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Addendum to the report | Doc. 15132 Add. | 17 March 2021
Post-monitoring dialogue with Montenegro
Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)
1. Introduction
1. The report on the post-monitoring
dialogue with Montenegro had initially been prepared by the co-rapporteurs
with the view to be adopted in March 2020 by the Monitoring Committee
and discussed by the Assembly during the April 2020 part session.
Due to the pandemic, it was finally discussed, and the draft resolution
was adopted by the Committee in June 2020 (Doc. 15132), while the debate in the Assembly was scheduled for
the April 2021 part session. Between March 2020 and March 2021,
several significant developments occurred, including the general
elections held on 30 August, marked by an unprecedented and peaceful
shift of power.
2. Most of these developments have been presented, with our full
approval, by the Chair of the Monitoring Committee in paragraphs
128 to 140 of his report on the “Progress of the Assembly’s monitoring
procedure” (Doc. 15211). The present revised addendum completes
this presentation and, taking these developments into consideration,
the co-rapporteurs propose some minor amendments in order to update
the draft resolution.
3. In overall, the developments occurred between March 2020 and
March 2021 confirmed the observation made by the co-rapporteurs
in their report: in the fields where Montenegro is usually seen
as a co-operative partner or a good example for the region (minority
rights, the fight against discrimination, among others), the situation
continued to improve, but limited progress was achieved in the four
key areas identified
by Resolution 2030 (2015) “The honouring of obligations and commitments by Montenegro”
that are of paramount importance if Montenegro wants the post-monitoring
dialogue to end. It is worth noting that our overall diagnosis is
widely shared by the European Commission in its annual report on
Montenegro issued on 6 October 2020, when it comes to political
criteria and rule of law chapters.
4. The outcome of the general elections and the maturity demonstrated
by all political stakeholders in the aftermath of the results created
a new political situation of which the Montenegrin authorities should
take advantage in order to address the long-standing four key issues.
They will have to achieve them while Montenegro and its economy,
to which tourism contributes significantly, have been and still
are deeply suffering from the Covid-19 pandemic.
2. Confirmation of previous trends
5. A significant example of progress
made by Montenegro can be found in the rights of LGBTI persons.
In July 2020, the parliament adopted the law on life partnership
of same-sex partners, after two previous unsuccessful attempts.
In the cultural context of the Balkans region, this adoption is
not a minor step. And as the European Commission puts it, “Montenegro
is the first country in the region to regulate the status of same-sex
couples”.
6. Concerning the judiciary, serious negative trends were observed,
although recent developments could announce more positive changes.
7. As indicated in the report on the “Progress of the Assembly’s
monitoring procedure (January-December 2020)”, the re-appointments
of presidents of courts for more than the two-terms limit set by
the Constitution and the law continued on several occasions, despite
warnings sent by the co-rapporteurs, the Group of States against
Corruption (GRECO) and the European Union. As a topic example of
this practice, the Judicial Council decided in November 2020 to
re-appoint a president of a court for an eighth term. It did not
take the opportunity offered by the cancellation of its previous
reappointment by the administrative court to overturn its decision,
but it confirmed it. The matter of the over-concentration of power
within the judiciary has been underlined by the GRECO and it is
a very sensitive question for the co-rapporteurs and the Assembly.
Therefore, given the open resistance of the Judicial Council, we
discussed the issue with the Secretary General of the Council of
Europe, and we will not halt our efforts on this issue.
8. On this issue of the two-terms limit, there is a possibility
that the resignation of the President of the Supreme Court, Ms Vesna
Medenica, in December 2020, whose third reappointment had been criticised
by the co-rapporteurs and the European Union, could initiate a change
of behaviour either by the presidents of courts or by the Judicial
Council. It is also not unlikely, that the regulation on retirement
for the judicial staff could offer a partial solution. One-third
of Montenegrin judges seem to fulfil the conditions for old-age
pension. Whether they should cease their judicial duty, according
to the Constitution and the Pension and Disability Insurance Law,
is now being discussed by the Constitutional Court at the request
of the Judicial Council. As among these judges, several are still
presiding a Court for more than two terms, the decision to be made
by the Constitutional Court may have a collateral effect on them,
if the Constitutional Court were to order their immediate retirement.
