Information Documents

SG/Inf(2004)14                                                                                                      30 April 2004

————————
Serbia and Montenegro:

Compliance with obligations and commitments and implementation of the post-accession co-operation programme

_______________________

Document presented by the Secretary General

Fourth report (February – April 2004)

Summary Commendable efforts have been made by Serbia and Montenegro to fulfil a number of key commitments, first and foremost, the ratification of the European Convention on Human Rights and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment on 3 March 2004. However, important measures still have to be taken to secure the proper implementation of these two Conventions at domestic level. In this context, the independence and the impartiality of the judicial and prosecuting authorities, remain very worrying issues. In particular, constitutional guarantees for the independence of the judiciary should be strengthened. Of particular concern is the failure of the authorities to ensure the transfer of competence of the military justice to the civilian authorities of member states. The fact that the military justice continues to operate in a legal vacuum calls for specific action. Democracy and institution-building: the State Union Court has still not been established. However, as a first step, judges should be elected in early May by the Union Parliament, which resumed its work. The Serbian and Montenegrin authorities are willing to accelerate the work on their respective constitutions. This should be welcomed, provided the authorities use the Venice Commission’s assistance to the fullest extent. This is particularly relevant for Serbia. Co-operation with the ICTY: although no significant progress has been achieved since the last report, some steps in the right direction have been taken or announced. Concrete results remain to be seen. By contrast, a controversial law on the support to ICTY indictees has been adopted in Serbia and then temporarily suspended by the Constitutional Court. Rule of Law: no genuine reform has yet started in Serbia. The authorities are willing to take action in the field of judicial reform, police and security. Drawing from past experience, it is essential that this action be as transparent as possible and that appropriate consultation be made. In Montenegro, the recent entry into force of new criminal legislation and the Law on the Public Prosecutor’s Office is a significant step forward.  However, efforts should be pursued. Key legislation on police and security still needs to be adopted and adequate implementation of laws still gives cause for concern in the field of justice. Human Rights: measures should be taken to ensure that the now ratified human rights treaties are fully operational. The adequate implementation of the Framework Convention for the Protection of National Minorities at domestic level also remains an issue for the Union and its member States. In Serbia, freedom of the media still gives rise to concern. The setting-up of an effective Broadcasting Council is a priority for the authorities. More attention should be paid on its future legitimacy. In Montenegro, the authorities should pursue their efforts to provide more tangible results in the fight against trafficking in human beings.

CONTENTS

Pages

INTRODUCTION ............................................................................................................... 3

PART I: MAIN CONCLUSIONS AND RECOMMENDATIONS..................................... 3

             A. At the State Union Level...................................................................................... 3

             B. At the Level of Member States of the Union........................................................ 4

1. Republic of Serbia........................................................................................... 4

2. Republic of Montenegro.................................................................................. 6

PART II: OVERVIEW OF SERBIA AND MONTENEGRO’S COMPLIANCE WITH ITS                 OBLIGATIONS AND COMMITMENTS........................................................... 7

             A. Democracy and Institution-Building.................................................................... 7

                        1. At the State Union level................................................................................... 7

2. At the level of Member States of the Union..................................................... 8

B. Co-operation with the International Criminal Tribunal for the former Yugoslavia

(ICTY) and prosecution of other war crimes.......................................................... 10

             C. Rule of Law....................................................................................................... 11

1. Action to strengthen the judicial and prosecuting authorities

                        and secure their independence and impartiality.................................................. 11

2. Police and security forces: need to enact adequate legislation, to strengthen

supervisory mechanisms and to increase the efficiency of police work and secure their independence and impartiality........................................................................... 13

3. Measures to protect witnesses against intimidation......................................... 14

4. Action to fight against corruption and related matters.................................... 14

5. Other important measures.............................................................................. 15

             D. Human Rights.................................................................................................... 15

1. Measures to ratify the European Conventions on Human Rights and on the Prevention of Torture and their concrete implementation at domestic level.............................. 15

2. Measures to ensure an effective protection of national minorities.................. 16

3. Immediate action to protect freedom of the media......................................... 17

4. Other important measures.............................................................................. 18

             E. Education........................................................................................................... 19

APPENDIX: PROGRAMME OF THE VISIT.................................................................. 20

*   *

*

Addendum Ito this document presents principal Council of Europe texts and list of commitments accepted by Serbia and Montenegro.

Addendum IIto this document presents information on the implementation of the post-accession cooperation programme. (to be issued separately)
INTRODUCTION

1. In the context of the accession of Serbia and Montenegro to the Council of Europe on 3 April 2003, the Committee of Ministers decided to set up a specific monitoring procedure, under the authority of its Rapporteur Group on Democratic Stability (GR-EDS), which provides for a regular review of progress achieved and difficulties encountered in the fulfilment of commitments and obligations and the implementation of the post-accession co-operation programmes, on the basis of, inter alia, quarterly reports by the Secretariat.

2. The present document is the fourth report prepared by the Secretariat in this context[1]. It completes information on the first year of membership of Serbia and Montenegro in the Council of Europe. This report is based in particular on information collected during a Secretariat visit to Belgrade and Podgorica from 4 to 8 April 2004. The programme of the visit and the composition of the Secretariat Delegation are reproduced in the Appendix to the report. The Secretariat visit followed immediately a visit by the Council of Europe Secretary General, on the occasion of the first year anniversary of Serbia and Montenegro membership.

3. As regards relations with the Council of Europe, the period covered by the present report was dominated by the accession, on 3 March 2004, of Serbia and Montenegro to two major Council of Europe human rights treaties, i.e. the European Convention on Human Rights (ECHR) and the European Convention on Prevention of Torture, Inhuman or Degrading Treatment or Punishment (ECPT). This constitutes a significant step forward in the fulfilment of the commitments for the first year of membership of Serbia and Montenegro in the Council of Europe. Another positive development is the accession of Serbia and Montenegro to the Council of Europe Development Bank on 14 April 2004.

