in
its supervisory function of the execution of the Court’s judgments;
the European Committee of Social Rights (ECSR); the Commissioner
for Human Rights; the Congress of Local and Regional Authorities
of the Council of Europe; the Group of States against Corruption
(GRECO); the Committee of Experts on the Evaluation of Anti-Money
Laundering Measures and the Financing of Terrorism (MONEYVAL); the
European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT); the Advisory Committee on
the Framework Convention for the Protection of National Minorities;
the Committee of Experts of the European Charter for Regional or
Minority Languages; and the European Commission against Racism and Intolerance
(ECRI). As of next year, the work of a new monitoring institution,
GRETA, to be set up under the Convention against Trafficking in
Human Beings, will also be taken into account.
270. The periodic reports also include references to the work of
Council of Europe consultative bodies, such as the European Commission
for Democracy through Law (Venice Commission) and the European Commission
for the Efficiency of Justice (CEPEJ).
271. Without additional resources, the Monitoring Committee is
thus seeking to fulfil its mandate “to ensure full compliance with
the undertakings made by all member states, in a spirit of co-operation
and non-discrimination” and has enabled the Assembly and the public
at large to become aware of the main issues at stake within the
member states concerned and, at the same time, of the relevant work
carried out by the Council of Europe. It has thus provided a mechanism
of parliamentary oversight of the activities of the intergovernmental
sector of the Council of Europe.
272. In the context of this annual exercise, the committee has
also organised a series of exchanges of views: in 2006 with the
Commissioner for Human Rights, the Chairperson of GR-DEM and the
Chairperson of the Institutional Committee of the Congress of Local
and Regional Authorities of the Council of Europe; in 2007 with
the Chairperson of the CEPEJ; and in 2008, with the Chairperson
of GRECO.
273. This year, the committee completes the first threeyear cycle
of periodic reporting. Reports are appended in the addendum to the
present report on the last group of 11 states: Norway, Poland, Portugal,
Romania, San Marino, Slovakia, Slovenia, Spain, Sweden, Switzerland
and the United Kingdom.
274. At the same time, having completed this exercise for all member
states not subject to a monitoring procedure or involved in a post-monitoring
dialogue, some observations can be made and conclusions can be drawn
in order to improve efficiency of the unique monitoring machinery
of the Council of Europe and enhance synergies for the benefit of
the Organisation, the member states and ultimately European citizens.
3.1. Optimising synergies and capitalising on the monitoring bodies’ output into the Organisation’s programme of activities
275. The Council of Europe represents
the most comprehensive multilateral monitoring system in Europe
if not in the world. The independence and impartiality of its various
monitoring bodies, as well as their expertise, have contributed
to their efficiency and the acquis they
have established over years of functioning.
276. Some of these mechanisms are treaty based, such as for instance
the CPT, the ECSR or the Advisory Committee of the Framework Convention
for the Protection of National Minorities, others are not: for instance, the
Commissioner for Human Rights or ECRI. Their nature varies (judicial,
quasi-judicial or non-judicial), as do their working methods and
degree of confidentiality of their work, as well as the scope of
their mandate.
277. Among the political bodies carrying out monitoring activities,
the Assembly, through its Monitoring Committee, has the largest
mandate since it verifies compliance with the specific accession
commitments, as well as with the statutory or convention obligations
assumed by the member states and covers a wide variety of issues
with respect to democracy, the rule of law and human rights, including
minority rights, in the member states under monitoring. This becomes
clear by simply looking at the contents of the Monitoring Committee’s reports
or the country grid used for the preparation of its periodic reports.
278. Despite the above-mentioned differences, the mandates of the
various monitoring mechanisms often overlap. For instance, prison
conditions in a member state under monitoring procedure is an issue
examined by the European Court of Human Rights, the CPT, the Commissioner
for Human Rights, as well as the Assembly’s Monitoring Committee.
279. It is thus clear that finding ways and means for optimising
synergies and enhancing co-ordination among the various mechanisms,
without – I underline this – putting at risk their independence
or interfering with their distinct working methods and priorities,
is essential if their efficiency is to be further enhanced. In particular, tools
could be defined allowing for the various monitoring mechanisms
to adapt their respective agendas as regards fact-finding missions,
reports, etc., improve information sharing and avoid duplication.