As co-rapporteurs, we will continue to closely follow that issue.
9. On a more positive note, the trend observed by the co-rapporteurs
in paragraph 83 of their report, in relation to Montenegrin courts
daring annulling sensitive decisions taken by the parliament to
dismiss members of the Council of the national broadcasting (RTCG),
could also be noticed in the end of 2020. Following these rulings,
the Supreme Court, in a legal non-binding opinion, stated in June
2019 that parliament's decisions on the election, appointment or
dismissal of public officials could not be challenged through administrative
or civil procedures. By doing so, it made all appointments by the
parliament to sensitive bodies, such as the Council of the RTCG,
but also the Agency for the Prevention of Corruption (APC), impossible
to contest. The European Commission said that this opinion “raises
concerns about the lack of legal safeguards against Parliament's decisions,
jeopardising the right to effective legal remedy”. In October and November 2020, two judges,
one in the Basic Court of Nikšić, the other in the Basic Court of
Podgorica, annulled former decisions by the parliament to dismiss
a member of the Council of the RTCG and a member of the APC. As
co-rapporteurs, we consider that these rulings preserve the right
to effective legal remedy, although they are not in line with the Supreme
Court non-binding opinion.
10. Concerning trust in the electoral process, the attempt to
revise the electoral framework failed, due to the boycott by the
then opposition of the ad hoc parliamentary committee tasked for
the reform. Therefore, the electoral framework remained largely
unchanged during the general elections held on 30 August, with the
same flaws and limitations that the Office for Democratic Institutions
and Human Rights of the Organization for Security and Co-operation
in Europe (OSCE/ODIHR) has been keeping on advising to address.
However, despite this regrettable stalemate and the practices observed
by the OSCE/ODIHR during the electoral process (see part 3), the
turnout during the 30 August elections was very high: more than
76% of the voters expressed their political choice. As co-rapporteurs,
we welcome the legitimacy that this high turnout has given to the electoral
process, but, at the same time, we urge the political stakeholders
to rapidly engage in cross-parties negotiations to re-frame electoral
laws, in line with the OSCE/ODIHR and the Assembly’s recommendations.
11. Concerning the fight against corruption, no significant progress
was observed. It is worth noticing, that in the “audio-recording”
case, a matter
the co-rapporteurs reported since 2012, the European Commission stated
in 2020 that “there were no new developments in the political and
judicial follow-up of the alleged misuse of public funds for party
political purposes that took place in 2012 (the ‘audio recordings
affair’)”.
12. Finally, the situation of media did not improve and remained
mostly unchanged.
13. Because we are concerned, as co-rapporteurs, that journalists
in Montenegro may be pressured through judicial procedures and detention,
we decided to make a public stand after Mr Jovo Martinović, an investigative journalist,
was convicted on 8 October 2020 for the second time on charges of
setting up criminal organisation and drug trafficking, while he
was investigating arms trafficking. The legal proceedings are still
on going and we will closely monitor that Mr Martinović’s right
to a fair trial is upheld, especially when his case will be examined
by the Appeal Court, starting on 4 March.
14. In December 2020, our attention was drawn once again to Ms
Olivera Lakić’s situation, an investigative journalist who was shot
in May 2018 and mentioned in paragraph 151 of our report. According
to a reliable NGO, Human Rights Action (HRA), Ms Lakić has not been
provided police protection, as the Montenegrin commission for monitoring
attacks against journalists recommended, despite a clear assassination
threat. As co-rapporteurs,
we call the competent authorities to act and we will closely follow
this issue.
15. Concerns regarding the independence of the RTCG have not been
addressed and the renewal of its council members in June 2019 did
not dissipate them. The RTCG was criticised during the debate on
the Law on Freedom of Religion or Belief and the Legal Status of
Religious Communities (Law on Freedom of Religion) for its biased
coverage in favour of the then government and crossed-accusation of political partisanship were
exchanged within the RTCG, since the shift of political majority.
