1. Introduction
1. During the reporting period, i.e. from June 2008
to June 2009, the Monitoring Committee has been particularly busy.
The period has been marked by the outbreak of a war in August 2008
between two member states of the Organisation, both of which are
under the Assembly’s monitoring procedure – Georgia and Russia –
which resulted in serious human rights violations and gave rise
to three reports being presented to the Parliamentary Assembly by
the Monitoring Committee in October 2008, January 2009 and April
2009, the first one under urgent procedure. As a consequence, the
Assembly has urged its Monitoring Committee to step up its monitoring
procedure with respect to both Georgia and Russia.
2. The Committee was also confronted with urgent or critical
situations raising serious human rights concerns in other member
states, such as: the post-electoral crisis in Armenia, which led
to two Assembly debates in June 2008 and January 2009 and will lead
to a third one in June 2009, the first one under urgent procedure;
the crisis which erupted in Turkey when the ruling AKP Party was
threatened with dissolution which led to an Assembly debate under
urgent procedure in June 2008; the post-electoral crisis in Moldova
which led to an Assembly debate under urgent procedure in April
2009. Three more reports were presented to the Assembly under the
regular monitoring procedure on the functioning of democratic institutions
in Azerbaijan (June 2008) and on the honouring of obligations and
commitments by Bosnia and Herzegovina (October 2008) and Serbia
(April 2009). Finally, in October 2008 the Monitoring Committee
presented to the Assembly a report on the reconsideration of previously
ratified credentials of the Russian delegation on substantial grounds related
to the violation of obligations and commitments committed by Russia
during and in the aftermath of the war with Georgia. In total, the
Monitoring Committee has presented no less than twelve reports to
the Assembly of which five were under urgent procedure. The Committee
has also approved and made public a number of information documents
prepared by its co-rapporteurs on all but one of the countries under
monitoring procedure (Montenegro) and by myself on all three countries
involved in a post-monitoring dialogue
.
3. That said, in accordance with the practice established by
our committee and welcomed by the Assembly last year in its Resolution
1619 (2008), I have prepared this year’s progress report with the
same objective in mind, which is to ensure that it can provide a
meaningful contribution to the Assembly’s debate during the June part-session
on the state of human rights in Europe. Therefore, the present report,
like last year’s report, does not simply present the activities
of the Monitoring Committee during the reporting period, but enters
into the merits and summarises the main human rights issues raised
in all member states currently under a monitoring procedure or involved
in a post-monitoring dialogue (see below, under 2).
4. As the rapporteur of the Committee on Legal Affairs and Human
Rights, Mr Christos Pourgourides, said in his report on the “State
of Human Rights and Democracy in Europe” in 2007 (
Doc. 11202), the rule of law is the backbone of human rights implementation.
Effective protection of human rights can only be achieved if the victims
of human rights violations have access to an effective remedy (Article
13 of the European Convention on Human Rights (ECHR)) and are entitled
to a fair and public hearing within a reasonable time before an independent
and impartial tribunal established by law (Article 6 of the ECHR).
For this reason, before dealing with the “classic” human rights
subject-matters raised in the country specific reports of the Committee
(see below, under 2., sections 2.3 to 2.10), I have briefly dealt
with two main subjects related to the rule of law which the Monitoring
Committee is consistently covering in its reports, namely independence
and effectiveness of national judicial systems, as well as the existence
and effectiveness of domestic remedies against human rights violations
(see below, under 2., sections 2.1 and 2.2). Finally, I have briefly
dealt in a separate section with the human rights concerns raised
in the context of the Georgia-Russia war (see below, under 2.11).
5. From a methodological point of view, as was the case last
year, I have limited myself to references to texts adopted by the
Assembly and to reports or other public documents prepared by our
Committee’s co-rapporteurs who follow the situation in each specific
country or myself in my capacity as rapporteur for the post-monitoring
dialogue with three countries. I have also included references to
relevant work carried out by the two international non-governmental
organisations (NGOs) that serve most frequently as sources for the preparation
of our Committee documents, namely Amnesty International (AI) and
Human Rights Watch (HRW). In this respect, I am also particular
pleased that the Secretary General of AI, Ms Irene Khan, and the
Director for Europe and Central Asia of HRW, Ms Holly Cartner, have
both accepted our invitation to address the Assembly in the framework
of the debate on our Committee’s report.
6. In accordance with the practice established since 2006 which
was welcomed by the Assembly in its
Resolution 1515 (2006), a second cycle of periodic reports on member states
which are not subject to a monitoring procedure or involved in a
post-monitoring dialogue has been initiated. Periodic reports on
the first group of 11 member states have been prepared and are set
out in the addendum to this report: Andorra, Austria, Belgium, Croatia,
Cyprus, Czech Republic, Denmark, Estonia, Finland, France and Germany.
As in the first cycle, they are based on the country-by-country
assessments made by the Commissioner for Human Rights and other
Council of Europe monitoring bodies and human rights institutions.
However, reference is only made to the most recent assessments made
after June 2006, when the first periodic reports on the same states were
presented. The Convention on Action against Trafficking in Human
Beings, which entered into force on 1 February 2008 and led to the
setting up of a new specific monitoring mechanism, the GRETA, has
been added to the country grid and, as of next year, the periodic
country reports should also cover the conclusions drawn by GRETA.
7. In the preliminary draft resolution, I have tried to group
recurrent human rights issues raised in all countries under monitoring
or engaged in a post-monitoring dialogue, as well as conclusions
drawn from this year’s periodic reports.
2. Overview
of the human rights situation in the countries under the Assembly’s
monitoring procedure or involved in a post-monitoring dialogue
2.1. Independence and
effectiveness of the judiciary and reform of the Public Prosecutor’s
Office
8. Judicial independence is a pre-requisite for the
rule of law and a fundamental guarantee of a fair trial. In this
respect, the standards contained in the Opinion n°10 on the “Council
for the Judiciary in the service of society” of the Consultative
Council of European Judges, as well as the “European Standards on
the Independence of the Judiciary – a Systematic Overview”, prepared
by the Sub-Committee on the Judiciary of the Venice Commission
, provide clear
benchmarks for the work of the Monitoring Committee. It is against these
benchmarks that we have analysed the situation in our member states
over the past years. As for the reform of the Public Prosecutor’s
Office, this was a commitment undertaken by almost all countries
upon accession which remains outstanding in many of them.
9. A weak, badly remunerated and partly corrupt judiciary has
been one of the Council of Europe’s major concerns in
Albania. In their preliminary draft
report on the honouring of obligations and commitments by Albania
, the co-rapporteurs noted that the reform
of the judiciary is progressing and that the authorities are strongly
committed to reinforcing the rule of law in the country. However,
the opposition leaders, international observers and NGO representatives
appear to believe that the reform is being carried out in a hasty
and uncoordinated way. A new law on the organisation of the judiciary
was adopted in February 2008. It was supported by both the government
and opposition parties. It was only adopted after a long period
of consultations with the interested groups and with help from a
group of experts. In March 2008, a National Pact on Justice was
endorsed by the main political parties. However, a clear reform
strategy and vision for the judiciary are still missing. As for
the reform of the Public Prosecutor’s Office, the changes introduced
in the Constitution on 21 April 2008 modified the mandate of the
General Prosecutor from an unlimited to a 5-year term with the possibility
to be re-appointed. In its opinion adopted in December 2008 upon
our request, the Venice Commission considered that this amendment
was a step back and risked compromising the impartiality of the
Prosecutor General, especially in the period when he or she is seeking
re-election
. On 29 December 2008, the
parliament adopted a law amending the law on the organisation and
functioning of the Prosecutor’s Office. Following inspections, the
Minister of Justice is now able to recommend the initiation of disciplinary proceedings
against prosecutors. Concern has been expressed by the latter that
the new law might result in future government interference with
their work
.
10. In
Armenia, the Assembly
noted that the apparent lack of trust
in
the independence of the judiciary as impartial arbiters in election
disputes explained the relatively few formal complaints filed with
the courts after the presidential elections of 19 February 2008
(see
Doc. 11579). In this respect, the Assembly, in its Resolution 1609(2008),
recommended that the authorities should step up their efforts to
establish a truly independent judiciary and enhance the public’s
trust in the courts.
11. In
Bosnia and Herzegovina,
while no major problems with respect to the independence of the
judiciary were detected, the Committee co-rapporteurs expressed
concern about the rather severe criticism of the functioning of
the judiciary
.
It appears that co-operation between police and prosecutors is allegedly
poor, cantonal and district courts are understaffed and under equipped
and the courts’ backlog has reached alarming proportions. The different
application by the Entities of procedural norms, such as the statute
of limitation for the prosecution of war crimes, and diverging instances
of case law are another major problem preventing the normal functioning
of the judicial system. There seems to be a need for a Supreme Court
at state level which could review the decisions of the Entities’
supreme courts in order to provide guidance and ensure consistency. Under
these conditions, the judiciary in Bosnia and Herzegovina does not
seem to be well equipped to provide effective remedies against human
rights violations. In this respect, the Assembly, in its
Resolution 1626 (2008), called upon the authorities of Bosnia and Herzegovina
to further pursue the judicial reform, in particular, by improving
the material conditions of courts, strengthening co-operation between
judges, prosecutors and the police and promoting better consistency
in the judicial practice at Entity and State level, notably by considering the
creation of a state level supreme court as recommended by the Assembly
in
Resolution 1513 (2006).
12. The problem of judicial independence has to be viewed within
the wider context of the reform of the judiciary system in
Bulgaria. In my information note
on the post-monitoring dialogue with Bulgaria
, I stressed that the judiciary is still
regarded today as largely unaccountable, inefficient, non-transparent
and corrupt. It appears that the executive and legislative bodies
show persistent and widespread mistrust towards the judiciary and
are reluctant to concede the existence of a truly independent judicial
branch. In February 2007, a package of constitutional amendments
relating mainly to the judiciary was adopted, without prior consultation of
the Council of Europe. After the adoption of the amendments to the
Constitution, the Venice Commission prepared an opinion on the Constitution
of Bulgaria, at the request of the Monitoring Committee, in which
it found a number of shortcomings from the angle of the separation
of powers and the independence of the judiciary
.
13. In
Russia, the Committee
welcomed the improvements made to the functioning of the judiciary.
In particular, the budget of the courts is now in the hands of the
judiciary itself. The Judicial Department at the Supreme Court has
the right to defend the proposed budgetary allocations for financing
the court system directly in parliament. However, the financial
and organisational improvements in the functioning of the judiciary have
not resolved the concerns expressed by the Assembly previously about
the independence of the courts and the apparent misuse of the judiciary
for political purposes. In their information note on the state of
the monitoring procedure with respect to Russia
, the Committee co-rapporteurs referred to
the investigation of high-profile cases against politicians, businessmen,
journalists and human rights activists. They expressed concern about
the outcome of the trial concerning the murder of the independent
journalist Anna Politkovskaya which ended recently with the acquittal
of the suspects by the jury
.
They noted that the investigation into the murder was not effectively
conducted and called upon the authorities to promptly complete the
investigation of this case in order to bring to justice not only
the authors of this heinous crime, but also the instigators. Equally, the
co-rapporteurs urged the Russian Investigation Committee to seriously
and promptly investigate the recent murder of the lawyer and human
rights defender Stanislav Markelov
and of the journalist Anastasia Baburova,
in line with their obligation to take positive steps to ensure the
protection of human rights activists under the ECHR
. At the same time, the
co-rapporteurs agreed with the Russian authorities to examine in detail
the situation concerning the investigation of cases of human rights
violations in the North Caucasus and, in particular, in the Chechen
Republic on the occasion of their forthcoming visit to the country.
Currently, there is an important number of cases pending before
the Committee of Ministers within the framework of the supervision
of the execution of the judgments of the European Court of Human
Rights relating to a series of violations of the ECHR resulting
from and/or relating to the Russian authorities’ actions during
anti-terrorist operations in Chechnya in 1999-2002 (mainly unjustified
use of force by members of the security forces, disappearances,
unacknowledged detentions, torture and ill-treatment, unlawful search
and seizure and destruction of property), including the lack of
effective investigations into the alleged abuses and the continuing shortcomings
in domestic remedies in this respect (violations of Articles 2,
3, 5, 6, 8 and 13 ECHR and of Article 1 of Protocol No. 1 to ECHR)
.
14. The Committee welcomed the establishment of the Investigation
Committee within the Prosecutor General’s Office of the Russia which
has led to a separation between investigation and oversight functions exercised
by this Office, in line with earlier recommendations of the Assembly.
However, concerns about broad extra-penal functions of the
Procuratura still remain. While
acknowledging the fact that similar extra-penal functions are exercised
by
Procuraturas in different
Council of Europe member-states, the Committee reiterated the recommendation
of the Consultative Committee of European Prosecutors that “the
principle of separation of powers should be respected in connection
with the prosecutor’s tasks and activities outside the criminal
law field and the role of courts to protect human rights”
and that “these functions are carried
out, on behalf of the society and public interest, to ensure the
application of law while respecting fundamental rights and freedoms
and within the competences given to prosecutors by law, as well
as the Convention and the case law of the Court”
. In the view of the Committee,
these principles should guide the Russian authorities in pursuing
further the reform of the
Procuratura,
with a view to gradually decreasing its broad powers of legality oversight
and protection of human rights in favour of the creation of more
effective legal remedies against human rights violations, allowing
the victims to protect their rights directly before the courts or
with the assistance of independent lawyers
.
15. In
Serbia, the Assembly
welcomed the adoption by the National Assembly, on 22 December 2008,
of a whole set of laws on the reform of the judiciary and of the
Public Prosecutor’s Office. In the opinion of the Venice Commission,
the “Constitution of Serbia endangered judicial independence and
created a major risk of politicising the judiciary by providing
for the election of judges and of the High Judicial Council in the
National Assembly, and by creating a discontinuity between the existing
judiciary and the new judiciary to be chosen, once the High Judicial
Council is established”. The new legislation attempts to provide
a response to these problems and reduces the influence of politics
in the process of appointment of the majority of the members of the
High Judicial Council. The legislation also brought to a minimum
the interference of politicians into the appointment of individual
judges, although the National Assembly still remains the final decision-making
body and may exercise political discretion over the appointments.
As for the reform of the Public Prosecutor’s Office, the Committee
expressed concerns about the possible interference of the Parliament
in the work of Public Prosecutors resulting from their double accountability
to the Republic Public Prosecutor and the National Assembly. It
has also noted that the procedure of election of Public Prosecutors
and Deputy Public Prosecutors by the National Assembly upon the
proposal of the State Prosecutorial Council (which is composed of
members elected directly or indirectly by the National Assembly)
was also disturbing because of the interference by the Parliament.
The new legislation on Public Prosecutors, adopted in December 2008,
did not resolve the concerns of the Committee as the National Assembly
can still exercise a degree of political discretion in electing
public prosecutors
. In the light of these considerations,
the Assembly, in its
Resolution
1661(2009), invited the Serbian authorities to continue to work
with the Venice Commission on the establishment of clear legal guarantees
allowing the serving judges, against whom there are no allegations
of incompetence or behaviour incompatible with the function of judge,
to remain in office. At the same time, the Assembly called on the
authorities to continue to work on the improvement of the constitutional
and legal framework for the judiciary and the Public Prosecutor’s
Office in order to establish sufficient guarantees against political interference
in their activities, as well as to increase the effectiveness and
professionalism of judges and prosecutors.
