1. Introduction
1. The state union of Serbia and
Montenegro joined the Council of Europe on 3 April 2003. As a successor of
the state union of Serbia and Montenegro, Serbia continued its membership
in the Council of Europe. In accordance with the Parliamentary Assembly
Opinion No. 239 (2002) on the Federal Republic of Yugoslavia’s application
for membership of the Council of Europe, the country had undertaken
a number of specific commitments, in addition to general obligations
resulting from membership of the Organisation. The monitoring procedure
was opened and a first assessment of the implementation of the obligations
and commitments was made in
Resolution
1397 (2004) on the functioning of democratic institutions in Serbia
and Montenegro.
2. In the following two years, the co-rapporteurs travelled to
Serbia twice, from 17 to 20 April 2005, for a fact-finding visit
that focused specifically on the situation of national minorities
and certain aspects of the functioning of the institutions of the
state union of Serbia and Montenegro, and from 8 to 11 April 2006,
for a fact-finding visit concerning the preparation of the referendum
on independence in Montenegro.
3. Several developments have occurred since, the most important
being the referendum on independence organised in Montenegro on
21 May 2006 and the adoption by the National Assembly of Montenegro
of the Declaration of Independence on 3 June 2006, which subsequently
led to the dissolution of the state union of Serbia and Montenegro.
4. In the light of these developments, the Assembly instructed
the Committee on the Honouring of Obligations and Commitments by
Member States of the Council of Europe (Monitoring Committee) in
its
Resolution 1514 (2006) to “review and redefine the commitments originally entered
into by the state union of Serbia and Montenegro, to make them applicable
to the Republic of Serbia”. The Monitoring Committee appointed Charles
Goerens (Luxembourg, ALDE) and Andreas Gross (Switzerland, SOC)
as co-rapporteurs to complete this task. The co-rapporteurs travelled
three times to Serbia to prepare the present report, respectively,
from 3 to 5 September 2007 (Belgrade), from 26 to 28 November 2007
(Belgrade and Vojvodina), and on 1 and 2 September 2008 (Belgrade).
5. A preliminary draft report on the honouring of obligations
and commitments by Serbia was presented to the Monitoring Committee
on 18 December 2007. The report was then transmitted to the Serbian
authorities who were requested to provide comments within a maximum
period of three months. After having taken into account the authorities’
comments, the co-rapporteurs prepared a draft report, which the
Monitoring Committee was expected to adopt on 18 March 2008 with
a view to an Assembly debate during the April 2008 part-session. However,
after the government crisis and the dissolution, on 10 March 2008,
of the National Assembly of Serbia, the Bureau of the Assembly decided
to postpone the debate on the honouring of obligations and commitments
by Serbia until after the early parliamentary elections. In this
context, at the request of the co-rapporteurs, the Monitoring Committee
made the draft report of the co-rapporteurs public on 18 March 2008. The
present draft report is an updated version of the one made public
on 18 March 2008.
2. Political developments since
the adoption of Assembly Resolution
1514 (2006)
2.1. Parliamentary elections
of January 2007 and formation of the government
6. In the last one and a half
years, Serbia’s political life has been marked by important political developments.
After the adoption of the new constitution by the National Assembly
of Serbia on 30 September 2006 and its subsequent approval by referendum
on 28 and 29 October 2006, the parliament adopted on 10 November
2006 a decision on the proclamation of the Constitutional Law on
the Implementation of the Constitution of the Republic of Serbia.
Among other things, the constitutional law established the basis
for the organisation of a general parliamentary election, election
of the President of the Republic and election of the members of
the assembly of the Autonomous Province of Vojvodina and of the
municipal councils.
7. The parliamentary elections were subsequently held on 21 January
2007. As was the case in previous elections, the Serbian Radical
Party got the highest percentage of votes cast securing 81 seats
out of a total of 250 (just one seat (SRS) less than in the previous
legislature). The Democratic Party (DS) of President Boris Tadić
considerably improved its position with 60 seats (against 37 mandates
in the previous legislature). The Democratic Party of Serbia (DSS)
secured 33 mandates (against 53 in the previous legislature) and
G17+ obtained 19 mandates (against 34 in the previous legislature).
The remaining 57 seats were shared between the Socialist Party of
Serbia (SPS, 14 mandates), New Serbia (NS, 10 mandates), the Liberal
Democratic Party (six mandates), the League of Social Democrats
of Vojvodina (four mandates), the Alliance of Vojvodina Hungarians,
the Civic Alliance and the Sandžak Democratic Party (nine mandates),
the Serbian Democratic Party of Renewal and the United Serbia (four
mandates), and Social Democratic Union (one mandate). The Union
of Roma of Serbia, the Roma Party, the Demo-Christian Party of Serbia,
the Democratic Alliance of Croats in Vojvodina, the Bosniac Democratic
Party of Sandžak, the Party for Democratic Action, the Movement of
Veterans of Serbia, the Social Liberal Party of Serbia and the “no
party” lists obtained one mandate each.
8. No party in the National Assembly could secure a sufficient
majority to appoint the government alone. Coalitions therefore had
to be formed. The coalition talks were lengthy and tough. Immediately
after the certification of the results of the election, President
Tadić began consultations with a view to establishing a “democratic
bloc” comprising DS, DSS and G17+. While the key interest of G17
in the negotiations was to secure control over the key economic
ministries, the DS targeted the post of prime minister as well as
key ministries with responsibilities relating to European integration,
and the DSS platform for negotiations was clearly centred on the
issue of the status of Kosovo.
9. In the meantime, the former government continued to ensure
the day-to-day management of the country. As no budget for 2007
was approved by the previous legislature, the government adopted
a decree on interim financing for three months (January-March 2007),
which was further extended until June 2007. No legislative activity
was carried out in this period, which delayed the preparation of
legislation whose adoption is required by the law on the implementation
of the constitution.
10. On 7 May 2007, just eight days before the expiration of the
deadline for appointing a government, the parliament started a debate
about the election of the Deputy Head of the Serbian Radical Party,
Tomislav Nikolić, to the post of Speaker of Parliament. The DSS/NS,
SPS and SRS unanimously supported Nikolić’s election, thus forming
a majority coalition of 145 deputies (out of a total of 250). In
this context, President Tadić was obliged to ask the newly formed
coalition to propose a candidate for the post of prime minister
at the earliest opportunity in order to comply with the constitutional
deadline.
In the meantime,
on 9 May 2007, the newly elected Speaker, Tomislav Nikolić, made
a strong declaration about the possibility of declaring a state of
emergency, should Kosovo become independent.
Interestingly
enough, he retracted his statement on the next day, saying that
he had only raised a “theory”.
These alarming
developments must have pushed the DS, DSS/NS and G17+ to come to
a final agreement on the future cabinet. Tomislav Nikolić resigned
from the post of Speaker of Parliament on 13 May and after a two-day
debate a new government was voted just half an hour before the expiration
of the official constitutional deadline.
11. The government was headed by Prime Minister Koštunica, from
the DSS, and had a fairly balanced composition. The DS held most
of the key ministries, including the Ministry of Finance, the Ministry
of Defence, the Ministry of Foreign Affairs, the Ministry of Justice,
the Ministry of State Administration and Local Self-Government,
as well as the post of Deputy Prime Minister for European Integration.
The DSS kept under its control the Ministry of the Interior, the
Ministry of Trade, the Ministry of Education and the Ministry for
Kosovo and Metohija. The G17+ took control of the Ministry of the
Economy and Regional Development, the Ministry of Health, the Ministry
of Sport, as well as the Ministry of Science.
12. An agreement was reached to share the post of the head of
the information and security agency (security services) between
the DS and the DSS, but the director in office of the agency, Rade
Bulatović (apparently loyal to the DSS), remained in power.
13. During our visits of September and November 2007, we met almost
all key ministers, including Prime Minister Koštunica and Deputy
Prime Minister responsible for European Integration Đelić. We were
particularly impressed by the enthusiasm and commitment of the ministers
from the Democratic Party and, in particular, Deputy Prime Minister
Đelić, Minister of Justice Petrović and Minister for Foreign Affairs
Jeremić. The strong and genuine democratic and European aspirations
of these young and very competent politicians deserve a particular
appreciation. Our discussions with DSS members of the government
were somewhat less emotional and more technical, but left a generally
positive impression. The meeting with Prime Minister Koštunica was positively
open and constructive.
14. We noted that the first results of the newly formed government
were encouraging: we commended in particular the resumption of the
negotiations on the Stabilisation and Association Agreement and
the improvement of co-operation with the International Criminal
Tribunal for the former Yugoslavia (ICTY). Equally, we welcomed
the ratification of the Central European Free Trade Agreement (CEFTA)
and the ratification of the European Charter of Local Self-Government,
one of the Council of Europe conventions that were signed by the
state union and were not ratified before its dissolution. Finally,
as will be seen further below in this report, we welcomed the launching
of the preparation of a number of key framework laws in the field
of the reform of the judiciary and of the public prosecutor’s office.
15. This being said, soon after its formation, the government
was confronted with a difficult political agenda, with respect primarily
to the negotiations about the status of Kosovo and the organisation
of presidential and local elections. We regret that the political
debate between the different political forces forming the coalition about
these issues prevented the government from completing its reform
agenda and, eventually, led to a government crisis and the dissolution
of the National Assembly.
2.2. Negotiations on the future
status of Kosovo
16. The issue of the status of
Kosovo has dominated the political agenda in Serbia for the last
couple of years. The adoption of the new constitution, which specifies
in its preamble that “the Province of Kosovo and Metohija is an
integral part of the territory of Serbia” and stipulates that “the
substantial autonomy of the Autonomous Province … shall be regulated
by a special law which shall be adopted in accordance with the proceedings
envisaged for amending the constitution” was seen as an important
step in the direction of the definition of the final status of Kosovo
within the territory of Serbia.
17. The representatives of all political parties we met during
our 2007 visits (with the exception of the so-called “minority parties”)
mentioned that the status of Kosovo was one of the most complex
and burning challenges Serbia had to face, along with European integration
and social and economic development. The new round of negotiations
started in August 2007 after several unsuccessful attempts to pass
a new resolution in the United Nations Security Council based on
the plan proposed by the Special Envoy of the UN Secretary General,
Marti Ahtisaari. Supplementary talks were mediated by a troika comprising
the representatives of the European Union (EU), the United States
and the Russian Federation. The troika held intensive consultations with
the Serbian and Kosovan leadership until the end of November 2007.
Six meetings with the participation of both parties were held. With
the last meeting held from 26 to 28 November 2007, the supplementary
round of negotiations ended and the troika presented a report about
the results of the negotiations to the United Nations Secretary-General
on 10 December 2007.
18. In its statement about the final meeting between the parties
the troika specified that “regrettably, the parties were unable
to reach an agreement on Kosovo’s future status”.
19. The United Nations Security Council could not agree on the
future status of Kosovo on the basis of the report presented by
the Secretary-General on the conclusions of the troika. Subsequently,
on 17 February 2008, the Kosovo Assembly adopted a unilateral declaration
of independence. The Government of Serbia immediately adopted a
special decision to annul “the acts and actions of the Provisional
Institutions of Self-Government of Kosovo and Metohija whereby unilateral
independence is declared”, “as they violate the sovereignty and
territorial integrity of the Republic of Serbia guaranteed by the
Constitution of the Republic of Serbia, the United Nations Charter,
Security Council Resolution 1244 (1999), other relevant Security
Council resolutions as well as by international law in force”.
20. Nevertheless, promptly after the adoption of the unilateral
declaration of independence, several states, including a number
of Council of Europe and EU member states, recognised the independence
of Kosovo. The Serbian authorities delivered to the ministries of
foreign affairs of the states concerned protest notes as well as recalled
their ambassadors for consultations from these countries.
President Tadić and
the Serbian Foreign Minister, Vuk Jeremić, made statements before
the UN Security Council, the Organization for Security and Cooperation
in Europe (OSCE) Permanent Council, the Committee of Ministers of
the Council of Europe and the European Parliament expressing their
position with respect to the unilateral declaration of independence.
21. On the domestic political front, the parties of the ruling
coalition strongly condemned the unilateral declaration of independence.
A massive protest rally was held in Belgrade on 22 February 2008.
The rally was followed by several violent incidents including attacks
against the embassies of the United States, Canada, United Kingdom,
Germany and Croatia. The Serbian authorities are investigating the
attacks. All political actors condemned the violent incidents, which
apparently were conducted by isolated groups of hooligans. However, some
high-ranking officials of the Government of Serbia made statements
that could be interpreted as legitimising the attacks. Isolated
attacks against representatives of national minorities were also
reported.
22. Moreover, there was information in the press that human rights
defenders and some politicians who expressed views on the developments
in Kosovo different from the authorities’ official position were
harassed by some political actors. In particular, the Socialist
Party of Serbia announced that it would collect signatures to lodge
a criminal complaint against the prominent human rights activist
Nataša Kandić, Executive Director of the Humanitarian Law Centre,
for “acting against the constitutional order and threatening the
state’s independence and integrity”. A massive campaign against
Nataša Kandić was launched in the media. Equally, B92 – one of the
country’s key media outlets – received threats and its office was
attacked on the evening that followed the 22 February rally.
23. We strongly condemn violent protests as well as attacks against
human rights activists, minorities and media outlets. We express
strong concern about the attacks against foreign embassies in Belgrade.
Such attacks are totally unacceptable in a country adhering to democratic
principles and international law. We welcome the condemnation of
these attacks by all political actors and the steps the authorities
are taking to investigate and prosecute all those responsible for
violence, attacks and harassment against human right defenders,
minority representatives and politicians. We hope that those responsible
will be brought to justice.
24. Equally, we condemn the violent protests of Serbs in northern
areas of Kosovo, which happened after the unilateral declaration
of independence. Violence will not resolve the concerns of the Serbian
community, neither will it help build confidence between the representatives
of various ethnic communities living in Kosovo.
25. We welcome the fact that the Serbian authorities have so far
defended their position with respect to Kosovo only by peaceful
and legal means. We call upon Serbia to continue co-operation with
the international civil presence in Kosovo with a view to promoting
the cultural, linguistic and religious rights of all communities living
in Kosovo.
26. Irrespective of the developments in Kosovo, we encourage the
Serbian authorities to continue their strategic course towards European
integration, while continuing to implement the necessary key democratic institutional,
economic and social reforms to make Serbia a better place to live
in. Many officials and NGO representatives we met during our visits
spoke about the need to tackle more effectively some urgent social and
economic problems, reducing unemployment, strengthening democratic
institutions and creating a favourable environment for foreign investments.
We believe that now is the time for the Serbian authorities to concentrate
on these important issues, while acknowledging their willingness
to continue to defend their position with respect to the developments
in Kosovo.
2.3. Presidential elections of
February 2008 and provincial and local elections of May 2008
27. The law on the implementation
of the constitution provides that the date for the organisation
of presidential, provincial and local elections should be set by
the Speaker of Parliament before 31 December 2007 and within sixty
days of enactment of a number of key laws.
28. The coalition partners held intensive consultations throughout
October 2007 about the date of the election. While the DS appeared
to argue in favour of the holding of the presidential election before
the end of 2007 (on the eve of the closing of the supplementary
round of talks about the status of Kosovo and Metohija), the DSS
considered that the elections should be organised after the final
definition of the status of the province and Mr Miloš Aligrudić,
head of the DSS parliamentary group and chair of the Serbian delegation
to the Parliamentary Assembly, was quoted saying that “elections
were not what was needed in this phase of resolving the future status
of Kosovo”.
29. As a result of the consultations, an agreement between the
main partners in the coalition was reached on 3 November 2007. According
to this agreement, the presidential elections were supposed to be
called after the end of the supplementary round of talks about Kosovo
(that is, after 10 December) unless there was an immediate threat
to territorial integrity of the country (for example, proclamation
or a unilateral declaration of independence by Kosovo). The agreement
apparently included a detailed timetable of adoption of legislation necessary
for the holding of the election. All laws necessary for holding
the presidential election were adopted on 11 December 2007 and the
Speaker of the National Assembly called the presidential election
for 20 January 2008.
30. The Assembly observed the second round of the presidential
election held on 3 February 2008. In this respect, we refer to the
Assembly report on the observation of the presidential election,
which contains a detailed description of the modalities of the voting.
We join the conclusions of the Election
Assessment Mission in that “the second round of voting in Serbia’s
presidential election was conducted in line with Council of Europe
commitments for democratic elections”. This election confirmed once
more Serbia’s strategic course towards European integration. It
showed, however, that the “European integration project” was not
shared by all the sectors of the society. It is now the responsibility
of Serbia’s leadership to work with all actors concerned to build
much-needed bridges in the society for European integration to become
a shared vision of the country’s future.
31. The legislation necessary for the holding of provincial and
local elections, namely the Law on Territorial Organisation, the
Law on the Capital City, the Law on Local Elections and the Law
on Local Self-Government, was adopted on 29 December 2007 and the
elections were subsequently called for 11 May 2008. The Congress
of Local and Regional Authorities of the Council of Europe observed
the elections and concluded that the voting was in line with international
standards.
2.4. Early parliamentary elections
of 11 May 2008 and recent political developments
32. After the presidential election
of February 2008 and the adoption of the unilateral declaration
of independence by the Kosovo Assembly, the tensions in the governing
coalition increased. Although both the DS and DSS ministers appeared
to jointly implement the government action plan on measures to be
taken in case of the adoption of a unilateral declaration of independence
by Kosovo, Prime Minister Koštunica and DSS ministers took a much
harder line. European integration appeared to be the main issue
of disagreement between the parties: while the DS and G17+ favoured
a further rapprochement with the EU and the signing of the Stabilisation
and Association Agreement (SAA), DSS ministers called for the annulment
of the agreement, arguing that the unilateral declaration of independence
and the recognition of independent Kosovo by some EU member states
changed the purpose and the object of the SAA. As a result of heated
political debate, the government became completely blocked: without
having the majority, Prime Minister Koštunica refused on several
occasions to convene the sessions of the government knowing that
his party’s representatives would be outvoted on issues relating
to European integration.
