1. Foreword
1. The Republic of Montenegro
joined the Council of Europe on 11 May 2007, becoming its 47th member state.
The circumstances surrounding Montenegro’s application for accession
to the Council of Europe were unique as Montenegro was formerly
part of the State Union of Serbia and Montenegro, which was a member of
the Council of Europe from 3 April 2003 to 6 April 2006.
2. In accordance with the regular procedure, prior to accession,
the Parliamentary Assembly prepared
Opinion 261 (2007) on the accession of the Republic of Montenegro to the
Council of Europe. In this opinion, the Assembly listed the commitments
which Montenegro should take upon when joining the Organisation.
In accordance with paragraph 21 of the opinion, the Assembly decided
to monitor the situation in Montenegro as from its accession, pursuant
to its
Resolution 1115 (1997). The Monitoring Committee, which was instructed
to carry out this task, appointed us co-rapporteurs for Montenegro
in June 2007.
3. This is the first report on the honouring of obligations and
commitments by Montenegro. To prepare it, we have used documents
produced by various Council of Europe expert and monitoring bodies,
as well as the information provided to us by the Montenegrin authorities.
The comments provided by the Montenegrin delegation on the preliminary
draft version of the report were particularly useful in this respect.
4. In order to collect first-hand information, we paid two fact-finding
visits to Montenegro, from 14 to 16 October 2007 and from 7 to 9
July 2009. We are grateful to our Montenegrin colleagues for the
organisation of the visits, as well as for the open and frank exchanges
of views we had with them. We also wish to thank the staff of the
Council of Europe Office in Podgorica for their organisational and
logistical support.
5. In the preparation of this report, we have also taken note
of the reports by other international partners and non-governmental
organisations. In particular, we took into account the findings
of the European Commission contained in its 2008 and 2009 progress
reports.
2. Recent political developments
6. Among the most notable political
developments which occurred in the last two years, the presidential and
pre-term parliamentary elections are of particular importance.
7. On 6 April 2008, the incumbent President Filip Vujanovic (Vice-President
of the ruling Democratic Party of Socialists), was re-elected as
President of Montenegro. The election was the first presidential
election to take place since Montenegro declared its independence
and it was governed by a new legal framework amended in the wake
of the declaration of independence, which includes the Law on the
Election of the President (December 2007) and the Law on the Register
of Elections (2000). An Ad Hoc Committee of the Bureau of the Assembly
observed the election and concluded that it was largely in line
with European standards for free elections.
8. Pre-term parliamentary elections were held in Montenegro on
29 March 2009; these were the first to be held under the new Montenegrin
Constitution (adopted in October 2007). On 27 January 2009, parliament approved
its own dissolution, one year before the end of its term in office,
opening the way for these early elections. An Ad Hoc Committee of
the Bureau of the Assembly observed the parliamentary elections
and concluded that they mostly conformed to international commitments
and standards. However, the Committee noted that public confidence
in the electoral process needed to be further improved, as “frequent
allegations of electoral fraud and a blurring of state and party
structures created a negative atmosphere among many voters.”
Other noted areas of concern include
harmonisation and reform of the electoral framework, lack of adequate
legal procedures for addressing complaints and insufficient critical
reporting by most broadcast media. In addition, the Ad Hoc Committee
was critical of the constitutional two-year residency requirement
for voting, which is not consistent with the principle of universal
suffrage. The committee stressed that the right to elect and be
elected should be granted to all citizens.
9. The results of the elections confirmed the strong position
of the ruling majority, the Coalition for a European Montenegro
(Democratic Party of Socialists, Social Democratic Party, Bosniak
Party and Croatian Civic Initiative), which won nearly 52% of the
votes and 48 out of the 81 seats in parliament. The other 33 seats are
distributed between the Socialist People’s Party (SNP, 16 seats),
New Serbian Democracy (NOVA, eight seats), Movement for Changes
(PzP, five seats) and four small Albanian parties (one seat each).
Milo Djukanovic, President of the Democratic Party of Socialists
and former President of Montenegro, was appointed Prime Minister.
This is his fifth (non-consecutive) term. In political terms, we
note that, although the ruling coalition has a comfortable majority,
it still needs to engage in a constructive dialogue with the opposition, which
appears to hold a solid mandate in the new parliament. This is particularly
important, as the adoption of some laws (for example, amendments
to the electoral legislation) require a qualified majority. Dialogue between
the majority and the opposition is therefore essential and we expect
both the ruling coalition and the opposition to shoulder their political
responsibilities and engage in constructive co-operation.
10. The recognition by Montenegro, on 9 October 2009, of the unilateral
declaration of independence by Kosovo
was
another important political development. In response to recognition,
Montenegro’s Ambassador to Serbia was declared persona non grata
and asked to leave, although Serbia did not withdraw its Ambassador
from Montenegro. A new Ambassador of Montenegro to Serbia was appointed
in September 2009. This is a positive move and we expect the new
ambassador to contribute to strengthening good neighbourly relations
between the two states. After the recognition of Kosovo, the Serb
opposition party leaders called for a peaceful demonstration in
Podgorica. However, the demonstration turned into clashes during
which law enforcement officials and more than 30 people were hurt,
most of them police officers. This regrettable, but isolated, incident
was not followed by mass protests.
11. Montenegro is moving steadily along the path of European integration.
In its 2009 progress report, the European Commission noted that
Montenegro is making progress in addressing the political criteria.
The Commission further stressed that the completion of its legal
framework and the strengthening of the administrative and institutional
capacity were ongoing and that the constitution, on the whole, was
implemented effectively. Judicial reform continues and has started
to produce results. Yet, political influence on the judiciary and
the prosecution persists and the fight against corruption and organised
crime needs to be pursued with determination, in the opinion of
the European Commission.
12. On 15 December 2008, Montenegro formally submitted an application
for membership in the European Union. On 23 April 2009, the Council
invited the Commission to prepare an opinion on Montenegro’s application.
A special questionnaire was delivered to the Montenegrin authorities
at the end of July 2009 and the Commission expects to deliver its
opinion in the course of 2010. We shall follow this process closely
in the further stages of the monitoring process.
13. Montenegro has performed well in meeting the visa liberalisation
benchmarks prescribed by the European Union. Montenegrin citizens
were granted a visa free regime for the countries of the European
Union as of 19 December 2009.
14. In terms of regional co-operation, Montenegro maintains good
neighbourly relations with the countries of the region and takes
an active part in regional co-operation initiatives, such as the
Regional Co-operation Council (successor to the Stability Pact for
South Eastern Europe), the South-East European Co-operation Process
(SEECP), as well as the Central European Free Trade Agreement (CEFTA),
which Montenegro chaired in 2009.
3. Co-operation
with the Council of Europe and ratification of Council of Europe
conventions
15. In accordance with paragraph
19.3.1 of
Opinion 261
(2007) (hereinafter referred to as the Assembly opinion), Montenegro
undertook to continue to review the compatibility of its existing
and future domestic legal standards with the European Convention
on Human Rights (ECHR) and Council of Europe standards by drawing
on the Organisation’s expertise.
16. In general, Montenegro has consulted, and used the assistance
of, the Council of Europe, in particular of the Venice Commission,
in the legislative reform process. Although not all of the recommendations
given by Council of Europe bodies have been fully followed, a positive
and co-operative working relationship has been established. We therefore
conclude that Montenegro is positively complying with this commitment.
17. To date, Montenegro has signed and ratified 67 Council of
Europe conventions, a number of which are listed in paragraph 19.1
of the Assembly opinion. The deadlines fixed by the Assembly have
not always been complied with strictly but, overall, there has been
good progress in adhering to Council of Europe conventions.
18. That said, Montenegro has yet to ratify six conventions from
the list of its commitments, according to
Opinion 261 (2007). These are:
- the
Council of Europe Convention on the avoidance of statelessness in
relation to State succession (CETS No. 200);
- the European Convention on the Exercise of Children’s
Rights (ETS No. 160);
- the Protocol amending the European Convention on the Suppression
of Terrorism (ETS No. 190);
- the European Convention on the International Validity
of Criminal Judgments (ETS No. 70);
- the Convention on the Compensation of Victims of Violent
Crimes (ETS No. 116);
- the European Outline Convention on Transfrontier Co-operation
between Territorial Communities or Authorities (ETS No. 106).
19. Moreover, two conventions from the list of commitments, according
to
Opinion 261 (2007), have neither been signed nor ratified. These are:
- the European Convention on Nationality
(ETS No. 166);
- the European Convention on the Non-Applicability of Statutory
Limitation to Crimes against Humanity and War Crimes (ETS No. 82).
20. Finally, contrary to what is requested in paragraph 19.1.16.4
of the Assembly opinion, Montenegro has not yet reviewed nor withdrawn
the restrictive declaration contained in the instrument of ratification
of the European Convention on Extradition (ETS No. 24), according
to which Montenegro shall refuse extradition of its nationals. The
instrument of accession containing this declaration was deposited
on 30 September 2002 by the Federal Republic of Yugoslavia.
21. We invite the Montenegrin authorities to intensify their efforts
in order to complete the signing and ratification of all Council
of Europe conventions which are expressly listed among their accession commitments.
4. Democratic
institutions
4.1. Constitutional
reform: implementation of the seven key principles
22. In accordance with paragraph
19.2.1 of the Assembly opinion, Montenegro committed itself “to
quickly complete constitutional reform and adopt a new constitution
within one year at the most, in close co-operation with the Venice
Commission and in full compliance with international standards and,
in this connection, to include in the constitution […] 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.”
23. The Parliament of Montenegro, by a two-thirds majority vote,
adopted the new constitution on 19 October 2007. On the same date,
the parliament adopted the Constitutional Law for the implementation
of the constitution (Constitutional Law). The new constitution came
into effect on 22 October 2007.
24. The Montenegrin Parliament benefited from the assistance of
the Venice Commission in drafting the constitution. After several
interim sets of comments, the final opinion of the Venice Commission
on the constitution of Montenegro was adopted at its 73rd plenary
session, from 14 to 15 December 2007.
25. In its opinion, the Venice Commission gave the new constitution
a “generally positive assessment”. All but two of the seven key
principles were fully implemented. Of those two, the first point
of concern relates to the role played by the parliament in appointing
the president of the Supreme Court, which can undermine the independence
of the judiciary. The second point of concern relates to the guarantee
of retroactive application of the ECHR, which should be clarified
and made known to the courts.
