Strasbourg, 2 November 1998

Report on the visit to monitor the trials of Mr Rufi Osmani, Mayor of Gostivar, and Mr Aladjin Demiri, Mayor of Tetovo, ("the former Yugoslav Republic of Macedonia"), from 15 to 18 June 1998

Rapporteur: Jean-Claude FRECON (France)

Including the conclusions adopted by the Bureau of the Congress on 2 November 1998 (page 10) after examination of the draft report [CG/BUR (5) 18 rev] and the comments of the Government of “the former Yugoslav Republic of Macedonia” (Appendix 3) produced by Jean-Claude Frécon, Mayor of Pouilly-les-Feurs, member of the Congress of Local and Regional Authorities of Europe of the Council of Europe, Vice-Chair of the Working Group on the European Charter of Local Self-Government

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Introduction

Following the announcement of the imprisonment of the Mayor of Gostivar¹, Mr Jean-Claude Frécon was asked by the Bureau of the Congress to visit "the former Yugoslav Republic of Macedonia" to monitor the cases of the mayors of Tetovo and Gostivar, both members of the Albanian minority, who had been sentenced in October 1997 to prison terms of two years and six months and thirteen years and eight months respectively, for refusing to comply with a decision of the Constitutional Court. In addition, Mr Osmani, the Mayor of Gostivar, had also been charged with a) inciting religious, racial and national hatred, disunion and intolerance and b) organising resistance. The delegation's visit followed an initial fact-finding visit by Mr Frécon in October 1997 (see CG/BUR (4) 43, CG/BUR (4) 48, CG/BUR (4)53 rev. and Add. and CG/BUR (4) 54). Among others, the delegation met representatives of the ministries of justice and foreign affairs, the Macedonian delegation to the CLRAE and Macedonian political parties and the mayors of Tetovo and Gostivar (see the appended programme of the visit).

Both Mr Ivanovski, chargé d'affaires at the Permanent Representation of "the former Yugoslav Republic of Macedonia", and the authorities on the spot co-operated fully to ensure the visit went smoothly by arranging the necessary authorisations and official appointments.

This report sets out developments in the legal proceedings against the two convicted mayors and the consequences of these decisions for the functioning of local democracy in the country. The comments of the Government in function in October 1998 have been included in this report and appear in full in Appendix 3.

The conclusions adopted by the Bureau of the Congress on 2 November 1998 appear in page 10.

1. Additional information on the events of 8 July 1997 and the parliamentary committee of inquiry

From the information gathered during this second visit, it appeared that the situation was more tense than on the previous one. This was confirmed by numerous sources, particularly the representatives of the Albanian Prosperity Party (PDP, a member of the current governing coalition). Mr Sulejman Liman, a member of the Albanian Democratic Party (DPA) and of Gostivar municipal council, who on the night of 8-9 July 1997 had been a member of the four-person "contact group" liaising between the assembled crowd and the security forces, gave a particularly moving account. He referred to the “violence” of the security forces, which culminated in their firing in the direction of the group's four members, who were only saved by the sudden arrival of a United Nations vehicle. Mr Liman told us that he had not hitherto spoken of this incident, because the Macedonian parliamentary committee of inquiry had not given him, or the other three members of the contact group, a hearing. The government wished to make it clear that the parliamentary committee of inquiry included two representatives of the Assembly, members of the PDP, the DPA having, for its part, refused to appoint representatives.

It appeared from information gathered on the visit² that the parliamentary committee of inquiry had reported to the government but the Ministry of Justice was unable to tell us what action had been taken on the report. At this stage, neither the inquiry report nor the conclusions have been transmitted to the Rapporteur, despite his request. Mr Demiri, the Mayor of Tetovo, thought that this was the fifth committee of inquiry to have been established and that none of the previous ones had achieved anything. There was no reason therefore to expect any more results from this one.

