Ministers' Deputies / Rapporteur Groups
Rapporteur Group on Democracy
GR-DEM(2006)CB3 7 March 20061
Meeting of 2 March 2006
1. The Rapporteur Group on Democracy (GR-DEM), chaired by Ambassador Stephen Howarth, Permanent Representative of the United Kingdom, examined the following matters in the light of the revised convocation (cf. document GR-DEM(2006)OJ3 revised).
1. Exchange of views with Ambassador Miroslav Lajcak, Personal Representative of the High Representative of the European Union in Montenegro
2. Mr Lajcak made an introductory statement, the full text of which is appended hereto. Having described the background to the question on the planned referendum on the independence of Montenegro and the negotiations he had conducted in this connection between Montenegro’s political forces, he informed the Group of the latest developments in this area. He drew particular attention to the fact that the date of the referendum had been set at 21 May 2006, and that the local elections initially scheduled for May had been postponed until the autumn, when they would be held at the same time as the parliamentary elections. He also described the formula that had eventually been decided on for the validation of the referendum itself (a turnout of 50 % of the electorate plus one) and the validation of a vote in favour of independence (55 % of the votes cast), a formula to which practically all Montenegro’s political forces had agreed. He thanked the Venice Commission for its assistance in arriving at this solution. In conclusion, he emphasised how important it was to prepare for the post-referendum period, regardless of what the result might be, through responsible dialogue between the authorities in Podgorica and Belgrade geared to securing the stability of the region. He called on all the delegations to pass this message on to these authorities.
3. All the delegations which spoke congratulated Mr Lajcak on his efforts in obtaining an agreement between Montenegro’s political forces on the holding of the referendum. They also paid tribute to the Venice Commission for its contribution. Several questions were put to Mr Lajcak, relating in particular to the arguments put for and against Montenegro’s independence, the possibility that the quorum required for the referendum itself to be valid will not be reached, the legal consequences of the separation of Serbia and Montenegro into two independent states, the potential consequences of a “no” vote, the impact that a rejection of the independence of Montenegro might have on the European Union’s policy with regard to the process of Serbia and Montenegro’s accession to the European Union, the fate of the minorities living in Montenegro and the Montenegrin minorities living in Serbia in the event of a “yes” vote and, lastly, the role that the Council of Europe might play in future to guarantee stability and further the implementation of democratic standards in the region.
4. On the question of the quorum required for the referendum to be valid, Mr Lajcak explained that the formula that had been adopted had been devised to give as much legitimacy as possible to the referendum so that the outcome would be generally acceptable and could not be prejudged. The formula should encourage both advocates of a “yes” vote and supporters of a “no” vote to rally voters to take part in the referendum. In reply to a question from one delegation as to whether the formula might be applied as an international standard, Mr Lajcak said that it had been tailored to Montenegro’s specific circumstances and chosen in preference to other existing systems.
5. With regard to the possibility of a “no” vote, Mr Lajcak said that he was not particularly concerned about the consequences, as all the political parties had given assurances that they would accept the result whatever it might be. He sincerely hoped that these assurances would be met. As to the fate of the minorities in the event of a “yes” vote, Mr Lajcak stressed that the authorities in Belgrade and in Podgorica would have to show good will and a responsible attitude in order to guarantee these minorities’ rights. The impact of a referendum on European Union policy would depend on how the referendum was run. If it was free, fair and democratic, the effects on the European Union’s attitude could only be positive. Lastly, with regard to the Council of Europe, it would certainly have a major role to play, alongside the European Union, in the continued efforts to implement democratic standards in the region.
2. Armenia: Draft Action Plan on future co-operation with the Council of Europe
6. The Director of Strategic Planning presented the draft action plan (document DSP(2006)3rev), which had been drawn up in close consultation with the Armenian authorities as well as in consultation with the European Commission, the Head of Mission of the European Union in Yerevan and representatives of the international community, including the OSCE. The action plan covered the priorities identified in the document on co-operation with Armenia which the Deputies had approved in September 2005. The aim of the projects presented was to help the Armenian authorities meet their commitments towards the Council of Europe and bring their law and practice into line with European standards. The action plan was, however, adjustable according to developments in the situation and would be regularly updated. With regard to budget aspects, it was to be noted that, at the present stage, most of the funding remained to be found, in particular on the basis of external resources and voluntary contributions. Experience showed, however, that it ought to be possible to find the necessary resources.