PART I: MAIN CONCLUSIONS AND RECOMMENDATIONS

A.    AT THE STATE UNION LEVEL

4. As indicated above, positive steps have been undertaken by the authorities of Serbia and Montenegro. In the meantime, further action is still required on a number of issues, notably:

 

B.     AT THE LEVEL OF THE MEMBER STATES OF THE UNION

1. REPUBLIC OF SERBIA

5. An important development since the last report was the constitution of a new Government following the 28 December parliamentary elections which resulted in a radical change of the political landscape in Serbia. The dramatic events in Kosovo of March 2004 and the resurgence of ethnically motivated violence of which the Kosovo Serb communities were the prime victims, also influenced the political situation in Serbia. In the meantime, some positive steps have been taken by the new Government, such as amendments made to the electoral laws (see documents SG/Inf(2003)38, para. 6 and SG/Inf(2004)8, para. 56). Members of the new Government and the ruling coalition in Parliament clearly showed a willingness to take a number of significant steps, including the completion of a draft Constitution, by the summer 2004. The quick adoption of legal amendments, without appropriate consultation of the Council of Europe and of the Serbian legal profession, has been detrimental in the past. As a result, the compliance of future measures with Council of Europe standards will highly depend on the use of Council of Europe expert assistance in the future. Action is still required in a number of areas, notably:

2. REPUBLIC OF MONTENEGRO

6. In spite of the continued boycott of the Parliament by the opposition, serious efforts are being made by Montenegro to bring its legislation closer to Council of Europe standards. To this effect, a number of draft laws have been sent to the Council of Europe for expert appraisal. In this connection, the implementation of the new Criminal Code, Code of Criminal Procedure, which entered into force on 7 April 2004, and the Law on the Public Prosecutor’s Office will be a test of the willingness and capacity to fully implement these new laws. In addition some important pieces of legislation such as the draft Law on the police and the draft Law on intelligence services are still in abeyance. Furthermore, the first stage of the compatibility study was achieved in early April 2004. At present, most of the concerns expressed and recommendations made in the previous report remain valid. Action is particularly expected in the following areas:

PART II: OVERVIEW OF SERBIA AND MONTENEGRO COMPLIANCE WITH ITS OBLIGATIONS AND COMMITMENTS

1. DEMOCRACY AND INSTITUTION-BUILDING

1.      At the level of the State Union

7. Sustainable efforts are still required to strengthen the institutions of the State Union and to improve their functioning. The State Union Court to be established in Podgorica is not yet in place. Montenegro has already proposed the candidates to sit in the Court; Serbian candidates had still not been appointed. Election of the judges to the State Court by the Union Parliament is announced for 5 May. However, the Secretariat Delegation was informed that this nomination should intervene in early May 2004. When the members of the Court will all be elected, will remain the question of its facilities and budget which are still not settled. More importantly, diverging views are expressed in different spheres, on the role -and even usefulness - of such a Court which is supposed to decide on the interpretation of the Constitutional Charter of the State Union and on possible conflicts between the State Union and the member states or between the member states themselves.

8. Clearly, some doubts on the necessity of creating the Court have been expressed given that its competence is seen as limited and that the very future of the State Union is still questioned. However, in the present constitutional set up, the Union Court could play an important role in interpreting the Constitutional Charter or regulating in case of any legal vacuum between the Union level and the level of member states. The situation of the military courts (see item II.C. below) is a clear example of where the Union Court could have helped in solving a difficult problem resulting from the lack of appropriate action by the authorities in filling in the legal gaps created after the Federal Republic of Yugoslavia had ceased to exist.

9. According to the new Speaker of the Union Parliament, the problems in the functioning of the Parliament experienced previously (absenteeism, difficulty to secure a quorum, etc.) are not as serious as previously. The small number of MPs with a double mandate (Union Parliament and member states of the Union) contributed to limit the problems of quorum. Nevertheless, there are still difficulties in adopting decisions due to the very delicate political balance in both member states of the Union which is reflected in the majority in the Union Parliament. However, a positive development was the recent decisions by the State Union Parliament to adopt new rules of procedure, to create specialised committees, and to soon appoint a first Secretary General. These are all decisions which should contribute to a smoother functioning of the Union Parliament.

10. Another significant development has been the agreement reached after long debate and negotiations on the composition of the delegation of the State Union of Serbia and Montenegro to the Parliamentary Assembly of the Council of Europe. However, when submitted the Parliamentary Assembly of the Council of Europe on 26 April 2004, those credentials were challenged by some members of the Assembly, on the ground that it included representatives of political parties which had been headed by ICTY indictees and which had not distanced themselves from “the terrible war crimes committed during the inter-ethnic wars”. Finally, by its Resolution 1370(2004) on contested credentials of the parliamentary delegation of Serbia and Montenegro, the Assembly ratified the credentials of the parliamentary delegation of Serbia and Montenegro, on the ground that it considered “inappropriate not to ratify the credentials of the whole delegation […] because of individual members of this delegation”. The Assembly added that “such a decision would punish the democratic forces in Serbia and Montenegro represented in its national delegation and play in the hands of those politicians who do not respect the basic principles of the Council of Europe” (see Resolution 1370 (2004) on the Assembly’s Internet Site: assembly.coe.int).

11. The Speaker of the Union Parliament expressed his wish that the co-operation programme in support to the Parliament (and the Parliaments of the Republic of Serbia and of the Republic of Montenegro) by the Council of Europe Parliamentary Assembly, with the financial support of the European Union Agency for Reconstruction (EAR), be implemented without any further delay.

12. At the governmental level, positive developments have to be registered in the activities of the Ministry of Defence, in particular as concerns action taken to bring the army under civilian control and the development of an alternative service for conscientious objectors (as concerns the latter issue, see below, item II.D.).

13. On the other hand, the responsibilities of the Union Ministry for Human and Minority Rights are still unclear in practice. The Union Ministry has indeed very limited competences and means of action. This has a direct relevance with respect to the policy for the protection of national minorities and the implementation of the obligations resulting from international human rights treaties to which Serbia and Montenegro is a Party, such as the ECHR (see below, item II.D.).

14. Finally, the issue of a possible referendum on the separation of the State Union after a three-year moratorium is increasingly influencing the political debate in Montenegro.