Turning to the merits of the issue, at the request of seven opposition parties, the Constitutional Court has been invited to rule on the constitutionality of the law of 8 July 1997 on the use of flags. For information, the two mayors were convicted of refusing to comply with an interim Constitutional Court decision based on an interim interpretation on the 1989 law on the use of ethnic flags, pending the enactment of new legislation. If the law were to be declared unconstitutional, this could affect the two mayors' convictions. The government, for its part, maintains that there cannot be a link between the examination of the constitutionality of the law and the sentences pronounced against the two mayors (see appendix). It points out, furthermore, that the Constitutional Court attacked the decision of the municipal councils concerning the use of flags, on the basis that this issue is not a matter for local authorities. It should be noted that the mayors and presidents of municipal councils were sentenced in the criminal court.

2. Progress of the three sets of legal proceedings considered on the first visit in October 1997

2.1 Situation of Rufi Osmani, Mayor of Gostivar, and Refik Dauti, chair of its municipal council

After being sentenced to 13 years and 8 months' imprisonment by the Gostivar district court (see above), Mr Osmani lodged an appeal. On 5 February 1998, the court of appeal handed down a final and enforceable judgment reducing Mr Osmani's sentence to 7 years and 8 months. The latter asked the supreme court to review his case, which would not have suspended the application of the sentence, but the court declared the application inadmissible on 12 May 1998. Similarly, the Gostivar court rejected the application lodged on 9 April 1998 to defer his imprisonment on medical grounds.

On 27 May 1998, during the CLRAE's plenary session in Strasbourg, Mr Frécon asked the chargé d'affaires from “the former Yugoslav Republic of Yugoslavia” to arrange for the delegation to visit Mr Osmani in prison in Skopje. This was confirmed at the beginning of June and at 11 am on 16 June, during our first visit to the Ministry of Justice, we were informed that we would see Mr Osmani in prison at about 1.30 pm and given instructions on how to get there. Then five minutes before the end of our meeting at the ministry, we were informed in the same office that we could not see Mr Osmani in prison because he had been admitted to hospital. The official responsible for the execution of sentences at the Ministry of Justice joined us to tell us where to find Mr Osmani and informed us that the meeting could last about thirty minutes and that the prison doctor would be present.

The rapporteur found Mr Osmani physically much weaker and flabbier than at the previous meeting in October 1997. His room was situated in a dilapidated detention block of Skopje hospital. Mr Osmani, who had clearly not been informed of our visit, told the delegation that he had himself asked to be admitted to hospital, with the prison doctor's agreement, for a problem with his leg. The prison doctor was present during the visit, having been asked by the Macedonian authorities to answer our medical questions – though this was not the purpose of our visit – and attend the meeting. Nevertheless, our conversation, conducted by Mr Osmani in English, proceeded without interference and was not subject to any time limit. Mr Osmani had been in hospital for fifteen days and said that he had asked to be returned to prison four days previously to be able to take more exercise. He also told us that he was suffering from complete isolation. Nor did there appear to have been any improvement in the condition of his leg. As the tests were nearly completed, he preferred to return to prison. In fact he did so at the end of our forty-five minute conversation, entering a vehicle at the same time as we were leaving the hospital, to which he returned at the end of June for a biopsy of his leg. The delegation did not therefore see Mr Osmani in Skopje prison and did not, on this occasion, request a meeting with Mr Dauti, the chair of Gostivar municipal council.

Mr Osmani appeared to have given up hope of a presidential pardon³ after the supreme court had handed down its decision and his lawyer was now preparing an application to the European Court of Human Rights in Strasbourg. He hoped for an acquittal since he still considered that his actions had been in accordance with his party's political undertakings and the deliberations of Gostivar municipal council. He said that it was possible that many of the town's inhabitants would boycott the next general parliamentary elections in autumn 1998. He referred to the numerous – unsuccessful – demonstrations that had followed his voluntary entry into prison on 9 April. He and his friends had made three main demands, which the Macedonian government had to respond to if it wished to calm down the situation:

- the legalisation of the Albanian speaking University of Tetovo;

- recognition of Albanian as the country's second official language;

- proportional representation of the Albanian minority in all public institutions and enterprises.

He also regretted what he considered to be the over-passive attitude of international organisations but he thanked the Council of Europe for continuing to keep him in mind. The rapporteur reminded him, however, that the Council of Europe could not intervene in the legal procedures of "the former Yugoslav Republic of Macedonia".