26. With respect to the appointment of the president of the Supreme
Court, under Article 124 of the new constitution, the president
of the Supreme Court shall be elected “by the parliament at the
joint proposal of the President of Montenegro, the Speaker of the
Parliament and the Prime Minister.” Article 124 furthermore establishes
that: “If the proposal for the election of the President of the
Supreme Court fails to be submitted within thirty days, the President
of the Supreme Court shall be elected at the proposal of the responsible working
body of the parliament.” These provisions make the president of
the Supreme Court a political appointee, as the candidatures should
be agreed upon between the three most powerful political figures
of the country.
27. That said, the Venice Commission noted that “Montenegro has
experienced very acute problems relating to the effectiveness and
impartiality of the judiciary. The Montenegrin political class is
firmly convinced that these difficulties can be overcome only through
oversight of the judiciary by parliament”.
We also note that there
appears to be a wide consensus of all political stakeholders about
the need to maintain some powers of the parliament in the appointment
of the highest officials of the judiciary. This also stems from
a long-lasting regional tradition of conferring on the parliament
the power to appoint judges.
28. We have no ready-made solution to suggest to our Montenegrin
colleagues. We believe they should continue working on this matter,
in co-operation with the Venice Commission, in order to find other
tools to strengthen the independence of the judiciary and ensure
its impartiality and immunity from undue political influence.
29. The guarantee of retroactive application of the ECHR is addressed
in the Constitutional Law, which was adopted alongside the new constitution
on 19 October 2007. Article 5 of the Constitutional Law provides
that “provisions of international agreements on human rights and
freedoms, to which Montenegro acceded before 3 June 2006, shall
be applied to legal relations that have arisen after the signature”.
The Venice Commission noted that this provision should be interpreted
as meaning “Provisions of international agreements on human rights
and freedoms to which Montenegro was a party (as a federated entity
of the State Union) before 3 June 2006 shall be applied to legal
relations that have arisen after the date of ratification of those
treaties by the State Union”.
Only in this case, would
this article fulfil one of the key principles of the constitutional
reform, as set out in the Assembly opinion.
30. During our meeting with the presidents of the Constitutional
Court, the Supreme Court and the Administrative Court, we received
confirmation that this provision of the Constitutional Law is, and
will be, interpreted as indicated by the Venice Commission. We also
note that, in April 2009, the European Court of Human Rights delivered
its first judgement against Montenegro in the case
Bijelic v. Montenegro and Serbia (Application
No. 11890/05). In this judgment, the Court clearly stated that it
“considers that both the Convention and Protocol No. 1 should be
deemed as having continuously been in force in respect of Montenegro
as of 3 March 2004, between 3 March 2004 and 5 June 2006 as well
as thereafter”.
This
further clarifies the applicability of the Convention in the transitional
phase between the dissolution of the State Union of Serbia and Montenegro
and Montenegro’s accession to the Organisation.
31. That said, we gained the impression from our discussion with
senior judicial officials, as well as with human rights defenders
and lawyers, that the ECHR is still very rarely referred to by the
domestic courts. This may be due to the lack of knowledge of the
Convention and of the case law of the Court among the judges. Adequate
awareness-raising and training activities should be complemented
by clear guidelines from higher courts to lower courts about the
direct applicability of the Convention in Montenegro’s legal system.
4.2. Constitutional
reform: other provisions to be included in the constitution
32. In paragraph 19.2.2 of the
Assembly opinion, the Assembly laid down a number of additional
issues to be included in the constitution, namely, the direct applicability
in domestic law of international conventions, in particular in the
field of human and minority rights; the right to an effective remedy,
as foreseen in Article 13 of the ECHR, the mandate; the appointment
procedure and guarantees of independence of the ombudsman, transitional
provisions on the applicability of former legislation pending the
adoption of new legislation, the regulations governing the state
of emergency; the legal effects thereof and the supervisory powers
of parliament in this respect; as well as a clear definition of
local self-government based on the principles of the European Charter
of Local Self-Government.
33. Practically all these issues have been satisfactorily dealt
with by the constitution. However, we would like to make two remarks.
Firstly, we recall the opinion of the Venice Commission concerning
the constitutional provisions governing the right to an effective
remedy in that the wording of the constitution does not fully correspond
to that of Article 13 of the ECHR. In this respect, we remind our
Montenegrin colleagues that the Montenegrin courts must interpret
this provision in a manner that gives full effect to the requirements
of Article 13 ECHR. Secondly, we have some reservations concerning
the wording of the transitional provision on the applicability of
former laws (in force before the declaration of independence), pending
the adoption of new legislation. Article 11 of the Constitutional
Law provides that the laws and regulations of the State Union of Serbia
and Montenegro will continue to be in force as long as they “are
not contrary to the legal order and interests of Montenegro”. The
opinion of the Venice Commission reiterated the concerns contained
in the Eminent Lawyers’ Report on the conformity of the Montenegrin
legal order with Council of Europe standards, which criticised this
formula for raising issues of legal certainty “to the extent that
it is impossible to define clearly and unequivocally what these
interests are, with the result that the formula could prevent Montenegrin authorities
from applying the law and ensuring respect for international standards.”
At
the same time, all remaining former laws should be harmonised with
the new Montenegrin constitutional and legal order as quickly as
possible.
4.3. Elections
and electoral legislation
34. In accordance with paragraph
19.3.16 of the Assembly opinion, Montenegro committed itself “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”.
35. With respect to presidential elections, on 27 December 2007,
parliament approved a new Law on the Election of the President,
which provides for direct popular election for a five-year term.
Under the new law, political parties or groups of supporters have
the right to nominate candidates if they can collect the signatures of
at least 1.5% of all registered voters, whereas previously this
nomination right was dependent on the size of an organisation’s
membership. Furthermore, the new law requires that each signature
in support of a candidate must be made in the premises of the municipal
election commission in the presence of at least two members of the
commission. The new law also abolished the previous requirement
of 50% voter turn-out.
36. While this law definitely represents a step forward in comparison
with the previous legislation, some of its provisions are questionable.
For instance, in the 2008 presidential election, the condition of
a minimum number of signatures required in support of a candidate
proved to be a deterrent to individual candidates and candidates
representing smaller parties.
Moreover, the International
Election Observation Mission (in which the Assembly Ad Hoc Committee
participated) observed a blurring between the government and the
ruling party. This was also a recurrent criticism from opposition
parties, international organisations and civil society representatives.
The Assembly also expressed concern over the need for substantial
improvement in the separation between state and political parties/candidates
in order to comply with the Council of Europe’s “Code of Good Practice
in Electoral Matters”. Moreover, the observers observed confusion
regarding the rules governing the financing of the campaigns, which
highlighted, yet again, the need to adopt new legislation on political
parties and campaign financing.
37. Contrary to the Assembly opinion, the Montenegrin authorities
have failed to harmonise the legislation governing parliamentary
elections with the new constitution. The elections of 29 March 2009
were held in accordance with the 1998 Law on the Election of Councillors
and Representatives, which was amended several times since 1998
and, most recently in 2006. This law provides for the allocation
of mandates on the basis of a proportional list system, within a
single nationwide constituency, with a 3% threshold.
38. A serious flaw in the Law on the Election of Councillors and
Representatives is that, while it stipulates that half of the mandates
won by electoral lists must be awarded to candidates in their list
order, it provides that the other half of the mandates can be allocated
to remaining candidates in any order established by the party leadership.
This provision has been criticised both by the OSCE/ODIHR and the
Council of Europe as problematic because it restricts transparency
and risks misleading voters, who cannot be sure which candidates
will represent them. Another point of concern in the law is a provision
stipulating that, if a member of parliament ceases to be a member
of the political party on whose list he or she has been elected,
the mandate of that member of parliament terminates (that is, party-administered
mandate).
39. Given the above, we reiterate our call to the Montenegrin
authorities to adopt a new law governing the election of members
of parliament as quickly as possible. During our visit in July 2009,
we were told by the key political stakeholders that consultations
with the Venice Commission were ongoing and that a new draft law would
soon be sent to the Venice Commission for opinion. In the comments
on the preliminary draft report, the Montenegrin delegation informed
us of the fact that a draft law on elections was prepared by an
expert working group and was due to be examined by the parliament
on 3 March 2010. Subsequently, the law would be sent to the Venice
Commission for opinion. While we welcome the progress in the implementation
of this commitment, we would like to call upon the authorities to
consult the Venice Commission before the final adoption of the law,
in order to engage in a meaningful dialogue. We will continue to
follow this issue closely.
4.4. Political
parties
40. As mentioned earlier in the
present report, all election observers have criticised Montenegro’s
elections for the blurring of state and party structures. This is
a serious problem, as it directly infringes on the competitiveness
of the electoral process, as the ruling party is automatically put
in a more favourable position than other political actors. This
is due to the fact that the ruling party, the Democratic Party of
Socialists (DPS) (which is the successor of the Montenegrin branch
of the Yugoslav League of Communists and has been in power for the
last eighteen years), inherited a large amount of property, which,
at the times of Socialist rule, was registered in the name of the
Montenegrin branch of the League of Communists of Yugoslavia. Until
the end of 2009, the government was paying a substantial rent to
the DPS for the use of a party-owned building. We were informed
that, as from January 2010, the government building has been registered
as state property and no rent is being paid by the government to
DPS for the use of premises. This positive development, as well as
the adoption, on 26 February 2009, of the Law on State Property
and the establishment of the State Property Agency are steps in
the right direction.
41. On the legislative side, in July 2008, a Law on the Financing
of Political Parties was adopted. It was applied for the first time
during the parliamentary elections of 29 March 2009. According to
expert assessments, the funding of political parties and election
campaigns continues to lack transparency, and the laws on political parties
and their financing are not being sufficiently implemented. Reliable
disclosure of sources of income is lacking. Although the new law
is an improvement over previous legislation, it does not require
periodic reporting on campaign finances throughout the campaign
period, calling instead for submission of reports only after the election.
Furthermore, the new law does not establish a procedure for filing
complaints on violations. The responsibility for auditing campaign
expenditures lies with the Ministry of Finance. However, the law
only requires the auditing of private donations if the total exceeds
€50 000 and leaves this task to private auditors contracted by political
bodies. The international observers of the 29 March elections recommended
that a public body should be responsible for the auditing of all
campaign funding sources and expenditures.