7. The Representative of Armenia confirmed the Armenian authorities’ involvement in drawing up the draft action plan and their commitment to implementing it. He welcomed the fact that the document took into account both Armenia’s progress in meeting its undertakings, the challenges which the present legislative reforms sought to answer, and the objectives set by European Union neighbourhood policy for Armenia’s European integration.
8. In the ensuing discussion, the delegations indicated their agreement with the draft action plan, pointing out the relevance and coherent strategic approach of the planned programmes. They welcomed the Armenian authorities’ receptiveness to the action plan and took that as a sign of their political commitment to its successful implementation. Some delegations said that they would like to see the action plan place greater emphasis on training for civil society and include evaluation of the results of activities. Several delegations expressed concern at the draft action plan’s financial shortfall and the practical repercussions which that might have for establishing priorities among the different programmes and for the implementation timetable.
9. The Director of Strategic Planning explained that implementation and financing of the action plan would be spread over a two-year period and that every effort would be made to carry them through within the required timeframe in co-operation with the Council of Europe’s partners, in particular the European Commission. Periodic reports would be made on the financial position and implementation, and that would allow priorities to be updated if need be.
10. The Chair noted, in conclusion, that the Group approved the action plan though it also stressed that a key factor in successful implementation would be the Armenian authorities’ political commitment to it. The question of the finance to be found was a source of concern, even though the Group noted that this was not an unusual problem at this preliminary stage. It was important that the Secretariat make a point of reporting back regularly to GR-DEM on the financial position and any need to adjust priorities. The Group accordingly agreed to forward the draft action plan to the Committee of Ministers for adoption.
a. Draft Action Plan on future co-operation with the Council of Europe
11. The Director of Strategic Planning presented the draft action plan (document DSP(2006)2), which had been drawn up on the same lines as the action plan discussed under the previous item. It covered the priority action fields identified for Azerbaijan and had been drawn up in close co-operation with the national authorities and representatives of the relevant international partners, in particular the European Union and the OSCE. The action plan presented the same financial difficulty as the Armenia action plan.
12. The Representative of Azerbaijan expressed the Azerbaijan authorities’ satisfaction with the key programmes which the action plan included, whose implementation would contribute not only to progress in meeting the undertakings given to the Council of Europe, but also to development of relations between Azerbaijan and the European Union. The Azerbaijan authorities were anxious to co-operate fully with the Council of Europe in implementing the action plan.
13. The delegations which spoke supported the draft action plan. They underlined the appropriateness of the priorities set, welcomed the consultation approach to drawing up the plan, and pointed out the crucial importance of the Azerbaijan authorities’ co-operation to successful implementing the plan. As under the previous item, it was requested that the action plan include evaluation of the results of activities. Several delegations again expressed concern at the action plan’s financial shortfall. Two delegations suggested that in this particular case some of the funding should be covered by Azerbaijan itself. Another delegation suggested devoting thought, at a forthcoming meeting, to the methods of drawing up action plans and financing them.
14. Further to the queries regarding financing and the references to the European Union as a potential partner in implementing the action plans, the Representative of the European Commission underlined the Commission’s appreciation of the excellent co-operation with the Council of Europe and the synergy between their respective actions. The Commission could not, however, make any further commitment before finalising its own co-operation strategy towards Armenia and Azerbaijan and before it had final decisions as to the European Union budget outlook for the 2007-2013 period.
15. The Director of Strategic Planning referred to the prospects opened up by the future memorandum of agreement on stepping up strategic and financial co-operation with the European Commission. Two delegations suggested that the question of co-operation with the European Commission in the financing of action plans be included in the agenda for the quadripartite meeting between the Council of Europe and the European Union to be held on 15 March.