2.      At the level of the Member States of the Union

a) Republic of Serbia

15. In Serbia, the period covered by the present report was dominated by the setting-up of a new Government resulting from the parliamentary elections of 28 December 2003. These elections substantially modified the political landscape in Serbia after the dissolution of the previous ruling coalition (DOS) in November 2003 and the success of more nationalistic political forces (see document SG/Inf(2004)8). Following the composition of the new Government headed by Prime Minister Vojislav Kostunica, the Parliament of Serbia adopted important amendments to the electoral legislation:

- lowering of the threshold from 5% to 2% to facilitate the representation of national minorities’ political parties in the Parliament;

- withdrawal of the 50% voter requirement to validate the election of the President of Serbia. It is on the basis of this new legislation that the new President of Serbia should be elected in June 2004.

These two electoral reforms followed a number of recommendations of the international community, in particular from the Parliamentary Assembly, the Congress of Local and Regional Authorities of the Council of Europe and the OSCE/ODHIR. However, the allocation of seats in the Parliament by the political parties, an issue which has been criticised by the international community, was not changed by the recent electoral reform. The Venice Commission is still ready to provide assistance on the electoral legislative framework.

16. Another important development has been the reactivation of the constitutional reform process. In his governmental programme, Prime Minister Kostunica, put as one of his first priorities the adoption before the summer 2004 of a new Constitution of Serbia. The commitment undertaken when joining the Council of Europe was to harmonize the present Constitution of Serbia with the Constitutional Charter. The present Serbian Government is clearly in favour of adopting a completely new Constitution to replace the Constitution adopted in 1990 in a very different context. For this purpose, the activities of the Constitutional Committee of the Serbian Parliament have been reactivated. According to the Speaker of the Parliament, it should be possible to prepare a draft for adoption by the Serbian Parliament (two-third majority) and to subsequently submit it for referendum possibly in connection with the Presidential elections in June or with the forthcoming local elections in the autumn (as concerns action to be taken in the field of local democracy, see document SG/Inf(2004)8). Many observers in Belgrade are doubtful about the possibility of completing the constitutional work in time to respect the proposed deadline. Such a tight calendar will also affect the possibility of securing any substantial input from international experts. It remains essential that the Council of Europe Venice Commission be fully involved in this process.

17. At present, there is an idea to draft a relatively short and comprehensive text, a kind of Constitutional framework which would fix the main principles and political options of the Constitution, leaving the detailed content for subsequent constitutional legislation. Even such a text would have to address very complex issues which divide the present political forces in Serbia such as:

- the character of the State: ‘country of citizens’ or ‘country of the Serbs and other ethnic communities’?

- the question of territorial organisation, in particular the issue of the autonomy of Vojvodina;

- the election of the President by universal vote or by the Parliament.

Leaving aside the question of timing, the present composition of the Serbian Parliament could make it difficult to reach the required two-third majority on these very controversial issues.

b)     Republic of Montenegro

18. The political situation in Montenegro is still dominated by the boycott of the Parliament by the opposition parties. It should be noted that this boycott does not extend to the State Union Parliament, nor to the Delegation to the Council of Europe Parliamentary Assembly. The initial motives for the boycott (retransmission of the parliamentary debates by the Montenegrin TV) seem to have been superseded by more substantial political motivations. According to the present leadership, the boycott is mainly due to the fact that the opposition does not want to share the responsibility of difficult transition reforms.

19. The boycott by the opposition could in particular affect the constitutional process in Montenegro. A new Constitution of Montenegro would require a two-third majority in Parliament which is not possible to reach as long as the opposition boycotts parliamentary work. On the contrary, mere constitutional amendments to harmonize the present Constitution of Montenegro with the State Union Constitutional Charter would only require simple majority. At present, the Council for Constitutional Issues work on a new Constitution. The Secretariat Delegation was informed that the text adopted will take full account of the comments and opinions of the Venice Commission. Remains the issue of the adoption of the new Constitution and the possibility to submit it to a referendum.

B. Co-operation with the International Criminal Tribunal for the former Yugoslavia (ICTY) and prosecution OF OTHER WAR crimes

20. Undeniably, efforts have been made to strengthen co-operation with the ICTY after Serbia and Montenegro’s accession to the Council of Europe:

i.         the law on co-operation with the ICTY was amended in April 2003 in order to harmonise it with the Tribunal’s Statute and allow for full implementation of its orders; a National Co-ordination Council has been established;

ii.        several indictees have surrendered or been transferred to The Hague (according to the authorities, the total number of persons who have been transferred to the Tribunal by the Government or have surrendered voluntarily amounts to 23);

iii.       a number of requests for documents submitted by the General Prosecutor have been satisfied.

21. Nevertheless, the ICTY and its Prosecutor met increasing difficulties in co-operating with the authorities since Autumn 2003:

i.                  the National Co-ordination Council has failed to function effectively;

ii.                no arrest and no surrender has been reported since then;

iii.              the transmission of documents has been slow and the Prosecutor had to resort several times to Rule 54bis (Orders directed to States for the production of documents) to obtain key documents;

iv.              the procedure to grant waivers is slow and cumbersome and very few waivers for witnesses have been granted since then.

22. No significant progress can yet be registered in this respect since a new Government has been formed in Serbia. However, some encouraging statements have been made by the new Union Minister for Foreign Affairs, Mr. Vuk Draskovic. The latter described co-operation with The Hague Tribunal as Serbia and Montenegro’s “primary obligation” and called on the four senior army and police officers indicted in October 2003 to voluntarily surrender. In Serbia, in late April 2004, a positive measure was taken by the Belgrade District Court which has issued arrest warrants with respect to fourteen people indicted by the ICTY. However, these warrants do not concern the four above-mentioned army and police officers. Concrete results now remain to be seen.