We
call upon our Montenegrin colleagues to implement promptly all recommendations
of election observers with respect to political party financing.
4.5. The
work of the parliament
42. In accordance with paragraph
19.3.10 of the Assembly opinion, the Montenegrin authorities committed themselves
“to increase as soon as possible the parliament’s budgetary means
and its administrative capacity”. Some progress has been achieved
in the implementation of this commitment. We commend the parliament
for working efficiently and expediently, in particular, on legislation
relating to European Union integration and visa liberalisation.
However, we have the impression that, sometimes, laws are adopted
too quickly, without substantial discussion in Parliament, as well
as without prior dialogue with the civil society.
43. This is partially due to the fact that the parliament has
no real capacity to provide members of parliament with expertise
on technical and legal issues. Moreover, the electoral system (providing
for party-administered mandates) makes members of parliament dependent
on the good will of party leaderships, which does not stimulate
their personal involvement in law-making. As a result, some tend
to believe that parliament is too often “rubber stamping” legislation
and, according to some surveys and public opinion polls, amongst
all public institutions, the public has the lowest level of trust
and the highest level of distrust in the parliament.
More recent
research shows that the trend is improving, which is a welcome sign.
44. From our meetings with the representatives of all political
groups in parliament, we gained the impression that the newly elected
members of parliament are keen on taking a more active part in policy
and law making. In our opinion, it is essential that the parliament
implements its role fully, by constructively working with the government
on the drafting and adoption of laws, maintaining constant dialogue
with civil society and exercising effectively political oversight
over the activities of the government. At the same time, the culture
of constructive dialogue and co-operation should be further promoted
among political groups representing the majority and the opposition.
The rights of the opposition should be respected, especially because
the opposition should become a constructive partner of the majority
on important issues of national interest, in particular, as regards
laws the adoption of which requires a qualified majority (this applies
in particular to the electoral legislation, which urgently has to
be brought into line with the constitution).
45. At the same time, we were informed that the Government of
Montenegro was preparing a draft law which would limit the powers
of parliament to decide on its budget as well as on the use of funds
within the approved budgetary envelope. Our colleagues from the
Montenegrin Parliament fear that the adoption of this law could encroach
on the independence of parliament. In this context, we call upon
the government and Parliament of Montenegro to continue meaningful
discussions on this draft law, in order to accommodate the concerns
of members of parliament. Moreover, we reiterate our calls to improve
the technical conditions for the work of the parliament by, for
example, refurbishing and extending the parliament’s building.
46. Finally, we appeal to our colleagues from the Montenegrin
delegation to the Assembly to take a more active part in the work
of the Assembly and, in particular, in the monitoring procedure.
It is regrettable that, since accession, Montenegro has never had
any members in the Monitoring Committee. It is essential for the
new delegation to secure at least one seat on the committee, in
order to be fully engaged in the monitoring procedure with respect
to Montenegro, as well as to learn from the experience of other
countries under monitoring.
4.6. Media
pluralism
47. In accordance with the Assembly
opinion, Montenegro committed itself “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” (paragraph
19.3.17) and “to provide the public service broadcasting system
with the financial means to enable it to perform its functions”
(paragraph 19.3.8).
48. The media sector in Montenegro is diverse, comprising both
state-owned and private media (print, electronic and broadcast).
In his 2008 report, the Council of Europe Human Rights Commissioner
reported that the media sector is vibrant and alive, and that media
outlets regularly publicise a broad spectrum of well-grounded critical
reviews.
Media legislation on radio and
television broadcasting, adopted in 2002, introduced a shift from
state to public service and established a Radio and Television Council
whose mandate includes securing the independence of former state-controlled
media. There appears to be some politicisation of the Council due
to shortcomings in the appointment and nomination procedure, which
raise concerns about its independence.
Candidates for the Radio and Television Council
are nominated by various institutions, including academic bodies,
NGOs, sports organisations and unions, but the parliament makes
the final decisions regarding the candidates for each position.
We call upon the Montenegrin authorities to change this in law and
in practice in order to establish sufficient guarantees against
the politicisation of the Radio and Television Council.
49. With respect to public service broadcasting we note that,
on 17 December 2008, the parliament adopted a Law on Public Service
Broadcasting, under which a fixed amount of 1.2% of the annual budget
of Montenegro is to be redirected to fund the core activities of
the public service broadcaster. The NGO, Article 19, was consulted
on the draft law. In the view of our Montenegrin colleagues, the
new funding model provides for the sustainability, efficiency and
independence of the public service broadcaster. We will continue
to follow this issue closely in the course of the monitoring procedure.
4.7. Parliamentary
oversight over armed forces and security services and definition
of the state of emergency
50. In accordance with paragraph
19.2.1.7 of the Assembly opinion, Montenegro undertook to include
in the constitution provisions regulating the status of the armed
forces, security forces and intelligence services of Montenegro
and the means of parliamentary supervision. Moreover, according
to the same paragraph, the constitution should guarantee that the
position of the commander-in-chief be held by a civilian. Furthermore,
in accordance with paragraph 19.2.2.5, the constitution should contain
provisions defining a state of emergency, how a state of emergency
may be declared, the legal effects thereof and the supervisory powers
of parliament.
51. With respect to parliamentary oversight of the armed forces
and security services, Article 130 of the constitution establishes
civil control of the armed forces and Article 131 entrusts the Security
and Defence Council with national security and defence strategy
and decisions regarding the inclusion of army units in international
forces. The speaker of parliament is a member of the Security and
Defence Council.
52. Article 133 of the constitution addresses the conditions warranting
a state of emergency, which is to be declared by parliament or,
in the event that parliament is unable to meet, by the Defence and
Security Council.
53. We consider that both commitments have been satisfactorily
implemented.
4.8. Local
self-government
54. In accordance with paragraph
19.2.2.6 of the Assembly opinion, Montenegro undertook to include
in the constitution a clear definition of local self-government
based on the principles of the European Charter of Local Self-Government.
Moreover, in accordance with paragraph 19.3.11, Montenegro undertook
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.
55. Local government is regulated by part four of the constitution.
The constitutional provisions comply with the requirements of the
European Charter of Local Self-Government.
56. The Ministry of the Interior is responsible for administrative
reform and local self-government. Although efforts have been made
to enhance administrative capacity of the ministry, improvement
has been slow and a number of structural problems affect the performance
of public administration. Much remains to be done with respect to
transparency, accountability, financial control, budget management,
management of public assets, licensing procedures and appropriate
allocation of resources. Politicisation of the administration exacerbates these
issues.
57. On the legislative side, the Action Plan for Local Self-Government,
prepared by a working group of the Joint Central-Local Government
Commission, was finalised and adopted in February 2008. The draft
law on territorial organisation, prepared in co-operation with the
Council of Europe, was adopted by the Government of Montenegro on
3 December 2009. It was introduced in parliamentary procedure and
should be adopted soon. Amendments to the Law on Local Self-Government
were appraised by Council of Europe experts and the appraisals were
communicated to the authorities. In general, recommendations by
the Council of Europe, in some cases quite critical of the provisions
originally envisaged, are being followed by the government and are
incorporated in revised drafts and bills submitted to the parliament.
We therefore believe that Montenegro is steadily moving ahead in
the implementation of this commitment.
5. Rule
of law
5.1. Reform
of the judiciary
58. In accordance with the Assembly
opinion, Montenegro undertook a series of commitments relating to
the reform of the judiciary. These are:
- to recognise in the constitution the principles that “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…” (paragraph 19.2.1.2);
- “to speed up completion of reforms to ensure that courts
[…] are professional and independent and that procedures for appointing
and dismissing judges […] respect the independence of the judiciary” (paragraph
19.3.2);
- “to provide the constitutional court and judiciary as
a whole with adequate funding” (paragraph 19.3.4).
59. Over the past two years, some important steps have been taken
to implement these commitments.
60. With respect to the guarantees of the independence of the
judiciary, the Judicial Council has 10 members: four elected by
judges, five elected by the government or by the ruling party, and
one elected by the opposition party in parliament. The Venice Commission
deemed the new organisation of the Judicial Council to be “balanced”
and commended the constitution for removing the appointment and
dismissal of judges by parliament. However, some experts disagree
with the Venice Commission that the composition of the Judicial Council
is balanced (for example, those of the SIGMA Programme).
SIGMA
has expressed concern that the appointment scheme, which is based
largely on political party quotas, is likely to further politicise
the Judicial Council. Moreover, SIGMA also criticised the recruitment
system of judges, which, it says, is highly politicised and does
not guarantee merit-based, professional appointment of the four
council members appointed by the judiciary.
61. The Law on the Judicial Council was adopted in February 2008,
after consultation with the Venice Commission. The Judicial Council
has the authority to elect, promote and dismiss judges and to rule
on disciplinary proceedings. The criteria for appointment are objective,
for example, going through an exam, law school performance, and
training and/or professional experience. The law establishes that
the Judicial Council is to be governed by the principle of preventing
political influence on those persons holding judicial office and enshrines
constitutional principles of independence, autonomy, accountability,
and professionalism of its members. The law also strengthens the
Judicial Council’s influence over the budget of the courts. However, the
Ministry of Justice still decides on the budgetary allocations to
the judiciary, although the president of the Judicial Council (who
is the president of the Supreme Court) has the right to address
the parliament within the framework of the parliamentary debate
on the budget.
62. That said, according to the assessment made by the “Human
Rights Action” NGO, the funds allocated from the state budget to
the judiciary are insufficient. We were informed that the total
budget of the courts for 2009 amounted to €20.4 million, which represents
only 1.57% of the total state budget. For 2010, the overall budget
of the judiciary has decreased in absolute terms, although the share
of the courts’ budget in the total state budget has increased up
to 1.76%.
We were told
that, although the judges’ salaries have been significantly increased,
the salaries of court staff still remain insufficient. The courts’
premises appear to be inadequate. This applies, in particular, to
the Podgorica Basic Court, where only one courtroom is allegedly available
and trials are sometimes held in judges’ offices.
We
will continue to follow this issue closely within the framework
of the monitoring procedure.