2.2 Situation of Mr Aladjin Demiri, Mayor of Tetovo, and Mr Vehbi Bexheti, chair of its municipal council

Since the first visit, the situation has developed as follows: on 26 December 1997, the court of appeal set aside the district court's judgment of 14 October 1997 on grounds of insufficient evidence and referred the case to the court of first instance, which confirmed the sentence of two years and six months' imprisonment on 4 March 1998. On 5 May, the court of appeal reduced Mr Demiri's and Mr Bexheti's sentences to two years' imprisonment.

For information, it was Mr Demiri who drew the attention of Mr Claude Haegi, President of the Congress, to this problem. The rapporteur contacted Mr Demiri by telephone on his arrival and was told by him that the local television station had reported the arrival of the CLRAE team, something he himself had not sought. The delegation met Mr Demiri twice on 17 June. The first meeting took place in the town hall, and was also attended by Mr Bexheti, the chair of the municipal council. Mr Demiri was preparing his family psychologically for his imprisonment, from now on leaving it to his lawyers to conduct the proceedings before the supreme court. He also was disillusioned by what he considered to be the excessively passive attitude of the international organisations. He said that he would enter Tetovo prison voluntarily (whereas Mr Osmani was imprisoned in Skopje) on 24 June. Mr Bexheti was imprisoned on 30 June, having secured a brief additional postponement to enable him to complete the school year in his capacity as a teacher. Mr Demiri told us that there had been an orchestrated media campaign falsely suggesting that he might evade prison, after he had heard about the appeal court's final decision while attending, with four other mayors of all persuasions from "the former Yugoslav Republic of Macedonia", a one-month seminar in Paris organised by the French embassy. He had been very moved by the attention he had received from the international media during the seminar's final stages. He had asked people not to demonstrate when he entered prison. He disputed the justice of his conviction, when the constitutionality of the law of 8 July 1997 was currently under question. Like Mr Osmani, he thought that this was a political, rather than just a procedural, issue. He could not understand the government's determination to remove Mr Osmani and himself once and for all from public life when they both represented a "co-operative" tendency and their imprisonment could result in a new hardening of attitudes in the Albanian community and bring to power at the local level persons who were more attracted to radical solutions. He confirmed his own belief in a multi-ethnic and tolerant Macedonia. The conflict in neighbouring Kosovo could only nourish resentment and violent action among part of the Albanian community and help to draw it closer together⁴.

In this context, the rapporteur gave Mr Demiri and other persons whom the delegation met copies (translated into Macedonian and Albanian) of Recommendation 44 (1998) on the Crisis in Kosovo, adopted at the CLRAE's last plenary session, and the report by MM Cuatrecasas and Likhatchev.

Later in Tetovo, we met Mr Bilali, vice-president of the PDP, a member party of the governing coalition, and a member of parliament, accompanied by Mrs Mukades, president of the party's youth movement. He outlined the main aspects of his party's views on the Albanian problem, which corresponded in every respect to those mentioned by Mr Rufi Osmani and those described an hour later by the DPA representatives. According to Mr Bilali, the only difference lay in the method. He thought that they were better placed to promote the claims of the Albanian minority inside the government coalition. In reply to the rapporteur, Mrs Mukades said that among young people, contacts between Albanians and Macedonians were fairly frequent and usually correct. She also described with considerable emotion how she had experienced 9 July 1997. Like the others, she had felt herself subjected to particularly close attention that day and morally assaulted by what she considered to be a massive and extraordinarily exaggerated deployment of heavily armed police, including armoured vehicles.

We then met Mr Menduh Thaci, vice-president of the DPA, the Albanian party of which Mr Osmani and Mr Demiri are members, in the absence of the president, Mr Xhaferi, who had had to travel abroad that morning. He outlined his programme, as described above, whose objectives were in accordance with those referred to by Mr Osmani. The delegation noted that the programme referred to the constitution of an multiethnic Macedonia, but not to the proposed "Greater Albania", as certain declarations suggested, or to a federation⁵. Mr Demiri has also provided us with copies of correspondence sent to the prime minister concerning the resignations of DPA elected councillors, letters of which the Ministry of Justice was apparently unaware (see below).