16. During my visit to Turkey in
November 2008 in my capacity as rapporteur for the post-monitoring dialogue,
I expressed some concerns with respect to the independence of the
judiciary, in particular, as regards the influence of the Minister
of Justice on the High Council of Judges and Public Prosecutors.
The High Council of Judges and Public Prosecutors is responsible
for the selection, appointment, and transfer of judges and prosecutors
and for disciplinary measures against them. From my discussions
with members of this council, I understood that the influence of
the Ministry of Justice on this body is in fact of a structural
nature. The Minister of Justice is its president and sets its agenda;
its offices and those of the Ministry of Justice adjoin one another, its
budget is controlled by the ministry and it does not have its own
secretariat. Moreover, the Judicial Inspection Department answers
directly to the Ministry of Justice itself. I was also surprised
to learn that the High Council of Judges and Public Prosecutors
cannot initiate the prosecution of a judge or prosecutor without
the consent of the Minister of Justice. I find it hard to see how
the High Council of Judges and Public Prosecutors can operate independently
of the Ministry of Justice under these circumstances.
17. In
Ukraine, the reform
of the judiciary remains of particular concern. In the information
note on their recent visit to Ukraine
,
the co-rapporteurs noted that judges at all levels remain dependent
on political figures of authority or those responsible for the judiciary.
The President adopted the Concept
Paper on the Reform of the Judiciary in May 2006, which resulted
in two draft laws on the reform of the judiciary being submitted
to parliament. These two drafts were passed by the Verkhovna Rada
in a first reading in April 2007. However, very little has been
achieved since then and the two drafts are still pending adoption
by the parliament. In addition, the two draft laws were substantially
revised by the Legal Affairs Committee of the Rada and reportedly
no longer comply with the opinion of the Venice Commission on them.
In this context, the co-rapporteurs called on the Verkhovna Rada
to submit the revised text to the Venice Commission for opinion
and implement any recommendations that this opinion may contain,
with the aim to adopt these two draft laws on the reform of the
judiciary without further delay.
As
regards the reform of the Public Prosecutor’s Office, this is a
commitment undertaken by Ukraine upon accession which has not yet
been honoured. On 14 April 2009, the parliament adopted in a first
reading the draft Law on the Office of the Public Prosecutor. This
draft, which is very much supported by the Prosecutor General, reportedly
does not address the concerns of the Venice Commission expressed
on an earlier version of this draft
.
During their last visit to Ukraine in April 2009, the co-rapporteurs
were informed that the Minister of Justice had suggested to the
Speaker of the Verkhovna Rada to submit the draft law to the Venice
Commission for opinion before the law is considered in a second
and third reading. The co-rapporteurs very much supported this proposal
and insisted that no law should be adopted without being reviewed
by the Venice Commission and any possible concerns addressed. The
co-rapporteurs further noted that one of the main concerns with
regard to the Public Prosecutor’s Office is the general supervisory
function, which is not in line with European standards. However,
with the 2004 Constitutional amendments, this general oversight
function was enshrined into the Constitution of Ukraine. This had
already then been considered by the Venice Commission as a step
backward not in line with the historical traditions of the procuracy
in a state subject to the rule of law
.
The first step in the reform of the Public Prosecutor’s Office, before
a new law can be adopted that is in line with European standards,
should therefore be the adoption of constitutional amendments to
remove this oversight function from the Constitution
.
2.2. Right to a fair
trial within a reasonable time
18. The violations of the right to a fair trial within
a reasonable time are often due to a number of systemic problems
in the functioning of the judiciary, in particular the non execution
of domestic final judicial decisions.
19. The non execution of final domestic judicial decisions is
an element of concern in
Albania.
In the preliminary draft report on the honouring of obligations
and commitments by Albania
, the Committee co-rapporteurs
noted that, since January 2007, seven judgments were delivered by
the Strasbourg Court against Albania. In six of them the Court found
a violation. Most of the cases are related to the right to a fair
trial due to the failure to enforce a final judicial decision
.
20. In Bosnia and Herzegovina,
the execution of domestic final judicial decisions is seen as a
major problem, at all levels of jurisdiction. The backlog of cases
is also huge, as there are more than 1,9 million cases pending before
the courts, of which around 160 000 are criminal cases. The cantonal
court in Sarajevo for example is suffocating under 80 000 cases
concerning non payment of utilities bills. In this situation, the
courts cannot guarantee the effective implementation of the right
to a fair trial within a reasonable time and provide effective judicial
remedies against human rights violations. In 2008, the Strasbourg
Court issued 3 judgments with respect to Bosnia and Herzegovina;
the violation of the right to a fair trial and of the right to an
effective remedy was found in one case (Kudić
v. Bosnia and Herzegovina, application n° 28971/05).
The Court found that this case was practically identical to the
cases of Jeličić and Pejaković and Others
v. Bosnia and Herzegovina, in which the Court found a
violation of Article 6 ECHR as well as a violation of Article 1
of Protocol No. 1 to the ECHR (so-called cases of former foreign
currency savings). The violation of Article 6 included the non-execution
of a judicial decision for a considerably long period (almost five
years after the date of ratification of the ECHR by Bosnia and Herzegovina).
Therefore, there are reasons to believe that this case is symptomatic of
a serious systemic problem in Bosnia and Herzegovina’s legal order.
21. In
Russia, the Committee
co-rapporteurs noted in their information note on the state of the
monitoring procedure with respect to Russia
that the functioning of the judiciary was
highly affected by three main structural problems, which are the
non-execution of final domestic judicial decisions against the state (reportedly,
70% of domestic final judicial decisions are not executed), the
quality of domestic judicial remedies compelling the higher courts
to overrule final judgments through supervisory review (“
nadzor”) proceedings, as well as
the length of pre-trial detention. These problems have a direct
impact on the functioning of the European Court of Human Rights,
as around 70-80% of all judgments delivered against Russia so far,
and of the potentially admissible pending cases, deal directly with
these issues. That said, it appears that the Russian authorities
are working towards solving these structural problems by amending
the civil and criminal procedure legislation. In December 2007,
a set of amendments to the Civil Procedure Code was adopted that
modified the “supervisory review” procedure (“
nadzor”)
in civil litigation. According to the new rules, appeals under the supervisory
review procedure can be brought only by the parties to the proceedings
within six months (instead of one year, as was the case before).
The number of supervisory review instances was brought down to three. A
case can be challenged under supervisory review only if all ordinary
judicial remedies have been exhausted. A final judicial decision
can be quashed under supervisory review only if there were violations
of procedural or material law, which have affected the consideration
of the case and made it impossible to establish or protect individual
rights and freedoms, as well as legal private and public interests.
In criminal procedure, the “
nadzor” appears
to be less problematic because the Criminal Procedure Code prohibits
reformatio in peius (i.e. change of
the sentence in appeal proceedings to a more severe one). In line
with a 2005 ruling of the Supreme Court, the provisions of the Criminal
Procedure Code on
reformatio in peius are
now being reviewed, also to satisfy the requirements of the case
law of the Strasbourg Court. The relevant amendments were adopted
by the State Duma on 25 February 2009, and aim at allowing the sentence
to be changed in appeal proceedings to a more severe one, under
the “
nadzor” procedure and
at the request of the prosecutor, in case of fundamental violations
of the procedural law.
22. That said, the problem of the non-execution of final decisions
of courts of law against the state still remains unresolved in Russia.
In this respect, the Committee co-rapporteurs welcomed the tabling,
in September 2008, of a draft law on the “Compensation of damage
occurred as a result of the violation of the right to fair trial
within reasonable time and of the right to the execution of final
decisions of courts of law, within reasonable time”. However, they
expressed concern about the fact that the government gave a negative opinion
on this draft law, claiming that it would introduce additional costs
to the state budget. They therefore urged the government to reconsider
its position and support this draft law, as it would help resolve
a major systemic problem of the Russian judicial system and relieve
the European Court of Human Rights of its heavy burden of considering
cases of non-execution of final domestic court decisions emanating
from Russia. In 2008, out of 244 judgments delivered against Russia,
the Court found 159 violations of the right to a fair trial and
20 cases of excessive length of proceedings. A great number of cases
of non-execution of final judicial decisions are now pending before
the Committee of Ministers within the framework of the supervision
over the execution of judgments
.
23. In
“the former Yugoslav Republic
of Macedonia”, the judiciary is still facing problems
with regard to delays in legal proceedings
.
This problem appears to be of a systemic character, as it transpires
that appeal courts, acting in second instance proceedings, simply
send cases back to first instance courts in the event of factual
mistakes or inappropriate application of the law, instead of taking
the decision themselves, as is the case in other legal systems.
This practice of “delayed justice” is not in line with the right
to a fair trial, as defined in the ECHR and the case law of the
Court. In 10 out of 15 judgments delivered by the Court against
“the former Yugoslav Republic of Macedonia” during the year 2008,
violations of the right to a fair trial within a reasonable time
were found by the Strasbourg Court because of the excessive length
of judicial proceedings. However, the authorities have taken some
steps to tackle this problem. According to recently adopted amendments
to the procedural codes, appeal courts can annul lower courts’ decisions
and send them back for a new hearing only once. In addition, special
committees have been created within the Supreme Court to deal with
cases of “delayed justice” in first and second instance courts under
an extraordinary appeal procedure. In my capacity as Chair of the
Monitoring Committee and rapporteur on the post-monitoring dialogue
with “the former Yugoslav Republic of Macedonia”, I shall carefully
study the effect of these measures, which, in my view, can only
bring a temporary solution. A thorough and systematic revision of
all judicial procedures is required, in my opinion, to solve the
structural problems that the Macedonian judiciary has to face.
24. In
Ukraine, courts
are paralysed by the high volume of cases, leading to unreasonable
delays in the examination of cases and issuance of judgments. Out
of 110 judgements delivered by the European Court of Human Rights
with respect to Ukraine, it found violations of the right to a fair
trial in 61 cases, and excessive length of proceedings in 32 cases.
Inter alia, some 238 cases concerning the failure or substantial
delay by the administration or state companies in abiding by final
domestic judgments are currently pending before the Committee of
Ministers within the framework of the supervision over the execution
of judgments
. Another 15 cases pending
execution deal with the length of civil proceedings and absence
of an effective remedy (See Svetlana
Naumenko
v. Ukraine, application n° 41984/98 and others.)
2.3. Ratification of
Council of Europe human rights conventions
2.3.1. Protocols to the
ECHR
25. Monaco has
not ratified yet Protocols No. 1 and 12 to the ECHR, contrary to
the undertakings given at the time of accession, as set out in
Opinion No 250 (2004). The authorities base their argument on the country’s specific
circumstances, given that the indigenous population is outnumbered
by the foreign nationals living and/or working there
.
26. Russia is the only
Council of Europe member state which has not yet ratified Protocols
No. 6 and 14 to the ECHR. In their note on the state of the monitoring
procedure with respect to Russia, the Committee co-rapporteurs stated
that, unfortunately, they could not report any progress as regards
the position of the Russian authorities on the ratification of the
two protocols. This issue remains a key stumbling block in the co-operation between
Russia and the Council of Europe.
27. The non-ratification by Russia of Protocol No. 14
further aggravates the operational
difficulties that the Strasbourg Court is experiencing and deprives
persons within its jurisdiction from benefiting from a streamlined case-processing
procedure before the Court. The co-rapporteurs expressed deep concern
at the fact that, since the failure of the adoption of the law on
the ratification in December 2006, the State Duma has not taken any
concrete steps to speed up the ratification process. While fully
supporting the efforts made by their colleagues from the Legal Affairs
and Human Rights Committee in the same direction
,
the Monitoring Committee co-rapporteurs raised the issue of the
ratification of Protocol 14 in all their meetings, during both visits
of April 2008 and March 2009. Stressing that the Russian Federation
should urgently ratify Protocol 14 as part of its membership commitments,
they urged the Russian authorities to urgently reconsider their
position and stop being “the odd ones out” preventing other fellow
Europeans from fully and effectively benefiting from the protection
granted by the European Convention of Human Rights. Since the members
of the Russian delegation to the Assembly, as well as the representatives
of the Ministry of Justice at the highest level reassured them of
their support for the ratification of Protocol 14, the co-rapporteurs
expect the authorities to take some steps in this direction in the
near future. They also encouraged the authorities to continue to strengthen
the national judicial system in order to establish effective domestic
legal remedies against human rights violations
. In its recent debate on draft Protocol
No. 14
bis to the European
Convention for the Protection of Human Rights and Fundamental Freedoms
, the Assembly once more “urge[d]
the Russian State Duma to reconsider, without further delay, its
refusal to provide assent for Russia to ratify Protocol No. 14”
considering that its entry into force “would be the most effective
way to improve the difficult situation in which the Court finds
itself”. For the Assembly, draft Protocol No. 14
bis is simply a “good interim solution”
to bring into effect, quickly, the provisional application of two
provisions extracted from Protocol No. 14 to the ECHR.
28. With respect to the abolition of the death penalty in law
in Russia, the authorities informed the Committee co-rapporteurs
that building consensus for the ratification of Protocol No. 6 is
a substantially more difficult task. In their opinion, the society
is still not ready to accept the abolition of the death penalty,
especially in the light of the rise in criminal statistics
.
This being said, the abolition of the death penalty is usually seen
as an unpopular measure which requires political courage, but which
the Russian political leadership should muster. In the opinion of
the co-rapporteurs, it is not acceptable that the Russian Federation
is the only Council of Europe member state which has not yet ratified
Protocol No. 6, in clear contradiction with the principles of the Council
of Europe and the commitments Russia entered into upon accession
.
2.3.2. The Revised European
Social Charter
29. Bosnia and Herzegovina ratified
the Revised European Social Charter just a few days after the adoption
by the Assembly of
Resolution
1626 (2008). This is to be welcomed.
30. Monaco has not ratified
yet the Revised European Social Charter despite undertaking to do
so within one year of accession. The new case law of the European
Court of Human Rights in the
Demir cet
Baykara v Turkey judgment put an end to the doubts of
the Monegasque authorities regarding the extent of the European judges’
power of interpretation, which was the main argument delaying ratification
of the Social Charter hitherto. Nevertheless, the Monegasque authorities
have decided to allow themselves further time for reflection before
going ahead with ratification
.
31. The recent adoption of the law on the ratification of the
Charter by both chambers of the Parliament in Russia and by the National Assembly
of Serbia is to be welcomed.
The authorities of these states are now expected to deposit without
delay the instrument of ratification.
32. Ratification of the Charter is now one of the outstanding
commitments of
Montenegro (see
Opinion No. 261 (2007) on the accession of Montenegro).
2.3.3. The Convention
on Action against Trafficking in Human Beings
33. It is to be welcomed that most member states under
the monitoring procedure have signed and ratified the Convention
on Action against Trafficking in Human Beings, which entered into
force on 1 February 2008 and provides for a specific monitoring
mechanism, the GRETA. Thus, the Convention is in force in Albania, Armenia,
Bosnia and Herzegovina, Bulgaria, Georgia, Moldova, Montenegro,
and Serbia. It has been signed but not yet ratified by Ukraine and
two states involved in a post-monitoring dialogue, “the former Yugoslav Republic
of Macedonia” and Turkey. The Convention has not been signed by
Azerbaijan, Monaco, and Russia.
2.4. Police, security
services, army, prison staff and detention conditions
34. The Monitoring Committee’s reports regularly refer
to the work carried out by the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (CPT)
and call for the implementation of its recommendations and the publication
of relevant reports by the authorities of the states under monitoring
or post-monitoring.