Cross-references by one monitoring mechanism to another (especially
by a more general to a more specialised mechanism) and thus a more
coherent action can only increase the mechanisms’ impact and improve
dialogue with the authorities of the member states concerned.
280. Since optimising synergies would be highly beneficial to our
work, our committee could organise a hearing bringing together the
chairpersons of all monitoring bodies whose work is fed into our
committee’s work (see paragraph 269 above), the Commissioner for
Human Rights, the President of the European Court of Human Rights,
the Chairperson of the Institutional Committee of the Congress of
Local and Regional Authorities of the Council of Europe (in charge
of monitoring in the field of local self-government), as well as
a representative of the Committee of Ministers. The Monitoring Committee
could thus offer a forum for an exchange of ideas and search for
ways and means to improve synergies among all those primarily concerned.
281. The presidents of consultative bodies, which assist – with
their expertise – on the one hand, the member states in honouring
their obligations and commitments and, on the other, the Monitoring
Committee co-rapporteurs in better understanding the situation in
the member states concerned, namely the Venice Commission and the
CEPEJ, should also participate at this hearing. Especially the Venice
Commission works very closely with our committee, responding always
rapidly and efficiently to our various requests for opinions on
one or more laws or constitutions in member states under monitoring
or post-monitoring or for which a monitoring procedure has been
requested (such as has been recently the case with the electoral
system in the United Kingdom).
282. Such a hearing would also allow our committee to decide how
to proceed further with the second cycle of its periodic reports
which will start as of June this year, after the adoption of the
present progress report.
283. The hearing could take place, if possible, before the end
of the year, on dates to be agreed after consultation with all those
concerned. Only if all bodies and institutions concerned can be
represented could such a hearing lead to concrete results and achieve
its objective.
284. Apart from enhancing co-ordination, to further improve the
efficiency of the Council of Europe monitoring machinery, it would
be also necessary to ensure that the findings of the various monitoring
mechanisms feed directly into the Organisation’s programme of activities,
in particular as regards standard setting, expert assistance and
co-operation programmes. Such programmes should take into account
the work of the mechanisms and address as a priority shortcomings
identified by them in the countries concerned.
285. One solution would be to ask the mechanisms themselves to
give their views on what they see as a priority in terms of assistance
either in standard setting or in more technical terms. They could
present their proposals to the Secretary General and the Committee
of Ministers before the adoption of the Organisation’s programme
of activities. For the same purpose, the findings and recommendations
contained in the country monitoring reports prepared by our committee
should also be taken duly into account. Voluntary contributions could
also be sought to implement recommendations made by monitoring mechanisms
in member states when financing by the ordinary budget is not possible
or sufficient (see for instance two pilot projects on prison reform in
Albania and Moldova financed by such voluntary contributions).
3.2. Enhancing specific follow-up by the Council of Europe mechanisms themselves and by appropriate national mechanisms: in particular, parliamentary oversight
286. Enhanced follow-up procedures
enabling the monitoring mechanisms to verify implementation of their recommendations
by the member states is another essential element to ensure increased
efficiency.
287. The various monitoring bodies of the Organisation apply different
working methods for verifying the implementation of recommendations.
Some do so through “compliance” or “follow-up” reports (such as,
for instance, GRECO and the Commissioner for Human Rights respectively);
others organise a follow-up seminar (such as for instance the ECRI
and the Advisory Committee of the Framework Convention for the Protection of
National Minorities); the CPT carries out extensive (confidential)
post-visit dialogue with the countries concerned; with respect to
the conclusions and decisions of the ECSR, the European Social Charter
provides for a specific follow-up mechanism involving the Committee
of Ministers and the governmental committee.
288. However, between the moment a monitoring mechanism addresses
a number of recommendations to a member state and the moment a follow-up
report is made public, a rather long period of time elapses ranging from
two to five years or more. During this period, it is often impossible
to obtain information on the follow-up given by the member states
concerned on the findings of each mechanism. This is a reality with
which our committee is often faced either when searching for information
in a member state under monitoring or post-monitoring or when preparing
the annual periodic reports.
289. It would thus be advisable that monitoring mechanisms engage
a reflection with a view to strengthening existing follow-up procedures
provided that additional resources are allocated to the mechanisms
for this purpose.