33. The crisis culminated in the resignation of the government
on 10 March 2008, together with the adoption of a proposal to dissolve
the National Assembly of the Republic of Serbia and to hold early
parliamentary elections on 11 May 2008. In this proposal, the government
acknowledged the lack of unity on key issues, which prevented it
from formulating and conducting a common policy for the country.
President Tadić accepted the proposal, dissolved the National Assembly
and subsequently called a pre-term election for 11 May 2008.
34. An Assembly ad hoc committee observed the elections of 11
May 2008. We shall not reproduce in the present report the conclusions
of the ad hoc committee, which we fully subscribe to.
We note that, building upon the
success in the presidential election, the pro-European bloc rallied
around the DS, won a resounding victory and became, with 102 mandates,
the biggest parliamentary force. The SRS managed to secure 78 mandates
(against 81 in the previous legislature). The DSS appeared to be
the biggest loser of the election with only 21 mandates. The results
of the other parties remained more or less comparable to the previously obtained
scores in the January 2007 parliamentary elections.
35. Just as in January 2007, no party could form a majority alone
and coalition negotiations were tough. Initially, it appeared that
the so-called “patriotic bloc” comprising the SRS and the DSS-NS
could form a coalition with the Serbian Socialist Party (SPS) to
form a majority government. The agreement to form majority coalitions
at local level was reached between the parties of the “patriotic
bloc” and SPS in most local assemblies, including in the city assembly
of Belgrade, where the SRS candidate, Aleksandar Vučić, appeared to
be in a good position to win the post of mayor. Several days after
the election, it appeared, however, that the SPS-led coalition comprising
20 MPs from the SPS, the United Party of Retired Persons (PUPS)
and the United Serbia Party (JS) was no longer keen on forming an
alliance with the SRS and DSS-NS, primarily because the SPS coalition
partners (PUPS and JS) strongly rejected any actions that could
slow down the process of European integration. The “patriotic bloc”
on the contrary argued that the Stabilisation and Association Agreement
had to be annulled in the new context created after the recognition
of Kosovan independence by the majority of EU member states.
36. Subsequently, the SPS-led coalition announced that it broke
the coalition agreement with the SRS and DSSNS in order to start
new negotiations with the DS-led pro-European bloc. The negotiations
culminated in the signing of a coalition agreement and formation
of a new government, which was also supported in the National Assembly
by the parties of national minorities and the Liberal Democratic
Party (LDP).
37. The new government reflects its political composition. With
24 ministries, one first deputy prime minister (leader of the SPS,
Ivica Dačić), three deputy prime ministers and one minister without
portfolio, the new government is larger than the previous ones.
Its policy priorities appear to be in line with the strategic course towards
European integration launched by the previous coalition governments.
As was underlined by Prime Minister Mirko Cvetković in his keynote
address to the National Assembly, the key elements of his government’s
programme will be “the commitment to European integration, non-acceptance
of the independence of the Autonomous Province of Kosovo and Metohija,
the need to strengthen the economy, increase the social responsibility
of the government, step up efforts to combat crime and corruption
and respect for international law”.
38. We congratulate Serbia’s political actors on having promptly
completed the coalition negotiations in an orderly and democratic
fashion. We welcome the country’s European aspirations and stand
ready to support the government’s strategic course towards European
integration. We note, however, that the new government is currently
in a difficult position. With a strong and relatively consolidated
opposition, it will have to engage in a dialogue with all political
actors to make European integration a shared vision of the country’s
future. It will also have to fulfil its electoral promises, focusing
in particular on social programmes and the improvement of citizens’
living standards. This will be an extremely complex endeavour, especially
because the opposition appears to use the shortfalls of the existing
Rules of Procedure of the National Assembly to paralyse the debate.
39. We strongly condemn obstructionism and call upon the opposition
political parties to adopt a constructive attitude in the parliamentary
arena. Obstruction cannot be used as a tool in the political process. Instead,
all actors representing the majority and the opposition should engage
in a meaningful dialogue about the much needed key reforms, which
have been put on hold for the last three years because of political
rivalries. In this respect, we call on the majority coalition to
spare no effort in building a constructive working relation with the
opposition. As will be seen further below, we consider that the
adoption of new Rules of Procedure of the parliament can help overcome
this problem (see paragraph 104).
40. We will closely follow the activities of the new government,
especially those relating to the implementation of the Council of
Europe obligations and commitments. As will be seen further below
in this report, we expect the authorities to implement promptly
a number of key reforms in the field of strengthening of democratic
institutions, rule of law and human rights. We trust that the new
government has the political will and the capacity to successfully
complete this reform agenda. For our part, we shall spare no effort
in providing political support to these reforms, which are essential
for the future of democracy in Serbia and in the Western Balkans,
in general.
2.5. Relations with the European
Union
41. Serbia is a potential candidate
for EU membership. Negotiations about a Stabilisation and Association Agreement
were officially opened in October 2005. However, they were put on
hold in May 2006 due to the failure of the Serbian authorities to
fully co-operate with the International Criminal Tribunal for the
former Yugoslavia (ICTY). The talks resumed in June 2007 after the
formation of the new coalition government and were conditioned on
full co-operation with the ICTY.
42. Improvements in the co-operation with the tribunal were detected
and reported to the European Commission by the chief prosecutor
of the ICTY in autumn 2007. Taking into account the positive dynamic,
the Stabilisation and Association Agreement between Serbia and the
European Union was initialled on 6 November 2007. All domestic and
international actors saw the initialling of the SAA as an important
step forward on the path of integration of Serbia into the European
Union.
43. In the meantime, the European Commission issued on 13 November
2007 the 2007 progress report on Serbia. While the progress report
acknowledges some progress Serbia has made in the fulfilment of
the Copenhagen political criteria, it points at a number of weaknesses
and shortcomings of democratic institutions in Serbia. In particular,
the European Commission joins the opinion of the Venice Commission
in that the new Constitution of Serbia contains a number of provisions
that are not in line with European standards, including the political
party control over mandates of individual members of parliament
and the excessive role of the parliament in judicial appointments.
44. The Commission also noted that “limited progress has been
made in the fight against corruption. Corruption is widespread and
remains a serious problem in Serbia”.
There
are also serious problems with respect to the reform of the judiciary,
in particular, “the provisions of the new constitution on judicial appointments
have not been implemented as new laws on courts and prosecution
have yet to be adopted. Clear criteria and procedures for judicial
appointments have not yet been established. There are concerns about
the level of influence of parliament over the judiciary. Parliament
is responsible for the appointment of judges and prosecutors for
the initial probationary period following a proposal from the High
Judicial Council and State Prosecutors’ Council. Several members
of the High Judicial and Prosecutors’ Councils are also elected
by parliament.”
45. Serbia ratified the revised Central European Free Trade Agreement
(CEFTA) in September 2007 and the Agreements on Visa Facilitation
and Readmission of Persons Illegally Residing on the Territory of
the EU in November 2007.
46. In February 2008, the European Union appointed Mr Peter Feith
as EU Special Representative in Kosovo and authorised the deployment
of the European Union Rule of Law Mission (EULEX) to take over the competences
of the United Nations Interim Administration Mission in Kosovo (UNMIK).
The Serbian authorities disputed the legality of the deployment
of the mission, in the absence of a decision by the UN Security
Council. The newly elected National Assembly of Serbia is expected
to launch a debate about a new resolution on the situation in Kosovo
as one of the priority items for the September 2008 session, which
started on 2 September 2008. While we understand the desire of the
Serbian MPs to take a political position on the issue of Kosovo, we
hope that this debate will not undermine the unity of the coalition
partners on the issue of European integration and add more division
in the society. We consider that the Serbian authorities can defend
their legitimate interests with respect to Kosovo while pursuing
the strategic course of European integration. We stand ready to
support our Serbian colleagues in this task at the level of the
Parliamentary Assembly.
2.6. International context and
relations with neighbours
47. Serbia chaired the Committee
of Ministers of the Council of Europe from May to November 2007.
The chairmanship was prepared in a particularly complex context
of adoption of the new constitution, parliamentary elections and
formation of a new government. However, the preparations were well
handled by the Ministry of Foreign Affairs: an inter-sectoral working
group bringing together all key actors was established and a programme
of the chairmanship was prepared in time. The priorities of the
Serbian chairmanship in the Committee of Ministers included:
- promoting the Council of Europe
core values: human rights, democracy and the rule of law, including
the further strengthening of conventional and monitoring mechanisms
and the consolidation of democracy and rule of law throughout Europe;
- enhancing personal security – especially, combating terrorism,
organised crime and corruption;
- building a more humane Europe – towards more active participation
of all citizens, including fostering European identity and unity
based on shared fundamental values, respect for our common heritage
and cultural diversity and building the capacities of local communities
and individuals;
- strengthening co-operation and good neighbourly relations
through full respect of values and implementation of Council of
Europe standards in South-Eastern European countries, thus fostering
the European perspective of the region.
48. The results of the chairmanship were highly assessed by the
Council of Europe as well as by domestic and international politicians.
The Council of Europe Secretary General was quoted saying that the
country proved that it was a “capable European leader” that “deserved
to wear the European colours”. We congratulate the Serbian authorities
on the successful completion of this important task.
49. Serbia took an active part in the regional co-operation initiatives.
From November 2006 until May 2007 Serbia chaired the Black Sea Co-operation
Council. Serbia also actively participated in the Stability Pact
for South-Eastern Europe and its transformation into a more regionally
based co-operation framework of South-East European Co-operation
Process (SEECP). Within the framework of the chairmanship of the
Committee of Ministers Serbia facilitated the establishment of contacts
between the Council of Europe and the newly formed Regional Co-operation
Council. Serbia participated constructively in the negotiations
on the amended Central European Free Trade Agreement (CEFTA), which
it ratified in September 2007.
50. Co-operation on implementation of UN Security Council Resolution
1244 on Kosovo was somewhat less encouraging. The Serbian authorities
called upon the Serb communities living in Kosovo to boycott the elections
held on 17 November 2007. Not surprisingly, voter turnout in municipalities
where the Serb communities live was very low. It has not hampered
the organisation of the election, however, which was considered
valid.
51. Since the independence of Montenegro and the dissolution of
the state union, Serbia has developed good cooperative relations
with its new independent neighbour. An agreement on Social Security
was signed between the two countries. Montenegro also entrusted
to Serbia responsibility for the protection of Montenegrin citizens
abroad. This being said, the relations between the Serbian and the
Montenegrin Orthodox churches still remain tense. The issue of dual
citizenship also generated a negative reaction in Montenegro. The September
2007 amendments to the Serbian citizenship law providing for a simplified
procedure of granting Serbian citizenship to citizens of Montenegro
who resided on the territory of Serbia on the day of independence were
seen as interference in domestic affairs in Montenegro. We hope
that the authorities of both countries will find a constructive
solution to this problem.
52. Relations with Croatia are good. A co-operation agreement
on the prosecution of war crimes was signed in 2007. However, both
countries have yet to sign an agreement on the border. Croatia also
continues to pursue its case of genocide against Serbia before the
International Court of Justice.
53. The International Court of Justice adopted a ruling in February
2007 in the case Bosnia and Herzegovina v.
Serbia. The court found that acts of genocide were committed
in Srebrenica. However, the court ruled that Serbia did not commit
genocide against Bosnia and Herzegovina. Nevertheless, the court
considered that Serbia had failed to take all measures necessary
to prevent the Srebrenica genocide and bring the perpetrators to
justice.
54. Serbia continues to develop good relations with “the former
Yugoslav Republic of Macedonia” despite somepersisting tensions
between the Serbian and Macedonian Orthodox churches.
55. Relations with Romania, Bulgaria and Slovenia are generally
good.
3. Functioning of democratic
institutions
3.1. Constitutional reform
3.1.1. Adoption of the constitution
56. Work on the new Constitution
of Serbia has been ongoing since the overthrow of the Milosevic
regime, but the final version of the constitution was in fact drafted
within a very short time frame. The final text was prepared very
quickly and apparently represented a compromise between the top
leaders of the four main political parties (DSS, DS, G17+ and SPS).
Other political forces and the expert community seem to have been excluded
from the drafting process.
57. The constitution was approved on 30 September 2006 by some
242 members of the National Assembly participating in the special
session. The constitution was approved unanimously and submitted
for approval to a referendum scheduled to be held on 28 and 29 October
2006 (less than one month after the adoption of the constitution).
The referendum was held over two days in order to ensure the 50%
voter turnout.
58. Given the short time frame, the Venice Commission did not
analyse the constitution before its approval by referendum.
It
was not properly discussed with the citizens either. The preparation
of the new constitution was not a good example of constitution-making.
59. In the couple of weeks that followed the adoption of the constitution,
electronic and printed media organised a massive campaign in favour
of the constitution. Some claimed that the constitution would bring
a final solution to the status of Kosovo and Metohija. Others argued
that the constitution would help Serbia break with its past and
move ahead from the Milosevic era into a new brighter future. The
activities of the prime minister and of the president aiming at
promoting the constitution were largely publicised in all television
news bulletins. But overall, none of the television programmes and
talk shows offered a forum for serious debate.
60. Although according to the Assembly delegation observing the
voting, “the Constitutional Referendum … was, in general, conducted
with due respect for Serbia’s democratic commitments to the Council
of Europe”,
the organisation of the
voting appears to have been flawed by serious irregularities. The
Assembly observers identified some of these which included,
inter alia, inaccuracies in voters’
lists, improper sealing of the ballot boxes, ballot box stuffing,
etc. Specific problems relating to the twoday voting were also identified,
whereby the protocols were not properly signed and sealed upon the
closing of the polling stations on the first day and subsequently
verified on the morning of the following day, upon the reopening
of the polling stations.
61. As a general remark, we would like to note that the Assembly
delegation visited only 318 polling stations out of 8 600 open nationwide,
which represented some 3.7%. The Office for Democratic Institutions
and Human Rights of the Organization for Security and Co-operation
in Europe (OSCE/ODIHR) did not observe the referendum because apparently
it was not invited to send an observation mission. Only two parliamentary parties
that opposed the constitution were allowed to deploy observers (the
Civic Alliance of Serbia posted 670 observers and the Social Democratic
Union deployed 335 observers). The Belgrade-based Centre for Free Elections
and Democracy (CeSID) monitored the voting at 600 polling stations
only.
62. The Assembly delegation was informed that a group of NGOs
(Helsinki Committee for Human Rights, Lawyers’ Committee for Human
Rights, Youth Initiative for Human Rights and the Humanitarian Law
Centre) had produced an “Analysis of irregularities that occurred
during the referendum”. According to this analysis, the process
of confirming the constitution was marked by the following irregularities:
Albanians from Kosovo were not included in the voters’ register
and they received a barely formal call for signing in the voters’
register; the authorities in charge of the referendum process included
only the representatives of parties that supported the endorsement
of the constitution; the referendum process was accompanied by a
highly aggressive and negative campaign directed against a group
of political parties and NGOs that called for the boycott; the turnout was
very poor until the afternoon hours of the second day, when it surprisingly
improved; the greatest number of incidents occurred in a period
of several hours before the closing of the polling stations, etc.
The Assembly observation mission did not take a position on these
findings, however, as it reported only on the situation at the polling
stations where it had observed the voting.
63. This being said, although the voting appears to have been
flawed by a number of irregularities, the adoption of the long-awaited
new Constitution for Serbia should be welcomed, provided that this
new constitution complies with European standards and creates the
legal basis for the country’s advancement on the path to European
integration. This, however, has yet to be fully guaranteed by the
adopted text.
3.1.2. Analysis of the provisions
of the new constitution in the light of Council of Europe standards
64. In its subsequent opinion on
the Constitution of Serbia, the Venice Commission noted that “the constitution
contains many positive elements, including the option for a functional
parliamentary system of government and a comprehensive catalogue
of fundamental rights. While it would have been preferable to have
clearer and less complicated rules on restrictions to fundamental
rights, it is possible for the courts and in particular the Constitutional
Court to apply these rights in full conformity with European standards.”
It
was also noted that the new constitution had rectified many of the
criticisms made by the Venice Commission in its 2005 opinion.
65. However, there are several fundamental sections of the constitution
that must be further improved in order to comply with European standards
of constitutional law. We shall more specifically focus on six issues in
the present report, namely excessive influence of political parties
on members of parliament, status of the judiciary, status of the
public prosecutors’ offices, provincial autonomy and local self-government,
place of international law in the domestic legal order, and modalities
of amending the constitution.
3.1.2.1. Imperative mandate of members
of parliament
66. In our view, this is one of
the most worrying provisions of the new constitution as it represents
a direct threat to the development of a functioning and efficient
parliamentary democracy in Serbia. Section 2 of Article 102 provides
that “under the terms stipulated by the law, a deputy shall be free
to irrevocably put his/her term of office [mandat,
in the local language, which means “mandate”] at the disposal [of]
a political party upon [whose] proposal he or she has been elected
a deputy”. The Venice Commission estimated that this provision was
intended to tie the deputy’s position on all matters at all times
to the instructions from political parties. This is a serious threat
to the freedom of the referendums of parliament to express their
views on any issue debated in parliament.