35. In
Albania, the use
of excessive force and ill-treatment by police officers continue
to be issues of concern, although these phenomena have reportedly
decreased since the transfer of responsibility for pre-trial detention
centres from the Ministry of Interior to the Ministry of Justice
in 2007. Basic safeguards against ill-treatment during pre-trial
detention are still not applied in a consistent and effective manner:
detainees do not get timely access to a lawyer and are often not
brought before a judge within the constitutional time periods. The
failure to investigate and prosecute allegations of ill-treatment
effectively and efficiently continues to foster a climate of impunity
.
36. According to a report issued in February 2008 by the Albanian
Ombudsman following the visit of the Council of Europe Commissioner
for Human Rights, the main problems in Albanian prisons remain overcrowding,
poor hygiene, and the detention of minors and the mentally ill in
the same cells as other detainees. There has been some progress
in the implementation of recommendations by the CPT, but more remains
to be done. In 2008, new prisons in Vlore, Fushe Kruje and Korce,
which also have pre-trial detention facilities, have been completed.
Furthermore, in an attempt to solve overcrowding issues in prisons,
new legislation was passed in 2008 to allow alternative measures
to imprisonment and introducing the probation service
.
37. Following the events of 1 and 2 March 2008 in
Armenia, the Assembly expressed
its concern about the excessive use of force by the police during
the clashes with the demonstrators as well as the ill-treatment
of detainees during their arrest
and transport to the police stations
. In
Resolution 1609 (2008), the Assembly stated that arbitrary arrests and detentions,
as well as the ill-treatment of detainees, in particular during
police custody, should be stopped and called on the Armenian authorities
to ensure that an effective public control mechanism over the police
be guaranteed both in law and practice. Three of the 10 fatalities
as a result of the clashes on 1 and 2 March 2008 were the result
of tear gas canisters that were fired by the police at the protesters
at close range, raising questions about the guidelines regarding
the use of force by law enforcement agencies. The Assembly therefore
called for an independent, transparent, and credible inquiry into
the events of 1 and 2 March 2008, including the excessive use of
force by the police and the precise circumstances leading to the
fatalities. While acknowledging the problems, the authorities have
not yet announced concrete measures to combat excessive and disproportionate
use of force by law enforcement agencies. In the court proceedings against
the 7 opposition members who are considered the “ring leaders” by
the authorities, several prosecution witnesses alleged they had
been pressured by the police to provide false testimony against
the accused. This led the Human Right Defender of Armenia to issue
a statement, on 7 May 2008, in which he expressed his strong concern
about the numerous complaints that his office received according
to which the police obtained “evidence” by applying pressure and
duress on potential witnesses.
38. In
Azerbaijan, numerous
cases of ill-treatment and allegations of torture by law enforcement
officials during police custody or pre-trial investigations, as
well as in the army, for the purpose of extracting confessions or
obtaining incriminating statements from witnesses, continue to be
reported, and investigations into such behaviour have rarely led
to the prosecution of the officers who have committed such abuses.
Unfortunately, the
only CPT report on Azerbaijan that has been published to date concerns
the first periodic visit in 2002. The CPT’s most recent visit to
Azerbaijan took place in November 2006. The report on this visit,
which was transmitted to the authorities in July 2007, has not yet
been made public.
39. With regard to the issue of alleged political prisoners in
Azerbaijan,
Natiq Efendiyev, Ruslan Bashirli, Akif
Huseynov and Telman Ismayilov, as well as the imprisoned opposition
journalists Ganimat Zahidov and Eynulla Fatullayev, remain in prison
following judicial investigations and proceedings characterised
by a lack of transparency and equity.
40. In its
Resolution
1626 (2008) on
Bosnia and Herzegovina,
the Assembly asked the authorities of Bosnia and Herzegovina to
take further steps to harmonise the entity-level legislation and
practice in the field of prison administration, in particular with
regard to execution of criminal sentences, juvenile delinquency,
and the mentally ill, as well as
to step up the construction of a state-level high-security prison.
Sharing the concerns expressed by the CPT and the United Nations
Human Rights Committee as regards the conditions in the Zenica Prison
Forensic Psychiatric Annex, the Assembly asked the authorities to
move all patients held in that facility to another adequate facility
where they would receive the required treatment as agreed in the
friendly settlement in the
Hadžić case
brought before the European Court of Human Rights.
41. In
Bulgaria, although
human rights’ training is mandatory at the police academy and officers’
schools, human rights abuses by the police continue. Impunity remains
a problem, as the lack of accountability inhibits government attempts
to address such abuses
.
In its last report, the CPT highlighted the important role played by
judges and prosecutors, but also by staff working at Investigation
Detention Facilities and other competent authorities, in preventing
ill-treatment by law enforcement officials through the diligent
examination of all relevant information regarding possible ill-treatment
which may come to their attention, whether or not that information
takes the form of a formal complaint. Human rights groups claim
that medical examinations in cases of police abuses are not properly
documented, that allegations of police abuse are seldom investigated thoroughly,
and that offending officers are very rarely punished. The fact that
the Criminal Procedure Code was modified in December 2008, just
after my visit to Bulgaria, abolishing the obligation for civilians
to file lawsuits against police in military courts, is a welcome
development which could help put an end to police impunity.
42. As concerns the situation in Bulgarian prisons, NGO prison
monitors report that brutality by prison guards against inmates,
as well as brutality among inmates, continue to be serious problems.
Corruption also continues to plague the system. Prison overcrowding
remains a problem, although the Ministry of Justice reported a slight
decrease in the prison population following the introduction of
a probation system.
43. In
Georgia, the police
reform, which has remarkably reduced petty corruption, has been
considered as a major achievement. A Main Office for the Protection
of Human Rights and Monitoring has been established within the Ministry
of Interior and carries out internal monitoring in the law enforcement
agencies and pre-trial detention centres. The Unit co-operates closely
with the Public Defender and NGOs. However, impunity remains a serious
problem in the police force. Though the crime rate has considerably
decreased in the last years and despite the adoption of a Code of
Ethics for the police in June 2006, members of the police are still reported
to be involved in a number of human rights abuses, which mainly
include disproportionate use of force, in particular in police stations
and during special police operations, torturing of detainees and
other forms of abuse. Despite efforts being made in the right direction,
there is still a serious lack of adequate initial and continuous
training for police, including the criminal police, which should
be effectively addressed, in co-operation with the Council of Europe
.
44. Despite the opening of new and remodeled facilities and the
efforts made by the Ministry of Justice, prison overcrowding and
poor conditions in prison and pre-trial detention facilities, especially
in temporary detention isolators, continue to be among the major
human rights concerns in Georgia. In its
Resolution 1603 (2008) on Georgia, the Assembly asked the Georgian authorities
to fully implement the CPT recommendations, continue to address
the issue of overcrowding in prisons and pre-trial detention centres
and consider supplementary measures, where appropriate. The Assembly
also asked the authorities to secure prompt, independent, and thorough
investigation of all allegations of ill-treatment and apply a policy
of zero tolerance to impunity.
45. Following a debate under urgent procedure on 29 April 2009
on the functioning of democratic institutions in
Moldova, the Assembly expressed
its strong concerns about acts of violence that were committed in Chisinau
by the police during the events that followed the parliamentary
elections of 5 April. More than 300 people were arrested of whom
9 are still being held in detention. At least 3 people are reported
to have died during the post-electoral events. Human rights violations,
including cases of beating and ill-treatment by the police, were
reported by numerous international and domestic non-governmental
organisations
,
the Council of Europe Commissioner for Human Rights
,
as well as by the National Prevention Mechanism against Torture,
established under the Optional Protocol to the United Nations Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment. The Assembly urged that an independent and thorough
investigation of all these allegations of violence be started immediately,
and that those responsible for these violations be brought to trial
(see
Resolution 1666
(2009) and
Doc.
11878)
.
46. Reiterating previous recommendations made in its
Resolution 1572 (2007) on Moldova’s regular monitoring, the Assembly also urged
the Moldovan authorities to further reform the police; create effective remedies
against excessive force and violence by members of the police; set
up training for members of the police; ensure that all cases of
police ill-treatment are subject to prompt, thorough, independent,
and impartial investigations and subsequent prosecution where appropriate,
and implement fully the recommendations of the CPT. The Assembly
also urged the Moldovan authorities to considerably improve conditions
of detention to bring them fully into line with European standards
and transfer responsibility for pre-trial detention from the Ministry
of Internal Affairs to the Ministry of Justice, in accordance with
a long-standing accession commitment. It also asked the authorities
to facilitate the access of human rights defenders to all detention
places, including those still administered by the Ministry of Internal
Affairs.
47. With respect to
Russia,
the Committee of Ministers is currently supervising the execution
of
an important number of judgments of the European Court of Human
Rights regarding cases of unjustified use of force by members of
the Russian security forces during anti-terrorist operations in
Chechnya in 1992-2002, disappearances, unacknowledged detentions,
torture and ill-treatment, unlawful search and destruction of property,
lack of effective investigations and continuing shortcomings in
domestic remedies in this respect (violations of Articles 2, 3,
5, 6, 8 and 13 ECHR and of Article 1 of Protocol No. 1 to ECHR)
. The Committee co-rapporteurs
will examine in detail the situation concerning the investigation
of cases of the above-mentioned human rights violations in the North
Caucasus and, in particular, in the Chechen Republic on the occasion
of their forthcoming visit to the country, after the visit to the
region of Mr Dick Marty, Rapporteur for the Committee on Legal Affairs
and Human Rights on “legal remedies for human rights violations
in the North Caucasus region”.
48. The issue of hazing in the Russian armed forces has been one
of the long-standing areas of attention for the Monitoring Committee
. The representatives of the Ministry
of Defence informed the co-rapporteurs during their last visit,
in March 2009 that, as a result of the move towards fully professional
armed forces, a large part of the armed forces now consists of professional
soldiers, which has purportedly reduced the problem of hazing. The
decision to have conscript soldiers serving in the reserve forces,
which are generally better trained and less prone to committing
abuse, has also contributed to combating hazing in the armed forces.
However, in contrast to the overall positive assessment given by
the Ministry of Defence, several NGOs working in this field were
of the opinion that hazing still occurs widely in the armed forces,
despite the measures taken by the authorities. A Public Council
was set up in October 2006 to provide public control over the recruitment
boards and human rights situation in the armed forces in general.
This Council consists of 51 members, none of whom are related to
the Ministry of Defence. Parent committees were also set up as an instrument
to report and address possible cases of hazing. However, their exact
functioning is not entirely clear, given the policy that recruits
serve outside the territory of the Subject of the Federation in
which they are resident.
49. In
Serbia, new mechanisms
of democratic oversight over the activities of the armed and security
forces, as well as the police, were introduced by the new Constitution
and relevant legislation. The Assembly welcomed their introduction
in its recent
Resolution
1661 (2009) . In the case of the police, for
instance, the
Director of
the Police submits reports on the activities of the Police to the
National Assembly’s Committee on Defence and Security every 6 months.
The Committee organises public discussions in the process of consideration
of such reports.
50. The conclusions of the last CPT report on
“the former Yugoslav Republic of Macedonia” are extremely
alarming
.
In particular, the CPT noted that:
“Ten
years after it first visited “the former Yugoslav Republic of Macedonia”,
the quality of the CPT’s relationship with the national authorities
remains, in many respects, profoundly unsatisfactory. Firstly, the
Committee cannot rely on the information provided to it by the national
authorities. Yet the provision of reliable information represents
the bedrock for co-operation. Secondly, no visible improvements
have been made to the situation, in the light of the CPT’s numerous recommendations.
The stark conclusion is that the national authorities do not appear
to take seriously their fundamental obligation to provide protection
for persons deprived of their liberty.” In my capacity as rapporteur
for the post-monitoring dialogue with this country, I will follow
closely this important matter.
51. In my recent information note on
Turkey,
I referred to the fourth Interim Resolution adopted last year by the
Committee of Ministers
on
the execution of the judgments of the European Court of Human Rights,
the progress made and outstanding issues regarding the Court’s 175
judgments and decisions relating to Turkey delivered between 1996
and 2008, which mainly concern deaths resulting from the excessive
use of force by members of the security forces, the failure to protect
the right to life, the disappearance and/or death of individuals,
ill-treatment and the destruction of property. During our meeting
last November, the Interior Minister reiterated the authorities’
commitment to the protection of human rights and pointed out that
there was a specialised unit within his ministry whose objective
was to promote respect for human rights in the police and gendarmerie.
He also explained that, in addition to their initial training and
the various training programmes on human rights, the members of
the security forces were given specific training on the implementation
under domestic law of the judgments of the European Court of Human
Rights.
Nonetheless,
NGO representatives reported several cases of violence committed
last year by the security forces. Amnesty International
and Human Rights
Watch
speak of many cases of
excessive use of force, ill-treatment, and torture in the prisons and
by the police
. In June 2008, parliament
amended the Law on the Rights and Duties of the Police, extending
police officers’ rights to resort to lethal force and authorising
them to fire on any suspect who ignores a warning to stop. Noting
an obvious contradiction between the government’s stated “zero tolerance”
policy aimed at the total eradication of torture and other forms
of ill-treatment, and the different testimonies given, I have urged
the national authorities to make considerable efforts to guarantee
that proper investigations are carried out into allegations of abuses
by members of the security forces and that perpetrators are effectively punished.
52. The post-monitoring dialogue between the Assembly and
Turkey also covers the issue of
the state of health of Mr Abdullah Öcalan
. The latter is being
monitored by the CPT, whose report (which contains an addendum on
the allegations of poisoning by heavy metals) was made public with
the agreement of the Turkish authorities in March 2008
. The findings
of the experts appointed by the CPT indicate that the prisoner had not
been the subject of intoxication by heavy metals. However, the CPT
clearly criticised the reclusion of Mr Öcalan and continues to co-operate
with the Turkish authorities under the European Convention for the Prevention
of Torture
.
53. In
Ukraine, torture
and other forms of ill-treatment in police custody and detention
facilities continue to be widely committed and the situation regarding
human rights in the prison system has significantly deteriorated
over the last four years
.
Reports have emerged about extremely brutal searches in the name
of preventing terror – in utter disregard for inmates’ basic human
rights. The lack of an effective complaint system and inaction by
the penitentiary administration and the central authority (State
Department on Execution of Punishments) has resulted in several
cases of mass self-inflicted mutilations of inmates and disobedience. Also,
there is practically no external control over the prison system.
This is accompanied by alleged serious financial violations in the
system and incompetent management. The Monitoring Committee has
urged the Ukrainian authorities to implement reforms in the prison
system as soon as possible and ensure respect for the human rights
of inmates. All cases of alleged violations of rights of inmates
should be investigated. Also, the May 2006 decision of the Government
to include the State Department on Execution of Punishments within
the structure of the Ministry of Justice should be implemented through
relevant changes in the law on the prison system in order to put
the prison system under the effective control and supervision of
the Ministry of Justice, in line with Ukraine’s accession commitments
. The CPT report on its ad hoc
visit to Ukraine in December 2007, which was made public on 19 May
2009 together with the Ukrainian authorities’ response, examines
the situation of foreign nationals detained under aliens legislation
and contains recommendations aimed at strengthening the safeguards
for persons detained under aliens legislation and developing specialised
training for Border Guard staff working in detention facilities
for foreign nationals
.
