26 September 1995

Doc. 7402

1403-25/9/95-5-E

OPINION1

on the application by "The Former Yugoslav Republic of Macedonia"

for membership of the Council of Europe

(Rapporteur: Sir Peter FRY,

United Kingdom, European Democratic Group)

I. Introduction

1.       Since gaining independence in 1991, the young Republic of Macedonia has been faced with many difficulties. The unilateral Greek embargo, the international sanctions against Serbia and Montenegro, and consequent economic difficulties plus ethnic problems with the Albanian minority are probably the main obstacles to peace and continued progress towards democracy.

2.       The country is in the process of remodelling its legislation in practically every respect; in particular bills on local government, the organisation of the judiciary, criminal law and procedure, and on the intelligence services are being considered by parliament. Until the recent elections reforms in these important areas were not possible because of parliamentary opposition (the former ruling coalition had not had the two-thirds majority required to pass certain crucial legislation). The present government's strong majority should now ensure swift progress for the necessary reforms.

II. Legal reform

3.       The intention to continue legal reform does not seem to be in doubt. The changes that have taken place so far seem to comply in general with Council of Europe human rights standards and the rule of law. There is, however, much important legislation — in particular a new civil code, code of civil procedure, criminal code and code of criminal procedure, a law on local self-government and one on education — which needs to be adopted and implemented as soon as possible.

4.       According to a protest letter the committee received from the Macedonian-Albanian parliamentary group of the Party for Democratic Prosperity (PPD), "judges are not independent at all, they are under direct daily political influences and at the same time it is noticed an unequal treatment of citizens of different nationalities". This is, of course, a very serious allegation, which unfortunately cannot be dismissed out of hand. As the eminent lawyers MM. Freeland and Jörundsson remarked in their report to the Bureau on developing legislation, human rights and the rule of law in "The Former Yugoslav Republic of Macedonia", "at the time of our visit new judges had not yet been appointed in accordance with the provisions of the constitution ... the judiciary thus continued to be composed of judges appointed under the previous regime". Allegations by minority representatives, for example, that the trials of those arrested for participating in founding the (forbidden) Albanian University of Tetovo were not fair, and that the sentences handed down were too harsh, must be taken seriously.

5.       Under these circumstances it is not that surprising that many Macedonians — especially members of the Albanian minority — lack confidence in their country's legal system and do not bother to go to the courts to find redress. As the report to the Bureau by the eminent lawyers says, "much work needs to be done to create the conditions in which a legal culture appropriate to the further development of democratic standards can be created." It is clear that the will to implement the requisite legal reforms exists; but there is as yet not even any real experience or trust in using the legal system to ensure the freedoms enshrined in the new constitution, adopted already in November 1991. This is particularly true of the relationship between the Albanian minority and the rest of Macedonia. There is a lack of recourse to the avenues for redress of complaints now available. This is a matter that needs extra efforts on all sides for progress to be made.

6.       Materially speaking, four very important basic pieces of legislation must be adopted and implemented very soon: the Civil Code, the Code of Civil Procedure, the Criminal Code and the Code of Criminal Procedure. In other countries, such as Albania, the Committee on Legal Affairs and Human Rights made the adoption and entry into force of these codes a precondition for membership; only in the case of Moldova (which did not yet have a new criminal code and code of criminal procedure) did the committee relent, and only demand a commitment to the effect that these laws would be adopted within a year of accession.

7.       In view of the considerable progress made since the recent elections in pushing ahead with the necessary legal reforms, and the obvious and declared will of the government to go on doing so, the committee found at its meeting on 11 September 1995 in Paris that a written commitment from the appropriate Macedonian authorities, to the effect that all four codes would be adopted and implemented within a year of accession, would be sufficient.

8.       Likewise, Macedonia has been asked to enter into a commitment concerning the adoption and implementation of laws to ensure the organisation and functioning of the courts and the independence of the judiciary, in conformity with the European Convention on Human Rights, within a year of accession. Only then can it be hoped that the Macedonian citizens will gain confidence in the judiciary and settle their grievances in court instead of in the political arena with all the destabilizing influence and tensions this entails.