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2.3 Rapporteur's comments

The rapporteur would like to make a number of general points relating to the overall issue of the Albanian minority, following the various meetings with the representatives of the OSCE, the Macedonian local authorities association and the delegation of "the former Yugoslav Republic of Macedonia". The representatives of the “Macedonian Association of local authorities”, who include a certain number of members of the CLRAE delegation, did not take a position on the problem of mayors of Albanian origin but did hope that the mayors would be replaced rapidly. This association has been newly recreated with two chambers, one for mayors and one for municipal councillors. Two posts of deputy chairs of the chambers' bureaux have been reserved for the DPA and the PDP parties respectively. However, the association was still awaiting the nomination of the DPA official to the post of deputy chair of one of the chambers. The information we received seems to show that the inter-community dialogue has become blocked, particularly in the pre-election context.

A meeting had been organised with local officials of Macedonian political parties to coincide with our visit to the local democracy embassy in Ohrid. The situation in Ohrid was described. The Turkish, Albanian, Roma and Vlach minorities make up a small (14%) part of the population and no mention was made locally of particular problems of cohabitation. However, speaking personally, each of the political party representatives expressed his strong views on what they saw to be the weakness of the government's multi-ethnic policy.

2.4 Situation in Vevčani

The Ministry of Justice informed the delegation that on 20 May 1998 the Struga public prosecutor had notified eight persons, including the mayor of Vevčani, that they were under investigation for alleged violence and damage to property. Once it has become finalised, the public prosecutor's decision would be transmitted to the courts. The rapporteur made it known that the Congress wished to be informed of developments in this case. Information provided by the government (see appendix 3 point 5) would require completion.

3. Issues linked to the functioning of local democracy

The monitoring of the proceedings leading to the imprisonment of the two mayors of Albanian origin has highlighted two particular problems. It does not appear from information collected on the spot that the provisions of the European Charter of Local Self-Government are being observed.

3.1 Resignation or dismissal of mayors – dismissal or dissolution of municipal councils

Mr Demiri provided the delegation with copies of registered letters sent to the prime minister on 23 May and 12 June, notifying him of the resignation of eight DPA mayors of Albanian origin and the relevant municipal councillors (the DPA members of which have resigned). However, the Ministry of Justice had not received notice of these resignations. In practice, as the delegation was able to see for itself in Gostivar, the municipal councillors no longer met. No one currently exercises the functions of the mayor and the municipal council. As a result, municipal employees cannot be paid or benefit from social coverage because, according to information received in Gostivar, the expenditure cannot be authorised in the absence of the mayor and the chair of the municipal council, both in prison, and the town hall secretary, who has resigned.

The delegation also sought additional information on when and how these resignations will become effective⁶. Municipal councils can only be dissolved by the government once they have ceased to function for six months (section 73 of the Local Self-Government Act of 1995), and the resignations do not appear to have been formally recognised. While section 76 of the act specifies a further deadline of 60 days following a council's dissolution for the holding of fresh elections, no time-limit is laid down (sections 46, 47 and 48) for replacing the mayor. In the particular case of Gostivar, the period from the date the convicted mayor ceased to exercise his duties - in principle, 5 February 1998, when according to the Ministry of Justice, the court of appeal's final and enforceable decision was handed down – and the election of a new mayor could be as much as twelve months. The delegation informed the ministry that this period was much too long and did not comply with the spirit of the European Charter of Local Self-Government. The Ministry of Justice replied that this would be an issue for discussion after the elections.

Certain questions still remain unanswered:

When does the resignation of a mayor or councillor become official and take effect? Which authority must formally acknowledge the resignation and order the dissolution of the relevant council if the majority of its members have resigned?

From what date does the sixty day deadline for the holding of fresh council elections (section 76 of the act) take effect?