2.5. Freedom of expression
54. Defamation is still a criminal offence in
Albania. The Albanian Criminal
Code creates offences of defamatory expressions and “insults”. The
Civil Code lacks a proper civil defamation framework. However, for more
than two years, there have been no criminal defamation cases against
journalists. Draft laws modifying the criminal and the civil code
in this respect were approved by parliament’s Laws Committee in
February 2007, but have not yet been presented to the Assembly.
Existing legislation covering relations between journalists and
their employers is weak. The overwhelming majority of journalists
are still working without contracts. The Albanian Labour Code is
not respected in practice in the media sector
.
55. In
Armenia, freedom
of expression remains a point of concern, although limited progress
on this issue has been achieved. During the state of emergency declared
in the wake of the events on 1 and 2 March 2008, severe limitations
were placed on the freedom of the media to report and cover the
events. In addition, the dissemination of political propaganda without
the permission of the relevant state bodies was prohibited. These restrictions
were lifted on 20 March 2008. The co-rapporteurs, in their report
on the functioning of democratic institutions in Armenia of 15 April
2008, expressed their concern about the harassment by the tax authorities of
opposition electronic and print media outlets
. In its judgment in the case
of
Meltex LTD and Mesrop Movsesyan v.
Armenia, the European Court of Human Rights ruled, on
17 June 2008, that there had been a violation of Article 10 ECHR
and stated that “a licensing procedure whereby the licensing authority
does not give reasons for its decisions does not provide adequate
protection against arbitrary interferences by a public authority
with the fundamental right to freedom of expression”. Following
that decision, the Assembly called upon the authorities now to ensure
an open, fair and transparent licensing procedure. However, on 9 September
2008, the National Assembly adopted an amendment to the Law on Television
and Radio that cancels all tenders for broadcasting frequencies
until 2010, when the introduction of digital broadcasting in Armenia
will have been completed. That issue is currently under discussion
between the authorities and the relevant Council of Europe departments.
The OSCE representative for freedom of the media, as well as the Armenian
Human Rights Defender, have expressed their serious concern about
the worrying pattern of attacks against journalists by unknown assailants.
The lack of results in the police investigations of these attacks
raises fears of the establishment of a climate of impunity for such
attacks that would have serious repercussions on freedom of expression.
In a welcome development, Articles 225 and 300 of the Criminal Code,
which were considered problematic as they “failed to give clear
guidance on the dividing line between legitimate expressions of
opinion and incitement to violence”, were amended by the National
Assembly of Armenia in line with Venice Commission recommendations.
56. Defamation is still a criminal offence in
Azerbaijan. The situation of the
media has constantly deteriorated since the murder of Elmar Huseynov,
chief editor of Monitor Magazine, who was shot dead in March 2005
.
Despite the release of two journalists in April 2009
, restrictions on freedom
of expression and the harassment and intimidation of opposition
journalists through defamation proceedings, imprisonment, physical
assaults, and threats are frequently reported by human rights NGOs,
media representatives, and representatives of opposition parties
. On 6 March 2009, the Azerbaijani
parliament adopted amendments to the law on the media, regulating,
inter alia, the suspension or termination of the production or distribution
of media. The Council of Europe expert who assessed the previous
law on the media had concluded that some key provisions failed to
comply with Article 10 of the ECHR. The new amendments make the
situation even worse as they broaden the scope of these far-reaching
measures
.
57. Bosnia and Herzegovina has
an advanced legal regime governing freedom of the media. Laws decriminalising
libel and defamation have, for instance, been in force in the Republica
Srpska since June 2001 and in the Federation of Bosnia and Herzegovina
since November 2002.
58. Defamation, insult and libel are punishable in Bulgaria under Articles 146 to
148 of the Criminal Code. Recent reports of murders, physical assaults,
threats, and harassment of journalists, including investigative journalists,
raise a major problem. As rapporteur for the post-monitoring dialogue
with Bulgaria, I have asked the authorities to thoroughly investigate
cases of violence and harassment against journalists. The law provides
only for financial penalties (fines) and excludes imprisonment.
However, those convicted acquire a criminal record which can hinder
their professional life.
59. In
Georgia, the Law
on Freedom of Speech and Expression, adopted in June 2004, is widely
considered as one of the most democratic and liberal of its kind
in Europe. The Law took libel out of the criminal code and relieved
journalists of legal criminal responsibility for revealing state
secrets. There have been no reported cases of excessive fines in
the last years
. Although there is no direct
government pressure or influence since the Rose Revolution, part
of the media has proved vulnerable to behind-the-scenes pressure
from the government. NGOs and independent media analysts sometimes
accuse high-ranking government officials of exercising undue influence
over editorial and programming decisions through their personal
connections with news directors and media executives
.
This has much to do with the fact that many of today’s media owners used
to be in opposition, but with the change of government have automatically
become close to the government and other authorities. This has contributed
to a certain degree of self-censorship. Weak editorial independence,
using media outlets to promote the political interests of owners,
and low professional standards thus constitute major concerns in
the media field. The events of November 2007, when two opposition-controlled
television stations were temporarily closed by the authorities and
the subsequent declaration of a state of emergency affected the
media environment and its pluralism, with some journalists seemingly
more willing – at least temporarily – to apply self-censorship than
before
. In its
Resolution 1603 (2008), the Assembly asked the Georgian authorities to eliminate
obstruction of access to information for political or administrative
reasons and ensure the best quality of training for media professionals.
60. In the wake of the events of 7 April 2009, which followed
the parliamentary elections in
Moldova,
the Monitoring Committee received numerous reports on disproportionate
restrictions imposed on freedom of access to information and journalistic
freedom. Police were seen attacking and threatening journalists,
as well as destroying filming equipment and tapes. At least three
journalists were detained and later released. Reportedly, 20 Romanian
journalists and three Georgian TV crews travelling to report from
Chisinau were prevented from entering Moldova. At least five Romanian
journalists already reporting from Moldova were told to leave the
country after the introduction of the visa regime for Romanian nationals
on 9 April 2009. Internet access in Chisinau via the network of
the national provider Moldtelecom was interrupted on 7 April and
in the morning of 8 April, and other websites, including opposition-leaning
news sites, were temporarily inaccessible on 11 April. The report
by the Monitoring Committee condemned the above-mentioned restrictions
and violations of the freedom of the media, which are unacceptable
in a Council of Europe member state, and called on the authorities
to take all the necessary steps to eliminate the consequences of
these violations
.
61. In
Monaco, communication
by the National Council remains under the control of the Government
via its press centre, which manages broadcasts on state television,
thus limiting
de facto the
parliamentary institution’s press freedom and independence vis-à-vis
the executive
.
62. In a recent information note on their last two visits to Moscow
in April 2008 and in March 2009, the co-rapporteurs for
Russia informed the Monitoring
Committee that the general feeling of the journalists they met was
that media pluralism in Russia had declined in the past couple of
years
. Some journalists complained about
the existence of the so-called “Stop List”, which is an informal
list of persons, mostly opposition figures or persons expressing
views that do not coincide with those of the authorities, who are
barred from television news and information programmes. While the
authorities denied the existence of such a “Stop List”, we noted that
all journalists we met expressed concerns about the policy of “self-censorship”
which exists in many media outlets. Distribution of print media,
especially outside the large cities, is one of the key concerns
of the independent journalists and of the authorities. Distribution
of print media is performed, via the postal system, by some 5 private
distribution networks. The Federal authorities appear to be working
on improving the distribution of print media by extending the network
of the post offices and providing assistance to municipal governments
in the establishment of the so-called “media centres” in major cities.
At the same time, independent media outlets continue to complain
about unequal access to the distribution networks, as well as the
lack of effective possibilities to create alternative networks for
the distribution of their own production. In this context, electronic
media, especially television, are the main source of information
for the majority of people. However, most, if not all, television
broadcasters, especially those with a nation-wide outreach, are controlled
by the government or by people supported by the current authorities.
As a result, information and news programmes are considered to be
generally one-sided and plurality of views is limited in the broadcast media
. A new draft law on the media, which
is being prepared to replace the existing law adopted in 1993, provides
inter alia for a clear list of the rights of journalists and a regulatory
framework for the Internet. As media legislation reform is an area
where the Council of Europe has a wealth of expertise to contribute,
the co-rapporteurs recommended that the State Duma and the competent
governmental authorities consult the Council of Europe on the new
draft media law.
63. In
Serbia, the provisions
of the new Constitution governing freedom of expression and freedom
of the media are in line with European standards. However, despite
a protective Constitutional framework, journalists do not feel secure
in Serbia. The Monitoring Committee is concerned about the increase
of violence against journalists, especially, those engaged in investigatory
work, and strongly condemns any cases of such violence
. In its
Resolution 1661 (2009), the Assembly asked the Serbian authorities to investigate
and prosecute all cases of violence and harassment against journalists
and take positive steps to ensure their protection.
64. In
Turkey, 2008 has
reportedly been a troublesome year with regard to freedom of expression.
Amnesty International believes that freedom of expression is not
guaranteed given the various articles of the Criminal Code that
restrict it. For example, 1,300 websites are said to have been closed
down by the authorities in 2008
. The reform of Article 301
of the Criminal Code by no means lifted all the obstacles to freedom
of expression
.
65. The Committee of Ministers of the Council of Europe is currently
supervising the measures taken and envisaged by the Turkish authorities
in the execution of 82 judgments of the European Court of Human
Rights and 9 friendly settlements concerning freedom of expression.
In the judgments concerned, the applicants’ right to freedom of
expression had been violated as a result of his or her conviction
by the state security courts following the publication of articles,
drawings, or books, or the drafting of messages for public consumption.
In some other cases, the violations were due to the seizure of publications
.
The other legal provisions restricting freedom of expression, such
as Articles 215, 216, and 217 of the Turkish Criminal Code, remain
problematic insofar as they penalise breaches of public order and
are used, together with the Anti-Terrorism Act, in proceedings against
individuals who express their opinions on the Kurdish issues in
a non-violent way, with judges and prosecutors adopting a broad
interpretation of the provision on “incitement to violence” or “public interest”.
66. In
Ukraine, as the
Gongadze case has demonstrated, journalists and political opponents
are at great risk of being threatened or actually harmed. Although
three former Ministry of Interior police officers have been convicted
by the Kyiv City Court of Appeal for the brutal murder of investigative
journalist, Georgy Gongadze, on 15 March 2008, no progress has been
made in bringing to justice those individuals who are responsible
for instigating and organizing this crime
.
Welcoming the unequivocal language employed by the European Court of
Human Rights holding violations of Articles 2, 3 and 13 of the ECHR,
the Assembly, in its
Resolution
1645 (2009), stressed the importance of the timely and comprehensive
execution of this judgment, which must include carrying out, without
further delay, those investigations the authorities had failed to
perform. As long as Gongadze’s murder is not properly investigated
and those who instigated and ordered the killings are not brought
to justice, freedom of expression in Ukraine is at stake.
2.6. Freedom of assembly
and of association
67. In
Azerbaijan, the
government has taken a number of measures regulating the activities
of political parties, religious groups, legal persons and NGOs,
which led in practice to restrictions on freedom of association,
including a requirement that all organisations register either with
the Ministry of Justice or the State Committee for relations with
religious organisations. A number of NGOs have challenged registration
refusals or delays in the courts
. During
election campaigns, for the presidential elections in October 2008
and the referendum in March 2009, the opposition parties complained
that they had been systematically refused suitable places for holding
political meetings, despite appeals to the courts. Human rights
organisations denounced an increase in repression, arbitrary judicial
decisions, and violence against civil society activists during the
run-up to the referendum
.
68. The handling of the post–electoral protests in
Armenia raised concerns about the
respect of the principle of freedom of assembly
.
Controversial amendments, adopted
on 17 March 2008, to the Law on Conducting Meetings, Assemblies,
Rallies and Demonstrations, which placed undue restrictions on freedom
of assembly, were revoked, in line with Venice Commission recommendations,
following a demand by the Assembly. However, requests to organise
rallies are still often rejected on technical grounds, or undue
restrictions are placed on them, by the authorities. Regrettably,
these decisions by the authorities are often not appealed in court,
foreclosing a possibility of obtaining a decision by the European
Court of Human Rights on this issue. In
Resolution 1620 (2008), the Assembly called on the Armenian authorities to
ensure that the principle of freedom of assembly is also respected
in practice.
69. In
Bulgaria, the execution
of the judgment of the European Court of Human Rights in the case
of the
United Macedonian Organisation
Ilinden – Pirin and others is still pending. The case
concerns the dissolution of a political party aimed at achieving
“the recognition of the Macedonian minority in Bulgaria” and relates
to freedom of association of groups of people standing for such
recognition. In its judgment of 20 October 2005
, the Strasbourg Court
found that the dissolution of the
political party Umo Ilinden-Pirin in 2000 violated Article 11 of
the ECHR as nothing in the party’s programme or in the declarations
of its leaders had challenged the principles of democracy. Two re-registration
attempts by the political party – with the same name and statutes as
that unjustifiably dissolved – have failed notwithstanding the Court’s
judgment. A third one is currently under consideration. The Committee
of Ministers is following closely this particular case
.
70. In its
Resolution
1603 (2008) on
Georgia, the
Assembly deplored the events which preceded the pre-term presidential
elections in Georgia and in particular the violent dispersal of
peaceful demonstrations on 7 November 2007, the subsequent temporary
silencing of two opposition-controlled television stations and, finally,
the decision to declare a state of emergency
.
Although the escalation of the tensions was halted by the decision
to end the crisis by holding early presidential elections in January
2008, together with a plebiscite asking the people to choose the
date of the next parliamentary elections, these actions have tarnished
the reputation of the Georgian Government both in the eyes of its
own population and abroad. One year and a half later, as of 9 April
2009, opposition parties have organised a series of protest rallies
in order to force the authorities to call early parliamentary elections.
Despite publicly stated intentions from both the authorities and organisers
of the rallies that they would respect the law and constitution,
both sides also expressed their concern and fear that provocations
could take place and that the protests could escalate into violence.
In a recent information note on their fact-finding visit to Georgia
in March 2009, the co-rapporteurs expressed their concern about
reports that protesters had been attacked by unknown assailants
in the vicinity of the rally venues. They thus called upon the Georgian
authorities to fully investigate all these attacks and fully ensure the
safety of the participants in those demonstrations
.
71. In its
Resolution
1666 (2009) on
Moldova, the
Assembly deplored the fact that the peaceful protest in front of
the buildings of the presidency and the parliament which began on
6 April 2009, mainly at the initiative of young people who did not
accept the results of the elections, degenerated on 7 April 2009
into a violent attack on, and destruction of, the buildings of the
parliament and the presidency, as well as the destruction of several
public buildings. The Assembly considered that, whereas the right
to demonstrate is essential in a democracy, it is also a government’s
duty, and the duty of the authorities concerned, to ensure its citizens’
right to security when public order is disturbed. The Assembly firmly
condemned the acts of violence, which must never be used in a democratic
society as a vehicle to express political opinions. At the same
time, the Assembly disapproved the statements made by the Moldovan
authorities immediately after the outbreak of violence, in which
officials at the highest political level, without first having conducted
a thorough investigation, accused the opposition of staging the
violent protests in an attempt to organise a
coup
d’état. The Assembly insisted that an independent, transparent
and credible inquiry into the post-electoral events and into the
circumstances which led to them must be held immediately, in addition
to the independent investigation into all the aforementioned allegations
of human rights violations committed by the police
.