23. Concerns have been expressed by many official and non-official interlocutors over the adoption – on 30 March 2004 – of a Law providing for financial assistance to ICTY indictees and members of their families. The adoption of this law was seen as discriminatory and as a political message of support to Serbian alleged war crime perpetrators. However, the authorities explained that similar provisions exist in other countries and that the law is aimed at facilitating the surrender of indictees. On 16 April 2004, the Constitutional Court decided to suspend the implementation of the Law and to give the Parliament 30 days to respond. In March 2004, the new Minister of Interior, Mr. Dragan Jocic, removed an ICTY indictee from his function as a senior official within his Ministry. Nevertheless, as of April 2004, he was still on the Ministry payroll.

24. In this context, the Secretariat Delegation was informed that the ICTY completion strategy might be postponed (see also document SG/Inf(2004)8).

25. As concerns domestic war crimes trials, legislative measures have been taken by the authorities. Specialised court departments, prosecutor’s office and police units have been created. The Secretariat was informed that this had led to some results in March 2004 in the “Podujevo (Kosovo) case” with a 20-year prison sentence given to Mr. Sasa Cvjetan for war crimes committed in 1999, although some pressure has allegedly been put on the judge. However, various interlocutors, including judges and prosecutors, consider that domestic judicial and prosecuting authorities do not have the capacity to deal with war crimes cases at present, especially since the impartiality and the independence of the Special Prosecutor for War Crimes and the War Crimes Chamber are still questioned (see below, item II.C.). Legislation on the protection of witnesses against intimidation is still lacking. Hence the need for the authorities to double their efforts to strengthen the rule of law.

C. RULE OF LAW

1. Action to strengthen the judicial and prosecuting authorities and secure their independence and impartiality

26. Whereas the European Convention on Human Rights entered into force on 3 March 2004, the independence, impartiality and efficiency of the Serbian and Montenegrin judicial and prosecuting authorities has remained one of the main issues of concern since Serbia and Montenegro’s accession to the Council of Europe.

At the Union level

27. The Court of Serbia and Montenegro has still not been established. The setting-up of such a Court has not been considered a priority by the Union authorities since the accession (see above, item II.A.).

At the level of member states of the State Union

28. In Serbia, there is still no genuine judicial reform. Quick adoption of controversial and repeated amendments made by the previous Government to the legislation failed to meet Council of Europe standards and demonstrated the lack of clear reform strategy. Of particular concern have been the strengthening and the independence (composition) of the Higher Judicial Council as well as the election/appointment of judges and deputy prosecutors (in this connection, see also recent Constitutional Court’s decision with respect to the appointments of presidents of courts, Humanitarian Law Centre, 6 April 2004). Council of Europe experts made a large number of comments and recommendations with respect to the Laws on the Higher Judicial Council, on Judges and on the Public Prosecutor’s Office, but the previous Government failed to bring the legislation in line with European standards.

29. In April 2004, quick and controversial amendments to the above-mentioned legislation were made by the new Minister of Justice, Mr. Zoran Stojkovic. Methods used to draft and adopt these amendments have been criticised, in particular as concerns the lack of prior public debate and sufficient consultations with professionals concerned.

30. Consequently, promises to bring the legislation in line with Council of Europe standards remain unfulfilled at present. Action is still needed to initiate a genuine judicial reform, with particular emphasis on the adoption of constitutional guarantees of judicial independence in the coming months. In this connection, it should also be noted that a Commission for Judicial Reform now replaces the former Council for Judicial Reform, which regrettably lacked effectiveness in the past. It is crucial that the Serbian Ministry of Justice make full use of Council of Europe expert recommendations.

31. In previous reports, concerns have been expressed about the lack of independence of the specialised court departments and prosecutors (war crimes and organised crime). Concrete measures are still expected to reinforce them and secure their independence.

32. The re-organisation of the judicial branch in Serbia highly depends on budgetary funds. Administrative and appellate courts have still not been established in accordance with the Law on Courts. According to the Serbian Ministry of Justice, the setting-up of these new courts cannot be completed before January 2007. This may therefore have a serious impact on the effectiveness of the judiciary.

33. In Montenegro, significant steps have been taken to adopt new laws, such as a new criminal legislation and a Law on the Public Prosecutor’s Office, although Council of Europe expert recommendations were not fully taken into account.

34. However, many interlocutors, including judges, indicated that the lack of proper implementation of laws is still subject to concern and affects the independence of the judiciary. A number of legal guarantees, as provided by the 2002 Law on Courts for instance, are still not effective. The Minister of Justice assured the Secretariat that a number of steps are to be taken, such as the signature of new rules of procedure. Specific concerns have been raised about the election/appointment of judges and prosecutors. In Montenegro, the Higher Judicial Council is exclusively composed of judges. However, according to the existing Constitution, new judges are still elected by Parliament upon proposals made by the Higher Judicial Council. Although the Speaker of the Parliament explained that parliamentarians lacked information on criteria used by the Council to make its proposals, it remains unclear why the Parliament, in December 2003, followed a number of proposals and rejected some others. This calls for a greater role of the Higher Judicial Council in the nomination of judges.

35. Some critics have been made about the lack of transparency in the context of appointment of the members of the Higher Council of Prosecutors. A new Law on the Public Prosecutor’s Office, adopted in December 2003, provides for a new system of appointment of prosecutors from which the Government is excluded. However, it should be noted that the Montenegrin Government appointed all new prosecutors in accordance with the previous legislation one month before the adoption of the new Law. In this context, the independence of recently appointed prosecutors has also been questioned by a number of interlocutors, including lawyers and judges. Some doubts have also been expressed over the independence of the Special Prosecutor for organised crime and corruption.

36. The re-organisation of the judiciary is also problematic. Administrative and appellate courts have yet to be established. However, the Secretariat was assured that concrete measures would be visible by June 2004.

37. In this context, the newly appointed Montenegrin Ombudsman, Mr. Sefko Crnovrsanin, highlighted that most of the complaints he received already relate to the functioning of justice, notably with respect to the excessive length of judicial proceedings and the non-execution of decisions (see also below, para. 47).