9.       Another matter which also falls, in a way, into the area of legal reform, has been raised by the Greek parliamentary delegation to the Council of Europe. This concerns certain articles of the constitution (Articles 3 and 49) which the Greek delegation sees as irredentist claims on the northern Greek province of Macedonia. The relevant articles (both of which have already been amended once by the Macedonian Parliament in response to international criticism) read:

      "Article 3:

      The territory of the Republic of Macedonia is indivisible and inviolable.

      The existing borders of the Republic of Macedonia are inviolable.

      The borders of the Republic of Macedonia could be changed only in accordance with the constitution, and based on the principle of voluntariness and generally accepted international norms.

      The Republic of Macedonia has no territorial claims against neighbouring states.

      Article 49:

      The republic cares for the status and rights of those persons belonging to the Macedonian people in neighbouring countries, as well as Macedonian ex-patriots, assists their cultural development and promotes links with them.

      The republic shall not interfere in the sovereign rights of other states and their internal affairs.

      The republic cares for the cultural, economic and social rights of the citizens of the republic abroad."

10.       Admittedly, the wording of the first paragraph of Article 49 remains a bit ambiguous. But when read in context, the intentions of the Republic of Macedonia not to interfere in the sovereign rights of other states, and not to put forward irredentist claims, are made perfectly clear. On these grounds, and on the grounds that Macedonia has been willing to amend the ambiguous articles, a further change of the constitution does not seem necessary.

11.       However, if a revision of the constitution should be envisaged, the express inclusion of the right to a fair trial in Article 13 would not go amiss. A commitment to this effect has been asked of the Macedonian authorities.

III. Human rights

12.       Human rights in Macedonia continued to be monitored by Mr Tadeusz Mazowiecki, Special Rapporteur of the UN Commission on Human Rights for the territory of the former Yugoslavia until he resigned in the last week of July. Mr Mazowiecki had stressed the need for new civil and penal codes and codes of procedure, corresponding to Council of Europe standards, as indeed have I in the preceding chapter. The Committee on Legal Affairs and Human Rights should, of course, continue to keep the progress in this field under review (for example, through the monitoring procedure created by Order No. 508 (1995) this April). It might, however, also suggest that the Committee of Ministers step up its aid in the framework of the co-operation and assistance programmes with Macedonia, and to make legislative reform in this area a top priority for expert help.

13.       Another problem that needs to be resolved is the issue of telephone tapping. Technically there is no provision for this in current law — yet it clearly continues. Therefore the position should be regulated as soon as possible. Such a commitment has been envisaged by the committee.

14.       The right of asylum is guaranteed in Article 29 of the constitution "to foreign subjects and stateless persons expelled because of democratic political convictions and activities". Macedonia has also acceded to the 1951 Geneva Convention relating to the Status of Refugees and its 1967 New York Protocol. Amnesty International (AI) reported some concern in the treatment of refugees. According to Amnesty International reports, in one case two underage sisters, refugees from Bosnia-Herzegovina, were allegedly arbitrarily deported to the Federal Republic of Yugoslavia. Out of fear that they might be returned to Bosnia-Herzegovina, the sisters reportedly jumped from the moving train as it crossed the border into the Federal Republic of Yugoslavia; one of the girls is said to have died as a result. There were also reports of other, similar cases.

15.       Macedonia should make sure it respects its obligations under the above-mentioned Geneva Convention. This includes the "non-refoulement" of refugees, that is not turning refugees back at the border or returning them to countries from which they fled for a valid reason. It might be remarked also that the definition of "refugee" in the Geneva Convention — by which Macedonia is bound — is broader than that in the Macedonian Constitution, including everyone who is fleeing his or her country because of a grounded fear of persecution, be it motivated politically, religiously, or otherwise. For this reason the committee has asked the Macedonian authorities to commit themselves to abide by the Geneva Convention, to ensure, inter alia, that asylum-seekers are not deported to countries where they would be at risk of human rights violations or to any third country without ensuring that they would be given effective and durable protection against return to a country where they might be at risk.