63. In December 2007, the parliament adopted the Action Plan for
Judicial Reform for 2007-12 which defines concrete measures geared
towards improving the independence, autonomy, effectiveness and
public trust in the judiciary. The commission for implementing the
action plan was formally established in June 2008. According to
the information provided to us by the Montenegrin authorities, the
implementation of the action plan is going smoothly. As of 2008,
71% of the activities were completed. The next assessment of the implementation
of the action plan will be made in March 2010.
64. As far as professionalism and independence of the judges is
concerned, we took note of a study entitled “Integrity and Capacity
Assessments of the Judiciary in Montenegro”, which was produced
in October 2008 by the Centre for Entrepreneurship and Economic
Development (CEED) of Podgorica. This study was the result of co-operation
between Montenegro’s Directorate for Anti-Corruption Initiative
(DACI) and the United Nations Development Programme (UNDP). The
report indicates that there is a prevalent lack of public confidence
in the integrity of the judiciary. All stakeholders interviewed
agreed that the judicial system only works for the rich and powerful.
The research indicates that suspected corruption of the judicial
system is the primary reason why respondents reported that they
would not return to the courts to resolve future disputes. The report
concluded that limited access to information facilitates corruption
within the judiciary. It also highlighted the need for educational
campaigns geared toward familiarising citizens with all aspects
of the judicial system, including their rights as participants,
and the mechanisms for filing complaints in the event of dissatisfaction
with the performance of judicial actors. These findings are supported
by the information provided to us by NGO activists.
In the view of the authorities,
the data collected within the framework of this research represents
a wealth of useful information, which could contribute to improving
the access to justice, quality of justice, independence and impartiality
of the judiciary, trust in the judicial system, as well as the perception
of corruption. The authorities argue that the perception figures
differ significantly from the data about the direct experience of
the respondents. Moreover, in the view of the authorities, the data
from the survey no longer reflect accurately the situation, as they
were collected in 2008, before the adoption of new legislation on
the appointment of judges and prosecutors. Should the survey be
repeated in 2011, the answers of the respondents would be quite
different. We encourage the authorities to conduct a follow-up survey,
in order to obtain more accurate and realistic data. We shall use
these revised data in further stages of the monitoring procedure.
5.2. Domestic
remedies against excessive length of proceedings in domestic courts
65. In accordance with the Assembly
opinion, Montenegro committed itself to introducing an effective remedy
with regard to the excessive length of proceedings before national
courts aimed at accelerating proceedings or obtaining compensation,
in conformity with Article 13 of the ECHR (paragraph 19.3.5).
66. In this respect, we note that a Law on a Right to a Fair Trial
within a Reasonable Time was enacted in December 2007. The OSCE
Mission in Montenegro is providing training to the judiciary on
the implementation of the law, in the light of the case law of the
European Court of Human Rights. The UNDP/CEED/DACI 2008 integrity
and capacity assessment of the judiciary report (see paragraph 64
above) indicated some improvements in the timeliness of courts as
compared to two years prior to the report. In the view of the judiciary and
of the prosecutors, timeliness has improved, whereas attorneys,
individuals and companies reported that there has been no change.
67. That said, the NGO representatives and independent lawyers
we met during our visits asserted that the law introduced a complicated
procedure, whereby a party to the proceedings is required to obtain
first a decision on the request for the acceleration of the proceedings,
in order to be able to file a complaint before the Supreme Court
and obtain compensation. According to the information provided to
us, in 2008, only 11 claims were lodged before the Supreme Court.
All 11 claims were rejected on procedural grounds. At the same time,
in the comments on the preliminary draft report, the Montenegrin
delegation to the Assembly argued that the implementation of the
law proceeded smoothly and that regular training was organised for
presidents of courts as well as for the judges of the Supreme Court,
in order to raise their awareness of the standards of the ECHR and
of the case law of the European Court of Human Rights on the issue
of right to a fair trial within reasonable time. In terms of statistics,
the authorities have informed us of the gradual reduction of the
backlog of cases from previous years, which is exemplified by statistics
(as of 1 January 2010, the backlog of cases was reduced by 76.19%).
This is an encouraging piece of information and we will continue
to follow this issue closely in further stages of the monitoring
procedure.
5.3. Reform
of the Public Prosecutor’s Office
68. In accordance with Assembly
Opinion 261(2007), Montenegro undertook to:
- recognise in the constitution the “the imperative of avoiding
any decisive role of political institutions in the procedure of
appointment and dismissal of […] prosecutors” (paragraph 19.2.1.2);
- guarantee in the constitution and law that “in order to
avoid conflict of interests, the role and tasks of the public prosecutor
should not include both the application of legal remedies for the
protection of constitutionality and legality and the representation
of the republic in property and legal matters” (paragraph 19.2.1.3);
- “speed up completion of reforms to ensure that […] public
prosecutors are professional […] and that procedures for appointing
and dismissing […] prosecutors respect the independence of the judiciary” (paragraph
19.3.2).
69. According to the constitution, the prosecutor no longer has
the task of protecting state interests. According to Article 134,
“the State Prosecution shall be a unique and independent state authority
that performs the affairs of prosecution of the perpetrators of
criminal offenses and other punishable acts which are prosecuted
ex officio.” This commitment appears to have been implemented satisfactorily.
70. The Law on the State Prosecutor’s Office was amended in 2008,
drawing on the expertise of the Venice Commission. The law stipulates
that state prosecutors are appointed by parliament, upon proposal
of the best candidate by the Prosecutorial Council for a term of
five years, with the possibility of re-election. The law also introduced
changes with respect to state deputy prosecutors, whose tenure is
now permanent upon completion of a three-year probationary period.
The appointment, promotion and removal of state deputy prosecutors
fall exclusively under the authority of the Prosecutorial Council.
Furthermore, the law establishes criteria for the appointment and
promotion of state prosecutors and deputies that are based on strictly
professional grounds. That said, the election of state prosecutors
by parliament introduces a degree of political discretion, which might
create a risk of undue political influence on the work of prosecutors.
In future, our Montenegrin colleagues should change this appointment
system in order to make the prosecutors independent from political bodies.
5.4. Fight
against corruption, money laundering and terrorism financing
71. In this field, the following
commitments were undertaken, in accordance with the Assembly opinion:
- “ensure that anti-corruption
legislation is urgently adopted, that the Group of States against
Corruption’s (GRECO) recommendations and conclusions are implemented
and that the administrative capacity in the area of anti-corruption
policy is upgraded” (paragraph 19.3.7);
- “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”
(paragraph 19.3.9).
72. The issue of political parties was dealt with in section IV.d)
of this report. Therefore, in the present section, we will deal
only with the issue of conflict of interests and the adoption and
implementation of anti-corruption legislation, in accordance with
GRECO recommendations.
73. Corruption continues to be a matter of serious concern in
Montenegro and there is widespread public perception that corruption
infiltrates the political sphere, legal system and public administration.
Transparency International’s 2009 Corruptions Perceptions Index
(CPI) gave Montenegro a score of 3.9 on a 0-10 scale (0 being the
most corrupt, 10 being the least corrupt).
74. Social acceptance of certain forms of corruption further aggravates
the problem. Montenegro is a very small country with about 630 000
inhabitants, making it particularly prone to corruption. This small
and intimate population has nurtured the formation and use of personal
networks and connections, a practice that has been commonplace throughout
the country’s history and remains prevalent today. As GRECO noted
in its 2006 report, Montenegro’s small size “encourages the development
of a close-knit community culture reticent to report suspicions
of corruption.”
During GRECO’s
visits to Montenegro, the ombudsman mentioned that he had received
oral complaints alleging corruption, but no such complaints had
been formally lodged in writing.
75. A national commission was established in February 2007 to
monitor the implementation of the Action Plan of the Strategy for
the Fight against Corruption and Organised Crime. The Directorate
for the Anti-Corruption Initiative (DACI) is the central governmental
body in charge of prevention and co-ordination of anti-corruption
activities. In accordance with the action plan and GRECO’s recommendations,
DACI began preparations to conduct a comprehensive investigation
into corruption with expert support from the United Nations Convention
against Corruption. The State Agency for Anti-Corruption possesses
advisory, law drafting and awareness raising capacities, but lacks
decision-making authority. The independence of oversight mechanisms
is crucial to guarantee their effectiveness. The system of internal
control and audit of the government remains weak. The widespread
perception of corruption in the judiciary is a serious threat to
the legitimacy of the institution. On a positive note, call lines
to both authorities and NGOs have been established for the reporting
of cases of corruption.
76. Recent years have seen some other positive developments, such
as the establishment of the State Audit Institution and the Public
Internal Financial Control.
77. Privatisation is another issue where corruption risks are
very high. It is therefore essential to ensure that public property
is being disposed of in a transparent and competitive manner, in
order to protect the public interest. Moreover, according to GRECO
recommendations, the Law on Public Procurement should be revised in
order to clarify its provisions and ensure a more transparent procedure.
We
were informed that work is ongoing on this front, in particular,
in the field of the utilities sector.
78. That said, the overall results in this field appear to be
positive: in December 2008, GRECO stated that the country had made
significant progress in the fight against corruption and had implemented
two thirds of GRECO’s recommendations.
GRECO
commended the extensive training and public information campaigns on
anti-corruption that have taken place in recent years, while noting
the need for continued efforts in the fight against corruption,
particularly with respect to the ongoing reform of the judiciary.
We expect the Montenegrin authorities to take serious action on
this front.
5.5. Fight
against organised crime
79. In accordance with the Assembly
opinion, the Montenegrin authorities committed themselves to consolidating
the Office of the Prosecutor for organised crime (paragraph 19.3.8).
80. In this respect, we note that, in 2006, GRECO recommended
that Montenegro should create a special unit within the Public Prosecution
Service dedicated to addressing corruption and provide this unit
with the necessary financial and human resources. In December 2008,
GRECO
reported that this recommendation had been implemented satisfactorily.
Its report stated that the powers of the Specialised Department
for Combating Organised Crime were extended to encompass corruption,
terrorism and war crimes. The department is staffed with a total
of six prosecutors (the Special Prosecutor and five deputies). GRECO commended
the efforts Montenegro had undertaken to provide training to these
prosecutors, as a total of 88 training sessions had been held between
June 2006 and September 2008.