16. Although the legal framework seemed to have improved with
the adoption of two laws on media and the public broadcaster RTCG
in July 2020, concerns related to the situation of media remain.
3. Political developments: a new parliamentarian majority after a polarised debate on the Law on Freedom of Religion
17. As indicated in paragraphs
137 to 140 of the report on the “Progress of the Assembly’s monitoring procedure
(January-December 2020)”, the two main and intertwined developments
that marked 2020 were the continued and massive protests against
the Law on Freedom of Religion, especially the part dedicated to
the property rights, passed by the parliament in December 2019,
and the general elections that took place in August 2020. Local
elections in five municipalities were also called to be held concurrently.
18. No political compromise was found on the controversial provisions
of the law but protests led by the Serbian Orthodox Church were
discontinued due to Covid-19. They had been mostly peaceful, despite
limited surges of tension. In this deeply polarised context, on
20 June 2020, President Đukanović called early parliamentary elections
for 30 August. If local elections were not observed by international
organisations – although they were by domestic NGOs – the OSCE/ODIHR
deployed an international Limited Election Observation Mission (LEOM)
for the general elections.
19. In its preliminary findings, confirmed in its final report
on 11 December 2020, the LEOM stated
that “the elections were competitive and took place in an environment
highly polarized over issues of church and national identity. Contestants
were able to convey their messages, but the ruling party gained
an undue advantage through misuse of office and state resources
and dominant media coverage. The lack of independent campaign coverage
by the media further undermined the quality of information available
to voters. The law provides basic regulations for the conduct of
democratic elections, but gaps and ambiguities allow for circumvention,
particularly in campaign finance. The elections were run overall
transparently and efficiently, although the State Election Commission
(SEC) did not properly fulfil its regulatory role. Covid-related restrictions
limited physical campaign opportunities and increased online outreach
but did not prevent voters from turning out in high numbers. Election
day was orderly and the process was generally transparent and well administered,
while health protocols were not implemented consistently.” The OSCE/ODIHR
also noted that “only 18 women (22 per cent) were elected to the
new parliament, representing a decrease from 19 (increased to 24
in 2018) in the outgoing parliament and falling short of the 30
per cent quota for candidate lists.”
20. These conclusions were fully shared by the four NGOs that
the co-rapporteurs met remotely on 3 September 2020 to discuss the
electoral process and its outcome.
21. Although they took place in a very polarised atmosphere, the
elections remained peaceful, with the notable exception of worrying
attacks against minorities, especially Bosniacs, on the day the
results were announced. This outburst of violence was immediately
condemned by all parties and by the Serbian Orthodox Church, who
was deeply involved during the campaign against the ruling majority,
according to the NGOs that the co-rapporteurs met. This overall
condemnation is to be commended. Montenegro is a regional model
for peaceful relationships between its several communities and minorities;
in order to preserve that model, Montenegrin authorities must demonstrate
that they would not tolerate any attack against it and that the
issue of identity will not be used against any minority. Therefore,
the Assembly should closely monitor the criminal investigations
already launched by the police into allegations of hate crimes and
ethnically and religiously motived attacks that took place after
the announcement of the August elections results, notably in the
city of Pljevlja where members of the Bosniac community are reported
to have been targeted.
22. As previously said, the turnout of more than 76% was very
high and these elections saw, for the first time since the independence
of Montenegro in 2006, and for the first time since 1991, a shift
of power. Among the 11 closed lists of candidates registered, the
Democratic Party of Socialists of Montenegro (DPS) won 35% of the
votes (30 seats in the Parliament), the Democratic Front (DF) and
its allies 32% (27 seats), the Democrats (DCG) and their partners
12 % (10 seats), the United Reform Action (URA) and its allies 5%
(4 seats). The Montenegrin parliament being composed of 81 seats,
the DF, the DCG and URA could claim a tight majority of 41 seats.