The transfer of competence of the military justice to the civilian judicial authorities of member states

38. At present, the military justice continues to operate in a legal vacuum. According to representatives of the civil society, the fact that both the Serbian and the Montenegrin authorities have failed to re-organise their respective civilian judicial system has had a serious impact on the implementation of the Constitutional Charter with respect to the functioning of military courts. As no Union Court has yet been established, Serbia and Montenegro is also deprived from a judicial tool, which could have helped solving this issue. Likewise, Constitutional Courts of the respective member states of the Union did not react.

39. High officials at Union level and at the level of member states met by the Secretariat Delegation agreed that serious difficulties are met on this matter and indicated that urgent action is needed to ensure the transfer of the competence of military courts, Military Prosecutor’s Offices and Military Attorneys’ Offices to the authorities of the member states (see also last quarterly report, document SG/Inf(2004)8). According to the Constitutional Charter, adequate legislation should have been adopted by 4 August 2003. In Montenegro for instance, the Secretariat Delegation was informed that the 2002 Law on Courts provided for the transfer of cases from military courts to Montenegrin ordinary courts, but the actual transfer has not taken place yet. Many official and non-official interlocutors pointed out that the recent entry into force of the European Convention on Human Rights has therefore raised a number of issues as concerns the independence and the impartiality of the military authorities and their ability to try civilians. The urgency of the matter has been illustrated by action taken by the military prosecuting bodies against Mr. Vladan Vlajkovic, who has been suspected of divulging military secrets in a recent book published by the Helsinki Committee of Human Rights in Serbia (HCHRS) and who was detained for one month until 16 April 2004 (for more detailed information, see HCHRS Report of 4 April 2004; International Helsinki Federation, 27 March 2004; Belgrade Centre for Human Rights, 30 March 2004; see also below, item II.D.).

2. Police and security forces: need to enact adequate legislation, to strengthen supervisory mechanisms and to increase the efficiency of police work

40. The principle of the rule of law as enunciated in the Council of Europe Statute, and the principle of legality as embedded in the now ratified ECHR, require that the Serbian and Montenegrin authorities construct a clear legislative framework within which all police and security forces are organised and carry out their functions. The authorities committed themselves to enact legislation on the reform of police within one year after accession, but failed to do so both in Serbia and in Montenegro. However, a number of concrete steps have been taken by the authorities of both republics.

41. In Serbia, the assassination of the then Prime Minister, Mr. Zoran Djindjic, has revealed that close ties have been created between some police and security forces and organised crime. In this context, particular attention has been paid to the “decriminalisation” of police and security forces and the fight against organised crime. The new Minister of the Interior, Mr. Dragan Jocic, intends to take further steps in this direction. It remains essential that all measures to be taken in this respect fully comply with the principles of the rule of law.

42. In 2003, during the state of emergency, a large scale police operation (‘Saber’ operation) resulted in about 10,000 arrests. All persons arrested in this context were in pre-trial detention or had been released in June 2003. However, serious concerns have been expressed with respect to the extension of police powers that was not required by the requirements of the situation and did not fully comply with CoE standards, consistent reports of police abuse and the poor quality of police investigations. If some amendments were made in early July 2003 to the criminal legislation, which was at that time a positive step forward, these concerns pleaded for resolute action to adopt adequate laws regulating police and security forces in compliance with Council of Europe standards. This includes the strengthening of supervisory mechanisms and measures to increase the efficiency of police activities.

43. In this context, draft legislation on internal affairs and police education had been prepared. Council of Europe experts provided a number of comments and recommendations on the draft Law on Internal Affairs in late 2003. The new Government withdrew the draft legislation submitted to Parliament by the previous Government and the Minister of Interior indicated that a new version of the legislation relating to internal affairs, police ethics and police education should be sent to the Council of Europe for expert appraisal as soon as possible. In this context, the new Minister stressed that he is willing to reinforce internal and external control mechanisms in police and security matters.

44.  In Montenegro, although important legislation has been passed in the field of criminal justice, the Parliament failed to adopt the draft laws on Police and on the State Security Agency. Divergence of views still exists over the possible prior consent of the Parliament in the appointment of heads of police and security agencies. Whereas the Government and a number of parliamentarians from the ruling coalition consider that such consent does not correspond to the general trend in Council of Europe member States, the Speaker of the Parliament stressed that, due to specific historical reasons, the involvement of the Parliament in the appointment of these two key posts remains crucial. It is hoped that a compromise solution will be found in the nearest future. According to the Minister of Interior, Mr. Dragan Djurovic, the fact that these laws have still not been adopted should have little impact on the implementation of the new criminal legislation and the Law on the Public Prosecutor’s Office as these also include relevant provisions from the draft Law on Police. As regards internal control of police forces, according to the information provided by the Ministry of Interior, a number of criminal and disciplinary procedures have been initiated: for instance, from 1 January 2003 to 1 April 2004, criminal procedures have been initiated against 49 employees of the Ministry of Interior and disciplinary procedures, due to serious breach of working duties, have been initiated against 286 employees of the Ministry of Interior.

3. Measures to protect witnesses against intimidation

45. An effective protection of witnesses against intimidation is still lacking in both Serbia and Montenegro. In Serbia, the new Minister of Justice indicated that legislative measures should be taken in the field of witness protection. In Montenegro, positive steps have been taken, notably in the context of the follow-up given to the Council of Europe/OSCE Report on Trafficking in Human Beings. A draft law on witness protection is being prepared with Council of Europe assistance in order to supplement relevant provisions of the new Code of Criminal Procedure. The law should be on the Parliament’s agenda in June 2004.

4. Action to fight against corruption and related matters

46. Back in October 2003, the authorities of Serbia and Montenegro took a step forward by signing and ratifying the European Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (ETS No. 141) and have been encouraged to sign and ratify other relevant Council of Europe instruments, particularly in the field of corruption.

47. In Serbia, an Anti-Corruption Agency monitors corruption cases and can issue public reports. In mid-April 2004, legislation on conflicts of interest was adopted. In Montenegro, a programme to fight against corruption and organised crime is being elaborated and Council of Europe experts provided their opinions in January 2004. In March 2004, the Parliament adopted Laws on Political Parties and on the Financing of Political Parties. A law on conflicts of interest was also adopted in April 2004. However, the Montenegrin President has sent it back to Parliament for review.