6. Human
rights
6.1. Constitutional
guarantees of human rights
81. In accordance with paragraph
19.2.1.4 of the Assembly opinion, the constitutional guarantee of
human rights was one of the key seven principles of the constitutional
reform. In particular, Montenegro committed itself to ensuring that
“the efficient constitutional protection of human rights” is guaranteed
by the constitution, which “should provide for the direct applicability
of the human and minority rights, as was recognised in the Charter
on Human and Minority Rights of Serbia and Montenegro”. Moreover,
“the constitutional reform therefore [had] to provide for at least
the same level of protection of human rights and fundamental freedoms as
the one provided for in the charter, including with respect to the
rights of minorities.”
82. Human rights and fundamental freedoms are set out in part
two of the constitution (“Human Rights and Liberties”). Following
the declaration of independence and the dissolution of the State
Union, the Charter on Human and Minority Rights and Fundamental
Freedoms of the State Union ceased to be applicable in Montenegro.
The Charter was widely recognised as offering a very high level
of human rights protection in accordance with Council of Europe
standards.
83. The Venice Commission gave part two of the Montenegrin Constitution
a “generally positive assessment,” noting however that “further
improvements could have been made.”
In particular, the commission
stated that it would have preferred that the provisions concerning
human rights “had been prepared in a way that would have facilitated
direct comparison with the provisions of the ECHR.”
84. In this connection, we would like to invite the Montenegrin
authorities to engage in wide expert consultations, with the participation
of the representatives of the Venice Commission and other competent Council
of Europe monitoring bodies, in order to examine, article by article,
part two of the constitution, to eliminate possible inconsistencies
and interpretation problems relating to the compatibility of the
wording of the constitution with that of the ECHR. As regards the
retroactive applicability of the ECHR, we refer to paragraphs 29
to 31 above where we dealt with this matter as part of the seven
key principles of the Constitution.
6.2. Constitutional
prohibition of capital punishment
85. The prohibition of capital
punishment at all times became another key principle of the constitutional reform,
in accordance with paragraph 19.2.1.5 of the Assembly opinion. In
this respect, we note that Article 26 of the constitution reads:
“The death penalty shall be prohibited in Montenegro.” Therefore,
we can conclude that this commitment has been satisfactorily implemented.
86. However, we would like to express a reservation in this respect,
stemming from the opinion of the Venice Commission. In fact, the
commission noted that the new constitution does not establish the
right to life set out in Article 2 of the ECHR, which is a right
that “imposes a weighty obligation on state authorities to inquire
into the reasons for the loss of life.”
6.3. Right
to an effective remedy
87. In accordance with paragraph
19.2.2.2 of the Assembly opinion, Montenegro undertook to include
in the constitution a provision setting out the right to an effective
remedy, as foreseen in Article 13 of the ECHR. The right to an effective
remedy is guaranteed by Article 20 of the constitution, which provides
that “everyone shall have the right to legal remedy against the
decision ruling on the right or legally based interest thereof.”
The Venice Commission expressed concern that Article 20 does not
fully conform with Article 13 of the ECHR, and stressed that Montenegrin
courts must interpret this provision in a manner that gives full
effect to the requirements of Article 13, ECHR. We join the Venice
Commission in this recommendation.
6.4. Status
of the ombudsperson’s institution
88. In accordance with Assembly
Opinion 261(2007), Montenegro committed itself to:
- providing in the constitution
for the mandate, appointment procedure and guarantees of independence of
the ombudsman (paragraph 19.2.2.3);
- respecting the independence of the ombudsman institution
and supporting its activities, in particular by means of adequate
funding, and acting on its recommendations (paragraph 19.4.1).
89. We note that Article 81 of the constitution establishes the
office of the ombudsman as “an independent and autonomous authority.”
Article 91 stipulates that the ombudsman is elected by parliament
by a majority vote of the total number of members of parliament.
In the opinion of the Venice Commission, a qualified majority vote
would have been preferable, in order to avoid any risk of politicisation
of the appointment procedure.
90. The ombudsman of Montenegro was established by the Law on
the Protector of Human Rights and Freedoms on 10 July 2003. The
ombudsman is elected for a six-year term and may be re-elected.
The ombudsman may act on his or her own motion or upon a request.
The circumstances under which the ombudsman may look into the judiciary
are specific and limited to three main areas: lengthy court proceedings, obvious
abuse of courts procedures and the non-execution of domestic court
judgments.
91. Following a visit to Montenegro in 2008, the Human Rights
Commissioner reported that the institutional capacity and public
perception of the work of the ombudsman has improved in recent years
, although further capacity building
is necessary in order for the institution to function effectively
and meet the demands placed upon it.
The
Human Rights Commissioner suggested amendments to the law in order
to correct those shortcomings identified by the Venice Commission.
In particular, the Commissioner emphasised the need for independence,
impartiality, and sufficient funding, along with the need for parliamentary
debate on the institution’s annual report.
92. The Human Rights Commissioner expressed concern that the ombudsman
lacks authority to consider any cases of discrimination within the
private sector, stressing the importance of a mechanism to address complaints
of discrimination in all contexts. Furthermore, there is a concern
relating to the accessibility of the office of the ombudsman, as
it is located on the outskirts of Podgorica, with limited transportation
options, and is inaccessible for persons with physical disabilities.
93. Recently, the Venice Commission adopted an opinion on the
draft amendments to the Law on the Protector of Human Rights and
Freedoms of Montenegro.
In the opinion
of the Venice Commission, the amendments are well drafted, are coherent
and provide a number of improvements for the institution. The commission
welcomed the specialisation of the ombudsman’s deputies, minority
representation in their appointment, the right of the ombudsman
to resume his or her previous function and the budgetary procedure. That
said, the Commission noted that the attribution to the ombudsman
of the task of prevention of torture and other ill-treatment as
well as the fight against discrimination would require relevant
legislative amendments, as well as additional human and financial
resources.
94. The commission also formulated some specific recommendations
concerning the establishment of units of the office, donations,
functional immunity, as well as the succession of office holders.
In the view of the commission, the ombudsman – and every person
acting on his or her behalf – should also have free access, at any
time, to individuals deprived of their liberty.
95. Finally, the commission recommended keeping in the law some
provisions on basic principles and reiterated its recommendation
to introduce a qualified majority vote in the appointment procedure,
which would require the adoption of a constitutional amendment.
96. We call upon our Montenegrin colleagues to implement fully
the recommendations of the Venice Commission in the further stages
of the legislative procedure.
6.5. Training
and awareness-raising on the case law of the European Court of Human
Rights
97. In accordance with paragraph
19.3.3 of the Assembly opinion, Montenegro committed itself to taking
the necessary steps to ensure that the case law of the European
Court of Human Rights is taken into account by the domestic courts.
98. We have taken note of the fact that the Montenegrin authorities,
in co-operation with the Council of Europe, organise regular training
for judges on the case law of the European Court of Human Rights.
These efforts are commendable. However, we have learnt that Montenegrin
courts are not provided with systematic translation of the case
law of the Court. Lack of knowledge and information does not induce
judges to refer to the Court case law in their decisions. This impression
was confirmed to us by independent lawyers and human rights defenders
who stated that the case law of the Court was never referred to
in domestic proceedings.
99. We call on the Montenegrin authorities to intensify efforts
aiming at providing systemic training to judges on the case law
of the Court. It is also essential to make sure that the case law
is available to all judges in the Montenegrin language. We would
advise our Montenegrin colleagues to make full use of the experience
and already available documentation from neighbouring states, in
order to save time and resources.
6.6. Non-discrimination
100. In accordance with paragraph
19.3.12 of the Assembly opinion, Montenegro committed itself to
urgently adopting a law on non-discrimination which guarantees that
no one shall be discriminated against on any ground such as sex,
race, colour, language, religion, sexual orientation, handicap,
political or other opinion, national or social origin, the fact
of belonging to a national minority, property, birth or other status.
101. The new constitution contains a general clause on the prohibition
of direct and indirect discrimination as well as a clause providing
for affirmative action. However, we have to note that the relevant
legislation has not been adopted yet. A draft law was recently prepared
and appraised by the Venice Commission.
102. In its opinion,
the Venice Commission welcomed
and encouraged the intention of the Montenegrin authorities to adopt
a single comprehensive anti-discrimination act. It noted a number
of positive aspects of the law, in particular, the prohibition of
both direct and indirect discrimination, as well as a wide range
of discriminatory actions. The law introduces the concept of positive
action. Human rights organisations and other relevant entities are
allowed, although with certain limitations, to initiate proceedings
on behalf or in support of victims of discrimination. The draft
law provides for a shared burden of proof in discrimination cases.
103. That said, the Venice Commission noted that, in several respects,
the draft law does not comply with European standards and recommended
a number of further changes. In particular, the commission recommended
providing for the establishment of a specialised anti-discrimination
body or for the granting of enforcement powers to the ombudsman,
provided that the ombudsman institution has the necessary powers and
human and financial resources to carry out this task. It also recommended
introducing “effective, proportionate and dissuasive” sanctions
for breaching the provisions of the law. Several other recommendations
were made, including concerning the drafting technique.
104. Following the Venice Commission’s opinion, a revised draft
law on prohibition of discrimination was prepared. This draft law
was approved by the Government of Montenegro on 3 December 2009
and is now being discussed within the framework of a public consultation.
The Venice Commission produced a follow-up assessment of the law
which was approved by the commission at its 82nd plenary session
(12-13 March 2010).
The Venice Commission commended
the Montenegrin authorities for having taken on board some of the
recommendations, in particular, with regard to the definition of
discrimination and segregation. However, the Venice Commission noted
that some recommendations, including those dealing with control
over implementation of the law (either by a specialised institution
or by the ombudsperson) were not satisfactorily addressed. We call
upon the authorities fully to take into account the Venice Commission’s
recommendations and amend the draft law accordingly.
