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Doc. 9539
10 September 2002
Federal Republic of Yugoslavia's application for membership of the Council of Europe
Opinion1
Committee on Legal Affairs and Human Rights
Rapporteur: Mr Helmut Lippelt, Germany, Liberal, Democratic and Reformers' Group
I. Conclusions of the committee
The Committee on Legal Affairs and Human Rights supports the opinion of the Political Affairs Committee. It proposes, however, the following amendments to the draft opinion:
Amendment A
At the end of paragraph 10 add the following text:
"On the other hand not enough attention has been drawn throughout last year to the problem of Mitrovica where a lack of cooperation from the side of FRY with the United Nations Interim Administration Mission in Kosovo (UNMIK) continues and FRY maintains parallel structures."
Amendment B
After paragraph 10, add the following two paragraphs:
"The Assembly is deeply concerned about the fact that with the accession of FRY to the Council of Europe full applicability of the substantive norms contained in the Council of Europe conventions is not automatically guaranteed. It urges the Committee of Ministers to examine together with UNMIK this question and to find pragmatic solutions.
The Assembly suggests to take into consideration whether to invite representatives of the Assembly as Provisional Institution of Self-Government of Kosovo to participate in its proceedings whenever human rights questions which arise concerning the people and the territory of Kosovo are on the agenda. Such invitations should be channelled through UNMIK."
Amendment C *
In paragraphs 12.ii.a. and 12.ii.b, add "and 13" after "12" and delete "and" between "7 and 12".
Amendment D *
Replace paragraph 12.iii.d. by the following text:
"to enact, in sufficient time for its implementation before the next elections the Draft Broadcasting Law in Serbia, which has been adopted by the Serbian Government, agreed upon by the experts of the Council of Europe and was recently referred to the Serbian Parliament with urgency, and to enact, in sufficient time for its implementation before the next elections legislation on public information in Serbia, placing particular emphasis on guarantees of independence and pluralism."
Amendment E *
Replace paragraph 12.iii.f. by the following text:
"to enact, within one year of its accession, legislation on citizen associations and NGOs consistent with European standards for non-profit organisations exempt from tax paying."
Amendment F
Replace paragraph 12.iv.a. by the following text:
"to continue co-operating with the ICTY in a true spirit of moral and historic obligation and not as an evil that is necessary to achieve certain objectives, and in this context:
- to do its utmost to track down all the sixteen accused persons still at large and to extradite them to the ICTY. Authorities must not give in to blackmail by an accused person threatening with armed resistance or suicide;
- to cooperate with the ICTY in giving witness protection if required;
- to give clear instructions to the police and prosecutors to enable them to make immediate arrests, as the law on extradition is deficient as regards time required for taking action;
- to revise Article 39 of the Law on co-operation with the ICTY in accordance with the Statute of the ICTY and the relevant UN Security Council Resolution;
- to make documents and archives, including military documents and archives, available to the ICTY without further delay."
Amendment G
Replace paragraph 12.iv.b. by the following text:
"to cooperate to establish the facts concerning the fate of all missing persons, e.g. by opening the known mass graves in Batajnica and the alleged mass graves near the Vranje highway, and giving all information concerning them."
Amendment H
After paragraph 12.vi.c. add the following new sub-paragraph:
"d. to cooperate with UNMIK in the central issue of dissolving parallel structures in the community of Mitrovica, to eliminate all support for these parallel structures and accept UNMIK's authority according to the UNMIK-FRY Common Document."
II. Explanatory memorandum
by Mr Helmut Lippelt, Rapporteur
A. Preliminary remark
1. I agree with the Rapporteur of the Political Affairs Committee about the political will and determination of most Yugoslav parliamentarians and ministers at both federal and republic level to set their sights on Europe and its institutions and now to join the Council of Europe.
2. But there are a number of difficulties about dealing with the FRY’s application in the usual way. Yugoslavia is a country undergoing reconstruction. The constituent republics of Montenegro and Serbia may have reached general agreement on the form of their association, but this still needs to be given shape in terms of constitutional law. The adaptation of legislation to Council of Europe standards has progressed further in Serbia than in Montenegro. But these are problems that can be resolved according to the suggestions of the Political Affairs Committee. They are of secondary importance in relation to the encouragement that admission to the Council of Europe would represent for the country.