16. The Chair noted that the Group approved the action plan and agreed to submit it to the Committee of Ministers for adoption. Given the repeated concerns raised by the Group regarding the action plans’ financial shortfall, he noted that the general question of funding this type of project and co-operation with the European Union in that connection should be examined at a forthcoming meeting. He also invited the Representative of Azerbaijan to submit to his authorities the suggestion that Azerbaijan cover a proportion of the financing of the action plan and inform the Group of their reply as soon as possible.
b. Draft Action Plan for the rerun of parliamentary elections
17. The Secretariat representative (Directorate General of Legal Affairs) presented the draft action plan (document DGAP/Inf(2006)6), which had been drawn up in response to an assistance request from the Azerbaijan authorities. With regard to the financial aspects, he thanked the Luxembourg delegation for the voluntary contribution which it had decided to make to implementing the plan. Subject to the agreement of the Committee of Ministers, the Secretary General proposed to cover the rest of the financing needed – up to 35,000 euros – from the provision for “Field missions/programmes”.
18. The Representative of Azerbaijan also thanked the Luxembourg delegation for its voluntary contribution and said that the draft action plan fully met the expectations of his authorities. He had no doubt that the activities would assist a sound election rerun in the constituencies concerned. He went on to report on the progress of preparations for the rerun and on the steps taken to avoid any recurrence of the problems previously encountered.
19. In the ensuing discussion, the delegations indicated their approval of the draft action plan and the proposed financing, while pointing out that the international community was expecting great efforts by the Azerbaijan authorities to hold free and fair elections.
20. The Chair noted that the Group approved the draft action plan and the funding proposal and stressed the crucial importance of Azerbaijan’s political determination to do everything possible to hold a rerun of the parliamentary elections which was up to recognised international standards.
4. Belarus: Review of the situation and possible action by the Council of Europe
21. As requested by the Group at its previous meeting, the Secretariat presented a document outlining the fields in which action could be taken or stepped up in Belarus so as to promote Council of Europe standards, while complying with the decisions the Committee of Ministers had taken regarding relations with Belarus.
22. Most of the delegations which spoke welcomed the document, which they felt contained several worthwhile suggestions that warranted developing. This being said, some of the delegations stressed the need to adopt a realistic approach, given in particular the difficulties of conducting activities inside Belarus, due to the attitude of the Belarus authorities. In that connection, one delegation thought it unrealistic to organise training activities for judges.
23. Several delegations supported the suggestion of involving Belarus participants in the Council of Europe-backed schools of political studies. It was suggested, in particular, that that possibility could be explored with the Vilnius School. A majority of delegations felt that the priority should be to lend support to Belarus civil society. Some also pointed out the importance of assisting the independent media in Belarus and promoting the Council of Europe’s standards and achievements through foreign media to which people in Belarus had access. One delegation thought that this should be a short-term priority, with the emphasis on disseminating information aimed at young people in Belarus. Lastly, the delegations stressed the importance of exploring how to promote contacts and possibly partnerships between local authorities in Belarus and other European countries.
24. Several delegations underlined that any action project in Belarus should be worked out in close consultation with other relevant international bodies, particularly the European Union, the OSCE and the United Nations. Any action should likewise be co-ordinated with those bodies and, as far as possible, be carried out in co-operation with local non-governmental organisations.
25. One delegation regretted that the discussion was being conducted in the absence of the Belarus authorities. It felt that the Council of Europe should be seeking dialogue with them rather than adopting a confrontational approach. In reply, it was pointed out that the sole consideration guiding the Council of Europe was the promotion of the democratic standards whose custodian it was. From that standpoint, the absence of dialogue with the Belarus authorities was imputable to those authorities, who daily ignored those standards. In this connection, one delegation informed the Group of certain recent developments it considered especially worrying.