72. The enactment of law No 1355 on associations and federations
of associations in December 2008, enabled
Monaco to
fulfil the undertakings given at the time of its accession regarding
domestic law, as set out in
Opinion
250 (2004). The question of financial supervision of subsidised
associations not having been raised in the new law, this issue is
still outstanding, and legislative reforms should be undertaken
to ensure maximum transparency in public finances
.
73. Freedom of association in
Russia,
especially after the so-called “NGO Law”
came
into effect in April 2006, has been one of the main issues of concern
for the Monitoring Committee over the last years. Provisions in
the 2006 law require NGOs to file yearly reports on their activities
as well as on their sources of funding. Failure to do so, as well
as violating any of the strict requirements and conditions set out
in this law, can lead to closure by the authorities of the NGO in
question
. The NGO community, including the
Public Chamber, complains that the reporting process established
by law is complex and cumbersome and, compounded in many cases by
official lengthy inspections, which can paralyse the work of many
NGOs. In the first two years since the adoption of the law, approximately
6,600 NGOs have reportedly been closed by the authorities, 1,200
for violations of the law and 5,400 for alleged “inactivity”. In
addition, 11,000 new NGOs were denied registration
. In this respect, the recent ruling
by the Supreme Court that NGOs could not be liquidated on formal
grounds, e.g. for administrative errors in their reporting, has
been welcomed by the NGO community. Since the entry into force of
the 2006 amendments, there have been no cases of closure of major
NGOs, which have both the resources and knowledge to complete the
reporting process and bring a case to the court if need be. However,
medium and, especially, small scale NGOs are overwhelmed by the
reporting requirements and, therefore, could face the risk of closure.
In addition, the registration and reporting requirements are viewed
as a serious barrier for the formation of new NGOs and social movements.
74. During the last visit of the co-rapporteurs to Moscow in March
2009, the authorities themselves recognised the problems created
by the NGO law and said that, as a result, the number of inspections
had decreased over the last couple of months and far fewer NGOs
received official warnings for errors in their reports. The co-rapporteurs
stressed, for their part, that the shortcomings in the current legislation
and the concerns expressed by civil society and the international
community could not be satisfactorily addressed by changes in the
implementation procedures alone and that the legislation had to
be considerably reformed. The co-rapporteurs recommended that the
authorities should seek co-operation with the relevant Council of
Europe departments, including with the Venice Commission, to reform
the current legislation
.
In a recent welcome development, President Medvedev has just set
up a working group to draft changes to the NGO law. The working
group, composed of representatives of the presidential administration,
the Ministry of Justice, the Duma and Federation Council, and civil
society, is to submit proposals within three weeks as of 8 May.
The President’s decision, which is the first step toward bringing
the NGO law into line with international standards, followed a meeting
with the members of the Presidential Council for Civil Society Institutions
and Human Rights on 15 April, during which the President acknowledged
the difficulties faced by NGOs, including restrictions "without
sufficient justification" and the fact that many government officials
view NGOs as a threat
.
75. In addition to the effects of the NGO legislation, civil society
representatives in Russia continue to complain about interference
and, in some cases, direct harassment, by various state bodies.
For some organisations, random tax and building inspections, inspections
on the use of pirated software, criminal investigations against
NGO leaders, as well as the use of anti-extremism legislation, have
become common practice. Another issue of concern for the Monitoring
Committee relates to the mechanisms for interaction between the
authorities and civil society. The co-rapporteurs strongly support
any initiative to strengthen the dialogue between the civil society
and the authorities, but consider that such mechanisms can only
be effective if their work and decision-making are fully transparent
and their composition is a genuine reflection of the civil society
existing in Russia today. While welcoming the intention of the authorities
to establish a constructive dialogue between government and civil
society, they have recommended that the appointment and decision-making
procedures of the Public Chamber, as well as of Public Councils
– the two formal mechanisms for interaction currently available
– be changed with a view to making them fully transparent and democratic
and to ensure that their composition can be truly representative
of the wide range of NGOs existing in Russia.
76. In
Serbia, the co-operation
between the authorities and the NGO sector has substantially improved since
the establishment of the new government. In its recently adopted
Resolution 1661 (2009), the Assembly welcomed the development of new legislation
on the freedom of association in Serbia, in co-operation with the Council
of Europe. The Assembly, however, regretted that this draft law
was, once again, taken off the agenda of the parliament in December
2008. The government withdrew the draft law in order to provide
more time for the debate on the budget law, to make sure that the
latter was adopted on time for the beginning of the new financial
year. The adoption of the law on associations is one of the long-standing
commitments of Serbia which has not been fulfilled yet. The Assembly
thus called upon the Serbian authorities to enact urgently the Law
on Associations, taking into account all recommendations of the
Council of Europe experts.
77. In
Turkey, the restrictions
on freedom of association mainly relate to political parties. The
country is notorious for the many dissolutions of political parties,
the most recent instances being the attempt to dissolve the ruling
AKP party in 2008 and the political crisis that ensued, as well
as the on-going proceedings for the closure of the DTP party (pro-Kurdish)
. The last year
crisis gave rise to an Assembly debate under urgent procedure on
“the functioning of democratic institutions in Turkey: recent developments”
during the June 2008 part-session and led to the adoption of Resolution
1622, on the basis of a report prepared by the Monitoring Committee
.
The Committee recalled that in almost all the cases concerning the
dissolution of political parties by the Constitutional Court between
1991 and 1997, the European Court of Human Rights had concluded
that the sanction was disproportionate and was thus a violation
of the right to freedom of association enshrined in Article 11 of
the ECHR. Although the 1995 and 2001 constitutional reforms and
the 2003 amendments to the Political Parties Act had strengthened
the requirement of proportionality for any state interference in
the freedom of association enjoyed by political parties and an amendment
to Article 90 of the Constitution in 2004 had provided that international
human rights treaties take precedence over any incompatible domestic legislation,
the recent cases involving the closing down of the AKP and the DTP
illustrated the fact that the legislation currently in force does
not provide politicians with sufficient protection against state
interference in their freedom of association and expression. In
its
Resolution 1622 (2008), the Assembly asked the Monitoring Committee to intensify
its post-monitoring dialogue with Turkey, closely follow the development
of the democratic functioning of its state institutions and, in
particular, the constitutional drafting process, and if necessary
seriously consider the possibility of re-opening the monitoring
procedure for Turkey.
78. In the Opinion adopted upon the request of the Monitoring
Committee in March 2009 on the relevant constitutional and legal
provisions concerning the banning of political parties in Turkey,
the Venice Commission
held that the provisions
in Article 68 and 69 of the Constitution and the relevant provisions
of the Political Parties Act together form a system that as a whole
is incompatible with Article 11 ECHR, as interpreted by the European
Court of Human Rights, and with the criteria adopted in 1999 by
the Venice Commission and since endorsed by the Parliamentary Assembly.
Further reform is necessary in order to raise the general level
of party protection in Turkey to that of the Convention and the
common European democratic standards, both on the substantive and
the procedural side. Any reform to the Turkish rules on party closure will
require constitutional amendment. I have urged the Turkish authorities
to carry out a serious in-depth revision of the Constitution and
the legislation on the political parties in order to bring the provisions
in line with European standards, as repeatedly recommended by the
Assembly
.
79. As regards the Law on Foundations, amendments passed in February
2008 were a step forward in improving the statutory framework aimed
at guaranteeing freedom of association and religion. The scope of the
new law extends to all existing foundations, including those of
the non-Muslim communities. Representatives of the various communities
organised as foundations I met during my visit in November 2008 supported
this law and said they were satisfied with it, stressing at the
same time that the true test of the progress represented by this
law remains its implementation by the various authorities concerned
and its interpretation by the courts
.
80. In
Ukraine, despite
its accession commitment to enhance protection through a law governing
peaceful assemblies, no progress has been made in this area. Troubling
reports have emerged on systematic abuse of this freedom in 2008.
2.7. Freedom of religion
and of conscience
81. Albania continues
to provide a valuable example of religious harmony in the region.
However, religious communities remain adversely affected by the
authorities’ failure to provide for full restitution of properties
and other belongings
.
82. In
Armenia, the National
Assembly has prepared a draft law on amendments to the law on freedom
of conscience and on religious organisations, as well as to related
articles in the Criminal Code. In its draft opinion, the Venice
Commission stated that some amendments constitute improvements as
regards the provision and the range of human rights guarantees in
the law. However, it also expressed its concern about a number of proposed
changes, notably with respect to the scope of freedom of conscience,
religion or belief, the requirements for registration of religious
organisations, as well as the definition of the offence of
proselytism . In
Resolution 1532 (2007), the Assembly considered that the current law on alternative
service still does not offer conscientious objectors any guarantee
of “genuine alternative service of a clearly civilian nature, which should
be neither deterrent nor punitive in character”.
83. The establishment of an alternative civilian service is one
of the obligations undertaken by
Azerbaijan when
it joined the Council of Europe in 2001. The National Action Plan
for the protection of human rights, which envisages the preparation
of a draft law on alternative service by a task force including
Council of Europe experts, has still not resulted in the introduction
of legislation on a civilian alternative to military service
.
84. In their recent information note of March 2009
, the co-rapporteurs for
Russia informed the Monitoring Committee
about several reports, notably from the Jehovah’s Witnesses, about
the abusive use of administrative and fiscal inspections against
the Central office of the Organisation and its regional branches. They
also informed the committee that, in some regions, the Procuratura
initiated cases against regional branches of Jehovah’s Witnesses
on the grounds that the literature they disseminate could be considered
of “extremist character”, on the basis of the law on countering
extremist activities. Moreover, the issue of alternative service
in Russia has been one of the long-standing areas of attention for
the Monitoring Committee. It is the stated intention of the Russian
authorities, in the long term, to transform the armed forces into
a fully professional service and to abolish conscription. Following
the reduction in 2007 of the length of service from 24 months to
12 months for recruits drafted after 1 January 2008, the length
of alternative service was changed from 42 months to 21 months for
those recruited after 1 January 2008 (and from 36 to 18 months for
those who perform civil functions in the armed forces as alternative
service). The co-rapporteurs consider that the disproportionate
difference in duration between military service and alternative
service in Russia makes the latter clearly a less attractive alternative.
This seems to be confirmed by the statistics given to us, which
indicate that, in the first 3 months of 2008, only 439 requests
were made for alternative service of which 400 were granted
.
85. In
Serbia, the Law
on Churches and Religious Communities and its implementation do
not allow all religious communities living in Serbia to enjoy fully
their right to freedom of thought, conscience and religion enshrined
in Article 9 of the ECHR
.
86. The issues related to the freedom of religion and the rights
of non-Muslim minorities in
Turkey have
been dealt with in the report Mr Michel Hunault has prepared for
the Assembly’s Committee on Legal Affairs and Human Rights
. For my part, as rapporteur
for the post-monitoring dialogue with Turkey, I met members of the
religious minorities in Turkey who said they were free to exercise
their religion but emphasised the problem that they do not have
legal personality and that this has direct consequences in terms
of property rights and asset management
.
In my interview with him, His Holiness the Ecumenical Patriarch
Bartholomew I, also mentioned the difficulties encountered, particularly
with respect to his “Ecumenical” title and the field of education,
as regards the issue of the closure of the Greek Orthodox theological
college in Heybeliada (Halki seminary)
.
Therefore, upon my proposal, the Monitoring Committee asked the
Venice Commission to assess the compatibility with European standards
of the lack of recognition of legal personality for the religious communities
in Turkey and examine, in this context, the question of the right
of the Greek Orthodox Patriarchate of Istanbul to use the adjective
“Ecumenical”. I also met the President of the Alevi-Bektashi Foundation.
Alevism, as one of the branches of Islam, is the second most important
religious belief in Turkey after Sunnism, and has between 15 and
20 million believers, equivalent to a third of the Turkish population.
As the Alevis do not recognise mosques as places of worship or the
Five Pillars of Sunni Islam, they are calling for recognition of
their faith and, especially, the abolition of compulsory (Sunni)
religion classes, the abolition of the Religious Affairs Directorate,
which functions as the state’s religious body even though the state
is constitutionally secular, and the statutory recognition of their
place of worship, the “Cem houses”. They have also asked the authorities
to allow them to turn a hotel in Sivas, where 33 Alevis died in
a tragic arson attack in 1993, into a museum
.
87. Moreover, the obligation of the Turkish authorities to “[…]
recognise the right of conscientious objection and establish an
alternative civilian service” is one of the 12 issues which fall
within the scope of the post-monitoring dialogue between Turkey
and the Assembly in accordance with Resolution 1380 (2004). Regrettably,
the legislation in this area has not yet been amended to this effect.
In a recent case,
Ülke v. Turkey , the Court concluded that the many convictions
and prison sentences imposed on the applicant for refusing to do
his military service constituted degrading treatment in violation
of Article 3 of the ECHR. The Court held that the existing legal
framework was insufficient as Turkish law contained no specific
provision regulating the sanctions provided for in the case of individuals
who refuse to do their military service on grounds of conscience
or religion and that the only rule applicable in this area seemed
to be the rules of the Military Criminal Code that provide for punishments
in general terms for disobeying the orders of a superior. In its Interim
Resolution CM/ResDH(2007)109
, the Committee of
Ministers urged the Turkish authorities to take without further
delay all necessary measures to put an end to the violation of the
applicant’s rights under the ECHR and to adopt rapidly the legislative
reform necessary to prevent similar violations of the Convention.
It also called on the Turkish authorities rapidly to provide the
Committee with information concerning the adoption of the measures
required by the judgment. On 19 March 2009, the Committee of Ministers
adopted a second Interim Resolution on the
Ülke
v. Turkey case (Interim Resolution CM/ResDH(2009)45).
It is worth noting that, by virtue of Article 90 of the Turkish
Constitution, the ECHR takes precedence over Turkish law. However, despite
this legal provision the applicant continues to be imprisoned on
the basis of a previous conviction. Moreover, conscientious objectors
continue to be prosecuted and frequent allegations of their ill-treatment
in prison are reported. Furthermore, public statements calling for
the right to conscientious objection have led to convictions. The
authorities have confirmed that a reform of the Military Criminal
Code and the law on military service is under consideration in the
Grand National Assembly. According to the Interior Minister, Mr
Atalay, the reform will amend the law on citizenship. Turkish citizens
living abroad who do not perform their military service would no
longer have their citizenship removed. According to Mr Atalay, the
idea of a professional military service is also being considered
but such reforms require a change in mentalities and take a great
deal of time
.
88. In
Ukraine, enhancing
the legislation on religious organisations and freedom of religion
was one of the accession commitments. In 2006 the Ministry of Justice
started drafting new wording of the relevant law. The draft law
was examined by the Venice Commission but the process has stalled
since then
.
2.8. Property rights
89. In Albania,
registration and restitution of property confiscated during the
communist regime is one of the problems still awaiting a solution
in compliance with the constitutional guarantee of the right to
property. According to the director of the Agency for the Return
and Compensation of Property, the combined 2007-08 budget allocated
by the government for property compensation was approximately $11
million. The total cost for the compensation of owners across the
country was estimated at $3.5 billion. After the judgment of the European
Court of Human Rights in the case Beshiri
and others v. Albania, in which the Albanian government was
found in violation of Article 6 of the ECHR for taking an excessive
time (more than 5 years) to execute the final decision of the national
court on the financial compensation of the applicant, an Intergovernmental Committee
has been set up, but it is not yet clear what steps the Albanian
government will take to speed up the process.