16.       In accordance with Article 10 of the Constitution of Macedonia, the death penalty has been abolished. Thus one important requirement for Council of Europe membership has already been met.

IV. Minority rights

17.       The main internal problem appears to be the situation of the Albanian minority amounting, according to the last census, to 22,9% of the entire population. Indeed considerable progress can be noted in this respect during the last few years, partly as a result of international pressure, but there is still a long way to go.

A.       Education

18.       The danger that a substantial ethnic minority (the Albanians) may feel that there is discrimination against them is clearly one of the major domestic problems to be solved. This has been particularly evident in the creation and consequent suppression of the Albanian University in Tetovo. Concern was also expressed to me by some Albanian representatives at the small percentage (between 3% and 7%) receiving University education and even secondary education (only 25% attend high school).

19.       The Minister of Education has pointed out that the loss of use of the Albanian language at the university in Kosovo has not yet been compensated at the University of Skopje. The latest information is that a new department for Albanian studies is now being set up at Skopje, but whether this can be regarded as full compensation for an Albanian-language university is questionable. The other problem is the shortage of qualified teachers in Albanian in the education sector.

20.       The practical measures being implemented in education — a draft law on education on secondary education, as well as a draft law on higher education are currently pending in parliament — suggest that the existence of an Albanian problem and the need to solve it is not only recognised by the Macedonian Government but that moves are being made to assuage it. The draft law on education provides, in particular, the possibility of establishing private secondary schools, where the instruction could be carried out not only in Macedonian, but also in a national minority's language or an international one.

21.       Unfortunately, the draft law on higher education does not go that far. According to paragraph 1 of Article 8 the language of education is Macedonian. Clear priorities in education are the provision of teachers with an Albanian language capability and the teaching of Macedonian to ethnic Albanians, so that paragraph 2 of the same article provides for the possibility of the instruction for primary school teachers in pedagogical faculties in their mother tongue, and for secondary school teachers partly in their mother tongue. The draft law further provides the possibility of opening a private higher education institution, but lectures cannot be carried out only in Albanian or any other language which is not the official language of the country. It would not hurt the Macedonian state if a private Albanian-language university were allowed to function (possibly with the requirement to study the Macedonian language obligatorily as a "foreign" language also at the university?), thus fulfilling one of the Albanian minority's most heartfelt wishes, and solving the university of Tetovo problem. Perhaps a compromise along these lines could be negotiated with the assistance of the Council of Europe.

B.       Local self-government and language usage

22.       In addition the implementation of the local government reform which gives the right to the use of an official language locally where 50% of the local population speak it will also help to defuse minority problems. The law on local self-government is currently being studied by Council of Europe experts; in any case, the conclusions of the Rapporteur of the Congress of Local and Regional Authorities of Europe, Mrs Tovornik, on the state of local democracy in the Republic were not altogether negative. Clearly, there is a lot more progress to be made in this field also, and the Macedonian authorities have therefore been asked to commit themselves to sign and ratify the European Charter on Local Self-Government within a year of accession.

23.       On language usage, the Macedonian authorities seem unwilling to compromise in another field of Albanian-Macedonian tensions: to make Albanian a second official language. Although this might be a solution, the current concessions made by the Macedonian authorities in the field of language usage in education or local self-government, as described above, are not to be disregarded. They could, however, be further complemented by allowing for the use of minority languages (with translation into Macedonian, where necessary), for instance in court or at police stations in regions where a sizeable minority lives. In any case, the Macedonian authorities have been asked to commit themselves to signing and ratifying the European Charter on Regional and Minority Languages within a year of accession, and to apply the basic principles enshrined in Assembly Recommendation No. 1201 (1993).