290. Equally important is to set up or enhance national mechanisms
in charge of ensuring that appropriate follow-up is given to findings
of Council of Europe monitoring mechanisms in the member states.
They could be general or specific, that is in charge of one or more
Council of Europe monitoring mechanisms.
291. Such national mechanisms would in particular be responsible
for preparing responses to the monitoring mechanisms of the Council
of Europe, co-ordinating action among all state actors involved
in the implementation of their recommendations, awareness raising
and disseminating information on the mechanism’s findings and recommendations,
as well as preparing, where appropriate, action plans on the measures
needed to implement them. They could also offer advice on compatibility
of national legislation and practice with Council of Europe standards
as developed by the mechanisms concerned.
292. The adoption by the Committee of Ministers in February 2008
of Recommendation Rec(2008)2 on efficient domestic capacity for
rapid execution of judgments of the European Court of Human Rights
sets an example which can be followed mutatis
mutandis with respect to the implementation of the recommendations made
by other Council of Europe monitoring bodies and institutions. The
recommendation provides for a co-ordinator – individual or body
– as regards execution of judgments to be designated at the national
level, “with reference contacts in the relevant national authorities
involved in the execution process”.
293. Also, tools could be defined allowing for regular feeding
of information on follow-up given by member states to the recommendations
made by the monitoring mechanisms. National mechanisms of co-ordination could
be in charge of transmitting relevant information (for instance,
onto a database) at regular intervals (for instance, every six months).
The Council of Europe mechanisms could initially simply take note
of this information, while proceeding to a critical analysis and
assessment in the context of their enhanced follow-up procedure
(for instance, follow-up visit, report, seminar, etc.) at longer
intervals.
294. Provided that member states accept to waive confidentiality
on a voluntary basis, as appropriate, other Council of Europe monitoring
mechanisms or institutions, including our committee, could thus
benefit from updated – although not yet critically assessed – information
and take it into account in their work. This would increase transparency
and again enhance synergies. For instance, our committee has decided
to make public the comments of the parliamentary delegations concerned
on the preliminary draft reports it produces provided that these
delegations do not object, although in principle all working documents
of the committee are confidential.
295. Of course, the necessary additional resources should be allocated
to the mechanisms to create such tools being understood that, once
in place, they would improve information flow without affecting
their working programme and causing extra costs.
296. Last but not least, national parliaments should be regularly
informed of measures taken by the governments to implement recommendations
by Council of Europe monitoring mechanisms, as well as to ensure
execution of the judgments of the Strasbourg Court. Such information
could be presented to them by the national mechanisms in charge
of co-ordination.
297. Parliaments have a special role in promoting implementation
of recommendations or execution of judgments of the Court by either
initiating and adopting required legislation or exercising their
role of oversight of government action.
298. They should also use the periodic reports prepared by our
committee as the basis for a debate on their country’s record with
regard to the fulfilment of their statutory and conventional obligations
as member states of the Council of Europe. Such parliamentary debates
would ensure that MPs from the opposition and not only the ruling
majority are aware of the findings of monitoring mechanisms and
that their views are heard. This would strengthen democratic oversight
and add a political dimension to reports which are often of a more technical
nature.
4. Conclusions
299. Throughout the reporting period
(April 2007-June 2008), the Monitoring Committee has continued to accompany
11 countries currently under monitoring procedure (Albania, Armenia,
Azerbaijan, Bosnia and Herzegovina, Georgia, Moldova, Monaco, Montenegro,
Russian Federation, Serbia and Ukraine) and three countries engaged
in a post-monitoring dialogue (Bulgaria, Turkey and “the former
Yugoslav Republic of Macedonia”) through the process of consolidating
their democratic institutions in compliance also with the principles
of the rule of law and the protection of human rights.
300. Some of its most recent country monitoring reports were prepared
under accelerated procedure in order to enable the Assembly to react
quickly and efficiently to urgent and critical situations, involving
directly the functioning of democratic institutions in the member
states concerned, such as:
- the dissolution of parliament by presidential decree in Ukraine, in April 2007, after months of political crisis;
- the pre-term presidential elections in Georgia, in January 2008, called in a bid to resolve the political crisis which erupted in the country after several days of political protest and the declaration of the state of emergency in November 2007;
- the post-electoral crisis in Armenia, in February 2008, which led to the declaration of the state of emergency and the tragic events of 1 March, including 10 deaths and more than a 100 persons wounded;
- the preparation of the presidential elections in Azerbaijan, in October 2008.