90. In its
Resolution
1626 on
Bosnia and Herzegovina,
the Assembly asked the authorities of Bosnia and Herzegovina to
urgently find an appropriate and country-wide solution to the problem
of repayment of the funds from citizens’ foreign currency saving
accounts which were frozen after the dissolution of the Federal
Republic of Yugoslavia. Around 500 applicants have complained before
the European Court of Human Rights because they cannot withdraw
their "old" foreign-currency savings. For those who have obtained
a final domestic judgment ordering a bank to release their savings,
the leading case is the
Jeličić judgment
of 31 October 2006 (the first judgment of the Court against Bosnia
and Herzegovina); for those “old” foreign-currency savers who have
not obtained a final domestic judgment, the leading case is Suljagić,
declared admissible on 20 June 2006.
2.9. Protection of vulnerable
groups and action against trafficking in human beings
2.9.1. Refugees, internally
displaced persons (IDPs) and asylum seekers
91. The return of over a million refugees and IDPs to
Bosnia and Herzegovina, of which
some 450 000 so-called minority returns, has often been hailed as
one of the major successes of the Dayton Peace Agreement. The reality,
however, looks slightly different. Accurate figures on refugee returns
to Bosnia and Herzegovina are not often available, especially since
local authorities are sometimes misrepresenting or inflating the numbers
in order to attract additional subsidies. More than 10 years after
the war, although laws restoring property to pre-war owners, occupants,
and tenants have been enforced and repossession claims resolved, the
number of returnees to the Republica Srpska is still very low. The
vast majority of those who have returned are elderly and retired,
and many of these receive pensions or entitlements for the disabled
or for war veterans from the country’s other entity, the Federation
of Bosnia and Herzegovina. In the Republica Srpska, so-called “occasional
returns” appear more common than lasting, sustainable returns. To
support sustainable returns further, the Monitoring Committee has
invited the authorities to intensify efforts aiming at reconstructing
the utility infrastructure in areas destroyed by the war as well
as providing employment opportunities to the returnees (see
Doc. 11700).
92. In its
Resolution
1603 (2008) on the regular monitoring of
Georgia,
adopted in January 2008 prior to the outbreak of the war between
Georgia and Russia, the Assembly deplored that the hundreds of thousands
of refugees and IDPs from Abkhazia, victims of the ethnic cleansing
in the early 1990s, were still deprived of the possibility of returning
safely to their homes. The Assembly called upon the de facto authorities
to provide secure conditions for the return of IDPs and to respect
the inalienability of property rights in the conflict zones, in
accordance with the recent resolution of the UN Security Council.
The Assembly further called on the Georgian authorities to do their
utmost to alleviate the difficult social conditions of the IDPs,
integrate them within the mainstream Georgian society without prejudice
to their right to return, and ensure the equal rights of IDPs.
93. With the outbreak of the war in August 2008, the issue of
refugees and IDPs from South Ossetia and Abkhazia has been at the
core of the main Assembly concerns. In parallel to specific opinions
or reports prepared by the Committee on Migration, Refugees and
Population,
the Monitoring Committee has paid particular
attention to fact that some 192 000 persons were displaced as a
consequence of the war. In its
Resolution 1633 (2008) on the consequences of the war between Georgia and Russia,
the Assembly expressed its concern that a total of 31 000 displaced
persons (25 000 from South Ossetia and 6 000 from Abkhazia) were
considered to be “permanently” unable to return to their original
places of residence. The Assembly called on all parties to the conflict,
namely Georgia, Russia, and the de facto authorities in South Ossetia,
to ensure that all persons displaced by the conflict have the right
to return on a fully voluntary basis and to refrain from using displaced
persons as political pawns when tackling the issue of return, as
well as to ensure that all IDPs have the right to return in safety
and dignity, or to resettle voluntarily or integrate locally
. In
its Resolution 1647 (2008) on the implementation of Resolution 1633,
the Assembly, on the basis of a report by its Monitoring Committee,
reiterated its call upon Russia and the de facto authorities to
fully ensure the right of return of all IDPs to the areas under
their effective control.
94. As regards the question of
repatriation
of the Meskhetian population in Georgia, the Law on Repatriation of
Persons Forcefully Sent into Exile from Georgia by the former Soviet
Union in the 1940s was adopted in July 2007, with a view to ensuring
fulfilment of the relevant accession commitment, which required
that the repatriation process should be completed by 2011. The content
of the draft law as adopted has been widely criticised
. With many of
the issues worded in an ambiguous way or not touched upon at all,
the adopted law will need to undergo further revision in the future
so that the deadline of 2011 for the completion of repatriation be
met. In its
Resolution
1603 (2008), the Assembly asked the Georgian authorities to pursue
the work of the state commission on repatriation, seek actively
international assistance, create conditions for the repatriation process
with a view to its completion by 2011 and implement fully the recommendations
set forth in Assembly
Resolution
1428 (2005) on the situation of the deported Meskhetian population.
95. The Monitoring Committee is closely following the situation
of refugees and IDPs in
Serbia.
In its recent report (
Doc.
11701), the Committee has noted that, during 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, and they
are faced with many obstacles in the full enjoyment of their basic
rights as citizens. In its
Resolution
1661 (2009), the Assembly asked the Serbian authorities to continue
working to ensure permanent, safe and sustainable return of refugees
and displaced persons, where possible, and spare no efforts to find
durable solutions for those who decide to stay in Serbia.
96. In its
Resolution
1661 (2009), the Assembly asked the Serbian authorities to sign
and ratify the European Convention on Nationality (ETS No. 166)
and the Council of Europe Convention on the Avoidance of Statelessness
in Relation to State Succession (CETS No. 200). Although no official
data is available, the UN High Commissioner for Refugees (UNHCR)
estimates that there are about 17,000 stateless persons living in Serbia.
Complicated, long and sometimes unsuccessful administrative procedures
for civil registration and residence registration is an issue of
concern especially as full access to civil, political, social and
economic rights is possible only for citizens holding a valid ID
card (
lična karta) and who
have thus undergone civil registration and registered an officially
recognised residence. This problem is particularly serious for the
IDPs who, for this purpose, need personal documents that must be
extracted from registry books. These may have been destroyed or
gone missing or been relocated in one of the seven municipalities
in Southern or Central Serbia
.
97. In
Turkey, the obligation
of the authorities to “[…] lift the geographical reservation to
the 1951 Geneva Convention relating to the Status of Refugees and
implement the recommendations of the Council of Europe Commissioner
for Human Rights on the treatment of refugees and asylum seekers”
is one of the 12 issues that are covered by the post-monitoring
dialogue with the Assembly in accordance with
Resolution 1380 (2004). This geographical reservation excludes non-European
citizens from the scope of the Geneva Convention
. Despite
the excellent co-operation between the UNHCR and the Turkish government,
there are several issues of concern in this field. The Turkish authorities
have introduced a new procedure for allowing access to persons in
detention pending the consideration of their asylum applications.
The UNHCR is not permitted access to people who wish to make such
an application or who are trying to leave Turkey illegally. The
majority of these individuals are said to be held in prolonged detention
in Edirne, Kirklareli or Kumkapi. The absence of a host country
agreement between Turkey and the UNHCR, the lack of co-ordination
in the organisation of assistance, the vexed question of the Iranian
refugees and the necessary lifting of the geographical reservation
to the 1951 Geneva Convention are at the heart of the co-operation
between the UNHCR and the Turkish government
.
98. In
Ukraine, many sources,
including the UNHCR, have documented alarming practices regarding
the removal of refugees and asylum seekers in 2008
. Ukraine
continues to deny asylum seekers protection and frequently refuses
to grant refugee status on the basis of procedural grounds
.
As the UNHCR has warned, refugees or asylum seekers may not have
access to a fair and efficient refugee status determination procedure or
not be treated according to international standards governing refugees.
Responding to Ukraine’s fifth periodic report, the UN Committee
against Torture expressed concern at the fact that Ukraine’s indiscriminate return-policy
included countries where, upon return, people may be in danger of
being subjected to torture
. The UNHCR has proposed
amendments to the draft Law on Refugees, which would enhance complementary and
temporary forms of protection, and address existing gaps in the
current legislation
. If the Ukrainian government
approves the draft legislation for free legal aid, the UNHCR estimates
that it may come into effect in 2010.
2.9.2. Children
99. In
Albania,
child labour, low school attendance and domestic violence against
children continue to be issues of serious concern. In April 2008,
parliament voted amendments to the Penal Code to protect children from
physical or psychological abuse. The provisions also include the
prohibition of using children for the production of pornographic
materials and forcing them to work or beg. Education in Albania
is free and compulsory between the ages of 6 -14 years, and is free
up to the age of 18. However, according to most recent statistics,
although there appears to be a trend of increasing enrolment throughout
all levels of education, attendance rates remain low, particularly
for children living in poverty
.
Many children reportedly leave school early and engage in child
labour. Although Albanian legislation reflects international norms
for the minimum working age, these laws seem to have little practical
impact in the minds of those employing children in Albania – particularly
in relation to agricultural work and begging. Registration of all
children immediately after birth has yet to be achieved. The problem
appears greatest among those living in poverty.
100. The government is addressing the issue of domestic violence
against children with specialised training for police officers and
the reorganisation of regional police directorates establishing
separate units for the protection of minors and dealing with domestic
violence. Regional police directorates have been provided with psychologists
supporting the work of these units.
101. In 2003, Armenia adopted
a 10 year National Plan of Action for Protection of Children’s Rights,
which is an integral part of the Poverty Reduction Strategy Paper.
102. In Bosnia and Herzegovina,
although there seems to be no case in which the registration of
a Roma child has been denied, the government has not so far taken
an active approach to ensure that Roma children are registered.
The Monitoring Committee has thus called on the authorities of Bosnia
and Herzegovina to adopt a pro-active policy towards registration
of Roma children by launching awareness raising campaigns with the
Roma population and the municipal authorities responsible for registration.
103. In Serbia, the decision
of the Ministry of Education of Serbia to provide every child with
elementary education, irrespective of whether he or she has a citizenship
certificate, has been commended by the Monitoring Committee.
2.9.3. Trafficking in
human beings
104. Trafficking in human beings has been an issue of
major concern with respect to
Albania.
Once a major source and transit country for trafficking in human
beings, Albania has undertaken significant efforts in recent years
to fight this crime more effectively. It has created a legislative
and operational framework covering the areas of investigation and
prosecution, protection and prevention. Albania has ratified the
Council of Europe Convention on Action against Trafficking in Human
Beings and its Penal Code criminalises trafficking in human beings.
Trafficking in children and women can carry penalties of up to 20
and 15 years of imprisonment respectively. Cross-border co-operation
with neighbouring countries has improved with the signing of a number of
bilateral agreements, mainly in the fields of law enforcement and
border control, including a bilateral abolition of child trafficking
agreement with Greece. However, generally, the government’s efforts
to protect and reintegrate victims of trafficking remain modest
and Albania is still a transit country of women trafficking
.
105. In
Ukraine, although
the Cabinet of Ministers adopted the National Anti-Trafficking in
Persons Programme, it appears that the Programme lacks sufficient
performance indicators and is underfunded
. According to the US Department’s
Trafficking in Persons Report, despite the existence of widespread
reports of trafficking-related corruption, “the government of Ukraine
does not fully comply with the minimum standards for the elimination
of trafficking”, important shortcomings being Ukraine’s failure
to adequately investigate, prosecute, and convict traffickers, notably
government officials, who are frequently complicit in trafficking
.
2.10. Non-discrimination
and promotion of equality
106. In Albania,
the equal rights of all citizens are guaranteed by the Constitution.
However, direct and indirect discrimination against women remains
a persistent problem. The Law on Gender Equality in Society, adopted
in April 2008, requires inter alia that at least 30% of appointed
positions are allocated to the under-represented gender and 30%
of all candidates in general and local elections are from the under-represented gender.
Albania is essentially a patriarchal society with a history of silence
regarding violence against women. The Law on Measures against Violence
in Family Relations, which entered into force on 1 June 2007, provides the
first firm protection mechanism for victims of domestic violence.
The law includes protection measures and penalties for breaches
of protection orders and encourages victims to report domestic violence.
However, it does not make domestic violence a specific offence.
107. A draft anti-discrimination law has been submitted to the
Albanian parliament. Its provisions address inter alia equal opportunities
for all, irrespective of sexual orientation. If adopted and properly
implemented, the new law should bring an end to the reported continuing
arbitrary arrests and police abuse of homosexuals
. It would
ensure compliance with the Assembly’s recommendation to “counter
all forms of discrimination”
. Although
the Ombudsman is entitled to consider complaints about discrimination
or mistreatment by state authorities including the police, there
is no opportunity to complain against sexual discrimination in employment.
108. In
Bosnia and Herzegovina, the
so-called “Others” should be given an effective opportunity to participate
fully in political life by running in the election for members of
the presidency and participating in the designation of delegates
to the House of Peoples. In its
Resolution 1626 (2008), the Assembly asked the BiH authorities to ensure, in
parallel with the implementation of Annex VII of the Dayton Peace
Agreement and of the decision of the Constitutional Court of Bosnia
and Herzegovina on the constituent status of peoples, that
all citizens of Bosnia and Herzegovina
have equal access to government structures at all levels.
109. In its
Resolution
1626 (2008)on
Bosnia and Herzegovina, the Assembly
condemned the discrimination and violence against lesbian, gay,
bisexual and transgender (LGBT) people and the attacks against organisers and
participants of the Sarajevo Queer Festival and journalists (see
also
Doc. 11700). The Assembly also asked the authorities of Bosnia
and Herzegovina to ensure the protection of LGBT people as well
as others who are promoting their rights and; and promptly and thoroughly
investigate any attacks against them and bring those responsible
to justice.
110. “Ethnic segregation” in primary and secondary schools continues
to be a matter of concern in
Bosnia and
Herzegovina. Over the past twelve years, the fact that
young Bosniac, Croat, and Serb students have largely sat – and continue
to sit – in classrooms populated by members of the same ethnic group,
has helped separate the three so-called constituent peoples from
one another, instead of promoting post-conflict reconciliation.
At present, there are three distinct school curricula in Bosnia
and Herzegovina. This supports and codifies ethnic segregation.
The development of a common core curriculum for all schools, which
would be complemented by a set of culturally specific subjects,
could be a solution to the problem. In this respect, in
Resolution 1626 (2008), the Assembly called upon the authorities of Bosnia
and Herzegovina to put an end to the practice of “ethnic segregation”
in primary and secondary schools as a matter of urgency and fully implement
the 2003 primary and secondary education reform.
111. In Moldova, the prohibition
on people holding multiple citizenship from exercising high public
functions, including becoming members of parliament, is a matter
of serious concern for the Monitoring Committee. According to Article
75, paragraph 3, of the Electoral Code, a person may stand as a
candidate with multiple citizenship, provided that, if elected,
he/she denounces citizenships other than Moldovan. 22 persons elected to
parliament during the last elections hold multiple citizenship and
are thus directly concerned by this ban. In the case of Tanase and Chirtoaca v. Moldova (Judgment
of 18 November 2008, application No 7/08), the ECHR found such a
requirement contrary to Article 3 of the Additional Protocol to
the European Convention of Human Rights (ECHR), as well as to the
European Convention on Nationality, which Moldova ratified on 30 November
1999. An appeal by the Moldovan authorities is now pending before
the Grand Chamber. In its Resolution 1666 (2009), the Assembly urged
the Moldovan authorities to suspend the application of the articles of
the Electoral Code prohibiting people holding multiple citizenship
from exercising high public functions, while awaiting the judgment
of the Grand Chamber of the Court in the above-mentioned case.