3. The relationship between Yugoslavia, more particularly Serbia, and Kosovo is a more difficult issue. It is addressed by the ambiguous Resolution 1244 of the United Nations Security Council. The Resolution speaks of Yugoslavia’s integrity and at the same time calls upon its own provisional administration in Kosovo, UNMIK, to establish provisional institutions of self-government. Resolution 1244 may be a "legal document", which provides a basis for UNMIK’s administration of Kosovo, but it does not provide a "legal order" within which to determine the relationship between Kosovo and Serbia. But because it is the decisive political document which brought war to an end, there is general agreement that Kosovo’s final status is yet to be determined. This contradiction needs to be examined further. I agree with the Rapporteur of the Political Affairs Committee that the status issue is not one to be debated in the Council of Europe. Nor should it be an obstacle to Yugoslavia’s admission.
4. However, Kosovo’s present provisional relationship to Yugoslavia as a United Nations-administered territory is the result of the Milosevic regime’s attempt to expel the Kosovo Albanians and military intervention by the international community. The attempted expulsion, military resistance by the UCK and ultimately the military intervention by NATO have resulted in a welter of problems directly affecting people and human rights and which are especially the business of this Committee. I have therefore focused on these problems and so on Kosovo’s relationship with Yugoslavia.
B. The relationship between Kosovo and Yugoslavia
i. Hostages
5. When they withdrew from Kosovo, Yugoslav troops acting under orders took more than 2000 Kosovo Albanian prisoners with them to Serbia. They were mostly from the Dubrava prison complex near Istok, but also inlcuded people arbitrarily arrested in Kosovo, partly in Pristina. Some were convicts, some were captured ‘terrorists’, some had not been tried at all. During the following 15 months of the Milosevic regime, some 1300 were released in response to international pressure, some of the others were later freed when their cases were reviewed by the Yugoslav courts. When I was appointed rapporteur, 166 were still in prison. They were reliably reported to be partly political prisoners and partly serving sentences for criminal offences. The only possible course was to call for them to be returned to Kosovo and handed over to UNMIK. This was linked to Yugoslav demands for the release of Kosovo Serbs wrongfully held by UNMIK. This issue was resolved shortly before my second visit, agreement having been reached in November 2001 in the Common Document between UNMIK and the FRY, represented by the Special Representative of the Yugoslav President and the governments of FRY and Serbia, Nebojsa Covic. The remaining Kosovo Albanians were handed over to UNMIK at the beginning of April. UNMIK in turn recently handed over, out of 46 Serbian prisoners, six who volunteered to be handed over to Serbia. The other 40 chose to remain in UNMIK prisons.
ii. Missing and abducted persons
6. One of the most painful results of expulsion, military oppression and guerrilla warfare is many people’s uncertainty as to the whereabouts of family members, whether they are buried in mass graves or whether there is any hope of their return. The fate of some 2400 Kosovo Albanians and 1200-1300 Kosovo Serbs and members of non-Albanian minorities remains unclear. Names are being collected on both sides. For a while there were rumours among Kosovo Serbs of secret prisons. This has no basis in fact. My inquiries elicited no plausible evidence of any such places where hostages were being held. Hope has now given way to the digging up of mass graves and the laborious process of identifying corpses by DNA analysis. Last year mass graves were found in Serbia containing corpses that had been transported from Kosovo. Five mass graves have been opened and 427 corpses found. Belgrade is co-operating by setting up a DNA analysis centre. A further three, or perhaps four, mass graves have still to be opened. It is not to be ruled out that failing interest in further clarification of the fate of missing persons may go hand in hand with the keen interest of those responsible in preventing further investigations. On the other hand, in addition to the mass graves, several hundred individual burial sites have yet to be opened in Kosovo.
7. It is important that the search for missing persons should now be carried out jointly. In the UNMIK -FRY Common Documents it was agreed to establish a High Ranking Working Group empowered to set up specific working groups as necessary. One such group, involving both sides, should be responsible for missing persons.
iii. IDPs and refugees
8. After the withdrawal of the Yugoslav army, some 200 000 Kosovo Serbs and members of other non-Albanian minorities fled from Kosovo. In Serbia, they are legally classified as IDPs, in fact they are refugees just like other Serbian refugees from former Yugoslav territories.
9. UNMIK is responsible for preserving their right to return and protecting their property; in practice this is done by the UNHCR and other international organisations. A small number have returned, but they have been fewer in number that fresh emigrants.
