Rapporteur: Mr Alexander TCHERNOFF (Netherlands)
with a contribution by Mr Alain CHENARD (France)
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EXPLANATORY MEMORANDUM
I. INTRODUCTION
1. At the Conference celebrating the 10th anniversary of the opening for signature of the European Charter of Local Self-Government - organised on 17 and 18 April 1986 in Copenhagen by the Chair of the Committee of Ministers in co-operation with the Congress - the activities of the CLRAE in promoting local and regional self-government were acknowledged as being an essential feature of the European construction process. Indeed, the activities of the CLRAE make an essential contribution to the implementation in national legal systems of the political and institutional conditions required for effective local self-government and the concrete application of the principle of subsidiarity.
2. These activities are part of the "institutional" terms of reference of the Congress, and have contributed to substantial progress towards the recognition, the protection and the development of the rights and freedoms of local and regional authorities in Council of Europe member states and states applying for membership, in parallel with its activities in connection with the application of the European Convention on Human Rights and the promotion of fundamental human rights and freedoms.
3. In particular, in the context of these activities, the reports of the Congress on the situation of local and regional democracy, on the monitoring of elections, and generally all its activities in connection with the monitoring of the implementation of the European Charter of Local Self-Government constitute a store of knowledge and experience that enables the Congress today better to defend and promote the political, administrative and financial independence of local and regional authorities in Europe.
II. THE NEW ROLE OF THE EUROPEAN CHARTER OF LOCAL SELF-GOVERNMENT AND CHANGES IN THE MONITORING OF ITS IMPLEMENTATION
4. Considering the increasing number of states which have ratified it, and the results obtained in the monitoring of its implementation by the Congress with the approval of the Committee of Ministers, it is safe to say that, barely eight years after its entry into force, the European Charter of Local Self-Government has become one of the major legal instruments in European law and a prerequisite, in the eyes of the Parliamentary Assembly, for the admission of new member states into the Council of Europe.
5. To this day the Charter remains the only international legal instrument to defend and develop the rights and freedoms of local and regional authorities, and as such, together with the European Convention on Human Rights, the European Social Charter, the Framework Convention on the Protection of National Minorities and the European Charter for Regional or Minority Languages, it is one of the pillars of the democratic spirit and values set forth in the Statute of the Council of Europe.
6. Regardless of whether it has actually been adopted, the Charter has been an irreplaceable reference and a strong motivation for the young democracies of central and eastern Europe in setting standards for their systems of local self-government.
Furthermore, through its monitoring system, the Charter provides an excellent opportunity for dialogue, encouraging all those states which have ratified it to undertake practical and institutional reforms to strengthen their systems of local self-government.
7. The system whereby the Congress monitors implementation of the Charter is at present the only means of obtaining reliable information on the legislative and other measures taken by the Contracting Parties to bring their systems into line with the principles of the Charter.
Note, in this respect, that for the time being Article 14 of the Charter, requiring the Parties to forward relevant information to the Secretary General of the Council of Europe, has never yet been applied.
8. Further evidence of the importance the Congress attaches to the European Charter of Local Self-Government lies in the two detailed reports it has already prepared on its implementation with the assistance of a Committee of Independent Experts. The second of these reports was presented at this third plenary session and led to the adoption of a resolution and a recommendation which further strengthen the procedures for monitoring the implementation of the Charter by those member states which have ratified it.
In our opinion the adoption of these texts by the Congress will make it possible in the future to set up a genuine system for monitoring the implementation of the Charter, and this will be a major step forward.
9. It is our belief that the principles of pluralist democracy will be complete only when the rights and freedoms of local and regional authorities are acknowledged and respected in all the states of Europe. Local democracy is a value in itself, not to be confused with the concept of parliamentary democracy, and because of its specificity, its complexity and the variety of forms it takes, it reqires special attention.
For this reason, we propose a draft recommendation with a view to the preparation of a "Council of Europe Magna Carta on the rules of democracy and the rights of European citizens", in which the European Charter of Local Self-Government would have its place alongside the European Convention on Human Rights, the Social Charter, the Framework Convention on the Protection of National Minorities and the European Charter for Regional or Minority Languages. This idea was launched by President Al exander Tchernoff at the conference in Copenhagen.
This "Magna Carta" could be prepared jointly by the Committee of Ministers, the Parliamentary Assembly and the Congress, and become the main reference text for the Council of Europe in monitoring the fulfilment by its member states of their commitments into the next millennium, while at the same time providing a fitting milestone to mark the fiftieth anniversary of the foundation of the Council of Europe, in 1999.