105. We were informed that, in practice, despite the constitutional
prohibition of discrimination, some groups of Montenegrin society
frequently become targets of discrimination and, even at times,
intimidation and physical violence. We are seriously concerned about
the situation of the lesbian, gay, bisexual and transgender community
(LGBT), whose members allegedly frequently face intimidation and
physical violence. During our visit, we interviewed personally a
Montenegrin human rights defender, Mr Sasa Zekovic, who reported
having been the target of intimidation and physical threats because
of his sexual orientation. According to Mr Zekovic, there are other
cases of discrimination and even violence against the LGBT community,
which are either not investigated by law enforcement agencies or
simply not reported by the victims, who fear disclosing information because
of possible persecution based on their sexual orientation. This
situation is clearly unacceptable. We urge the authorities to take
all necessary steps in order to investigate all reported cases of
violence against the LGBT population, including by the representatives
of law enforcement agencies, as well as to bring to justice all
those responsible. Moreover, we call upon the authorities to take
proactive measures in order to teach law enforcement officials to
handle properly cases of violence and intimidation against the LGBT
population in order to build trust of the population in the law
enforcement agencies. We ask that the Montenegrin authorities introduce
the teaching of tolerance at all levels in school and take urgent
action in awareness raising of the population on the rights of LGBT
people and tolerance.
6.7. Equality
between men and women in law, in family, society, economy and politics
106. In accordance with paragraph
19.3.13 of the Assembly opinion, Montenegro committed itself to
taking all necessary steps to ensure equality between men and women
in law, in the family, society, economy and politics.
107. In this respect, we note that the Law on Gender Equality entered
into force on 8 August 2007. However, the law does not clearly address
the principle of equal pay and the Commissioner of Human Rights
noted that the law does not provide any sanctions in the case of
non-implementation, which weakens its impact and efficiency.
Despite the constitutional and legislative
guarantee for equality between women and men, in practice Montenegro
remains a patriarchal and traditional society where gender inequality
is common and both direct and indirect discrimination against women
occurs. Improvement is needed in the area of awareness-raising,
as many women remain uninformed of their rights.
108. The Parliamentary Committee for Gender Equality and the Governmental
Office for Gender Equality are two institutional bodies competent
to deal with gender equality. The latter body was set up to analyse
relevant issues and legislation, provide policy positions, propose
measures, work with NGOs, and evaluate the compliance of domestic
laws with international standards. Its effectiveness is hindered
by a lack of administrative resources and the incapacity to make
binding decisions. The governmental office was recently integrated
in the structure of the Ministry of Human and Minority Rights. A
new organisation chart of the office was adopted and the recruitment
of the staff is now ongoing. We hope that the office will soon develop
the necessary capacity to perform its task effectively.
109. According to the statistics provided to us by the Montenegrin
authorities, as of 12 August 2009, men and women have been equally
represented in the civil service. Out of the total number of civil
servants, 54% appear to be women. The representation of women at
political level is, however, less encouraging: in the current parliament,
out of 81 members, only nine are women (which represents 11%). We
will continue to follow this issue closely within the framework
of the monitoring procedure and hope that in the future parliament
the representation of women will be increased.
110. Domestic violence against women is another problem in Montenegro
and a taboo subject. Domestic violence is a crime under Article
220 of the Criminal Code, yet instances are under-reported and rates
of arrest, prosecution and conviction are extremely low. Few statistics
regarding the scope of the problem are available, and Montenegro
lacks sufficient facilities for aiding the victims of domestic violence.
A major concern with respect to violence against women is lack of
access to legal aid, which is guaranteed by law but not provided in
practice. Single mothers are particularly vulnerable, as their children
are treated as illegitimate unless recognised by the father, and
such families are not eligible for governmental financial support.
A 2008-10 Gender Equality Action Plan intends to address some of
these problems. We were informed that a draft law on protection
against domestic violence is currently being elaborated. We expect
this draft law to improve the protection of victims of domestic
violence. At the same time, we call upon the authorities to allocate
substantial human and financial resources to help women and to provide
emergency solutions, such as shelters for women and children in
crisis situations.
6.8. Freedom
of expression
111. As we mentioned earlier, the
media sector in Montenegro is diverse and vibrant. However, although freedom
of expression is protected under the new constitution, it remains
an area of concern. There is no direct media repression and many
journalists and media outlets are openly involved in critical reporting
about the activities of institutions and government officials. However,
we were informed that journalists’ freedom is at times hindered
by indirect and subtle pressure that may result in self-censorship.
Freedom House, in its 2009 Freedom of the Press Index, gave Montenegro
a score of 37, assigning it the status of having “partly free” media.
Reporters
Without Borders, in its 2008 World Press Freedom Index, ranked Montenegro
54 out of 174 countries with respect to freedom of the press.
112. Freedom House expressed concern that the new constitution
does not identify explicit restrictions on freedom of expression,
although the right of reply and the right to claim damages for inaccurate
media reporting are given constitutional status. Journalists criticising
the government risk criminal indictment for defamation, an offence
which no longer carries prison sentences but can result in hefty
fines.
According to human
rights defenders and NGO representatives we met, fines for defamation
as well as awards for compensation of moral damages appear to be
high and punitive. The statistics provided to us by the authorities
indicate a gradual increase in the number of cases over the last
couple of years. While we do not want to take a position on the decisions
taken by the courts of law in each individual case, we would like
to remind the Montenegrin colleagues that in
Resolution 1577(2007), the Assembly called upon the Council of Europe
member states to remove from their defamation legislation any increased
protection for public figures, in accordance with the case law of
the European Court of Human Rights, as well as set reasonable and
proportionate maxima for awards for damages and interest in defamation
cases so that the viability of a defendant media organ is not placed
at risk. We will continue to follow this issue closely in further
stages of the monitoring procedure.
113. We are also seriously concerned by troubling reports and instances
of physical and verbal abuse of journalists, which have a chilling
effect on media reporting of issues of public concern. A number
of such cases were reported to us by authoritative domestic and
international non-governmental organisations, including by Amnesty
International. We are grateful to the Office of the Supreme Prosecutor
of Montenegro for having provided to us detailed information about
the cases which were reported to us. This information has helped
us complete our analysis. Nevertheless, in order to prevent the
repetition of similar cases in future, we reiterate our call upon
the authorities to take all necessary steps in order to investigate
all cases of intimidation, pressure and physical violence against
journalists and bring all those responsible to justice.
6.9. Citizenship
114. In accordance with paragraph
19.4.6 of the Assembly opinion, Montenegro committed itself to enacting and
implementing a law on citizenship to prevent statelessness in accordance
with the relevant Council of Europe instruments, addressing in particular
the situation of displaced persons from Kosovo.
115. A new Law on Montenegrin Citizenship was enacted on 14 February
2008 and entered into force on 5 May 2008. This law is not in line
with some principles of the European Convention on Nationality.
Moreover, as mentioned earlier, Montenegro has not yet ratified
the Council of Europe Convention on the avoidance of statelessness
in relation to State succession.
116. The new law contains strict naturalisation criteria, and the
Office for the United Nations High Commissioner for Refugees (UNHCR)
has voiced concerns that these criteria may restrict the opportunity
for persons from the former Yugoslavia (both “displaced persons”
and “internally displaced persons”) to obtain citizenship. We were
informed by the Montenegro Office of the UNHCR that displaced persons
from Bosnia and Herzegovina and Croatia, do not comply with naturalisation
criteria unless they have full access to employment or property,
as they do not meet the strict requirements of the law concerning
accommodation and guaranteed sources of income. Internally displaced
persons from Kosovo are not eligible for naturalisation under the
provisions of this law. This is a serious area of concern, and we
call upon the Montenegrin authorities to work closely with the UNHCR
in order to resolve the situation of these persons.
117. According to Article 12 of the law, citizens holding Montenegrin
citizenship on the day of 3 June 2006 have the right to maintain
their Montenegrin citizenship. All those who have acquired citizenship
of another country after this date may keep their Montenegrin citizenship
until a bilateral agreement is made with the state concerned, but
not longer than one year as of the day when the Constitution of
Montenegro entered into force. A bilateral agreement on citizenship
was concluded between Montenegro and “the former Yugoslav Republic of
Macedonia”. Negotiations with Serbia are ongoing. We encourage the
authorities to complete the preparation of bilateral agreements
at the earliest opportunity, in order to avoid creating statelessness.
6.10. Minority
rights
118. As far as the protection of
the rights of national minorities is concerned, Montenegro took
on several commitments, in accordance with the Assembly opinion.
These can be summarised as follows:
- to guarantee in the constitution the protection of minority
rights at least at the same level as in the Charter of Human and
Minority Rights of the State Union of Serbia and Montenegro (paragraph
19.2.1.4);
- to provide guarantees in law against discrimination, including
of those belonging to national minorities (paragraph 19.3.12);
- to ensure that the laws concerning respect for human rights
and minorities are rapidly implemented and that their implementation
is monitored by independent institutions (paragraph 19.4.2).
119. As mentioned earlier, the Venice Commission gave a generally
positive assessment of the constitutional provisions governing human
and minority rights. In particular, in the opinion of the Venice
Commission, when taken together, Article 79 (“Protection of identity”)
and Article 80 (“Prohibition of assimilation”) of the constitution appear
to cover the main minority rights as contained in the Framework
Convention for the Protection of National Minorities.
However, the commission
expressed concern that, although the constitution does not define
“minority community” or “minority nation,” Montenegro’s Law on Minority
Rights and Freedoms (hereinafter “Minority law”), adopted in 2006,
contains a citizenship-based definition of a national minority, which
excludes from its scope of protection any person not possessing
Montenegrin citizenship. The Venice Commission cautioned that the
breadth of the minority rights “should be understood in an inclusive
manner and these rights should be restricted to citizens only to
the extent necessary.”
We recommend that the Montenegrin
authorities should continue working with the Venice Commission on
improving the Minority law, in order to make the positive constitutional
guarantees fully effective.
120. Article 8 (“Prohibition of discrimination”) prohibits discrimination
while providing that “special measures aimed at creating the conditions
for the exercise of national, gender and overall equality and protection
of persons who are in an unequal position on any grounds shall not
be considered discrimination.” In this respect, the Montenegrin
Constitution is in line with the Framework Convention for the Protection
of National Minorities.
121. However, in July 2006, the Constitutional Court set aside
Articles 23 and 24 of the Minority law (introducing “reserved seats”
for minorities), both of which applied the principle of affirmative
action. The Court considered that these articles were inconsistent
with the guarantee of equality of all citizens before the law provided
for in the former constitution.
122. The new constitution provides expressly for the “measure of
affirmative action” to support national minorities. In particular,
it guarantees “authentic representation” of minorities in the parliament
and in the assemblies of the local self-government units in which
they represent a significant share in the population. However, this
provision has not yet been implemented in law and we expect the
Montenegrin authorities to introduce appropriate provisions in the
amendments to the electoral legislation.