10. At first hesitantly, the Serbian government urged the refugees to take part in the Kosovo local elections. In the meantime, there are return plans on all sides: one under the Belgrade co-ordination centre headed by Deputy Prime Minister Covic, one under UNMIK, which includes the return to fourteen villages in the next three months; lastly, there have been calls such as that by the PDK of the present Albanian prime minister.
iv. Freedom of movement and security
11. Current lack of opportunity and willingness to return is mainly due to the security situation. The main obstacle to refugees’ return is the atmosphere of insecurity and intimidation in which they would have to live in Kosovo. Today, there are still a number Kosovo Serb villages under UNMIK protection (enclaves). Kosovo Serb members of parliament are entitled to UNMIK protection. This need for protection also behind the – in this form unacceptable - sealing off of the area to the north of Mitrovica. But there are also positive developments: the first UNMIK posts in some enclaves have been dismantled. Instances of murder and ethnic violence have fallen dramatically. On 24 April 2002 in the United Nations Security Council, SRSG Steiner reported the fall in murders ( 1999: 500; 2000: over 250; 2001: 136 ) to 18 between January and April of this year. Since the statistics do not distinguish between ‘normal’ and ethnically motivated murders, these figures are approaching the European average. Nonetheless, every non-Albanian in Kosovo who feels threatened must be entitled to protection. The Provisional Institutions of Self-Government (PISG) must be relied upon to enforce the rule of law, freedom of movement, tolerance and respect for minorities.
v. Rights of minorities
12. I agree with the rapporteur of the Political Affairs Committee that Yugoslavia has enacted a good minorities law, which now has to be implemented. The PISG of Kosovo must now be expected to enact and implement similar laws.
vi. North Mitrovica and parallel structures
13. However, development towards rule of law and tolerance of minorities is hampered by the political problem of duplicated structures. Since 1999, there has been a de facto partition of Mitrovica. This was brought about by the formation of local Serb militias, the expulsion of Albanians to the north of the Ibar and the influx of Serbs from south of the Ibar. The militias of the so-called “Bridge-Watchers“ prevented the area north of the Ibar being placed under effective UNMIK administration. NATO, which fought shy of military confrontation and relied on a long-term strategy of tension reduction, failed to prevent this development: on the contrary there is now to all intents and purposes a frontier. North of the Ibar there are Serb courts attached to Kraljevo, with judges paid by Belgrade. The UNMIK administration has not succeeded in progressing towards a multi-ethnic judiciary by appointing Serb judges. Similarly, police are provided by the ‘Bridge Watchers’, not by the newly formed multi-ethnic Kosovo Police Service. Although the Serb Deputy Prime Minister with responsibility for Kosovo, Covic, now publicly rejects a partition of Kosovo, he has also said the opposite. The Council of Europe must firmly reject any speculation about partition.
14. It is to be welcomed that the Serb government eventually encouraged the Serbian minority to take part in local elections in Kosovo. Politically, this led to the formation of the "Povratak Coalition " of Serb parties. Within the coalition, there are differences between those who belong to parties of the same name in Serbia and seek Belgrade’s backing, and those who seek, by means of an independent policy, to improve living conditions for the Serb minority in Kosovo. And yet the Serb participation conceded by UNMIK in the provisional government of Kosovo – one ministry, one refugee commissioner and one representative on the general staff of the SRSG – is in effect determined in consultation with Belgrade.
Summing up:
UNSC Resolution 1244 and the need for co-operation
15. All parties agree that the status issue is not yet ripe for a solution. But steps must be taken towards finding a solution. The UNMIK administration under SRSG Steiner has formulated "benchmarks" concerning democratisation, the rule of law and freedom of movement, intended to make such a solution possible in due course.
16. I did not meet any representative of the Kosovo Albanians who, after the oppression and expulsions of Milosevic, the destruction of homes and the death of relatives, thought there was any conceivable future for Kosovo in a federation with Serbia.
17. Even if the admission of Yugoslavia – whether as Yugoslavia or as “Serbia and Montenegro”– is not made conditional upon resolution of the status issue, the Council of Europe must insist on the humanitarian problems between Belgrade and Pristina being solved without both sides constantly invoking the status question.
18. The UNMIK-FRY Common Document of 5 November 2001 provides for a seat in the High Ranking Working Group chaired by the SRSG, alongside the representative of the FRY, for representatives of the PISGs. It is not acceptable that they should confine themselves to the position of observers, especially when the humanitarian interests of their populations need to be defended.
19. On the other hand, the parallel structures supported from Belgrade in the north Mitrovica area, cannot be accepted. The non-criminal elements in the “Bridge Watchers” must be absorbed into the Kosovo Police Service. The "Povratak" parties should be able to reach their decisions free from the influence of Belgrade. Only then can the solution of practical questions be tackled.