112. Monaco has still not
ratified Protocol 12 to the ECHR (the latter containing a general
non-discrimination clause), contrary to the undertaking given at
the time of accession, as set out in
Opinion No. 250 (2004). The authorities base their argument on the country’s
specific circumstances, given that the indigenous population is
outnumbered by foreign nationals living and/or working there. Despite
a law on the statement of grounds for administrative decisions,
enacted in accordance with the undertakings given at the time of
accession, Monegasque nationality is still granted by the Sovereign
Prince alone and applicants are not informed of the reasons for
a refusal. The Principality still has to adopt anti-discrimination
measures in the field of civil and administrative law. Safeguards
are also required with regard to the preferential rules applying
to Monegasques, among others, in the employment sector. This will
serve to protect workers who do not benefit from such rules against
any discrimination in the application of the system
.
113. In Monaco, draft legislation tabled by a group of members
of parliament from the majority was approved by the National Council
on 28 April 2008 and included measures to offer protection from,
and establish penalties for, domestic violence between couples,
whether or not married or of different sexes. The bill inserted a
part V entitled “unmarried cohabitation” and a new Article 196-1
into Book 1 of the Monegasque Civil Code, worded as follows: “Unmarried
cohabitation consists in a
de facto union,
characterised by a shared life of a stable and continuing nature
between two persons of different sex living as a couple.” After
examining this proposed wording, the committee on the rights of
women and the family considered it necessary to delete the words
“of different sex” to avoid any discrimination based on sexual orientation.
After a stormy debate the proposal, as amended, was approved by
the National Council, against the advice of the Minister of State.
The co-rapporteurs were shocked to discover that in the course of
this debate in the National Council, homophobic views were held
by senior public authorities
.
114. In
Serbia, the adoption
of the anti-discrimination law in March 2009 was welcomed by the
Assembly in its
Resolution
1661 (2009). However, regrettably, the discussion on this law was
marked by the strong opposition to its adoption by the religious
communities. Reportedly, the leaders of the religious communities objected
to the provisions of this law which concern the freedom of religion
and the prohibition of discrimination on the grounds of gender identity
and sexual orientation. While welcoming the fact that the authorities
resisted the pressure from the religious communities and adopted
the law, without any substantial changes, the Monitoring Committee
is concerned by the fact that the issues of freedom of religion,
gender identity and sexual orientation continue to be a factor of
division in Serbian society, as the opposition parties proposed
some 450 amendments to the draft law during the parliamentary procedure.
The Committee is also concerned by the fact that LGBT activists
in Serbia often experience harassment, intimidation, threats and
violence. Although the authorities have always condemned violence
against LGBT persons, it is believed that the law enforcement agencies
and the courts are reluctant to deal with these cases and only a
few perpetrators of attacks have actually been brought to justice
and punished. In the view of LGBT organisations, a general law on
gender equality needs to be adopted.
115. In its
Resolution
1661 (2009) on Serbia, the Assembly, on the basis of the report
of the Monitoring Committee (
Doc.
11701 and Addendum), asked the Serbian authorities to develop
a comprehensive anti-discrimination policy to eliminate all forms
of discrimination, including against sexual minorities. It also
asked the Serbian authorities to investigate and prosecute all cases
of violence and harassment against all human rights activists –
including those dealing with the rights of the LGTB population –
and take positive steps to ensure their protection.
116. In
Ukraine, discrimination
in employment is an issue which adversely affects women. Despite
the fact that Ukraine has adopted legislation to ensure gender equality
in employment, including the Law on Equal Rights and Opportunities
for Men and Women and amendments to the Labor Code prohibiting gender discrimination
in employment and pay, in practice, women are discriminated upon
both in the private and public sectors. As a result, women are frequently
forced to accept low-paying jobs in the unregulated informal economy
. Current legislation does
not adequately address domestic violence against women. Amendments to
a new draft law with a view to improving the legislation of Ukraine
to counteract violence in the family were discussed in the Verkovna
Rada and further changes were recommended. According to Amnesty
International, the proposed amendments to the Law on the Prevention
of Violence in the Family and other relevant articles of the Administrative
Code, although an improvement, do not ensure adequate short- and
long-term alternative housing for victims of domestic violence.
Regrettably, no progress has been made as of yet on this issue.
2.11. Protection of minorities
and the fight against racism and intolerance
117. A climate of respect and tolerance generally prevails
regarding minority groups in
Albania.
Today, Albania recognises three national minorities (Greek, Macedonian
and Serbian-Montenegrin) and two ethno-linguistic minorities (Aromanian
and Roma). Albania has made efforts to enhance the implementation
of the Framework Convention on the protection of national minorities
since the adoption of the first Opinion of the Advisory Committee
.
The latter notes that affording Bosniacs protection as a national
minority covered under the Framework Convention would allow their
specific needs to be met
. Representatives
of the Greek minority in Vlora, whom the co-rapporteurs met during
their visit to the country, confirmed the climate of tolerance in
which they live. However, the legal guarantees regarding the use
of minority languages with administrative authorities and place
names were not sufficiently clear. Further action is required to
overcome problems faced in providing education in minority languages.
Albania has not signed the European Charter for Regional and Minority
Languages (ETS n° 148), arguing that it cannot yet afford the relevant
expenditure. This remains the only Council of Europe convention
mentioned in the accession Opinion on Albania, which has neither
been signed nor ratified, despite repeated calls by the Assembly
to do so.
118. Albania has been participating in the 2005-2015 Decade of
Roma Inclusion since July 2008.
The National Strategy for the Improvement of the Roma Living Conditions
is being implemented. Dialogue with the Roma community needs improvement.
A number of Roma are still not included in the civil registry and
continue to face obstacles in their access to employment, education,
and housing
. The Roma minority
still faces poverty, discrimination, extremely high illiteracy rates,
and very difficult living conditions. Less than half of all Roma
children go to primary school, and only about 25% complete primary
education. The Roma population’s very low level of education and
professional qualifications limit access to the formal labour market,
which exacerbates poverty. The Roma often work in informal sectors,
and begging is widespread among women and children. Many Roma families
are not registered with the authorities. This excludes them from
social assistance, impedes access to basic services, including education
and health, and increases the risk of human trafficking.
119. In
Azerbaijan, the
law on national minorities has not yet been adopted and the European
Charter for Regional or Minority Languages (ETS No. 148) has not
been ratified, contrary to Azerbaijan’s accession commitments
.
120. In
Bosnia and Herzegovina,
the Roma are the largest and most marginalised minority group. The Monitoring
Committee shares the concerns expressed by international organisations
involved in work with the Roma community
, including the Council of Europe,
about the fact that the National Strategy for Roma contains little
or no reference to specific actions, responsible authorities, deadlines
or budgetary implications. The Committee has thus called upon the
authorities of Bosnia and Herzegovina to develop a comprehensive Action
Plan on the implementation of the Strategy. Four Action Plans were
adopted in 2008. One of the most burning problems affecting the
Roma is the lack of personal documents. This lack creates additional
problems in the exercise of property rights for many Roma who reside
in informal settlements, since it prevents them from seeking the
residency status that may help them legalise their titles to property.
One of the primary reasons for the inability of Roma to gain access
to personal documents is that their names do not appear in birth
registers. People without birth certificates in Bosnia and Herzegovina
are unable to gain access to education, healthcare and social welfare.
They are also unable to participate in civic life.
121. The increase in nationalist and ethnic rhetoric in
Bosnia and Herzegovina, especially
in the context of the campaign for the October 2008 local elections
and in the wake of the adoption by the Kosovo Assembly of the unilateral
declaration of independence, has been an issue of concern for the
Assembly. In its
Resolution 1626
(2008), the Assembly strongly urged all political stakeholders
to refrain from statements and actions constituting an incitement
to secession or calling the existence of the state based on entities
into question. For the Assembly, the Kosovo case cannot be used
as a precedent (see also
Doc.
11700).
122. Bosnia and Herzegovina has yet to ratify the European Charter
for Regional or Minority Languages (ETS No. 148) in accordance with
the commitment taken upon accession.
123. In
Bulgaria, all citizens
are equal before the law under the Constitution, irrespective of
ethnic, religious and linguistic status. A Protection from Discrimination
Act is in force and a Commission for Protection from Discrimination
has been functioning since 2005. The overall minority situation
in the country is generally fairly satisfactory. Historically, ethnic
Turks and the Roma were the two biggest groups subjected to discrimination. Since
the 1990s, however, the situation of ethnic Turks has considerably
improved and the Movement for Rights and Freedoms, a political party
composed mostly of ethnic Turks, has now been in two consecutive government
coalitions
.
The Roma situation, on the contrary, continues to be of concern,
in particular as regards cases of police violence against the Roma
. The Bulgarian authorities tend to be
reluctant to recognise the distinct ethnic identity of the approximately
5,000 Macedonians living in Bulgaria. There have been reports of
occasional infringements of the freedom of peaceful assembly and
freedom of association of this ethnic group
. In its
Resolution on the implementation of the Framework Convention for
the Protection of National Minorities by Bulgaria
, the Committee
of Ministers concluded that “additional efforts are expected from
the State as regards teaching of and in the languages of persons
belonging to minorities as well as in order to promote knowledge
of the culture and identity of minorities and foster intercultural
dialogue and tolerance through education”.
124. Bulgaria has neither
signed nor ratified the European Charter for Regional and Minority
Languages. This question was raised with the national authorities
but answers remained vague or evasive. I therefore have to ask the
Bulgarian delegation to provide me with more information on the
obstacles that impede the signing and ratification of the above-mentioned
Council of Europe Charter.
125. In its
Resolution
1603 (2008) on
Georgia, the
Assembly commended the ratification of the Framework Convention
for the Protection of National Minorities (ETS No. 157), but regretted
that the procedure for signing and ratifying the European Charter
for Regional or Minority Languages had not progressed so far. During
his visit to Armenia in July 2008, the President of the Assembly
received complaints about the situation of the Armenian minority
in Georgia. The co-rapporteurs for Georgia will report on this issue
in their next regular monitoring report on Georgia.
126. Monaco has taken a
number of measures to combat racism and intolerance, including the
ratification of a large number of international legal instruments,
one of which is the ECHR. Monaco has also made a declaration recognising
the competence of the Committee for the Elimination of Racial Discrimination
to examine complaints alleging violations of the rights set out
in the International Convention on the Elimination of All Forms
of Racial Discrimination. The Monegasque authorities have further
enacted a law on freedom of public expression, which punishes incitement
to racial hatred. The Principality has still to adopt criminal-law provisions
which punish racist acts. The racist motivation of a crime is not
regarded as an aggravating circumstance at the time of sentencing.
Procedural safeguards are needed with regard to persons subject
to a “refoulement” or deportation order
.
127. The rights of national minorities are protected by the new
Constitution in
Serbia. In
its
Resolution 1661 (2009), the Assembly addressed a list of measures that the
Serbian authorities should implement in the field of minority protection,
including a specific reference to the Roma community. In particular,
the Serbian authorities were asked to: further develop the minority
rights policy by strengthening confidence and trust between the
representatives of different communities and implementing effectively
the rights of national minorities, in the spirit of dialogue and
co-operation between the central government and the minority communities,
in particular, by ensuring effective access to education, media
and public administration in their mother tongue as well as representation
of national minorities in political and administrative bodies at
all levels and enabling them to hold religious services in their
language; take effective measures – in the context of Serbia’s declared
priorities during its current presidency of the Decade of Roma Inclusion
– towards guaranteeing to the Roma community in Serbia the right
to adequate housing, including through the implementation of the
Decade of Roma Inclusion National Action Plan on housing and the
Ministry of Infrastructure Guidelines for Improvement and Legalization
of Roma Settlements; enact a law on the Councils of national minorities,
clarifying their competencies, election modalities, their role vis-à-vis
the central government, as well as the methods of their financing;
investigate and prosecute all cases of violence and harassment against
all members of the national minority communities and take positive
steps to ensure their protection; intensify good neighbourly relations
with the kin-states (Romania, Hungary, Croatia and “the former Yugoslav
Republic of Macedonia”) by fully implementing the bilateral agreements
which they have signed, an obligation that also applies to the authorities
of the neighbouring states
.
128. The Criminal Code is still too seldom applied in Serbia to
persons who commit racist offences against national or ethnic minorities,
religious minorities or antisemitic offences
.
The situation of Roma, Ashkalis and Egyptians displaced inside the
country remains precarious
. In its
Resolution 1661 (2009), the Assembly asked the Serbian authorities to implement
the recommendations of the European Commission against Racism and
Intolerance (ECRI), adopted on 14 December 2007.
129. In
“the former Yugoslav Republic
of Macedonia”, the recent adoption of the law on the
use of the Albanian language has been a major step towards the implementation
of the Ohrid Framework Agreement (OFA). However, this law was regrettably
adopted under urgent procedure, when the major opposition party (SDSM)
and the numerically second ethnic Albanian party (DPA) were boycotting
the Parliament, and thus the DPA representatives claim it does not
satisfy all the interests of the Albanian community
.
There are several municipalities where languages of minorities representing
less than 20% of the country’s population were introduced in official
use (e.g. the municipality of Gostivar officially uses the Macedonian,
Albanian and Turkish languages). The authorities are supporting
programmes aimed at providing education in the mother tongue of the
minorities. Currently, a special focus is being given to the equitable
representation of minority representatives in the civil service.
A competition for some 570 posts reserved for minority representatives
was recently opened. In my information note of November last, I
welcomed the setting up of an Agency for Human and Minority Rights
to enhance the protection of minorities representing less than 20%
of the country’s population and called on the authorities to provide
it with sufficient financial, human and material resources. Although
there is progress, the full implementation of the OFA has yet to
be achieved. Representatives of the minorities representing less
than 20% of the population complain in particular of cases of hidden
discrimination (especially, in the field of employment), “segregation”
in the access to education and violations of the right to freedom
of religion.
130. When closing the monitoring procedure and opening the post-monitoring
dialogue with
Turkey, the Assembly,
in its
Resolution 1380
(2004), called on the Turkish authorities to “pursue the policy
of recognising the existence of national minorities living in Turkey
and grant the persons belonging to these minorities the right to
maintain, develop and express their identity and to apply it in
practice.” The Turkish authorities stick solely to the Treaty of
Lausanne (signed on 24 July 1923), which grants the non-Muslim religious
minorities in Turkey a number of rights (Articles 37 to 44) but
identifies precisely neither the minorities concerned nor their geographical
location. The authorities recognise the Jewish, Armenian, and Greek
Orthodox minorities and have pointed out that they consider all
Turkish citizens as having equal rights and not as individuals belonging to
a minority or a majority. However, this should not prevent Turkey
from guaranteeing, in accordance with European standards, specific
rights to some Turkish citizens on the basis of their ethnic origin,
religion or language in order for them to preserve their identity.