67. Furthermore, this provision, seen from the angle of electoral
arrangements (which enable the parties to choose the candidates
who will actually sit in the parliament, irrespective of the voters’
choice – see infra, Section
3.2), gives to the political parties an excessive role in the political
process. It is a major threat to the functioning of democratic institutions,
especially, given the excessive role of the parliament in judicial appointments
(see infra, paragraph b).
68. Some of the interlocutors we met during our visits argued
that the strong role of the political parties was justified in the
current situation in Serbia in order to prevent corruption and excessive
influence of business or criminal circles on the political life.
However, many people we met condemned this practice, as hindering transparency
of the political process and preventing the citizens from actually
bringing their elected representatives to account.
69. While commending the good intentions of those who strive to
fight corruption in politics, we do not think that making elected
representatives prisoners of political parties’ leaderships is a
legitimate solution to this problem. There are other ways of building
a strong, democratic and transparent parliamentary democracy. Making
representatives entirely dependent on the goodwill of party leaderships
is against European standards of parliamentary democracy. On the
contrary, members of parliament must be free and have the right
to oppose their party leaders. Lack of freedom destroys political
dialogue and prevents society from learning and moving ahead with
democratic changes.
70. This provision of the constitution must be changed.
3.1.2.2. Independence of the judiciary
71. According to Article 147, judges
are elected by the National Assembly. The Venice Commission condemned
this practice in its opinion on the Constitution of Serbia, endorsing
the remarks it had made already in its previous “Opinion on the
judiciary in the draft constitution of Serbia”. According to the
Venice Commission, “the involvement of parliament in judicial appointments
risks leading to a politicisation of the appointments and, especially
for judges at lower court level, it is difficult to see the added
value of a parliamentary procedure. … Elections by a parliament
are discretionary acts and political considerations will always
play a role” in judicial appointments.
72. According to Recommendation No. R (94) 12 of the Committee
of Ministers of the Council of Europe on the independence, efficiency
and role of judges, “all decisions concerning the professional career
of judges should be based on objective criteria, and the selection
and career of judges should be based on merit, having regard to
qualifications, integrity, ability and efficiency. The authority
taking the decision on the selection and career of judges should
be independent of the government and the administration. In order
to safeguard its independence, rules should ensure that, for instance,
its members are selected by the judiciary and that the authority
decides itself on its procedural rules.” Therefore, in the light
of European standards, the appointment of judges should not be made
on the basis of political considerations. The Venice Commission
suggested in this respect that judges be appointed by the president
on the basis of proposals submitted by the High Judicial Council.
73. The High Judicial Council is established by the constitution
in Article 153. Its composition appears to be balanced (3
ex-officio members, that is, President
of the Supreme Court of Cassation, Minister of Justice, chair of
the relevant committee of parliament, six judges, one practising
lawyer and one professor of law). However, in its Opinion No. 405/2006,
the Venice Commission argued that the composition of the High Judicial
Council was in fact flawed because “all members of the High Judicial
Council are elected, directly or indirectly, by the National Assembly”.
The Venice Commission concluded on this basis that there was a risk
of politicisation of the appointment process. The draft law on the
High Judicial Council of the Republic of Serbia, developed by the
Ministry of Justice in co-operation with the Council of Europe and
appraised by the Venice Commission,
attempts
to address this issue by providing a procedure whereby the National
Assembly would, in respect of each vacancy, be presented with one
name only of a person elected by the “authorised nominators” (that
is, the judges’ or the lawyers’ associations or faculties). This
procedure indeed reduces to the minimum the influence of political
parties on the election process. However, it does not eliminate
the risk of politicisation completely and we consider that in future,
the constitution should be amended, following the recommendations made
by the Venice Commission in 2006.
74. The Constitutional Law on the Implementation of the Constitution
introduces an additional element of concern. In fact, Article 7,
paragraph 2, provides that “judges and presidents of other courts
[excluding the Supreme Court of Cassation] shall be elected no later
than one year from the date of the constitution of the High Judicial
Council”. This provision opens the door for different interpretations.
In its opinion on the Constitution of Serbia, the Venice Commission
interpreted this provision as the legal basis for the reappointment
of all judges in the country. This approach could be motivated by
the desire to get rid of judges who in the past were appointed for
political reasons and have seriously compromised their impartiality.
Indeed, some of our interlocutors quoted examples of judges appointed
in the times of Milosevic rule that had on previous occasions taken
politically motivated decisions or were allegedly involved in cases
of corruption. We agree with this legitimate aim, in principle.
However, we join the Venice Commission in that the reappointment process
has to be carried out on the basis of clear and transparent criteria,
providing for the right of appeal by the persons concerned. We also
support the Venice Commission’s opinion in that a High Judicial
Council totally dependent on the parliament cannot be a body that
would be able to conduct this procedure in a fair, impartial and
transparent manner.
75. Whatever the political choice of the Serbian authorities will
be with respect to the (re-) appointment of judges, we consider
that the appointment process should in any case be immune from interference
of political bodies. We therefore strongly recommend strengthening
the status of the judiciary in ordinary legislation, as will be
described further below (see infra,
Section 4.1), as well as amending the constitution in the medium
term in order to bring it into line with European standards on independence
of the judiciary and eliminate vague provisions opening the door
for different interpretations.
3.1.2.3. Status of the public prosecutors’
offices
76. In its opinion on the Constitution
of Serbia, the Venice Commission noted that the meaning of the public prosecutor’s
office’s function to “take measures in order to protect constitutionality
and legality” was not clear. The Serbian delegation to the Assembly
explained in the comments on the present report that this provision was
about “introduc[ing] extraordinary legal means in accordance with
the provisions of the Law on Criminal Procedure”. In accordance
with this procedure, the public prosecutor only initiates the procedure
where the final decision shall be brought by the court, that is,
a competent organ, thus respecting fully the principle of legal security.
Furthermore, it is added that “the public prosecutor of the Republic
of Serbia … has the right to introduce legal means, among other
things, the request for the protection of legality, even against
the judicial procedure preceding the effective sentence in case
the law has been violated” (Article 419 of the Law on Criminal Procedure),
with the final decision brought by the Supreme Court of Serbia.
It should be noted that the court, at the time of bringing the decision,
is bound by the ban reformatio in peius so
that, if the request for the protection of legality has been introduced
at the expense of the defendant, and the court finds it valid, it
will just decide that the violation of the law has been committed,
without touching the effective court decision (Article 423, paragraph
3, and Article 425, paragraph 3, of the Law on Criminal Procedure).
The provision of Article 22 of the Law on Criminal Procedure clearly
states that “the court charged with bringing the decision upon the
request for the protection of legality may, taking into account
the contents of the request, decide to postpone, that is, terminate
the implementation of the effective court decision. It is obvious
that the public prosecutor only has the right to submit a proposal,
while the decision is brought by the court.”
77. We take note of this detailed explanation. Our lack of knowledge
of Serbia’s Law on Criminal Procedure does not allow us to make
the analysis of the above provisions, taken out of context. We hope
that the described “legal means” do not enable the public prosecutors
to exercise “supervision” over court decisions, by challenging final
decisions of courts of law on the grounds of illegality. If it were
the case, there could be a risk to legal certainty, which could
give rise to the violation of the right to a fair trial, as protected
by the Convention for the Protection of Human Rights and Fundamental
Freedoms. We shall study the opinion of the Council of Europe experts
on the legislation governing the functioning of the public prosecutor’s
office and take it into account in the monitoring process.
78. Besides, we share the concerns of the Venice Commission about
the possible interference of parliament in the work of public prosecutors
resulting from their double accountability to the republic public
prosecutor and the National Assembly.
79. The procedure of election of public prosecutors and deputy
public prosecutors by the National Assembly upon the proposal of
the State Prosecutorial Council (which, just as the High Judicial
Council, is composed of members elected directly or indirectly by
the National Assembly) is also disturbing because of the interference of
parliament.
80. These shortcomings should be eliminated in ordinary legislation,
as will be indicated below (please see infra,
Section 4.2.) in order to guarantee the independence of prosecutors
and avoid political interference. We would also recommend amending
in the medium term the constitution in order to implement European standards
for public prosecution at constitutional level.
3.1.2.4. Provincial autonomy and
local self-government
81. In fact, the chapter of the
constitution on provincial autonomy and local self-government (Chapter
Seven) contains a number of declarations of principles. The actual
substance of these principles will, however, have to be defined
in specific legislation. The constitutional provisions about Kosovo
and Metohija are particularly interesting in this respect. While
one of the aims of the constitution was to define the autonomy of
the province, it fails to do so, simply saying in Article 182 that
“the substantial autonomy of the Autonomous Province of Kosovo and
Metohija shall be regulated by the special law which shall be adopted
in accordance with the procedure envisaged for amending the constitution”.
82. From the legal technique viewpoint, it would have been wiser
to lay down in the constitution a regulatory framework based on
the principles of the European Charter of Local Self-Government
(ETS No. 122), signed and ratified by Serbia, applicable to all
autonomous provinces (taking into account the fact that the constitution expressly
authorises in Section 3 of Article 182 the establishment of new
autonomous provinces).
83. The same could apply to the status of municipalities.
3.1.2.5. Place of international law
in the domestic legal order
84. Article 16, Section 3, provides
that “ratified international treaties must be in accordance with
the constitution”. This is not disturbing in principle as many Council
of Europe member states give higher rank to the national constitution
with respect to international law. However, in practice, if a treaty
signed and ratified by Serbia is found not to be in compliance with
the constitution, the authorities will have to either denounce the treaty
or amend the constitution (which is a particularly complex procedure,
as will be seen below), as, according to the Vienna Convention on
the Law of International Treaties, the provisions of internal law
cannot be used as a justification for not applying the treaty.
85. We subscribe to the recommendation of the Venice Commission
in that to avoid these problems, it is necessary to introduce a
special procedure of verification of the constitutionality of the
treaty prior to its ratification before the Constitutional Court.
3.1.2.6. Complex procedure of amending
the constitution
86. As we have seen earlier, the
Constitution of Serbia contains a number of problematic provisions
that have to be brought into line with European standards. This,
however, will be a rather complex process as the constitution provides
in its Article 203 for a two-level procedure of confirming amendments.
Firstly, the “proposal to amend the constitution” must be approved
by a two-thirds’ majority of the total number of members of parliament.
If the proposal is approved, “an act on amending the constitution”
has to be drafted and approved again by a two-thirds’ majority.
87. There is a third, additional, procedural safeguard: amendments
to the preamble of the constitution and chapters dealing with “principles
of the constitution, human and minority rights and freedoms, the
system of authority, proclamation of state of war and emergency,
derogation from human and minority rights in the state of emergency
or war or procedure for amending the constitution” have to be endorsed
by the majority of the voters participating in a referendum.
88. We understand the intention of the legislator to preserve
a certain stability in the constitutional order. However, the constitution,
as any other law, should evolve over time, as new legal challenges
emerge (for example, European integration). The procedure for amending
the constitution should, without any doubts, be rigid. But it should
not make it virtually impossible to introduce any amendments to
the constitutional order.
89. In practical terms, in the current political context in Serbia,
it will be extremely difficult for the majority coalition to introduce
amendments to the constitution required to bring its provisions
into line with European standards. We hope that this obstacle will
be eventually overcome.
3.2. Electoral legislation
90. As we mentioned earlier, the
electoral legislation in Serbia does not fully meet European standards.
91. The law on the election of representatives of the Republic
of Serbia adopted in 2000 and last amended in 2004 was substantially
improved in the light of the joint recommendations by the Venice
Commission and OSCE/ODIHR.
It now “provides important
safeguards to promote democratic election practices, including measures
to enhance the transparency in the organisation and conduct of the
election and to protect the secrecy of vote.”
92. It does, however, contain a number of problematic points,
especially with regard to the composition of electoral lists (while
authorising the submission of lists by political parties and other
political organisations and groups of citizens, it does not precisely
define which organisations can be defined as “political”; while
the law does not prohibit the submission of lists with just one
candidate, it does not expressly provide for self-nomination by
an individual independent candidate) and allocation of mandates.
93. The latter problem is particularly disturbing.
94. Firstly, the law introduces a 5% threshold for electoral lists
to be entitled to the apportionment of mandates (this requirement
is waived, however, for “parties of ethnic minorities”, which is
a welcome development). It does not, however, define exactly how
the 5% threshold is calculated. According to Article 81, electoral
lists that receive the support of “5% of the voters who have voted”
shall be allocated mandates. It does not say whether this 5% is
calculated with reference to the number of signatures on the voter
list or by counting the total number of ballot papers in the ballot
boxes (valid or invalid) or by some other means. The Venice Commission
and the OSCE/ODIHR recommended that this article be amended to specify
that the 5% should be calculated by reference to the total number
of valid votes cast. Otherwise, the voters who sign the voter register
but do not cast a valid vote are allowed to influence the ballot,
as was the case in previous elections because the Central Election
Commission calculated the 5% threshold on the basis of the number
of signatures on the voter lists.
95. Secondly, as we mentioned earlier, Article 84 allows the parties
to arbitrarily choose the candidates from their lists to become
members of parliament after the election instead of determining
the order of candidates beforehand. We share the view of the Venice
Commission and of the OSCE/ODIHR in that “this limits the transparency
of the system and gives political parties a disproportionately strong
position vis-à-vis candidates”.
Seen together with the constitutional provision
on the imperative mandate of the members of parliament, this provision
constitutes a serious violation of European standards and a threat
to the good functioning of democratic institutions.
96. We also note that virtually the same procedure of allocation
of mandates applies to the allocation of seats in municipal assemblies
(except that one third of the mandates are allocated to the candidates
according to their sequence on the list and the allocation of the
remaining mandates is left to the discretion of the political party,
political organisation or group of citizens that had submitted the
list). Although this procedure is slightly better than the system
of allocation of mandates at the National Assembly, it undermines
transparency and disproportionately increases the influence of political
parties on politics at local level.
97. We strongly recommend that these problems as well as others
identified in the joint opinion of the Venice Commission and OSCE/ODIHR
should be eliminated at the earliest opportunity and, in any case,
before the next parliamentary elections.
98. Otherwise, members of parliament and local councillors will
always remain “prisoners” of the views of their parties’ leaderships
and parliament will not be able to play its role of major forum
for political debate and key actor in the legislative process.
3.3. Functioning of parliament
99. During our visits we met the
representatives of all political parties represented in the National
Assembly in 2007 and in 2008 (with the exception of the SRS, whose
representatives refused to meet us, despite our requests). They
have provided us with extensive information about the functioning
of parliament.
100. Following the adoption of the new constitution, a new law
on the National Assembly has to be prepared and a new set of Rules
of Procedure adopted. We were informed that the 2007 legislature
was working on a new law on the National Assembly, which, however,
did not meet the consensus of all political parties. Apparently,
that draft law failed to correct one of the key problems we mentioned
earlier, namely the imperative character of the mandate of members
of parliament. We were told that the draft law defined the mandates
of MPs as “free, in accordance with the constitution”, which in
fact confirms the practice that binds the MPs to instructions given
by political parties’ leaders. This practice is manifestly in conflict
with European standards of parliamentary democracy.
The
future of the country cannot depend on the will of three or four
people. The parliament must be a forum of political dialogue where
MPs discuss various political options and alternatives as free elected
representatives of citizens.
101. Once again we have to stress that the current Constitution
of Serbia contains a number of problematic provisions that constitute
an obstacle to further reforms. A comprehensive revision of the
constitution is necessary in order to bring ordinary legislation/draft
new legislation into compliance with European standards. We hope
that the newly elected National Assembly will soon resume work on
the draft law on the National Assembly as well as on the new Rules
of Procedure.
102. In the absence of new Rules of Procedure, the debate in parliament
is governed by the Revised Rules of Procedure of the National Assembly
of the Republic of Serbia, as amended on 28 June 2005.
The
current Rules of Procedure do not make the parliamentary debate
very efficient and streamlined. The role of committees in parliamentary
procedure is particularly weak, which means that practically all
draft laws and decisions are extensively discussed by the National
Assembly in plenary. The adoption, in July 2007, of the Law on the
Ratification of the European Charter of Local Self-Government was
a particularly striking example: we were told that the draft law
was debated in plenary during several days while in a normal parliamentary system
laws on the ratification of international instruments are passed
very quickly, if the preparatory work by the government is completed
and the competent committee of the parliament issues a favourable
opinion.
103. Deficiencies in the rules for parliamentary procedure are
not the only reason for the weakness of parliamentary committees.
More importantly, the parliament dramatically lacks staff that could
provide MPs with expert support not only on procedural matters but
also on the substance of the proposals discussed. We strongly recommend
that the staff of the National Assembly be further reinforced in
order to enable the parliament to become a full actor in the legislative
process.
104. At the same time, we stand ready to provide support to our
Serbian colleagues in the drafting of new Rules of Procedure, using
the internal Assembly expertise as well as model rules of procedure
developed by other parliaments of the region with the support of
international expertise. We welcome the readiness of the newly appointed
Speaker of the National Assembly to work with the Assembly on this
issue.
3.4. Functioning of the National
Human Rights Institution (Office of the Defender of Citizens’ Rights)
105. We were positively impressed
by our discussion with the Defender of Citizens’ Rights (ombudsperson), Saša
Janković. He was elected by the National Assembly on 29 June 2007
by 143 votes out of the total of 250. His appointment was welcomed
by all key actors; we therefore gained the impression that there
was a broad agreement about the need to establish a national human
rights institution in Serbia, especially knowing that all previous
attempts to appoint an ombudsperson failed since the adoption of
the law in 2005.
106. The appointment of the ombudsperson should be welcomed. Mr Janković
appeared to have a lot of new projects and ideas about how his office’s
work could be organised. We particularly welcome his intention to collect
data about human rights violations, focusing as a priority on cases
of discrimination and violations of the rights of national minorities.