123. In July 2007, the Advisory Committee of the Framework Convention
received the first report prepared by the Montenegrin authorities
pursuant to Article 25 of the Framework Convention for the Protection
of National Minorities. The first opinion was adopted on 28 February
2008. In this opinion, the Advisory Committee noted that the deadlines
for harmonisation of legislation with the new constitution were
“predictably difficult” to comply with, and stressed that many of
the deadlines had passed without the called-for adoption or harmonisation
of legislation.
The committee further emphasised the need
to strike a balance between the integration of minority groups and
the respect and development of their specific identity, especially
with respect to education and political representation.
The committee advised that the reforms would
require the expansion of institutional structures, or the creation
of new institutions altogether, and emphasised that clear instructions
and appropriate budgetary allocations must be given to implement
the changes.
124. Taking into account the Advisory Committee’s opinion, the
Committee of Ministers adopted, on 14 January 2009, Resolution CM/ResCMN(2009)2
on the implementation of the Framework Convention for the protection
of National Minorities by Montenegro. In this resolution, the Committee
of Ministers acknowledged that Montenegro has taken important steps
for the protection of national minorities. It noted, however, that
the adoption of more detailed legal guarantees together with the
availability of adequate implementation and monitoring capacity
are now needed to fully implement constitutional rights and policy
documents. Legal provisions on the use of minority languages in
the relations between persons belonging to national minorities and
the administrative authorities need to be made more specific. Further
efforts need to be made regarding the availability of minority language
teaching as part of the school curriculum. Moreover, it drew the
attention of the authorities to the need to implement the constitutional
provision on “proportionate representation” of national minorities
in public services. Several other recommendations were also addressed.
We shall follow attentively the implementation by Montenegro of
these recommendations and come back to this issue in our next report.
6.11. Protection
of vulnerable groups, persons with disabilities and implementation
of children’s rights
125. In accordance with paragraph
19.3.14 of the Assembly opinion, Montenegro committed itself to
taking all necessary measures, in particular in the legislative
field, to implement resolutions and other instruments of the Council
of Europe on the protection of children and people with disabilities
and to integrate those people into society.
126. With respect to children’s rights, we note that Montenegro
passed a Law on Child Protection and Social Protection in 2005.
The law was accompanied by an action plan covering the period until
2010. Montenegro also signed the UN Convention on the Rights of
the Child, in October 2006, and subsequently acceded to its two
optional protocols relating to the sale of children, child prostitution,
child pornography and the involvement of children in armed conflict.
A new Family Law, drafted with the help of the Council of Europe
and UNICEF, came into force in September 2007. Although the legislative
framework on the rights of children has been brought into line with
international standards, issues remain with respect to implementation
of the laws, which is aggravated by a lack of commitment and insufficient
institutional and financial capacity. A Council for Child Rights
was established to implement the relevant policies, but the functioning
of the council is poor. Work remains to be done with regard to equal
access to social protection services and rights of juveniles in
conflict with the law. We were also informed that inadequate attention
is given to the education needs of Roma children.
127. We are concerned that, due to insufficient resources and lack
of access to its office, the institution of the ombudsman may not
be an effective monitoring procedure for children’s rights in Montenegro.
The Human Rights Commissioner urged the appointment of a deputy
ombudsman especially assigned to the issue of children’s rights,
as well as the establishment of a parliamentary committee tasked
with consideration of children’s issues.
The deputy ombudsperson for children’s rights
was appointed in December 2009 and we expect him to work actively
on the implementation of the adopted legislation.
128. As far as the situation of people with disabilities is concerned,
we note that the new constitution guarantees their special protection
and allows for affirmative action in this regard. However, legislative
reform is still needed with respect to persons with disabilities,
especially concerning laws that would ensure equal treatment in
employment, access to social services, and aid to dependent persons.
The current policy toward persons with mental or physical disability
reflects a historical approach that consists mainly of care in large residential
institutions which often fall short of existing human rights standards.
The Human Rights Commissioner suggested that Montenegro could greatly
benefit by becoming a member of international networks, such as
the European Coalition of Community Living, which would allow it
to learn from, and adopt, the best practices of other European countries
that have transitioned from institutional to community-based care
and individual living.
We call upon our
Montenegrin colleagues to promptly implement this recommendation.
6.12. Prohibition
of torture, effective investigation of alleged ill-treatment by
the police, and prison conditions
129. In accordance with paragraph
19.4.10 of the Assembly opinion, Montenegro committed itself to
taking measures to ensure the prompt initiation of independent,
impartial and effective investigations into allegations of torture
or other ill-treatment, in particular allegations made by persons
detained by the police, so that perpetrators of such treatment are
brought to justice and the victims receive adequate redress without
delay. Moreover, in accordance with paragraph 19.4.9, it undertook
to improve prison conditions, in particular as regards vulnerable
groups, such as juvenile offenders and those in need of psychiatric
care.
130. In this respect, we regret to say that torture and ill-treatment
by law enforcement agents continue to be a problem in Montenegro.
This information is confirmed by the recently published report of
the Committee on the Prevention of Torture and Inhuman and Degrading
Treatment, following the committee’s visit to Montenegro from 15
to 22 September 2008.
We take note of the information provided
to us by the Montenegrin delegation to the Assembly which indicates
that, with the adoption of the new legislation on police and of
the new Criminal Procedure Code, which is due to enter into force
on 26 August 2010, the Montenegrin legislation governing prevention
of ill-treatment and torture has been improved. This is a positive
development and we now expect the Montenegrin authorities to spare
no effort in implementing this new legislation and taking appropriate
measures to investigate all allegations of torture or ill-treatment,
in particular, allegations made by persons detained by police, as
well as take appropriate actions to sanction those responsible for
such abuses.
131. As far as conditions of detention are concerned, reports indicate
that prison facilities are dilapidated and poorly maintained, particularly
for pre-trial detainees. However, some progress was made during
2008, as detention facilities in police stations in Podgorica, Budva,
Bar, Herceg Novi, Niksic, Bijelo Polje, Berane, and Pljevlja underwent
renovation and were equipped with air conditioning and video surveillance.
Significant renovations were also completed at prison centres for
convicted inmates. Prison authorities reported that funds had been
allocated for a new prison facility at Bijelo Polje Prison. We welcome
this progress and encourage the authorities to work further on these
issues.
132. In 2008, human rights organisations, including the Red Cross
and local NGOs, were given repeated access to prisons and detention
facilities and to speak with the detainees in the absence of a guard.
Also in 2008, representatives of the ombudsman’s office regularly
visited prisons and spoke with inmates, without giving prior notice.
Unlike in previous years, in 2008, there were no reports of juveniles
being held in the same cells as adults. Progress has been made with
respect to juvenile justice, particularly in terms of legislative reform.
We encourage the authorities to move ahead with the necessary further
legislative changes and implementation of existing reforms.
6.13. Fight
against trafficking in human beings
133. With respect to human trafficking,
Montenegro is primarily a transit country for the trafficking of
women and girls from Serbia, Kosovo, Bosnia and Herzegovina, Moldova,
Romania, Ukraine, and Russia to western Europe for the purposes
of commercial sexual exploitation.
Article 444 of the Criminal Code prohibits
sex and labour trafficking and stipulates penalties that are comparable
to those prescribed for rape. The coercion of children into begging
occurs in Montenegro and could be considered a form of trafficking
under Article 444 of the Criminal Code, but the Montenegrin authorities
do not recognise it as such.
We were informed that the Montenegrin authorities
are taking a number of steps to prevent the coercion of children
into begging, especially, with respect to Roma children. A number
of awareness-raising and training courses have been implemented
for the Roma community. Since the beginning of 2006, Montenegro
has funded one shelter, run by an NGO (Montenegrin’s Women Lobby),
which provides protection and care for victims of trafficking. In
July 2008, Montenegro fulfilled its commitment to ratify the Convention
on Action against Trafficking in Human Beings. We welcome progress
which is being made in the implementation of this commitment.
6.14. Status
of refugees, internally displaced persons and asylum seekers
134. In accordance with paragraph
19.4.3 of the Assembly opinion, Montenegro committed itself to taking
all necessary steps to ensure the permanent, safe and sustainable
return of refugees and displaced persons, as well as to ensure compensation
for refugee families who have suffered human rights violations.
Moreover, in accordance with paragraph 19.4.5, Montenegro undertook
to issue identity documents to refugees and displaced persons and
repeal all discriminatory provisions in the fields of labour, education,
access to property rights, legal redress and access to citizenship
and health services. Furthermore, in accordance with paragraph 19.4.4,
it committed itself to adopting all the appropriate measures to
implement the asylum legislation in full compliance with the 1951
Geneva Convention and its 1967 protocol.
135. The implementation of these commitments is not progressing
as well as it should.
136. Following Montenegro’s independence, the persons who came
to Montenegro from the former Yugoslav Republics of Croatia and
Bosnia and Herzegovina as well as from Kosovo were not given the
status of refugee. Some of them were given the status of “displaced
persons” (DPs) (those originating from the former Yugoslav Republics
of Croatia and Bosnia and Herzegovina); those coming from Kosovo
were declared “internally displaced persons” (IDPs). Most of these
persons have identity documents, although some difficulties remain for
the documentation of Roma, Ashkali and Egyptian DPs.
Although
the new Law on Employment and Work of Foreigners, which entered
into force in January 2009, does provide “avenues for fair employment
of recognised refugees,”
this
leaves the DPs and IDPs without the right to work. In fact, in replacing
the 2003 Decree on Working Engagement of Non-Residents, the new
law has even removed the only possibility for employment of DPs
and IDPs which previously existed. We were informed that, in February
2009, the UNHCR Representation in Montenegro addressed its concerns
over the de facto exclusion of refugees with DP or IDP status from
the right to work, under Article 17 of the new law, to the Minister
for Health, Labour and Social Welfare. Following the UNHCR’s lobbying
of the government, the prime minister authorised the persons concerned
to become involved in seasonal work for 2009. This is only a temporary
solution which will not resolve the problem in the long term.