5. Other important measures

48. In Serbia, a number of pieces of legislation are being prepared, such as a draft Code of Civil Procedure, a draft law on the enforcement of criminal sanctions or draft amendments to the Law on the Lawyer’s Practice. In this context, it remains crucial that Council of Europe expertise be used to the fullest extent.

49. In Montenegro, the authorities adopted new legislation, such as a draft Law on Civil Procedure and legislation on the execution of judicial decisions. A draft Law on Notaries has been sent to the Council of Europe for expert appraisal.

D. HUMAN RIGHTS

1. Measures to ratify the European Conventions on Human Rights and on the Prevention of Torture and their concrete implementation at domestic level

50. The ratification of the ECHR and the ECPT on 3 March 2004 constitutes one of the most significant steps taken by Serbia and Montenegro in the fulfilment of its commitments. The ECHR entered into force on the date of ratification whereas the ECPT should enter into force on 1 July 2004. Consequently, measures should urgently be taken by the authorities at all levels (State Union level and the level of both member states) to ensure that these conventions become fully operational. Action is still required:

-          to present candidatures for the election of a judge to the European Court of Human Rights with respect to Serbia and Montenegro, although first steps have already been taken in this direction;

-          to set up the Office of the Government Agent before the Court; in this context, the then Union Minister of Foreign Affairs, Mr. Goran Svilanovic, indicated that this clearly should be under the responsibility of his Ministry. However, the question of the links between this institution and the two member states for securing proper implementation of the ECHR and the execution of future judgments has not been discussed yet;

-          to indicate to the Committee for the Prevention of Torture (CPT) which authority is competent to receive notifications to the Government, and to inform it of any liaison officer they may appoint, but no authority in the two member states is at present identified as responsible for this purpose;

-          to initiate the procedure to provide the candidatures for the future election by the Committee of Ministers of a member of the CPT with respect to Serbia and Montenegro.

51. Particular emphasis should be put on the concrete implementation of the ECHR and the ECPT standards at national level. As indicated in the previous report, the recent ratification of these instruments cannot hide the very limited capacity of Serbian and Montenegrin judicial systems to implement European standards, and in particular the ECHR, at domestic level. Since Serbia and Montenegro’s accession, a number of allegations of human rights violations, including ill-treatment by police officers, have been registered by NGOs. Efforts should therefore be pursued and intensified in various fields of action, notably:

-          to ensure that laws and regulations are compatible with ECHR and ECPT standards and, where necessary, to take further measures to ensure their effective implementation. In this connection, the authorities are encouraged to bring their legislation into conformity with the ECHR as soon as possible in order to be able to withdraw their reservations (see http://conventions.coe.int).In Serbia, the compatibility exercise was completed in late 2002. A working group is now finalising its evaluation of the compliance of the criminal procedure with ECHR. In Montenegro, the results of the compatibility exercise should be presented at a Conference in Podgorica in October 2004. Particular attention should now be paid to the implementation of the new criminal legislation and the Law on the Public Prosecutor’s Office;

-          to intensify training of judges, prosecutors, police officers and lawyers on ECHR standards. In parallel, serious efforts should be undertaken in the field of law education.

2. Measures to ensure an effective protection of national minorities

52. Ethnically motivated violence in Kosovo in March 2004 call for renewed vigilance in the field of protection of national minorities in Serbia and Montenegro. Emphasis should be put on the implementation of recommendations made by the Advisory Committee of the Framework Convention for the Protection of National Minorities in its Opinion of 27 November 2003, which was made public on 2 March 2004 (see Council of Europe Internet Site: www.coe.int). The Council of Europe Committee of Ministers will now examine the Opinion and the comments of the Government with a view to adopting their conclusions and recommendations.

53. According to the authorities of Serbia and Montenegro, the protection of national minorities is addressed by a number of legal texts at different levels:

-          At the Union level: by the Charter on Human and Minority Rights and Civil Freedoms (known as the ‘mini-Charter’) and by the 2002 Law on the Protection of the Rights and Freedoms of National Minorities, adopted by the then Federal Parliament;

-          at the level of member states of the Union:

-         Serbia: by the 2002 Law on the Protection of the Rights and Freedoms of National Minorities, adopted by the then Federal Parliament;

-         Montenegro: the authorities are still expected to adopt a new legislation on national minorities. Council of Europe experts made a number of recommendations and comments in March 2004. The second draft, which has taken on board some of these recommendations, was submitted to the Government mid-April. Of particular concern remain the provisions on the election and functioning of the Councils of national minority (the advisory bodies which should contribute to increasing effective participation and representation of minorities), as well as the provisions concerning the legal protection of the rights guaranteed by the draft law by the Constitutional Court, which lack clarity. Concerns have also been expressed as to the manner in which data was collected during the last 2003 census, in particular with regard to Roma community.

54. As highlighted by the Advisory Committee, the “main problems in the protection of national minorities in Serbia and Montenegro pertain to the implementation of the relevant norms in practice, which is at times hampered by the limited co-operation between the relevant authorities of the State Union and its constituent states and the lack of clarity as to their relative competences”. The Union Minister of Minority and Human Rights has very limited competences and means of action. Its main task has been the creation of “National Minority Councils”. To date, 10 such councils have been created, including a Roma Council, but their responsibilities, role and capacities for action remain unclear. A working group has been set up to draft a Union Law on National Minority Councils, which would serve as a frame for implementation laws at the level of member states.

3. Immediate action to protect freedom of the media

55. The situation of the media is particularly worrying in Serbia. Implementation of the Broadcasting Law still gives cause for concern, in particular with regard to the setting-up of a legitimate and effective Broadcasting Council. The election of three members of the Council was contested and two other members resigned in protest in mid-2003. The new Minister of Culture, Mr. Dragan Kojadinovic, examined a number of possible actions and indicated that he would take immediate measures in this regard. He indicated that procedural deficiencies could have been identified in the election process of two candidates and that the procedure should be initiated to secure their re-election in accordance with the law. However, a number of media and NGO representatives deplored that this approach cannot lead to the establishment of a legitimate Council. They recalled that the election of three members is contested, including the Kosovo representative, whose qualifications have been questioned, and that two members resigned. They therefore underlined the necessity of a renewed election process of the five persons. In this context, the renewed election process of Council’s members should fully comply with Council of Europe standards (see in particular Committee of Ministers Recommendation Rec(2000)23 on the independence and functions of regulatory authorities for the broadcasting sector).