We commend the new ombudsperson’s intention to make full use of
his right of legislative initiative in order to work on long-awaited
and badly needed legislation, for example, relating to the Code
of Conduct of Public Officials.
107. These welcome projects will, however, not be implemented in
practice if the office of the Ombudsperson is not given appropriate
means to operate properly.
108. At the time of our meeting with the ombudsperson (September
2007), his office was not fully operational. Mr Janković was temporarily
located in the building of the National Assembly. Equally, the ombudsperson
did not have sufficient staff at that time to be able to fulfil
his statutory functions. We were informed that the draft staffing
organigram providing for some 62 staff and four deputies to second
the ombudsperson was forwarded to the competent committee of the
National Assembly at the beginning of September 2007 and put on
the agenda of the parliament as one of the last items for the current
session. We were particularly surprised to find out that the parliamentary
committee wanted to ask the government’s opinion on the staffing
table. This appears to be totally inappropriate, as an ombudsperson
is primarily a parliamentary institution.
109. However, subsequently, the Serbian delegation to the Assembly
informed us that the Government of the Republic of Serbia and the
National Assembly of the Republic of Serbia adopted the budget proposed
by the ombudsperson (92 million dinars – approximately €1.1 million)
for the year 2008. The National Assembly also adopted the Act on
the Establishment of the Institution of the Ombudsperson. The office
of the ombudsperson began operations on 24 December 2007 with 15
employees seconded from other public services for a fixed period
of time in order to carry out the elementary operations of the institution
of the ombudsperson. At the same time, a competition for the recruitment
of 22 additional staff was opened and five additional employees were
engaged outside the normal recruitment procedure. When the procedure
is completed, 27 additional staff members will reinforce the office
of the ombudsperson, who has already received a large number of
both written and oral citizens’ complaints and requests for advice
and assistance.
110. This being said, although important, the provision of appropriate
material conditions is not the only challenge the institution of
the ombudsperson has to face in Serbia. In the medium term, the
legislation governing the functioning of the ombudsperson could
be further improved in the light of European standards.
111. In its opinion on the Constitution of Serbia, the Venice Commission
noted that it was regrettable that there was no protection of the
ombudsperson against unjustified pre-term dismissal by the National
Assembly. While the ombudsperson should indeed present reports to
the National Assembly, it seems questionable to state that the National
Assembly supervises the ombudsperson (Article 99) and that the ombudsperson
shall account for his/her work to the National Assembly.
112. Further concerns are raised by the Law on the Defender of
Citizens’ Rights (Ombudsperson), which was adopted in 2005 and subsequently
amended in June 2007. This law was jointly appraised by the Venice Commission
and the office of the Council of Europe Commissioner for Human Rights
in 2004.
We welcome the
fact that several important recommendations of the Council of Europe
experts were taken on board in the final version of the law.
113. However, three aspects of the law could be improved, in our
view.
114. Firstly, the ombudsperson is appointed by the National Assembly
by an absolute majority vote (Article 4). This is indeed an improvement
with respect to the previous version of the law, which provided
for a simple majority. This procedure does not, however, follow
the recommendation of the Council of Europe experts in that the
ombudsperson should be appointed by a qualified majority (two-thirds
or three-fifths) of referendums of parliament. We agree with the
Council of Europe experts in that a broad consensus for the choice
of the ombudsperson is important in order to ensure public trust
in the independence of the ombudsperson. We also join the Venice
Commission in that it is important to provide for guarantees against
unjustified pre-term dismissal by the National Assembly. According
to the law, the ombudsperson can be dismissed by an absolute majority
of votes cast on the basis of a number of criteria, some of which
are rather vague (for example, Article 12, paragraph 12, sub-paragraph
1, which says that an ombudsperson can be dismissed “due to incompetence or
negligence in discharging duties”). A procedure involving a qualified
majority vote would definitely be better.
115. Secondly, we are concerned about the fact that the criteria
for the selection of the ombudsperson are somewhat restrictive.
According to Article 5, a candidate must hold a “bachelor’s degree
in law; [prove] at least ten years of professional experience in
jobs related to the purview of [the ombudsperson], [possess] high
moral character and qualifications; significant experience in protection
of civil rights”. We agree with the Council of Europe experts in
that the requirement to hold a law degree should not be a precondition
for being an ombudsperson and that the requirement of professional
experience is vague and could potentially be interpreted restrictively.
It could discourage competent candidates from applying for lack
of specific professional experience. We would have liked the first
two criteria to be left out of the law; the two remaining criteria
appear to be broadly in line with the requirements of most national
and international mandates of human rights defenders.
116. Thirdly, we are concerned by the rigidity of the procedure
of filing a complaint, which is very much court like (Article 27).
Although the procedure has been improved (and, in particular, it
is welcome that the staff of the ombudsperson are now obliged to
provide technical assistance to the complainant in writing, if the complainant
so requests), we believe that too strict requirements concerning
the complaints contradict the very idea of the institution.
3.5. Functioning of the office
of the Commissioner for Access to Information of Public Interest
117. The Commissioner for Access
to Information of Public Interest has to face broadly the same problems as
the ombudsperson. Mr Rodoljub Šabić was appointed commissioner by
the National Assembly on 12 December 2004 but his office became
fully operational only in late May 2005, almost six months after
his appointment. At present, Mr Šabić works with just six employees,
while the staffing table approved by the parliament provides for
as many as 21 staff members to second the commissioner.
118. We were particularly impressed by Mr Šabić’s personal commitment
to his work. A practising lawyer, during the first six months, he
invested his personal resources into work in order to speed up the
operation of his office. Valuable assistance was provided by the
OSCE in terms of training of the commissioner’s staff.
119. The commissioner’s office was established on the basis of
the Law on Free Access to Information of Public Interest, which
was adopted on 2 November 2004 and further amended on 13 June 2007.
The law defines the concept of “information of public interest”
as well as regulates the manner in which citizens can exercise their
right to obtain information of public interest and the obligation
of public authority bodies to provide such information to citizens.
The office of the commissioner has been established to monitor the
respect of the public authorities’ obligation to provide information
of public interest to citizens and consider complaints against the
decisions of public bodies concerning the provision of such information.
The commissioner is appointed and dismissed by the National Assembly
by an absolute majority of votes. The criteria for appointing and dismissing
the commissioner are very similar to those applicable to the ombudsperson.
In order to be appointed, the candidate must hold a bachelor’s degree
in law, possess at least ten years of work experience as well as
demonstrate repute and expertise in the field of protecting and
promoting human rights. The commissioner can be dismissed by the
National Assembly on the initiative of one third of MPs and, inter alia, for performing his/her
“duties unprofessionally and unconscientiously”.
120. While we understand that the function of the commissioner
requires a certain professional competence, we doubt that the requirement
of holding a law degree, possessing ten years of experience, and
demonstrating human rights expertise are justified. Just as in the
case of the ombudsperson, these requirements appear to be restrictive
and may discourage competent candidates from running for the post.
121. Equally, we are concerned about the fact the decisions on
appointment and dismissal are taken by an absolute majority. It
means that the commissioner can in practice be appointed and dismissed
by a majority coalition, without consultations and possible agreement
with the opposition. The commissioner performs the very important
function of protecting and promoting transparency in the work of
public administrations and protecting citizens’ right to information.
The appointment and dismissal of the commissioner must meet the consensus
of all political actors representing the majority and the opposition.
122. Therefore, we recommend in future modifying the law and introducing
a qualified majority requirement for the appointment and dismissal
of the commissioner.
123. This being said, the results of the work of the commissioner
are commendable. All information about the activities of the commissioner
can be easily accessed on the commissioner’s website (www.poverenik.org.yu) in
Serbian and English. Information request and complaint forms can
also be downloaded in Serbian and English. Statistics, and monthly
and yearly reports are also available.
124. We welcome in particular the availability on the website of
the “Guidebook on the Law on Freedom of Access to Information of
Public Interest”, which is published not only in Serbian but also
in English as well as in several minority languages (Albanian, Bulgarian,
Hungarian, Romanian, Ruthenian and Slovak).
125. A positive example of the commissioner’s work is his role
in the scandal about the publication of the concession contract
for the construction and maintenance of the Horgoš-Požega motorway.
The contract for the construction of the motorway was signed in
March 2007 with the Spanish-Austrian FCC-Alpina Consortium. Immediately
after the signing of the contract, rumours circulated about some
allegedly preferential financial arrangements granted to the consortium
in terms of collection and utilisation of toll fees. The authorities
of Vojvodina at the highest level confronted the Government of Serbia
claiming that the terms of the contract violated the interests of
the autonomous province and requested the annulment of the contract.
In the meantime, the government refused to make the agreement public,
claiming that a special confidentiality provision prevented it from
declassifying the contract without express agreement of the foreign
partners. The Commissioner for Access to Public Information made
a public statement stressing that such confidentiality rules would
be contrary to the Serbian Constitution and Law on Freedom of Access
to Information of Public Interest, which guarantee the right of
citizens to access public information and establish the basis for
restricting the exercise of this right only “for the purpose of
protecting superior interests in democratic society from severe detriment”.
He also noted that it was the obligation of public authorities to
make sure that these constitutional and legal principles are applied
by all institutions, including foreign partners operating within
the Serbian legal framework. Failure to respect this fundamental
obligation would be particularly harmful in the current context of
harmonisation of Serbian legal order with the acquis of the European
Union.
126. As a result of the commissioner’s intervention, the government
finally decided to disclose the terms of the contract, restricting
access, however, to some annexes of the agreement, which, apparently,
regulate some financial aspects of the implementation of the contract
and banking guarantees.
127. It is not our mandate to investigate the technical and financial
aspects of granting concessions for the construction of motorways
in Serbia. We will therefore refrain from making comments on this
particular matter. We cannot help but stress, however, that in a
democratic society governed by the rule of law, all public institutions
have to abide by the rules and that the citizens must have the possibility
of checking public spending in order to bring politicians to account.
We therefore hope that the issue of access to full information about
the construction of the motorway will be eventually resolved in
full transparency and in accordance with the law.
3.6. Local democracy
128. The ratification of the European
Charter of Local Self-Government (ETS No. 122) is a very welcome development.
The ratification of the charter was one of the long overdue commitments
that the state union had entered into and failed to implement before
its dissolution. We commend the Serbian authorities for ratifying the
charter, which will now create the appropriate legal basis for strengthening
local democracy.
129. In the meantime, local democracy should be further strengthened.
3.6.1. Institutional arrangements
130. The status of municipalities
is governed by the constitution and the new Law on Local Self-Government adopted
on 29 December 2007. This law, together with the Law on Territorial
Organisation, the Law on Local Elections and the Law on the Capital
City, introduced some changes in the system of local self-government.
In particular, the Law on Territorial Organisation gave the status
of city to an additional 19 municipalities; at the moment, Serbia
is divided into 150 municipalities, 23 cities and the capital city
(Belgrade). The National Assembly of the Republic of Serbia is competent
to decide on the establishment of new municipalities and cities as
well as on the changing of borders or dissolution of existing units
of local self-government. Any territorial changes can be implemented
only following a consultative referendum called by the municipal
assembly or by 10% of the inhabitants of the municipality.
131. According to the new legislation, the municipal assembly is
the highest organ of the local self-government unit; the mayors
are elected from among the assembly members by secret ballot for
a four-year term. The local elections are organised on the basis
of a proportional system with a 5% electoral threshold (which is
waived for parties and coalitions of the parties of national minorities).
These changes appear to be in line with the standards of the European
Charter of Local Self-Government. The institutional and financial arrangements
for local government require, however, some substantial improvements.
3.6.2. Devolution of new competences
132. From 1 January 2007, the municipalities
were allowed to take up new functions in the field of administration
and collection of local taxes, purchase and maintenance of equipment
in primary health care, transportation of preschool children, and
management of centres of social work. The transfer of new functions is
being phased in over time; the process should be completed by 2009.
133. While the transfer of the responsibility for organising transport
for preschool children has virtually no incidence on municipal budgets,
the transfer of other responsibilities requires the development
of complex and effective financial mechanisms. This does not apply,
however, to the collection and administration of local taxes. This
function is highly lucrative and can potentially increase local
revenue potential.
134. The transfer of functions in the field of primary health care
and the social sector could potentially create more complications
for municipalities. Apart from designing new financial mechanisms
for covering the costs of these new functions, the devolution requires
the transfer of equipment and staff used at the moment by central
government ministries to perform the very same functions. This is
tricky because the transfer process has to be closely co-ordinated
with the revision of the overall public service delivery strategies
and network master plans.
135. In this context, we believe that the development of a comprehensive
integrated strategy of transferring service delivery functions from
the central level to municipalities under strong leadership of the
Ministry of Public Administration and Local Self-Government, sectoral
ministries and the Ministry of Finance is required to guarantee
a smooth and effective transfer process.
3.6.3. Fiscal decentralisation
136. The development of fiscal decentralisation
is closely related to the devolution of new sectoral responsibilities
to the municipalities. The transfer of new functions should not
be operated at the expense of local authorities. Funding should
follow the competence and new financial mechanisms have to be designed to
cover the costs of new responsibilities to be taken over by municipalities
(for example, block grants, matching grants, etc.).
137. The Law on Local Government Finance adopted in 2007 introduced
a new financial equalisation scheme based on objective criteria.
Simulations made at the stage of preparation of the law hint at
a substantial improvement of horizontal fiscal equalisation between
municipalities. But the long-term effects of the new equalisation
scheme have to be monitored over time, as local government responsibilities
(and spending) increase.
138. The new law made property tax one of the most important resources
of municipalities. The administration of this tax is problematic,
however, because of the lack of up-to-date cadastral data on property
and the absence of a modern and efficient property valuation system.
Some municipalities are making attempts to design their own systems
with the assistance of foreign donors. A comprehensive nationwide
system has yet to be developed.
139. We consider that the recently established Commission for Intergovernmental
Finance has to take an active part in the monitoring of the implementation
of the new financial arrangements for local government, making recommendations
for possible improvements where appropriate.
3.6.4. Devolution of property
140. Since the adoption of the Law
on Assets of the Republic of Serbia in 1995, which “nationalised”
all local government property, the municipalities have been suffering
from the systematic interference of central authorities in all property
transactions at local level. This has created substantial obstacles
to local economic development and discouraged potential investors
from launching projects with local authorities.
141. The new constitution appears to enable municipalities to own
property, but it leaves it to ordinary legislation to define the
rules governing the ownership rights of local authorities. A law
on the delimitation of state and local government property is therefore
required. In parallel with this, legislation governing the use of property
governed by the public law regime and private law regime needs to
be enacted. The devolution of property is closely linked to the
issue of restitution of property nationalised upon the establishment
of socialist Yugoslavia.
142. We believe that the preparation of a comprehensive package
of laws on property and ownership rights should be one of the top
priorities of the government in order to enable the municipalities
(and the central authorities) to freely dispose of their property,
within the limits of the law, in order to promote local and regional development,
especially in the context of pre-accession programmes of the EU.
3.6.5. Relations between central
and local authorities
143. The system of administrative
supervision over local authorities’ action established by the Law
on Local Self-Government appears to be rather complex. There is
no mandatory supervision of local government acts, but the government
through the ministry responsible for local self-government may initiate
proceedings before the Constitutional Court if it considers that
a particular act of a municipality contravenes the constitution
or the law, creates an irrevocable damage or violates citizens’
rights and freedoms. Pending a decision by the Constitutional Court,
the challenged act is suspended by decision of the government.
144. The ministry responsible for local self-government may also
challenge a local government act before the Supreme Court, if it
deems that the act in question violates the statutes of the municipality.
145. The ministry is allowed to annul administrative acts of minor
importance issued by municipalities following a “conciliation procedure”.
It is assumed that the decision of the ministry may be challenged
in a court of law, although this is not clearly spelled out in the
law.
146. Although formally complying with European standards, the existing
legal arrangements do not seem to provide adequate protection to
municipalities as the Constitutional and the Supreme Courts may
not be in a position to handle all cases effectively and in a timely
manner. A more efficient and streamlined procedure of legal supervision,
guaranteeing the effective and timely intervention of the judiciary,
is required to satisfy the principles of the European Charter of
Local Self-Government.
147. Local authorities can also challenge the constitutionality
or legality of a law or general act of the republic or of the Autonomous
Province of Vojvodina before the Supreme Court. Individual acts
of state organs may also be the subjects of appeals before the Supreme
Court.
3.6.6. Provincial autonomy
148. In the time of Milosevic’s
rule, the wide autonomy traditionally granted to the Autonomous
Province of Vojvodina was substantially decreased. The new constitution
of 2006 has failed to rectify the situation and the current competences
of the province are in fact no different from the competences exercised
under the former constitution. This is in fact the reason why the
provincial authorities advocated against adopting the constitution and
called for a boycott of the referendum. It transpired from our meetings
with the provincial authorities that, although they were not satisfied
with the provisions of the new constitution, they accepted they
needed to work within the new constitutional context proposing amendments
and new legislation aiming at increasing the autonomy of the province.
We welcome this positive and constructive attitude.
149. This being said, the new constitution contains some important
guarantees of the “acquired rights” of the province, especially
in the financial sphere. Notably, Article 184 guarantees that the
budget of the Autonomous Province of Vojvodina shall amount to at
least 7% of the budget of the Republic of Serbia. We are not in
favour of such relatively volatile thresholds when it comes to financial
resources of regional or local authorities and would have preferred
to have a different formulation, possibly based on the principle
of “commensurability” of financial resources to devolved competences,
in accordance with the European Charter of Local Self-Government.
However, we acknowledge that this is a positive element and an important
guarantee that should be further strengthened as decentralisation
progresses.