301. On the basis of the reports prepared during the reporting
period by the Monitoring Committee’s corapporteurs on each country
concerned, a number of conclusions can be drawn as to the recurrent
issues raised in all countries under monitoring and (to a lesser
extent) in countries engaged in a post-monitoring dialogue, as regards
in particular: the separation of powers and the role of parliament;
elections and electoral reform; political parties and their financing;
the fight against corruption; media pluralism; local and regional
self-government; and conflicts and the role of parliaments in confidence
building. These conclusions with respect to both progress and shortcomings
in the member states concerned are contained in the proposed draft resolution.
302. A number of proposals are also made regarding the relations
of our committee with the other Council of Europe monitoring bodies
and institutions, including the proposal to organise a hearing as
a forum for exchanging ideas and identifying ways and means to improve
synergies.
303. With a view to ensuring increased efficiency, the member states
are also called upon to set up or enhance national mechanisms in
charge of ensuring that appropriate follow-up is given to findings
of Council of Europe monitoring bodies.
304. A number of other suggestions, including with a view to optimising
synergies, capitalising on the monitoring bodies’ output into the
Organisation’s programme of activities and supporting the monitoring
bodies’ work by the allocation of additional resources, are addressed
to the Committee of Ministers.
305. If received positively by those concerned, I hope that these
proposals could initiate a reflection which could eventually contribute
to further increasing efficiency of the unique monitoring machinery
of the Council of Europe – the largest multilateral monitoring system
in Europe if not in the world – for the benefit not only of the
bodies concerned, including our committee, but also of the Organisation
as a whole, its member states and eventually European citizens.
Appendix – Chart of ratifications and signatures of the main Council of Europe conventions with a monitoring mechanism by the third group of 11 member states
(open)|
CoE member states not currently under monitoring procedure or post-monitoring dialogue |
Total no. of CoE conventions ratified or signed as of 7 May 2008 (out of 203) |
DEMOCRACY |
RULE OF LAW |
HUMAN RIGHTS |
||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
ECLS-G |
Convention on Corruption |
Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (1990 and revised versions) |
ECHR |
Protocols of the ECHR |
ECPT |
Social rights |
Minority rights |
|||||||||
|
Civil Law |
Criminal Law |
6 |
12 |
13 |
14 |
ESC (1961 and revised versions) |
Protocol of the ESC on collective complaints |
FCNM |
ECRML |
|||||||
|
Norway |
132 14 |
R S |
R |
R |
R |
R 1990 – revised |
R |
R |
S |
R |
R |
R |
R 1961 R revised |
R |
R |
R |
|
Poland |
82 15 |
R S |
R |
R |
R |
R 1990 R revised |
R |
R |
– |
S |
R |
R |
R 1961 S revised |
– |
R |
S |
|
Portugal |
105 – |
R S |
R |
– |
R |
R 1990 S revised |
R |
R |
S |
R |
R |
R |
R 1961 R revised |
R |
R |
– |
|
Romania |
97 1 |
R S |
R |
R |
R |
R 1990 R revised |
R |
R |
R |
R |
R |
R |
S 1961 R revised |
– |
R |
R |
|
San Marino |
– 17 |
R S |
– |
– |
S |
R 1990 S revised |
R |
R |
R |
R |
R |
R |
– 1961 S revised |
– |
R |
– |
|
Slovakia |
92 6 |
R S |
R |
R |
R |
R 1990 S revised |
R |
R |
S |
R |
R |
R |
R 1961 S revised |
S |
R |
R |
|
Slovenia |
– 16 |
R S |
R |
R |
R |
R 1990 S revised |
R |
R |
S |
R |
R |
R |
S 1961 R revised |
S |
R |
R |
|
Spain |
106 14 |
R S |
R |
S |
S |
R 1990 – revised |
R |
R |
S |
S |
R |
R |
R 1961 S revised |
– |
R |
R |
|
Sweden |
– 18 |
R S |
R |
R |
R |
R 1990 S revised |
R |
R |
– |
R |
R |
R |
R 1961 R revised |
R |
R |
R |
|
Switzerland |
106 15 |
R S |
R |
– |
R |
R 1990 – revised |
R |
R |
– |
R |
R |
R |
R 1961 – revised |
– |
R |
R |
|
United Kingdom |
112 20 |
R S |
R |
S |
R |
R 1990 – revised |
R |
R |
– |
R |
R |
R |
R 1961 S revised |
– |
R |
R |
Table of abbreviations
R: Ratified
S: Signed but not yet ratified neither signed nor ratified
–: neither signed nor ratified
ECHR: Convention for the Protection of Human Rights and Fundamental Freedoms
ECPT: European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
ESC: European Social Charter (1961 or revised)
FCNM: Framework Convention for the Protection of National Minorities
ECRML: European Charter for Regional or Minority Languages
ECLS-G: European Charter of Local Self-Government
Reporting committee: Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee).