26. In conclusion, the Group instructed the Secretariat to prepare a new document for its next meeting putting forward operational activities that could be conducted in Belarus, taking into account the views expressed at the present meeting. In preparing the document, the Secretariat should keep in mind the need for a stage-by-stage approach, distinguishing between feasible shorter-term and longer-term activities and taking account of action by other international bodies actively involved with Belarus. Further to remarks by some delegations about the Council of Europe’s limited financial resources, the Secretariat was asked to pay particular attention to the financial implications of any action proposals it put forward.
5. Moldova: Functioning of democratic institutions in Moldova - Parliamentary Assembly Recommendation 1721 (2005) – Revised draft reply
27. Presenting a revised draft reply to Recommendation 1721, the Chair indicated that, after repeated negotiations with the Moldovan and Russian delegations, the draft had the approval of both except for paragraph 16, which dealt with the situation in the Transnistrian region of Moldova. On this point, several delegations said they were in favour of the version referring to the Moldovan Parliament and Ukrainian initiatives for arriving at a settlement of the Transnistria issue. Another delegation was against that version of the text on the ground that there were other, parallel initiatives and that it was inadvisable to single out the Moldovan Parliament and Ukrainian ones as especially praiseworthy. Following discussion, the Group agreed to approve the version referring to those two initiatives, subject to consultations with members’ authorities, the time limit for submission of any comments being 6pm on Friday 10 March.
6. Russian Federation: Written Question No. 475 by Mr Lindblad: “Freedom of the media in Russia” – Revised draft reply
28. The Group considered a revised draft reply prepared by the Secretariat in accordance with instructions given at the previous meeting. A majority of delegations which spoke supported the text. However, one of the delegations suggested amending paragraph 2 to indicate that the journalist in question was able to move but not work in Russia, or else deleting the paragraph. Another delegation indicated that it was unable to accept the Secretariat’s text as it did not incorporate a change it had suggested to paragraph 2, described the media situation in the Russian situation as a matter of concern and referred to a report by the OSCE Representative on freedom of the media which it considered obsolete.
29. Being unable to reach a consensus, the Group agreed to inform the Committee of Ministers that it had not been able to produce a draft reply to Mr Lindblad’s question and ask it to forward the file for reply by the Chair of the Committee of Ministers.
7. “The former Yugoslav Republic of Macedonia”: Action Plan for the parliamentary elections
30. The Secretariat presented a draft action plan to assist the next parliamentary elections in “the former Yugoslav Republic of Macedonia”, pointing out that there was a shortfall of 60 000 Euros for financing the plan and that ideally that sum would be met from the provision for ‘Field missions/programmes’.
31. The Representative of “the former Yugoslav Republic of Macedonia” indicated that the plan had the full support of her authorities, who were resolved to ensure that the future elections were free and fair and ready to begin implementing the action plan. Several delegations likewise supported the plan and assured the authorities of “the former Yugoslav Republic of Macedonia” of their support. In conclusion, the Group agreed to recommend that the Committee of Ministers approve the action plan and authorise the Secretariat to use the provision for field missions for financing it, up to a maximum of 60 000 euros.
8. Other business
No other questions were raised.
9. Date of the next meeting
The Group will hold its next meeting on 23 March 2006 at 10.00 am.
Talking points by the Personal Representative of the High Representative for CSFP, Ambassador Miroslav Lajčák
at the Council of Europe, Strasbourg, March, 2, 2006
“The question of the future status of Montenegro has been traumatising and strongly polarising both the Montenegrin political elites and the general public for a long time. No relevant political or social forces in today’s Montenegro has any doubts on the thesis that the issue of the constitutional status of the republic needs to be resolved in the interest of preserving internal political and regional stability so that Montenegro can subsequently fully focus on the processes of economic transformation and European integration.
The Starting Points for the Restructuring of Relations between Serbia and Montenegro (so-called Belgrade Agreement) was signed on March 14, 2002. By Javier Solana’s signature of this document, the European Union not only assumed its share of responsibility for the process of transformation of the Federal Republic of Yugoslavia into the state union of Serbia and Montenegro, but also for the future of this new state.