150. The authorities of the Autonomous Province of Vojvodina are
currently working on the new draft statute of the province which,
according to the law on the implementation of the constitution,
should be submitted to the National Assembly of Serbia no later
than ninety days from the constitution of the new provincial assembly. We
invite the authorities of the autonomous province and the Belgrade
authorities to work in close co-ordination on the draft statute.
Seeking the Council of Europe’s advice on the drafting of this important
legal document would also be advisable.
151. Besides, we were informed that there are discussions at various
levels about the possibility of establishing additional provinces
in Serbia, thus creating a new intermediate tier of government between Belgrade
and local authorities. We welcome such discussions, as regionalisation
is a good way to improve standards of democracy.
152. Regionalisation will improve the capacity of public authorities
to manage devolved competences more efficiently, in line with the
principle of subsidiarity. It will furthermore create an appropriate
basis for managing structural reforms, thus increasing the capacity
of the Serbian authorities to absorb EU pre-accession funding. We
encourage all the actors concerned to continue to consider this
issue. Without prejudice to the special position of Vojvodina, its
current status could be used as a model to stimulate further discussions.
4. Rule of law
4.1. Reform of the judiciary
153. The reform of the judiciary
is governed by the National Judicial Reform Strategy adopted in
April 2006. The strategy appears to be a comprehensive and well-written
document, which sets priority reform objectives for the period 2006-11.
It provides for the establishment of a strategy implementation commission
bringing together the representatives of the Ministry of Justice,
Supreme Court, National Assembly, public prosecutor’s office, Judicial
Training Centre as well as professional associations of judges,
prosecutors and practising lawyers.
154. The strategy focuses on four main pillars of the judiciary,
namely independence, transparency, accountability and efficiency.
It aims at strengthening the role of the High Judicial Council in
order to transform it into a powerful and independent structure
to be responsible in the medium term for managing the judiciary, with
the Ministry of Justice performing only those functions that cannot
be delegated to the High Judicial Council.
155. While we commend these legitimate goals, we are concerned
about their actual implementation in practice. The effectiveness
of the implementation of reform strategies depends to a major extent
on the availability of concrete and well-articulated action plans
and good co-operation between the key actors within the framework
of small and operational implementing bodies (for instance, task
forces to supervise specific elements of the strategy, working groups
to draft legislation, expert teams to propose alternative options). Some
of our interlocutors complained about the slow pace of the implementation
of reform and argued that the Strategy Implementation Commission
has been paralysed since its establishment.
4.1.1. Legislative framework
156. During our visits we had the
opportunity to extensively discuss the drafting of new legislation
on the judiciary and public prosecutor’s offices with the former
Minister of Justice and his team. We are glad to note that the new
Minister of Justice, Mrs Snežana Marković, was fully involved in
the process of development of the legislation on the judiciary and
public prosecutor’s office, in her previous capacity of deputy minister.
We hope that Mrs Marković and her team will promptly complete the
legislative reform, making full use of the draft laws and expert
appraisals already developed. This applies in particular to the
drafting of legislation on the organisation of courts of law, status
of judges, status of the High Judicial Council, organisation of
the public prosecutor’s office, and the status of public prosecutors
and the State Prosecutorial Council.
157. We welcome the good co-operation developed between the Ministry
of Justice and Council of Europe experts within the framework of
a Joint Council of Europe-European Agency for Reconstruction (EAR)
Initiative on the Implementation of the National Judicial Reform
Strategy. Within the framework of this joint programme, the ministry
and the Council of Europe developed the basic principles with respect
to the reform of the judiciary and of the public prosecutor’s offices
as well as several draft laws that we will examine below.
158. We shall concentrate in this section of the report on the
examination of the legislation relating to the reform of the judiciary;
the reform of the public prosecutor’s office will be addressed further
below in Section 4.2.
159. The “Basic principles relating to the reform of the judiciary”
is a long and comprehensive document aiming at laying the foundations
for drafting legislation governing the status of the judiciary.
It describes the key principles upon which the judiciary should
be built, the basic features of the status of judges, the organisation of
the courts of law, the status and mandate of the High Judicial Council,
the principles for electing judges and court presidents, the rights
and duties of judges and court presidents, the principles of measurement
of performance of judges and court presidents, the disciplinary
responsibility of judges, as well as the modalities of termination
of their office.
160. The basic principles aim at developing further a number of
constitutional guarantees of the independence of the judiciary in
line with a number of international standards enshrined in various
international conventions and recommendations. They served as a
basis for the preparation of the draft laws on judges, the organisation
of courts in Serbia and on the High Judicial Council, which were
appraised by the Venice Commission.
161. While welcoming a number of good provisions contained in these
laws, the Venice Commission considered that the legislative package
on the reform of the judiciary tends to weaken judicial independence. In
certain cases, the draft laws increase the risk of politicising
the judiciary by requiring that for the election of each judge,
the National Assembly be presented with two candidates by the High
Judicial Council and by failing to provide for an acceptable model
for the continuance in office of the serving judges against whom
no incompetence or behavior incompatible with the role of an independent
judge is alleged. As we mentioned earlier in paragraph 73, we are
not fully convinced by the solution proposed in the draft law on
the High Judicial Council concerning parliament’s interference in
the process of appointment of the members of the council. The operation
of the law will have to be carefully analysed after its adoption.
162. We invite the Serbian authorities to carefully study the opinion
of the Venice Commission and redraft the laws, in accordance with
the experts’ recommendations. We shall closely study the legislation
once adopted in the further stages of the monitoring process.
163. We welcome the adoption by parliament, on 24 November 2007,
of the Law on the Constitutional Court. The adoption of this draft
law is crucial, as the Constitutional Court has not been operational
since autumn 2006, when the president of the court retired. Since
then, the president has not been replaced and the court has not
met a single time, as according to the rules of procedure it is
the task of the president to call sessions. At the same session,
parliament elected five judges of the court from the list of 10
candidates submitted by the president. At the same time, parliament
approved a list of 10 candidates to be submitted to the president
for the appointment of five judges from the presidential “quota”.
Subsequently, the president appointed five members of the court
from his quota and the court has now become operational.
164. By and large, the Law on the Constitutional Court, appraised
by the Venice Commission, is a serious and comprehensive piece of
legislation that addresses practically all aspects of the functioning
of the Constitutional Court. It establishes a strong Constitutional
Court with a balanced composition. It clarifies, at least to a certain
extent, the concerns of the members of the Venice Commission about
the right of the National Assembly to dismiss the judges of the
Constitutional Court. This can be done only under certain exceptional conditions
(for instance, when the judge violates the principles of conflict
of interests, permanently loses the ability to discharge the function
of judge, is sentenced to a penalty of imprisonment or convicted
of a criminal offence that makes him/her ineligible for the post
of judge at the Constitutional Court) and the court reserves the
right to decide whether these conditions are fulfilled.
165. Some of the provisions of the law could be further improved,
however. This applies in particular to some procedural norms, relating
to the application of procedural legislation by analogy, parties
to the proceedings, modalities of abstract control of norms, consideration
of cases of conflict of competences, judicial deadlines as well
as the role of state institutions responsible for overseeing the
exercise of human rights in introducing constitutional complaints.
We hope that this law will be improved in future, in accordance
with the recommendations of the Venice Commission.
4.1.2. Judicial practice and functioning
of courts
166. Legislative changes are not
the only challenge the judiciary has to face in Serbia. Corruption
in the judiciary is seen as one of the major obstacles to the efficient
administration of justice. Although according to our interlocutors
the judges who have compromised their impartiality and independence
represent a minority, thorough work is required to cleanse the judicial
corps, which is composed of around 2 400 judges.
167. According to the statistics of criminal justice, judges tend
to apply penalties a minima.
To give but two examples: in 58% of murder cases, those convicted
are sentenced to five years of imprisonment (the legal penalty being
from five to fifteen years), and in 52% of aggravated murder cases,
they are sentenced to ten years of imprisonment (which is below
the minimum provided by the law, that is to say between thirty and
forty years of imprisonment); while, according to the law, drug
traffickers can be sentenced from two to twelve years of imprisonment
(and from five to fifteen, in cases where they operate as part of
an organised network), in practice, in 70% of cases the courts apply
conditional sentences and out of 30% of the remaining cases, 48% concern
sentences of one year and 43% sentences ranging between one and
three years of imprisonment. This could, no doubt, be a matter of
judicial practice (with a view to avoiding overcrowding of detention facilities);
it could also be seen as an indication of corruption, especially
for cases of aggravated murder and drug trafficking.
168. In practice, the Ministry of Justice has no tools to combat
effectively corruption in the judiciary. According to the existing
legislation, the Minister of Justice cannot initiate proceedings
to dismiss a judge. This is the competence of the High Personnel
Council of the Supreme Court composed of nine judges. So far, one
judge of the Supreme Court has been convicted for taking bribes
from organised criminal groups, and another judge was found guilty
of corruption but still performs his functions.
169. While not denying the fact that corruption within the judiciary
exists, the judicial community does not feel secure. Many judges
complain about pressure being exercised on them from political and
business circles. Many competent judges leave the judicial function
to work for government agencies or run a private practice. According
to the judges themselves, they work for years in a situation of
legal uncertainty because their appointment and dismissal is decided
by the National Assembly, which is composed of elected members representing
the various interests of political parties. A reform of the judiciary
and the reinforcement of the guarantees of the independence of judges
are badly needed.
4.2. Reform of the prosecutor’s
office
170. Currently, the status of the
public prosecutor’s office is governed by the new Constitution of
Serbia. Legislation on the organisation of prosecutors’ offices,
appointment and cessation functions of public prosecutors and deputy
public prosecutors as well as the status of the State Prosecutorial
Council has not been adopted yet.
171. In the meantime, the Ministry of Justice has drafted a set
of basic principles on the reform of the public prosecutor’s office
to lay the basis for the drafting of specific legislation. Subsequently,
two draft laws on public prosecution and the State Prosecutorial
Council were prepared and sent to the Council of Europe for appraisal. The
Council of Europe experts appraised both draft laws within the framework
of the Joint Council of Europe-EAR Initiative on the Implementation
of the National Judicial Reform Strategy.
172. While both draft laws appear to be well drafted, they raise
a number of concerns with respect to European standards on the status
of public prosecutors’ offices enshrined in particular in Recommendation Rec(2000)19
of the Committee of Ministers of the Council of Europe on the role
of public prosecution in the criminal justice system and Assembly
Recommendation 1604 (2003) on the role of the public prosecutor’s office in a democratic
society governed by the rule of law. These concerns stem from the
provisions of the new constitution, which, as we mentioned earlier,
should be brought into line with European standards.
173. We have noted already the explanation provided by the Serbian
delegation to the Assembly concerning the function of the public
prosecutors as regards the protection of constitutionality, legality,
human rights and civil liberties. We hope that the “legal means”
conferred on the public prosecutors do not enable them to exercise
“supervision” over court decisions, by challenging final decisions
of courts of law on the grounds of illegality. If it were the case,
there could be a risk to legal certainty, which would violate the
right to a fair trial, as protected by the Convention for the Protection
of Human Rights and Fundamental Freedoms.
174. The proposed draft laws have not fully resolved the concerns
expressed by the Venice Commission concerning the modalities of
election of the state public prosecutor, public prosecutors and
deputy public prosecutors (for an initial period of three years,
however, with the possibility of confirmation of appointment for an
indefinite duration by the State Prosecutorial Council). It is anticipated
that, in line with the constitution, these will be elected by the
National Assembly upon submission of a proposal by the government
and upon consultation of the competent committee of the National
Assembly. The government makes a proposal on the basis of a list
of candidates prepared by the State Prosecutorial Council. If the
role of the National Assembly was merely ceremonial, this would
not have created any problems. However, the law appears to indicate
that the National Assembly may choose between the candidates proposed
by the government or refuse to elect any of the candidates proposed
by the government, in which case a new “election” is organised.
This procedure gives the National Assembly discretionary power to
take a political decision on the appointment of the prosecutors,
thus making the prosecutors “dependent” on parliament. This is especially
true for the state public prosecutor and the public prosecutors
who are elected for six years and may be re-elected. The reelection procedure
gives the National Assembly the means to exercise pressure on prosecutors;
the latter will inevitably be influenced by politics in their actions,
if they want to be re-elected. Alternatively, the majority in the
National Assembly could “sack” a prosecutor if his/her actions did
not correspond to their political interests.
175. With respect to the election of the six members of the State
Prosecutorial Council by the National Assembly, we were informed
by the Serbian delegation to the Assembly that the draft law on
the State Prosecutorial Council provides that the council should
propose to the Government of the Republic of Serbia three candidates
for each position of an elective member of the council and that
the government must propose to the National Assembly two candidates
of the proposed three for each position of the elective member of
the council. The National Assembly must elect one person from the
list of candidates and is not allowed to return the list of candidates
to the government and the State Prosecutorial Council for new proposals.
This procedure indeed reduces to the minimum the influence of political
parties on the election process. However, it does not eliminate
the risk of politicisation of the process completely, as it is difficult
to ascertain on what grounds the National Assembly will choose between
one or other candidate proposed by the government.
176. Just as for the modalities of election of the members of the
High Judicial Council, we would recommend making the proposals submitted
by the State Prosecutorial Council binding for the government and
the National Assembly, limiting its role to a mere ceremonial confirmation
of the appointments. This would help build a strong and autonomous
public prosecution service.
4.3. Prosecution of war crimes
177. Prosecution of war crimes and
co-operation with the ICTY were key commitments of the state union
of Serbia and Montenegro, which were subsequently taken on by Serbia.
In particular, the authorities committed themselves to “do the utmost
to track down […] indicted persons who are still at large, and to
hand them over to the ICTY […]; to revise the law on co-operation
with the ICTY in accordance with the statute of the ICTY and the
relevant United Nations Security Council resolution; […] to make
documents and archives, including military documents and archives,
available to the ICTY without further delay;”.
The
implementation of this commitment did not, however, progress as
well as it should.
178. While the new Serbian Constitution no longer bans the extradition
of Serbian nationals, such a ban has not been removed from legislation.
This remains a matter of great concern for the Assembly, which recommended
in its
Resolution 1564
(2007) on prosecution of offences falling within the jurisdiction
of the International Criminal Tribunal for the former Yugoslavia
(ICTY)
that
the ban imposed on the extradition of nationals charged with committing
war crimes be removed immediately. In practical terms, the rapporteur suggested
that the application of international treaties on extradition could
remove the obstacles created by the domestic legislation, as international
law takes precedence over national law.
Indeed,
as we mentioned earlier, international treaties signed and ratified
by Serbia take precedence over national law, in as much as they
comply with the constitution (which appears to be the case for extradition).
In this respect, the Assembly recommended that Serbia should withdraw
the restrictive declaration made upon ratification of the European Convention
on Extradition (ETS No. 24) for the purpose of prohibiting extradition
of its nationals.
We firmly support this recommendation
of the Assembly.
179. On the conventions front, we welcome the fact that Serbia
recently signed and ratified the European Convention on International
Validity of Criminal Judgements (ETS No. 70)
and
the Second Additional Protocol to the European Convention on Mutual
Assistance in Criminal Matters (ETS. No. 182).
However,
it has yet to become a state party to the European Convention on
the Non-Applicability of Statutory Limitations to Crimes against
Humanity and War Crimes (ETS No. 82) and the European Convention
on the Compensation of Victims of Violent Crimes (ETS No. 116).
180. Besides, in practical terms, until recently, co-operation
with the ICTY was slow and insufficient, which led the European
Commission to suspend the negotiations on a Stabilisation and Association
Agreement with Serbia in May 2006. The negotiations resumed, however,
in June 2007 after the formation of the new government. Since then,
an improvement in co-operation with the ICTY has been detected.
In particular, thanks to good co-operation between the security
services of Serbia, Bosnia and Herzegovina and Montenegro, two indictees
were handed over to the Hague tribunal, namely Milocevic’s former
head of security services, General Zdravko Tolimir, was apprehended
on 30 May 2007, and General Vlastimir Đorđević, a senior Serbian
police officer indicted for crimes against humanity and war crimes
committed against Kosovo Albanians in 1999, was transferred to the
tribunal on 17 June 2007.
181. Most importantly, in the past six months two more indictees
– Stojan Župljanin and Radovan Karadžić – were apprehended and extradited
to the tribunal. We strongly welcome these arrests as a clear sign
of the improvement of Serbia’s co-operation with the ICTY. The fact
that two of the four most wanted indictees were arrested proves
that the remaining fugitives are within reach. We believe that the
Serbian authorities are strongly committed to successfully completing
co-operation with the tribunal by apprehending and extraditing General
Ratko Mladić, the former Commander of the Main Staff of the Bosnian
Serb Army (VRS), and Goran Hadžić, the former Premier of the “Republic
of Srpska Krajina”, and expect the authorities to arrest these war criminals
promptly.
4.4. The fight against corruption
and money laundering
4.4.1. Legislative and institutional
framework
182. The fight against corruption
has been cited as a priority of Serbian governments over the past
six years. Several important legislative and practical measures
were taken to fight against corruption. In terms of legislation,
the fight against corruption is regulated by the Law on the Prevention
of Conflict of Interest adopted in 2004, the Law on the Financing
of Political Parties adopted in 2003, the Law on Public Procurement
adopted in 2002 and subsequently amended in 2004, the Law on Civil
Servants adopted in 2005, the Law on Government Auditing Institutions
adopted in 2005, the Law on the Defender of Citizens’ Rights adopted
in 2005, the Law on Free Access to Information of Public Interest
adopted in 2004, as well as the Criminal Code and the Code of Criminal
Procedure.
The implementation of this comprehensive
legislative package is co-ordinated within the framework of the
National Anti-Corruption Strategy adopted in 2005.