20. In the interests of co-operation, I would suggest that it could be politically helpful to invite representatives of the Kosovo Provisional Assembly to discuss relevant human rights issues, as guests of the Parliamentary Assembly of the Council of Europe.
C. Yugoslavia
21. If Yugoslavia seeks to return to the European fold, like other newly democratic states, it cannot and must not evade coming to terms with its own past, owning up to what the Milosevic regime perpetrated in its and Serbia’s name. A substantial contribition to this is being made by an independent press, but the consolidation of its independence requires the speedy enactment of the already prepared Broadcasting Law. Much is also being contributed by judicial reform and new appointments to key positions. Much will be contributed also by the by no means yet secured parliamentary scrutiny of the police, secret services and the army. In this area there are only preliminary drafts of legislation. Much remains to be done by the universities to cast off the role of pawns thrust upon them by Milosevic’s legislation. The courageous path to self-renewal from within is so far being trod by only some parliamentarians and politicians, very little by government departments. A “Lustration” (Purification) Act would be useful, but politically difficult to achieve.
22. It is all the more important for the Yugoslav and Serb governments to be more resolute than hitherto in co-operating with the International Criminal Tribunal in The Hague. There has been lengthy controversy over the form of the necessary legislation. The present version is imperfect and contrary to the Statute of the ICTY and the corresponding Security Council resolution. Limiting extradition to persons already charged is not acceptable in a process intended to shed light on crimes and will need to be rectified by the Yugoslav parliament. Co-operation with the police to arrest those charged is required.
23. I took the liberty, when Chief Prosecutor del Ponte visited the Council of Europe, of asking her to formulate her criticism more precisely. Her reply is appended to this memorandum. It requires updating only insofar as one further accused person has meanwhile been arrested and the ICTY has been given access to two witnesses.
24. Above all, it is no longer tolerable for co-operation in inspection of files and documents to be circumvented as it has been so far. Here, too, it is clear how little disposed the administrative authorities are to co-operate.
25. The Yugoslav government has reacted to the Chief Prosecutor’s criticism and set up an interministerial committee chaired by the Foreign Minister to investigate complaints and see to it that inquiries are promptly answered.
26. The Broadcasting Law is now before parliament. It was drafted in consultation with Council of Europe experts; the cabinet has adopted it. It should not have to wait until shortly before the next elections to be enacted, but could be passed immediately.
27. There is also opposition from the bureaucracy to the enactment of NGO legislation. It will be remembered that in 1998, in preparation for the imminent war in Kosovo, Milosevic planned three laws: the Universities Act, to banish the last remaining free spirits from the universities or bring them under control; the Media Act, to rein in the media through the threat of heavy penalties. Both were enacted. An NGO Act was also in preparation, to bring civil society under control. A number of NGOs that had been formed in opposition to Milosevic’s Greater-Serbia adventure and which were publicly berated as traitors and western spies, were to be silenced once and for all. Anyone who has seen graffiti like “Sects out !” daubed in the stairwell of the Helsinki Committee, knows that the spectre of those times is not yet dead.
28. The resistance mentioned by the Rapporteur of the Political Affairs Committee in the financial administration hints at a continuing intention to control NGOs, if necessary via taxation. This must be countered by emphasising European standards regarding public-interest and non-profit organisations. It is just such movements in which civil society speaks out politically and denounces malfunctions in society.
Summing up
29. Despite that, I am firmly in favour of admitting Yugoslavia to the Council of Europe. Yugoslavia has a long and difficult path ahead and should be accompanied along that path by Europe’s parliamentarians.
30. The Rapporteur of the Political Affairs Committee has limited the required commitments to a reasonable number. I will not add to them unduly, but I should like more specific mention of : enactment of the Media Law; NGOs legislation; co-operation with the Hague Tribunal; co-operation with UNMIK.
APPENDIX I
Programme of the visit to Pristina and Belgrade of Mr Helmut Lippelt,
Rapporteur of the Legal and Human Rights Affairs Committee
26-30 May 2002
Sunday 26 May 2002
17:00 Ms Smiljka Milisavljevic and Ms Stojanka Petkovic, Municipality building in Zvecan
Transport at 15.45 by “private taxi” from Pristina (Grand Hotel) to South Mitrovica. Continuation by UNMIK CIVPOL vehicle to Zvecan.