During my visit to Turkey in November 2008 as rapporteur for the
post-monitoring dialogue with Turkey, the Turkish authorities did
not provide any new information on this subject and reiterated that
the signing of the Framework Convention for the Protection of National
Minorities and the Charter for Regional or Minority Languages is
not on the Turkish government’s agenda. However, the issue of cultural
minorities, especially the Kurds, remains an important one
. During my discussions
with representatives of the DTP (Democratic Society Party, pro-Kurdish)
group in the Turkish Grand National Assembly, they voiced their
regret that the rights of the Kurds did not form part of the Turkish
identity even though they numbered 20 million people. In their opinion,
the 10% threshold was introduced to prevent Kurdish representation
in parliament and the current legal action against the DTP
was
just one of many attempts to limit the expression of their political
views. Contrary to what happened in the case of the AKP, they fear
the Constitutional Court will order the party to be closed down,
as it has already done on several occasions in the past. However,
the launch of a public 24-hour television channel broadcasting in
the Kurdish language on 1 January 2009 is to be welcomed.
131. The representatives of the Jewish community informed me that
they were generally satisfied with relations between them and the
Turkish government but expressed their concern at the rise in anti-Semitism and
the various acts of vandalism against their community. They expressed
their regret that the hate speech put out by extremist media, which
made sweeping generalisations between Israel and Judaism, went unpunished.
The former Criminal Code actually contained a provision making incitement
to hatred a criminal offence but under the new Criminal Code incitement
to hatred must have a “real and immediate effect” if it is to be
classified as a crime. Anti-Semitic acts reportedly go unpunished
as the danger is not considered to be real and immediate. The various
community representatives I met confirmed that there is a strong
tendency in the Turkish press landscape towards extremist nationalist
and overtly hostile positions towards minorities, whether religious
or not.
132. Ethnic, religious and linguistic minorities in Ukraine suffer discrimination in
a number of areas. For instance, Human Rights Watch reports that
Crimean Tatars continue to endure discrimination, in areas such as
allocation of land, employment opportunities, access to places of
worship, and availability of education in their native language.
In particular, Ukraine’s treatment of minority languages has garnered
concern.
133. Incidents of xenophobia and racism are commonplace in
Ukraine. Disturbing reports by
human rights groups (including Amnesty International) indicate that
racism is on the rise in Ukraine
. Foreigners and members of religious
or ethnic minorities are frequently subjected to xenophobic or racist
attacks (unprovoked verbal or physical attacks) not just by members
of the public at large but also by law enforcement officers. In particular,
the UNHCR has documented a number of recent xenophobic and racist
attacks, some of which resulted in deaths
. In Ukraine itself, there are no
statistics on the number of racist attacks since most of these are
considered to constitute ‘hooliganism’ by the police
. Human Rights Watch did report
the creation of special criminal investigation units to fight racially
motivated crimes, which have been employed in several Ukrainian
cities, but more must be done at the legislative level. On a positive
tone, the first meeting of the intergovernmental/institutional working
group – mandated by the government to devise proposals for the effective
fight against racism, xenophobia and discrimination – was held in
April 2008.
2.12. Human rights violations
committed in the context of the war between Georgia and Russia
134. The outbreak of war in August 2008 between two member
states of the Organisation, both of which are under the Assembly’s
monitoring procedure – Georgia and Russia – did not only imply the
violation by both of them of their accession commitment to settle
conflicts by peaceful means and in accordance with the principles
of international law, it also posed one of the most serious challenges
to the Council of Europe and its principles and values in recent
times. It is clear that that there have been serious violations
of the Statute of the Council of Europe, as well as principles of
international law (such as the principles of state sovereignty,
the right to, and respect for, territorial integrity as well as
non-aggression), international humanitarian law and human rights.
Immediately following the outbreak of the war, the President of
the Assembly requested the co-rapporteurs from the Monitoring Committee
for Russia and Georgia to visit the respective countries under their responsibility.
The co-rapporteurs for Georgia visited Tbilisi and Gori from 18
to 21 August and one of the co-rapporteurs for Russia, Mr Luc van
den Brande, visited Moscow and Vladikavkaz from 20 to 22 August.
They have since visited the two countries on three more occasions,
either in the context of the consequences of the war or in the context
of the regular monitoring procedure.
135. In its
Resolution
1633 (2008), the Assembly, on the basis of a report by its Monitoring
Committee
debated
under urgent procedure, strongly condemned the outbreak of the war
and expressed its concern about the human rights and humanitarian
law violations committed by both sides in the context of the war,
such as the intentional or avoidable killing or wounding of civilians,
as well as the destruction of property. In particular, the Assembly
considered that the use of indiscriminate force and weapons by both
Georgian and Russian troops in civilian areas could be considered
as war crimes that need to be fully investigated. Noting that Russia bears
full responsibility for violations of human rights and humanitarian
law in the areas under its de facto control, including for acts
committed at the behest of the de facto authorities in Tshkinvali,
the Assembly held that Russia appeared not to have succeeded in
its duty, under the 1907 Hague Convention (IV) on the Laws and Customs
of War on Land, to prevent looting, maintain law and order and protect
property in the areas under the de facto control of its forces.
The Assembly expressed special concern about credible reports of
acts of ethnic cleansing committed in ethnic Georgian villages in
South Ossetia and the “buffer zone” by irregular militia and gangs
that the Russian troops failed to stop. The Assembly urged the Russian
and Georgian authorities to ensure effective respect for all human
rights under the European Convention on Human Rights and humanitarian
norms under the 1949 Geneva Conventions and their additional protocols
on the territories under their de facto control; investigate all
allegations of human rights violations committed during the war
and in its aftermath, and hold the perpetrators to account before
the domestic courts; allow safe and unhindered access by the media
to the conflict zone; make full use of available means of peaceful
conflict resolution, including, as appropriate, the European Court
of Human Rights, the International Court of Justice and the International
Criminal Court, in order to resolve the underlying conflict situation.
136. In its
Resolution
1647 (2009) on the implementation of
Resolution 1633 (2008), the Assembly, on the basis of a second report by its
Monitoring Committee
and in the
light of the overwhelming evidence to the effect that both Georgia
and Russia violated human rights and humanitarian law in the course
of the war, welcomed the investigation launched by the Georgian
Prosecutor General’s Office into alleged human rights and humanitarian
law violations committed by both sides in the course of the war
and its aftermath, and called upon it to investigate, impartially,
any alleged violations brought to its attention and ensure that
the perpetrators are brought to justice. At the same time, the Assembly
regretted that the Russian Prosecutor’s Office had not yet started
any investigation into alleged human rights and humanitarian law
violations committed by Russian and allied South Ossetian forces.
The Assembly called upon Russia to initiate such an investigation
without further delay and to ensure that the perpetrators are brought
to justice.
137. Evidence and witness testimonies reproduced in several reports
by the OSCE and by organisations such as Amnesty International and
Human Rights Watch give credence to the claims that both Russia
and Georgia committed violations of human rights and international
humanitarian law in the course of the war and that Russia closed
its eyes to, and possibly abetted, violations of human rights and
international humanitarian law by the de facto authorities during
the aftermath of the war
.
It is the responsibility of the state concerned to investigate violations
of human rights and international humanitarian law committed by
persons under its de facto jurisdiction. In its third report on
the follow-up given by Georgia and Russia to Resolution 1633 and
1647, the Monitoring Committee, while understanding the difficulties
encountered by the Georgian General Prosecutor’s Office in the conduct
of the investigations by the lack of access to the former conflict
zone inside the break-away region of South Ossetia, expressed its
hope that the investigation will be completed within a reasonable
timeframe. The Investigative Committee of the General Prosecutor’s
Office of Russia has, for its part, finalised an investigation into
genocide committed by Georgian troops against Russian citizens,
as well as into crimes committed against the Russian military. During
the visit of the co-rapporteurs for Russia’s monitoring to Moscow
on 9-11 March 2009, the Deputy Head of the Investigative Committee
confirmed that the committee did not plan to open an investigation
into alleged violations of human rights and international humanitarian
law during the war by Russian citizens or Russian military forces.
To date, neither the investigation of the General Prosecutor’s Office
of Georgia nor that of the General Prosecutor’s Office of Russia have
resulted in any persons being charged.
138. More than 3 300 applications have been filed with the European
Court of Human Rights by ethnic South Ossetians against Georgia
. As of 18 March 2009, over 100 cases had
been filed against Russia, involving approximately 600 Georgian
applicants. Georgia has filed an inter-state application against
Russia with the European Court of Human Rights and, on 12 August
2008, on a request of the Georgian authorities, the Court of indicated
interim measures to both Russia and Georgia under Rule 39 of the
Rules of the Court.
139. In its
Resolution
1647 (2009), the Assembly called on both Georgia and Russia to implement
the interim measures ordered by the European Court of Human Rights
and the International Court of Justice, as well as any forthcoming
judgments of these courts concerning alleged violations of human
rights in the course of the conflict, and to co-operate fully and
unconditionally with any possible investigation by the International
Criminal Court. Considering it unacceptable that persons residing
in Abkhazia and South Ossetia should not be effectively covered
by the human rights protection mechanisms granted to them as citizens
of a Council of Europe member state under the ECHR, as well as other
relevant Council of Europe conventions, as a result of the consequences
of the war between Russia and Georgia, the Assembly held that such
a human rights protection black hole should not be allowed to exist
within the Council of Europe area. The Assembly therefore invited
the Secretary General of the Council of Europe to develop a comprehensive
action plan to ensure that the rights guaranteed under the ECHR
are effectively secured for persons residing in South Ossetia and Abkhazia
.
140. The Monitoring Committee will continue to follow closely the
implementation by Georgia and Russia of
Resolutions 1633 (2008) and
1647
(2009), including as part of its regular monitoring procedure
for both states. It is worth recalling that, as a consequence of
the war, the Assembly has asked the Monitoring Committee
to step up its monitoring procedure
with respect to both Georgia and Russia. Moreover, its co-rapporteurs
for both Georgia and Russia are members of the Ad Hoc Committee
of the Bureau on promoting dialogue between the Georgian and Russian
Assembly Delegations which held its second meeting in Valencia (Spain),
on 30 March 2009, in the margins of the Monitoring Committee meeting,
with the participation of both Russian and Georgian delegations.
While fully supporting the work of this ad hoc Committee, the Monitoring
Committee has considered that this should not be seen as a substitute
for the Geneva negotiations, as well as for a regular assessment
by the Assembly of the compliance of both countries with the demands
made by the Assembly in
Resolutions
1633 (2008) and
1647
(2009), but as complementary to them.
3. Conclusions
141. Throughout the reporting period, the Monitoring Committee
has continued to accompany eleven countries currently under monitoring
(Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Georgia, Moldova,
Monaco, Montenegro, the Russian Federation, Serbia, and Ukraine)
and three countries engaged in a post-monitoring dialogue (Bulgaria,
Turkey, and “the former Yugoslav Republic of Macedonia”) through
the process of enhancing the protection of human rights and respect
for the principles of the rule of law.
142. The Committee has produced public assessments for all countries
under monitoring (with the exception of Montenegro) and for all
countries involved in a post-monitoring dialogue. It has increased
its visibility by reacting quickly and efficiently to several urgent
and critical situations raising serious human rights concerns, including
the outbreak of war between two member states under the monitoring
procedure.
143. It has developed synergies with the Commissioner for Human
Rights as regards the handling of the war and of the post-electoral
crises in Armenia and Moldova and has continued to benefit from
the work carried out by other Council of Europe institutions and
monitoring bodies. It has, in its turn, continued to promote their
work.
144. The proposed draft resolution contains a number of conclusions
drawn from the country specific reports of the Monitoring Committee
with respect to main human rights issues raised in the states concerned. All
states currently under monitoring or engaged in a post-monitoring
dialogue are urged to step up their co-operation with the Monitoring
Committee and implement all the recommendations contained in the
country-specific resolutions adopted by the Assembly, as well as
those issued by the Commissioner for Human Rights and other Council
of Europe institutions and monitoring bodies. The Assembly stands
ready to provide the necessary support through its parliamentary
co-operation and assistance programmes.
145. In the states under periodic reporting, the national parliaments
are urged to use the periodic reports appended to the present report
as the basis for a debate on their country’s record with regard
to the fulfillment of their statutory and conventional obligations
as member states of the Council of Europe. They should also promote
execution of the judgments of the European Court of Human Rights
and compliance with recommendations made by the Commissioner for
Human Rights and other specific Council of Europe monitoring bodies,
both by provoking and accelerating the necessary legislative initiatives
and exercising their oversight role with respect to government action.
146. Finally, the European Union bodies are invited, as far as
applicable, to make use of all types of country specific reports
prepared by the Monitoring Committee and take into account the findings
of the relevant Council of Europe human rights institutions and
monitoring mechanisms, such as the judgments of the Court and the
reports of the Commissioner for Human Rights, as well as the relevant
resolutions and recommendations adopted by the Assembly.
***
Reporting committee:
Committee on the Honouring of Obligations and Commitments by Member
States of the Council of Europe (Monitoring Committee)
Reference to committee: Resolution No. 1115 (1997)
Draft resolution approved
unanimously by the committee on 5 June 2009
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
Luc van den Brande, Mr Mevlüt Çavuşoğlu, Mr Sergej Chelemendik,
Ms Lise Christoffersen, Mr Boriss Cilevičs, Mr Georges Colombier, Mr Telmo Correia, Mrs
Herta Däubler-Gmelin, Mr Joseph Debono Grech, Mr Juris Dobelis,
Mrs Josette Durrieu, Mr Mátyás Eörsi, Ms Mirjana Ferić-Vac, Mr Giuseppe
Galati, Mr Jean-Charles Gardetto,
Mr József Gedei, Mr Marcel Glesener, Mr Charles Goerens, Mr Andreas Gross, Mr Michael Hagberg, Mr Holger
Haibach, Ms Gultakin Hajibayli,
Mr Michael Hancock, Mr Davit Harutyunyan,
Mrs Olha Herasym’yuk, Mr Andres Herkel,
Mr Kastriot Islami, Mr Mladen Ivanić, Mr Miloš Jevtić, Mrs Evguenia
Jivkova, Mr Emmanouil Kefaloyiannis, Mr Hakki Keskin, Mrs Katerina
Konečná, Mr Jaakko Laakso, Mrs Sabine Leutheusser-Schnarrenberger,
Mr Göran Lindblad, Mr René
van der Linden, Mr Eduard Lintner,
Mr Pietro Marcenaro, Mr Bernard Marquet,
Mr Dick Marty, Mr Miloš Melčák,
Mr Jean-Claude Mignon, Mr João Bosco Mota Amaral, Mrs Yuliya Novikova, Mr Theodoros Pangalos,
Mr Alexander Pochinok, Mr
Ivan Popescu, Ms Maria Postoico, Ms Marietta de Pourbaix-Lundin,Mr Christos Pourgourides, Mr John
Prescott, Mrs Mailis Reps, Mr Andrea Rigoni, Mr Ilir Rusmali, Mr
Armen Rustamyan, Mr Indrek
Saar, Mr Oliver Sambevski, Mr Kimmo Sasi, Mr Samad Seyidov, Mr Sergey Sobko, Mr Christoph
Strässer, Mrs Chiora Taktakishvili,
Mr Mihai Tudose, Mrs Öslem Türköne,
Mr Egidijus Vareikis, Mr
José Vera Jardim, Mr Piotr Wach,
Mr Robert Walter, Mr David Wilshire, Mrs Renate Wohlwend, Mrs Karin
S. Woldseth, Mrs Gisela Wurm, Mr Boris Zala, Mr Andrej Zernovski.
N.B.: The names of the members who took part in the meeting
are printed in bold
Secretariat of the committee:
Mrs Chatzivassiliou, Mr Klein, Ms Trévisan, Mr Karpenko