3.2 Appointment of an interim administrator when a mayor has been sentenced to more than six months' imprisonment (section 46 of the Local Self-Government Act)

The Ministry of Justice confirmed that the two convicted mayors of Albanian origin, MM Osmani and Demiri, no longer held that office. During the first visit to the ministry, the delegation spent considerable time discussing the appointment of an interim administrator, pending the holding of new elections. However, the deputy minister responsible for local government said that it was for the government to make the appointment and that currently he had no information on the subject. An administrator had in fact been appointed by the council of ministers the previous day (15 June 1998), although admittedly the Minister of Justice had not been able to attend on account of a visit to Rome. The administrator appointed to replace the mayor of Gostivar was Mr Fikret Tarkozi, director of the pioneers house and a member of the Turkish community. This information was confirmed in a fax from the Ministry of Foreign Affairs during our visit to Ohrid. However, when we visited Gostivar 48 hours after Mr Tarkozi's appointment, he was still not in post and we were unable to meet him. It subsequently emerged that Mr Tarkozi had eventually decided not to take up the duties of administrator.

The delegation nevertheless wondered why the administrator was appointed more than two months after the mayor of Gostivar entered prison on 9 April 1998. Certain information might help to clarify matters:

At what point does a mayor sentenced to more than six months' imprisonment cease to exercise his mandate: when the final and enforceable judgment is handed down, when the judgment is notified or when he or she enters prison?

What is the deadline then for the government to appoint an administrator responsible for exercising the mayor's duties, since, in principle, no deadline is specified in sections 46 or 74 of the 1995 legislation? What is the deadline for holding fresh elections for mayor?

What steps have been taken following the imprisonment of the mayor of Tetovo, Mr Demiri, on 24 June? Has an administrator since been appointed to Tetovo?

It should be noted that the government recognises the absence in article 48 of the law of a time limit within which the government should inform the Assembly, so that a date for new elections or for the appointment of a provisional administrator may be fixed. It considers, in analogy with the measures foreseen in article 76 of the law, that the elections should be held within the next 60 days and that the administrator should be appointed within a « reasonable » period of time.

Conclusions and future prospects

The delegation was not asked to comment on the sentences handed down on the mayors, and certain proceedings are still under way (see above). However, it should be pointed out that the legislation on the use of flags is currently being examined by the Constitutional Court. Moreover, members of the CLRAE's Bureau and Standing Committee have expressed concern about the disproportionate nature of the sentences.

The second visit also threw light on certain shortcomings in the procedures for replacing mayors. It should also be noted that relations between the communities remain tense and the information we had then been able to gather suggested that there would be little improvement in the situation before the next parliamentary elections, which took place on 18 October and 1 November 1998. However, there is an urgent need to guarantee the continued exercise of local government. Certain ways forward can be identified, and the authorities of "the former Yugoslav Republic of Macedonia" must supply certain key information regarding the legislation governing the replacement of mayors (or municipal councillors) who have been imprisoned or have resigned.

In conjunction with the newly re-established “Macedonian Association of local self-government units”, the LODE programme is planing to organise a seminar on the European Charter of Local Self-Government. The Committee on Local Democracy Agencies has also been asked by the Ohrid local democracy agency to finance a regional conference on the principles enshrined in the European Charter of Local Self-Government. With a view to ensuring a consistent political approach in the country, consideration should be given to the CLRAE's active participation in these initiatives, which could help to clarify issues relating to local democracy in "the former Yugoslav Republic of Macedonia".

The Rapporteur suggested, during the verbal presentation of his conclusions to the Bureau on 29 June 1998, that the Congress initiate the preparation of a report on local democracy in "the former Yugoslav Republic of Macedonia", on the basis of its Resolution 31 (1996). Such a report should not, of course, be confined to the issues considered here, but should have broader objectives, such as the functioning of Macedonian local government following the territorial reform and the last local elections, which the Congress observed. The government recognises, in its conclusions, that the measures included in the law on local self-government should be subject to further examination.

It should be noted that the Congress Bureau decided, at its meeting held on 29 September 1998, to ask the Rapporteur [Jean-Claude Frécon] to draw up a report on the situation of local democracy in « the former Yugoslav Republic of Macedonia » which will be presented in November 1999.