137. As far as asylum is concerned, we note that Article 44 of
the constitution guarantees the right to seek asylum. A Law on Asylum
was adopted in 2006 and came into effect on 25 January 2007. It
stipulates that refugees, asylum seekers, and persons enjoying humanitarian
protection may not be forced to return to their countries of origin
if their lives or freedom may be endangered on the grounds of their
race, religion, nationality, social status or political beliefs,
or if there is a risk of exposure to torture or inhuman or degrading
treatment.
138. Under Article 75 of this law, the authorities conducted a
re-registering of people with the status of DPs from the former
Yugoslav republics and DPs from Kosovo, for establishing the exact
number of those still in need of international protection in Montenegro. According
to the information provided to us by the Montenegrin delegation
to the Assembly, some 10 950 IDPs and 5 769 DPs re-registered. The government abandoned
the idea of revising the status of these people and instead enacted
the “Action Plan for Resolution of the Status of Displaced Persons
from the former Yugoslav Republics and the Status of Internally
Displaced Persons from Kosovo Residing in Montenegro” and amended
accordingly the Law on Foreigners. According to the amended law,
the re-registered DPs and IDPs may acquire the status of foreigner with
permanent residence and all basic rights, if they are able to present
valid passports and other documents from their countries of origin
and to bear high applicable administrative and other costs. The
DPs and IDPs who did not re-register will have their status ceased.
139. We were informed that the political priority of the authorities
is to promote returns. The citizenship of the persons concerned
could be clarified in bilateral agreements which are currently being
negotiated with Bosnia and Herzegovina and Croatia. We were informed
that the authorities are engaged in consultations with the competent
institutions in Kosovo about the same issue. The statistics on returns
since 2003, however, illustrate a declining number of voluntary
returns: no return at all to Croatia for the past two years (compared
to 23 returns in 2003), two returns so far in 2009 to Bosnia and
Herzegovina (compared to 74 returns in 2003) and only 64 to Kosovo
so far in 2009 (compared to 387 returns in 2003).
It
would appear that those who were keen to return have mostly already
done so; for the remaining persons, the option of local integration
appears to be most appropriate. We encourage the authorities to
consider this option and work, in co-operation with the UNHCR and
other stakeholders concerned, in order either to facilitate returns
or to settle definitely the situation of the persons concerned,
giving them the possibility to reside in Montenegro and enjoy fully
their rights in the field of labour, education, health services,
access to property, legal redress and access to citizenship.
6.15. Educational
reform
140. In accordance with paragraph
19.4.7 of the Assembly opinion, Montenegro committed itself to continuing educational
reform in order to eliminate all types of discrimination based on
ethnic origin and make arrangements to teach the principles of tolerance
and respect for others and all their differences in schools.
141. Some progress has been achieved in the implementation of this
commitment. During the school year 2008-09, out of 161 elementary
schools in Montenegro, classes in the Albanian language were established
in 12 schools. Out of 47 secondary schools, classes in the Albanian
language were provided in four schools. The teaching process in
educational groups is performed in the Albanian language in three
pre-school institutions. Textbooks for all elementary school grades
are printed out in the Albanian language, as well as for the first, second
and third high school grades. The translation of the textbooks for
the fourth high school grade is in progress. Education at all levels
is provided in line with existing curricula which includes a specialised
segment for minorities. The specialised segment is approved by the
Minority Council and the Ministry of Education and Science may not
change it. The school curriculum contains subjects dealing with
the history, art, literature, and traditions of the minority communities,
which encourages mutual tolerance and coexistence. We welcome the progress
made by the Montenegrin authorities in the implementation of this
commitment.
142. Much improvement remains to be made with respect to the education
of Roma. Drop-out levels for Roma are particularly high, especially
for Roma girls. Prejudice against Roma discourages some Romani children from
attending school. Most Romani children receive little or no education
beyond the primary school level and the efforts of the authorities
to remedy this problem must be intensified. The NGO “Foundation
for Providing Scholarships to Roma” reported that 50% of Roma children
drop out after primary school. Many Romani children are disadvantaged
because they speak Romani at home and education is not available
to them in their native language. Teachers and teaching materials
in minority languages are scarce. Pre-school enrolment rates are
low in Montenegro, but particularly low for Roma. More efforts are
necessary in this field. We invite the authorities to intensify
efforts in order to cope with this problem and hope that the Strategy
for Pre-school Education, to be adopted in 2010, will address the
outstanding issues.
6.16. Situation
of Roma
143. In accordance with paragraph
19.4.8 of the Assembly opinion, Montenegro committed itself to implementing
the strategy and action plan for the integration of Roma.
144. A “Strategy for the Improvement of Roma Position in 2008”
was adopted in 2008 and a co-ordinator to implement the strategy
was appointed. The strategy represents a set of concrete measures
and activities aimed at improving the position of Roma. In 2008,
the government allocated €400 000 to projects covered by the strategy;
in 2009, the budget of the strategy amounted to €600 000. The implementation
of the strategy is progressing smoothly and in 2008 the Government
Statistical Office completed the necessary research to establish
a database of the Roma, Ashkali and Egyptian population. A Commission
for the Monitoring of the Strategy as well as a national co-ordinator
of the strategy were appointed. We encourage the authorities of Montenegro
to continue the implementation of the strategy.
6.17. Co-operation
with the International Criminal Tribunal for the former Yugoslavia
(ICTY)
145. In accordance with paragraph
19.4.13 of the Assembly opinion, Montenegro undertook to collaborate fully
with the International Criminal Tribunal for the former Yugoslavia,
especially as regards the search for and arrest of the indictees
who are still at large, and implement schemes to help the population
understand and accept its objectives.
146. In this respect, we note that a legal framework for freezing
the assets of those indicted by the ICTY is in place. Co-operation
with the ICTY is ongoing and no major problems in this respect have
been detected in the past two years. We welcome the progress achieved
in the implementation of this commitment.
7. Conclusions
and next steps
147. It is clear from our analysis
that Montenegro has made substantial progress in implementing its commitments
and obligations undertaken upon accession, in accordance with Assembly
Opinion 261 (2007) and the Statute of the Council of Europe. This is a
particularly important achievement as Montenegro was the last country
to join the Organisation and upon accession has taken on a very
wide range of commitments established on the basis of the most recent
Council of Europe conventions and recommendations.
148. We would like to commend the Montenegrin authorities for the
positive achievements as well as for the good co-operation with
the Council of Europe and, in particular, the Venice Commission
in the constitutional reform and legislative drafting. That said,
we note that not all of the recommendations of Council of Europe expert
bodies, and in particular, of the Venice Commission, are strictly
followed by the authorities and that implementation of laws is sometimes
not satisfactory. Moreover, further efforts are required in some
areas, in particular, reform of the electoral legislation, reform
of the legislation on political parties, reform of the judiciary and
public prosecutor’s office, training of judges in the standards
and case law of the European Court of Human Rights, effective implementation
of minority rights as well as integration of refugees and displaced
persons, where appropriate. We encourage the authorities to complete
the necessary reforms as quickly as possible.
149. We recommend that the Assembly should resolve to continue
its monitoring procedure with respect to Montenegro, in order to
provide political support to, and stimulate further progress in,
the implementation of post-accession commitments.
* * * * *
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) and Opinion
261 (2007)
Draft resolution adopted
unanimously by the committee on 17 March 2010
Members of the committee:
Mr Dick Marty (Chairperson),
Mrs Josette Durrieu (1st
Vice-Chairperson), Mr Pedro Agramunt
Font de Mora (2nd Vice-Chairperson), Mrs Karin S. Woldseth (3rd Vice-Chairperson), Mr Aydin
Abbasov, Mr Francis Agius, Mr Miloš Aligrudić, Mrs Meritxell Batet
Lamaña, Mr Ryszard Bender, Mr József Berényi, Mrs Anne Brasseur, Mr Patrick Breen, Ms Lise
Christoffersen, Mr Boriss Cilevičs, Mr Georges Colombier, Mr Telmo Correia, Mr
Joseph Debono Grech, Mr Juris
Dobelis, Mr Mátyás Eörsi, Mrs Mirjana
Ferić-Vac, Mr Axel Fischer, Mrs Pernille Frahm, Mr György Frunda, Mr Giuseppe Galati, Mr Jean-Charles Gardetto, Mr Andreas Gross, Mr Michael Hagberg, Mr Michael Hancock, Mr Davit Harutyunyan, Mrs Olha Herasym’yuk,
Mr Andres Herkel, Mr Serhiy Holovaty, Mr Michel Hunault, Mrs
Sinikka Hurskainen, Mr Kastriot
Islami, Mr Mladen Ivanić,
Mr Zmago Jelinčič Plemeniti, Mr Michael Aastrup Jensen, Mr Miloš Jevtić, Mr Tomáš Jirsa, Mrs Corien
W.A. Jonker, Mr Guiorgui Kandelaki, Mr Haluk Koç, Ms Katerina Konečná, Mr Jaakko Laakso, Mr Terry Leyden, Mr Göran Lindblad, Mrs Kerstin Lundgren, Mr Pietro Marcenaro, Mr Bernard Marquet,
Mr Frano Matušić, Mr Miloš Melčák,
Mrs Nursuna Memecan, Mr Jean-Claude Mignon, Mr João Bosco Mota Amaral,
Mr Adrian Năstase, Mrs Elsa Papadimitriou, Mr Dimitrios Papadimoulis,
Ms Vassiliki Papandreou, Mr Alexander Pochinok, Mrs Marietta de Pourbaix-Lundin, Mr Christos
Pourgourides, Mr John Prescott, Mrs Mailis Reps,
Mr Andrea Rigoni, Mr Ilir Rusmali,
Mr Armen Rustamyan, Mr Indrek Saar, Mr Kimmo Sasi, Mr Samad Seyidov, Mr Leonid Slutsky, Mr Yanaki Stoilov, Mr Christoph Strässer,
Mr Björn von Sydow, Mrs Chiora Taktakishvili,
Mr Zhivko Todorov, Mr Øyvind Vaksdal, Mr Egidijus Vareikis, Mr José Vera Jardim,
Mr Piotr Wach, Mr Robert
Walter, Mr David Wilshire, Mrs
Renate Wohlwend, Mrs Gisela Wurm, Mr Andrej Zernovski.
NB: The names of the members who took part in the meeting
are printed in bold
Secretariat of the committee:
Mrs Nachilo, Mr Klein, Ms Trévisan, Mr Karpenko