C.       Citizenship and representation

24.       There has been progress in other fields, concerning, for example, minority representation: There are now four ministers in the government belonging to the Albanian minority and more deputy ministers, three Supreme Court judges, members of the foreign service, etc. The last census, although contested by some representatives of the Albanian minority, has been carried out under international monitoring and can be considered successful. In the sphere of media there is now a daily newspaper in Albanian. An agreement on a TV project sponsored by the Swiss and the Danish Governments has been reached, providing for broadcasting time in the different minority languages and allowing international control over the quantity and quality of these programmes. In addition a similar radio project is under discussion.

25.       Complaints have been received, especially by members of the Albanian minority, on Macedonia's citizenship legislation. Especially the fifteen-year legal residence requirement is seen as problematic, also by the OSCE High Commissioner on National Minorities, Mr van der Stoel, who suggested that a five year residency requirement might be a better option. The review of citizenship legislation along this line could be a possible solution to the problem; on a different track, so could be the enactment of a law on foreigners improving the situation of non-citizens.

26.       The Albanian minority is also well-represented on the Council of Inter-Ethnic Relations created by the constitution. Unfortunately, the Council shares the fate of many other rights guaranteed by the constitution, which are not implemented in practice: The Council has so far not fully taken up the role the constitution provided it with. This is very regrettable, since this council could become an important forum for inter-ethnic dialogue with the possibility to directly influence parliamentary decisions. Especially the Albanian minority might try to use the council in this way to avoid extra-parliamentary tensions in future, and to find constructive solutions to minority problems. The scope for the Council's effectiveness is much wider than is currently realised.

27.       By such means as the reform of local self-government, education, and access to the media, and by full use of their representation in parliament and other democratic mechanisms such as the Council of Inter-Ethnic Relations, plus making use of the legal system to consider grievances, progress on the minority issue will be made. The new state needs time to establish a fully secure infrastructure in which all citizens can feel confident. Apart from the Albanians, the other ethnic minorities seem to be satisfied, therefore an important and helpful start has been made.

V. The media

28.       There are grounds for concern that the state ownership of the main TV company, in addition to the virtual monopoly of printing and distribution, does not provide the level of press freedom enjoyed in many European countries. It is clear that it is established practice that needs amending. For example, there were complaints from some of the media representatives that until recently access to parliament was not open to all. In addition ministers appearing on TV were not subjected to critical questioning.

29.       It would clearly be preferable if the state control could be dispersed or at least transferred to a more independent body such as the BBC in the United Kingdom.

30.       The draft opinion included in the report of the Political Affairs Committee includes an appropriate commitment in paragraph 10.v, to ensure that the independence of the broadcasting and printed media is adequately protected.

VI. Conclusions

31.       Great progress has been made in Macedonia and the clear intention is that this will continue. Any imperfections or weaknesses should be viewed in this context. Clearly close monitoring under the Council of Europe's new procedures will be needed on the minority situation — particularly concerning the Albanians — on the progress of legislation in general, and on human rights matters in respect of the media and telephone tapping.

32.       From the committee's established practice in dealing with membership requests, it did seem doubtful whether Macedonia would be able to fulfil the sine qua non condition of signing and ratifying the European Convention on Human Rights within a year of accession, as is demanded of all new member states, since much of the basic legislation — ranging from the Civil and Criminal Codes and the respective Codes of Procedure, over laws on education, local self-government and elections, to laws on the organisation of the judiciary and the prosecutor's office — has yet to be adopted, let alone implemented. Macedonia does in this respect lag behind all other countries which have requested and received Council of Europe membership so far. The committee is aware that it is a lot to ask that a country reform its whole legal system and ratify all Council of Europe instruments within a year; the Macedonian Parliament, as willing and as capable as it is, might just be overwhelmed by the sheer volume of what needs to be done.

33.       However, in view of the commitments Macedonia is expected to enter into, and the decisions of the Political Affairs Committee and the Bureau at the beginning of this month in favour of early accession, the committee decided at its meeting on 11 September 1995 in Paris not to block Macedonia's accession despite its strong reservations. The committee feels that it has not had sufficient time to deal with Macedonia's accession properly, especially since its Sub-Committee on Human Rights will only have the opportunity to visit the country in October.