III. REPORTS ON THE SITUATION OF LOCAL AND REGIONAL DEMOCRACY IN COUNCIL OF EUROPE MEMBER STATES AND APPLICANT MEMBERS
10. Following the political transformations that have taken place in Europe since the collapse of the totalitarian regimes, and the institution of the Congress of Local and Regional Authorities of Europe in 1994, the reports on the situation of local and regional democracy in member states and those applying for membership, and the monitoring of local and regional elections in applicant states - activities initiated by the former Standing Conference of Local and Regional Authorities of Europe - have developed steadily.
11. Since its foundation, the Congress has prepared:
a. six reports on the monitoring of local and/or regional elections (Latvia 1994, Moldova on two separate occasions in 1995, Russia in 1994 and 1995, Ukraine in 1994);
b. nine reports on the situation of local and regional democracy in countries applying for membership (Albania - 1995, Belarus - 1995, Croatia - 1995/1996, The Former Yugoslav Republic of Macedonia - 1995, Lithuania - 1996, Moldova - 1995, Russia - 1995, Ukraine - 1995).
As for member states, at the second plenary session of the Congress a report was presented on the situation of local and regional democracy in Romania.
At present, the President of the CLRAE, Alexander Tchernoff, has made preliminary contacts through the Bureau with a view to the possible preparation of reports on the situation of local and regional democracy in Turkey and the United Kingdom. Other contacts have been made with Italy and Lithuania.
12. In our opinion all these initiatives add up to a heritage that we must put to the best possible use. The Congress should adopt policy decisions on two levels:
- on the procedural level, to make sure that the different initiatives fit together into a coherent whole, and
- at the political level, in order to arrive at major reforms concerning the objectives pursued.
13. In this perspective, we propose introducing a number of principles into the draft resolution and the draft recommendation, to serve as a reference in the preparation of the reports concerned by this chapter.
These principles will help to make the CLRAE's efforts in pursuit of the aims set forth in Article 2 of Statutory Resolution (94) 3 of the Committee of Ministers, relating to the setting-up of the Congress, more harmonious, better organised and more fruitful. They will also help to improve co-ordination with procedures for monitoring the implementation of the European Charter of Local Self-Government, which have just been strengthened by the Congress.
1. Principles concerning the reports on the situation of local democracy in member states
14. The report prepared by the Congress on local and regional democracy in Romania, on the basis of which a recommendation was addressed to the Committee of Ministers at its second plenary session, is at once a reference point and a positive precedent that cannot be ignored.
Note that the legal source of this report and recommendation is Statutory Resolution (94) 3 of the Committee of Ministers relating to the setting-up of the Congress, Article 2, paragraph 1 (b) of which establishes that "the CLRAE shall be a consultative body the aims of which shall be (...) to submit proposals to the Committee of Ministers in order to promote local and regional self-government".
15. Also taken into account were the following texts adopted in this connection by the Committee of Ministers and the Parliamentary Assembly:
a. the Declaration of the Committee of Ministers on compliance with commitments accepted by member states of the Council of Europe, in which the Committee of Ministers stated that it would consider the questions of implementation of commitments concerning the situation of democracy, human rights and the rule of law which were referred to it by member states, by the Secretary General or on the basis of a recommendation from the Parliamentary Assembly;
b. the Procedure for implementing the above Declaration, recommending that the Secretary General prepare a factual overview of compliance with the commitments accepted by member states, based on information from member states and on all relevant information as set out in paragraph 1 of the Declaration;
c. Order No. 508 (1995) of the Parliamentary Assembly on the honouring of obligations and commitments by member states of the Council of Europe, in which the Assembly instructs its Committee on Legal Affairs and Human Rights (for report) and its Political Affairs Committee (for opinion) to continue monitoring closely the honouring of obligations and commitments in all member states concerned.
16. Having said this, however, the decision to prepare the report on local and regional democracy in Romania was taken as a result of the weakness and inadequacy of Romanian legislation on local self-government, and of the difficulties experienced by the central government in implementing it.
In particular, the Congress had been alerted by the main associations of local authorities in Romania to a wave of removals from office, suspensions and resignations of mayors and local councillors in the country.
17. In this perspective, and based on the provisions mentioned in paragraph III, 1.14 of this report, the Congress decided to conduct an investigation, as soon as possible, into the real situation of local and regional democracy in Romania, which is briefly described below by way of an example.
18. With a view to establishing the facts and drawing up a detailed report, an ad hoc working group, and in particular its rapporteur and Chair, travelled to Bucharest on several occasions. The President of the CLRAE, Mr Alexander Tchernoff, also visited Romania on two occasions.
In the course of these visits, the group was able to meet:
- qualified representatives in senior positions in the Romanian Government, who proved remarkably open and helpful;
- mayors who had been suspended or removed from office, selected by the working group's legal experts, on the basis of specific questionnaires, as being particularly representative of the problems observed;
- representatives of the Association of Presidents of the Judets of Romania and of the Federation of Romanian Municipalities.