Conclusions adopted by the Bureau of the Congress on 2 November 1998

Following the report drawn up about the situation of the Mayors of Tetovo and Gostivar, and after noting the comments received from the Minister of Foreign Affairs of the country concerned, the Bureau of the Congress wished to adopt the conclusions below at its meeting of 2 November 1998.

1. Substance:

- After the violent events of Tetovo and Gostivar which led to deaths and injuries, the Parliament of "the former Yugoslav Republic of Macedonia" asked a committee of inquiry to cast light on those events. It would usually be expected that a report of this kind on events occurring in public places, drawn up by a committee of inquiry, would be published. I was informed that, as the report was a parliamentary one, it was necessarily confidential. The same seems to apply to the conclusions of the report, which have not been conveyed to the Congress. The Congress can but regret this practice, which contributes neither to the search for the truth, nor to the soothing of feelings.

- The mayor's conviction having led to the loss of his office, the Government of "the former Yugoslav Republic of Macedonia" acknowledges that it should ordinarily have appointed a commissioner to manage the town's affairs pending fresh elections. But no official notification of the appointment of a commissioner or of difficulties encountered in this respect has been received by the Congress. It would appear from unofficial information received that the person or persons contacted by the government on this subject declined the task. It seems incompatible with the very idea of local democracy to have nobody running the affairs of one of the largest towns in the country.

- The government acknowledges that the period within which new elections should ordinarily be organised after a mayor loses office is 60 days. This period has long since elapsed, and nothing has been done to organise new elections. This does not accord with the principles of local democracy to which the country subscribed when it ratified the Charter.

- The Congress is concerned about the fact that the action taken and the sentences imposed are not in proportion. In practice, the mayors and the chairs of the municipal councils of these towns had heavy sentences passed on them, without any direct responsibility for the violence which occurred being attributed to them. Furthermore, in order for the measures taken to have been proportionate, the government would have had to start by taking other, milder, but legally clear action, such as the suspension or annulment of the decision of the municipal council allowing the flags to be flown at the front of the town hall, if that municipal council decision was deemed ultra vires. Or it could have suspended or dismissed the mayor, in pursuance of the appropriate procedure which exists under the law of "the former Yugoslav Republic of Macedonia". Were no provision made for such procedures, it would be important to introduce them into the national legislation. Only as a matter of last resort, after such procedures have been exhausted, should it be possible to envisage taking steps under the criminal law. In that eventuality, the penalty imposed should be clearly proportionate to the acts committed. Similar proportionality of procedures should also apply to the case of the Mayor of Vevčani.

2. Procedure to follow:

- The Bureau instructed the rapporteur to publish the report on the Mayors of Tetovo and Gostivar, after making the few amendments which proved necessary in the light of the position adopted by the Government of "the former Yugoslav Republic of Macedonia", and to attach the government's comments to the published report.

- The President of the Congress was instructed to convey the report to the Chairman of the Committee of Ministers and to the President of the Parliamentary Assembly, so that these organs of the Council of Europe can take it into account during their procedures for monitoring the honouring of the commitments made on accession.

- The President was instructed to convey the report to the Government of "the former Yugoslav Republic of Macedonia" when a government has been formed, on the basis of the elections held in that country on 1 November.

- The Bureau confirmed its decision to draw up another general report on the situation of local democracy in "the former Yugoslav Republic of Macedonia", so as to follow up the present report, but also to cover any other matters concerning this situation and the consequences of the reorganisation, two years ago, of the municipalities of "the former Yugoslav Republic of Macedonia". A report of this kind could also record the reforms which the new government might propose.

APPENDIX 1

PROGRAMME OF THE VISIT TO "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" BY MR FRECON

² See document CG/BUR (4) 123.

³ In its comments, the government pointed out that MM Osmani and Demiri have not requested a presidential pardon.

⁴ According to OSCE estimates, a demonstration in support of NATO intervention in Kosovo held in Skopje on 8 June attracted 15 000 people and the two parties representing the Albanian minority.

⁵ The idea of a federation was even rejected at one stage by Mr Thaci, who preferred the idea of the full proportional representation of the Albanian minority in all the public institutions, on the basis of official census figures.

⁶ No mention is made of this matter in the government’s comments.