23. Following the announcement of the results, President Đukanović,
who has been in power for 30 years, either as President or Prime
Minister, acknowledged the defeat of the former ruling majority
led by the DPS. The three main platforms from the opposition, led
by the DF, the DCG and URA, announced on 31 August an agreement
on the formation of a government of experts with a Prime Minister
to-be who was not affiliated to any political formation, but close
to the Serbian Orthodox Church, Mr Zdravko Krivokapić, who led the
list supported by the DF.
24. During their fact-finding mission to Podgorica in September
2019, the co-rapporteurs were told that it was unlikely in the near
future that the then opposition would be able to unite and form
a coalition, for their political aims and priorities differed. The
DF was usually seen as pro-Serbian and not very favourable to North Atlantic
Treaty Organization (NATO) accession, while the DCG was characterised
as pro-European and conservative and URA as pro-European and liberal,
especially when it comes to the promotion of human rights. However,
the heads of the three lists, DF, DCG and URA, signed an agreement
on 9 September 2020 indicating their common political purposes.
Among other things, they said that the new government would not initiate
the procedure for withdrawing the recognition of Kosovo* or
change the State flag, coat of arms or national anthem; that the
European integration remained their aim and that it should be achieved
as soon as possible; that cooperation with NATO would be improved;
that they would depoliticise key government institutions to ensure
the uncompromising fight against corruption and crime, in line with
European standards. Amendments to the Law on Freedom of Religion
were also mentioned.
25. Before the government was endorsed by the parliament, three
relevant developments occurred. First, the new majority was not
able to get more support, for the three national minority parties
represented in the Parliament, two Albanian and one Bosniac, declined
to join it. Second, it was not without contests or complaints from
within the DF, which is an alliance of several distinct political
organisations, that Mr Krivokapić succeeded in imposing a government
of experts, without the participation of leaders of the DF. Finally, some tension arose
in September 2020, when Mr Krivokapić indicated that President Vučić
of Serbia had business ties with Montenegrin President Đukanović,
an allegation that President Vučić strongly rebutted.
26. On 4 December 2020, the Montenegrin Parliament elected a new
government headed by Mr Krivokapić. It is composed of 12 ministers
(plus the Prime Minister and the Deputy Prime Minister) and includes
four women. The presentation of the work-programme of the new government
by the Prime Minister to the parliament on this occasion confirmed
the orientations contained in the coalition agreement of 9 September, and,
among several topics, mentioned those related to the four key priorities
of the co-rapporteurs’ report.
27. On 29 December 2020, a package of amendments to several laws
was passed by the parliament, while some protesters from the new
opposition demonstrated in front of the parliament. The package
mostly contained amendments to extend deadlines for several mechanisms
in the social, fiscal and credit fields. It also contained amendments
to the Law on Civil Servants and State Employees and to the Law
on Freedom of Religion. Concerning the Law on Civil Servants, the
co-rapporteurs were not able to scrutinise its content, but at the
time of drafting, no particular criticism was brought to our attention.
28. Concerning the amendments to the Law on Freedom of Religion,
the information gathered by the co-rapporteurs were rather reassuring.
The new ruling majority decided to delete the provisions related
to the transfer of property and to alter the part dedicated to the
obligation for religious communities to register, both provisions
strongly opposed by the Serbian Orthodox Church. The content of
the other provisions that, as the co-rapporteurs have already said
in their report, constitute a genuine progress compared to previous
legislation according to the European Commission for Democracy through
Law (Venice Commission), does not seem to have been questioned.
This is the solution to the political crisis the co-rapporteurs
have always pleaded for: a solution that respects the legislative
process and the legitimacy of the parliamentarians, in other words
that respects democracy and the rule of law, and focuses on the
controversial provisions, while retaining those that constitute
a genuine progress.
29. However, even if we understand, as co-rapporteurs, that the
passing of these amendments was a major political promise, we regret
that they were adopted in such a hurry that it altered the inclusiveness
of the legislative process. According to a news’ report, the Islamic community, the
Catholic church and the Jewish community complained in a joint statement
that the deadline for consultation was so short (three days) that
they were not able to take part in it. Moreover, the non-canonically
recognised Montenegrin Orthodox Church, that represents 30% of the
Orthodox population according to the figures given to the Venice
Commission, was not consulted.