183. An action plan on the implementation of the strategy was adopted
in 2006. The implementation of the anti-corruption measures progresses
smoothly and several new cases involving corruption by civil servants, police
and customs officials were opened during 2006. However, the action
plan on the fight against corruption lacks clear deadlines, concrete
actions and the necessary resources for its implementation.
184. According to Transparency International, Serbia’s corruption
perception index (CPI) for 2007 is 3.4, which places the country
in 79th position,
above other countries of South-Eastern
Europe with the exception of Croatia, which has a CPI of 4.1. However,
it is generally acknowledged that “corruption is still widespread and
constitutes a serious problem in Serbia”.
Although
the legislation establishes a sound basis for developing an anti-corruption
policy, it needs to be further improved in several respects. The
Law on the Financing of Political Parties contains a number of sound
principles but measures for supervision and control are weak: for
example, political parties’ reports on the financing of the election
campaign in January 2007 were mostly incomplete and unsatisfactory.
The Law on the Prevention of Conflict
of Interest does not cover all officials who are involved in the
decision-making process; there are also problems with its enforcement,
as the sanctions foreseen by the law are rather weak (that is, confidential
warning and public announcement of the violation of the law by an
official with a recommendation to resign). The Law on Public Procurement
introduces complex procurement procedures. However, the role of
the public procurement agency is not strong enough. The auditors
to the Supreme Audit Institution were appointed only in September
2007. The material and procedural criminal legislation could be
further improved, in line with the recommendations of the Council
of Europe experts.
185. As regards Council conventions, Serbia is a State Party to
the Council of Europe Criminal Law Convention on Corruption (ETS
No. 173), the Council of Europe Civil Law Convention on Corruption
(ETS No. 174), the Additional Protocol to the Criminal Law Convention
on Corruption (ETS No. 191), the Council of Europe Convention on
Laundering, Search, Seizure, and Confiscation of the Proceeds from
Crime (ETS No. 141), and the European Convention on Mutual Assistance
in Criminal Matters (ETS No. 30) and its Additional Protocol (ETS
No. 99). However, it has yet to ratify the Council of Europe Convention
on Laundering, Search, Seizure and Confiscation of the Proceeds
from Crime and on the Financing of Terrorism (CETS No. 198), and the
Council of Europe Convention on Cybercrime (ETS No. 185).
186. At institutional level, the fight against corruption is concentrated
in the relevant council. It was established by government decision
in 2001 and comprises 13 members. It is an advisory body whose mandate
is to provide support to the government in the implementation of
anti-corruption policies. It examines activities related to the
fight against corruption, proposes measures that need to be taken
for more efficient policies against corruption and follows their
implementation. The council may also make proposals for new legislation, programmes
and other activities to fight against corruption.
187. The council has taken a number of sound initiatives to fight
against corruption in the past couple of years. It has focused primarily
on so-called “political corruption”. The cases of “administrative
corruption”, that is, corruption of civil servants, such as corruption
in the health sector, judiciary, tax administration and customs, appear
to have been neglected in the work of the council.
188. In order to achieve greater efficiency in investigating and
prosecuting criminal acts with elements of corruption and money
laundering, the Department for the Fight Against Corruption was
established as part of the 2008 plan and programme of the prosecutor’s
office of the Republic of Serbia. The task of the department is
to co-ordinate its activities with the district prosecutors’ offices,
as well as with other state organs (the Ministry of Internal Affairs,
tax police and other inspection services) and, if needed, to take
part in first instance criminal proceedings. The experience of a
number of European states is being used in the establishment of
this department. The OSCE mission in Serbia also announced its readiness
to provide expert and material support. This being said, it appears
that there is a need to create a more operational structure to strengthen
the enforcement of measures to fight against corruption, as well
as ensure better co-ordination between different anti-corruption
policies and mechanisms.
4.4.2. GRECO’s recommendations
189. The Council of Europe Group
of States against Corruption (commonly known as GRECO) adopted an evaluation
report on the Republic of Serbia in June 2006. The group formulated
a number of concrete recommendations and invited the Serbian authorities
to report on implementation of these recommendations by the end
of 2007.
190. In total, 25 recommendations were addressed to the Serbian
authorities. Summing up, these could be divided into the following
categories and include,
inter alia:
- institutional aspects (improving
the transparency of appointment of judges and prosecutors and eliminating
political influence in the appointment process in order to build
confidence in the judicial and prosecutorial function; make the
tenure of deputy public prosecutors permanent; strengthen the terms of
office of the special prosecutor for organised crime; improve co-operation
between the police and the prosecutor’s office; strengthen in-service
training for police officers and prosecutors dealing with corruption
and organised crime; develop efficient mechanisms for monitoring
implementation of the action plan of the Anti-Corruption Strategy,
etc.);
- investigation (establish special investigation techniques
and provide training; develop a fully-fledged witness protection
programme; temporary freezing of suspicious transactions; seizure
and confiscation of illicit property transferred to third parties,
etc.);
- money laundering (developing guidelines containing money
laundering indicators, increase awareness of suspicious transaction
reporting and monitor progress, etc.);
- prevention of corruption (anti-corruption training for
civil servants; establishment of the ombudsperson’s office at national
level; extension of the application of the Law on Conflict of Interests
to all public officials who perform public administration functions;
adoption of codes of conduct for public officials, etc.);
- strengthening of the implementation of the Law on Public
Procurement, by provision of appropriate training to civil servants;
- simplification of procedures and regulations governing
the granting of licences and permits;
- strengthening financial control by establishing a public
auditing institution.
191. We shall carefully study the conclusions of the GRECO on the
implementation of these recommendations and take them into account
in the monitoring process.
4.4.3. Forthcoming developments
192. The previous Government of
Serbia prepared a law on the Anti-Corruption Agency. According to
the draft, the future agency would replace the currently existing
bodies, namely the Council for the Fight against Corruption and
the Republican Committee for the Prevention of Conflict of Interest.
It would also exercise control over the financing of political parties
and implement the Anti-Corruption Strategy according to the agreed
action plan. The agency would also have “normative” functions and
be responsible for preparing opinions on laws and by-laws, thus
ensuring the detection of “risks of corruption” in draft legislation.
193. We welcome the development of this law and encourage the Serbian
authorities to speedily adopt it to prepare the ground for reforming
the current institutions responsible for fighting against corruption
and streamlining the implementation of anti-corruption policies.
4.4.4. Money laundering
194. Anti-money laundering policies
in Serbia and Montenegro were assessed by the Council of Europe Committee
of Experts on the Evaluation of Anti-Money Laundering Measures (commonly
known as MONEYVAL) in late 2003. A detailed assessment report was
prepared and approved at the plenary meeting of the committee on
21 January 2005. A summary of the report was subsequently prepared
and published on the MONEYVAL website.
195. Since the adoption of the first report on Serbia and Montenegro,
the situation in Serbia has evolved. A new Law on Anti-Money Laundering
was adopted in 2005. The new law aims at improving the efficiency
of detecting and preventing money laundering. In practical terms,
the new law introduced a new definition of money laundering, an
obligation of identification of clients and beneficial owners when
opening bank accounts as well as the obligation of reporting cash
transactions amounting to and exceeding €15 000 to the Financial Intelligence
Unit (Anti-Money Laundering Agency). There is also a general obligation
to report suspicious financial transactions to the FIU, irrespective
of the amount. Customs authorities are now obliged to report on cross-border
transfers of cash, cheques and securities above the amounts specified
in regulations governing cross-border financial transfers in local
and foreign currencies. The list of obligors has been extended to
include investment funds, dealers in high-value goods, travel agencies,
casinos, etc. A Financial Intelligence Unit was established within
the structure of the Ministry of Finance with an independent budget.
196. Some changes with respect to the criminalisation of money
laundering were also introduced into the Criminal Code and the Code
of Criminal Procedure. The legislation on banks, insurance, games
of chance, securities and financial instruments, investment funds,
foreign exchange operations, training of judges, public prosecutors
and deputy public prosecutors was amended, to bring the regulations
into line with the new law on anti-money laundering.
197. An important change was made to the Code of Criminal Procedure,
which is expected to strengthen the role of public prosecutors in
the investigation. According to the new code (adopted in June 2006),
the investigation will be conducted by the public prosecutor. This
novelty is expected to make the proceedings more expedient. The
new Code of Criminal Procedure will, however, be effective only
from 31 December 2008 (and not from 1 June 2007 as was foreseen
in the original version of the law).
198. Measures to combat terrorist financing were also strengthened
in criminal legislation.
199. Although the new Law on Anti-Money Laundering was welcomed
by all actors concerned, some of its features were criticised by
domestic and international organisations. We were informed that
the Anti-Corruption Agency made a rather critical assessment of
the law, stressing in particular that the concept of money laundering
could have been better defined and challenging the independence
of the Anti-Money Laundering Agency, which functions as a body of
the Ministry of Finance. Equally, the role of the Ministry of Finance
in regulating anti-money laundering methodology and procedures as
well as the right of the ministry to grant reporting exceptions
to certain obligors was criticised. The sanctions foreseen by the
law were considered weak and the number of transactions to be controlled
by the agency excessively large, which may in practice result in
the inability of the agency to react effectively to cases of money
laundering.
200. The OSCE and the United Nations Interregional Crime and Justice
Research Institute (UNICRI) made a somewhat more balanced assessment
of the law, stressing, however, among the drawbacks of the law and current
legal regime of prevention of money laundering:
a. the lack of clarity in the list of obligors;
b. an unclear situation in relation to money laundering in
privatisation;
c. problems related to the role of the Financial Intelligence
Unit, particularly its lack of independence, insufficient clarity
in relations with other institutions, and problematic quality of
information collected; and
d. the lack of harmonisation of penalties prescribed for
money laundering and similar offences.
201. This being said, we were informed that MONEYVAL would soon
make an assessment of the compliance of the Serbian legislative
framework and practice with European standards on anti-money laundering measures
and measures to counter the financing of terrorism. We invite the
Serbian authorities to co-operate fully with MONEYVAL in the organisation
of the assessment as well as in the implementation of recommendations.
From our side, we shall carefully study the conclusions of MONEYVAL
as soon as they are available and take them into account in the
monitoring process.
5. Human rights
5.1. Reform of the army, security
services, police and penitentiary institutions
5.1.1. Democratic oversight
202. We welcome the comprehensive
set of provisions concerning democratic oversight over the activities
of the police, security services and army of Serbia established
by the constitution and the sectoral legislation. We look forward
to receiving further information about the actual functioning of
these procedures within the framework of the monitoring process.
203. The modalities of the supervision are defined in the Law on
the Basic Organisation of the Security Services of the Republic
of Serbia adopted on 11 December 2007. According to the law, the
National Assembly, inter alia,
checks the constitutionality and legality of the operations of the
security services; the harmonisation of the operations of the security
services with the strategy of national security, the strategy on defence
and the security and intelligence policy of the Republic of Serbia;
the legality of the implementation of particular procedures and
measures for clandestine gathering of intelligence data, etc. The
National Assembly adopts reports on the operations of the security
services on the basis of reports presented by the head of the security
services, at least once a year. The National Assembly may also consider
proposals, petitions and requests of citizens in connection with
the operations of the security services and takes appropriate measures for
their solution. The head of the security services is obliged, upon
an request by the competent committee of the National Assembly,
to make it possible for the members of the committee to access the
premises of the service, to allow consultation of documentation,
to produce data and information on the operation of the service,
and to answer their questions in connection with the operation of
the service.
204. The democratic oversight of the army of Serbia is regulated
by the new constitution and the Law on the Army of Serbia adopted
on 11 December 2007. The democratic civilian control over the army
of Serbia comprises, in particular, the control over the use and
development of the army, internal and external supervision over
military expenses, monitoring of, and the informing of the public
about, the state of preparation of the army, provision of free access
to information of public interest and definition of responsibilities
for the performance of military obligations in accordance with the
law. The democratic civilian control over the army is performed
by the National Assembly, the office of the ombudsperson and other
state organs within the framework of their competences as well as
directly by the citizens.
205. Equally, the activities of the police are also subject to
democratic control. According to the new Law on Police adopted in
2005, the Directorate of Police was granted administrative autonomy
within the structure of the Ministry of the Interior. The director
of police is a civil servant appointed on the basis of a competitive examination,
thus excluding any political influence in the appointment process.
The director of police submits reports on the activities of the
police to the National Assembly’s Committee on Defence and Security
every six months. This is a welcome practice. We were told that
the committee organised public discussions during consideration
of the reports.
5.1.2. Work of the police
206. In organisational terms, the
police is divided into 15 branches. It is organised in 26 districts,
including the capital, Belgrade. The salaries of police officers
have been increased in the past years. We were informed that on
average the salary of a policeman in Belgrade amounted to 30 000
Serbian dinars (RSD) (approximately €385), which was higher than
the national average (which is RSD 26-28 000). However, the terms
of employment of police officers are still poor and the risks of
corruption are high.
207. By and large, the director of police was satisfied with the
work of the police. Good co-operation was maintained between the
police and the prosecutorial services. One of the top priorities
in the work of the police was the fight against corruption and organised
crime. In this field, the police closely co-operates with the Special
Prosecutor for Fighting Organised Crime and the Belgrade district
court which is competent to try corruption – and organised – crime-related
cases. The Organised Crime Service and the Criminal Police Directorate
both deal with investigating corruption cases on a daily basis.
Special teams of trained police officers are deployed in the regional
branches of the police in order to investigate cases of corruption
and organised crime using special investigation techniques (including
work with “undercover” agents). Among the most recent and serious
cases, the director of police referred to the corruption case at
the University of Kragujevac, whereby 18 university professors are
currently under investigation for bribe taking.
208. According to Mr Milorad Veljović, Serbian police actively
participate in various training events on human rights organised
by the Council of Europe and the OSCE. Direct contacts were established
with the police and law enforcement agencies of the countries of
the region and co-operation develops on a daily basis.
209. The strengthening of internal control mechanisms is an important
task of the Directorate of Police. The Internal Control Section
of the police supervises the legality of police operations, particularly
regarding the respect and protection of human rights. As an organ
of internal control, the section ensures that the discretionary
rights of the police officers are strictly controlled and limited,
as well as based upon the law, the code of behaviour and international
conventions ratified by Serbia. The Internal Control Section is
headed by an Assistant Minister of Internal Affairs appointed by
the Government of the Republic of Serbia on the basis of a public
competition. The head of the section is responsible to the Minister
of the Interior and submits to him regular periodical reports on
the operations of the section. In the course of 2007, the Internal
Control Section initiated 122 criminal indictments and provided
additional evidence to 12 criminal indictments against 159 police
officers and 80 citizens. The most common criminal indictments were
initiated for abuse of an official position, counterfeiting of official
documents, and accepting and giving bribes. It is worth noting that
in the course of 2007, the Internal Control Section was considerably
engaged in the detection of serious and more complex criminal acts.
In addition to its independent operations in the detection of such
criminal acts, the section took part in the activities the district
police administrations were carrying out. The Internal Control Section
pays particular attention to the education of its police officers
through various forms of both domestic and foreign professional
training. Most of the training is focused on the fight against corruption.
5.1.3. Prevention of torture and
inhuman or degrading treatment or punishment
210. The issue of violence by police
officers, as well as the conditions of detention in penitentiary
institutions, are being addressed separately by the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment (CPT). A delegation of the committee travelled to
Serbia on 19 November 2007 for a two-week second periodic visit.
The CPT delegation reviewed the action taken by the Serbian authorities
to improve the treatment of persons detained by the police and the
practical operation of the safeguards in place. The treatment and
regime of prisoners held in the closed, high-security and remand sections
of three prisons (in Belgrade, Požarevac and Sremska Mitrovica)
was also examined. The CPT delegation also carried out a follow-up
visit to Serbia’s only prison hospital.
211. Furthermore, the CPT team examined the situation of psychiatric
patients at the specialised neuro-psychiatric hospital in Kovin.
In addition, the delegation visited – for the first time in Serbia
– an establishment for people with learning disabilities, the Special
Institution for Children and Juveniles in Stamnica.
212. We recommend that the Serbian authorities publish the CPT
report as soon as it is available in order to facilitate implementation
of the CPT’s recommendations, in co-operation with the Council of
Europe.
5.1.4. Trafficking in human beings
213. Serbia has yet to ratify the
Council of Europe Convention on Action against Trafficking in Human
Beings (CETS No. 197). We strongly recommend that Serbia ratify
this convention at the earliest opportunity.
214. On the domestic legislation front, trafficking in human beings
is a criminal offence, according to the Criminal Code. A National
Strategy for Combating Trafficking in Human Beings was adopted in
December 2006 and its implementation is progressing smoothly. According
to the information provided by the Serbian authorities to the Council
of Europe Secretariat delegation that prepared the second report
on compliance with obligations and commitments and implementation
of the post-accession co-operation programme, in the first half
of 2007, numerous arrests in relation to human trafficking were
made and several cases are under investigation.
215. We would encourage the Serbian authorities to pursue their
efforts aiming at combating trafficking in human beings and organs.
5.2. Case law of the European
Court of Human Rights
216. In 2006-07 the European Court
of Human Rights adopted 13 judgments against Serbia. The most recurrent
violation of the Convention identified by the Court relates to the
excessive length of proceedings and ineffectiveness of domestic
remedies in violation of Articles 6, paragraph 1, and 13 of the
Convention (right to a fair trial and right to an effective remedy
before a national authority). There were also two cases of violation of
Article 10 of the Convention concerning freedom of expression. Another
two cases dealt with the violation of Article 1 of Protocol No.
1 to the Convention (right to property).