Reference to committee: Resolution 1115 (1997).
Draft resolution and draft recommendation unanimously adopted by the committee on 27 May 2008.
Members of the committee: Mr Serhiy Holovaty (Chairperson), Mr György Frunda (1st Vice-Chairperson), Mr Konstantin Kosachev (2nd Vice-Chairperson), Mr Leonid Slutsky (3rd Vice-Chairperson), Mr Aydin Abbasov, Mr Avet Adonts, Mr Pedro Agramunt, Mr Miloš Aligrudić, Mrs Meritxell Batet Lamaña, Mr Ryszard Bender, Mr József Berényi, Mr Aleksandër Biberaj, Mr Luc Van den Brande, Mr Jean-Guy Branger, Mr Mevlüt Çavuşoğlu, Mr Sergej Chelemendik, Ms Lise Christoffersen, Mr Boriss Cilevičs, Mr Georges Colombier, Mr Telmo Correia, Mr Valeriu Cosarciuc, Mrs Herta Däubler-Gmelin, Mr Joseph Debono Grech, Mr Juris Dobelis, Mrs Josette Durrieu, Mr Mátyás Eörsi, Mrs Mirjana Ferić-Vac, Mr Jean-Charles Gardetto, Mr József Gedei, Mr Marcel Glesener, Mr Charles Goerens, Mr Andreas Gross, Mr Michael Hagberg, Mr Holger Haibach, Ms Gultakin Hajiyeva, Mr Michael Hancock, Mr Davit Harutyunyan, Mr Andres Herkel, Mr Raffi Hovannisian, Mr Kastriot Islami, Mr Miloš Jevtić, Mrs Evguenia Jivkova, Mr Hakki Keskin, Mr Ali Rashid Khalil, Mr Andros Kyprianou, Mr Jaakko Laakso, Mrs Sabine Leutheusser-Schnarrenberger, Mr Göran Lindblad, Mr René van der Linden, Mr Eduard Lintner, Mr Younal Loutfi, Mr Pietro Marcenaro, Mr Mikhail Margelov, Mr Bernard Marquet, Mr Dick Marty, Mr Miloš Melčák, Mrs Assunta Meloni, Mrs Nursuna Memecan, Mr João Bosco Mota Amaral, Mr Theodoros Pangalos, Ms Maria Postoico, Mr Christos Pourgourides, Mr John Prescott, Mr Andrea Rigoni, Mr Dario Rivolta, Mr Armen Rustamyan, Mr Indrek Saar, Mr Oliver Sambevski, Mr Kimmo Sasi, Mr Andreas Schieder, Mr Samad Seyidov, Mrs Aldona Staponkienė, Mr Christoph Strässer, Mrs Elene Tevdoradze, Mr Mihai Tudose, Mr Egidijus Vareikis, Mr Miltiadis Varvitsiotis, Mr José Vera Jardim, Mrs Birutė Vėsaitė, Mr Piotr Wach, Mr Robert Walter, Mr David Wilshire, Mrs Renate Wohlwend, Mrs Karin S. Woldseth, Mr Boris Zala, Mr Andrej Zernovski.
NB: The names of those members present at the meeting are printed in bold.
See 23rd Sitting, 25 June 2008 (adoption of the draft resolution, as amended, and draft recommendation, as amended); and Resolution 1619 and Recommendation 1841.