Monday 27 May 2002
10:00 Mr Jean-Christian Cady, Head of Pillar I (Police and Justice), Mr Alexander Borg-Olivier, The Legal Adviser of the SRSG, Mr Petr Ivantsov, Director of the Political Office, UNMIK, Mr Andrew Whitley, Director of the Office of Returns and Communities in the SRSG’s Office, Ms Isabelle Servoz-Galucci, Special Assistant to Mr Cady
[UNMIK HQ, 2nd floor]
13:00 Ms Flora Brovina, MP (PDK) and founder and head of the “Rehabilitation Centre for Women and Children”
14:00 Mr Lars Tummers, Principal International Officer of the Office of the Prime Minister
[Government Building]
14:30 Mr Bajram Rexhepi, Prime Minister, Mr Lars Tummers and Mr Rexhepi’s Senior Adviser
[Government Building, II floor- N 223]
16:00 Mr Ramush Haradinaj, Head of AAK (Alliance for the Future of Kosovo)
[Mr Haradinaj's office]
17:30 Mr Bujar Bukoshi, Head of PreK (New Party of Kosovo)
[Mr Bukoshi’s office]
Tuesday 28 May 2002
09:00 Mr Hashim Thaqi, Head of PDK
[Mr Thaqi’s office]
11:00 Mr Ibrahim Rugova, President of Kosovo
[Mr Rugova’s residence]
13:00 Departure
19:00 Arrival in Belgrade
Wednesday 29 May 2002
09:00 Mr Goran Svilanovic, Federal Minister of Foreign Affairs
10:30 Mrs Biljana Kovacevic-Vuco, Yugoslav Law Committee
12:00 Mr Dragor Hiber, President of the Committee on Justice and Administration
16:00 Mrs Natasa Kandic, Humanitarian Law Center
18:30 Mr Rasim Ljajic, Federal Minister for National and Ethnical Groups
Thursday 30 May 2002
09:30 Mr Dragoljub Micunovic, President of the Chamber of the Citizens of the Parliament of the Republic of Serbia
10:30 Mr Sasa Mirkovic, B92
12:00 Mrs Sonja Biserko, Helsinki Committee for Human Rights in Serbia
15:00 Mr Dusan Mihailovic, Minister of the Interior of the Republic of Serbia
16:30 Mr Dejan Mihov, ICTY in Belgrade
18:00 Mr Nebojsa Covic, Vice-President of the Government of the Republic of Serbia
APPENDIX II
Exchange of letters between Mrs Carla del Ponte, Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia, and Dr Helmut Lippelt, Member of the Committee on Legal Affairs and Human Rights
A. Letter of 14 May 2002 from Dr Helmut Lippelt, Member of the Committee on Legal Affairs and Human Rights, to Mrs Carla del Ponte, Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia
…
In your address to the Parliamentary Assembly of the Council of Europe on 24 April 2002 you mentioned that the duration of the activity of the International Criminal Tribunal depended on the willingness of the individual states, particularly Yugoslavia, to co-ordinate with the Tribunal.
As a member of the Parliamentary Assembly Committee on Legal Affairs and Human Rights I am co-rapporteur on Yugoslavia’s accession to the Council of Europe. I will be submitting my report at the next meeting of the Committee to be held in the second week of June. In addition to the main focuses of Kosovar prisoners in Serbia and the rights of minorities in Serbia and Kosovo, this report will, precisely, be addressing the matter of co-operation between Yugoslavia and the International Criminal Tribunal.
I in fact mentioned this subject to you in Strasbourg alongside the committee’s meeting.
Since I have already stated my view in an interim report that co-operation with the Tribunal is a sine qua non for its functioning, I would like to request your opinion on the current position as regards co-operation between Yugoslavia and the Tribunal.
If you could send me a brief assessment of this situation I would be keen to append it to my report.
…
signed:
Dr Helmut Lippelt
B. Letter of 16 May 2002 from Mrs Carla del Ponte, Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia, to Dr Helmut Lippelt, Member of the Committee on Legal Affairs and Human Rights
Reporting committee: Political Affairs Committee
Committee for opinion: Committee on Legal Affairs and Human Rights
Reference to committee: Doc 8909 and Reference No 2564 of 26 January 2001
Opinion approved by the committee on 24 June 2002
Secretaries to the committee Ms Coin, Mr Sich, Ms Kleinsorge, Mr Ćupina
1 See Doc. 9533 tabled by the Political Affairs Committee.
* This amendment was accepted by the Political Affairs Committee
* This amendment was accepted by the Political Affairs Committee