217. We hope that the Serbian authorities will eliminate deficiencies
in the domestic legal order, in particular with regard to the judicial
proceedings and effective remedies against violations of human rights.
This specific problem has to be dealt with in the context of the
reform of the judiciary.
5.3. Ratification of the revised
European Social Charter
218. Serbia signed the revised European
Social Charter on 22 March 2005. However, ratification has yet to be
completed. This is one of the outstanding commitments of Serbia.
219. We were informed that the Council of Europe held, on 20 November
2007, a seminar on the European Social Charter, which was organised
in co-operation with the Ministry of Labour and Social Affairs.
We were informed that the discussions between the experts participating
in the seminar showed that there were no obstacles in the Serbian
domestic legal order for the ratification of the Charter.
220. In the margins of the seminar, the Minister for Labour and
Social Affairs, Rasim Ljajić, informed the Council of Europe delegation
that preparation of the ratification was ongoing. In the course
of the preparation, advice from the Council of Europe will be sought
and consultations with social partners will be conducted.
221. We welcome this positive approach and look forward to congratulating
Serbia on the ratification of the Charter in the nearest future.
5.4. Freedom of expression and
pluralism of the media
5.4.1. General context
222. The provisions of the new Constitution
of Serbia governing freedom of expression and freedom of the media
are in line with European standards. Article 46 guarantees the freedom
of thought and expression and specifies that it may be restricted
by law only to protect the “rights and reputation of others, uphold
the authority and objectivity of the courts and protect public health,
morals of a democratic society and national security of the Republic
of Serbia”. Equally, Article 50 guarantees the freedom of everyone
“to establish newspapers and other forms of public information
without prior permission and in a manner laid down by law”. The
freedom to establish electronic media is also guaranteed. The freedom
of mass media may be restricted according to paragraph 3 of Article
50 only by a court decision and “when it is necessary in a democratic
society to prevent incitement to violent overthrow of the system
established by the constitution or to prevent a violation of the territorial
integrity of the Republic of Serbia, to prevent propagation of war
or instigation to direct violence, or to prevent advocacy of racial,
ethnic, or religious hatred enticing discrimination, hostility or
violence”.
223. However, despite this protective constitutional framework,
journalists do not feel secure in Serbia. The Independent Journalists’
Association of Serbia (NUNS) expressed concerns about the increase
in violence against journalists, especially those engaged in investigatory
work.
The
most notorious recent case of a murder attempt against the
Vreme journalist Dejan Anastasijević
is a good example of this overall climate of insecurity.
Mr Anastasijević reported extensively about
war crimes, organised crime and the activities of the Serbian security
services. He testified before the ICTY in the Milosevic trial. A
hand grenade exploded on 13 April 2007 below the windows of his
flat located on the ground floor. The assault on Mr Anastasijević
was strongly condemned by all officials and in particular by President
Tadić and Prime Minister Koštunica. The case is still being investigated,
however, and the perpetrators of the assault have not been found.
224. In 2007, NUNS inquired 17 times with the authorities about
the progress of the investigation into the deaths of three journalists
(Radislava “Rada” Vujasinović, Slavko Ćuruvija and Milan Pantić)
without receiving any clear reply. Apparently, most letters were
not replied to. When a reply was given, it was considered “unsatisfactory”
and came only after the intervention of the Commissioner on Access
to Information of Public Interest, Rodoljub Šabić.
225. We strongly condemn the cases of violence against journalists.
Assaults on journalists cannot be tolerated in a democratic society.
We call upon the Serbian authorities to investigate the cases of
violence against journalists at the earliest opportunity and invite
them to provide further information in respect of the progress of
the investigations in the above-mentioned cases of murder within
the framework of the monitoring process.
5.4.2. Media concentration
226. Although the Serbian media
context is relatively diverse in terms of number of printed and
electronic mass media, there are serious concerns about the lack
of pluralism and the monopolisation of mass media by political groups
and businessmen. According to the Independent Journalists’ Association
of Serbia, “today’s mainstream news media in Serbia are controlled
by Milosevic’s people”.
This was shown
by a survey recently conducted by NUNS. Although the most prominent
media are owned by “local businessmen and tycoons”, the state influence
in media still remains very high. According to the survey, there
are only two completely foreign-owned media outlets in Serbia (Blic
and 24 Sata, owned by Ringier, Switzerland, and TV Fox, owned by American
News Corporation).
227. We would strongly encourage the Serbian authorities to take
appropriate measures to increase the pluralism of the media, in
particular, by encouraging the privatisation of existing media outlets
and establishment of new ones.
5.4.3. Electronic media: work of
the Republican Broadcasting Agency (RBA)
228. The Republican Broadcasting
Agency was established in 2002 as an independent regulatory authority of
the broadcasting sector. It was created on the basis of the Broadcasting
Law adopted in 2002 and subsequently amended in 2005. According
to the law, the RBA is responsible for:
- controlling and ensuring the consistent application of
the provisions of the Broadcasting Law;
- issuing broadcasting licences and prescribing the licence
form;
- supervising the work of broadcasters in the Republic of
Serbia;
- imposing adequate sanctions against broadcasters in keeping
with this law;
- prescribing rules binding on broadcasters that ensure
the implementation of broadcasting policy in the Republic of Serbia.
229. The Council of the Republican Broadcasting Agency was not
elected upon establishment of the agency in 2003 because of a controversy
over the disputed appointments of three out of its nine members. Subsequently,
the law was amended and a new council was elected at the beginning
of 2005 by an almost unanimous decision of the parliament – with
over 200 deputies voting. Many domestic and international observers
argue that the agreement on the election of the members of the council
was a deal amongst the major political parties.
230. The activities of the RBA in the field of licensing appear
to be controversial. Domestic and foreign experts, professional
associations, broadcasters and international organisations expressed
serious concerns about the RBA Council’s decisions on the awarding
of national broadcasting licences. As a result of a public competition
for national and Belgrade regional frequencies, the RBA awarded
licences to five broadcasters, namely TV Avala, Television B92,
TV Pink, TV Fox, TV Happy and TV Košava, for the joint use of one frequency.
231. In total, 13 broadcasters participated in the competition.
The frequencies were awarded in the proportion of 3:2 in favour
of fully domestically owned broadcasters. We were informed that
one of the reasons for such a distribution of frequencies was the
protection of national broadcasters, in line with the Strategy of Development
of Radio Broadcasting in Serbia until 2013.
232. Some of the broadcasters that lost the competition appealed
against the decision of the RBA. The Supreme Court of Serbia identified
some procedural irregularities in the decisions taken, which, in
the view of the court, could have influenced the decision-making
process. We were informed that the RBA Council corrected the procedural
irregularities, while confirming its decisions on the merits. Apparently,
the only appeal that is still pending before the Supreme Court for
consideration on the merits is the one submitted by RTL. In our
meeting with the RBA Council we were not provided with clear information
about the legal situation with respect to the procedural irregularities
and subsequent appeals.
233. We had the impression from our meetings with the media representatives
and NGOs that the procedure for allocating frequencies was far from
fully transparent. While we commend the legitimate aspiration of
the RBA Council to put some order into the allocation of frequencies
and support domestic broadcasters, we consider that this work should
be done in full transparency and in compliance with the legislation.
We appeal to the Serbian authorities to work further in this respect.
234. Finally, we learned that in September 2007 the RBA Council
issued a binding instruction to RTS (Radio Televizija Srbije – national
public broadcasting company) to transmit live parliamentary sessions
on its second channel from 10 a.m. to 6 p.m. during the week. While
the live transmission of parliamentary sessions is not a problem
in principle, the fact that the broadcasting regulatory authority
is obliging a public service broadcaster to perform certain activities
may, in our view, compromise the editorial independence and institutional autonomy
of a broadcaster, as required in accordance with Committee of Ministers’
Recommendation No. R (96) 10 on the guarantee of the independence
of public service broadcasting.
235. There were indications in the press that the RBA Council decided
on 20 November 2008 to change the binding instruction on direct
transmissions of parliamentary sessions on RTS into a recommendation. Apparently,
however, the RBA Council “still believe[s] that the transmission
of sessions should be continued, because it had been a practice
for the past sixteen years”.
236. Such instructions would represent, in our view, an undue interference
of a regulatory authority in the work of the public service broadcasters.
We recommend that the RBA should avoid issuing such instructions and
leave it to the public service broadcaster to decide the daily programme
of broadcasting.
5.5. Freedom of association
237. The Ministry of Public Administration
and Local Self-Government of Serbia, in co-operation with the Task Force
of Non-Governmental Organisations, drafted a new Law on Associations.
This draft law was approved by the government and tabled in parliament
on 15 October 2007. It is intended to replace the currently existing laws
on social organisations and associations of citizens and on citizens
joining associations, as well as on social and political organisations.
Several versions of the draft law were prepared over the past couple
of years and submitted to the Council of Europe for appraisal.
238. The final version of the draft law was appraised by the Council
of Europe experts in October 2006.
According
to the experts, the authors of the law have taken into consideration
the criticism of the Council of Europe experts and redrafted practically
all problematic provisions of the law. It now complies with European standards
on the freedom of association.
239. The draft law was extensively discussed with key actors in
seminars and round tables, some of which were organised in co-operation
with the Council of Europe. It was considered by the Committee on
European Integration of the National Assembly of Serbia on 30 October
2007. We hope that parliament will soon be able to adopt the law
in order to create a new legal framework for associations in Serbia,
complying with European standards.
5.6. Situation of refugees, internally
displaced persons and asylum procedures
240. According to information provided
by Mr Dragiša Dabetić, Serbia’s Commissioner for Refugees, and the Office
of the United Nations High Commissioner for Refugees (UNHCR) in
Serbia, as of July 2007 there are 97 701 refugees and 206 607 internally
displaced persons (IDPs) living in Serbia. Most of the refugees
and IDPs live in private accommodation, while a small percentage
remain in 79 collective centres and 89 specialised institutions.
241. In the past couple of years, the Serbian authorities have
made considerable efforts to improve the situation of refugees and
IDPs, by removing several obstacles to durable solutions. As a result,
the number of refugees in Serbia has been substantially reduced.
Additional
efforts should be deployed, however, to create an environment conducive
to sustainable return, as well as to enable the full integration
of those refugees choosing to remain. Eight years after the end
of the armed conflict in Kosovo, the IDPs in Serbia remain stuck between
uncertain return prospects and the lack of local integration perspectives.
They are also faced with many obstacles in the full enjoyment of
their basic rights as citizens. The total number of returnees from
Serbia to Kosovo since the end of the conflict remains low (since
2002, approximately 7 500 returns
).
5.6.1. Situation of refugees
242. The voluntary repatriation
of refugees to Croatia still remains problematic. We were informed
that the UNHCR was assisting the returnees, in particular, by providing
legal advice on property restitution and naturalisation issues.
While a considerable number of refugees have returned to Croatia
in an organised manner or spontaneously, unresolved property-related
issues still hamper the return process and dissuade the refugees
from moving to Croatia.
243. The implementation of the Sarajevo Declaration (the so-called
“3 x 3” initiative, which became a “3 x 4” process after the independence
of Montenegro) did not progress as well as it could. The lack of
consensus on the remaining “open issues” – in particular restitution/compensation
of former tenancy rights for Croatian refugees has delayed the process
and the completion of the “road maps”.
244. This being said, we have gained the impression from our discussions
with the Serbian Commissioner for Refugees and the officials of
UNHCR that some progress was made in achieving durable solutions
for refugees in Serbia. Their number has been decreasing and, as
we mentioned earlier, at the moment, there remain 97 701 refugees
in Serbia. However, despite significant efforts by the government,
local integration of the most vulnerable refugees continues to be
a difficult process (particularly in the housing sector), mainly
due to the lack of proper institutional capacity, inefficient implementing
mechanisms for existing national development strategies (for instance,
the Poverty Reduction Strategy) and shortage of funding.
5.6.2. Situation of internally
displaced persons from Kosovo
245. The overall security situation
in Kosovo, lack of freedom of movement and inadequate conditions
for sustainable reintegration (limited access to employment and
public services, resolution of housing, land and property issues)
continued to affect the prospect for the sustainable and safe return
of IDPs. Minimal or no progress in returns was observed in 2005
and a decline was observed in 2006.
246. In this situation, the efforts deployed by the UNHCR to facilitate
individual returns for those wishing to do so, as well as to provide
assistance and protection for the most vulnerable IDPs remaining
in Serbia, are commendable. In particular, the UNHCR focused on
provision of reliable information to the IDPs assisting them to
make a free and informed choice on a durable solution, providing
legal aid through implementing partners and promoting active IDP
participation in the institutional processes. Discussions between
Belgrade and Pristina are ongoing since the signing in June 2006
of the Protocol on Voluntary and Sustainable Return and within the
Direct Dialogue Working Group chaired by the UNHCR, but there has
been no significant progress on returns. However, a technical sub-group
tasked with facilitating the return process and addressing obstacles in
it was formed. The group met three times, and some progress has
been noted, including the joint support of the Belgrade and Pristina
delegations to particular projects. However, much remains to be
done for the technical sub-group to be truly effective.
247. The human rights situation of IDPs in Serbia continues to
be a matter of concern, although the government, assisted by the
UNHCR, has invested a lot of effort in improving the situation.
The Roma IDPs represent a particularly marginalised, disadvantaged
and vulnerable segment of the IDP population, facing serious obstacles
to access to legal protection, civil registration, documentation
and basic social and economic rights.
248. The lack of personal documents represents a particularly serious
problem for the IDPs. However, this problem is in the process of
being solved. According to the Serbian authorities, the survey,
carried out towards the end of 2007 in co-operation with the UNHCR
and UNDP, showed that the number of IDPs without personal identification
cards is considerably lower than in 2000. At present, 10.6% of IDPs
have problems in procuring personal documents.
5.6.3. Citizenship and statelessness
249. While the Republic of Serbia
is a party to the 1954 Convention relating to the Status of Stateless Persons,
it has yet to sign the 1961 Convention on the Reduction of Statelessness,
and the European Convention on Nationality (ETS No. 166). The new
Citizenship Law generally complies with international legal standards
and has favourable provisions granting Serbian citizenship to a
large number of refugees from Bosnia and Herzegovina and Croatia.
250. It is worth noting that amendments to the Citizenship Law
were adopted by the Serbian Parliament in September 2007. According
to these amendments, Serbian citizenship can be granted to “all
persons over 18 years of age, able to work and signing a statement
that they consider Serbia their country”.
A
special procedure for granting Serbian citizenship to Montenegrin
citizens is also foreseen. Montenegrin citizens who were registered
as residing on the Serbian territory on 3 June 2006 may acquire
Serbian citizenship upon submission of an application and of a written
statement saying that they consider themselves Serbian citizens.
251. At present, there is no official data about the number of
stateless people in Serbia. The UNHCR estimates that there are about
17 000 stateless people living in Serbia.
252. It appears that the main challenge for the prevention of statelessness
lies in the complicated, long and sometimes unsuccessful administrative
procedures for civil registration and residence registration. Citizens
are only able to fully access civil, political, social and economic
rights when they hold a valid ID card (lična
karta). In order to obtain a lična
karta a person must have undergone civil registration
and registered an officially recognised residence. This problem
has a serious impact on citizens’ access to state protection. It
is particularly serious for the IDPs who, in order to access civil
registration and/or residence registration procedures, need personal
documents that must be extracted from registry books. These may
be destroyed or missing and, if they exist, they are located in
one of the seven municipalities in southern or central Serbia. However,
according to the Serbian authorities, work is currently being carried
out in order to restore the destroyed or missing registration books
and so far 105 195 renewed entries of appropriate data were made. Another
commendable measure is the decision of the Ministry of Education
of Serbia to provide every child, irrespective of whether he or
she has a citizenship certificate, with elementary education.
253. It appears that Roma, Ashkali and Egyptian IDPs are further
at risk as many people among them have never been registered in
birth or citizenship records. However, we were informed that the
Law on Registration Books and the Guidelines on Keeping Registration
Books allow birth registrations to be made at a later stage.
254. While these efforts of the authorities are commendable, we
believe that there is a need to make a systematic revision of the
legislation governing civil registration and residence registration
procedures. We would encourage the Serbian authorities to launch
this revision as soon as practicable.
5.6.4. Asylum procedures
255. On 24 November 2007, the National
Assembly of the Republic of Serbia adopted the Law on Asylum. According
to the Serbian authorities, this law has brought domestic legislation
into line with international standards.
256. The law has provided for a detailed procedure of granting
asylum adapted to the special position and needs of the people concerned.
It has also enabled the state to protect itself from possible massive
abuses of the right to asylum. The law provides for the creation
of three specific bodies in the process of granting asylum: the
Asylum Office within the Ministry of the Interior with the authority
to decide in the first instance; the Asylum Commission established
by the Government of the Republic of Serbia with the authority to
bring second instance decisions; and the Asylum Centre within the
Office of the Commissioner for Refugees where accommodation, food
and other services are provided to the asylum seekers during the
whole course of the asylum procedure.
257. The new law is effective as of 1 April 2008.
5.6.5. Readmission
258. Along with the signing of the
Stabilisation and Association Agreement with the EU, Serbia ratified
on 7 November 2007 the agreement between the Republic of Serbia
and the EU on the readmission of people with illegal residence.
According to most analysts, in the coming months, a significant
number of people will be returned to Serbia from western Europe.
259. We recommend that the Serbian authorities should develop a
comprehensive strategy to tackle the issue of returnees. We commend
the Serbian authorities for developing the “Instruction handbook
for the integration of returnees”. This document could provide the
basis for the development of a strategy and of an action plan.
5.7. Combating racism and intolerance
260. 260. We were informed that
the Serbian authorities have prepared a law on anti-discrimination.