The Constitutional Charter of Serbia and Montenegro, based on the above mentioned Belgrade Agreement and promulgated on 4 February 2003, in its Article 60 stipulates that upon the expiry of a 3-year period, member states shall have the right to initiate the proceedings for the change in its status or for breaking away from the state union of Serbia and Montenegro. The decision on breaking away from the state union shall be taken following a referendum bearing in mind the internationally recognized democratic standards.
The Agreement amending the Constitutional Charter, adopted on 7 April 2005, goes further than the Constitutional Charter. It requires the regulations for the referendum to be founded on internationally recognized democratic standards. Finally, it says that the member state organising a referendum will cooperate with the European Union on respecting international democratic standards.
That means, that after February, 4, 2006, the issue of referendum in Montenegro becomes politically, but also legally legitimate. Bearing all this mentioned earlier in mind, on December, 16, 2005 Javier Solana, European Union High Representative for CFSP, decided to appoint me as his Personal Representative to facilitate negotiations among political forces in Montenegro on the arrangements for the proposed referendum.
The appointment has taken place immediately after the Venice Commission of the Council of Europe issued its Opinion on the compatibility of the existing legislation in Montenegro concerning the organisation of referendums with applicable international standards. The Venice Commission strongly recommended that serious negotiations should take place between the majority and opposition within Montenegro in order to achieve a consensus on matters of principle concerning the conduct and implementation of the proposed referendum, to ensure that the outcome of the referendum is accepted by all major political Groups. The Commission emphasised that the European Union could facilitate such negotiations. This document, elaborated upon the request of the Parliamentary Assembly of the Council of Europe, provided a good basis for my mission.
Articles 39 and 40 of the Opinion of the Venice Commission were interpreted differently by the coalition parties in Montenegro and differently by the opposition and the Belgrade government at the beginning of my mission. The Montenegrin opposition parties and Belgrade emphasised the provisions from Article 39, under which decisions on issues as significant as, for instance, the change of the state status have in practice been commonly accepted by more than 50% of registered voters. On the other hand, the governmental coalition referred to the provisions from Article 40, under which the present Montenegrin Referendum Law, requiring a simple majority of those voting in the referendum for a decision to be adopted, is not inconsistent with international practice and standards. The suggestion of the Venice Commission under Article 40, which aimed to strengthen the legitimacy of the referendum by increasing the percentage rate for participation necessary for the referendum to be valid or by requiring that the decision be supported by a defined percentage of eligible voters, was also interpreted differently. While the governmental coalition believed that this proposal was optional, the opposition and Belgrade maintained that it was obligatory and needed to be incorporated into the existing legislation.
Based on my mandate I have spent most of my time between December, 20 – February, 28 in and around Podgorica and held negotiations with the highest constitutional representatives of the Republic of Montenegro, but also the State Union of Serbia and Montenegro and the Republic of Serbia. In Montenegro, I held negotiations with all relevant political parties from both the coalition and opposition.
The proceeding of my mission was following: Firstly, we reached the agreement with the coalition and the opposition on the participants and principles of the negotiating process (i.e. no direct talks, but rather a “shuttle diplomacy” between the two blocks). Secondly, we agreed on a document called “Key principles of a democratic referendum process”, where we have defined the principles of the referendum process that should be negotiated before a referendum is called. It concerned the following topics – legislative framework, majority requirements, referendum question, referendum campaign, access to the media, financing of the referendum campaign, administration of the referendum, and observation of the referendum process. Thirdly, after two weeks of expert level negotiations an agreement was reached on the special law, addressing all the technical aspects of the referendum process – observation, campaign, administration, financing and media. That draft Law was immediately afterwards formally endorsed by the ruling coalition, as well as by the opposition (on the request of both Montenegrin blocks, the Chairman of the Republican referendum Commission should be an European Union-nominated foreigner). Finally, we moved on to address the three key aspects of the whole process, namely: i) the referendum question, ii) the date for the referendum and the most important iii) the majority required for a decision to be adopted in the referendum.