56. The setting-up of a legitimate and effective Broadcasting Council is crucial for the future the allocation of broadcasting licenses and the transformation of the State Radio and Television company (RTS) into a genuine public service broadcaster. In addition, no Telecommunication Agency has been established yet. As concerns RTS, serious critics have been made by many interlocutors over the appointment of a new acting Director in violation of the ‘spirit’ of the Broadcasting Law and of the RTS Statute. The Secretariat Delegation was informed that the Law on Public Companies has been applied in this particular case. Members of the managing board subsequently resigned in protest. The Minister of Culture explained that the applicable law, i.e. the Broadcasting Law, has not yet been applied and therefore advocated that the Broadcasting Council should be effective as soon as possible.

57. The Minister of Culture suggested that existing laws pertaining to freedom of the media be reviewed. However, for the sake of stability, emphasis should be put on the adequate implementation of these laws in accordance with Council of Europe standards. As concerns draft laws, the draft Law on Free Access to Public Information has been withdrawn from Parliament. The Government should pay particular attention to previous Council of Europe expert recommendations with respect to these laws and concerns expressed in previous reports. The Council of Europe is ready to provide further assistance in this context and the authorities may send their new draft to the Council of Europe for expert appraisal.

58. Violence against journalists was a problem raised in previous reports (see SG/Inf(2004)8, para 65). Recent physical attacks and death threats against the owner of two Belgrade dailies in late March 2004 give cause for concern (IPI/IFEX, 22 April 2004; see also Reporters sans frontières, 29 March 2004, as concerns a bomb found under the vehicle of a crew from Serbian independent B92 television). 

59. In Montenegro, although the implementation of media laws is slower than foreseen, serious efforts have been made to adopt legislative measures in accordance with Council of Europe standards. Since the entry into force of the new criminal legislation in April 2004, journalists cannot be sentenced to prison for defamation. In the meantime, a number of interlocutors highlighted that the draft Law on Free Access to Information should be adopted as soon as possible, bearing in mind Council of Europe recommendations and concerns expressed in previous reports. The process of developing a frequency plan should be accelerated, in order to enable the procedure of licensing the broadcasting services by the Broadcasting Agency.

4. Other important measures

60. As regards social and economic rights, the need for a better implementation of the principles enshrined in the European Social Charter has been particularly highlighted in the previous report. The signature of the Revised European Social Charter could be a step forward in the preparation for ratification of the Charter by April 2005.

61. As concerns the effective functioning of the institution of Ombudsman, no concrete action has still been taken to set up such an institution in Serbia, although an ombudsman institution already exists in Vojvodina. In Montenegro, the new ombudsman institution registered a number of complaints, but more emphasis should be paid on awareness-raising activities to inform the public about its functions and powers. More contacts should also be made with the civil society, which could be instrumental in this respect. Also, this institution should undertake legal action on its own initiative, as provided by the law.

62. With respect to measures to fight against trafficking in human beings in Montenegro, although a number of steps have been adopted to follow up OSCE/Council of Europe expert recommendations, such as the adoption of an Action Plan, the Montenegrin authorities explained that they are aware of the expectations of the international community in this field and agreed that substantial results are yet to come. Efforts should be pursued in this context.

63. Positive developments can be registered in the field of conscientious objection and alternative service since Serbia and Montenegro’s accession with the adoption of the Union Council of Ministers’ Decree on Civilian Alternative Service, which took effect in mid-October 2003. According to the information provided by the Union Minister of Defence, Mr. Boris Tadic, at the moment of the Secretariat visit, 2637 persons had requested the status of conscientious objectors, 1734 were already involved in alternative service in one of the 228 institutions with which the Ministry had concluded agreements.

64. As regards freedom of association and status of NGOs, Serbia and Montenegro has committed itself to enact, within one year of its accession, legislation on citizens’ association and NGOs consistent with European standards for non-profit organisations. However, there is still no legal basis for NGO activities in Serbia. Measures should now be taken in this respect (see also Fundamental Principles on the Status of Non-governmental Organisations in Europe, available in Serbian on the Council of Europe Internet Site). Following the raid of military law-enforcement agencies at the headquarters of the Helsinki Committee for Human Rights in Serbia, concerns have been expressed over possible pressure on human rights NGOs.

65. As concerns legislative and other measures to protect refugees and internally displaced persons, Serbia and Montenegro committed itself to enact, within one year of its accession, legislation to enable the implementation of the Geneva Convention on the Status of Refugees and the 1967 Protocol thereto to be implemented, but no significant step has yet been taken in this respect. However, some measures have been initiated in Montenegro. Recent events in Kosovo call for an increased attention to measures taken with respect to displaced persons. The accession of Serbia and Montenegro to the Council of Europe Development Bank could be instrumental in improving the living conditions of refugees and internally displaced persons.

E. EDUCATION

66. The need for action in the field of education has been highlighted in the previous report. In this connection, the Belgrade Fund for Political Excellence is a part of the network of schools for political studies that the Council of Europe supports. It is a non-governmental, non-partisan and non-profit organisation which aims at building and promoting a sustainable, new and responsible leadership in the political and civil society spheres. Shorter regional seminars, as well as several specialised courses and open fora, are also planned to increase the number of people involved, and intensify capacity-building in key fields of public life.

67. In Serbia, the new Minister of Education and Sport, Ms. Ljiljana Colic, expressed her readiness to continue to co-operate with the Council of Europe and highlighted the importance of the recent ratification of the Convention on the Recognition of Qualifications concerning Higher Education in the European Region in March 2004. The Minister highlighted that much work remains to be done by her Ministry, notably as concerns:

-          the reform process on higher education; in this context, several draft laws should still be examined by the Ministry;

-          measures for the education of minorities; in this regard, members of the Roma community constitute the most vulnerable population;

-          further efforts are also required to reform history teaching and civic education.