30. On 2 January 2021, President Đukanović refused to sign the
adopted laws and sent them back to the Parliament for reconsideration.
He considered that the procedure for their adoption was unconstitutional, claiming
that the quorum had not been reached when they had been adopted
and also questioning the mandate of MPs. The SEC refused to certify
the mandate of one of the MPs, a substitute replacing a URA MP appointed
to the cabinet of the Vice Prime Minister. In the absence of this
certification, the parliament therefore substituted itself for the
SEC and certified the relevant mandate. The parliament also confirmed
the initial adoption of the laws during an extraordinary session
held on 20 January 2021. President Đukanović then signed them. Members
from the opposition lodged a constitutional complaint questioning
the authority of the parliament to substitute itself for the SEC
for certification and raising the issue of the lack of quorum. The
case is now pending before the Constitutional Court. As this development
demonstrates, the peaceful shift of power in Montenegro did not
diminish the “liveliness” of political competition. But in this
case, the political competition unfolded within the rule of law,
something that is worth noticing and should be commended, as long
as the competition does not prevent political stakeholders from
compromising on issues that require a qualified majority, such as
appointments to the judiciary or the electoral reform.
31. On 3 February 2021, a group of MPs from the majority presented
two draft laws amending the Law on the State Prosecutor’s Office
and the Law on the Prosecutor’s Office for Organised Crime and Corruption
(the Special Public Prosecutor’s Office). These drafts triggered
a reaction from the Supreme State Prosecutor’s Office, the Prosecutorial
Council and the Association of State Prosecutors who addressed letters
to several international organisations, including the Council of
Europe. They criticised the procedure which was applied and the
lack of consultations with the judiciary or international partners.
They also pointed out that some provisions of the amendments to
the Law on the State Prosecutor’s Office were aimed at bringing
the State Prosecutor’s Office into a subordinate position, notably
by changing the composition of the Prosecutorial Council and making
its prosecutor members a minority, while they are currently holding
the majority.
32. The authors of the amendments indicated that their aim was
to increase the fight against corruption, a field in which Montenegro
had poor results according to them. Members of the DF clearly indicated
that they also wanted to terminate the mandate of the current Special
Prosecutor, Mr Milivoje Katnić, whom they accused of protecting
former officials and who, as they claimed, led a politically motivated
investigation on the 2016 so-called “coup” resulting in the condemnation
of two of the DF leaders.
33. Following some internal and international reactions, especially
from the European Union, the Montenegrin
authorities decided on 16 February to request the opinion of the
Venice Commission on the two draft laws and withhold the parliamentary
discussion until after the opinion was issued. The Venice Commission
is expected to adopt it during its plenary session on 19 to 20 March.
34. As co-rapporteurs, we commend this request to the Venice Commission
and urge the Montenegrin authorities to follow the recommendations
of the Venice Commission on these very serious and sensitive matters
that concern the independence of the judiciary and the fight against
corruption. We also noted that the current majority is eager to
implement its programme, which is the sign of an active majority.
However, political will to reform should not override prior and
broad consultation, especially when major issues are at stake. We have
already underlined the importance of consultations following the
hasty adoption of the legislative package in December 2020.
35. We also noticed that the DF, the biggest faction within the
majority, claimed that it would condition its participation in the
legislative and budgetary process in the parliament to the adoption
of the draft laws and the dismissal of Mr Katnić. As mentioned above,
the government did not bow to this demand. We will closely follow this
issue when the ordinary session of the Montenegrin parliament resumes.
The way in which the DF reacts will have to be assessed both in
terms of the political maturity expected of political stakeholders
after the peaceful shift of power and with regard to the ability
of the parliament to “fully play its oversight role and stimulate
the government to make progress in the four key areas”, as stated
in paragraph 188 of our report.