The law was sent to the Council of Europe and appraised by the Venice
Commission.
We
invite the Serbian authorities to fully take into account the recommendations
of the Venice Commission and adopt the law as soon as possible.
261. Furthermore, we shall closely follow the work of the European
Commission against Racism and Intolerance (ECRI), which recently
prepared its first report on Serbia.
The
report stresses that the Serbian Constitution establishes the principles
of non-discrimination and protection of minority rights and provides
for the state to promote understanding, recognition of and respect
for ethnic, cultural, linguistic and religious diversity. The 2006
new Criminal Code prohibits racist offences and racial discrimination.
The authorities have taken a number of measures to improve the situation
of Roma, particularly in the area of access to health care, which
are beginning to bear fruit. We strongly welcome these positive
measures.
262. At the same time, we note that some problematic areas still
remain. The draft law on anti-discrimination has yet to be adopted
and Serbia has not yet enacted exhaustive provisions against racial
discrimination in the area of civil and administrative law. The
Law on Churches and Religious Communities and its implementation do
not allow all religious communities living in Serbia to fully enjoy
their right to freedom of thought, conscience and religion enshrined
in Article 9 of the European Convention on Human Rights. The Criminal
Code is still too seldom applied to persons who commit racist offences
against national or ethnic minorities, religious minorities or anti-Semitic
offences. The situation of Roma, Ashkalis and Egyptians displaced
inside the country remains precarious. Furthermore, we are concerned
by the information provided by NGOs and human rights activists about
cases of discrimination against lesbian, gay, bisexual, and transgender/transsexual
people.
263. We shall closely follow the implementation of ECRI recommendations
in the further stages of the monitoring procedure.
5.8. Rights of national minorities
5.8.1. Constitutional and legal
framework
264. 264. The rights of national
minorities are protected by the new Serbian Constitution. The constitution protects
“special individual or collective rights” of minorities, “in addition
to rights guaranteed to all citizens” of Serbia (Article 75, paragraph
1). Furthermore, the constitution grants to the representatives
of national minorities the right to “take part in decision making
or decide independently on certain issues related to their culture,
education, information and official use of languages and script”
(Article 75, paragraph 2). Discrimination against national minorities
is prohibited (Article 76). Special measures are foreseen in order
to ensure that the representatives of national minorities are appropriately
represented in state bodies, public services, and provincial and
local self-government bodies (Article 77, paragraph 3).
265. 265. Another important provision of the constitution is the
prohibition of forced assimilation (Article 78). In particular,
the constitution “strictly” prohibits “measures which would cause
artificial changes in the ethnic structure of the population in
areas where members of national minorities live traditionally and
in large numbers”.
266. Article 79 contains a comprehensive catalogue of rights guaranteed
to minorities in order to preserve their specificity. We welcome
this extensive list of rights. Their implementation is defined by
the Law on the Protection of Rights and Freedoms of National Minorities,
as well as several sectoral laws and regulations of the autonomous
provinces, for instance the Law on Elementary Education, the Law
on Secondary Education, the Law on the Foundations of the Educational
and Upbringing System, the Law on Official Use of Language and Alphabet,
the Law on Election of Representatives, the Law on Activities of
General Interest in the Area of Culture, the Law on Broadcasting,
the Law on Public Information, the Decision of the Assembly of the Autonomous
Province of Vojvodina on Detailed Regulation of Individual Issues
of Official Use of Languages and Alphabets, the Decision of the
Assembly of the Autonomous Province of Vojvodina on the Election
of the Referendums of the Assembly, etc.
267. The participation of national minorities in political life
has been facilitated by the abolition of the 5% electoral threshold
in parliamentary elections. As a result, a number of minority representatives
were elected into parliament and formed their own group. As regards
local and provincial assemblies, Article 180, paragraph 4, of the
constitution says that “in those autonomous provinces and local
self-government units with a population of mixed nationalities,
a proportional representation of national minorities in assemblies
shall be provided for, in accordance with the law”. This is a welcome
provision.
268. The rapporteur of the Committee on Legal Affairs and Human
Rights, Mr Jürgen Herrmann (Germany, EPP/DC), has prepared a report
that specifically focuses on the situation of national minorities
in Serbia (and in Vojvodina, in particular, as well as on the situation
of the Romanian ethnic minority in Serbia) to be discussed shortly
by the Assembly. We subscribe to Mr Herrmann’s conclusions and invite
the authorities to implement the recommendations contained in his
report.
5.8.2. The role of the national
councils of minorities
269. According to Article 75, paragraph
3, of the constitution, “persons belonging to national minorities
may elect their national councils in order to exercise the right
to self-governance in the field of culture, education, information
and official use of their language and script, in accordance with
the law”. National councils of minorities have been operating in
Serbia for some time already. The Advisory Committee of the Framework Convention
for the Protection of National Minorities emphasised, in its 2003
opinion, the potential value of such councils in enhancing participation
of minorities in the decision-making process. It also drew the attention
of the authorities to the need to ensure their adequate funding
and avoid their undue politicisation.
270. The Department for Human and Minority Rights of the Government
of Serbia produced a draft law on elections for, and powers of,
national councils of minorities, which was subsequently appraised
by Council of Europe experts. A round table was organised on 27
May 2007 to discuss the draft law. During the round table, the Council
of Europe experts stressed that some of the provisions of the draft
law were not sufficiently clear and that too much emphasis was given
in the law to the obligations of the councils, while the obligation
of state authorities to involve the councils in the decision-making
process was not sufficiently articulated. Furthermore, the experts
criticised the fact that the law included a citizenship criterion
for membership and participation in the councils. This criterion
is likely to have a negative impact on the protection of rights
of Roma and stateless persons who may be prevented from participating
in the activities of the councils. The Serbian authorities informed
us that the citizenship criterion was introduced in the draft law
on the basis of the definition of a national minority contained
in the Law on the Protection of Rights and Freedoms of National
Minorities. While we understand the position of the Serbian authorities,
we recommend considering alternative legal solutions in order to
give the possibility to the representatives of ethnic communities
who do not have Serbian citizenship but live in the territory of
Serbia to participate in the work of the councils.
271. We were informed that the Ministry of Public Administration
and Local Self-Government took over the development of the law from
the department and is preparing a revised draft. We hope that the
experts of the ministry will take into account the Council of Europe
recommendations in the drafting process and submit a revised version
of the law to the Council of Europe experts for assessment.
272. The adoption of a new law on the national councils of minorities
is essential, as the mandate of the current councils will soon be
expiring. Although all councils we met received assurances that
their mandate will remain valid until a new law is adopted and a
new election is organised, it is very important to complete the development
of the legislative framework at the earliest opportunity in order
to confirm the status of the councils, thus reassuring the minorities.
273. There is also a Republican National Minority Council, which
operates in Belgrade and is chaired by the prime minister. However,
according to the information that was provided to us, this council
has never met during the past two years. This is a matter of concern
for the representatives of the minority communities who feel that
their interests are not sufficiently taken into account in Belgrade.
Furthermore, the representatives of the minorities estimate that
the level of implementation of the protective legislation is not
sufficiently high and that in practice additional efforts are required
from the central government in order to enable them to exercise their
rights fully. We were told that the budgetary allocations for the
functioning of national councils of minorities were left out of
the first draft proposal of the budget submitted by the government
to parliament. According to the Serbian authorities, this has not
been the case and the Department for Human and Minority Rights of
the Government of Serbia proposed a significant increase in the
budgetary appropriations for the operation of the national councils
in 2008 (the appropriations were increased by 138% from RSD 63 million
in 2007 to RSD 150 million in 2008). We welcome this positive measure
to support the activities of the national councils and look forward
to good co-operation between the government and the councils in
2008, so that the 2009 budgetary appropriations will not give rise
to rumours and speculations.
274. Equally, the implementation of bilateral agreements on the
protection of national minorities Serbia has concluded with neighbouring
states
is
not proceeding as well as it should because the representatives
of Serbia and of the states concerned have not been nominated yet
for the joint commissions established by the agreements. We recommend
that the Serbian authorities and the authorities of the states concerned
should promptly engage in consultations to make the joint commissions
operational at the earliest opportunity.
275. By and large, we gained the impression from our meetings with
the representatives of national minorities that they had a quite
different perception of the implementation of their special rights
guaranteed by the constitution than that of the authorities. We
acknowledge the fact that the Serbian authorities are making commendable
efforts to protect and promote the rights of minority communities.
However, the fact that the minority communities are not fully satisfied
with these measures indicates that the dialogue between Belgrade and
the minority communities should be improved. In the current situation,
following the adoption of the unilateral declaration of independence
by the Kosovo Assembly, the concerns of the minorities are likely
to be aggravated by the fear that nationalistic feelings will rise.
Several violent incidents against minorities have already occurred
in the days that followed the adoption of the unilateral declaration
of independence. It is extremely important in this context to send
a reassuring message to the members of minorities, clearly and unequivocally
condemning violence and investigating the cases of violent attacks.
We call upon the Serbian authorities to take positive steps in this
respect.
276. We acknowledge the fact that the Serbian authorities have
already taken a number of positive steps to fully ensure the implementation
of minority rights. These include: the adoption of the Constitution
of Serbia; the abrogation of the 5% electoral threshold for parties
of national minorities participating in the parliamentary election;
the adoption of the conclusions of the Serbian Government concerning
measures for increasing participation of minorities in public administration
bodies, which are being implemented in partnership with the national
councils (one of the measures foreseen is the translation of public
competition announcements into minority languages and their publication
in minority media selected by national councils); the special measures that
are being taken by the authorities to increase the participation
of minority representatives in judicial bodies; the transfer of
certain mass media management rights to the national councils; and
the state financing of minority mass media as well as the exclusion
of minority mass media from the compulsory privatisation process.
277. We recommend that the authorities continue to work with the
national minorities and their national councils in the implementation
of these measures, in a spirit of dialogue and partnership.
5.8.3. Implementation of the Framework
Convention for the Protection of National Minorities
278. A first Advisory Committee
opinion on the then Serbia and Montenegro was adopted in 2003. The second
state report was due on 1 September 2007. The Advisory Committee
is expecting the prompt submission of the second report by Serbia
in order to launch the second monitoring cycle. The second cycle report
was received by the secretariat of the Advisory Committee on 4 March
2008. Shadow reports prepared by NGOs are also publicly available.
279. We shall closely follow the work of the Advisory Committee
of the Framework Convention for the Protection of National Minorities
in the monitoring process.
5.8.4. Implementation of the European
Charter for Regional or Minority Languages
280. Serbia has been a State Party
to the European Charter for Regional or Minority Languages since
March 2005. Upon ratification in February 2006, the charter became
effective on 1 June 2006.
281. Upon ratification, Serbia decided to apply specific protection
measures foreseen by Part III of the charter to the following languages:
Albanian, Bosnian, Bulgarian, Hungarian, Romani, Romanian, Ruthenian, Slovakian,
Ukrainian and Croatian languages.
282. When ratifying the charter, Serbia made a statement providing
that the term “territory in which the regional or minority languages
is used” will refer to areas in which regional and minority languages
are in official use in line with the national legislation.
The Law on the Protection of Rights
and Freedoms of National Minorities introduces the obligation of
the official use of languages and alphabets of national minorities
that constitute more than 15% of the total population. Moreover,
it also introduces the obligation of the official use of languages
and alphabets of national minorities in self-government units in
which the official use of the language existed at the time of adoption
of this law, even if the percentage of members of national minorities is
below 15%.
283. The authorities submitted the first periodic report on the
implementation of the charter on 11 July 2007. The report totals
about 400 pages. A “shadow” report was prepared by the Vojvodina
Centre for Human Rights. The report was made public and is available
on the website of the Vojvodina Centre for Human Rights.
284. The committee of experts of the European Charter for Regional
or Minority Languages is considering the authorities’ report. We
shall carefully study the conclusions of the committee of experts
and take them into account within the framework of the monitoring
process.
5.9. Education reform
285. The reform of the education
sector is a particularly complex task Serbia has to face. According
to the authorities, the reform process should not be limited to
structural challenges only, including the devolution of responsibilities
to local authorities for management of education institutions, investment
in infrastructure, development of new curricula and training of
teachers. It also requires a complete rethinking of the difficult heritage
relating to the conflicts on the territory of the former Yugoslavia
Serbia has to live with. In this context, there is a need to develop
a comprehensive reform strategy in the field of education.
286. Unfortunately, we were not provided with information about
the measures the authorities are taking to teach the principles
of tolerance and respect for others and all their differences at
school. We hope to be able to discuss these measures in the further
stages of the monitoring process. In the meantime, we recommend that
the authorities should continue the educational reform and make
arrangements to teach the principles of tolerance, respect for others,
intercultural dialogue and reconciliation.
6. Conclusions
and further steps of the monitoring procedure
287. In the last couple of years,
Serbia has been going through a turbulent period of transformation.
In this context, the implementation of obligations and commitments
entered into upon accession to the Council of Europe slowed down,
primarily because of the inefficient functioning of the institutions
of the state union of Serbia and Montenegro.
288. However, with the independence of Montenegro and the dissolution
of the state union, new challenges for democratic reforms in Serbia
arose. The adoption of the new constitution has changed the political
and institutional context. It requires from the authorities the
launching of a complete restructuring of key democratic institutions.
Two parliamentary elections in two calendar years, subsequent presidential,
provincial and local elections, as well as lengthy and tough negotiations
about governing coalitions have prevented the country from speedily
implementing the necessary democratic reforms. Last but not least,
the adoption of the unilateral declaration of independence by Kosovo
has put a serious challenge before the authorities.
289. Despite these developments, we believe that Serbia is moving
forward and making progress on the road to European integration.
The country’s European perspective was clearly confirmed in the
presidential elections of 20 January and 3 February 2008 as well
as the resounding victory of the pro-European bloc in the 11 May
parliamentary elections. Time has now come to transform the democratic
and European aspirations of the country into concrete actions in
order to implement long-awaited reforms and complete the necessary democratic
transformations. These reforms have to be implemented in close co-operation
with all political actors, for European integration to become a
shared-by-all vision of the country’s future.
290. Today, as never before, our Assembly stands ready to support
this process. For this purpose, we are addressing to the authorities
a number of recommendations that will help them complete co-operation
with the ICTY, strengthen democratic institutions and the rule of
law, as well as enhance the protection of human and minority rights.
291. Pending the implementation of these recommendations, the Assembly
should continue to monitor the implementation of obligations and
commitments by Serbia, while providing all the necessary political
support to the engaged reforms.
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
No. 239 (2002).
Draft resolution and draft recommendation unanimously adopted
by the committee on 11 September 2008.
Members of the committee: Mr Serhiy Holovaty (Chairperson),
Mr György Frunda (1st Vice-Chairperson), Mr Konstantin Kosachev (2nd Vice-Chairperson),
Mr Leonid Slutsky (3rd Vice-Chairperson),
Mr Aydin Abbasov, Mr Avet Adonts,
Mr Pedro Agramunt, Mr Miloš Aligrudić, Mrs Meritxell Batet Lamaña, Mr Ryszard Bender, Mr József Berényi, Mr Aleksandër Biberaj, Mr Luc Van den Brande, Mr Jean-Guy Branger, Mr Mevlüt Çavuşoğlu, Mr Sergej Chelemendik,
Ms Lise Christoffersen, Mr Boriss Cilevičs,
Mr Georges Colombier, Mr Telmo Correia, Mr Valeriu Cosarciuc, Mrs Herta
Däubler-Gmelin, Mr Joseph Debono Grech, Mr Juris Dobelis, Mrs Josette
Durrieu, Mr Mátyás Eörsi,
Mrs Mirjana Ferić-Vac, Mr Jean-Charles Gardetto, Mr József Gedei,
Mr Marcel Glesener, Mr Charles Goerens, Mr Andreas Gross, Mr Michael
Hagberg, Mr Holger Haibach, Ms Gultakin Hajiyeva, Mr Michael Hancock, Mr Davit Harutyunyan, Mr Andres Herkel, Mr Raffi Hovannisian, Mr Kastriot
Islami, Mr Miloš Jevtić,
Mrs Evguenia Jivkova, Mr Hakki
Keskin, Mr Ali Rashid Khalil, Mr Andros Kyprianou, Mr Jaakko Laakso, Mrs Sabine Leutheusser-Schnarrenberger,
Mr Göran Lindblad, Mr René van der Linden, Mr Eduard Lintner, Mr Younal Loutfi, Mr Pietro Marcenaro, Mr Mikhail Margelov,
Mr Bernard Marquet, Mr Dick Marty,
Mr Miloš Melčák, Mrs Assunta
Meloni, Mrs Nursuna Memecan,
Mr João Bosco Mota Amaral,
Mr Theodoros Pangalos, Ms Maria
Postoico, Mr Christos Pourgourides, Mr John Prescott, Mr Andrea
Rigoni, Mr Dario Rivolta, Mr Armen Rustamyan,
Mr Indrek Saar, Mr Oliver Sambevski,
Mr Kimmo Sasi, Mr Andreas
Schieder, Mr Samad Seyidov, Mrs Aldona Staponkienė, Mr Christoph Strässer, Mrs Elene Tevdoradze, Mr Mihai Tudose, Mr Egidijus
Vareikis, Mr Miltiadis Varvitsiotis, Mr José Vera Jardim, Mrs Birutė
Vėsaitė, Mr Piotr Wach, Mr Robert Walter, Mr David Wilshire, Mrs Renate Wohlwend, Mrs Karin S. Woldseth, Mr Boris Zala, Mr Andrej Zernovski.
NB: The names of those members present at the meeting are
printed in bold.
The draft resolution and draft recommendation will be discussed
at a later sitting.