VII. Recommendation

34.       In view of the above conclusions the committee — with reservations — supports the conclusion of the Political Affairs Committee to invite Macedonia to become a member state of the Council of Europe.

VIII. Amendments

35.       The committee asks that the Assembly support the following amendments, tabled on its behalf to the draft opinion contained in Doc. 7371:

Amendment No. 1

      In the draft opinion, paragraph 9.ii, replace "will soon be in place" with:

"will be adopted and implemented within a year of accession".

Amendment No. 2

      In the draft opinion, at the end of paragraph 9.iii, add:

      "and further legislation in this area will move towards conformity with Council of Europe standards;"

Amendment No. 3

      In the draft opinion, after paragraph 9.iii, add the following sub-paragraph:

      "laws on secondary and higher education in accordance with Council of Europe standards will be adopted and implemented in the near future;"

Amendment No. 4

      In the draft opinion, after paragraph 9.iii, add the second following sub-paragraph:

      "should the constitution be amended, the right to a fair trial will be included in Article 13 of the constitution;"

Amendment No. 5

      In the draft opinion, in paragraph 9.v, after the words "will be further developed", add the words:

      "and implemented";

Amendment No. 6

      In the draft opinion, after paragraph 10.v, add the following sub-paragraph:

      "to abide by the Geneva Convention of 1951 relating to the Status of Refugees and its 1967 New York Protocol, and to ensure that asylum-seekers and refugees are not deported to countries where they would be at risk of human rights violations or to any third country without ensuring that they would be given effective and durable protection against return to a country where they might be at risk;"

Amendment No. 7

      In the draft opinion, after paragraph 10.vii, add the following sub-paragraph:

      "to ensure that the issue of telephone tapping is regulated immediately in accordance with Council of Europe standards;"

Amendment No. 8

      In the draft opinion, replace paragraph 10.ix with the following text:

      "to sign and ratify, within a year of accession, the European Charter on Local Self-Government, and to study, with a view to ratification, the Council of Europe's Social Charter, and meanwhile to conduct its policy in accordance with their principles;"

Amendment No. 9

      In the draft opinion, after paragraph 11.i, add the following sub-paragraph:

      "encourage interested parties to seek a solution to the problem of the name of the country through negotiations the soonest possible;".

APPENDIX

Letter from Sir Peter Fry to Mr Popovski, Chairman of the special guest delegation of "The Former Yugoslav Republic of Macedonia",

dated 18 September 1995

...

      It is already some months since I visited your beautiful country together with the rapporteurs of the other two committees. I remember with pleasure this visit and the constructive meetings I had in Skopje last May.

      The Committee on Legal Affairs and Human Rights discussed the accession of "The Former Yugoslav Republic of Macedonia" at its last meeting on 11 September 1995 in Paris, at which Mr Ibraimi and Mr Zašov, your country's diplomatic representative in Strasbourg, were also present. The committee is now applying the new rules on the accession procedure instituted in the wake of the adoption of Order No. 508 (1995) on the honouring of obligations and commitments by member states, which was first explicitly applied to the Republic of Moldova and the Republic of Albania. Consequently, the committee would like to ask you the approval of your competent authorities of paragraphs 9 and 10 of the draft opinion tabled by the Political Affairs Committee (pages 2, 3 and 4 of Doc. 7371) and of my own suggested amendments to these paragraphs, a copy of which is enclosed.

      The committee will discuss the accession of your country again at its next meeting, on Monday 25 September 1995, and it would therefore be useful if I could receive an indication of your country's willingness to enter into these commitments before the end of this week or — otherwise — on the morning of 25 September.

...

*

* *

      Reporting Committee: Political Affairs Committee (Doc. 7371).

      Committee for opinion: Committee on Legal Affairs and Human Rights.

      Reference to committee: Doc. 6998 and Reference No. 1918 of 24 January 1994.

      Opinion approved by the committee on 26 September 1995.

      Secretaries to the committee: Mr Plate, Ms Bakardjieva and Ms Kleinsorge.

1 ¹This opinion is based both on my visit to Macedonia in May 1995, and on material which has come to light since then.