68. In terms of religious education, the Minister deplored that there is not much capacity to improve the situation. In this connection, she indicated that pupils will have to choose between religious and civic education. However, note should be taken that measures are required to ensure that these two subjects are not opposed to each other.

69. In Montenegro, NGO representatives informed the Secretariat that significant steps have been taken by the authorities through the reform of teaching curriculum and textbooks, but deplored that national minorities are not sufficiently represented in working groups dealing with education reform.

APPENDIX

Programme of the Secretariat’s visit to Belgrade and Podgorica

(4-8 april 2004)

Sunday, 4 April 2004

11.00 pm         Arrival at Belgrade airport

Monday, 5 April 2004– Belgrade

10.00 am         Meeting with Mr. Zoran Sami, President of the Parliament of Serbia and Montenegro

11.30 am         Meeting with Mr. Rasim Ljajic, Minister of Human and Minority Rights of Serbia and Montenegro

1.00 pm           Meeting with Mr. Boris Tadic, Minister of Defense of Serbia and Montenegro

3.00 pm           Meeting with Mr. Deyan Mihov, Head of Office, ICTY and Mrs. Alexandra Milenov, Outreach Coordinator, ICTY

4.30 pm           Meeting with Mr. Dragan Kojadinovic, Minister of Culture and Media of Serbia

5.30 pm           Meeting with Mr. Omer Hadziomerovic, Association of Judges of Serbia and Mr. Zlatko Sulovic, Association of Prosecutors of Serbia

8.00 pm           Dinner offered by Mr. Zeljko Perovic, Head of Sector for Multilateral Affairs, Ministry of Foreign Affairs

Tuesday, 6 April 2004- Belgrade

8.45 am           Meeting with Mrs. Gordana Comic, Committee for International Affairs of the Parliament of Serbia

9.30 am           Meeting with Mr. Milos Aligrudic, Committee for Legislative Affairs of the Parliament of Serbia

10.15 am         Meeting with Mr. Branislav Ristivojevic, Committee for Judiciary and Administration the Parliament of Serbia

11.00 am         Meeting with Mr. Predrag Markovic, President of Parliament of Serbia and President of the Committee for Constitutional Affairs

12.30 pm         Meeting with Mr. Dragan Jocic, Minister of Internal Affairs of Serbia

2.30 pm           Meeting with Mr. Branislav Bjelica, Deputy Minister of Justice of Serbia

3.30 pm           Meeting with Mrs. Ljiljana Colic, Minister of Education and Sports of Serbia

4.45 pm           Meeting with Mr. Sasa Mirkovic, B92 and Mr. Nebojsa Bugarinovic, NUNS

5.45 pm           Meeting with Mrs. Sonja Biserko and Mrs. Natasa Novakovic, Helsinki Committee for Human Rights in Serbia and

Mr. Dragan Lalosevic, Humanitarian Law Center

Mrs. Tatjana Papic, Belgrade Center for Human Rights

Mr. Sasa Gajin, Assistant, Institute of Comparative Law

8.00 pm           Dinner with: H.E. Mr. Bernard C.A.F. van der Heijden, Ambassador of the Netherlands

H.E. Mr. Maurizio Massari, Head of OSCE Mission

Mr. David Hudson, Delegation of the European Commission

Wednesday, 7 April 2004 - Podgorica

9.20 am           Arrival in Podgorica

10.00 am         Meeting with Mr Dragisa Burzan, Minister of Foreign Affairs of Montenegro

10.50 am         Meeting with Mr Dragan Djurovic, Minister of Interior of Montenegro

11.40 am         Meeting with Mr Zeljko Sturanovic, Minister of Justice of Montenegro

12.30 pm         Meeting with Mr Gzim Hajdinaga, Minister for Protection of National Minorities of Montenegro

1.20 pm           Working Lunch hosted by Mr Aleksandar Mostrokol, National Coordinator for Fight Against Trafficking in Human Beings of Montenegro

2.45 pm           Meeting with Mr Ranko Krivokapic, President of the Parliament of Montenegro

4.15 pm           Meeting with Mr Milo Djukanovic, Prime Minister of Montenegro

5.00 pm           Meeting with NGOs representatives

Mr Zlatko Vujovic, Center for Monitoring (CEMI)

Mr Slobodan Franovic, Montenegrin Helsinki Committee

Mr Sava Popovic, Humanitarian Law Fund

6.30 pm           Meeting with NGOs representatives

Mr Stanko Maric, Association of Lawyers

Mr Zoran Pazin, Association of Judges

Mr Velija Muric, Montenegrin Committee of Lawyers for Protection of Human Rights

6.30 pm           Meeting with NGOs representatives

Mr Senko Cabarkapa, Independent Self-regulatory Body

Mr Boris Darmanovic, Association of Young Journalists

Mr Vojislav Raonic, Institute for Media

Mr Ranko Vujovic, Union of Independent Electronic Media (UNEM)

8.00 pm           Meeting with Mr Sefko Crnovrsanin, Ombudsman

9.00 pm           Departure to Belgrade

Thursday, 8 April 2004- Belgrade

9.00 am           Meeting with Mr. Goran Svilanovic, Minister of Foreign Affairs of Serbia and Montenegro

12.45 pm         Lunch with Mrs. Sonja Licht, Director, Belgrade Fund for Political Excellency

1.00 pm           Meeting with Mr. James Lyons, International Crisis Group

3.25 pm           Flight to Vienna

*          *

*

Composition of the Secretariat Delegation:

Mr. Jean-Louis Laurens, Director of Strategic Planning, Head of the Delegation

Mr. Johan Friestedt (Monitoring Department),

Mr. Fredrik Holm (Co-ordination Unit),

Ms Dana Pescarus (Monitoring Department),

Mr. Jorgen Grunnet, Special Representative of the Secretary General, Belgrade,

Mr. Vladimir Ristovski, Head of the Council of Office, Podgorica.