The referendum question is one and unambiguous “Do you want Republic of Montenegro to be an independent state with full international and legal personality?”
The date of the referendum – that issue has become a matter of political prestige. The Government spoke about 45 days campaign and referendum taking place definitely before the April, 30, which was also a date of planned municipal elections. Opposition, on its side, was rejecting anything less than 90 days of campaign and its leader promised repeatedly to his supporters that referendum would definitely not take place in April. And since there is no general rule or standard on this particular issue, we proposed a compromise, consisting of 75 days of campaign and moving the date of the referendum together with municipal elections for May, 14.
Finally, the majority requirement. In all our public statements and private debates we have been continuously stressing that the European Union is in favour of a formula that is based on Venice Commission recommendations and sets the parameters of the referendum in a fair way so that its outcome cannot be prejudged (meaning that neither the government, nor the opposition shall be disadvantaged or completely disqualified in advance) and so that its outcome is generally acceptable. This means to create conditions for free and fair voting and open-ended outcome. In the interest of legitimacy of the process the majority formula was meant to promote highest possible turnout and discourage boycotting. And finally, we also made it clear that in the situation where there are no clearly defined international standards, our aim is to create a framework, that is tailored to the specific political and social situation in Montenegro, namely to reflect the fact, that the independency option enjoys the support of approx. 40% of the population, while approx. 30% of Montenegrin citizens are clearly in favour of the common state with Serbia.
It became clear during the process that there was virtually no chance that the two sides in Montenegro would be able to achieve a compromise on issue that is so crucial for both of them. Therefore time has come for the European Union to say what we see as the proper criteria for a legitimate referendum. And we did. The formula we have proposed after intensive consultations in Podgorica, Belgrade, Brussels but also in Strasbourg and which fulfils the abovementioned criteria better than any other formula put forward, was the one based on 50 % + 1 turnout and 55 % of the valid votes cast. No doubt, it as a very difficult formula, but probably the only one that meets the criteria under which EU accepted to become a part of this process.
By presenting these three proposals on February, 14, we made it clear that if referendum is conducted under the abovementioned criteria, European Union will consider such a referendum legitimate and will accept its results.
The opposition block endorsed the proposal on February, 25. On February, 27, the GAERC in its conclusions expressed its full support for efforts and initiatives of the HR Personal Representative. On the same day, the major party of the government coalition, DPS of Prime Minister Djukanovic, accepted the proposal, thus paving the way for the draft law to be submitted to the Parliament. On Tuesday, we cleared the last remaining issues, namely the date of referendum (May, 21), postponement of local elections for autumn (together with the parliamentary elections) and the financing of the campaign (1 Mil Euro for each block). I am happy to say that yesterday, the law, that means the whole package, was endorsed by the parliament in Podgorica with an impressive majority (60 vs. 10). Today, we expect a vote on political declaration to call for a referendum. This will close the political stage of the process and open the way for a standard referendum campaign that begins virtually tomorrow.
Excellencies, dear colleagues, let me conclude my presentation with some recommendations for the Council of Europe that has been a constructive part of the process since its beginning:
o I see a great role for the Council of Europe which could actively contribute to the legitimacy and objectivity of the referendum with its expertise, experience and with sending observers to the process. The reinforcement of political stability and security of Montenegro and the surrounding area, which is extremely important, considering other political processes taking place in the Balkan region, has to remain the final objective of the international community.
o Both the government and opposition in Montenegro have shown a great degree of responsibility, making this positive achievement possible. They, and their leaders, Prime Minister Milo Djukanovic and SNP Chairman Predrag Bulatovic in particular, do deserve to be commended for that.
o In preparation for the referendum we should not forget about the “Day after”. Therefore, in communication with both Belgrade and Podgorica it is recommended to stress the importance of talks between the two republics about their future relationship whatever the outcome of the referendum
Thank you for your attention.”
Note 1 This document has been classified restricted at the date of issue. Unless the Committee of Ministers decides otherwise, it will be declassified according to the rules set up in Resolution Res(2001)6 on access to Council of Europe documents.