36. It should also be noted that on 5 February 2021, the first-instance
verdict finding 14 defendants guilty of plotting against the State
in the case of the 2016 so-called “coup” was overturned by the court
of appeal for procedural mistakes and that a re-trial was ordered.
We will follow the political impact of this re-trial, for, as we indicated
in paragraph 20 of our report, two leaders of the biggest ruling
coalition party, DF, were sentenced to five years of imprisonment
in the first instance.
37. On 14 March 2021, a local election is to be held in Nikšić.
This town is currently ruled by the DPS, but located in an area
considered to be a stronghold of the DF. The political stakes are
rather high for Montenegrin parties and the election is often presented
as a second round of the general elections of August 2020, to see whether
the national trend is confirmed or not. As co-rapporteurs, we are
closely following the campaign, also because we deplore an unfortunate
incident reminiscent of what happened on the August 2020 elections results
day: hateful graffiti appeared on the walls of Nikšić’s mosque,
sparking national condemnation. We hope that this provocation does
not indicate a rise in the level of hate-speech and ethnically motivated
attacks, from which Montenegro has been rather spared until now.
38. We noticed the encouraging signs of political maturity in
Montenegro, sent in the immediate aftermath of the August 2020 elections
results, both by the new majority and the new opposition. Since
the legal system of Montenegro requires qualified majority for the
parliament to adopt important reforms or appoint high officials, notably
in the judiciary, compromise will be needed. It will only be achievable,
if political maturity persists. Similarly, the parliament will only
be able to exercise plainly its oversight role, if the majority
and the opposition act in a responsible way.
39. As co-rapporteurs, we think that the significant political
change Montenegro has experienced is an opportunity for all political
stakeholders to demonstrate that Montenegro is not only able to
manage a democratic shift of majority, but also capable to confirm
its European path and comply with its obligations, notably in the
four key areas determined by Resolution
2030 (2015).
4. Proposed amendments
40. As a result of the recent developments
in Montenegro, we would like to propose the following amendments
to the draft resolution on the post-monitoring dialogue with Montenegro
contained in Doc.
15132:
Amendment A
After paragraph 5.5, insert the following paragraph:
“commends the decision of the Montenegrin authorities to request the opinion of the Venice Commission on the draft laws amending the Law on the State Prosecutor’s Office and the Law on the Prosecutor’s Office for Organised Crime and Corruption and to suspend their adoption until after the opinion is issued; and calls on them to fully implement the recommendations formulated by the Venice Commission.”
Amendment B
After paragraph 6.3, insert the following paragraph:
“commends the political maturity demonstrated by both the new majority and the new opposition in the immediate aftermath of the elections held in August 2020, that allowed for a peaceful shift of power and urges them to continue on this positive trend; at the same time, regrets that the electoral legal framework remained largely unchanged during the last general elections, despite the repeated recommendations of the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE/ODIHR) to address its flaws and limitations, and that practices contrary to OSCE/ODIHR principles were once again observed during these elections, notably in the fields of abuse of State resources, independent media coverage and campaign financing.”
Amendment C
In paragraph 9.4., after the words “LGBTI persons,” replace the end of the sentence by the following words:
“and welcomes the adoption of the law on life partnership of same-sex partners by the parliament in July 2020.”
Amendment D
Replace paragraph 11.4., by a the following paragraph:
“welcomes the adoption of amendments to the law on 28 December 2020, as a solution that both respects democracy and the rule of law, and focuses on the controversial provisions, while retaining those that constitute a genuine progress; at the same time, regrets that the consultation of all religious communities on these amendments was not fully inclusive.
Amendment E
Delete paragraph 14.1.
Amendment F
Replace paragraph 17 with the following paragraph:
““As regards the Law on Freedom of Religion, the Assembly will monitor whether the implementation of the law will be in line with European standards, as well as the recommendations of the Venice Commission.”
Amendment G
After paragraph 17, insert the following paragraph:
“As regards the situation of minorities, the Assembly will closely monitor the investigations into allegations of hate crimes and ethnically and religiously motived attacks that took place since the announcement of the August elections results.”