19. At the same time the working group's experts made a comprehensive analysis of Romanian legislation on local self-government, which once again highlighted the lack of legislation on local finances, municipal and regional property, the status of local elected officials and local authority staff, intermunicipal co-operation and training.
20. Today, in view of the changes made by the Romanian Parliament to legislation on local government, based on the opinions of the experts of the Congress and on the cessation by the government of the practice of removing or suspending local officials, the report by the Congress on local and regional democracy in Romania, to which the Romanian authorities, ever open and co-operative, also contributed may be considered as a model for future action by the Congress to achieve a genuine improvement in the conditions in which local self-government is exercised in the Council of Europe's member states.
21. This shows how useful, and indeed necessary it is to continue preparing reports on local and regional democracy in the member states of the Council of Europe and to set up general principles governing them.
These principles are flexible enough to allow for the reality of the situation in each country. The variety and flexibility shown by the Congress in establishing preliminary contacts with a view to preparing reports on the situation of local and regional democracy in Italy, Lithuania, the United Kingdom and Turkey illustrate this well enough.
22. In the draft resolution we recommend, with regard to decisions to prepare these reports, that the Congress should be able to act on and co-ordinate requests from the local and regional authorities of member states and proposals made by the working group responsible for monitoring the implementation of the European Charter of Local Self-Government, in the light of the findings of the Committee of Independent Experts working under its aegis.
23. The Bureau would establish the facts through an initial fact-finding mission performed by at least two members of the Congress, making it possible to begin a constructive dialogue with both the national authorities and the territorial authorities of the member state concerned.
24. In so far as the fact-finding mission showed that the facts justified more in-depth action, having obtained the opinion of the working group responsible for monitoring the implementation of the Charter, the Bureau could set up an ad hoc working group instructed to draw up a detailed report, where appropriate based on new contacts in the field, inter alia with the relevant national authorities, and submit it to a plenary session of the Congress or to the Standing Committee.
25. We also recommend making it a principle to give the relevant national authorities an opportunity to make their views known before the report mentioned above is finally adopted. This principle is the key to fruitful dialogue and a general climate conducive to reform.
26. In order to keep the Congress regularly informed of the situation of local and regional democracy in all the Council of Europe member states, the Bureau should:
- ensure that over a reasonable period of time all member states are the subject of a detailed report on local and regional democracy, even where no express request is made by a Party referred to in paragraph III.1, 22 above;
- ensure that particular attention is given to the situation of local and regional democracy in those states which have recently joined the Council of Europe and which may need several successive reports in order to monitor the implementation of reforms.
2. Principles concerning the preparation of reports on local and regional democracy and on the monitoring of local and/or regional elections in states which are candidates for membership of the Council of Europe.
27. The positive results obtained by the Congress with regard to the preparation of reports on local and regional democracy in states which were, or which still are, candidates for membership of the Council of Europe (see para. III.11 above) illustrate how useful this type of activity can be. The preparation of these reports by the Congress has given the Parliamentary Assembly and the Committee of Ministers a full overview of the democratic situation in these countries in regard to local self-government when they have had to reach a decision concerning their accession.
28. In view of the usefulness of the information supplied by the Congress in connection with the accession of new members to the Council of Europe, the resolution goes on to propose a series of improvements to make the process of preparing the reports swifter and more effective.
29. In practical terms this means that in the event of an application for membership of the Council of Europe from a given State (currently Armenia, Azerbaïdjan, Belarus, Bosnia-Herzegovina and Georgia), the Bureau would rapidly adopt a report on the situation of local and regional democracy in the state concerned, drawn up by two rapporteurs assisted by one or more independent experts, and the report would be transmitted to the Standing Committee for information. The rate at which these reports are drawn up depends largely on two factors:
- how long it takes the Parliamentary Assembly to form an opinion,
- the pace of real progress towards local and regional democracy in the countries concerned.
30. Furthermore, and still by virtue of Article 2, paragraph 1, littera b. of Statutory Resolution (94) 3 of the Committee of Ministers relating to the setting up of the Congress, it is important that these reports should then be transmitted to the Parliamentary Assembly and the Committee of Ministers, to be taken into account in the final evaluation of the application for membership, and where appropriate in determining which commitments the states concerned should be required to subscribe to in order to become members of the Council of Europe.
31. Finally, out of concern for complementarity and coherency on the one hand and for efficacy and rapidity on the other, and in the light of earlier experiences in connection with the monitoring of local and regional elections, we propose that the Bureau be instructed to adopt a report drawn up by a team of observers chosen by the Chamber(s) within whose ambit the election being monitored falls; this report would then be transmitted, for information, to the Standing Committee, and still by virtue of the Statuory Resolution mentioned above, the Parliamentary Assembly and the Committee of Ministers.